[nfbmi-talk] mcb should look at this

[joe harcz Comcast]

Submitted via www.regulations.gov

 

RIN: 1250-AA02

 

Ms. Barbara Bingham

Acting Director

Division of Policy, Planning, and Program Development

Office of Federal Contract Compliance Programs

Room N3422

200 Constitution Avenue, NW

Washington, DC 20210

 

Dear Ms. Bingham:

 

The Council of State Administrators of Vocational Rehabilitation welcomes the opportunity to comment on the Advanced Notice of Proposed Rulemaking regarding Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Affirmative Action Provisions Under Section 503 of the Rehabilitation Act, as Amended, RIN number 1250-AA02.  

Without inclusion of people with disabilities, the American workforce fails to reflect and benefit from the full diversity of our country.  We applaud OFCCP’s intention to undertake a comprehensive review of the Section 503 regulations to make them more effective.  Such a review and improvement is sorely needed. Despite the passage of Section 504 of the Rehabilitation Act in 1973 and the passage of the ADA in 1990, the employment rate of Americans with disabilities remains dramatically lower than the employment rate of people without disabilities.   The recent recession has affected the employment of individuals with disabilities even more severely than the general population.

Although discrimination is a major cause of underrepresentation of people with disabilities in the workforce, nondiscrimination laws, such as Section 504 and the ADA, alone, cannot be expected to overcome the legacy of disability discrimination.   Affirmative action is needed to redress past and present hiring discrimination that cannot be proved (because applicants with disabilities are not told why they are not hired and employers do not record their discriminatory reasoning), to overcome pervasive negative employer attitudes that will not even be examined in the absence of affirmative obligations (people with disabilities cannot demonstrate their abilities until they are present in the workforce), and to break the pattern of invisibility of the group (if an employer has never hired a person with a disability, it is unlikely to even notice that its workforce does not include anyone with a disability).  

Federal contractors represent a large group of employers.  According to some reports, nearly one in four American workers (approximately 22 million employees) is employed by a Federal contractor. That is close to 200,000 businesses with contracts amounting to over $700 billion.

Federal and state affirmative action requirements for racial and ethnic minorities and women have been shown to make a positive difference in the employment of those groups.  However, similar strides have not been seen in response to the disability affirmative action requirements of Section 503.  We believe this is because the Section 503 requirements have not been made clear, measurable, and results-oriented, and have not been adequately communicated, monitored, and enforced.  Absent concrete mandates and clear guidance, the current regulations have resulted in little more than paperwork assurances concerning nondiscrimination.  Meaningful requirements, coupled with increased guidance and technical assistance from OFCCP, could begin to significantly impact un-employment and under-employment of people with disabilities.

1. How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities? If available, include examples or information illustrating the effectiveness of the suggested new requirements.

 

A number of improvements are available to increase the effectiveness of Section 503 and, thus, to increase employment of people with disabilities by federal contractors.  Affirmative action requirements and programs covering race, ethnicity and gender under Executive Order 11246 and its implementing regulations provide an important model, including numerical placement goals, changes to qualification standards, quantitative analyses, measurable action steps, reporting, and accountability.  These measures should be incorporated in regulations implementing Section 503 for both construction and nonconstruction contracts.  Incorporation of these elements is critical to send a clear message to contractors that disability affirmative action stands on parallel footing to affirmative action on other factors.  In addition, a new requirement for accessible employment-related technology should be added.

In order to achieve the goals of Section 503, the regulations should be amended to: 

·               Add a new component relating to quantitative analysis, including the establishment of placement goals. 

·               Add a new component focused on accessible information and electronic technology. 

·               Include specific examples of exemplary practices under each component. 

In addition, it is important to require contractors’ disability affirmative action plans to address specific action steps that are necessary to increase employment of people with disabilities.  Successfully increasing employment of people with disabilities may require more than simply avoiding prejudice.  Because assumptions about people with disabilities have literally been built into our communities (in the form of steps, curbs, voice-only telephones, and printed text, among others), and because people with disabilities have often been segregated from the rest of the community, disability-based affirmative action plans should be required to address targeted outreach and recruitment, testing and qualifications standards, staff training, confidentiality protections, physical and communications accessibility, and reasonable accommodations.

    2. What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?

 

Because the requirements of Section 503 have been non-specific, publicly recorded or disseminated measures taken to achieve compliance by contractors and subcontractors have also been non-specific and not very ambitions.  A brief review of publicly available affirmative action statements reveals the following common elements:

·               Construction and internal and external dissemination of non-discrimination policy statements regarding individual disabilities, solely, or in conjunction with non-discrimination policies regarding gender, race, and veteran status

·               Designation of responsible affirmative action officer(s)

·               Development of review practices or schedules in order to ensure that job qualification requirements are consistent with business necessity, job-related, and/or necessitated to ensure workplace safety 

·               Periodic review of personnel and hiring practices in order to ensure that recruitment and retention practices are equitable and encourage employment of persons with disabilities

·               Prohibition of reductions of salary or compensation because of any disability related compensation, benefit, or accommodation costs

·               Development and monitoring of reasonable accommodation policies and

   procedures

·               Establishment of policies to ensure confidentiality of medical examinations or documentation

·               Establishment of equal opportunity or anti-discrimination grievance procedures

·               Establishment of policies and procedures regarding workplace harassment

·               Review and tracking of advancement of employees with and without covered disabilities, in order to assess whether advancement rates of employees with disabilities are proportionate

·               Provision of training to staff regarding affirmative action and non-discrimination policies

Detailed or documented plans for proactive or targeted recruitment are generally not provided.   Nor are specific measures or practices for corrective actions identified for when discriminatory practices are identified.

 The relatively general non-discrimination measures that typify contractor compliance plans reflect and illustrate the non-specific nature of the current Section 503 regulations.  By contrast, state and federal employers’ affirmative action measures (not arising under Section 503), often provide for non-competitive hiring of qualified individuals for selected positions, targeted recruitment and outreach, or more expansive approaches to provision of accommodation (see e.g. 5 CFR 213.3102(u); Executive Order 13078, Increasing Employment of Adults with Disabilities). 

Either empirical study or self-reporting on costs associated with contract compliance is extremely sparse.  However, none of the above elements commonly found in contractors’ public plans appears to be costly. 

 

    3. What barriers currently impede Federal contractors from hiring people with disabilities?

 

The greatest barrier to increasing employment of people with disabilities among federal contractors appears to be their failure to take the obligation to hire people with disabilities seriously by engaging in targeted recruitment, working with partners, adopting accommodation and inclusion strategies, and even simply including disability in their diversity policies.  Employers’ stated concerns about the costs of reasonable accommodations have been demonstrated to be unfounded, as accommodations are inexpensive.  Additional barriers are often caused by employers themselves, including lack of web-based recruitment accessibility (see Question 13), negative employer attitudes, and lack of training.  These barriers can be addressed through training and information, effective enforcement, and experience with employing people with disabilities.

    4. Are there changes that could be made to the existing language on permissible qualifications standards that would better ensure equal employment opportunities for individuals with disabilities?

The current regulations instruct contractors to periodically review physical and mental qualifications for employment, and ensure that, “to the extent qualification standards tend to screen out qualified individuals with disabilities, they are job-related for the position in question and are consistent with business necessity.” 41 CFR 60-741.44(c)(1).  It is imperative that the regulations clearly require that such job-related, necessary qualifications be very narrowly tailored to avoid disqualifying individuals who can fully perform the tasks inherent in the job.  It should be emphasized that qualification standards must be drafted based on the essential functions of the job, on what constitutes a direct threat to health or safety, and not on assumptions about disabilities or on how the job is usually (or has traditionally been) done. 

    5. If OFCCP were to require Federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?

The current Section 503 regulations fail to mandate the specific, measurable analyses and outcomes found in affirmative action programs related to women and minorities.  Instead, the existing regulations merely require vague, indefinite efforts by federal contractors.  Such requirements merely restate existing antidiscrimination law and fail to require any measurable, concrete efforts by federal contractors.  The goals of Section 503 would be better served by mandating quantitative analyses like those required by other affirmative action programs.  

Regulations pertaining to women and minorities state that employers must establish a percentage annual placement goal at least equal to the availability figure derived for women or minorities.  The Section 503 regulations should follow the model for race and gender affirmative action and require contractors to set percentage annual goals.  OFCCP monitoring and audit systems should be updated to effectively assess the adequacy of contractors’ affirmative action plans and the effectiveness of the contractors’ implementation of the plans.

The new American Community Survey (ACS) disability measures provide the best available statistical information for including disabilities covered by Section 503.  The ACS data enable measurement of the availability of people with disabilities by labor market status, occupation, education, age, and geographic location. ACS data on disability should, therefore, be used to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools and to set percentage placement goals.

    6. Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the Federal contractor sector? Explain why or why not.

Establishing goals has been shown to expand employment opportunities for people with disabilities. In California, for example, measurable increases have been documented through a program aimed at achieving a state government workforce that reflects the working age population with disabilities. Under a 1978 statute, state agencies must “ensure individuals with a disability, who are capable of remunerative employment, access to positions in state service on an equal and competitive basis with the general population.”[1]  In 2009, people with disabilities were 9.3% of the state government workforce.[2]  That percentage has increased steadily over an economically difficult decade (from 7.4% in 2000).

The measurable progress achieved in California results from the focus on clear goals and ongoing attention of the state’s Personnel Services Board and executive agencies. The Board analyzes data on public/private employment of people with disabilities, identifies recruitment and retention strategies, and establishes standards to guide state agencies’ efforts.[3]  The agencies submit annual affirmative action plans to the Board with concrete targets and timetables for employment of persons with disabilities.[4]  Plans identify any categories of persons with disabilities excluded from positions on “non-job-related basis” and specify the actions needed to “correct that underrepresentation.”[5]   Agencies submit Corrective Action Plans if the proportion of their workforce comprised of people with known disabilities falls below 80% of the proportion of the state’s working age population with disabilities. The Board monitors the workforce composition, as well as upward mobility of people with disabilities, and reports outcomes annually to the state legislature and Governor.[6]

    7. What experience have Federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?

 

One example of a company that has successfully implemented a voluntary disability affirmative action program is Walgreens.  In 2002, Walgreens senior vice president of supply chain and logistics wanted to create a way to provide job opportunities for individuals with disabilities.  In 2007, Walgreens opened a distribution center with new systems, machines and processes, as well as universal design in Anderson, South Carolina.  Simultaneously, Walgreens worked with state Vocational Rehabilitation agencies through CSAVR’s National Employment Team (NET), and other local job training agencies, to train and attract applicants with disabilities for employment at the facility. 

 

Since 2007 the Walgreens Supply Chain division incorporated the lessons learned in Anderson and rolled out a plan for filling 10 percent (1000) of all production jobs at its distribution centers with employees with disabilities by the end of the fiscal year 2010.  Their fiscal year ended August 31, 2010 and they were successful at filling 8 percent (800) of all production jobs.[7]  

 

    8. What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?

Provisions in the Section 503 regulations relating to reasonable accommodation should be amended to include reference to the following exemplary practices: 

The contractor shall adopt meaningful and effective methods of administration regarding making reasonable accommodations, including those listed below: 

·         Establish an administrative mechanism, such as centralizing funding of reasonable accommodations, to minimize the cost of an accommodation being assigned to a line manager’s budget. 

·         Establish an administrative mechanism, such as a centralized source of expertise, for assessing, evaluating, and making reasonable accommodation (including assistive technology). The purpose of this is to ensure the effectiveness and efficiency of the reasonable accommodations process. 

·         Create an online system for tracking accommodations, including assistive technology accommodations, in order to document successful accommodations. 

·         Assign a full time Director of Section 503 services. 

·         Allow line managers to authorize reasonable accommodations, but require a team to review of denials; and require that all denials be signed by upper level management. 

·         Establish a universal policy providing workplace flexibility and accommodations for all applicants and employees, with and without disabilities, who can document the need for such flexibility and accommodations. 

 

    9. To what extent does workplace flexibility, including flexibility in work schedules, as well as job-protected leave, impact recruitment and retention of individuals with disabilities?

Research on workplace flexibility, work-life balance, and accommodations has demonstrated the importance and efficacy of workplace policies and practices that support employees in temporary or long-term solutions to alternative work arrangements and job modifications for all types of employees.  A 2002 study by the National Study of the Changing Workforce by the Family and Work Institute found that flexible workplaces resulted in employees with “greater engagement in their jobs; higher levels of job satisfaction; stronger intentions to remain with their employers; less negative and stressful spillover from job to home; less negative spillover from home to job; and better mental health.” (Bond, Thomas, Galinsky, & Prottas, 2002).

 

    10. Has training of employees and/or managers been effective in increasing advancement and/or retention of individuals with disabilities?  If so,how?

Neither the regulations, nor the appendices accompanying the regulations, include specific examples of how a contractor is expected to implement the training requirement. Provisions in the Section 503 regulations relating to training practices should be amended to specify that the contractor shall adopt appropriate practices related to training, including the following: 

·         Mandatory training on disability-related issues to all supervisors, including affirmative action policies, nondiscrimination, and targeted programs for hiring, retaining, and advancing people with disabilities and qualified veterans with disabilities.

·         Mandatory training on disability-related issues to all employees, including overcoming discriminatory treatment of and stereotypes about people with disabilities, detailed instructions on reasonable accommodation procedures, and nondiscrimination policies and procedures. 

·         Recognition and awards programs recognizing individuals responsible for achieving progress and positive outcomes.

·         Review of selection criteria and selection procedures with responsible managers to ensure that they are familiar with the contractor’s nondiscrimination and affirmative action policies.

·         Employee networks (also known as affinity groups or employee resource groups) to inform managers and supervisors regarding training needs.  Employee networks have been noted to provide the ability to recruit and retain employees because of the collaborative atmosphere.[8]  

    11. Federal contractors are required to invite all job applicants to voluntarily and confidentially identify their race and gender pre-offer. The collection of this information allows contractors to monitor the impact of their employment practices by race and gender and to assess progress in meeting their affirmative action goals. Existing Section 503 regulations require contractors to invite applicants to voluntarily and confidentially self-identify as a person with a disability after making an offer of employment but before the applicant begins employment. (See 41 CFR 60-741.42(a).) Would amending the Section 503 regulations to require contractors to invite all applicants to voluntarily and confidentially self-identify if they have a disability prior to an offer of employment enhance a federal contractor's ability to more effectively monitor their hiring practices with respect to applicants with disabilities? Note that a Section 503 regulation requiring contractors to invite voluntary and confidential self-identification as an applicant with a disability pre-offer for affirmative action purposes would not violate the Americans with Disabilities Act. 29 CFR 1630.15(e); Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations (EEOC Notice Number 915.002, October 10, 1995).

The Section 503 regulations should be revised to require contractors to invite self-identification at both the pre-offer and post-offer stages for affirmative action purposes.  Because many disabilities are hidden, without self-identification employers will not be able to assess the success of their affirmative action programs and make needed improvements, or identify departments or supervisors who are discriminating.  Assessments of compliance or progress should not be based on employers’ assumptions about their employees’ disabilities, their visible disabilities, or requests for accommodations.  Moreover, self-identification should be invited periodically during employment, in order to facilitate assessment of retention and advancement, as well as to account for the employment experiences of people who develop disabilities after they are hired.

The invitation should permit the applicant to voluntarily choose whether the self-identification shall be used solely for data collection and/or may be used for affirmative action in hiring and should specify who will have access to the information and the purposes for which the information will be used (e.g., data collection and/or hiring preferences).   Although there are good reasons to treat pre-offer invitations differently than post-offer invitations, primarily centered on the ADA’s protection of individuals from pre-employment inquiries about disability, on balance we think that it is useful to require that an invitation be made both pre- and post-offer, so long as legal and practical safeguards are in place.  

12. How can linkage agreements between Federal contractors and organizations that focus on the employment of individuals with disabilities be strengthened to increase effectiveness? Do linkage agreements have better outcomes when higher level company officials are responsible for their implementation/execution? Include examples of cooperative agreements between employers and disability or community recruitment organizations that have been helpful in hiring persons with disabilities.

 

The current regulations provide suggestions for outreach and positive recruitment (§60-741.44 (f) (1), (2), and (3)), including 

·         Enlisting assistance of community recruiting resources (including state employment security agencies, State vocational rehabilitation agencies or facilities, sheltered workshops, college placement officers, State education agencies, labor organizations and organizations of or for individuals with disabilities);

·         Recruiting efforts in schools that incorporate special efforts to reach students with disabilities; and

·         Meaningful contacts with appropriate social service agencies, organizations of and for individuals with disabilities, and vocational rehabilitation agencies or facilities, for such purposes as advice, technical assistance and referral of potential employees.

These activities are widely available and should be required activities.  

In addition, we suggest that OFCCP refer to the Office of Disability Employment Policy’s Affirmative Action for People with Disabilities and Disabled Veterans Volume II Modernizing the Affirmative Action Provisions of The Section 503 and VEVRAA Regulations­ prepared by Economic Systems, Inc. for additional exemplary recruitment, outreach and linkage practices which should be recommended.  The following linkage suggestions from the report are especially worthwhile:

·         Use of online application and recruitment websites and social networking sites to create places where jobseekers with disabilities can learn about the company, hiring initiatives – of course employers must ensure that such online recruitment and application sites, whether their own or those of external employment aggregators, are fully accessible.

·         Involvement in employer networking groups that recognize and promote best practices in hiring, retention, and promoting jobseekers with disabilities.  The US Business Leadership Network is an example of one such network.

·         Development of a pipeline of qualified applicants with disabilities by utilizing accessible web-based “job boards” that specialize in identifying qualified individuals with disabilities

·         Designation of a coordinator for outreach and employment programs responsible for targeted outreach programs, including websites, schools and employment assistance programs serving people with disabilities and disabled veterans. 

    13. What impact would result from requiring that Federal contractors and subcontractors make information and communication technology used by job applicants in the job application process, and by employees in connection with their employment fully accessible and usable by individuals with disabilities? What are the specific costs and/or benefits that might result from this requirement?

Online approaches to recruitment, screening, and hiring are increasingly the norm.  Employers use their own e-recruitment websites, the sites of online employment aggregators, such as Monster.com and Yahoo! Hot Jobs, or a combination of both.  Yet many people with disabilities, including people with vision disabilities, are unable to use these online application and job-seeking tools because they are not designed and maintained to be accessible.  

Extending Section 508 standards to the employment-related websites, information and communications technology, and online trainings of federal contractors makes sense, would increase the accessibility of e-recruitment, communication and online training opportunities, and, thus, increase employment opportunities for people with disabilities.  Section 508 provides clear technical standards of accessibility, which are commonly understood by web developers and which have been available and in force for years.  Compliance with the Section 508 standards can be effectively evaluated through a combination of automated and user testing.  Consistent compliance of employer websites, online training, and employment aggregators would facilitate applications by individuals with disabilities, reduce the need for them to reveal their disabilities at the pre-offer stage, and, thus, reduce the risk of discrimination.  Requiring accessibility of employment-related systems, such as benefits, payroll, and training would facilitate retention, inclusion and advancement of employees with disabilities.

Therefore, we recommend that the Section 503 regulations be updated to require compliance with the Section 508 standards for all ICT used to communicate with applicants, potential applicants, and employees, including websites, intranets, online recruitment tools (of the employer and of employment aggregators used by contract), online benefits systems, e-mail, and online training tools.  

 

    14. What other specific changes to the Section 503 regulations might improve the recruitment, hiring, retention, and advancement of individuals with disabilities by Federal contractors?

The regulations need to clearly state the purpose of affirmative action programs so that contractors understand that they have an obligation to not discriminate and to actively recruit, hire, train and fairly pay people with disabilities. The regulations need to specify what must be included in affirmative action plans, including measurable goals based on relevant population data, timetables, action steps and continuous monitoring and documentation.  The regulations should include examples of exemplary practices for all ten of the components of affirmative action programs.  An additional eleventh component should be added concerning accessible communication and information technology (see Question 13).  In addition, affirmative action plans should require that periodic reviews of managers and supervisors measure their performance with respect to the recruitment, hiring, advancement, and retention of persons with disabilities.

Thank you again for your consideration of improvements to the Section 503 regulations and for the opportunity to comment.



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[1] California Government Code Section 19232.

[2] Annual Census of Employees in the State Civil Service 2008-209, California State Personnel Board, February, 2010   http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=5634.  

[3] California Government Code Section 19233.

[4] California Government Code Section 19232.

[5] California Government Code Section 19234.

[6] California Government Code Section19237.

[7] See http://www.walgreens.com/topic/sr/disability_inclusion_home.jsp for more information.

[8] Arnold, J.T., Employee networks. HR Magazine, 51(6), 145-150 (2006, June).