The promise of the Americans with Disabilities Act was that it would improve the workforce participation of persons with disabilities. It hasn’t happened. Therefore, the federal government is beginning to go further. Recently, the Office of Federal Contract Compliance Programs issued proposed regulations mandating affirmative-action for persons with disabilities for every government contractor that has 50 or more employees in a contract of $50,000 or more. They also amended the nondiscrimination rules so as to be consistent with the Americans with Disabilities Act Amendments Act. The nondiscrimination rules apply to all government contracts and subcontracts in excess of $10,000 for the purchase, sale or use of personal property or nonpersonal services (including construction). Nonpersonal services include, but is not limited to: Utility, construction, transportation, research, insurance, and fund depository.
A detailed look at the proposed regulations would be way beyond the scope of this blog. However, we can highlight. First, the proposed regulations are divided into five parts, A-E plus an appendix . Part A, B, D, E , and the appendix apply to everyone (government contractors in excess of $10,000). Part C, the affirmative-action obligations, as noted above , only applies to government contractors with 50 or more employees in a contract of $50,000 or more. Second, the substantive changes in the regulations are really straightforward. The changes are made to be consistent with the Americans with Disabilities Act Amendments Act and will not be a surprise to anyone familiar with the regulations implementing that act issued by the Equal Employment Opportunity Commission. Third, the proposed regulations only apply to employment activities within the United States and not to employment activities abroad. Finally, a mandated equal opportunity for workers with disability statement must be used and must be in the form required by the Office of Federal Contract Compliance Programs. Interestingly enough, the very first paragraph of that form uses language that was in the Americans with Disabilities Act and was stricken from the Americans with Disabilities Act as amended. More specifically, the first paragraph of this statement says, “the contractor will not discriminate against any employee or applicant for employment because (emphasis added) of physical or mental disability…” However, the Americans with Disabilities Act Amendments act deleted the word, “because” in favor of, “on the basis of.” The difference is more than academic as the change to, “on the basis of” allows for the argument that a plaintiff may be able to use the mixed motive line of attack in a case. Whereas, the, “because” language has been held to prohibit a plaintiff from being able to use the mixed motive line of attack. See Serwatka v. Rockwell Automation Inc., 591 F.3d 957 (Seventh Circuit 2010). Hopefully, in the final regulation, the office of Federal Contract Compliance Programs will see the error and use, “on the basis,” especially since they use, “on the basis” as the standard in another part of the proposed regulation.
For those contractors subject to the affirmative-action rules, what used to be encouraged, is now required and then some. Some of the highlights include. First, a government contractor subject to the affirmative-action requirements will now have to do an annual survey of employees with disabilities.
Second, they are mandated to take affirmative-action to advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.
Third, that information collected is to be in the data analysis file and not in other places. Fourth, while affirmative-action is mandated, the process must ensure that individuals with disabilities are not stereotyped. This is not a small concern. Back in college, I did work for the state of Illinois with respect to section 504 to Rehabilitation Act and was involved in assessing whether the affirmative-action program was working. What we found was that the program was not working because when a person saw that a person had a disability on their form, they immediately went into stereotype mode and wrote the person with a disability off. That was many years ago and society was different. Hopefully, the same issues would not arise now and an affirmative-action program can be set up to get around that problem.
Fourth, The Office of Federal Compliance Contract Programs mandates that the personnel process contain various steps, such as but not limited to a written notification of any rejection and an annual review of essential functions with respect to any physical and mental requirements so as to ensure those requirements are specific to a particular job and that they are job-related and consistent with business necessity.
Fifth, a governmental contractor subject to the affirmative-action requirements has the obligation to activate the ADA. That is, the way it typically works is an employer only has to make a reasonable accommodation once they have been notified (it can be complex at what notify might mean). However, here an employer has the affirmative obligation, if it is reasonable to conclude that a disability is getting in the way of performance problems, to notify the employee of the performance problem and inquire whether the problem is related to the employees disability. If the employee says yes to that question, the contractor must confidentially inquire whether the employee is in need of a reasonable accommodation.
Sixth, electronic or online job application systems must be compatible with assistive technology (such as screen readers and voice dictation).
Seventh, an employer subject to the affirmative-action requirements, must consider an applicant with a disability for any available position they qualify for within the company when the position that they did apply for is unavailable.
Eighth, specific data collection requirements are mandated and minimum requirements for reasonable accommodation procedures are set forth.
Ninth, time frames are set forth for processing reasonable accommodation request.
Tenth, utilization goals are set. That is a percentage, 7 %, is set as a goal for the government contractor to meet with respect to persons with disabilities being in their workforce. Furthermore, it is broken down by specific jobs rather than an aggregate.
Eleventh, employers subject to the affirmative-action requirements, are encourage to voluntarily develop and implement programs that provide priority consideration to individual disabilities in recruitment and/or hiring. The office of Federal Contract Compliance Programs says that such a system could include assigning a weighted value or additional points to job applicants who self identify as being an individual with a disability. Such a point system is very interesting in light of the United States Supreme Court decision finding that the University of Michigan undergraduate program violated the U.S. Constitution with such a point system with respect to racial preferences. That said, this particular issue would be extraordinarily complicated with respect to persons with disabilities as it would deal with terms of the Americans with Disabilities Act itself, which specifically say that reverse discrimination suits aren’t going to work, and with the very confusing way persons with disabilities are classified for purposes of the equal protection clause of the United States Constitution. Also, interestingly enough disability-related information from the applicant and/or employee self identification request can be used by the employer to help figure out who would benefit from a priority consideration program. This is also very interesting because it is a very complex question for a person with a disability as to when they will disclose their disability as part of the hiring process.
Finally, the proposed regulations have provisions in there for dealing with what must be in the complaint, a process of conciliation, and when a show cause order will be sought by the Solicitor of Labor with respect to any enforcement proceedings.
Again, none of this is meant to be all-inclusive (the proposed regulation goes on for 45 pages). Also, keep in mind that these regulations are just proposed in the final regulation may change some. However, this is a start. Anybody needing specific advice on this should seek competent legal counsel.