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OFCCP Proposed Rules

Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Affirmative Action Provisions Under Section 503 of the Rehabilitation Act, as Amended   [7/23/2010]
[PDF]
FR Doc 2010-18104
[Federal Register: July 23, 2010 (Volume 75, Number 141)]
[Proposed Rules]               
[Page 43116-43118]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jy10-34]                         

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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-741

RIN 1250-AA02

 
Affirmative Action and Nondiscrimination Obligations of 
Contractors and Subcontractors; Evaluation of Affirmative Action 
Provisions Under Section 503 of the Rehabilitation Act, as Amended

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
issuing this Advance Notice of Proposed Rulemaking (ANPRM) in order to 
invite the public to provide input on how OFCCP can strengthen the 
affirmative action requirements of the regulations implementing section 
503 of the Rehabilitation Act of 1973, as amended (Section 503). 
Strengthening affirmative action requirements will help increase the 
employment opportunities of people with disabilities in the Federal 
contractor sector.

DATES: All comments must be received on or before September 21, 2010.

ADDRESSES: You may submit comments, identified by RIN number 1250-AA02, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail and Hand Delivery/Courier: Barbara J. 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.
    Receipt of submissions will not be acknowledged; however, the 
sender may request confirmation that a submission has been received by 
telephoning OFCCP at (202) 693-0102 (voice) or (202) 693-1337 (TTY) 
(these are not toll-free numbers).
    All comments received, including any personal information provided, 
will be available Online at http://www.regulations.gov and for public 
inspection during normal business hours at Room C-3325, 200 
Constitution Avenue, NW., Washington, DC 20210. People needing 
assistance to review comments will be provided with appropriate aids 
such as readers or print magnifiers. Copies of this Advance Notice of 
Proposed Rulemaking will be made available in the following formats: 
Large print, Braille, electronic file on computer disk, and audiotape. 
To schedule an appointment to review the comments and/or to obtain this 
Advance Notice of Proposed Rulemaking in an alternate format, contact 
OFCCP at the telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT: Barbara J. Bingham, Acting Director, 
Division of Policy, Planning and Program Development, Office of Federal 
Contract Compliance Programs, 200 Constitution Avenue, NW., Room N3422, 
Washington, DC 20210. Telephone: (202) 693-0102 (voice) or (202) 693-
1337 (TTY).

SUPPLEMENTARY INFORMATION: Federal contractors covered by section 503 
of the Rehabilitation Act of 1973, as amended (Section 503) \1\ are 
obligated to

[[Page 43117]]

ensure equal employment opportunity for people with disabilities. In 
addition, Section 503 requires Federal contractors to take affirmative 
action to employ and advance in employment individuals with 
disabilities. The existing Section 503 regulations require that covered 
contractors:
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    \1\ Covered contracts or subcontracts include those that exceed 
$10,000, and contracts or subcontracts for indefinite quantities, 
unless the purchaser has reason to believe that the cost in any one 
year will not exceed $10,000.
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    (1) Employ nondiscriminatory employment practices;
    (2) Provide reasonable accommodations to qualified job applicants 
and employees with disabilities;
    (3) After a job offer is extended but before employment begins, 
invite job applicants to voluntarily and confidentially self-identify 
as to whether or not they have a disability in order to benefit from 
any affirmative action programs covered contractors may have;
    (4) Maintain personnel and employment records; and
    (5) For those contractors and subcontractors with 50 or more 
employees and a contract of $50,000 or more, develop and maintain a 
written affirmative action program (AAP). Further information about the 
current Section 503 regulatory requirements may be found at http://
www.dol.gov/ofccp/regs/compliance/ca_503.htm.
    Section 503 regulations promote equal employment opportunity for 
applicants and employees with disabilities, yet the percentage of 
people with disabilities not in the labor force as well as the 
unemployment rate of people with disabilities are high. According to 
recent data from the U.S. Department of Labor's Bureau of Labor 
Statistics, the percentage of people with disabilities in the labor 
force in March 2010 was 22.5 compared with 70.2 for persons with no 
disability. The unemployment rate for those with disabilities was 13.9 
percent, compared with 10.1 percent for persons with no disability, not 
seasonally adjusted. Regulations implementing Section 503 have not 
undergone a comprehensive review and revision since May 1, 1996. It is 
time for OFCCP to reexamine its affirmative action provisions under 
Section 503 to make them more effective and to help ensure that more 
people with disabilities are employed and are given the opportunity to 
advance in employment in the Federal contracting labor force.
    Determining how covered contractors can effectively increase 
employment opportunities for people with disabilities requires an 
understanding of the range of successful evidence-based practices 
employers use to recruit, hire, retain, and advance people with 
disabilities in employment. Among the key factors in measuring progress 
in this area is the existence of current and discrete statistical 
information that is valid and reliable. In an effort to enhance the 
affirmative action provisions under Section 503, OFCCP is considering 
adopting measures similar to those required under the Executive Order 
11246 program for supply and service contractors. Under that program, 
covered contractors are required, among other things, to compare the 
percentage of women and minorities in each job group at an 
establishment with the availability of women and minorities to work in 
the job group. Availability is a percentage estimate of those women and 
minorities who are qualified for employment in the job group within the 
relevant recruitment area. Contractors typically rely on Census Bureau 
data, state employment service data, and college graduation data in 
developing their availability factors.
    Before publishing a proposed regulation, OFCCP seeks comments from 
members of the public on the issues under consideration to assist with 
making informed decisions regarding proposed regulatory changes. As a 
first step towards this goal, OFCCP conducted a Web based listening 
session and three Town Hall listening sessions in Chicago, San 
Francisco and New Orleans offering information on how interested 
stakeholders could participate in the official rulemaking process, and 
providing an opportunity for stakeholders to offer suggestions and 
recommendations for strengthening the equal employment opportunity and 
affirmative action requirements of Section 503. In developing a notice 
of proposed rulemaking to amend the Section 503 regulations, OFCCP will 
consider comments elicited in those listening sessions and information 
provided in response to this ANPRM.
    The second step towards publishing a notice of proposed rulemaking 
is to request comments and data from the public on the following 
issues.

Request for Comments

    OFCCP is seeking public comment on the following inquiries:
    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.
    2. What measures have contractors and subcontractors taken to 
fulfill the current affirmative action requirements of Section 503? How 
much did these measures cost?
    3. What barriers currently impede Federal contractors from hiring 
people with disabilities?
    4. Are there changes that could be made to the existing language on 
permissible qualifications standards \2\ that would better ensure equal 
employment opportunities for individuals with disabilities?
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    \2\ 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.
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    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?
    6. Would the establishment of placement goals for individuals with 
disabilities measurably increase their employment opportunities in the 
Federal contractor sector? Explain why or why not.
    7. What experience have Federal contractors had with respect to 
disability employment goals programs voluntarily undertaken or required 
by state, local or foreign governments?
    8. What specific employment practices have been verifiably 
effective in recruiting, hiring, advancing, and retaining individuals 
with disabilities?
    9. To what extent does workplace flexibility, including flexibility 
in work schedules, as well as job-protected leave, impact recruitment 
and retention of individuals with disabilities?
    10. Has training of employees and/or managers been effective in 
increasing advancement and/or retention of individuals with 
disabilities? If so, how?
    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

[[Page 43118]]

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).
    12. How can linkage agreements between Federal contractors and 
organizations that focus on the employment of individuals with 
disabilities be strengthened to increase effectiveness? Do linkage 
agreements have better outcomes when higher level company officials are 
responsible for their implementation/execution? Include examples of 
cooperative agreements between employers and disability or community 
recruitment organizations that have been helpful in hiring persons with 
disabilities.
    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? \3\ What are the specific 
costs and/or benefits that might result from this requirement?
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    \3\ 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.
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    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?
    15. Regulatory Flexibility Act--Consistent with the Regulatory 
Flexibility Act, the Department must consider the impacts of any 
proposed rule on small entities, including small businesses, small 
nonprofit organizations and small governmental jurisdictions with 
populations under 50,000. In response to this ANPRM, the Department 
encourages small entities to provide data on how additional 
requirements under Section 503 may impact them.
    16. OFCCP seeks public comment on the types of small entities and 
any estimates of the numbers of small entities that may be impacted by 
this rule.
    17. OFCCP seeks public comment on the potential costs of additional 
503 requirements on small entities.
    18. OFCCP seeks public comment on any possible alternatives to the 
proposed measures that would allow the agency to achieve their 
regulatory objectives while minimizing any adverse impact to small 
businesses.

OFCCP encourages any interested party to comment on these questions.

Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.
[FR Doc. 2010-18104 Filed 7-22-10; 8:45 am]
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