Court Denies Associated Builders and Contractors’ Attempt to Prevent New OFCCP Affirmative Action Requirements


Beginning on March 24, 2014, federal contractors that have a government contract or subcontract of $50,000 or more and have 50 or more employees must implement new affirmative action programs, including: (1) asking in every job application whether the applicant has a disability; (2) keeping track of the number of applicants and newly hired employees who self-identify a disability; (3) striving for a 7 percent disabled workforce, and (4) submitting a new affirmative action program that includes recruiting efforts toward attaining a 7 percent disabled workforce goal.

On September 24, 2013, the Office of the Federal Contract Compliance Programs (“OFCCP”) published new regulations affecting employers of 50 or more employees and that have a contract or subcontract of $50,000 or more with the federal government. See Final Rule, 78 Fed. Reg. at 58,582. A copy of the full Rule can be found here. The rule becomes effective March 24, 2014.

On November 19, 2013, the Associated Builders and Contractors (“ABC”) filed suit in the United States District Court for the District of Columbia seeking to invalidate the new regulations as they apply to the construction industry. However, on Friday, March 21, 2014, the court denied ABC’s request, paving the way for the new regulations to take effect. A copy of the court’s decision can be found here.

The major requirements of the new rule are as follows.

(1) Job applications must include a section offering a prospective employee an opportunity to voluntarily disclose a disability.

(Importantly, the court ruled that this requirement does not violate the American with Disabilities Act because the question is in furtherance of an affirmative action plan.)

(2) Contractors must keep track of the number of job applicants and new hires who self-identify as having a disability as compared to the number of job openings and applications.

(3) Contractors must strive for a 7 percent workforce utilization goal for individuals with disabilities.

(The “OFCCP estimates that federal contractors would hire an additional 594,580 individuals with disabilities” in order to meet this 7 percent goal.)

(4) Within 120 days of a new federal contract, the contractor must submit an affirmative action program. An affirmative action program is defined as one that “is dynamic in nature and includes measurable objectives, quantitative analyses, and internal auditing and reporting systems that measure the contractor’s progress toward achieving equal employment opportunity for individuals with disabilities.” Furthermore, the plan must set out recruitment plans for hiring individuals with disabilities.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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