The OFCCP Proposes Affirmative Action Quotas for Disabled Individuals

Employment Law Newsletter

For decades federal contractors have been dealing with the Office of Federal Contract Compliance Programs’ (OFCCP) requirements designed to promote workplace equality for women and minorities in the workplace. Recently, the OFCCP announced proposed regulations under Section 503 of the Rehabilitation Act of 1973 that would extend, and in certain respects, expand those obligations to promote opportunities for disabled workers.

Rule Highlights

Utilization Goals: Under the proposed rule, contractors would be required to adopt a national utilization goal for disabled workers equal to 7% of their employees in each job group of the contractor’s workforce.

Self-Identification Surveys: Contractors would be required to invite applicants to self-identify as disabled individuals at the pre-and post-offer stages of the hiring process. This startling requirement could effectively deny contractors the opportunity to advance the affirmative defense that the rejection of a disabled applicant was not discriminatory because the employer was unaware of the disability’s existence. Contractors would also be obligated to conduct annual surveys that invite workers to anonymously self-identify.

Recordkeeping Requirements: Consistent with current recordkeeping requirements designed to identify adverse impacts for women and minority workers, contractors will be required to maintain records of the numbers of applicants and hires who are individuals with disabilities and to establish the hiring ratio of individuals with and without disabilities in each job group.

Adoption of Accommodation Procedures: Contractors would be required to develop procedures for processing any requests for reasonable accommodation from disabled applicants and workers that, at a minimum, 1) identify the individual responsible for receiving requests; 2) require written confirmation of any accommodation request; 3) specify the timeframe within which a request must be processed; 4) require the contractor to issue a written basis for any denial of an accommodation request; and 5) inform the employee that he/she may file a complaint with the OFCCP if he/she believes the denial was unjustified.

External Outreach: Contractors would be required to establish “linkage agreements” with state or local vocational rehabilitation service agencies and at least one other organization from a list specified by the OFCCP. Contractors would also be required to list job openings with Employment One-Stop Centers or other appropriate employment delivery systems. Finally, contractors would be required to consider disabled applicants if the position applied for is unavailable.

Personnel Processes Review: Contractors must develop procedures designed to facilitate a review of its compliance with the rule’s requirements. The proposed regulations set forth several mandated steps that must be included in an annual review process to ensure that, to the extent qualification standards tend to screen out disabled individuals, these qualifications are job related to the position and are consistent with business necessity.

Bottom Line: Should the regulations become final, federal contractors will be faced with significant recordkeeping and other administrative burdens and, more important, will likely face increased challenges by employees claiming that the contractor failed to hire or provide reasonable accommodations to disabled employees. Contractors wishing to comment to the OFCCP’s proposed regulations must do so by February 7, 2012.

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