INTERPRETING SECTION 503 OF THE REHABILITATION ACT: IMPLICATIONS FOR OFCCP ENFORCEMENT

The federal contractor community has been anticipating a 2013 final rule updating affirmative action and nondiscrimination obligations regarding individuals with disabilities. However, it may also be useful to think about what is currently required under Section 503 of the Rehabilitation Act regulations and how it is being enforced by OFCCP during compliance evaluations. In addition, how is Section 503 different from Title III of the Americans with Disabilities Act (ADA)?

Under Section 503, federal contractors are obligated to make their websites accessible to individuals with a disability by providing an opportunity to request a reasonable accommodation in applying for job openings. This applies when an online application system is the only means for candidates to submit applications for employment. While contractors are required to have this communication, there is no one-size-fits-all approach to providing alternative means of application. However, there are some recommended methods that OFCCP provided in a frequently asked questions document that accompanied a Section 503 directive from 2008. In recent audits, compliance officers have also suggested federal contractors must have information on the website inclusive of an actual contact person (e.g., name). However, it may not be reasonable for large federal contractors to list one contact person fielding nationwide requests, but rather to have a uniform system in place for accepting these requests and processing them in a timely manner (e.g., a phone number to call). For this reason it would make sense that there is no formal requirement to have a specific point of contact name listed in the reasonable accommodation request verbiage.

Section 503 and the ADA both require a means for equal opportunity to applicants with a disability, but only the ADA incorporates rules on facilities (i.e., places of public accommodation). Section 503 only requires the ability for an individual with a disability to access the facility in order to apply for a job, whereas the ADA is much broader in scope. During a review, OFCCP representatives may cite a facility violation if applicants are not able to apply. Since this is not specifically stated in the regulations, it would be a challenging argument for OFCCP representatives to make during the conciliation agreement process, particularly if there were other reasonable means of application

However, that hasn't stopped OFCCP from making such allegations. For example, in a recent OFCCP settlement research study, the Center for Corporate Equality (CCE) found that about 10% of FY 2013 settlements where financial remedies were collected (either to award alleged victims back pay or to remedy some type of violation related to discrimination) focused on 503 access issues. These included online application issues as well as facility access issues for the mobility impaired. It will be interesting to see if the revised 503 regulations provide clarity around these issues. Stay tuned.

by Keli Wilson, M.A., Senior Consultant and Eric Dunleavy, Ph.D., Principal Consultant, DCI Consulting Group

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