The Puzzle of Disability
In the last few years, there have been dramatic changes to the focus points at the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). While for many years, OFCCP had little interest in issues concerning veterans and persons with disabilities, these groups are now at the forefront of OFCCP's efforts. We know this is true in part because of the proposed regulations regarding veterans that were released in April of 2011 and the proposed regulations regarding persons with disabilities that were released in December of 2011.

Additional evidence of OFCCP's focus on persons with disabilities can be found in the many inquiries OFCCP has made during recent affirmative action compliance reviews. OFCCP compliance officers:
  • Routinely ask for lists of employees with disabilities and the accommodations made for these employees.
  • Ask to interview employees with disabilities during the on-site portion of a compliance review.
  • Review policies and procedures to determine whether there are any impediments regarding persons with disabilities.
  • Examine on-line application systems to determine whether they are accessible to applicants with disabilities.
In its proposed regulations regarding persons with disabilities, OFCCP suggested that 7% of the employees in each affirmative action job group should be persons with disabilities. OFCCP also suggested that federal contractors and subcontractors should survey both applicants and employees regarding disability. This 7% goal and the survey requirements raise a number of serious and inter-related sets of issues.
  • Under the amendments to the Americans with Disabilities Act (ADA), the types of conditions that may cause an employee to be considered a person with a disability have been greatly expanded. For example, individuals who have or who have had cancer, diabetes, chronic depression, and a wide range of other mental and physical issues would now be eligible to be considered persons with a disability. Under this expanded definition, employers should (in theory) have no problem meeting a 7% goal for employing persons with disabilities, as a substantial portion of every workforce will include employees who could potentially be considered persons with disabilities.
  • While there may be many employees who could be considered persons with disabilities, employers have routinely found that these individuals are reluctant to identify themselves as such on survey forms. Some employees do not consider themselves as persons with disabilities regardless of the legal definition; some employees fear some kind of adverse action should they indicate they have a disability; some employees do not want to burden their employers with the additional costs that may be associated with identifying as a person with a disability.
  • There is a serious question as to whether employers are allowed to survey applicants regarding disability. The Equal Employment Opportunity Commission (and until recently, OFCCP) have stated that under the various laws that govern disability issues, employers may survey applicants regarding disability only at the post-offer stage of the selection process. It is not clear how or if OFCCP will be able to reconcile the requirement to survey applicants for disability status in its proposed regulations with the post-offer self-identification limitations of the ADA.
  • During recent OFCCP reviews, some compliance officers have suggested that human resources staff should have two lists of persons with disabilities: the official list of employees who have formally self-identified and an unofficial list of employees who the company knows have a mental or physical condition but who have failed to self-identify. While this may appear to be a practical compromise when employees fail to self-identify, it puts employers in the difficult position of making an independent determination as to whether an employee falls within the parameters for being a person with a disability. It also puts employers in the even more difficult position of making an independent determination about what type of accommodations such employees can and should be offered.
Thus, the puzzle of disability. Under the ADA amendments (and corresponding OFCCP regulations), it appears there are many persons with disabilities in every workforce. However, employers have no good way to identify these individuals either at the applicant stage of the selection process or when these individuals become employees. This renders any kind of numerical goal meaningless. Further, employers are stuck between the proverbial rock and hard place: they are being told to informally identify persons with disabilities, but are opening themselves to various forms of liability if they do.

What should federal contractors and subcontractors do?
  • First, employers need to help OFCCP understand that employees are reluctant to self-identify. OFCCP believes that employees fail to self-identify only because they fear retaliation. The reality of the situation is much more complicated, and employers need to help OFCCP understand the problems employers face in this regard.
  • Second, employers should track accommodations that are made for applicants and employees. OFCCP has a right to ask for information about accommodations made and accommodations denied. All employers routinely make accommodations for employees and applicants, whether they have identified as a person with a disability or not. These accommodations involve buying larger monitors for employees with visual issues, buying new chairs for employees with chronic back issues, allowing employees to take extra leave for cancer treatments, and other actions large and small. There may be limits on the information shared about specific individuals and specific disabilities, but employers can only be helped during an OFCCP compliance review by having information on accommodations.
  • Third, employers should determine how they will respond to requests from OFCCP about employees who might be considered persons with disabilities, particularly when these employees have chosen not to self-identify. While OFCCP has the right to gather information on employees who have self-identified as persons with disabilities, there is a serious question about the kind of information OFCCP can request and the kind of information employers can reveal about employees who have not self-identified as disabled. Employers should consider contacting legal counsel regarding the pitfalls associated with providing information to OFCCP in this regard.
Did you know…that until 2009, OFCCP rarely asked questions of any kind regarding issues concerning disability? During a typical compliance review in the last 20 years, almost all questions were focused on issues concerning minorities and females. The first evidence that OFCCP was paying more attention to disability occurred when the agency issued its on-line applications systems directive in August of 2008.