OFCCP May Impose Explicit Goals for Federal Contractors' Hiring of Individuals with Disabilities

Following a trend by the Federal government to liberalize anti-discrimination laws in favor of employees, the Department of Labor Office of Federal Contract Compliance Programs ("OFCCP") has proposed regulations that would require employers who wish to keep their contracts (and subcontracts) with the Federal government to attempt to maintain a workforce where 7% of employees are individuals with disabilities. The public comment period for this proposal has just closed, and the OFCCP is now in the process of reviewing respondents' reactions.

The proposal is a departure from current law in that, for the first time, it imposes a hiring goal on contractors. Currently, Section 503 of the of the Rehabilitation Act of 1973 contains an affirmative action plan but not a quantitative objective. This has been the case since the 1970s. Given the lack of improvement in the unemployment rate of individuals with disabilities, as well as the substantial technological advances that enable more reasonable accommodation of such individuals, the OFCCP concluded that such a goal would be appropriate.

The 7% goal would apply only to contractors that have 50 or more employees and a contract of $50,000 or more. It would not be satisfied by a single, whole-workforce comparison. This is because a contractor could satisfy such a goal and still conceal discrimination by segregating all employees with disabilities into one or two low-paying jobs. Instead, the goal would be applied to and measured by each job group. The OFCCP is also considering applying a 2% sub-goal for individuals with certain severe disabilities, such as total blindness or missing extremities. Failure to attain a goal would be neither a finding or admission of discrimination, nor would any goal be a ceiling limiting job opportunities for individuals with disabilities or an absolute quota. Nevertheless, failure to reach the goal could result in cancellation of a government contract or inability to win future contracts with the government.

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