ASAN Public Comment on Section 503 of the Rehabilitation Act_2.20.12

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Debra A. Carr

Director,

Division of Policy, Planning, and Program Development

Office of Federal Contract Compliance Programs

Room C-3325

200 Constitution Avenue, N.W.

Washington, D.C. 20210

February 20, 2012

Dear Director Carr:

The Autistic Self Advocacy Network appreciates this opportunity to comment on the proposed

rulemaking implementing Section 503 of the Rehabilitation Act of 1973; these regulations will strengthen

employment protections and require affirmative action for individuals with disabilities seekingemployment with federal contractors. The Autistic Self Advocacy Network is the nation’s leadingadvocacy organization run by and for autistic adults. We would like to note that we also support the

comments provided by the Judge David L. Bazelon Center for Mental Health Law and the National

Disability Leadership Alliance.

First, it is our pleasure to support strongly the Office of Federal Contract Compliance Programs’ Notice

of Proposed Rulemaking with regards to Section 503. In particular, we commend OFCCP’s identification

of a utilization goal for the hiring of people with disabilities by federal contractors and its requirement for

data collection to ensure effective monitoring of progress. These provisions would bring federal

contractors' disability-based affirmative action obligations in line with historically successful

requirements to conduct affirmative action programs for race and gender.

Second, we a pplaud OFCCP’s consideration of a sub-goal for individuals within targeted disability

categories. OFCCP’s broader utilization goal adopts the definition of disability set forward by the ADA

Amendments Act (ADAAA) of 2008. It is worth noting that the ADAAA’s definition of disability is

designed to be very broad. Such a broad definition is necessary and appropriate in the context of an anti-

discrimination law. However, given Section 503’s more narrow purpose of rectifying past discrimination

against people with disabilities with the greatest history of exclusion from the workforce, we believe that

a sub-goal of five to six percent for individuals from targeted disability categories is appropriate. A

program of affirmative action must be more narrowly tailored to meet the needs of those whose

disabilities are most likely to lead to exclusion from the workforce.

We note that the ADAAA definition of disability covers well over seven percent of the population. It is

quite likely that most employers already possess people with disabilities as seven percent of their

workforce (OFCCP’s proposed utilization goal) under the ADAAA definition. Furthermore, many

employers who do undertake efforts to ensure they meet the broader utilization goal may attempt to do so



by “creaming the crop” and only employing individuals with the least stigmatized and easiest to

accommodate disabilities — rather than those with the greatest history of workforce exclusion. Thus, a

sub-goal is critical to ensure that affirmative action efforts incorporate people with the greatest history of

exclusion from the workforce.

Furthermore, in light of current employment data, the definition of targeted disabilities should incorporate

Autism Spectrum Disorder (including Asperger’s Syndrome and PDD-NOS). According to the National

Longitudinal Transition Study (NLTS-2), the proportion of autistic young adults who had a job was

nearly half that of all young adults with disabilities (33 percent vs. 59 percent). The proportion of autistic

young adults who had a job was comparable to that for young adults with deaf-blindness and multiple

disabilities and far below the proportion of those with blindness, learning disabilities, or traumatic brain

injuries (Standifer, 2011). NLTS-2 data also shows that the proportion of autistic young adults working

full time (as defined as 35 hours or more per week) was one-third that of all young adults with disabilities

who were employed (26 percent vs. 71 percent). Given the fact that autistic adults face greater exclusion

from the workforce than most groups of people with disabilities, including several already incorporated

within the targeted disability definition, we believe that the inclusion of Autism Spectrum Disorder within

the targeted disability category is appropriate.

OFCCP’s Notice of Proposed Rulemaking notes the possibility of a 2 percent sub-goal for individuals

with targeted disabilities. We believe that such a sub-goal is set too low. According to the Substance

Abuse and Mental Health Services Administration (SAMHSA)’s National Survey on Drug Use and

Health, 4.5 percent of the population has a serious mental illness (NIMH, 2012). According to research

funded by the National Institute for Disability and Rehabilitation Research (NIDRR), 2.7 percent of the

population has a severe cognitive impairment (Kraus, Stoddard, & Gilmartin, 1996). These twocategories — severe intellectual disability and serious mental illness — are already covered within the

definition of targeted disability category and already exceed the utilization goal considered by OFCCP.

We urge the consideration of a utilization sub-goal for individuals with targeted disabilities in the 5-6

percent range, and for OFCCP to consider revising upwards its utilization goal for the broader population

of people with disabilities accordingly.

Finally, we urge OFCCP to modify the Section 503 regulation to explicitly prohibit contractors from

meeting their affirmative action obligations through sub-contracts to sheltered workshops. Currently, the

regulation states that, “Contracts with sheltered workshops may be included within an affirmative action

program if the sheltered workshop trains employees for the contractor and the contractor is obligated to

hire trainees at full compensation when such trainees become ‘qualified individuals with disabilities.’”

Research suggests that this represents a significant loophole that will be exploited — if not closed.

Although this provision is not novel to the NPRM and exists within the underlying Section 503

regulation, the addition of a utilization goal and other provisions aimed at meaningfully enforcing Section



503 for the first time make it potentially more dangerous as a mechanism for contractors to avoid meeting

their affirmative action obligations through hiring people with disabilities into integrated employment.

According to a September 16, 2011 informational bulletin from the Center for Medicare and Medicaid

Services, all sheltered workshops receiving Medicaid funds are considered to be: “not an end point, but a

time limited (although no specific limit is given) service for the purpose of helping someone obtain

competitive employment.” Despite this requirement, in practice these programs are not effective as

transitional services leading to competitive employment. Additionally, in most cases, those “employed”

by a shelter workshop are paid less than minimum wage. Given that the vast majority of sheltered

workshops are Medicaid-financed, OFCCP’s requirement that such a setting merely be a training program

is not a credible additional safeguard. The requirement, like Medicaid’s definition, lacks any meaningful

time-limitation on time spent in a training program or an objective, concrete definition of the term

“qualified individual with a disability.” As a result, the obligation to hire trainees at full compensation

lacks any possibility for meaningful enforcement.

Furthermore, sheltered workshops represent a poor means of training even if those safeguards become

enhanced. According to a 2011 analysis published in the Journal of Vocational Rehabilitation, individuals

with intellectual disabilities who spent time in sheltered workshops before moving into integrated

employment face worse employment outcomes (lower earnings, higher service-provision costs) than

individuals with comparable disabilities who did not spend time in sheltered workshops (Cimera, 2011).

A subsequent analysis published in the journal Autism employing the same data set found the same result

for autistic adults (Cimera, Wehman, West, & Burgess, 2011). The rate of transition from sheltered

workshop settings into integrated employment is exceedingly low (GAO, 2001). For these reasons, we

urge OFCCP to close this loophole and specifically prohibit the use of sheltered workshop sub-contracts

as a means for contractors to meet affirmative action obligations.

Regards,

Melanie Yergeau

Board Chair

The Autistic Self Advocacy Network



References

ADA Amendments Act of 2008, Public Law 110 – 325, 122 Stat. 3553 (2008).

Cimera, R. E. (2011). Does Being in Sheltered Workshops Improve the Employment Outcomes of

Supported Employees with Intellectual Disabilities? Journal of Vocational Rehabilitation, 35, 21-27.

Cimera, R. E., Wehman, P. West, M., & Burgess, S. (2011). Do Sheltered Workshops Enhance

Employment Outcomes for Adults With Autism Spectrum Disorder? Autism. doi:

10.1177/1362361311408129

General Accounting Office (GAO). (2001). Special Minimum Wage Program: Centers Office

Employment and Services to Works with Disabilities, But Labor Should Improve Oversight . Retrieved

January 18, 2011, from http://www.gao.gov/new.items/d01886.pdf

Kraus, L., Stoddard, S., & Gilmartin, D. (1996). Chartbook on Disability in the United States, 1996. AnInfoUse Report. Washington, DC: U.S. National Institute on Disability and Rehabilitation Research.

National Institute of Mental Health (NIMH) (2012). Prevalence of Serious Mental Illness Among U.S.

Adults by Age, Sex, and Race. Retrieved January 18, 2012 from

http://www.nimh.nih.gov/statistics/SMI_AASR.shtml

Standifer, S. (2011). Fact Sheet on Autism Employment. Retrieved January 18, 2012 from

http://dps.missouri.edu/Autism/AutismFactSheet2011.pdf

ASAN Public Comment on Section 503 of the Rehabilitation Act_2.20.12

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