Description and Analysis of Policies and Practices Related to Section 503 of the Rehabilitation Act of 1973 and the Vietnam Veterans’ Readjustment Assistance Act of 1974
November 2009
This paper was funded by the Office of Disability Employment Policy, US Department of Labor under a contract to Economic Systems Inc. The opinions contained in this paper are those of the authors and do not necessarily represent those of the Department of Labor or any other agency or department of the federal government.
Table of Contents
I. Introduction and Summary of Recommendations 1
1. Literature and Resources 1
2. Organization 2
3. Summary of Recommendations 2
II. Affirmative Action Programs in General 2
1. Key Policies 2
2. Equal Opportunity Clause 2
3. Components of Affirmative Action Program; Key Components of Other Affirmative Action Programs and Civil Rights Laws 2
III. AAP—Policy Statement 2
1. Section 503 and VEVRAA Regulatory Framework 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples of Selected Portions of Policy Statements in AAPs Submitted to OFCCP and From Company Websites 2
IV. AAP—Review of Personnel Processes 2
1. Section 503 and VEVRAA Policy Framework. (60-741.44(b); 60-300.44(b)) (See also Appendix C) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples of Selected Portions of Policy Statements from AAPs Relating to Personnel Policies Submitted to OFCCP 2
V. AAP—Review of Physical and Mental Job Qualification Standards 2
1. Section 503 and VEVRAA Policy Framework (60-741.44(c); 60-300.44(c)) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples of Selected Portions of AAPs Related to Job Qualification Standards Submitted to OFCCP 2
4. Examples of Practices from the Section 188 Disability Checklist 2
VI. AAP—Reasonable Accommodation to Physical and Mental Limitations 2
1. Section 503 and VEVRAA Policy Framework (60-741.44(d); 60-300.44(d); 61 FR 19345) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Section 501 of the Rehabilitation Act 2
4. Examples of Selected Portions of AAPs Related to Reasonable Accommodations Submitted to OFCCP 2
5. Examples of Practices from the Section 188 Disability Checklist 2
VII. AAP—Harassment Prevention Procedures 2
1. Section 503 and VEVRAA Policy Framework 2
2. OFCCP Sample Affirmative Action Plan 2
VIII. AAP—External Dissemination of Policy, Outreach and Positive Recruitment Activities 2
1. Section 503 and VEVRA Policy Framework (60-741.44(f); 60-300.44(f)) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples of Selected Portions of AAPs Related to External Dissemination Submitted to OFCCP 2
4. Examples of Practices from the Section 188 Disability Checklist 2
5. Examples of Concrete Actions that Comply with Some of these Requirements: 2
6. Examples of Practices from the “Universal Strategies” Document 2
IX. AAP—Internal Dissemination of Policy 2
1. Section 503 and VEVRAA Policy Framework (60-741.44(g); 60-300.44(g)) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Section 501 Policy Framework 2
4. Examples of Selected Portions of AAPs Related to Internal Dissemination 2
5. Roadmaps for Enhancing Employment of Persons with Disabilities through Accessible Technology 2
X. AAP—Audit and Reporting System 2
1. Section 503 and VEVRAA Policy Framework 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples from Selected Portions of AAPs Related to Audits and Reporting Submitted to OFCCP 2
XI. AAP—Responsibility for Implementation of Affirmative Action Plan 2
1. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60.300.44(j)) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Section 501 Policy Framework 2
4. Section 188 Disability Checklist 2
XII. AAP—Training of Personnel 2
1. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60-300.44(j)) 2
2. OFCCP Sample Affirmative Action Plan 2
3. Examples from Portions of Selected AAPs 2
4. Examples from “Universal Strategies” Document 2
XIII. Overarching Conclusions and Recommendations 2
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I. Introduction and Summary of Recommendations
President Obama has established a comprehensive agenda for enhancing equality of opportunity for persons with disabilities. The President’s agenda includes “increasing the employment rate of workers with disabilities by effectively implementing regulations that require the federal government and its contractors to employ people with disabilities.” Such regulations include Section 503 of the Rehabilitation Act of 1973 as amended (Section 503), its implementing regulations, the Vietnam Era Veterans’ Readjustment Act of 1974 as amended (VEVRAA), and its implementing regulations require that government contractors provide equal opportunity (nondiscrimination) to qualified individuals with disabilities and qualified disabled veterans. In addition, under Section 503 and VEVRAA, contractors must take affirmative action to employ and advance in employment qualified individuals with disabilities and qualified disabled veterans, including recruitment, advertising, and job application procedures.[1] Section 503 and VEVRAA are administered by the Office of Federal Contract Compliance (OFCCP) in the Department of Labor.
The purposes of this paper are thus to:
- Describe and analyze the policy and practice ‘lay of the land’ regarding equal opportunity/nondiscrimination provisions and affirmative action programs for qualified individuals with disabilities under Section 503 and qualified disabled veterans under VEVRAA
- Review other civil rights statutes protecting qualified individuals from discrimination on the basis of disability to glean policies and practices that may enhance the effective implementation of affirmative action programs for qualified individuals with disabilities and qualified disabled veterans
1. Literature and Resources
This paper is based on a thorough review of the following laws, regulations, policy guides and interpretations, documents and technical assistance papers:
· The Section 503, VEVRAA, and the ADA policy frameworks, including the statutes, regulations, guidelines, technical assistance manuals and letters of interpretation by various federal agencies, including OFCCP and the Office of the Solicitor in the Department of Labor, the Equal Employment Opportunity Commission (EEOC), and the Department of Justice.
o Section 503 regulations are codified in Part 60-741 of Title 41 of the Code of Federal Regulations
o VEVRAA regulations are codified in Part 60-300 and Part 60-250 of Title 41 of the Code of Federal Regulations (Part 60-300 applies only to Government contracts entered into or modified on or after December 1, 2003. The existing VEVRAA regulations found in Part 60-250 will continue to apply to Government contracts entered into before December 1, 2003)
o Preamble and Section-by-section analysis accompanying the Section 503 regulation appears in the Federal Register at 61 FR 19337-19366 (May 1, 1996)
o Preamble and Section-by-section analysis accompanying the VEVRAA regulations appears in the Federal Register at 72 FR 44393-44416 (August 8, 2007)
o Office of Federal Contract Compliance Programs, Section 503 and VEVRAA Sample Affirmative Action Program, Washington, DC: US Department of Labor, Employment Standards Administration (2003)
o Office of Federal Contract Compliance Programs, Federal Contract Compliance Manual (FCCM), Washington, DC: US Department of Labor, Employment Standards Administration
o Office of the Solicitor (Civil Rights Division), Index to Administrative Decisions Under Section 503, Washington, DC: US Department of Labor, Office of Administrative Law Judges
o Office of Federal Contract Compliance Programs, Federal Contractor’s Online Application System (Transmittal Number 251), Washington, DC: US Department of Labor, Employment Standards Administration (July 10, 2008)
o Equal Employment Opportunity Commission, A Technical Assistance Manual on the Employment Provisions (Title 1) of the Americans With Disabilities Act (EEOC-M-1A), Washington, DC: Government Printing Office (January 28, 1992)
o Civil Rights Division, Accessibility of State and Local Government Websites to People with Disabilities, Washington, DC: Department of Justice (June 2003): Available http://www.ada.gov/websites2.htm (Accessed November 10, 2009)
· Actual affirmative action programs submitted to OFCCP by government contractors
· Statutory, regulatory, and EEOC program directives applicable to Section 501 of the Rehabilitation Act as amended, relating to affirmative action obligations of federal agencies
o Part 1614 of Title 29 of the Code of Federal Regulations
o Equal Employment Opportunity Commission, Management Directive 715, Washington, DC (October 1, 2003)
· Statutory, regulatory, and guidelines applicable to other civil rights provisions e.g., Section 188 of the Workforce Investment Act, which is administered by the Civil Rights Center in the Department of Labor
o Regulations implementing Section 188 of the Workforce Investment Act are codified in Part 37 of Title 29 of the Code of Federal Regulations
o Civil Rights Center, WIA Section 188 Disability Checklist, Washington, DC: Department of Labor (July 25, 2003)
o State Guidance for Developing Methods of Administration Required by Regulations Implementing Section 188 of the Workforce Investment Act of 1998, 65 FR 51984-51985 (August 25, 2000)
· Regulatory provisions related to affirmative action governing other protected classes, including statutory provisions, executive orders, regulations and applicable guidelines (41 CFR Parts 60-1 and 60-2)
· Policy papers and technical assistance guides developed by and/or on behalf of the Office of Disability Employment Policy (ODEP) relating to the employment of individuals with disabilities
o Hoff, David, Elena Varney, Lara Enein-Donovan, Cindy Thomas, and Sheila Lynch Fesko, “Access For All Customers: Universal Strategies For One-Stop Career Centers”, Institute Brief 26, Boston, MA: Institute for Community Inclusion (January 2009)
o National Disability Rights Network, Roadmaps II: For Enhancing Employment of Persons with Disabilities through Accessible Technology, Washington, DC: Department of Labor (2007)
2. Organization
The paper includes 12 sections. The first section provides general background about affirmative action programs for individuals with disabilities and disabled veterans, including a description of key concepts, description of obligations to include an affirmative action clause, and a listing of the ten components of an affirmative action program under Section 503 and VEVRAA. The next ten sections of the paper include in-depth descriptions and analyses of each of the ten components of an affirmative action program. Under each component, the paper includes references to applicable regulations, guidelines, and interpretations as well as examples of practices from various sources described above. The final section includes overarching conclusions and general recommendations. This paper does not include a review and analysis of a recent OFCCP Directive relating to Online Application Systems; this directive is the subject of a separate paper prepared by the author: A Technical Assistance Guide for Federal Contractors Regarding the Implementation of Online Application Systems that Meet the Needs of Qualified Individuals with Disabilities and Qualified Disabled Veterans.
3. Summary of Recommendations
The following is a summary of this paper’s overarching conclusions and recommendations regarding the affirmative action policy framework under Section 503 and VEVRAA.
- Affirmative Action Programs (AAPs) submitted under Section 503 and VEVRAA do not narrate and document “proactive”, “positive” “action” measures, steps, and practices; instead, AAPs reflect mere paper compliance. This conclusion should not be construed to mean that these Government contractors are not adopting best or promising practices regarding the employment of qualified individuals with disabilities and qualified disabled veterans; rather, it simply means that the AAPs are not being used as the vehicle for narrating and documenting these policies and practices. OFCCP should review the current approach used for purposes of developing and submitting AAPs under Section 503 and VEVRAA and consider adopting the approach included in the Civil Rights Center, DOL guidelines governing the submission of “methods of administration” by states under Section 188 of the Workforce Investment Act. These guidelines require, among other things, the inclusion of narratives and documentation. In addition, OFCCP should disseminate technical assistance materials that include examples of practices that Government contractors may adopt.
- Affirmative Action Programs (AAPs) prepared in accordance with Section 503 and VEVRAA do not include goals and timetables comparable to those included in affirmative action programs submitted under Executive Order 11246 as amended, or its implementing regulations. Policies issued by EEOC governing the administration of Section 501 of the Rehabilitation Act (affirmative action regarding the hiring and promotion of qualified individuals with disabilities by federal agencies) require goals and timetables based on quantitative analysis. OFCCP should consider revising the regulations and guidelines implementing Section 503 and VEVRAA to reflect the approach taken by EEOC regarding affirmative action programs applicable to federal agencies under Section 501. The inclusion of goals should be limited to larger contractors.
- Current regulations and the OFCCP Sample AAP do not include appropriate references to the Internet and websites consistent with contemporary business practice. An overwhelming percentage of AAPs reviewed do not include references to company websites in their AAPs. OFCCP should be commended for issuing a program directive regarding Federal contractor’s online application selection systems. Consistent with this Directive, OFCCP should consider revising its Section 503 regulations and Sample AAP to include appropriate references to websites (and the obligation to ensure equal opportunity through accessible websites or alternative methods and the provision of reasonable accommodation) and consider providing additional guidance and technical assistance supplementing the Directive regarding online application systems.
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II. Affirmative Action Programs in General
This section describes the policy underpinnings for affirmative action programs for qualified individuals with disabilities and qualified disabled veterans. The key concepts include the following:
· Equal opportunity/nondiscrimination
· Affirmative action
· Self-identification
In addition, this section explains the relationship between affirmative action and equal/opportunity/nondiscrimination in general, and in particular the relationship between affirmative action and reasonable accommodation, a key component of equal opportunity/nondiscrimination for qualified individuals with disabilities and qualified disabled veterans. The section also describes the obligation to include an equal opportunity clause in a Government contract. The section concludes with a list and brief description of the ten components of an affirmative action program for qualified individuals with disabilities and qualified disabled veterans.
1. Key Policies
Equal Opportunity/Nondiscrimination
Appendix A to the Section 503 and VEVRAA regulations (61 FR 19363 (May 1, 1996); 72 FR 44414 (August 8, 2007)) specifies that equal opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.
The regulations implementing Section 503 and VEVRAA (41 CFR 60-741.21; 41 CFR 90-300.21) explain that the term discrimination includes specified acts described in the regulations such as disparate treatment; limiting, segregating and classifying; contractual or other arrangements, standards, criteria or methods of administration; not making reasonable accommodations; qualification standards, tests, and other selection criteria; administration of tests; and compensation. The regulations also describe defenses to claims of discrimination, including direct threat defense, undue burden defense, and business necessity defense. Below are additional descriptions of several of these forms of discrimination: