OFCCP Backs Away from Rigid Affirmative Action Requirements for People with Disabilities

News Updates

The Office of Federal Contract Compliance Programs (OFCCP) issued its final rules to improve job opportunities with federal contractors for people with disabilities and for protected veterans. Its final rule for people with disabilities, more controversial than the one for veterans, eliminated or made more flexible several of the proposed rule’s requirements. The OFCCP issued the final rules on Aug. 27, 2013.

Section 503 of the Rehabilitation Act regulations requires federal contractors to provide affirmative action to people with disabilities. The final rule established a nationwide 7 percent goal for qualified individuals with disabilities. And, as in the proposed rule, contractors will be required to apply the goal to each job group.

However, for contractors with 100 or fewer employees, the goal may be applied to the entire workforce, rather than each of the job groups. The OFCCP explained that this adjustment was made because it is “mindful that smaller contractors may find it more difficult to attain the goal in each of their job groups.”

In addition, the OFCCP decided to scrap the 2 percent subgoal for individuals with particularly severe disabilities. The comments on the proposed rule did not identify a clear list of specific conditions that a subgoal should encompass, the agency explained.

‘Tool’ Rather than a Quota

The OFCCP said it realizes that the 7 percent figure “is less precise than the geographically specific availability information that contractors are familiar with under the Executive Order 11246 program and that for some jobs in some locations availability of qualified individuals may be less than 7 percent.” And it is aware that American Community Survey (ACS) data (more detailed than the Census Bureau’s decennial census) is based on a definition of disability that is narrower than that used for Section 503. But the OFCCP disagreed with commenters who thought this is sufficient reason to eliminate the 7 percent utilization goal.

“While not perfect, the goal will provide a yardstick against which contractors will be able to measure the effectiveness of their equal employment opportunity efforts,” the OFCCP said. “Because the goal is intended solely as a tool, the final rule clearly states that a failure to meet the goal will not, in and of itself, result in a violation of Section 503 or a finding of discrimination.

“The goal is not a rigid and inflexible quota which must be met, nor is it to be considered either a ceiling or a floor for the employment of particular groups,” the agency continued. “OFCCP will look at the totality of the contractor’s affirmative action efforts to determine whether it is in compliance with its affirmative action obligations under this section. … If the contract has complied with the requirements of this part and no impediments to equal employment opportunity exist, then the fact that the contractor does not meet the goal will not result in a violation.”

Barriers to Equal Employment Opportunity

Later in the rule’s preamble, the OFCCP explains, “A failure to meet the utilization goal triggers an assessment of whether there is a barrier to equal employment opportunity, and if so, what the barrier is.” When the goal has not been met in a job group, the contractor must determine “whether and where impediments to equal employment opportunity exist. This determination is to be based on reviews of the contractor’s personnel processes and affirmative action efforts that the contractor is already required to perform. Only if a problem or barrier to equal employment opportunity is identified must the contractor then develop and execute an action-oriented program to address the problem.”

No Exemption from Goal

Some commenters requested that the OFCCP exempt from the goal requirement industries with physically demanding jobs, such as the construction industry, and those in safety-sensitive positions, including flight-crew members, flight attendants, flight instructors, aircraft dispatchers, aircraft-maintenance and preventive-maintenance workers, ground-security coordinators, aviation security screeners and air traffic controllers.

“Requests to exempt contractors from meeting the utilization goal for safety-sensitive positions or for physically demanding jobs are fundamentally based on the flawed notion that individuals with disabilities as a group are incapable of working in these jobs,” the agency said. “OFCCP does not support this belief and will not construct an avenue to permit contractors to avoid hiring individuals with disabilities for certain jobs.”

Rule for Veterans

Along with issuing the rule for people with disabilities, the OFCCP issued a final rule to implement the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), to improve job opportunities for protected veterans.

The final rule requires federal contractors to establish hiring benchmarks for protected veterans, who include not only veterans of the Vietnam War but any disabled veterans, veterans who have separated from the military within the past three years, veterans who received an Armed Forces service medal while on active duty, and veterans who served in active duty during a war or in a campaign or expedition for which a campaign badge was authorized.

The VEVRAA rule provides contractors with a quantifiable metric to measure their success in recruiting and employing veterans by requiring them to annually adopt a benchmark based on either the national percentage of veterans in the workforce (currently 8 percent) or their own benchmark based on the best available data. The rule strengthens accountability and record-keeping requirements, enabling contractors to assess the effectiveness of their recruitment efforts. It also clarifies job-listing and subcontract requirements to assist employers in complying..

In a summary of the final rule, the OFCCP noted that “contractors may choose to establish a benchmark equal to the national percentage of veterans in the civilian workforce, which will be published and updated annually by OFCCP. Alternatively, contractors may establish their own benchmarks using certain data from the Bureau of Labor Statistics (BLS) and Veterans’ Employment and Training Service/Employment and Training Administration (VETS/ETA) that will also be published by OFCCP.”

More Job Opportunities

“Strengthening these regulations is an important step toward reducing barriers to real opportunities for veterans and individuals with disabilities," said Patricia A. Shiu, director of the Labor Department’s OFCCP, which enforces Section 503 and VEVRAA.

“In a competitive job market employers need access to the best possible employees," said Secretary of Labor Thomas Perez. “These rules make it easier for employers to tap into a large, diverse pool of qualified candidates.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor. To read the original article on shrm.org, please click here.