Collaboration to Promote Self DeterminationAdvancing Economic Opportunities for Citizens with Significant Disabilities

February 21, 2012

Ms. 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, D.C. 20210

Re: RIN 1250-AA02, Affirmative Action and Nondiscrimination Obligations ofContractors and Subcontractors Regarding Individuals

Dear Director Carr:

CPSD submits the following comments in support of the Office of Federal Contract Compliance Program’s (OFCCP) proposal to strengthen the affirmative action obligations of contractors and subcontractors under Section 503 of the Rehabilitation Act. The Collaboration to Promote Self-Determination (CPSD) is a network of fifteen national disability organizations working collectively on the pursuance of high-impact, innovative public policy reform aimed at improving the employment and economic outcomes of citizens with significant disabilities. We believe that all citizens with disabilities, including individuals with the most significant disabilities, are capable of working in integrated settings and deserving of the same wage levels as their colleagues without disabilities in similar positions. As such, we have strongly advocated for a rigorous national systems-change initiative focused on promoting Employment First strategies.

The employment rate of people with disabilities remains unacceptably low, and during the recent recession, the employment gap for people with disabilities has widened further. The Bureau of Labor Statistics’ data from January 2012 shows a workforce participation rate of 20.0% for people with disabilities, a mere fraction of the 69.3% workforce participation rate of people without disabilities. Section 503 of the Rehabilitation Act requires government contractors to take affirmative action to hire people with disabilities. However, affirmative action programs for people with disabilities have been largely ineffective until now. Implementing and enforcing new rules that provide clear guidance and baseline goals for hiring is crucial to ensure the civil rights and equal opportunities for people with disabilities.

We praise OFCCP for issuing the proposed regulations and highly support the provisions that would:

Make affirmative action rights and protections for individuals with disabilities more consistent with those previously afforded minorities and women in federal contractor and subcontractor hiring practices

Establish specific, measurable utilization goals for federal contractor and subcontractor hiring of people with disabilities

Require employer data collection and records maintenance to enable ongoing monitoring of disability employment trends and compliance with affirmative action hiring goals among federal contractors and subcontractors

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Allow job applicants and existing employees of federal contractors and subcontractors to identify themselves as persons with disabilities anonymously to prevent misuse of this information for discriminatory purposes

Promote linkage agreements between employers and organizations that serve individuals with disabilities in their employment search to foster recruitment efforts.

With federal contractors accounting for nearly 20% of all jobs in our nation's economy, we believe that the proposed rules have great potential, with some improvements and effective implementation, to measurably reduce the deplorably high rate of unemployment among people with disabilities in our country. CPSD offers the following detailed comments:

1. Raise the Target Utilization Goal – Section 60.741.45

CPSD strongly endorses the OFCCP’s proposal to establish utilization goals for affirmative action programs for people with disabilities.

However, the OFCCP bases its proposed 7% goal on data drawn from the American Community Survey (ACS), which captures a considerably narrower set of people with disabilities than is covered by Section 503. A recent study indicates that relying on the ACS six-question sequence to capture the working-age population of people with disabilities negatively skews the numbers by underestimating the number of working-age individuals with disabilities and overestimating their employment rate. Nor does it accurately count the number of individuals receiving SSDI and SSI − indicators of severe disability − in the working-age population with disabilities.1, many of whom have taken themselves out of the labor market after years of unsuccessful searching.

The ACS misses important segments of the community; therefore, we recommend that it would be appropriate for OFCCP to use the higher goal of 10%.

2. Establish a Unique Sub-Goal for Employment of Those Disproportionately Excluded from the Workforce – Section 60.741.45

The utilization goal, which covers all people with disabilities, will include a very broad group of people, as defined by the 2008 ADA amendments and the Rehabilitation Act. However, it will not address the needs of those individuals with severe disabilities who are most underrepresented in the workforce.

CPSD urges OFCCP to establish a separate sub-goal of 5% for those candidates with disabilities who have been disproportionately excluded from employment opportunities, are particularly under-represented in the workforce and need more enforcement support under affirmative action policies.

3. Enforce Support for the Proposed Self-identification Process – Section 60-741.42

CPSD supports the concept of requiring federal contractors to invite individuals to self-identify both at the pre-offer stage as well as after a conditional offer of employment has been made. We believe that the proposed regulations appropriately limit the self-identification so that individuals merely indicate that they have a disability, rather than indicate what type of disability. Clearly, the OFCCP's requirement that self-identification

1 Burkhauser, R., Houtenville, A., and Tennant, J., Comparing Levels and Trends in the Prevalence, Employment and Program Participation Rates of Working-Age People with Disabilities: Reconciling Differences in the American Community Survey and the Current Population Survey, Rehabilitation Research and Training Center on Disability Statistics and Demographics at Hunter College, April 2011. CPSD LETTER TO U.S. DEPARTMENT OF LABOR (RIN 1250-AA02) 02/21/2012

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be done anonymously is critical. This will increase the likelihood that individuals will choose to self-identify. As the proposed rule emphasizes, it is crucial that such information be kept confidential in order to safeguard the privacy of individuals with disabilities and protect them against possible discrimination.

CPSD also supports the new requirement that contractors perform annual anonymous surveys of their employees. This will provide an opportunity for people who have become disabled since employment, or those who were hesitant to self-identify during the employment process to be counted as part of the workforce for affirmative action purposes.

4. Prohibit Individuals Employed in Sheltered Workshops from Being Counted Toward Utilization Goals – Section 60-741.60

Sheltered workshops are outdated and contrary to current policy of integrating people with disabilities into community life. 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 service for the purpose of helping someone obtain competitive employment.”2 Despite this requirement, in practice these programs are not effective as transitional services leading to competitive employment.

We urge OFCCP to clarify the Section 503 regulation to explicitly prohibit contractors from meeting their affirmative action obligations through sub-contracts to sheltered workshops. The proposed rules should be modified to make explicit that a federal contractor may count toward their hiring goals only those individuals they actually hire from sheltered workshops into competitive, integrated employment at full compensation. Those who remain in sheltered workshop training should not be counted toward the affirmative action hiring goals of either the contractor or subcontractor.

5. Modify Required Contents of Affirmative Action Programs – Section 60-741.44 (f) (i)

CPSD views OFCCP’s proposed requirement in this section favorably. They set forth clearly lines of responsibility for implementing affirmative action plans and steps that must be undertaken as part of an affirmative action plan. These reviews should also be used as opportunities for OFCCP to examine physical and mental job qualification standards and determine if they are unfairly excluding people from affirmative action eligibility. We call for the removal of the requirement in Section 60-741.44(f)(i) that contractors supply their job listings in formats and in a manner required by the appropriate Employment One-Stop Career Center (One-Stop). OFCCP should make it as easy as possible for contractors (who include small businesses owned by disabled veterans and others with disabilities) to post their job listings with any One-Stop and not require multiple formatting obligations.

6. Expand Linkages to Include Educational Institutions – Section 60-741.44 (f) (ii)

CPSD endorses OFCCP’s directive for linkage agreements to assist federal contractors in the recruitment of applicants with disabilities. In fact the focus of these agreements must be explicit to identifying viable candidates from among those living with disabilities. Vocational rehabilitation agencies, Employment Advancement and Retention Networks (EARN) and other employment networks, as well as centers for independent living and other disability organizations (especially disability-led groups) are important partners in achieving the goals of affirmative action.

2 Department of Health & Human Services, Centers for Medicare & Medicaid Services, CMS Informational Bulletin, September 16, 2011.

CPSD LETTER TO U.S. DEPARTMENT OF LABOR (RIN 1250-AA02) 02/21/2012

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CPSD would add to this list the career offices of institutions of higher education. These organizations possess considerable resources and staff to work with employers to implement recruiting efforts.

7. Reinforce Sanctions and Penalties – Section 60-741.66

CPSD calls upon OFCCP to state firmly that it will use the full range of its enforcement mechanisms available to effectively prevent violations of Section 503, and that it will use appropriate sanctions and penalties to prevent situations where a contractor calculates that continuing to incur penalties and violate the law is preferable to complying.

8. Assure Balance in Compliance Evaluations Enforcement – Section 60-741.60

We believe that the compliance review process outlined in the rule must be conducted in a manner that ensures contractors fully comply with Section 503 requirements. At the same time, the compliance review process must be balanced. It would be unfortunate to undermine efforts by contractors to increase employment opportunities for people with disabilities because of efforts to satisfy paperwork requirements. The potential consequence of an excessive documentation onus could be that the “letter” and not the “spirit” of the requirements will be met, limiting the effectiveness of affirmative action under Section 503.

9. Clarify Recordkeeping Requirements – Section 60-741.80

CPSD agrees with the data collection requirements pertaining to the number of individuals with disabilities referred to a contractor, however, we question the utility of maintaining these records for a period of five years when other affirmative action obligations require such records be maintained for only two years. We believe that the recordkeeping rules should be the same across all protected classes and timeframes for maintenance of record should be consistent.

Conclusion

Once again, we applaud OFCCP’s efforts to modernize the Section 503 implementing regulations to promote equal employment opportunity for people with disabilities. It is time for the federal government to hold its contractors to a stringent standard of engaging in affirmative action in recruiting, retaining, and advancing employees with disabilities. We thank OFCCP for the opportunity to comment on the proposed rule.

Sincerely,

Serena Lowe Madeleine WillExecutive Director Founder & Chair

CPSD LETTER TO U.S. DEPARTMENT OF LABOR (RIN 1250-AA02) 02/21/2012