[nfbwatlk] WSJ article on corporate backlash against proposed strengthening of Section 503

[Mike Freeman]

I agree with Ben and Mary Ellen: I am uncomfortable with imposed quotas;
they are a rather blunt instrument incapable of a nuanced response to the
unemployment problem. I think the employers have a point when they object
that they well may be penalized because not enough disabled people applied
for jobs.

The statistics game applied to determining when there is discrimination is
only the first step (in my opinion) in determining whether there are
significant barriers imposed by employers to hiring of the disabled.
Percentages not up to supposed population norms should not be used to impose
sanctions: rather, they should be the point of departure for an inquiry as
to why the numbers of disabled persons employed at the targeted firms aren't
commensurate with the population levels.

To me, affirmative action is best applied *before* persons are in the job
market. For example, if there aren't enough African-american astronauts,
rather than sanctioning NASA, why not increase the number of
African-american scientists and test pilots and then let the market do its
thing? WE had a long discussion about this in a diversity discussion at
Bonneville a few years ago. Rather than bemoaning the facgt that there might
not be enough African-americans hired by GPA (this is not so, BTW), why not
encourage more African-americans to become electrical engineers *before*
they hit the job market? Then, as above, let the hiring process occur
without regard to race, gender, sexual orientation, disability, etc. etc.
etc.

Mike


-----Original Message-----
From: nfbwatlk-bounces at nfbnet.org [mailto:nfbwatlk-bounces at nfbnet.org] On
Behalf Of Nightingale, Noel
Sent: Friday, March 02, 2012 8:55 AM
To: nfbwatlk at nfbnet.org
Subject: [nfbwatlk] WSJ article on corporate backlash against proposed
strengthening of Section 503


The Wall Street Journal
February 29, 2012
 
U.S. Pushes Target for Hiring the Disabled By MELANIE TROTTMAN
 
Employers and business groups are trying to stop an Obama administration
effort that calls for federal contractors to hire a minimum number of
disabled workers and could penalize those who don't by revoking their
contracts.
 
The proposal could reshape hiring at roughly 200,000 companies that generate
$700 billion a year in contracts with the federal government. They include
defense contractor Lockheed Martin Corp., aircraft maker Boeing Co. and
firms across the health-care, construction and information-technology
industries.
 
Under the Labor Department plan, most firms that contract or subcontract
with the federal government would be asked to have disabled people make up
7% of their work force. While the department says it wouldn't be an explicit
requirement, companies that don't hit the target could have their contracts
canceled or could be barred from winning future contracts until they show
they are trying to meet the target.
[DISABLED]
 
Companies have flooded the department with complaints that the rule amounts
to a first-ever government quota for hiring disabled workers that would
expose them to a thicket of legal pitfalls. Some employers say there might
not be enough qualified disabled workers in their fields to meet that target
and that they may have to fire nondisabled workers to achieve the ratio.
Others say that existing federal law actually prohibits them from asking
whether a job applicant is disabled, potentially forcing firms to violate
one law in order to comply with another.
 
"We are very concerned that the department is moving forward with what is
clearly a fundamental change in longstanding policies regarding affirmative
action," said Jeffrey McGuiness, president of the HR Policy Association, a
trade group for human-resource executives at more than 300 of the largest
private-sector U.S. companies.
 
The proposed changes were pushed in part by disability advocates, who say
that decades-old laws intended to bring disabled people into the work force
just aren't working. Technology has made it far easier for victims of
illness or accident to complete work tasks.
 
"Often people make assumptions that people with disabilities can't do a
'real' job," said Patrick Wojahn, a public-policy analyst for the National
Disability Rights Network.
 
The proposed contracting requirements are part of a broader federal effort
aimed at making it easier for disabled people to find work, including
injured war veterans. On Tuesday, the Equal Employment Opportunity
Commission released updated guidelines to ensure that veterans with wartime
injuries such as post traumatic stress disorder and other ailments qualify
for federal disability protections.
 
The Labor Department says the effort, disclosed in December, is necessary
because 79.2% of working-age people with functional disabilities are out of
the labor force entirely, compared with 30.5% of people without
disabilities, a longstanding gap. Counting those who remain in the labor
force, the unemployment rate for people with disabilities was 12.9% in
January, compared with an unemployment rate of 8.7% for people without
disabilities.
 
Current law encourages federal contractors to maintain a diverse work force
but sets no parameters on how many jobs must go to disabled Americans.
 
"What gets measured gets done," said Patricia Shiu, director of the Labor
Department's Office of Federal Contract Compliance Programs. "And we're in
the business of getting things done." The agency is proposing the change as
an update to the Rehabilitation Act of 1973.
 
The 7% target would apply to a contractor's work force as well as subsets of
workers based on factors such as their job description and wage rates.
Disability advocates hope the subset requirement will ensure disabled
workers aren't unfairly steered toward lower-paying jobs. The department
settled on a 7% target because it estimates that 5.7% of the civilian labor
force-those working or looking for work-has a disability but another 1.7% of
the civilian population is disabled and, by the Labor Department's
estimation, wants work but is discouraged from seeking it.
 
Regulators also are considering requiring that 2% of contractors' work
forces be comprised of severely disabled workers, such as those with total
deafness, blindness, or missing extremities.
 
The scope of what would constitute a disability also isn't clear since the
Labor Department's proposal doesn't include a specific list. The Americans
with Disabilities Act, updated in 2008, says that workers are disabled if
they have a physical or mental impairment that substantially limits one or
more of their major life activities. Lawyers who represent employers say
that could include hundreds of possibilities from blindness to deafness to
the less apparent such as asthma or mental illness.
 
Businesses with fewer than 50 employees and less than $50,000 in federal
contracts would be exempt from the hiring changes.
 
Employers that don't reach the targets would be given a chance to improve
compliance and would only lose contracts in "the most egregious cases" of
not following the rule, Ms. Shiu said.
 
Business officials say it isn't that simple. "You're looking to fill a
position with the best possible hire and that doesn't necessarily preclude
or exclude somebody with a disability," said Joe Trauger, a vice president
for human-resources policy at the National Association of Manufacturers, a
trade group representing 11,000 companies.
 
Sonalysts Inc., an employee-owned professional-services business of 400
workers that mostly serves the Defense Department, is asking the Labor
Department to scrap the proposal. The Waterford, Conn., company estimates it
would spend about $120,000 a year to hire the workers, process data tracking
disabled employment and pay for legal challenges it expects would result
from the rule.
 
A Boeing spokesman said the company is studying the proposal, and Lockheed
Martin declined to comment on what it told the Labor Department in response
to the proposal.
 
FirstBank Holding Co. of Lakewood, Co., says the rule would burden the
company with paperwork and reporting requirements without actually
increasing the number of disabled workers it employs. "Individuals with
disabilities are not even applying for our open positions," the company
wrote to the Labor Department. FirstBank asked the department to scale back
the proposal but favors its requirement that employers advertise job
openings with specific organizations that target the disabled.
 
Kevan Johnson, an employment consultant with REACH of Dallas, a nonprofit
that helps disabled people lead independent lives, said stronger regulations
are needed because severely disabled workers are being overlooked by
contractors "who think they can't do the job." Mr. Johnson said employers
might not be aware of workplace accommodations they could make to enable a
disabled person to do their job. "There's an education process," he said.
 
Some employers worry that, in seeking out disabled workers, they would end
up violating the Americans with Disabilities Act of 1990, which they say
prohibits employers from asking disability-related questions before hiring
someone. There is also concern that such inquiries would make contractors
vulnerable to lawsuits from people alleging their disclosures were actually
used against them.
 
Labor's Ms. Shiu said the requirement would be legal because contractors
would be inviting people to "voluntarily self-identify" a disability to
improve data collection. Companies would have to invite employees to do the
same through an annual, anonymous survey.
 
Write to Melanie Trottman at melanie.trottman at wsj.com

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