OFCCP Rejection For Extension of Public Comment Period on Proposed Changes to Section 503 of the Rehabilitation Act Draws Congressional Response

by Art Gutman Ph.D., Professor, Florida Institute of Technology

On Wednesday, January 25th all of the employer associations and other organizations that requested an extension to the February 7th public comment deadline in response to proposed regulatory changes to Section 503 received official word that those extension requests were rejected. These proposed changes are related to equal employment opportunity and affirmative action requirements for persons with disabilities. Check out a recent webinar DCI staff gave on the NPRM for more information on the topic (https://dciconsult.com).

The OFCCP’s response appeared coordinated, because most of the organizations that submitted an extension request received a fax and/or hard copy letter at about the same time. Extension requests were based on the fact that (1) the NPRM was released just before the winter holidays, (2) the NPRM is dense (over 50,000 words), (3) some of the burden estimates were controversial, and (4) organizations wanted time to appropriately survey constituents and stakeholders about the specifics of the NPRM.

In response to the OFCCP’s rejection to extend the comment period, On January 27, 2012, Congressman John Kline, Chairman of the Committee on Education and the Workforce and Congressman Phil Roe, Chairman Subcommittee on Health, Employment, Labor, and Pensions wrote a letter to Secretary Hilda Solis requesting a 90-day extension of the public comment period. Three major concerns are addressed in the letter.

The first concern is that the NPRM introduces a first-time requirement to establish a 7% hiring goal for disabilities, and questions “the legal authority under Section 503 permitting OFCCP to establish a numerical hiring standard,” There is also a concern that a “hiring standard would, in effect, institute a quota, which has been met with great scrutiny from the Supreme Court.”

The second concern is that the NPRM would “ask job applicants to self-identify as disabled” which, according to the letter conflicts with ADA statutory language prohibiting employers “from asking disability-related questions before an offer of employment has been made.” Additionally, it is noted the need for accuracy in the self-identification and disclosure in the job application process “has the potential to create more problems than solutions.”

The third concern is about potential burdens associated with the “NPRM's myriad new paperwork and recordkeeping requirements”, noting that this contradicts President Obama’s call in January 2011 for reduced paperwork, and also, creates “a burden for employers with questionable benefits for individuals with disabilities.”

In light of these concerns, the letter ask the OFFCCP to respond to the following six inquiries “no later than February 10, 2012, and to provide “all documents and communications from OFCCP, the Office of the Solicitor, or any other agency related to the inquiries below.”

1. Identify and explain OFCCP's statutory authority under Section 503 to establish a numerical hiring standard.
2. Identify and explain the basis for OFCCP's decision that federal contractors' good faith efforts are insufficient affirmative action under Section 503.
3. Identify and explain OFCCP's statutory authority to require contractors to ask job applicants to self-identify as a qualified individual with a disability, given that the ADA prohibits disability-related questions before an offer of employment has been made.
4. Identify and explain the basis for OFCCP's assumption that job applicants and contractors' current employees would understand the legal definition of "disability," as defined in the NPRM's prescribed self-identification notice.
5. Under proposed section 60-7 41.44(b), 0FCCP assumes contractors would spend 30 minutes per year to draft and provide written "statement[s] of reasons explaining the circumstances for rejecting individuals with disabilities for vacancies and training programs." Simple math would suggest the amount of time required would far exceed this estimate. Explain how OFCCP determined the 30 minutes per year estimate.
6. Under proposed section 60-7 41.44( d), OFCCP failed to consider the costs federal contractors would incur to make their "electronic or online job application system[s] compatible with assistive technology commonly used by individuals with disabilities, such as screen reading and speech recognition software. Likewise, under proposed section 60-741.44(g), OFCCP failed to consider the economic burdens associated with discussing the NPRM's new affirmative action requirements with all employees during, for example, orientation and training events. II) Explain why OFCCP failed to consider the costs of contractors' compliance with these provisions of proposed sections 60-7 41.44( d) and (g).

Stay Tuned for further developments.