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Section 503 Regulations- Comments to OFCCP
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Section 503 Regulations- Comments to OFCCP

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Section 3 Regulations ANPRM Comments, Sept. 21, 2010 Feldman ...

Section 3 Regulations ANPRM Comments, Sept. 21, 2010 Feldman

These comments, regarding "Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Affirmative Action Provisions." were offered to the U.S. Office of Contract Compliance via the online Public Comment procedure found at regulations,gov

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Section 503 Regulations- Comments to OFCCP Section 503 Regulations- Comments to OFCCP Document Transcript

  • Comments, Section 503 ANPRM 9/21/10 page 1 of 5 Dear OFCCP, Thank you for seeking public comment re: Section 503 ANPRM, "Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Affirmative Action Provisions." In general, this writer believes that Section 503 cannot be implemented effectively unless there is corresponding Section 504 and ADA compliance, system-wide. Responses to questions 1, 4, 5, 11, 13, and 14 follow. 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. 4 Recommendations: a. Eliminate the Section 503 exemptions for all Federally-funded contractors, sub- contractors and vendors with 15 or more employees that : o are receiving less than $10,000. o have any state or local government affiliation. Potential for effectiveness: This may encourage smaller Federally-funded businesses to recruit and hire qualified individuals with disabilities right from the start, in order to have more experienced in-house guidance regarding their Section 503 and 504 obligations. In addition, it may increase local government compliance with ADA, Section 504 and associated regulations. b. Implement threshold application requirements under Section 503 for all contractors, sub-contractors and vendors who have 15 or more employees, to provide certification that they have, in the past year, updated their Self Evaluations (and, if necessary, Transition Plans) to ensure that no artificial or discriminatory barriers exist within their: • employment and personnel policies and practices; • facilities where any employment, programs, services and goods are contained and/or marketed; • information and communication products and documents, both internal and public; and • all contractual, including vendor, arrangements. Such certification should include the notarized signature of the entity's Section 504 Coordinator, who attests to the following: • "I am the named Section 504 Coordinator , and am qualified, by proven performance, to oversee the ongoing staff training necessary to implement the contractor's, subcontractor's, or Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net
  • Comments, Section 503 ANPRM 9/21/10 page 2 of 5 vendor's Section 3 affirmative action plan. " Potential for effectiveness: This may enable the contractors, subcontractors and vendors with 15 or more employees to more effectively fulfill their obligations to affirmatively update their ADA and Section 504 Self Evaluations and to implement Transition Plans in a timely manner. In addition, this can increase awareness of the ongoing mandate for all Federally-funded entities with 15 or more employees to ensure that their facilities, programs, policies and procedures are, to the maximal extent feasible, not limiting the participation, including employment, of people with diverse disabilities. c. Enlarge scope of Recordkeeping to include (and to cross-file with applicable OFCCP APP records): i. All records pertaining to Section 503 compliance and annual certifications, for businesses with 15 or more employees, must be readily available for review by any member of the public and maintained for at least three years for inspection by any employee, applicant for employment, and OFCCP, ii. Annual summaries of Section 504 Self Evaluations and Transition Plan activities to be cross-filed with 60-741.44 (b) Review of personnel processes. [see Recommendation below for question 4.@ a.] Potential for effectiveness: This may help to eliminate unneccessarily burdensome reasonable accommodations requests, by potential applicants and employees, for program, policy and procedural elements that should have already been incorporated into the organization's culture, by law. d. Section 503 should have certain minimal reporting requirements, to ensure that workplace facilities, policies and procedures are, to the maximal extent feasible, not limiting the applications and employment, of people with diverse disabilities. A sunset provision is recommended: for Contractors, etc. to supply a Burden Statement on the amount of time necessary for Section 504 Coordinators to develop written checklists and practices, gather measurments and other data, complete, review and maintain the records required to annually update and implement their Section 504 Self Evaluations and implement Transition Plans. [see also 5b, below] Potential for effectiveness: a baseline knowledge base regarding the cost/benefits of increased awareness of compliance with associated Section 504 administrative and programmatic requirements may yield data and evidence proving the real costs, to the nation, of noncompliance with Section 504, and enable the Department of Justice and other associated Federal agencies to analyze need for monitoring and enforcement efforts around ADA, Section 504, and all disability- relevant EEO provisions. 4. Are there changes that could be made to the existing language on permissible qualifications Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net
  • Comments, Section 503 ANPRM 9/21/10 page 3 of 5 1 standards that would better ensure equal employment opportunities for individuals with disabilities? 2 Language Recommendations, in bold: a. 60-741.44 (b) Review of personnel processes. The contractor shall ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees with [delete: known] disabilities for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. The contractor shall ensure that its personnel processes do not stereotype disabled persons in a manner which limits their access to all jobs for which they are qualified. The contractor shall periodically review such processes and make any necessary modifications to ensure that these obligations are carried out. [add: Such review shall be included and documented within annual Section 504 Self Evaluation summaries]. A description of the review and any necessary modifications to personnel processes or development of new processes shall be included in any affirmative action programs required under this part. The contractor must design [add: written] procedures that facilitate a review of the implementation of this requirement by the contractor and the Government. b. 60-741.44 (c) Physical [add: , communications] and mental qualifications. (1) The contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the periodic review of all physical [add: , communications] and mental job qualification standards to 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. (2) Whenever the contractor applies physical [add: , communications] or mental qualification standards in the selection of applicants or employees for employment or other change in employment status such as promotion, demotion or training, to the extent that qualification standards tend to screen out qualified individuals with disabilities, the standards shall be related to the specific job or jobs for which the individual is being considered and consistent with business necessity. The contractor shall have the burden to demonstrate that it has complied with the requirements of paragraph (c)(2) of this section. 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? 2 Recommendations: a. In determining the availability of qualified individuals with disabilities for employment in particular job groups as in 41 CFR 60-2.14 (d), contractors should use the most current and discrete statistical information available by the updated American Community Survey (ACS). 1 41 CFR 60-741.44b & c--Required contents of affirmative action programs. To view, go to http://www.dol.gov/dol/allcfr/Title_41/Part_60-741/41CFR60- 741.44.htm. Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net
  • Comments, Section 503 ANPRM 9/21/10 page 4 of 5 b. Contractors, etc. should supply a Burden Statement on the amount of time necessary for Section 504 Coordinators to develop written checklists and practices, gather measurements and other data, complete, review and maintain the records required to annually update and implement their Section 504 Self Evaluations and implement Transition Plans so that a cross-cutting baseline knowledge base regarding prior awareness and implementation of the Rehabilitation Act of 1973, as amended, can be collected and analyzed over the next decade. 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? Answer: yes- if the applicant has confidence in the effectiveness of the organization's resources to monitor and comply with nondiscrimination statutes and regulations pertaining to disability class (such as compliance with Section 504). 2 Recommendations: a. Section 3 should equivalently match monitoring of records of all personnel activity (including hires, promotions, transfers and terminations) and compensation at all levels, as is currently regulated by OFCCP to monitor success of Affirmative Action Plans at 41 CFR 60- 2.17(b)(1) through 41 CFR 60-2.17(b)(5). b. OFCCP regulations at 41 CFR 60-1.12(c) allow that Visual observation is an acceptable method for identifying demographic data. This should be entirely eliminated for all disadvantaged classes, including disability, and not included as guidance for Section 3 either. 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?2 What are the specific costs and/or benefits that might result from this 2 For example, requiring that contractors ensure that application and testing kiosks are fully accessible and usable by individuals with disabilities, and that contractors strive to ensure that their Internet and Intranet Web sites satisfy the United States Access Board's accessibility standards for technology used by the Federal Government and subject to section 508 of the Rehabilitation Act. Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net
  • Comments, Section 503 ANPRM 9/21/10 page 5 of 5 requirement? Answer: that would be hugely, positively significant. People with disabilities would have significantly broader access to jobs they are qualified to perform. If this is combined with increased broadband and other accessible technology investments, persons with disabilities will also have increased opportunities to perform appropriate work responsibilities and to effectively communicate with remote location teams, as well as increased potential for flexible work locations, such as, home satellite offices. As other MA advocates have stated: "In today’s world, accessible technology is a key factor impacting employment opportunities for people with disabilities." 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? Insofar as Federal Acquisition Regulation (FAR) policy dictates that all contractors must register with the CCR before being awarded any contract or purchase agreement; and the Central Contractor Registry (CCR) certifies and provides affirmative procurement and other economic opportunities for certified disadvantaged businesses under the SBA, the necessity to prove, by a preponderance of evidence, that disability-owned businesses are eligible to certification as a disadvantaged business represents a root barrier to individuals with disabilities who seek to develop and grow entrepreneurship and contracting opportunities with the Federal Government. There is clear evidence, state by state, that individuals with disabilities continue to suffer enormous low-opportunity disparities In: level of education attained, employment opportunities, annual income, access to State and local assets development programs, and the hiring, recruitment and retention practices within all aspects of the public commons. Please grant individuals with disabilities the same opportunities as are currently provided to women, minorities and service-disabled veterans, and affirm, within Section 3, that individuals with disabilities are presumed to be disadvantaged; and, are eligible for equivalent affirmative opportunities as other economically disadvantaged minorities. Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net