# Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-31371 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** December 9, 2011 - **Citation:** 76 FR 77056 ## Text 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 Regarding Individuals With Disabilities AGENCY: Office of Federal Contract Compliance Programs, Labor. ACTION: Notice of proposed rulemaking. SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is proposing to revise the regulations implementing the non-discrimination and affirmative action regulations of section 503 of the Rehabilitation Act of 1973, as amended. Section 503 prohibits discrimination by covered Federal contractors and subcontractors against individuals on the basis of disability, and requires affirmative action on behalf of qualified individuals with disabilities. The proposed regulations would strengthen the affirmative action provisions, detailing specific actions a contractor must take to satisfy its obligations. They would also increase the contractor's data collection obligations, and establish a utilization goal for individuals with disabilities to assist in measuring the effectiveness of the contractor's affirmative action efforts. Revision of the non-discrimination provisions to implement changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 is also proposed. DATES: To be assured of consideration, comments must be received on or before February 7, 2012. 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. • Fax: (202) 693-1304 (for comments of six pages or less). • Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 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) 693-0103 (voice) or (202) 693-1337 (TTY) (these are not toll-free numbers). All comments received, including any personal information provided, will be available for public inspection during normal business hours at Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210, or via the Internet at http://www.regulations.gov . Upon request, individuals who require assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this Notice of Proposed Rulemaking (NPRM) will be made available in the following formats: Large print, electronic file on computer disk, and audiotape. To schedule an appointment to review the comments and/or to obtain this NPRM in an alternate format, please contact OFCCP at the telephone numbers or address listed above. FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C-3325, Washington, DC 20210. Telephone: (202) 693-0103 (voice) or (202) 693-1337 (TTY). SUPPLEMENTARY INFORMATION: Background Enacted in 1973, the purpose of section 503 of the Rehabilitation Act (section 503), as amended, is twofold. First, section 503 prohibits employment discrimination on the basis of disability by Federal government contractors and subcontractors. Second, it requires each covered Federal government contractor and subcontractor to take affirmative action to employ and advance in employment qualified individuals with disabilities. The nondiscrimination requirements and general affirmative action requirements of section 503 apply to all Government contractors with contracts or subcontracts in excess of $10,000 for the purchase, sale, or use of personal property or nonpersonal services (including construction). See 41 CFR 60-741.4. The requirement to prepare and maintain an affirmative action program, the specific obligations of which are described at 41 CFR 60-741.44, apply to those contractors that have a contract or subcontract of $50,000 or more and 50 or more employees. In the section 503 context, with the awarding of a Federal contract comes a number of responsibilities, including compliance with the section 503 anti-discrimination and anti-retaliation provisions, meaningful and effective efforts to recruit and employ individuals with disabilities, creation and enforcement of personnel policies that support its affirmative action obligations, maintenance of accurate records on its affirmative action efforts, and OFCCP access to these records upon request. Failure to abide by these responsibilities may result in various sanctions, from withholding progress payments up to and including termination of contracts and debarment from receiving future contracts. The framework articulating a contractor's responsibilities with respect to affirmative action, recruitment, and placement has been in place since the 1970's. However, both the unemployment rate of working age individuals with disabilities and the percentage of working age individuals with disabilities that are not in the labor force remain significantly higher than for those without disabilities. Recent data from the U.S. Department of Labor's Bureau of Labor Statistics (BLS) indicates that just 21.8% of working age people with certain functional disabilities were in the labor force in 2010, compared with 70.1% of working age individuals without such disabilities; while the unemployment rate for working age individuals with these disabilities was 14.8%, compared with an unemployment rate of 9.4% for working age individuals without such disabilities. See Table A. Employment status of the civilian noninstitutional population by disability status and age, 2009 and 2010 annual averages, available online at http://www.bls.gov/news.release/disabl.a.htm . A substantial disparity in the employment rate of individuals with disabilities continues to persist despite years of technological advancements that have made it possible to apply for and perform many jobs from remote locations, and to read, write, and communicate in an abundance of alternative ways. Strengthening the implementing regulations of section 503, whose stated purpose “requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities,” will be an important means by which the government can address the issue of employment for individuals with disabilities. Prior to publishing this NPRM, OFCCP conducted multiple town hall meetings, webinars, and listening sessions with individuals from the contractor community, state employment services, disability organizations, and other interested parties to understand those features of the section 503 regulations that work well, those that can be improved, and possible new requirements that could help to effectuate the overall goal of increasing the employment opportunities for individuals with disabilities with Federal contractors. In addition, OFCCP also published an Advance Notice of Proposed Rulemaking (ANPRM) on July 23, 2010, 75 Federal Register (FR) 43116, requesting public comment on specific inquiries regarding potential ways to strengthen the section 503 affirmative action regulations. The comment period ended September 21, 2010, and all comments received have been reviewed and given due consideration. A total of 127 comments were received and are available for review at the Federal eRulemaking Portal at http://www.regulations.gov. Comments were received from trade and professional associations; disability and veteran advocacy organizations; employers; federal, state, and local government agencies; representatives of schools and organizations that provide education and/or vocational training; and from several private citizens. These written comments were generally reflective of the comments, suggestions and opinions expressed during the town hall meetings, webinars, and listening sessions, and are summarized briefly below. 47 of the comments received were non-substantive in nature. These commenters provided only generic responses indicating general support or opposition to strengthening the affirmative action regulations and/or to concepts such as the use of hiring goals or voluntary self-identification as an individual with a disability, or addressed issues unrelated to the ANPRM. 80 commenters provided substantive responses to at least some of the ANPRM questions. 51 of these were from the disability/advocacy perspective and 24 were from the contractor community. By and large, the contractor community argued that changes to the affirmative action regulations were not needed, while disability and employment service organizations and agencies requested that OFCCP strengthen the existing affirmative action requirements and consider additional requirements. Among the most significant inquiries in the ANPRM were two questions regarding the utility of establishing hiring goals for individuals with disabilities similar to the requirements for minorities and women contained in the implementing regulations for Executive Order 11246, and the data source(s) from which such goals could be derived. 1 A third inquiry in the ANPRM asked about contractors' experiences with the disability employment goals programs of State or local governments. 2 57 commenters addressed this issue. Of these, 37 said that hiring goals “like those for race and gender” should be established. These commenters asserted that quantitative and measurable analyses similar to those for minorities and women were needed to make affirmative action for individuals with disabilities “more than a paperwork exercise.” Almost all of these commenters referenced the U.S. Census Bureau's American Community Survey (ACS) 3 data as the best available source of data about the number of persons with certain types of disabilities in the US. However, these commenters did not offer workable recommendations as to how OFCCP or contractors could use the data for the establishment of goal percentages. 1 Specifically, the ANPRM asked: “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?” and “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.” 2 This question asked: “What experience have Federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?” 3 The American Community Survey conducted by the U.S. Census Bureau inquires about an array of demographic information, including several questions intended to ascertain the existence of certain functional disabilities, focusing on serious aural, visual, intellectual, developmental and mobility impairment. Five of these 37 commenters also responded to the inquiry regarding State or local government goal programs. These commenters all referenced California's State workforce affirmative action program as an example of an affirmative action success story. According to the commenters, the California program requires that State agencies submit annual affirmative action plans that include specific “targets and timetables” for the employment of individuals with disabilities, based on their availability in the State's working age population. Agencies' workforce composition and upward mobility of individuals with disabilities is monitored by the State Personnel Board, and annual reports are required to be submitted to the Governor and State legislature. As a result of these affirmative action efforts, the commenters stated, individuals with disabilities comprised 9.3% of the State government workforce in 2009. 4 Though informative, it should be noted that the commenters provided few details about the design or operation of the California State program, and that, consequently, it is unclear whether the California program represents an appropriate goals model for federal contractors. 5 4 The commenters cite the Annual Census of Employees in the State Civil Service 2008-2009, California State Personnel Board, February 2010 for this statistic. See http://www.spb.ca.gov/WorkArea/showcontent.aspx?id=5634 . 5 For example, no details were provided with regard to the basis of the availability data used in the program, the method(s) used in setting the “targets and timetables,” the program's enforcement mechanism(s), if any, and/or the rate of State agencies' compliance with the program. The remaining 20 commenters, mostly contractors or contractor representatives, opposed the use of hiring goals in the section 503 context, asserting primarily that available disability data (including ACS data) is not sufficiently comprehensive or robust to be used for this purpose. See the Preamble to section 60-741.46 for further discussion regarding disability data sources. Another significant issue posed in the ANPRM was whether inviting applicants to self-identify as individuals with disabilities prior to receiving a job offer would enhance the contractor's ability to monitor the impact of their hiring practices and measure the effectiveness of their affirmative action efforts. 55 commenters addressed this question. Of these, 37 commenters said voluntary pre-offer self-identification of disability would have a positive effect on the employment of individuals with disabilities. Several commenters recommended that the contractor be required to invite voluntary self-identification at both the pre- and post-offer employment process stages to alleviate concerns that information about a hidden disability might be improperly used if provided before an employment offer was made. A few commenters recommended that individuals with disabilities be offered the additional option of self-identifying “for recordkeeping purposes only,” rather than for purposes of receiving affirmative action. The remaining 19 commenters were against the idea of pre-offer self-identification for various reasons, including 3 commenters who erroneously asserted that it would violate the Americans with Disabilities Act (ADA) of 1990. See the Preamble to section 60-742 for a discussion of the permissibility under the ADA of disability-related inquiries in furtherance of an affirmative action obligation. Support was also expressed among a significant number of commenters for strengthening the implementing regulations regarding contractors' use of linkage agreements 6 with recruitment and/or training sources, and for adding a mandatory job listing requirement similar to the one in the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. 6 See section 741.2(m) for a definition of “linkage agreement.” This NPRM proposes several major changes to part 60-741. Many of these changes were informed and significantly shaped by the comments received on the ANPRM, and by the information we received at the town hall meetings, listening sessions, and in webinars. In addition to changes to the regulations implementing section 503's affirmative action requirements, changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 and the subsequent amendment by the Equal Employment Opportunity Commission (EEOC) of their implementing regulations at 29 CFR part 1630, have also been made to the rule's definitions and nondiscrimination provisions. The ADAAA amends section 503 to the same extent as it amends the ADA, and became effective on January, 1, 2009. It is, therefore, OFCCP's intention that these changes will have the same meaning as set forth in the ADAAA, and in the revised EEOC regulations published at 76 FR 16978 (March 25, 2011). The detailed Section-by-Section Analysis below identifies and discusses all proposed changes in each section. Due to the extensive proposed revisions to the section 503 regulations, part 60-741 will be republished in its entirety in this NPRM for ease of reference. However, the Department will only accept comments on the proposed revisions of the regulations detailed herein. Section-by-Section Analysis 41 CFR Part 60-741 Subpart A—Preliminary Matters, Equal Opportunity Clause Section 60-741.1 Purpose, Applicability, and Construction We propose a few minor changes to this section. Paragraph (a) of § 60-741.1 of the current rule sets forth the scope of section 503 and the purpose of its implementing regulations. Existing paragraph (a) discusses the contractor's affirmative action obligations but does not mention the other primary element of section 503—the prohibition of discrimination in employment against individuals with disabilities. Accordingly, the proposed rule adds language to the first sentence of paragraph (a) including this important element. Next, the proposal modifies the citation in paragraph (c) to the “Americans With Disabilities Act of 1990” (ADA) to reflect its recent amendment by the ADA Amendments Act of 2008. Finally, in accordance with changes in the ADAAA, the proposed rule adds a new paragraph (c)(2), and renumbers the existing paragraph (c)(2) as (c)(3). New paragraph (c)(2) reflects the ADAAA's affirmation, in section 6(a)(1), that nothing in the statute “alters the standards for determining eligibility for benefits” under State worker's compensation law or under State and Federal disability benefit programs. Section 60-741.2 Definitions The proposed rule incorporates the vast majority of the existing definitions contained in existing § 60-741.2 without change. However, OFCCP proposes several changes to the substance and structure of this section, as set forth below. With regard to the structure of this section, the current rule lists the definitions in order of subject matter. However, for those who are unfamiliar with the regulations, this ordering makes it difficult to locate specific terms within the section. For the most part, the proposed rule reorders the defined terms in alphabetical order. A few terms that are typically used in connection with specific definitions are defined as subparagraphs of those definitions. So, for example, definitions of the terms “contracting agency” and “modification” are found within the definition of “Government contract.” This modified structure is proposed for ease of reference, and to allow individuals to continue to cite to specific definitions. However, because of this reordering, the citation to specific terms may be different in the proposed rule than it is currently. For instance, the term “contract,” which is § 60-741.2(h) in the current regulations, is § 60-741.2(c) in the proposed regulation. With regard to substantive changes, the proposed rule makes several revisions that relate to the definition of “disability” and its component parts as a result of the passage of the ADAAA, which became effective on January 1, 2009, and which amends both the ADA and section 503. As noted previously, it is OFCCP's intention that these terms will have the same meaning as set forth in the ADAAA, and as implemented by the EEOC in its revised regulations. The proposed section 503 rule replaces the term “individual with a disability” with the ADAAA term “disability.” The ADAAA definition of “disability” retains the three prongs of the definition of “individual with a disability” in the current regulation, but clarifies that the assessment of whether a disability exists is to be made “with respect to an individual.” The proposed rule incorporates this change in paragraph (g)(1). The term “individual with a disability” will be retained in alphabetical order as paragraph (l) in the proposed rule for the convenience of those not yet accustomed to the new terminology. However, proposed paragraph (l) does not contain a definition, but directs readers to refer to the new definition of “disability” in paragraph (g). New paragraphs (g)(2), (g)(3) and (g)(4) incorporate additional ADAAA requirements regarding the assessment of when an impairment constitutes a “disability.” These requirements are crucial to ensure that “the broad scope of protection” Congress intended for “disability” to provide is not unduly “narrowed” by administrative or court rulings. See ADAAA at section 2. Proposed paragraph (g)(2) provides that the definition of “disability” must be “construed in favor of broad coverage of individuals, to the maximum extent permitted by law,” and that therefore extensive analysis should not be needed in order to determine whether an individual has a disability. New paragraph (g)(3) incorporates the ADAAA's affirmation that “an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability;” while new paragraph (g)(4) reflects the ADAAA's requirement that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” New paragraphs (g)(5) and (g)(6) are added for the convenience of persons using the rule. A cross-reference alerting the reader that the terms “major life activities,” “physical or mental impairment,” “record of such impairment,” “regarded as having such an impairment,” and “substantially limits” are separately defined in § 60-741.2 appears in (g)(5). A cross reference informing readers that exceptions to the definition of “disability” are contained in § 60-741.3 of the rule is added as paragraph (g)(6). The proposed rule incorporates the ADAAA's revision of the definition of “major life activities” in paragraph (n). The ADAAA adds several items to the list of examples of major life activities contained in the current regulation. In addition, the ADAAA clarifies that the term “major life activities” includes “major bodily functions” and enumerates several examples of functions that would constitute “major bodily functions.” EEOC's implementing regulations include additional examples of major life activities and major bodily functions. All of these examples are contained in the proposed rule in paragraphs (n)(1) and (2). In new paragraph (n)(3), the proposed rule states that the term “major” must not be interpreted to create a demanding standard when determining other examples of major life activities, and cautions that such an assessment is not to be determined by reference to whether the life activity is of “central importance to daily life.” See ADAAA section 2(b)(4). New paragraph (o) adds a definition of “mitigating measures” that, as prescribed in section 3 of the ADAAA, consists of a non-exhaustive list of examples of mitigating measures. The ADAAA also prescribes definitions of the mitigating measures of “ordinary eyeglasses or contact lenses,” “low-vision devices,” and “auxiliary aids and services,” and these definitions are likewise included in this paragraph of the proposed rule. Consistent with the EEOC's recently issued implementing regulations, the proposed regulation also adds “psychotherapy, behavioral therapy, or physical therapy” to the non-exhaustive list of mitigating measures in paragraph (o)(1)(v). The ADAAA replaces the term “qualified individual with a disability” with the term “qualified individual.” The definition of this new term omits the words “with a disability,” thus emphasizing that the assessment of whether a person is qualified for a job is distinct from the assessment of whether the person has a disability, but is otherwise unchanged from the definition in the Americans with Disabilities Act as originally enacted. The proposed rule reflects this statutory change in the definition of “qualified individual” in paragraph (s) by deleting the words “with a disability” that are in the current regulation. Proposed paragraph (t) makes two changes to the definition of “reasonable accommodation” currently found at § 60-741.2(v). First, it revises footnote 2 in the current rule to emphasize that before providing a reasonable accommodation the contractor is advised to verify with the individual with a disability that the accommodation it plans to provide will effectively meet the individual's needs. Second, it adds a new paragraph (4) to reflect the ADAAA's clarification that individuals who only satisfy the “regarded as” part of the definition of “disability” are not entitled to receive reasonable accommodation. See ADAAA at sec. 6(a)(1)(h). A clarification has been added to the definition of “record of such an impairment” in proposed paragraph (u). It explains that an individual satisfies the record of prong of “disability” if the individual has “a history” of a substantially limiting impairment “when compared to most people in the general population,” or has been misclassified as having had such an impairment. The ADAAA also significantly redefines and simplifies the “regarded as” part of the definition of “disability.” Under the new definition of “regarded as having such an impairment,” in proposed paragraph (w)(1), an individual satisfies the “regarded as” prong of the definition of “disability” if “the individual establishes that he or she has been subjected to an action prohibited under subpart B (Discrimination Prohibited) of these regulations because of an actual or perceived physical or mental impairment, whether or not the impairment substantially limits or is perceived to substantially limit a major life activity.” Such prohibited actions include, but are not limited to, refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment. In paragraph (w)(2) the proposed rule explains that an individual satisfies the regarded as prong any time a contractor takes a prohibited action against the individual because of an actual or perceived impairment, even if the contractor asserts or ultimately establishes a defense for its challenged action. In paragraph (w)(3) the proposed rule clarifies that the establishment that an individual is regarded as having a disability is distinct from the establishment of liability for unlawful discrimination in violation of this part. Such liability is established only when the individual “proves that a contractor discriminated on the basis of disability.” The ADAAA excludes from the “regarded as” prong of “disability” impairments that are “transitory and minor,” and defines a “transitory” impairment as one that “has an actual or expected duration of six months or less.” Proposed paragraph (w)(4) incorporates this exclusion. The proposed rule also makes clear that it is incumbent upon the contractor to demonstrate that an impairment is both transitory and minor for it to be excluded from coverage under the regarded as prong of “disability.” Whether the contractor has succeeded in demonstrating that a particular impairment is transitory and minor will be determined objectively. A contractor's subjective belief that the impairment was transitory and minor is not sufficient to defeat an individual's coverage under the regarded as prong. The definition of “substantially limits” at § 60-741.2(q) of the current rule is also significantly revised in accordance with the ADAAA, and to ensure that it is consistent with the EEOC's implementing regulations. As revised in paragraph (aa), the proposed regulation sets forth rules of construction that must be applied when determining whether an impairment substantially limits a major life activity, but in contrast to the current regulation, does not specify a substantially limits standard. This new approach is in keeping with the ADAAA's rejection of the current regulatory definition of “substantially limits” as “significantly restricted” as setting too high a standard, and with the statute's mandate to interpret “substantially limits” “consistently with the findings and purposes” of the ADAAA. See ADAAA sections 2 and 3. Paragraph (aa)(1) states that the term “substantially limits” must be construed broadly in favor of expansive coverage, to the maximum extent permitted by law, and is not meant to be a demanding standard requiring extensive analysis. An impairment need not “prevent” or “significantly or severely restrict” the individual from performing a major life activity to be considered substantially limiting. Rather, an impairment is substantially limiting if it substantially limits the ability to perform a major life activity “compared to most people in the general population.” In making this comparison, it may be useful, in appropriate cases, to consider the condition under which the individual performs the major life activity, the manner in which the individual performs the major life activity, and/or the duration of time it takes the individual to perform the major life activity. This comparison, though, usually will not require scientific, medical, or statistical analysis. So, for example, scientific, medical, or statistical analysis would not be needed to determine that an individual who, because of an impairment, could only stand for five minutes at a time is substantially limited in the major life activity of standing, as most people can stand for a significant longer period of time. In paragraph (aa)(2), the proposed regulation explains that whether an individual's impairment substantially limits a major life activity is not relevant to a determination of whether the individual is regarded as having a disability within the meaning of § 60-741.2(g)(1)(iii). The ADAAA's express prohibition of the consideration of “the ameliorative effects of mitigating measures” when determining whether an impairment “substantially limits a major life activity” is incorporated into paragraph (aa)(3). The exception to this prohibition—the ADAAA's mandate that the ameliorative effects of “ordinary eyeglasses or contact lenses shall be considered” when determining whether an impairment substantially limits a major life activity—is encompassed in proposed (aa)(3)(i). Proposed paragraph (aa)(3)(ii) addresses the non-ameliorative effects of mitigating measures, such as negative side effects from medication, and provides that such detrimental effects may be considered when assessing whether an individual's impairment is substantially limiting. In paragraph (aa)(4) the proposed regulation emphasizes that the focus of a “substantially limits” determination is not on the outcomes that an individual can achieve, but on whether a major life activity is substantially limited. Thus, for example, someone with a learning disability may be substantially limited in the major life activity of learning because of the additional time or effort required for the individual to read, write or learn, even though the individual has achieved a high level of academic success. The proposed regulation notes, in paragraph (aa)(5), that the principles set forth in this section are intended to provide for generous coverage of the law by means of an analytical framework that is predictable, consistent, and workable for all individuals and contractors. Accordingly, the individualized assessment of some types of impairments will, “in virtually all cases,” result in a factual determination that the individual has either a substantially limiting impairment (actual disability) or a history of a substantially limiting impairment (record of disability). With respect to such an impairment, the necessary individualized assessment of an individual should be particularly simple and straightforward. Proposed paragraph (aa)(5) includes several examples of such impairments, including deafness, blindness, epilepsy, cancer and HIV, along with the major life activity they most typically substantially limit. It should also be noted that, consistent with the revised EEOC ADAAA implementing regulations, the discussion of the major life activity of working that appears in the current regulation at § 60-741.2(q)(3) has been removed from the text of the proposed regulation. No other major life activity receives special attention in the regulation. Moreover, in light of the expanded definition of disability pursuant to the ADAAA, this major life activity will seldom be used, since impairments that substantially limit an individual's ability to work usually will substantially limit one or more other major life activities. In those rare cases where an individual needs to demonstrate a substantial limitation in working, the individual can continue to do so by showing that an impairment substantially limits his or her ability to perform a class of jobs, or a broad range of jobs in various classes, as compared to most people having comparable training, skills, and abilities. In addition to the revisions related to the definition of “disability,” the proposed rule makes revisions to several other definitions in the section. First, the proposed rule replaces the term “Deputy Assistant Secretary,” found currently at § 60-741.2(d), with “Director.” The current rule defines “Deputy Assistant Secretary” as “the Deputy Assistant Secretary for Federal Contract Compliance of the United States Department of Labor, or his or her designee.” As a result of the elimination of the Department's Employment Standards Administration in November 2009, the head of OFCCP now has the title of Director. See Secretary's Order 7-2009 (Nov. 6, 2009). Accordingly, the proposed rule reflects this change, which will be made throughout part 60-741. Lastly, in paragraph (m), the proposed rule adds a definition of “linkage agreement,” which is currently only described in the OFCCP Federal Contract Compliance Manual (FCCM). We propose adding this definition to the regulations for ease of reference and clarity to the contractor community. Section 60-741.3 Exceptions to the Definitions of “Disability” and “Qualified Individual” This section addresses exceptions to the key definitions of “disability” and “qualified individual.” The proposed rule modifies this section by changing the terms “individual with a disability” and “qualified individual with a disability” in the section title, as well as throughout the section, to “disability” and “qualified individual,” respectively, in accordance with the ADAAA. Section 60-741.4 Coverage and Waivers The proposed rule replaces the term “Deputy Assistant Secretary,” found in paragraphs (b)(1) and (b)(2) of this section, with the term “Director,” for the reasons set forth in the discussion of § 60-741.2. The proposal also removes the text of paragraph (a)(2) as the “contract work only” exception applied to “employment decisions and practices occurring before October 29, 1992” and has now expired. Paragraphs (3), (4) and (5) are, accordingly, renumbered as paragraphs (2), (3) and (4). Section 60-741.5 Equal Opportunity Clause Paragraph (a) contains the equal opportunity (EO) clause that must be included in all covered Government contracts and subcontracts. The proposed rule makes several substantive changes to the text of the mandated clause. In paragraph 1 of the EO clause, the phrase “to employ, advance in employment and otherwise treat qualified individuals with disabilities without discrimination based on their physical or mental disability” is modified to read “to employ and advance in employment individuals with disabilities, and to treat qualified individuals without discrimination on the basis of their physical or mental disability.” This formulation more closely mirrors the language and intent of the ADAAA. In paragraph 4, we propose two revisions. First, the proposed regulation revises the parenthetical at the end of the third sentence of this paragraph to replace the outdated suggestion of “hav[ing] the notice read to a visually disabled individual” as an accommodation with the suggestion to provide Braille, large print, or other versions that allow persons with disabilities to read the notice themselves. The proposed regulation also adds the following sentences to the end of proposed paragraph 4 of the EO clause: With respect to employees who do not work at a physical location of the contractor, a contractor will satisfy its posting obligations by posting such notices in an electronic format, provided that the contractor provides computers that can access the electronic posting to such employees, or the contractor has actual knowledge that such employees otherwise are able to access the electronically posted notices. Electronic notices for employees must be posted in a conspicuous location and format on the company's intranet or sent by electronic mail to employees. An electronic posting must be used by the contractor to notify job applicants of their rights if the contractor utilizes an electronic application process. Such electronic applicant notice must be conspicuously stored with, or as part of, the electronic application. The addition of these sentences is in response to the increased use of telecommuting and other work arrangements that do not include a physical office setting, as well as internet-based application processes in which applicants never enter a contractor's physical office. These revisions therefore would permit equivalent access to the required notices for these employees and applicants. For paragraph 5, which refers to the contractor's obligation to notify labor organizations or other workers' representatives about its obligations under section 503, we propose adding language clarifying that these obligations include non-discrimination, in addition to affirmative action. The current paragraph 5 does not specifically mention contractors' non-discrimination obligations. The proposed rule also adds a new paragraph 7 to the EO clause that requires the contractor to state and thereby affirm in solicitations and advertisements that it is an equal employment opportunity employer of individuals with disabilities protected under section 503. A comparable clause exists in the equal opportunity clause of the Executive Order 11246 regulations, see 41 CFR 60-1.4(a)(2), describing the protected classes under that Order. This proposed addition would ensure consistency between the regulations and aid in communicating the contractor's EEO responsibilities to job seekers. In addition to modifying the text of the EO clause, the proposed rule also amends paragraph (d) of this section to require that the entire equal opportunity clause be included verbatim in Federal contracts. OFCCP has found that contractors are not always aware of their EO clause responsibilities. Subcontractors, in particular, are frequently not informed of their EO responsibilities by the prime contractor and are unaware of their obligations until they are selected by OFCCP for a compliance evaluation. Requiring that the entire EO clause be included verbatim in all covered Federal contracts, including subcontracts, will help ensure that contractors (including subcontractors) read and understand the language in this clause. Finally, the proposed rule replaces the term “Deputy Assistant Secretary,” found in paragraphs (a)(4), (a)(6), and (f) of this section, with the term “Director,” for the reasons set forth in the discussion of § 60-741.2. Subpart B—Discrimination Prohibited Section 60-741.21 Prohibitions This section of the rule describes types of conduct that would violate the non-discrimination requirements of section 503. The proposed rule makes both minor and substantive changes. First, the section's introductory sentence is numbered as (a), with appropriate subsection renumbering so that the original paragraphs (a) through (i) become paragraphs (1) through (9). Next, paragraph (a)(1) of the proposed rule (§ 60-741.21(a) of the current rule) is revised to mirror the language in section 5 of the ADAAA by changing “discriminate against a qualified individual with a disability because of that individual's disability” to “discriminate against a qualified individual on the basis of disability.” The word “qualified” is deleted from the example in proposed paragraph (a)(2), which currently provides, in § 60-741.21(b), that “the contractor may not segregate employees into separate work areas or into separate lines of advancement on the basis of disability.” As modified, the example would more accurately reflect the prohibition's requirement that a contractor not “limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.” The proposed rule adds a new paragraph (iv) to paragraph (a)(6) that clarifies, as provided in the ADAAA, that a contractor is “not required” to provide reasonable accommodation to individuals who “satisfy only the `regarded as having such an impairment' prong of the definition of disability.” However, contractors are not prohibited from providing reasonable accommodation to individuals who are only “regarded as” having a disability, and may choose to do so if they wish. The new paragraph also includes a cross-reference to the definition of “regarded as” having a disability in proposed § 60-741.2(w). A new paragraph (ii) is added to proposed paragraph (a)(7) to incorporate the ADAAA's specific prohibition on the use of qualification standards, employment tests, or other selection criteria that are “based on an individual's uncorrected vision” unless the standard, test, or other selection criteria, as used by the contractor, “is shown to be job-related for the position in question and consistent with business necessity.” On its face, this provision protects not only individuals with disabilities, but broadly prohibits a contractor from using any “individual's” uncorrected vision as a qualification standard unless the contractor can demonstrate that doing so is justified by business necessity. Thus, the proposed regulation states that an individual need not be an individual with a disability in order to challenge a contractor's use of an uncorrected vision standard, so long as the individual has been adversely affected by the contractor's use of the challenged standard. The proposed rule also renumbers the current paragraph (ii) as paragraph (iii). A new sentence is added by the proposal to paragraph (a)(9), which currently provides that a contractor may not reduce the compensation provided to an individual with a disability because the individual receives a disability-related pension or benefit from another source. The new sentence clarifies that it would likewise be impermissible for a contractor to reduce the amount of compensation it provides to an individual with a disability because of the “actual or anticipated cost of a reasonable accommodation the individual needs or requests.” Finally, the proposed rule adds a new subsection (b) to incorporate the ADAAA's prohibition on claims of discrimination because of an individual's lack of disability. The ADAAA expressly prohibits claims that “an individual without a disability was subject to discrimination because of the lack of disability.” ADAAA at sec. 6(a)(1)(g). Section 60-741.22 Direct Threat Defense The proposed rule changes the reference in the parenthetical at the end of this section to “§ 60-741.2(e),” to reflect the new designation of the definition of “direct threat” in the restructured Definitions section, as discussed in § 60-741.2, above. Section 60-741.23 Medical Examinations and Inquiries The proposed rule revises paragraph (b)(4) by adding a sentence at the end of the paragraph clarifying that voluntary medical examinations and activities need not be job-related and consistent with business necessity. Paragraph (b)(5) is revised to delete the reference to paragraph (b)(4). This revision is intended to clarify that contractors may not use medical information obtained through voluntary medical examinations and activities as the basis for an employment decision such as a determination of fitness for duty. Lastly, the proposed rule revises paragraph (d)(1)(iii) to add “as amended” to the reference to the “Americans with Disabilities Act.” Section 60-741.25 Health Insurance, Life Insurance and Other Benefit Plans The proposed rule revises paragraph (d) by changing the current rule's two references to “qualified individual with a disability” to “individual with a disability.” This paragraph ensures that individuals will not be denied access to insurance or subjected to different terms or conditions of insurance on the basis of disability, if the disability does not impose increased risks. The ability to perform essential functions, as specified in the definition of “qualified individual” in § 60-741.2(s), is not relevant to these insurance considerations. Accordingly, the proposed rule would eliminate the term “qualified” from the paragraph's references to “individual with a disability.” Subpart C—Affirmative Action Program Section 60-741.40 General Purpose and Applicability of the Affirmative Action Program Requirement This section sets forth which contractors are required to maintain an affirmative action program, and the general timing requirements for its creation and submission to OFCCP. The proposed rule adds a new paragraph (a) that sets forth a statement of purpose that articulates OFCCP's general expectations for contractors' affirmative action programs. An affirmative action program must be “more than a paperwork exercise.” Rather, an affirmative action program is a management tool that includes measurable objectives, quantitative analyses, and internal auditing and reporting systems designed to measure the contractor's progress toward achieving equal employment opportunity for individuals with disabilities. In light of the addition of new paragraph (a), the existing paragraphs of this section have been renumbered and newly captioned in the proposed regulation. However, except for one minor clarification, the remainder of the text of § 60-741.40 is unchanged. We propose a minor clarification to paragraph (b)(3) of this section, which is paragraph (c) in the current rule, specifying that the affirmative action program shall be reviewed and updated annually “by the official designated by the contractor pursuant to § 60-741.44(i).” While this is the intent of the existing language, the proposal clarifies this intention and ensures that company officials who are knowledgeable about the contractor's affirmative action activities and obligations are reviewing the program. Section 60-741.41 Availability of Affirmative Action Program This section sets forth the manner by which contractors must make their affirmative action programs available to employees for inspection, including the location and hours during which the program may be obtained. The proposed regulation adds a sentence at the end of this section requiring that, in instances where contractors have employees who do not work at the contractors' physical establishment, the contractor shall inform these employees about the availability of the affirmative action program by means other than a posting at its establishment. This addition is proposed in light of the increased use of telework and other flexible workplace arrangements. Section 60-741.42 Invitation To Self-identify The proposed revisions to this section make significant, substantive changes to the contractor's responsibilities and the process through which applicants are invited to voluntarily self-identify as individuals with disabilities protected by section 503 during the hiring process. The proposed rule also adds a new requirement that contractors annually survey their employees, providing an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily self-identify as such in an anonymous manner, thereby allowing those who have subsequently become disabled or who did not wish to self-identify during the hiring process to be counted. These changes are proposed in order to collect important data pertaining to the participation of individuals with disabilities in the contractor's applicant pools and workforces. This will allow the contractor and OFCCP to better identify and monitor the contractor's hiring and selection practices with respect to individuals with disabilities. Data related to the pre-offer stage will be particularly helpful, as it will provide the contractor and OFCCP with valuable information regarding the number of individuals with disabilities who apply for jobs with contractors. This data will enable OFCCP and the contractor to assess the effectiveness of the contractor's recruitment efforts over time, and to refine and improve the contractor's recruitment strategies, where necessary. Proposed paragraph (a) of this section requires that the contractor invite all applicants to voluntarily self-identify as individuals with disabilities whenever the applicant applies for or is considered for employment. The invitation may be included with the application materials, but must be separable or detachable from the job application. The requirement to give applicants and employees the opportunity to self-identify is consistent with the ADA's restrictions on pre-employment disability-related inquiries. Although the ADA generally prohibits inquiries about disability prior to an offer of employment, it does not prohibit the collection of this information by a contractor in furtherance of its section 503 affirmative action obligation to employ and advance in employment qualified individuals with disabilities. The EEOC's regulations implementing the ADA state that the ADA “does not invalidate or limit the remedies, rights, and procedures of any Federal law * * * that provides greater or equal protection for the rights of individuals with disabilities” than does the ADA. 29 CFR 1630.1(c)(2). Noting that Section 503 is such a Federal law, EEOC states in the Appendix to its ADA implementing regulations that: “collecting information and inviting individuals to identify themselves as individuals with disabilities as required to satisfy the affirmative action requirements of section 503 of the Rehabilitation Act is not restricted by [the ADA or EEOC's implementing regulations].” Appendix to 29 CFR 1630.14(a). Proposed paragraph (a)(1) requires that the contractor invite applicants to self-identify “using the language and manner prescribed by the Director and published on the OFCCP Web site.” This will ensure consistency in all pre-offer invitations that are made, and will reassure applicants that the request is routine and executed pursuant to obligations created by OFCCP. It will also minimize any burden to contractors resulting from compliance with this responsibility, as they will not be required to develop suitable self-identification invitations individually. This, in turn, we believe, will facilitate contractor compliance with this proposed section. The inquiry that OFCCP will prescribe for contractors is a limited one and will be narrowly tailored. To minimize privacy concerns and the possibility of misuse of disability- related information, we are proposing that the required invitation would ask only for self-identification as to the existence of a “disability,” not asking about the general nature or type of disability the individual has, or the nature or severity of any limitations the individual has as a result of their disability. For example, OFCCP might prescribe that the contractor invite applicants to self-identify at the pre-offer stage using the following language: 1. This employer is a Government contractor or subcontractor subject to section 503 of the Rehabilitation Act of 1973 (section 503), as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. Regulations of the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) implementing section 503 require that Government contractors and subcontractors ask job applicants to indicate whether or not they have a disability. This information is requested in furtherance of our affirmative action obligations as a Government contractor subject to section 503, and to measure the effectiveness of the outreach, recruitment, training and development efforts we have undertaken pursuant to section 503. A person has a disability as defined in section 503 if that person either: (1) Has a physical or mental impairment which substantially limits one or more of that person's major life activities; or (2) has a history or record of such an impairment. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Major life activities also include major bodily functions such as functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions. Please indicate whether you have a disability as defined in section 503 by checking the box below. [ ] YES, I HAVE A DISABILITY 2. Your submission of this information is voluntary, and your refusal to provide it will not adversely affect our consideration of your application for employment, or subject you to adverse treatment of any kind. The information provided will be used only in ways that are consistent with section 503 of the Rehabilitation Act of 1973, as amended, and OFCCP's regulations. 3. This means that the information you provide will be used solely for affirmative action purposes, and/or by Government officials engaged in enforcement of the laws administered by OFCCP, or in the enforcement of other Federal EEO laws such as the Americans with Disabilities Act (ADA). 4. Section 503 also requires that Government contractors provide individuals with disabilities with reasonable accommodations that are needed to ensure equal employment opportunity. If you require an assistive device, sign language interpreter, or other assistance, change or modification to enable you to fully participate in the application process, please let us know. OFCCP invites public comment on this potential self-identification invitation text, including suggestions for specific alternate text. An alternative would be to harmonize the approach to collecting such data that is used by the Federal government for government employees. Specifically, it is anticipated that the EEOC will use an applicant flow form to collect disability-related data pre-employment and OPM uses SF256 to collect data once an applicant is hired. Such forms ask for sufficient information to determine if an individual has certain “severe” or targeted disabilities, or has any of various other types of disabilities. We request comment on these alternative approaches in the context of the need to strike a balance between more specific data and encouraging responses, and in consideration of the objectives of ensuring applicant comprehension of what is being asked, achieving, to the extent possible, comparability of data with other sources, and compliance with the ADAAA. Proposed paragraph (b) retains but modifies the current rule's requirement that contractors invite individuals, after an offer of employment is extended, but before the applicant begins his or her job duties, to voluntarily self-identify as an individual with a disability. We propose to retain this requirement, in addition to the new requirement to invite self-identification at the pre-offer stage, so that individuals with hidden disabilities who fear potential discrimination if their disability is revealed prior to receiving a job offer will, nevertheless, have the opportunity to provide this valuable data. Proposed paragraph (b)(1) requires that the contractor invite self-identification using the language and manner prescribed by the Director, as published on the OFCCP Web site. Again, we believe that this requirement will ensure consistency in all post-offer invitations that are made, minimize any burden to contractors of compliance with this responsibility and, consequently, facilitate such contractor compliance. Proposed paragraph (c) requires that, on an annual basis, the contractor shall anonymously survey all of its employees using the language and manner prescribed by the Director. Because baseline data are not available, at a minimum, it is important to provide all employees with an opportunity to self-identify. Annual surveying, however, would be meaningful because an employee may become disabled at any time or may feel more comfortable self-identifying once he or she has been employed for some time. Assuring that employee responses to the annual survey will be anonymous will likely increase the response rate, thereby providing that the most accurate data possible is available to assist contractors and OFCCP. Such data will assist contractors and OFCCP in evaluating and refining the contractor's affirmative action efforts. Surveying of employees may be accomplished by the contractor using a paper and/or electronic format, using the method(s) generally used by the contractor to communicate with employees regarding work-related matters. Proposed paragraph (d) emphasizes that the contractor is prohibited from compelling or coercing individuals to self-identify. While proposed paragraph (e) emphasizes that all information regarding self-identification as an individual with a disability shall be kept confidential and maintained in a data analysis file in accordance with § 60-741.23 of this part. Paragraph (e) also states that self-identification information must be provided to OFCCP, upon request, and that the information may only be used in accordance with this part. The proposed rule eliminates Appendix B of the current regulations. Appendix B provides a sample invitation to self-identify as an individual with a disability to assist the contractor in developing its own pre-employment self-identification invitation. Since the proposed regulation provides that OFCCP will prescribe the text that the contractor must use when inviting applicants and employees to voluntarily self-identify, there is no longer a need for a sample invitation. Finally, the proposed rule renumbers existing paragraphs (c) and (d) as paragraphs (f) and (g). Proposed paragraph (g) is revised slightly to clarify that the contractor is not relieved from liability for discrimination in violation of “section 503 or this part.” Section 60-741.44 Required Contents of Affirmative Action Programs This section details the elements that the contractor's affirmative action programs must contain. These elements include: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment-free workplace for individuals with disabilities; (6) external dissemination of the contractor's affirmative action policy, as well as outreach and recruitment efforts; (7) internal dissemination of the contractor's affirmative action policy to all of its employees; (8) development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training regarding the implementation of the affirmative action program for all personnel involved in employment-related activities, such as the conduct of recruitment, screening, selection, and discipline of employees. The first substantive proposed revisions to this section focus on the contractor's policy statement set forth in paragraph (a). The proposed regulation would revise the second sentence to clarify the contractor's duty to provide notices of employee rights and contractor obligations in a manner that is accessible and understandable to persons with disabilities. It would also revise the parenthetical at the end of the sentence, replacing the outdated suggestion of “hav[ing] the notice read to a visually disabled individual” as an accommodation with the suggestion to provide Braille, large print, or other versions that allow persons with disabilities to read the notice themselves. The proposed regulation would also revise the third sentence of paragraph (a) regarding the content of the policy statement, replacing the provision that the policy statement “should indicate the chief executive officer's attitude on the subject matter” with the requirement that the policy statement “shall indicate the chief executive officer's support for the affirmative action program.” This proposed change is made to clarify the intent to mandate the inclusion of a statement from the contractor's CEO in the affirmative action policy statement that will signal to the contractor's employees that support for the affirmative action program goes to the very top of the contractor's organization. In paragraph (b), the proposed rule requires that the contractor must review its personnel processes on at least an annual basis to ensure that its obligations are being met. The current rule requires that the contractor review these processes “periodically.” This standard is vague and subject to confusion. Indeed, OFCCP's efforts to enforce this requirement in recent years have been complicated by contractors' various subjective interpretations of what constitutes “periodic” review. This proposal sets forth a clear, measurable, and uniform standard that will be easily understood by the contractor and more easily enforced by OFCCP. In addition, the proposed rule requires that the contractor ensure that its use of information and communication technology is accessible to applicants and employees with disabilities. The contractor is required to review its technological processes annually, make any necessary changes and include a description of its review and any modifications made in its affirmative action program. Further, the proposed revisions mandate certain specific steps that the contractor must take, at a minimum, in the review of its personnel processes. These specific steps are those currently set forth in Appendix C to the regulation. Appendix C currently suggests that the contractor: (1) Identify the vacancies and training programs for which applicants and employees with disabilities are considered; (2) provide a statement of reasons explaining the circumstances for rejecting individuals with disabilities for vacancies and training programs and a description of considered accommodations; and (3) describe the nature and type of accommodations for individuals with disabilities who were selected for hire, promotion, or training programs. Previously, these steps were recommended as an appropriate set of procedures. OFCCP's enforcement efforts have found that many contractors do not follow these recommended steps, and that the documentation contractors maintain of the steps they do take are often not conducive to a meaningful review by the contractor or OFCCP, particularly in the event of employee/applicant complaints. Such a meaningful review has always been the goal of the requirements in paragraph (b), as it ensures that the contractor remains aware of and actively engages in its overall affirmative action obligations toward individuals with disabilities. The proactive approach set forth in the current Appendix C would provide greater transparency between the contractor, its applicants/employees, and OFCCP as to the reasons for the contractor's personnel actions. Requiring that contractors record the specific reasons for their personnel actions and make them available to an employee or applicant upon request would also aid them in clearly explaining their personnel actions to applicants and employees, which could subsequently reduce the number of complaints filed against contractors. Thus, we propose requiring the contractor to take these steps outlined currently in Appendix C (which are incorporated into paragraph (b) in the proposed rule), and encourage the contractor to undertake any additional appropriate procedures to satisfy its affirmative action obligations. The proposed paragraph (c) clarifies that all physical and mental job qualification standards must be reviewed and updated, as necessary, on an annual basis. As with paragraph (b), the current rule's requirement that the contractor review these standards “periodically” is vague and subject to confusion. OFCCP has concluded that contractors inconsistently interpret what constitutes “periodic” review. The proposed change provides a clear, measurable, and uniform standard. The proposed paragraph (c)(1) adds language requiring the contractor to document the results of its annual review of physical and mental job qualification standards. The regulation has long required this review to ensure that job qualification standards that tend to screen out individuals with disabilities are job-related and consistent with business necessity. The proposed change would merely require that the contractor document the review it has already been required to perform. It is anticipated that this documentation will list the physical and mental job qualifications for the job openings during a given AAP year- which should already be available from the contractor's job postings—and provide an explanation as to why each requirement is related to the job to which it corresponds. Documenting this review will ensure that the contractor critically analyzes its job requirements and proactively eliminates those that are not job-related. It will also allow OFCCP to conduct audits and investigations in a more thorough and efficient manner. Paragraph (c)(3) currently provides that, as a defense to a claim by an individual that certain mental or physical qualifications are not job-related and consistent with business necessity, the contractor may assert that the individual poses a “direct threat” to the health or safety of the individual or others in the workplace. The definition of “direct threat” in these regulations spells out the criteria that the contractor must consider in determining whether a “direct threat” exists. The proposed paragraph (c)(3) would require the contractor to contemporaneously create a written statement of reasons supporting its belief that a direct threat exists, tracking the criteria set forth in the “direct threat” definition in these regulations, and to maintain the written statement as set forth in the recordkeeping requirement in § 60-741.80. Once again, this is to ensure that the contractor's “direct threat” analysis—which is already required under these regulations—is well-reasoned and available for review by OFCCP. Finally, for both the proposed documentation requirements in paragraphs (c)(1) and (c)(3), the proposed regulation requires that the contractor treat the created documents as confidential medical records in accordance with § 60-741.23.(d). Perhaps the most significant substantive changes in the proposed rule address the scope of the contractor's recruitment efforts and the dissemination of its affirmative action policies described in paragraphs (f) and (g) of this section. While these two paragraphs generally would require that the contractor engage in recruitment and disseminate its policies, the current rule recommends rather than requires the specific methods for carrying out these obligations. The current paragraph (f) suggests a number of outreach and recruitment efforts that the contractor can undertake in order to increase the employment opportunities for individuals with disabilities. See 41 CFR 60-741.44(f)(1). The proposed paragraph (f) would require that the contractor engage in a minimum number of outreach and recruitment efforts (as described in proposed paragraph (f)(1)). The proposed paragraph (f) also includes a list of additional outreach and recruitment efforts that are suggested (proposed paragraph (f)(2)), a new requirement that the contractor conduct self-assessments of their outreach and recruitment efforts (proposed paragraph (f)(3)), and a clarification of the contractor's recordkeeping obligation with regard to its outreach and recruitment efforts (proposed paragraph (f)(4)). Proposed paragraph (f)(1) requires the contractor to promptly list all of its employment opportunities, with limited exceptions, with the nearest Employment One-Stop Career Center. It also requires the contractor to engage in a minimum of three additional outreach and recruitment efforts. First, the contractor is required to enter into linkage agreements and establish ongoing relationships with the local State Vocational Rehabilitation Agency office nearest the contractor's establishment, or a local organization listed in the Social Security Administration's Ticket to Work Employment Network Directory. Second, the contractor is required to enter into a linkage agreement with at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities. The listed organizations and agencies include: Entities, such as the Employer Assistance and Resource Network (EARN), that are funded by the Department of Labor to provide recruitment or training services for individuals with disabilities. EARN provides employers with free consulting services and resources to support the recruitment and hiring of individuals with disabilities; the nearest Employment One-Stop Career Center, established under the Workforce Investment Act to provide a full range of job seeker assistance under one roof; the nearest Department of Veterans Affairs Regional Offices, which, in part, provide services to disabled veterans; local disability groups, organizations or Centers for Independent Living that provide services to individuals with disabilities; placement or career offices of educational institutions; and private recruitment sources, such as professional organizations or employment placement services. Third, proposed paragraph (f)(1) also requires that the contractor consult the Employer Resources section of the National Resource Directory, a partnership and online collaboration among the Departments of Labor, Defense, and Veterans Affairs. New contractors and subcontractors often inquire about how they can find qualified individuals with disabilities to comply with their AAP obligations. The National Resource Directory is a leading government Web site that provides prospective employers of disabled veterans access to veterans' service organizations, existing job banks, and other resources at the national, state and local levels. Finally, proposed paragraph (f)(1) requires that the contractor send written notification of company policy related to affirmative action efforts to its subcontractors, including subcontracting vendors and suppliers in order to request appropriate action on their parts and to publicize the contractor's commitment to affirmative action on behalf of individuals with disabilities. While the proposed regulations would not require that the contractor send written notification to vendors and suppliers who are not subcontractors as defined by these regulations, such disclosure remains an encouraged activity, just as it is under the current regulation. See 41 CFR 60-741.44(f)(6). We believe that the required linkage agreements we propose in paragraph (f)(1) will greatly facilitate the contractor's efforts to attract qualified applicants with disabilities. We encourage comments from stakeholders regarding this proposal, particularly if stakeholders have information on recruitment sources not included in this proposal that might increase employment of individuals with disabilities. In paragraph (f)(2) of the proposed rule, we list a number of outreach and recruitment efforts that are suggested measures for increasing employment opportunities for individuals with disabilities. The efforts listed in proposed paragraph (f)(2) are very similar to the efforts that are suggested in paragraphs (f)(1) through (f)(7) of the current rule. This includes: (1) Holding briefing sessions with representatives from recruiting resources; (2) incorporating efforts to locate individuals with disabilities into recruitment activities at educational institutions; (3) participating in work-study programs for students, trainees, or interns with disabilities; (4) making available individuals with disabilities for participation in career days, youth motivation programs, and related activities in their communities; (5) any other positive steps the contractor deems necessary to attract qualified individuals with disabilities, including contacts with any local disability-related organizations; and (6) considering applicants who are known individuals with disabilities for all available positions when the position applied for is unavailable. Paragraph (f)(3) of the proposed rule requires the contractor, on an annual basis, to review the outreach and recruitment efforts it has undertaken over the previous twelve months and evaluate their effectiveness in identifying and recruiting qualified individuals with disabilities, and document its review. Contractors that do not proactively monitor their outreach and recruitment efforts often lose opportunities to consider and hire qualified individuals with disabilities. This requirement will allow the contractor to look at its measurable accomplishments and reconsider unproductive methods. We believe requiring this review on an annual basis strikes the proper balance by ensuring that adjustments to recruitment efforts are made on a timely basis if needed, while also ensuring that the contractor has enough data on existing recruitment efforts to be able to determine if adjustments need to be made. We recognize that the “effectiveness” of an outreach or recruitment effort is not easily defined, and may include a number of factors that are unique to a particular contractor establishment. Generally speaking, a review of the efficacy of a contractor's efforts should include the number of candidates with disabilities that each effort identifies. Recognizing that other unique and intangible characteristics may contribute to the assessment of the “effectiveness” of a given effort, the proposed regulation allows the contractor some flexibility in making this assessment. However, the proposed regulation would require that the contractor consider the numbers of individuals with disabilities who were referrals, applicants, and hires for the current year and two previous years as criteria in evaluating its efforts, and document all other criteria that it uses to assess the effectiveness of its efforts, so that OFCCP compliance officers are able to understand clearly the rationale behind the contractor's self-assessment. The contractor's conclusion as to the effectiveness of its outreach must be reasonable as determined by OFCCP in light of these regulations. The primary indicator of effectiveness is whether qualified individuals with disabilities have been hired. Further, should the contractor determine that its efforts were not effective, the proposed rule requires the contractor to identify and implement one or more of the alternative efforts listed in proposed paragraphs (f)(1) and (f)(2) in order to fulfill its obligations. The general purpose of this self-assessment is to ensure that the contractor thinks critically about its recruitment and outreach efforts, and modifies its efforts as needed to ensure that its obligations are being met. Paragraph (f)(4) of the proposed rule requires that the contractor document its linkage agreements and the activities it undertakes in order to comply with paragraph (f), and retain these documents for a period of five (5) years. This requirement will enable the contractor and OFCCP to more effectively review recruitment and outreach efforts undertaken to ensure that the affirmative action obligations of paragraph (f) are satisfied. Paragraph (g) of this section requires that the contractor develop internal procedures to communicate to its employees its obligation to engage in affirmative action efforts. The current paragraph (g)(2) contains several suggested means by which the contractor may accomplish this. The proposed rule mandates that the contractor include its affirmative action policy in its policy manual and discuss the policy in orientation and management training programs. In addition, if the contractor is party to a collective bargaining agreement, then the proposed rule requires the contractor to meet with union officials and representatives to inform them about the policy and seek their cooperation. A newly proposed paragraph (g)(3) requires the contractor to document the activities it undertakes in order to comply with paragraph (g), and retain these documents as records subject to the recordkeeping requirements of § 60-741.80. This will allow for a more effective review by the contractor and OFCCP to ensure that the affirmative action obligations of paragraph (g) are being met. Other suggested elements would remain in the proposed rule at newly created paragraph (g)(4) as suggested additional dissemination efforts the contractor can make. This includes suggesting that the contractor use company newspapers, magazines, annual reports, handbooks, or other media to publicize its affirmative action obligations and feature individuals with disabilities and their accomplishments. See current regulation at 41 CFR 60-741.44(g)(2)(vii) and (viii). The proposed rule also suggests that the contractor discuss its affirmative action policies at meetings with employees and/or supervisors and managers where personnel practices or equal employment opportunity matters are discussed. Paragraph (h) of this section details the contractor's responsibilities in designing and implementing an audit and reporting system for its affirmative action program, including the specific computations and comparisons that are part of the audit. The proposed regulations add a new paragraph (h)(1)(vi) requiring the contractor to document the actions taken to comply with paragraphs (h)(1)(i)-(v), and maintain such documents as records subject to the recordkeeping requirements of § 60-741.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met. The only substantive proposed change in paragraph (i) (Responsibility for implementation) requires that the identity of the officials responsible for a contractor's affirmative action activities must appear on all internal and external communications regarding the contractor's affirmative action program. In the current regulation, this disclosure is only suggested. Requiring this disclosure will increase transparency, making it clear to applicants, employees, OFCCP, and other interested parties, which individual(s) is responsible for the implementation of the contractor's affirmative action program. Paragraph (j) of the current rule requires that the contractor train those employees who implement the personnel decisions pursuant to its affirmative action program. The proposed regulation specifies the topics that must be included in the contractor's training: The business and societal benefits of employing individuals with disabilities; appropriate sensitivity toward recruits, applicants, and employees with disabilities; and the legal responsibilities of the contractor and its agents regarding individuals with disabilities, including the obligation to provide reasonable accommodation to qualified individuals with disabilities. Training employees on these issues will facilitate a greater understanding of the purpose of the affirmative action plan among the contractor's decision makers, and will enhance the visibility and importance of affirmative action to the recruitment, hiring, and advancement of individuals with disabilities. 7 The proposed regulation also requires that the contractor record which of its personnel receive this training, the dates they receive it, and the person(s) who administers the training, and maintain these records, along with all written or electronic training materials used, in accordance with the recordkeeping requirements of § 60-741.80. Again, this will allow for a more effective review by the contractor and OFCCP to ensure the affirmative action obligations of this paragraph are being met. 7 Contractors needing assistance in developing their training will find resources available on the OFCCP Web site and/or may request free technical assistance from the nearest OFCCP field office. In addition, the Department of Labor's Office of Disability Employment Policy (ODEP) provides extensive resources and technical assistance for employers on its Web site, http://www.dol.gov/odep. The proposed regulation adds a new paragraph (k) that requires the contractor to maintain several quantitative measurements and comparisons regarding individuals with disabilities who have been referred by state employment services, have applied for positions with the contractor, and/or have been hired by the contractor. The impetus behind this new section is that, as stated in the discussion of § 60-741.44(a), no structured data regarding the number of individuals with disabilities who are referred for, or apply for jobs with Federal contractors is currently maintained. This absence of data makes it nearly impossible for the contractor and OFCCP to perform even rudimentary evaluations of the availability of individuals with disabilities in the workforce, or to make any quantitative assessments of how effective contractor outreach and recruitment efforts have been in attracting candidates with disabilities. The proposed regulations provide for the collection of referral data as well as applicant and hire data (see § 60-741.42(a)). Accordingly, proposed paragraph (k) requires that the contractor document and update annually the following calculations: (1) For referral data, the total number of referrals from applicable employment service delivery systems and from groups and organizations with which the contractor has a linkage agreement; (2) for applicant data, the total number of applicants for employment, the number of applicants who are known to be individuals with disabilities, and the “applicant ratio” of known applicants with disabilities to total applicants; (3) for hiring data, the total number of job openings, the number of jobs filled, the number of known individuals with disabilities hired, and the “hiring ratio” of hires with known disabilities to total hires; and (4) the total number of job openings, the number of jobs that are filled, and the “job fill ratio” of job openings to job openings filled. These basic measurements will provide the contractor and OFCCP with important information that does not currently exist. This will aid the contractor in evaluating and tailoring its recruitment and other affirmative action strategies. We seek comment on the amount of time it will take contractors to develop the computations and comparisons required in this proposed paragraph, however, OFCCP does not think these requirements will present an onerous burden to contractors. Although the measurements specific to disability are new requirements of this proposed regulation, the non-disability-specific data, such as the total number of applicants, the total number of job openings, and the number of jobs filled is information that contractors are already required to maintain pursuant to Executive Order 11246 and Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. OFCCP is also considering adding a reporting requirement, and invites public comment on this option. Under this proposal, contractors would be required to provide OFCCP with a report containing the measurements and computations required by proposed paragraph (k), and including the percentage of applicants, new hires, and total workforce for each EEO-1 category. The report would be provided to OFCCP on an annual basis, regardless of whether the contractor has been selected for a compliance evaluation. Section 60-741.45 Reasonable Accommodation Procedures Current § 60-741.45 entitled “Sheltered workshops” has been revised and moved to § 60-741.48, and is discussed later in the preamble. This proposed section is new. It requires the contractor to develop and implement written procedures for processing requests for reasonable accommodation. We believe that the development and implementation of written procedures for processing requests for reasonable accommodation will assist the contractor in consistently satisfying its reasonable accommodation obligation by serving as a “blueprint” for the prompt handling of reasonable accommodation requests. The maintenance and dissemination of such procedures will also ensure that applicants and employees know how to request a reasonable accommodation, who is responsible for handling such a request, and the maximum amount of time within which the contractor must complete the processing of such a request. Proposed paragraph (a) requires that any contractor that is obligated to develop an affirmative action program also develop and implement written reasonable accommodation procedures. It also encourages any contractor that is not required to develop an affirmative action program to consider adopting and implementing written reasonable accommodation procedures to assist it in meeting its nondiscrimination obligations under section 503. Proposed paragraph (a)(1) requires that the reasonable accommodation procedures be included in the section 503 affirmative action program and be developed and implemented in conformance with section 503 and its implementing regulations in this part. Proposed paragraph (a)(2) states that the minimum elements that the contractor shall include or address in its reasonable accommodation procedures are described in paragraph (d). The purpose of including these elements is to ensure that applicants and employees know how to request a reasonable accommodation and the steps that will be taken by the contractor to process requests for accommodation; to ensure that supervisors and managers know what to do should they receive a request; and to ensure that that all accommodation requests are processed swiftly and within established timeframes. Proposed paragraph (b) requires the contractor to designate an official to be responsible for the implementation of the reasonable accommodation procedures. This official may be the same official responsible for the implementation of the contractor's affirmative action program, and shall have the authority, resources, support, and access to top management necessary to effectively implement the reasonable accommodation procedures. Proposed paragraph (c) requires the contractor to disseminate its reasonable accommodation procedures to all employees. Notice of the reasonable accommodation procedures may be provided by inclusion in an employee handbook that is distributed to all employees and/or by email or electronic posting on a company Web page where work-related notices are ordinarily posted. Employees who work off-site shall be provided with notice of the reasonable accommodation procedures in the same manner that notice of other work-related matters is ordinarily provided to such employees. Proposed paragraph (c)(2) requires the contractor to inform all applicants of the reasonable accommodation procedures regarding the application process. Reasonable accommodation procedures regarding the application process is further addressed in proposed paragraph (d)(2)(iii). Proposed paragraph (d) acknowledges that the specific requirements of a contractor's reasonable accommodation procedures may vary depending upon the size, structure, and resources of the contractor. However, paragraph (d) lists specific elements that shall be included in every contractor's reasonable accommodation procedures. These elements are: (1) Responsible official contact information. The proposed rule requires inclusion of the name, title/office, and contact information of the official designated as responsible for implementation of the reasonable accommodation procedures pursuant to paragraph (b), and notes that this information should be updated when changes occur. (2) Requests for reasonable accommodation. The proposed rule requires that the contractor's reasonable accommodation procedures state that a request for accommodation may be either oral or written, and may be made by an applicant, employee, or a third party on his or her behalf. Proposed paragraph (d)(2)(i) requires that the contractor's reasonable accommodation procedures address instances of a recurring need for an accommodation, such as a sign language interpreter for a hearing impaired employee, and provides that an individual needing such an accommodation will not be required to repeatedly submit or renew his or her request for accommodation each time it is needed. In the absence of a reasonable belief that the individual's recurring need for the accommodation has changed, requiring the repeated submission of a request for the same accommodation could be considered harassment on the basis of disability in violation of this part. Proposed paragraph (d)(2)(ii) requires the contractor to identify to whom a request for reasonable accommodation may be submitted. At a minimum, an employee in need of accommodation must be able to submit a request to any supervisor or management official in his or her chain of command, or to the official responsible for the implementation of the contractor's reasonable accommodation procedures. Proposed paragraph (d)(2)(iii) requires that the contractor's procedures ensure that all applicants, including those using the contractor's online or other electronic application system, are made aware of the contractor's reasonable accommodation obligation, and are invited to request reasonable accommodation to enable their full participation in the application process. The contractor's procedures also must provide all applicants with contact information for contractor staff able to assist the applicant, or his or her representative, in making a request for accommodation. With regard to applicants, the contractor's procedures must provide that reasonable accommodation requests are processed expeditiously, using timeframes tailored to the application process. (3) Written confirmation of receipt of a request. The proposed rule requires that written confirmation of the contractor's receipt of an accommodation request be provided to each accommodation requester, by letter or email. The written confirmation shall include the date the accommodation request was received and be signed by the authorized decision maker or his or her designee. (4) Timeframe for processing requests of reasonable accommodations. The proposed rule requires that the contractor's procedures indicate that requests for accommodation will be processed as expeditiously as possible. The rule permits the contractor to set its own timeframes for completing the processing of requests, within certain parameters. Specifically, the proposed rule requires that the timeframe for processing requests shall not be longer than 5 to 10 business days if no supporting medical documentation is needed. If medical documentation is needed, or if special equipment must be ordered, the timeframe, excepting extenuating circumstances, shall not exceed 30 calendar days. Proposed paragraph (d)(4)(i) requires the contractor to provide written notice to the requester when the processing of their accommodation request will not be completed within the established timeframes. The notice shall include the reason(s) for any delay, project a date for processing completion, and be duly signed and dated. (5) Description of process. The proposed rule requires that the reasonable accommodation procedures contain a description of the steps the contractor will take when processing a reasonable accommodation request, including the process by which the contractor renders a final determination on the accommodation request. If specific information must be provided to the contractor in order to obtain a reasonable accommodation, the description shall identify this information. For example, the contractor's procedures may require that the contractor be informed of the existence of a disability, the disability-related limitation(s) or workplace barrier(s) that needs to be accommodated, and, if known, the desired reasonable accommodation before providing a reasonable accommodation. The description shall also indicate that the contractor may initiate an interactive process with the accommodation requester if the need for accommodation is not obvious, or if additional information is needed in order to provide the accommodation. (6) Supporting medical documentation. The proposed rule requires that the contractor's procedures provide an explanation of the circumstances under which medical documentation may be requested and reviewed before a reasonable accommodation is provided. Paragraph (d)(6)(i) requires that the procedures explain that any request for medical documentation must be limited to documentation of the individual's disability and functional limitations for which reasonable accommodation is sought. Proposed paragraph (d)(6)(ii) requires that the procedures contain a statement that submission of medical documentation is not required when the disability for which a reasonable accommodation is sought is known or readily observable and the need for accommodation is known or obvious. (7) Denial of reasonable accommodation. The proposed rule requires that any denial or refusal to provide a reasonable accommodation must be provided by the contractor to the accommodation requester in writing. The written denial shall include the basis for the denial and a statement of the requester's right to file a complaint with OFCCP. The written denial shall be signed by the authorized decision maker or his/her designee and dated. The rule further states that if the contractor offers an internal appeal or reconsideration process, the written denial shall inform the requester about this process, and include a clear statement that participation in the internal process does not toll the time for filing a complaint with OFCCP or EEOC. (8) Confidentiality. The proposed rule requires that the contractor's reasonable accommodation procedures indicate that requests for reasonable accommodation, related documentation (such as request confirmation receipts, requests for additional information, and decisions regarding accommodation requests), and any medical or disability-related information provided to the contractor will be treated as a confidential medical record and maintained in a separate medical file, in accordance with section 503. Proposed paragraph (e) contains a training requirement. The effectiveness of the contractor's reasonable accommodation procedures is dependent upon the contractor's supervisors and managers being trained in their implementation. Contractors would be required to train all supervisors and managers on the accommodation procedures on an annual basis and upon significant changes in policy or procedure. The rule notes that the required training may be provided in conjunction with other required equal employment opportunity or affirmative action training. Section 60-741.46 Utilization Goals This section of the proposed rule is new and proposes to establish a single, national utilization goal for individuals with disabilities. 8 A utilization goal is neither a hiring quota, nor a restrictive hiring ceiling. Rather, it is an equal employment opportunity objective, and an important tool for measuring the contractor's progress toward equal employment opportunity and assessing where barriers to equal employment opportunity remain. 8 This provision, as well as all other provisions in subpart C of this part, applies only to those contractors that have 50 or more employees and a contract of $50,000 or more. See 60-741.40(b). The Need for a Goal Before considering the appropriate methodology for such a goal, OFCCP first considered the option of not having any goal. The current section 503 regulations require affirmative action but lack a goal. This has been the case since their inception in the 1970's. As discussed, below, the intervening years have resulted in little improvement in the unemployment and workforce participation rates of individuals with disabilities. In light of the long-term and intractable nature of the substantial employment disparity between those with and without disabilities, we concluded that process requirements, without a quantifiable means of assessing whether progress toward equal employment opportunity is occurring, are insufficient. We concluded, therefore, that the establishment of a utilization goal for individuals with disabilities is warranted. Though aspirational, establishing a goal would create more accountability within the contractor's organization and might be key to ensuring that the goal is achieved. Little Government data measuring the unemployment and workforce participation rates of individuals with disabilities exists prior to the 2000 Census. However, illustrative data can be found in the 1989 legislative history of the Americans with Disabilities Act. Explaining the need for inclusion of employment provisions in the then-pending legislation, the Senate reported that individuals with disabilities “experience staggering levels of unemployment.” Senate Committee on Labor and Human Resources, S. Rep. No. 101-116, 101st Cong, 1st Sess. (1989) at 9. More specifically, the Senate reported that two-thirds of all disabled Americans of working age were not working at all, even though a large majority of those not working (66%) wanted to work. Id. (citing a poll by the Lou Harris company). Today, more than twenty years later, there continues to be a substantial discrepancy between the workforce participation and unemployment rates of working age 9 individuals with and without disabilities. According to the U.S. Department of Labor's Bureau of Labor Statistics (BLS), just 21.8% of working age individuals with certain functional disabilities were in the labor force in 2010, compared with 70.1% of working age individuals without such disabilities. This same data also indicates that the unemployment rate for those with these disabilities was 14.8%, compared with a 9.4% unemployment rate for those without a disability. 9 The working age population consists of people between the ages of 16 and 64, excluding those in the military and people who are in institutions. Similarly, according to the U.S. Census Bureau's 2009 American Community Survey (the most recent year for which data are available), just 23% of individuals with certain functional disabilities age 16 and over 10 were employed, compared to 65.8% of those 16 and over without such disabilities. The survey also reported that nearly three-quarters of individuals with these disabilities (72.2%) age 16 and over were not in the labor force, compared with just 27.3% of those age 16 and over without such disabilities. 10 See 2009 American Community Survey, Table S1811, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status (U.S. Census Bureau). The establishment of a utilization goal for individuals with disabilities is not, by itself, a “cure” for this longstanding problem. We believe, however, that the goal proposed in this section is a vital element that, in conjunction with other requirements of this part, will enable contractors and OFCCP to assess the effectiveness of specific affirmative action efforts, and to identify and address specific workplace barriers to employment. Methodology for Setting the Utilization Goal The utilization goal established in this section is derived, in part from the disability data collected as part of the American Community Survey. The American Community Survey (ACS) was designed to replace the census “long form” of the decennial census, last sent out to U.S. households in 2000, to gather information regarding the demographic, socioeconomic and housing characteristics of the nation. Whereas the Census Bureau now only administers a very short survey for the decennial census, a more detailed view of the social and demographic characteristics of the population is provided by the ACS, which collects data from a sample of 3 million residents on a continuing basis. 11 11 A national sample of approximately 3 million addresses nationwide receives the ACS each year, with a portion of this total receiving the survey each month. For more information on the American Community Service visit the Census Bureau's ACS Web page at www.census.gov/acs. The ACS was first launched in 2005, after a decade of testing and development by the Census Bureau. Refinement of the questions designed to characterize disability status has been continuous, with the current set of disability-related questions incorporated into the ACS in 2008. Taken together, the six dichotomous (“yes” or “no”) disability-related questions 12 comprise the function-based definition of “disability,” used in the ACS and by most of the other major surveys administered by the Federal Statistical System. 12 The six questions are: Is this person deaf or does he/she have serious difficulty hearing? Is this person blind or does he/she have serious difficulty seeing even when wearing glasses? Because of a physical, mental, or emotional condition, does this person have serious difficulty concentrating, remembering, or making decisions? Does this person have serious difficulty walking or climbing stairs? Does this person have difficulty dressing or bathing? Because of a physical, mental, or emotional condition, does this person have difficulty doing errands alone such as visiting a doctor's office or shopping? 2009 American Community Survey, Questions 17-19. The definition of disability used by the ACS, however, is clearly not as broad as that of the Rehabilitation Act and the ADA. For example, since the ACS questions do not say that one should respond without considering mitigating measures (e.g., medication or aids), some individuals with disabilities that are well-controlled by medication (e.g., depression or epilepsy) or in remission might respond to the ACS in a way that leads them not to be coded as “disabled.” Likewise, since the ACS questions do not include major bodily functions, an individual who has a disability that substantially limits a major bodily function such as HIV, cancer, or diabetes but does not limit an activity such as hearing, seeing or walking, might respond that he or she does not have a disability on the ACS. Despite its limitations, the ACS is the best source of nationwide disability data available today, and, thus, an appropriate starting place for developing a utilization goal. In developing the utilization goal proposed in this section, OFCCP considered two general approaches. The first approach OFCCP considered aimed to mirror precisely the goals framework for minorities and women that is used by supply and service (non-construction) contractors subject to Executive Order (EO) 11246. Accordingly, it would require individual contractor establishments to set their own goals for each of their job groups 13 based on the percentage of individuals with disabilities available in the particular recruitment area from which the contractor sought to fill the jobs in the job group. Where there are fewer than expected incumbent disabled employees in a job group given their availability percentage, a contractor would be required to establish a goal for the specific job group that is at least equal to the availability percentage in the job group's recruitment area. See 41 CFR 60-2.12—60-2.16 for a more detailed description of the EO 11246 goals provisions for supply and service contractors. 13 Job groups usually contain one to three jobs each. However, contractors with fewer than 150 employees may use the broader EEO-1job categories in place of smaller job groups. After careful consideration of the available data and consultation with the U.S. Census Bureau regarding the level of geographic aggregation at which the data could be analyzed, OFCCP became concerned that replicating the supply and service goals framework might not be the most effective approach for the establishment of goals for individuals with disabilities. Supply and service contractors establishing goals for minorities and women typically use the Special EEO Tabulation of census data to assist them. The results of the 2000 decennial census can be tabulated for 472 occupation categories and thousands of geographic areas. However, the ACS disability data, which is based on sampling, cannot be broken down into as many job titles, or as many geographic areas as the data for race and gender based on the decennial census. That is, the confidence intervals on such estimates are large and the estimates are not statistically significant when broken down to the degree of detail required by the supply and service goals framework. Contractors therefore would not be able to use the job groups established under EO 11246 to establish goals for individuals with disabilities, and would often be unable to utilize the geographic recruitment areas established under the Executive Order when determining the availability of individuals with the disabilities (as queried in the ACS). In addition, the Executive Order supply and service goals framework does not include consideration of discouraged workers in computing availability, a factor particularly important in the context of disability, as discussed below. In light of the difficulties replicating the supply and service goals approach in the context of disability, OFCCP considered other options. For a variety of reasons, OFCCP believes that the establishment of a single, national goal 14 for all jobs in all geographic areas is a more viable approach to the establishment of a goal for individuals with disabilities. This approach would also allow for the continued use of the contractor's EO 11246 job groups, and require that those job groups be used to measure the representation of individuals with disabilities in the contractor's workforce. 14 Disability rates by State for the civilian labor force has a mean of 6.32, median of 6.20, and standard deviation of 1.29. There are only two states, Alaska (9.0%) and Oklahoma (9.5%) that are outside the 95% confidence interval of this otherwise almost uniform distribution. This general uniformity is consistent with the use of a single national goal. See Table 15 in Affirmative Action for People with Disabilities—Volume I: Data Sources and Models, Economic Systems, Inc. (April 30, 2010) at 55. OFCCP proposes to set a goal for individuals with disabilities, based on the most recent 2009 ACS disability data for the “civilian labor force” and the “civilian population,” 15 first averaged by EEO-1 job category, and then averaged across EEO-1 category totals. Specifically, we use the mean across these EEO-1 groups (5.7%) as a starting point for deriving a range of values upon which we will take comment. 5.7% is OFCCP's estimate of the percentage of the civilian labor force that has a disability as defined by the ACS. However, OFCCP acknowledges that this number does not encompass all individuals with disabilities as defined under the broader definition in section 503 and the ADAAA; therefore, 5.7% should not be construed as an affirmative action goal for individuals with disabilities under these authorities, nor to convey a false sense of precision. Even if the 5.7% represented a complete availability figure for all individuals with disabilities as defined under the ADAAA, we are concerned that such an availability figure does not take into account discouraged workers, or the effects of historical discrimination against individuals with disabilities that has suppressed the representation of such individuals in the workforce. Discouraged workers are those individuals who are not now seeking employment, but who might do so in the absence of discrimination or other employment barriers. There are undoubtedly some individuals with disabilities who, for a variety of reasons, would not seek employment even in the absence of employment barriers. However, given the acute disparity in the workforce participation rates of those with and without disabilities, it is reasonable to assume that at least a portion of that gap is due to a lack of equal employment opportunity. 15 The civilian labor force is the sum of people who are employed and those who are unemployed and looking for work. The civilian population is the civilian labor force plus civilians who are not in the labor force, excluding those in institutions. One way one might go about estimating the size of the discouraged worker effect would be to compare the percent of the civilian population with a disability (per the ACS definition) who identified as having an occupation to the percent of the civilian labor force with a disability who identified as having an occupation. Though not currently seeking employment, it might be reasonable to believe that those in the civilian population who identify as having an occupation, but who are currently not in the labor force, remained interested in working should job opportunities become available. Using the 2009 ACS EEO-1 category data, the result of this comparison is 1.7%. 16 16 This number was derived from an updated 2009 version of Table 24 in Affirmative Action for People with Disabilities—Volume I: Data Sources and Models, Economic Systems, Inc. (April 30, 2010) at 64. The original table uses ACS data from 2008. Adding this figure to the 5.7% availability figure above, results in 7.4%. 17 OFCCP uses this level, rounded to 7% to avoid implying a false level of precision, as its initial approximation of the availability for employment of individuals with disabilities. Because of the various data limitations and underlying measurement issues discussed above, OFCCP requests comment on using 7% as its utilization goal as well as on a range of values between 4% and 10%. The lower and upper bounds of this range are designed to take into account the variability across the EEO-1 categories, the potential for geographic variation in availability, and whether or not a discouraged worker effect should be taken into account. 17 As it is derived from ACS data, the 1.7% is also a limited number that does not fully encompass all individuals with disabilities as defined in section 503 and the ADA. OFCCP also takes comment on whether there might be other approaches for setting a utilization goal, particularly approaches to setting ranges that recognize that in some geographic areas and some occupations, there may be fewer people with disabilities. OFCCP requests comment on whether and, if so, how to take into account discouraged workers in assessing the availability of workers with disabilities. OFCCP is also very interested in public comment on whether there are empirically-based approaches that recognize that there are many more people who have disabilities as characterized by the ADAAA than the ACS and that there is likely a discouraged worker effect. OFCCP recognizes that including a discouraged worker component in the establishment of a proposed goal is a new approach. We therefore invite public comment on the methodology used to calculate the discouraged worker effect, and on the application of the discouraged worker effect in the goal-setting context. OFCCP believes that a single-goal approach will serve the equal opportunity and affirmative action objectives of the Rehabilitation Act and this part better than the supply and service approach of EO 11246. It will allow contractors to use their existing job groups and not require the use of multiple geographic availability comparisons as would the supply and service goals approach. OFCCP invites public comment on the impact of this proposal on contractors. In particular, we invite small businesses with current federal prime contracts or subcontracts, or those interested in future prime or subcontract work with the federal government, to identify any impacts unique to small businesses and to propose potential alternatives to alleviate the difficulties identified. Section-by-Section Analysis Paragraph (a) of the proposed rule states that the utilization goal for employment of individuals with disabilities is 7% for each job group in the contractor's workforce. Proposed paragraph (b) states that the purpose of this section is to establish a benchmark against which contractors can measure the representation of individuals with disabilities within each of their job groups. The goal serves as an equal opportunity objective that should be attainable by complying with all of the affirmative action requirements of part 60-741. Proposed paragraph (c) provides that the Director of OFCCP will periodically review and update, as appropriate, the utilization goal established in proposed paragraph (a) of this section. Proposed paragraph (d) sets out the steps that the contractor must use to determine whether it has met the utilization goal. Proposed paragraph (d)(1) states that the purpose of a utilization analysis is to evaluate the representation of individuals with disabilities in each job group within a contractor's workforce and compare the rate against the utilization goal set forth in § 60-741.46(a). Proposed paragraph (d)(2) clarifies that in evaluating the representation of individuals with disabilities in its workforce, the contractor must use the same job groups it established pursuant to EO 11246, either as prescribed in 41 CFR 60-2.12, or in accordance with 41 CFR part 60-4. OFCCP considered permitting contractors to compare the individuals with disabilities in its workforce as a whole with the proposed 7% goal. We decided against this approach because of its potential for masking discrimination and segregation. For example, a contractor that has segregated all of its employees with disabilities into one or two low-paying jobs might be able to conceal this discrimination and satisfy the 7% goal if only a single whole-workforce comparison were required by this section. Nevertheless, as we are mindful of the burden required of contractors in making the job group-by-job group comparisons required in this proposed paragraph, we are mandating the use of the EO 11246 job groups for this purpose, by eliminating the need for any geographic assessment, and by providing the single goal to which each job group will be compared. Proposed paragraph (d)(3) requires that the contractor evaluate its utilization of individuals with disabilities in each job group annually. When the percentage of employees with disabilities in one or more job groups is less than the utilization goal proposed in paragraph (a) of this section, proposed paragraph (e) requires that the contractor must develop and execute “action-oriented programs” designed to correct any identified problems and attain the established goal. Such programs may include additional efforts from among those listed in §§ 60-741.44(f)(1) and (f)(2) and/or any other appropriate actions. Paragraph (f) of the proposed rule clarifies that a contractor's determination that it has not attained the utilization goal in one or more job groups does not constitute either a finding or admission of discrimination in violation of this part. It is also important to point out that such a determination, whether by OFCCP or the contractor, will not impede or prevent OFCCP from finding that one or more unlawful discriminatory practices caused the contractor's failure to meet the utilization goal. In such a circumstance, OFCCP will take appropriate enforcement measures. Lastly, proposed paragraph (g) states that the goal proposed in this section shall not be used as a quota or ceiling that limits or restricts the employment of individuals with disabilities. Sub-Goal Option OFCCP is considering the option of including within the 7% goal for individuals with disabilities a sub-goal of 2% for individuals with certain particularly severe disabilities. The federal government currently monitors internal hiring with respect to a list of particularly severe disabilities, referred to as “targeted disabilities” in furtherance of its affirmative action obligation to employ and advance in employment individuals with disabilities in the Government pursuant to section 501 of the Rehabilitation Act. The list of targeted disabilities is defined in the President's July 2010 Executive Order “Increasing Federal Employment of Individuals with Disabilities,” as set forth in Standard Form 256 (SF256). Subject to updating, SF 256 currently identifies the following as “targeted/severe disabilities:” Total deafness, blindness, missing extremities (hand, foot, arm or leg), partial paralysis, complete paralysis, epilepsy, severe intellectual disability, psychiatric disability, and dwarfism. 18 If such a sub-goal is adopted, the Director would similarly prescribe the language and manner in which contractors should invite applicants and employees to self-identify. This will ensure consistency in all pre-offer invitations that are made, and will reassure applicants that the request is routine and executed pursuant to obligations created by OFCCP. 18 See OPM Form SF 256 available on-line at http://www.opm.gov/forms/pdf_fill/sf256.pdf. OFCCP invites comments from the public on this sub-goal option. If OFCCP adopts the use of a sub-goal, it will be included in the Final Rule. 19 We are seeking public input and comment on both the concept of a sub-goal, as well as the disabilities to be included within that sub-goal. Comments on the questions below will be especially helpful. 19 The adoption of the sub-goal option would also necessitate modification to the mandated text of the invitation to voluntarily self-identify as an individual with a disability in proposed section 60-741.42 to include voluntary self-identification as an individual with a disability encompassed in the sub-goal. In addition, the adoption of the sub-goal option would necessitate modification to the data collection analysis in proposed section 60-741.44(k) to provide for the collection and computation of data related to “targeted disabilities.” 1. What data or research is available that informs the design of an appropriate sub-goal including, but not limited to which severe disabilities should be covered by the sub-goal, and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-31371. Public record. Not legal advice.