OFCCP Official, HR Consultant Examine Disability Disclosure Under Proposed Rule

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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 proposed rule 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 laws.

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.

Annual Survey Provides Comprehensive Picture.

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.

Amending Regulations on Pre-Award Reviews.

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 contractors.

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. 11,246.

Disability Consultant Discusses Hiring Goals, ADA.

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 with disabilities.

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 reasonable accommodation.

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 that.”

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 said.

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 said.

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 changes.

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.

By Lydell C. Bridgeford  

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