[nfbmi-talk] outstanding section 503 comments

[joe harcz Comcast]

Hello all,

Below is a copy of the comments that were submitted today by ACB.  These comments are filed in response to a request that appeared in the Federal Register
seeking input on whether regulations implementing Section 503 of the Rehabilitation Act should be reviewed and strengthened.  Briefly, these regulations
cover the obligation of federal contractors to employ people with disabilities.

Melanie Brunson

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 following comments are submitted on behalf of the American Council of the Blind (\acb). ABOUT ACB.) The American Council of the Blind is a national
membership organization whose purpose is to work toward independence, security, equality of opportunity, and improved quality of life for all blind and
visually impaired people. Founded in 1961, ACB's members work through more than 70 state and special-interest affiliates to improve the well-being of all
blind and visually impaired people by: serving as a representative national organization; elevating the social, economic and cultural levels of blind people;
improving educational and rehabilitation facilities and opportunities; cooperating with the public and private institutions and organizations concerned
with blind services; encouraging and assisting all people with severely impaired vision to develop their abilities and conducting a public education program
to promote greater understanding of blindness and the capabilities of people who are blind.

We thank you for the opportunity to comment on your 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.

We applaud OFCCP’s intention to undertake a comprehensive review of the Section 503 regulations to make them more effective. We share the view of other
commenters that such a review is lontg overdue. 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. There is ample evidence
that the recent recession has impacted 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 put an end to discrimination based on disability. This is because discrimination in the hiring process is usually
impossible to prove. Applicants with disabilities are not told why they are not hired and employers do not record the discriminatory biases that lead to
their automatic exclusion of candidates who have disabilities from consideration during the hiring process. Further, 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). We believe that meaningful regulations
that provide specific requirements, coupled with the availability of enhanced technical assistance and increased monitoring and enforcement, could result
in increased employment opportunities for people with disabilities, and a workforce that will more effectively meet the needs of employers, thus creating
a win-win situation for our society. To further elucidate this position, we submit the following comments. They will be presented in a manner that corresponds
to the questions in your notice which each comment is intended to address.

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 excellent model, including numerical placement goals, changes to qualification standards, quantitative analyses, measurable action steps, reporting,
and accountability. We believe these measures should be incorporated in regulations implementing Section 503 for both construction and nonconstruction
contracts. We concur with the view expressed by other commenters that 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.

The regulations should also be amended to:

List of 3 items
• 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.

list end

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 other thingss), 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.

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 most 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?

Mandating quantitative analyses such as those required by other affirmative action programs would go a long ways toward meeting the goals of Section 503.

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.

We agree with commenters that suggest that 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.

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.

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?

Many people with disabilities, including people with vision disabilities, are unable to use 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 for 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. Additionally, 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 must 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.

Respectfully submitted,

Melanie Brunson

Executive Director

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201

202-467-5081

mbrunson at acb.org

Melanie Brunson, Esq.

Executive Director

American Council of the Blind

2200 Wilson Boulevard, Suite 650

Arlington, VA 22201

202-467-5081

mbrunson at acb.org
http://www.acb.org

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