The rules for consumer control indicate that 51% of your managers must have a disability. In smaller centers where there is only one manager — the Executive Director — the board must hire a person with a disability. Even if there are two managers, 51% of two is two, and both must have a disability. As a result, most centers are seeking a person with a disability to fill the ED role.
There was a time when this was extremely awkward, because the Equal Employment Opportunity Commission (EECO) was clear that you could not ask interviewees about having a disability for fear that you might discriminate against them because of the disability. We have quite the opposite reason for asking — and now that reason is validated by guidance related to pre-employment questions about disability. This new guidance says that if you are asking about whether the person has a disability for the purposes of your affirmative action program, you may invite applicants to voluntarily self-identfy if:
- The CIL is undertaking affirmative action because of a federal, state, or local law. This is the case for centers, because the Rehabilitation Act as amended requires consumer control, which is defined including having 51% of managers and 51% of other staff be people with disabilities.
- Or the CIL is voluntarily using the information to benefit individuals with disabilities.
- Employers may invite voluntary self-identification only if you are using the information to benefit individuals with disabilities.
- You must state clearly on any written questionnaire, application or in your employment advertising, or state clearly orally, that the information requested is used solely in connection with affirmative action obligations.
- You must state clearly that providing this information is voluntary, will be kept confidential as required by the ADA, and that if they refuse to answer they will not be subject to any adverse treatment. I suggest that you add that you may in some cases be choosing a person with a disability over a non-disabled applicant.
May I add a personal note? I didn’t know anything about Independent Living when I wrote a grant back in 1979. Fortunately Lex Frieden at ILRU provided all of the ten newly funded centers with training, and veterans Marca Bristo and Max Starkloff, who directed two of the other centers, knew what IL was all about. Due to their influence I looked around and told the board, “we really need a director with a visible disability”, and I am pleased that they have kept true to that goal in the hiring of the next few directors as well. (My disability isn’t always evident.) Even when a center is big enough that other managers can meet the 51% requirement, I feel that the message to the community is unmistakable when the leader has a visible disability, or has an invisible disability and is willing to talk about it and to show clear consumer control at the local level.