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- Disability Nondiscrimination Law Advisor

Section 503 of the Rehabilitation Act of 1973, as amended

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Summary

The Rehabilitation Act of 1973 was the first Federal law prohibiting discrimination against individuals with disabilities. It became the foundation for later disability nondiscrimination laws, including the Americans with Disabilities Act (ADA). Section 503 is the part of the Rehabilitation Act that applies to employers doing business with the Federal government as Federal contractors and subcontractors. It prohibits them from discriminating against qualified individuals with disabilities and requires that they take affirmative action to hire, retain, and promote qualified individuals with disabilities. Section 503 is enforced by the Department of Labor's (DOL's) Office of Federal Contract Compliance Programs (OFCCP).

Other sections of the Rehabilitation Act prohibit discrimination against qualified individuals with disabilities in programs conducted by Federal agencies, in programs receiving Federal financial assistance, and in Federal employment.

Who is Affected by Section 503

Covered Employers: Section 503 generally applies to all employers who have a contract or subcontract with the Federal government that exceeds $10,000. Covered employers that have 50 or more employees and a contract of $50,000 or more must implement affirmative action programs (AAPs) that include additional employer responsibilities. See 41 CFR 60-741.4 (regarding coverage) and 41 CFR 60-741.40 (regarding applicability of the AAP requirement). For assistance in determining whether you are a covered employer, use the Federal Contractor Compliance Advisor.

Protected Individuals: Section 503 protects qualified job applicants and employees with disabilities. See 41 CFR 60-741.2(t).

Employer Responsibilities Under Section 503

Section 503 and its implementing regulations include specific requirements for covered employers. Listed below are the key employer responsibilities under Section 503:

  • Nondiscrimination. Covered employers must implement and follow nondiscriminatory employment practices, meaning they may not discriminate against qualified individuals with disabilities in any of their employment and personnel practices, including recruitment, job application procedures, hiring, compensation, promotion and career advancement, demotion or termination, job assignments, training, leaves of absence, fringe benefits and all other terms, conditions and privileges of employment. See 41 CFR 60-741.20.
  • Reasonable Accommodations. Covered employers must provide reasonable accommodations that enable qualified job applicants and employees with disabilities to participate in the application process, to perform essential job functions and to receive benefits and privileges equal to those of applicants and employees without disabilities. Employers are not required to provide any accommodation that would impose an undue hardship on the operation of their business. See 41 CFR 60-741.2(v) and 41 CFR 60-741.21(f).
  • Affirmative Action. Covered employers must take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level. In addition, covered employers that have 50+ employees and a contract of $50,000 or more must prepare, implement, and maintain affirmative action programs (AAPs) that are reviewed and updated each year. In addition, covered employers that are required to maintain an AAP must designate an individual responsible for its implementation. The regulations implementing Section 503 set forth the required contents of an AAP. See 41 CFR 60-741.44.

    Those covered employers that are required to have AAPs must conduct appropriate recruitment activities that are reasonably designed to effectively recruit qualified individuals with disabilities. The scope of these activities depends on contractor size, resources, and extent to which current employment practices are adequate. See 41 CFR 60-741.44(f).

    In addition, covered employers that are required to have AAPs must periodically review personnel processes to ensure that they do not stereotype individuals with disabilities in a manner which limits their access to all jobs for which they are qualified. Covered employers must also periodically review all of the physical and mental job qualification standards to ensure that, to the extent that they tend to screen out qualified individuals with disabilities, they are job-related for the positions in question and consistent with business necessity. See 41 CFR 60-741.44(b) and (c).

    Click here to view a sample AAP.

  • Selection Criteria and the Administration of Tests. Covered employers may not use qualification standards, employment tests, or other employment selection criteria that have the effect of screening out individuals with disabilities on the basis of disability, unless the standard, test, or other selection criterion, as used by the covered employer, is shown to be job-related and consistent with business necessity. See 41 CFR 60-741.21(g).
  • Medical examinations and Pre-Employment Inquiries. Covered employers must ensure that all medical examinations and pre-employment inquiries are limited to those allowed by the law. Before extending a job offer, covered employers generally may not require pre-employment medical examinations or make disability-related inquiries (questions that are likely to reveal whether an applicant is an individual with a disability or the nature or severity of a disability). Covered employers may, however, make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the essential functions of the job.

    Employers may also require a medical examination or make a disability-related inquiry after making an offer of employment but before the applicant begins his duties, and may condition the employment offer on the results of such inquiry or examination, if all entering employees into the same job category are subjected to such examination or inquiry, regardless of disability. If a job offer is withdrawn because of a disability, the selection criteria used must be job-related and consistent with business necessity. In addition, the contractor may require a medical examination or make an inquiry of a current employee if the examination or inquiry is job-related and consistent with business necessity. See 41 CFR 60-741.23.

    Medical information must be kept confidential. This includes requiring that such information be collected and stored separately from other personnel information. Section 503 of the Rehabilitation Act permits employers to disclose medical or disability-related information about a particular individual to specifically listed persons or entities for specific reasons. See 41 CFR 60-741.23(d)
  • Invitation to Self-Identify. The invitation to self-identify is designed to give persons whose disabilities may not be known to the covered employer an opportunity to identify their disability in order to benefit from the employer’s affirmative action program. In general, covered employers are required to invite job applicants to self-identify after an employment offer has been made and before the applicant begins employment duties. Covered employers may invite an applicant to self-identify as an individual with a disability before an offer of employment has been made: (1) if the invitation is made when the contractor actually is undertaking affirmative action for individuals with disabilities at the pre-offer stage; or (2) if the invitation is made pursuant to a Federal, state, or local law requiring affirmative action for individuals with disabilities. The invitation to self-identify must inform the applicant that the request to benefit under the contractor’s affirmative action program may be made immediately or at any time in the future. For further explanation of self-identification requirements, see 41 CFR 60-741.42 and 41 CFR 60-741.23(c). There is a sample invitation to self-identify in Appendix B to 41 CFR Part 60-741.
  • Notice/Posters. Covered employers must provide employees and applicants with notice of their rights to equal employment and nondiscrimination in employment. Employers must display the specific poster, "Equal Employment Opportunity is the Law," in a prominent location so that it is readily seen by job applicants and employees, and must make the contents of the poster available to applicants and employees with disabilities. For example, the contractor may have the notice read to a person with a visual impairment, or may lower the posted notice so that it can be viewed by a person in a wheelchair. Employers may obtain a copy of this poster by visiting DOL's Web site. DOL recognizes that there are differences between this poster and the poster provided by the Equal Employment Opportunity Commission (EEOC). Despite these differences, both posters are accepted as valid by both DOL and EEOC. See 41 CFR 60-741.5(a).
  • Equal Opportunity Clause. Covered employers must include an equal opportunity clause in each of their covered contracts and subcontracts (and modifications, renewals, or extensions thereof if not included in the original contract). The regulations provide the required language for this clause at 41 CFR 60-741.5.
  • Recordkeeping. Covered employers must maintain personnel and employment records. In general, the length of time for which these records must be retained depends on the size of the employer and the size of the Federal contract or subcontract.
    • Covered employers with fewer than 150 employees or who do not have a Federal contract of at least $150,000 are required to keep personnel and employment records for at least one year from the day the record was made or the personnel action was taken, whichever is later.
    • Covered employers with at least 150 employees and a contract of at least $150,000 must maintain personnel and employment records for two years from the day the record was made or the personnel action was taken, whichever is later.
    • Where a covered employer has received notice that a discrimination complaint has been filed or a compliance evaluation or enforcement action has been initiated, the employer must retain all relevant personnel records until the matter has been resolved.

      See 41 CFR 60-741.80.
  • Compliance Evaluations. DOL's OFCCP investigates Section 503 compliance either through routine scheduled compliance evaluations (See 41 CFR 60-741.60) or in response to complaints (See 41 CFR 60-741.61). If a violation is found, OFCCP may ask the covered employer to enter into conciliation negotiations. See 41 CFR 60-741.62. Should such conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by issuing an administrative complaint against the covered employer. See 41 CFR 60-741.65.
  • Retaliation, Intimidation, and Interference. Covered employers must take all necessary actions to ensure that no one intimidates or discriminates against any individual for taking certain actions, such as filing a complaint, opposing an unlawful action, or participating in an investigation or other proceeding under Section 503. See 41 CFR 60-741.69.

Section 503 and Other Federal Disability Nondiscrimination Laws

Most employers are covered by more than one Federal law prohibiting discrimination against job applicants and employees with disabilities. For example, many Federal contractors are covered by both Section 503 of the Rehabilitation Act and Title I of the Americans with Disabilities Act (ADA) as well as the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA).

The general principles underlying all the Federal disability nondiscrimination laws are consistent. Therefore, complying with the disability-related obligations imposed under other Federal disability nondiscrimination laws, such as the ADA or Section 188 of the Workforce Investment Act (WIA), will not cause employers to violate the legal requirements imposed under Section 503 and will sometimes actually satisfy those requirements. However, some of the disability-related requirements imposed by Section 503 are more detailed and specific than those of the other disability nondiscrimination laws and their implementing regulations. For example, Section 503, unlike other Federal disability nondiscrimination laws, requires that certain government contractors establish affirmative action programs.

Some state laws also mandate additional disability-related responsibilities for employers and/or provide additional protections for job applicants and employees with disabilities. Therefore, employers should familiarize themselves with all of the disability nondiscrimination requirements, both Federal and state, that apply to their business or organization.

Resources

Applicable Law and Regulations

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