• OFCCP Reevaluates Affirmative Action Regulations Related to Individuals with Disabilities
  • August 13, 2010 | Author: Eric John Felsberg
  • Law Firm: Jackson Lewis LLP - Melville Office
  • The Office of Federal Contract Compliance Programs (OFCCP) has issued a notice inviting the public to provide input on how the OFCCP can strengthen the affirmative action requirements of the regulations implementing Section 503 of the Rehabilitation Act of 1973.  The law prohibits discrimination and requires employers with federal contracts or subcontracts that exceed $10,000 to take affirmative steps to hire, retain, and promote qualified individuals with disabilities.

    The Agency will reexamine the current affirmative action provisions under Section 503 in an effort to make them more effective, and to help ensure that more people with disabilities are employed and given the opportunity to advance in employment in the federal contracting labor force.

    The OFCCP will accept comments through September 21, 2010. 

    Comments Requested on These Topics
    Comments should be limited to the following topics, according to the OFCCP:

    1. How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities?  If available, include examples or information illustrating the effectiveness of the suggested new requirements.
    2. What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503?  How much did these measures cost?
    3. What barriers currently impede federal contractors from hiring people with disabilities?
    4. Are there changes that could be made to the existing language on permissible qualifications standards that would better ensure equal employment opportunities for individuals with disabilities?
    5. If OFCCP were to require federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to that required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?  (E.O. 11246 prohibits federal contractors and subcontractors and federally-assisted construction contractors and subcontractors that generally have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.)
    6. Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the federal-contractor sector?  Explain why or why not.
    7. What experience have federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local, or foreign governments?
    8. What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?
    9. To what extent does workplace flexibility, including in work schedules and job-protected leave, affect recruitment and retention of individuals with disabilities?
    10. Has training of employees or managers been effective in increasing advancement or retention of individuals with disabilities?  If so, how?
    11. Federal contractors are required to invite all job applicants to voluntarily and confidentially identify their race and gender prior to an offer of employer.  The collection of this information allows contractors to monitor the affect of their employment practices by race and gender to assess progress in meeting their affirmative action goals.  Section 503 regulations require contractors to invite applicants to voluntarily and confidentially self-identify as a person with a disability after making an offer of employment but before beginning employment.  Would amending the Section 503 regulations to require contractors to invite all applicants to voluntarily and confidentially self-identify if they have a disability prior to an offer of employment enhance a federal contractor’s ability to more effectively monitor their hiring practices with respect to applicants with disabilities?  Section 503 regulation requiring contractors to invite voluntary and confidential self-identification as an applicant with a disability pre-offer for affirmation action purposes would not violate the Americans with Disabilities Act. 
    12. How can linkage agreements between federal contractors and organizations that focus on the employment of individuals with disabilities be strengthened to increase effectiveness?  Do linkage agreements have better outcomes when higher level company officials are responsible for their implementation?  Include examples of cooperative agreements between employers and disability or community recruitment organizations that have been helpful in hiring persons with disabilities.
    13. What would be the result of requiring that federal contractors and subcontractors make information and communication technology used by job applicants in the job application process, and by employees in connection with their employment, fully accessible and usable by individuals with disabilities?  What are the specific costs or benefits from this requirement?
    14. What other specific changes to Section 503 regulations might improve the recruitment, hiring, retention, and advancement of individuals with disabilities by federal contractors?
    15. Consistent with the Regulatory Flexibility Act, the Department of Labor (DOL) must consider the effect of any proposed rule on small entities, including small businesses, small nonprofit organizations and small governmental jurisdictions with populations under 50,000.  The DOL encourages small entities to provide data on how additional requirements under Section 503 may affect them.
    16. What are the types of small entities and estimates of the numbers of small entities that may be affected?
    17. What are the potential costs of additional Section 503 requirements on small entities?
    18. What are the possible alternatives to the proposed measures that would allow the Agency to achieve the regulatory objectives while minimizing any adverse affect on small businesses.