By Lydell C. Bridgeford
During a June 14 session at the annual conference of the American Association
for Affirmative Action (AAAA), a Labor Department official discussed an agency
under Section 503 of the Rehabilitation Act that would require federal
contractors to set a goal of having 7 percent of their workforce composed of
people with disabilities.
The proposal also would require covered federal contractors to invite
applicants to voluntarily self-identify as having a disability, at the pre-offer
and post-offer stages of the hiring process. The rule was proposed in December
and the agency has received numerous comments on it (29 HRR 1323, 12/12/11).
Tom G. Wells, director of the Office of Federal Contract Compliance Programs'
Baltimore-Washington district office, told attendees that federal contractors
can ease workers' anxiety over disclosing their disability status by educating
them on the business necessity to comply with federal affirmative action
The proposed rule also would add a new requirement that contractors annually
survey their employees about their disability status, thus providing an
opportunity for every employee who has or develops a disability to voluntary
self-identify, he said.
In many cases, self-identification may lead to reasonable accommodations that
the employee might not have pursued before, Wells said.
“The contractor needs to make clear to job applicants and employees that the
company is requesting the information because it is a covered federal contractor
who has to comply with federal affirmative action laws,” Wells said. The
invitation to self-identity should emphasize to job applicants and employees
that their responses to the questions will have no bearing on whether they are
hired or promoted.
Employers should explain that providing the information is strictly
voluntary, he said, and that it will only be shared with those who have a need
to know, such as the human resources department. Contractors should emphasize to
workers that the information on disability status is collected to comply with
affirmative action laws enforced by OFCCP.
Wells extolled the advantages of annually conducting a confidential survey
that allows workers to self-identify as having a disability. The confidential
survey would allow an employer to capture data pertaining to individuals with
disabilities in its applicant pool and workforce and provide the organization
with information that does not currently exist, he observed.
Employees who are new to the workforce may be hesitant about disclosing a
disability when they are first hired, Wells said. But once individuals become
established and demonstrate that they are good workers, they may feel more
comfortable about revealing such information.
Additionally, some employees may not have a disability when they are hired
but acquire one later or have temporary disabilities due to accidents or medical
conditions, he said. The data from an annual or continuous survey will assist
both the OFCCP and the federal contractor in identifying barriers to the
employment process affecting people with disabilities.
By inviting employees to self-identify annually, the contractor and the OFCCP
can assess the effectiveness of an affirmative action program as required by
Section 503, Wells said. The feedback from the survey will offer a window into
“recruitment efforts over time,” so that employers refine and modify their
approach to including workers with disabilities, he said.
The Section 503 proposal also includes a provision on pre-award compliance
reviews. The provision is intended to make regulations under Section 503
consistent with those under Executive Order 11,246, Wells explained. E.O. 11,246
only covers the employment of women and racial/ethnic minorities by
OFCCP receives requests for EEO clearance from federal contracting agencies
prior to awarding a contract of $10 million or more, if a contractor is not on
the National Pre-Award Registry. OFCCP has the option of conducting a pre-award
compliance review before granting the EEO clearance. “In the vast majority of
cases, the clearance is granted without a review,” Wells said. Currently, the
agency's regulations only allow pre-award compliance reviews under E.O.
The Section 503 proposal also calls for federal contractors to establish a 7
percent national utilization goal for hiring people with disabilities for each
job group in a contractor's workforce. Some observers have said the goal is too
high, while others have complained that it is too low.
Employment disability consultant Janet D. Fiore applauded OFCCP for its
proposal, which has drawn criticism from the federal contractor community. “We
need to draw a line in the sand and set a goal. If we don't, then we will not
see any significant changes in the employment of persons with disabilities,”
said Fiore, CEO of the Sierra Group Inc., a King of Prussia, Pa.-based
consulting firm focusing on workplace disability policies.
She was uncertain as to whether the 7 percent goal will make it into the
final rule, but said she found it interesting that the federal government has
established a 1 percent goal for its own workforce in terms of including people
Fiore noted that OFCCP realizes that changes need to occur to its Section 503
regulations so that they mirror what is required under the Americans with
Disabilities Act. The ADA, however, precludes employers from asking about
disability status until after the time of hire or when the person asks for
The dilemma for federal contractors is in the recordkeeping requirement of
tracking job applicants with disabilities.
“If you don't know how many applicants you have in that protected class, then
you might get cited or fined by the OFCCP for not doing good proactive
outreach,” Fiore said. Under the ADA, “it's never been precluded to ask for
voluntary disclosure, but it has always been precluded to discriminate based on
Discussing the Americans with Disabilities Act Amendments Act of 2008, Fiore
observed that the statute now covers more individuals with impairments under its
expansion of the definitions of major bodily functions and major life
activities. Yet many employees who are covered under the law do not realize
this, so they will not be asking their employers for accommodations, she
Fiore asserted that more work needs to be done in creating organizations that
assist employees with disabilities in finding jobs. A federal contractor seeking
to hire chemical engineers, for example, will find it very difficult to achieve
a 7 percent goal in that job group, given that there are few resources available
for locating and placing workers with disabilities in specific occupations, she
She observed that many vocational rehabilitation and placement agency
counselors have instructed people with disabilities not to disclose this
information on job applications, because it will diminish their chances of
getting an interview. Consequently, not only will people with disabilities have
to be re-educated about voluntary self-identification, but career counselors who
work with persons with disabilities will also have to be informed of the
The AAAA is a national organization that represents professionals who manage
affirmative action, equal opportunity, diversity inclusion, and human resources
programs in the private and public sectors.