Description and Analysis of Policies and Practices Related to Section 503 of the Rehabilitation Act of 1973 and the Vietnam Veterans’ Readjustment Assistance Act of 1974

November 2009

This paper was funded by the Office of Disability Employment Policy, US Department of Labor under a contract to Economic Systems Inc. The opinions contained in this paper are those of the authors and do not necessarily represent those of the Department of Labor or any other agency or department of the federal government.

Table of Contents

I. Introduction and Summary of Recommendations.....................................................11. Literature and Resources........................................................................................12. Organization............................................................................................................23. Summary of Recommendations..............................................................................2

II. Affirmative Action Programs in General.....................................................................21. Key Policies..............................................................................................................22. Equal Opportunity Clause.......................................................................................23. Components of Affirmative Action Program; Key Components of Other Affirmative Action Programs and Civil Rights Laws........................................................2

III. AAP—Policy Statement..............................................................................................21. Section 503 and VEVRAA Regulatory Framework...................................................22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples of Selected Portions of Policy Statements in AAPs Submitted to OFCCP and From Company Websites........................................................................................2

IV. AAP—Review of Personnel Processes........................................................................21. Section 503 and VEVRAA Policy Framework. (60-741.44(b); 60-300.44(b)) (See also Appendix C)............................................................................................................ 22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples of Selected Portions of Policy Statements from AAPs Relating to Personnel Policies Submitted to OFCCP.........................................................................2

V. AAP—Review of Physical and Mental Job Qualification Standards............................21. Section 503 and VEVRAA Policy Framework (60-741.44(c); 60-300.44(c))..............22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples of Selected Portions of AAPs Related to Job Qualification Standards Submitted to OFCCP.......................................................................................................24. Examples of Practices from the Section 188 Disability Checklist.............................2

VI. AAP—Reasonable Accommodation to Physical and Mental Limitations...................21. Section 503 and VEVRAA Policy Framework (60-741.44(d); 60-300.44(d); 61 FR 19345)............................................................................................................................22. OFCCP Sample Affirmative Action Plan...................................................................23. Section 501 of the Rehabilitation Act......................................................................24. Examples of Selected Portions of AAPs Related to Reasonable Accommodations Submitted to OFCCP.......................................................................................................25. Examples of Practices from the Section 188 Disability Checklist.............................2

VII. AAP—Harassment Prevention Procedures.............................................................21. Section 503 and VEVRAA Policy Framework...........................................................22. OFCCP Sample Affirmative Action Plan...................................................................2

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VIII. AAP—External Dissemination of Policy, Outreach and Positive Recruitment Activities............................................................................................................................ 2

1. Section 503 and VEVRA Policy Framework (60-741.44(f); 60-300.44(f)).................22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples of Selected Portions of AAPs Related to External Dissemination Submitted to OFCCP.......................................................................................................24. Examples of Practices from the Section 188 Disability Checklist.............................25. Examples of Concrete Actions that Comply with Some of these Requirements:....26. Examples of Practices from the “Universal Strategies” Document.........................2

IX. AAP—Internal Dissemination of Policy......................................................................21. Section 503 and VEVRAA Policy Framework (60-741.44(g); 60-300.44(g)).............22. OFCCP Sample Affirmative Action Plan...................................................................23. Section 501 Policy Framework................................................................................24. Examples of Selected Portions of AAPs Related to Internal Dissemination.............25. Roadmaps for Enhancing Employment of Persons with Disabilities through Accessible Technology...................................................................................................2

X. AAP—Audit and Reporting System............................................................................21. Section 503 and VEVRAA Policy Framework...........................................................22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples from Selected Portions of AAPs Related to Audits and Reporting Submitted to OFCCP.......................................................................................................2

XI. AAP—Responsibility for Implementation of Affirmative Action Plan.........................21. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60.300.44(j))...............22. OFCCP Sample Affirmative Action Plan...................................................................23. Section 501 Policy Framework................................................................................24. Section 188 Disability Checklist...............................................................................2

XII. AAP—Training of Personnel....................................................................................21. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60-300.44(j))...............22. OFCCP Sample Affirmative Action Plan...................................................................23. Examples from Portions of Selected AAPs..............................................................24. Examples from “Universal Strategies” Document...................................................2

XIII. Overarching Conclusions and Recommendations...................................................2

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I. Introduction and Summary of RecommendationsPresident Obama has established a comprehensive agenda for enhancing equality of opportunity for persons with disabilities. The President’s agenda includes “increasing the employment rate of workers with disabilities by effectively implementing regulations that require the federal government and its contractors to employ people with disabilities.” Such regulations include Section 503 of the Rehabilitation Act of 1973 as amended (Section 503), its implementing regulations, the Vietnam Era Veterans’ Readjustment Act of 1974 as amended (VEVRAA), and its implementing regulations require that government contractors provide equal opportunity (nondiscrimination) to qualified individuals with disabilities and qualified disabled veterans. In addition, under Section 503 and VEVRAA, contractors must take affirmative action to employ and advance in employment qualified individuals with disabilities and qualified disabled veterans, including recruitment, advertising, and job application procedures.1 Section 503 and VEVRAA are administered by the Office of Federal Contract Compliance (OFCCP) in the Department of Labor.

The purposes of this paper are thus to:

1. Describe and analyze the policy and practice ‘lay of the land’ regarding equal opportunity/nondiscrimination provisions and affirmative action programs for qualified individuals with disabilities under Section 503 and qualified disabled veterans under VEVRAA

2. Review other civil rights statutes protecting qualified individuals from discrimination on the basis of disability to glean policies and practices that may enhance the effective implementation of affirmative action programs for qualified individuals with disabilities and qualified disabled veterans

1. Literature and ResourcesThis paper is based on a thorough review of the following laws, regulations, policy guides and interpretations, documents and technical assistance papers:

The Section 503, VEVRAA, and the ADA policy frameworks, including the statutes, regulations, guidelines, technical assistance manuals and letters of interpretation by various federal agencies, including OFCCP and the Office of the Solicitor in the Department of Labor, the Equal Employment Opportunity Commission (EEOC), and the Department of Justice.

o Section 503 regulations are codified in Part 60-741 of Title 41 of the Code of Federal Regulations

o VEVRAA regulations are codified in Part 60-300 and Part 60-250 of Title 41 of the Code of Federal Regulations (Part 60-300 applies only to Government contracts entered into or modified on or after December 1, 2003. The

1 References in this paper to “qualified disabled veterans” encompass both “special disabled veterans” as outlined in 41 CFR Part 250 and “disabled veterans” as outlined in 41 CFR Part 60-300.

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existing VEVRAA regulations found in Part 60-250 will continue to apply to Government contracts entered into before December 1, 2003)

o Preamble and Section-by-section analysis accompanying the Section 503 regulation appears in the Federal Register at 61 FR 19337-19366 (May 1, 1996)

o Preamble and Section-by-section analysis accompanying the VEVRAA regulations appears in the Federal Register at 72 FR 44393-44416 (August 8, 2007)

o Office of Federal Contract Compliance Programs, Section 503 and VEVRAA Sample Affirmative Action Program, Washington, DC: US Department of Labor, Employment Standards Administration (2003)

o Office of Federal Contract Compliance Programs, Federal Contract Compliance Manual (FCCM), Washington, DC: US Department of Labor, Employment Standards Administration

o Office of the Solicitor (Civil Rights Division), Index to Administrative Decisions Under Section 503, Washington, DC: US Department of Labor, Office of Administrative Law Judges

o Office of Federal Contract Compliance Programs, Federal Contractor’s Online Application System (Transmittal Number 251), Washington, DC: US Department of Labor, Employment Standards Administration (July 10, 2008)

o Equal Employment Opportunity Commission, A Technical Assistance Manual on the Employment Provisions (Title 1) of the Americans With Disabilities Act (EEOC-M-1A), Washington, DC: Government Printing Office (January 28, 1992)

o Civil Rights Division, Accessibility of State and Local Government Websites to People with Disabilities, Washington, DC: Department of Justice (June 2003): Available http://www.ada.gov/websites2.htm (Accessed November 10, 2009)

Actual affirmative action programs submitted to OFCCP by government contractors

Statutory, regulatory, and EEOC program directives applicable to Section 501 of the Rehabilitation Act as amended, relating to affirmative action obligations of federal agencies

o Part 1614 of Title 29 of the Code of Federal Regulations o Equal Employment Opportunity Commission, Management Directive 715,

Washington, DC (October 1, 2003)

Statutory, regulatory, and guidelines applicable to other civil rights provisions e.g., Section 188 of the Workforce Investment Act, which is administered by the Civil Rights Center in the Department of Labor

o Regulations implementing Section 188 of the Workforce Investment Act are codified in Part 37 of Title 29 of the Code of Federal Regulations

o Civil Rights Center, WIA Section 188 Disability Checklist, Washington, DC: Department of Labor (July 25, 2003)

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o State Guidance for Developing Methods of Administration Required by Regulations Implementing Section 188 of the Workforce Investment Act of 1998, 65 FR 51984-51985 (August 25, 2000)

Regulatory provisions related to affirmative action governing other protected classes, including statutory provisions, executive orders, regulations and applicable guidelines (41 CFR Parts 60-1 and 60-2)

Policy papers and technical assistance guides developed by and/or on behalf of the Office of Disability Employment Policy (ODEP) relating to the employment of individuals with disabilities

o Hoff, David, Elena Varney, Lara Enein-Donovan, Cindy Thomas, and Sheila Lynch Fesko, “Access For All Customers: Universal Strategies For One-Stop Career Centers”, Institute Brief 26, Boston, MA: Institute for Community Inclusion (January 2009)

o National Disability Rights Network, Roadmaps II: For Enhancing Employment of Persons with Disabilities through Accessible Technology, Washington, DC: Department of Labor (2007)

2. OrganizationThe paper includes 12 sections. The first section provides general background about affirmative action programs for individuals with disabilities and disabled veterans, including a description of key concepts, description of obligations to include an affirmative action clause, and a listing of the ten components of an affirmative action program under Section 503 and VEVRAA. The next ten sections of the paper include in-depth descriptions and analyses of each of the ten components of an affirmative action program. Under each component, the paper includes references to applicable regulations, guidelines, and interpretations as well as examples of practices from various sources described above. The final section includes overarching conclusions and general recommendations. This paper does not include a review and analysis of a recent OFCCP Directive relating to Online Application Systems; this directive is the subject of a separate paper prepared by the author: A Technical Assistance Guide for Federal Contractors Regarding the Implementation of Online Application Systems that Meet the Needs of Qualified Individuals with Disabilities and Qualified Disabled Veterans.

3. Summary of RecommendationsThe following is a summary of this paper’s overarching conclusions and recommendations regarding the affirmative action policy framework under Section 503 and VEVRAA.

1. Affirmative Action Programs (AAPs) submitted under Section 503 and VEVRAA do not narrate and document “proactive”, “positive” “action” measures, steps, and practices; instead, AAPs reflect mere paper compliance. This conclusion should not be construed to mean that these Government contractors are not adopting best or promising practices regarding the employment of qualified individuals

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with disabilities and qualified disabled veterans; rather, it simply means that the AAPs are not being used as the vehicle for narrating and documenting these policies and practices. OFCCP should review the current approach used for purposes of developing and submitting AAPs under Section 503 and VEVRAA and consider adopting the approach included in the Civil Rights Center, DOL guidelines governing the submission of “methods of administration” by states under Section 188 of the Workforce Investment Act. These guidelines require, among other things, the inclusion of narratives and documentation. In addition, OFCCP should disseminate technical assistance materials that include examples of practices that Government contractors may adopt.

2. Affirmative Action Programs (AAPs) prepared in accordance with Section 503 and VEVRAA do not include goals and timetables comparable to those included in affirmative action programs submitted under Executive Order 11246 as amended, or its implementing regulations. Policies issued by EEOC governing the administration of Section 501 of the Rehabilitation Act (affirmative action regarding the hiring and promotion of qualified individuals with disabilities by federal agencies) require goals and timetables based on quantitative analysis. OFCCP should consider revising the regulations and guidelines implementing Section 503 and VEVRAA to reflect the approach taken by EEOC regarding affirmative action programs applicable to federal agencies under Section 501. The inclusion of goals should be limited to larger contractors.

3. Current regulations and the OFCCP Sample AAP do not include appropriate references to the Internet and websites consistent with contemporary business practice. An overwhelming percentage of AAPs reviewed do not include references to company websites in their AAPs. OFCCP should be commended for issuing a program directive regarding Federal contractor’s online application selection systems. Consistent with this Directive, OFCCP should consider revising its Section 503 regulations and Sample AAP to include appropriate references to websites (and the obligation to ensure equal opportunity through accessible websites or alternative methods and the provision of reasonable accommodation) and consider providing additional guidance and technical assistance supplementing the Directive regarding online application systems.

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II. Affirmative Action Programs in General This section describes the policy underpinnings for affirmative action programs for qualified individuals with disabilities and qualified disabled veterans. The key concepts include the following:

Equal opportunity/nondiscrimination Affirmative action Self-identification

In addition, this section explains the relationship between affirmative action and equal/opportunity/nondiscrimination in general, and in particular the relationship between affirmative action and reasonable accommodation, a key component of equal opportunity/nondiscrimination for qualified individuals with disabilities and qualified disabled veterans. The section also describes the obligation to include an equal opportunity clause in a Government contract. The section concludes with a list and brief description of the ten components of an affirmative action program for qualified individuals with disabilities and qualified disabled veterans.

1. Key Policies

Equal Opportunity/Nondiscrimination Appendix A to the Section 503 and VEVRAA regulations (61 FR 19363 (May 1, 1996); 72 FR 44414 (August 8, 2007)) specifies that equal opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.

The regulations implementing Section 503 and VEVRAA (41 CFR 60-741.21; 41 CFR 90-300.21) explain that the term discrimination includes specified acts described in the regulations such as disparate treatment; limiting, segregating and classifying; contractual or other arrangements, standards, criteria or methods of administration; not making reasonable accommodations; qualification standards, tests, and other selection criteria; administration of tests; and compensation. The regulations also describe defenses to claims of discrimination, including direct threat defense, undue burden defense, and business necessity defense. Below are additional descriptions of several of these forms of discrimination:

Contractual or other arrangements: It is unlawful for the contractor to deny an employment opportunity or benefit or otherwise discriminate against a qualified individual with a disability because of that individual’s disability. The phrase “contractual or other arrangement or relationship” includes, but is not limited to, a relationship with an organization providing training and apprenticeship programs. This provision applies to the contractor with respect to its own applicants or employees, whether the contractor offered the contract, initiated the relationship, accepted the contract, or acceded to the relationship. The

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contractor is not liable for actions of the other party or parties to the contract that only affect the other party’s employees or applicants.

Standards, criteria, or methods of administration: It is unlawful for the contractor to use standards, criteria, or methods of administration that are not job-related and consistent with business necessity and that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others who are subject to common administrative control.

Qualification standards, tests, and other selection criteria: In general, it is unlawful for the contractor to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, 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 is consistent with business necessity.

o Selection criteria that concern an essential function may not be used to exclude an individual with a disability if that individual could satisfy the criteria with provision of a reasonable accommodation.

o Selection criteria that exclude or tend to exclude an individual with a disability or a class of individuals with disabilities because of disability but concern only marginal functions of the job would not be consistent with business necessity. The contractor may not refuse to hire an applicant with a disability because the applicant’s disability prevents him or her from performing marginal duties.

Administration of tests: It is unlawful for the contractor to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant, except where such skills are factors that the test purports to measure.

Not making reasonable accommodation: It is unlawful for the contractor to fail to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability unless such contractor can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

o It is unlawful for the contractor to deny employment opportunities to an otherwise qualified applicant or employee with a disability based on the need of such contractor to make reasonable accommodation to such an individual’s physical or mental impairments.

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Affirmative ActionThe duty to take affirmative action regarding the employment of qualified persons with disabilities subsumes the duty not to discriminate. Nondiscrimination is the starting point—the first step required of any employer in fulfilling its affirmative action obligation. Affirmative action includes much more than nondiscrimination on the basis of disability by an employer; it also includes instituting a system of proactive/positive measures/steps that provide qualified persons with disabilities and qualified disabled veterans effective opportunity with respect to all employment activities (i.e., recruitment, selection, hiring, placement, promotion, transfer, layoff, termination, compensation, and training) at all levels of employment (including the executive level).

The system of proactive/positive measures/steps includes efforts by employers to prevent discrimination on the basis of disability before it occurs by periodically carefully, and thoroughly evaluating and monitoring their employment practices to identify/detect barriers to employment, and, where such barriers are identified, eliminate/remedy them. Affirmative action also includes expanded outreach, recruitment, mentoring, training, management development, and creating a work environment that actively welcomes and fosters advancement of qualified persons with disabilities and qualified disabled veterans. Affirmative action does not include quotas and granting preferences to individuals with disabilities.

The summary description set out above regarding the duty to take affirmative action is derived from a review of multiple sources.

According to the Section 503 regulations and the preamble and section-by-section analysis accompanying the regulations, under the affirmative action obligations imposed by the act, contractors shall not discriminate because of physical or mental disability and shall take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.2 Such action shall apply to all employment activities. The duty to undertake affirmative action subsumes the duty to refrain from discrimination. For example, a contractor that is discriminating is not fulfilling its affirmative action obligations to identify, prevent, and remedy discrimination. Under affirmative action, employers are not required to grant a preference to individuals with disabilities. Affirmative action requires covered contractors to institute a system of proactive measures designed to ensure equal employment opportunity for individuals with disabilities. For example, contractors are required to do the following:

o Ensure that their personnel processes provide for careful consideration of the job qualifications of known disabled individuals

o Periodically review job qualification standards to ensure that, to the extent they tend to screen out qualified persons with disabilities such requirements are consistent with business necessity

o Take appropriate efforts to effectively recruit workers with disabilities2 60-741.43; 60-300.43

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These measures do not require the contractor to extend a preference for individuals with disabilities; rather, they are designed to create a working environment that actively welcomes qualified persons with disabilities at all levels in the contractor’s workforce.3

The OFCCP Federal Contract Compliance Manual used to oversee compliance with Section 503 and VEVRAA includes the following statements regarding the duty to take affirmative action:

o Affirmative action includes actions, policies, and procedures to which a contractor commits itself that are designed to achieve equal employment opportunity. The affirmative action obligation entails:

Thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible; and

Recruitment and outreach measures. (page 9)

The Department of Labor’s Office of the Solicitor (Civil Rights Division)’s Index to Administrative Decisions Under Section 503 includes the following interpretations of the duty to take affirmative action:

o An employer’s affirmative action obligation includes indicating other possible assignments for which the individual might be considered, or how the individual may obtain information about other employment opportunities with this employer.

o A requirement of nondiscrimination is included in the affirmative action clause.

o The affirmative action obligation applies to all employment practices of a contractor.

o Because the regulations require contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities and requires actual requirement of individuals with disabilities, it is clear that section 503 requires much more than non-discrimination.

o As a simple matter of logic, the concept of affirmative action must include a duty not to discriminate against members of the class protected by Section 503. Nondiscrimination is the starting point—the first step required of any contractor in fulfilling its affirmative action obligation.

EEOC Management Directive 715 clarifies the obligation of federal agencies to take affirmative action to hire, place, and advance individuals with disabilities under Section 501 of the Rehabilitation Act. The Directive includes the following description of the obligation. Section 501 requires federal agencies to take proactive steps to provide equal opportunity to qualified individuals with disabilities in all aspects of federal employment. Each agency must develop and maintain an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities that, among other things, provides

3 61 FR 19343-19344

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adequate employment opportunities and sets out the ways in which an agency will meet the needs of its employees with disabilities.

Congress also directed federal agencies to serve as model employers, which requires several things:

o Agencies may not discriminate, but nondiscrimination alone is not enough.o Agencies are required to take proactive steps to ensure equal employment

opportunity. This means agencies must attempt to prevent discrimination before it occurs, and must establish systems to monitor their own compliance.

o Agencies must regularly evaluate their employment practices to identify barriers to equality of opportunity.

o Where such barriers are identified, agencies must eliminate them.

Reasonable AccommodationsAppendix A to the Section 503 and VEVRAA regulations includes a summary of the meaning and scope of the term “reasonable accommodation.” An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunity. Equal opportunity means an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.

Accommodations may be necessary in the application process to enable employees to perform the essential functions of position held or desired, and to enable employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities. The decision as to whether a reasonable accommodation is appropriate must be made on a case-by-case basis. The contractor should generally consult with the individual with a disability in deciding on the appropriate accommodation.

More specifically, under the regulations implementing Section 503 and VEVRAA (60-741.2(v); 60-300.2(t)) the term “reasonable accommodation” means:

Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such applicant desires

Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position

Modifications or adjustments that enable the contractor’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the contractor’s other similarly-situated employees without disabilities

Reasonable accommodation may include, but is not limited to the following:

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Making existing facilities used by employees readily accessible to and usable by individuals with disabilities

Job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities

Appendix A to the Section 503 regulations sets out the following examples of reasonable accommodations to the application process:

“With respect to the application process, appropriate accommodations may include the following:

“Providing information regarding job vacancies in a form accessible to the vision or hearing impaired (e.g., by making an announcement available in Braille, in large print or on audio tape, or by responding to job inquiries via TDDs)

“Providing readers, interpreters and other similar assistance during the application, testing, and interview process

“Appropriately adjusting or modifying employment-related exams (e.g., extending regular time deadlines, allowing a blind person or one with a learning disorder such as dyslexia to provide oral answers for a written test, and permitting an applicant, regardless of the nature of his or her disability, to demonstrate skills through alternative techniques and utilization of adapted tools, aids, and devices)

“Ensuring an applicant with a mobility impairment full access to testing locations such that the applicant’s test scores accurately reflect the applicant’s skills or aptitude rather the applicant’s mobility impairment”

To determine the appropriate reasonable accommodation, it may be necessary for the contractor to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

According to the footnote to the regulation, contractors must engage in such an interactive process with an individual with a disability whether or not a reasonable accommodation is ultimately identified. Contractors must engage in the interactive process because until they have done so they may be unable to determine whether a reasonable accommodation exists that will result in the person being qualified.

The definition of reasonable accommodation in the Section 503 regulation is identical to the definition of the term in the EEOC Title I regulation. OFCCP explains in a footnote accompanying the regulatory provision that contractors should not draw the erroneous inference that their duty to provide a reasonable accommodation with respect to applicants with disabilities is limited to those who ultimately can demonstrate that they

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are qualified to perform the job in issue.4 Applicants with disabilities must be provided reasonable accommodation if they are qualified with respect to the application process (e.g., if they present themselves at the correct location and time to fill out an application). This is the same approach used in the ADA definition.5

Relationship between Section 503 and ADA; Relationship between Affirmative Action and Reasonable AccommodationsAccording to the preamble to the Section 503 regulation, the nondiscrimination provisions generally are conformed to the regulations published by the EEOC implementing Title I of the ADA and amendments to Section 503 included in the Rehab Act Amendments of 1992.6 The final rule conforms OFCCP’s Section 503 regulations to the EEOC’s ADA regulations. Because the nondiscrimination provisions of the section 503 regulation generally conform to the EEOC’s ADA regulations, the Interpretative Guidance set out in the Appendix to the ADA regulations is equally applicable with respect to the interpretation of the parallel provisions of the Section 503 regulations. Similarly, the TA manual on the employment provisions of the ADA issued by EEOC may also be relied upon for guidance.7

Appendix A (duty to provide a reasonable accommodation) to the Section 503 and VEVRAA regulations clarifies the differences between reasonable accommodation and affirmative action under Section 503. Specifically, reasonable accommodation is part of the nondiscrimination obligation. Affirmative action is unique to Section 503 and includes actions above and beyond those required as a matter of nondiscrimination. An example of affirmative action is the requirement that a contractor must make an inquiry of an employee with a known disability who is having significant difficulty performing his or her job.8

Pre-Employment Inquiries—Medical Examinations and Inquiries and Invitation to Self-Identify

Section 503 and VEVRAA Policy Framework Under the regulations implementing Section 503 and VEVRAA (60-741.23; 60-300.23), with limited exception, it is unlawful for the contractor to require a medical exam of an applicant or employee or to make inquiries as to whether an applicant or employee is an individual with a disability or as to the nature or severity of such disability.

The contractor may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without accommodation, the applicant will be able to perform job-related functions.

4 60-741.2(v)5 Preamble to Section 503 Regulation, 61 FR at page 193416 61 FR at page 193367 61 FR 193378 61 FR 19363

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The contractor may require a medical exam and/or inquiry after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such exam and/or inquiry if all entering employees in the same job category are subjected to such an exam and/or inquiry regardless of disability.

The contractor may require a medical exam and/or inquiry of an employee that is job-related and consistent with business necessity. The contractor may make inquiries into the ability of an employee to perform job-related functions.

Medical exams described above do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an applicant or applicants or an employee or employees with disabilities as a result of such exam or inquiries, the contractor must demonstrate that the exclusionary criteria are job-related and consistent with business necessity and that performance of the essential job functions cannot be accomplished with reasonable accommodations.

The contractor may conduct voluntary medical exams and activities which are part of an employee health program.

Information obtained regarding medical condition or history of any applicant or employee shall be collected and maintained on separate forms and in separate medical files and treated as confidential medical record, with the following exceptions:

Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the applicant or employee and necessary accommodations

First-aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment

Government officials engaged in enforcing the laws administered by OFCCP, including the Section 503 regulation or enforcing the ADA, shall be provided relevant information on request

Information obtained regarding the medical condition or history of an applicant or employee shall not be used for any purpose inconsistent with the Section 503 regulation.

In accordance with the regulations implementing Section 503 and VEVRAA (60-741.23; 60-300.23), the contractor shall invite the applicant to self-identify as an individual with a disability as specified in 60-741.42 and 60-300.42. The contractor shall, after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, invite the applicant to inform the contractor whether the applicant believes that he or she may be covered by the Act and wishes to benefit under the affirmative action program.9

The contractor may invite self-identification prior to making a job offer only when:

The invitation is made when the contractor actually is undertaking affirmative action for individuals with disabilities at the pre-offer stage, or

9 60-741.42; 60-300.42

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The invitation is made pursuant to a federal, state, or local law requiring affirmative action for individuals with disabilities

The invitation must state that a request to benefit under the affirmative action program may be made immediately and/or at any time in the future. The invitation must also summarize the relevant portions of the Act and the contractor’s affirmative action program. The invitation must also state that the information is being requested on a voluntary basis, that it will be kept confidential, that the refusal to provide it will not subject the applicant to any adverse treatment, and that it will not be used in a manner inconsistent with the Act.

If an applicant so identifies him or herself, the contractor should also seek the advice of the applicant regarding proper placement and appropriate accommodation, after a job offer has been extended. The contractor may also make such inquiries to the extent they are consistent with the ADA (e.g., in the context of asking applicants to describe or demonstrate how they would perform the job).

The contractor shall maintain a separate file on persons who have self-identified and provide the file to OFCCP upon request. This information may only be used in accordance with the regulation. Because a contractor usually may not seek advice from an applicant regarding placement and accommodation until after a job offer has been extended, the invitation set forth in Appendix B contains instructions regarding modifications to be made if it is used at the pre-offer stage.

Nothing in this Section shall relieve the contractor of its obligation to take affirmative action with respect to those applicants or employees of whose disability the contractor has knowledge. Nothing in this Section shall relieve the contractor from liability for discrimination under the Act.

The Preamble to the Section 503 regulation explains that the Section 503 provision is intended to comport with EEOC regulations and guidance on pre-employment inquiries. Inviting an applicant to self-identify before an offer of employment has been made is permitted only in two limited circumstances: if the invitation is made when the contractor actually is undertaking affirmative action at the pre-offer state; and if the invitation is made pursuant to a federal, state, or local law requiring affirmative action for individuals with disabilities. Further, the invitation must inform the individual that the request to benefit under the contractor’s affirmative action program may be made immediately or at any time in the future.10

A note has been added at the beginning of the Appendix to state that when the invitation to self-identify is being extended prior to an offer of employment, sample text relating to identification of reasonable accommodations should be omitted. This will avoid a conflict with the EEOC’s guidance, which generally precludes asking a job applicant (prior to job offer being made) about potential reasonable accommodations.11

10 61 FR 19344-1934511 61 FR 19349

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Sample Invitation To Self-Identify (Appendix B)Note: When the invitation to self-identify is being extended prior to an offer of employment, as permitted in limited circumstances under 60-741.42(a), paragraph 2(ii) of this Appendix, reasonable accommodations should be omitted to avoid conflict with EEOC’s TA guidance.

1. (FCI) is a Government contractor subject to Section 503 of the Rehabilitation Act of 1973, as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. If you have a disability and would like to be considered under the affirmative action program, please tell us. You may inform us of your desire to benefit under the program at this time and/or at any time in the future. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. [insert brief provision summarizing the relevant portion of affirmative action program]. Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. Information you submit about your disability will be kept confidential except that: (i) supervisors and managers may be informed regarding restrictions on the work or duties of individuals with disabilities and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if the condition might require emergency treatment; and (iii) Government officials engaged in enforcing laws administered by OFCCP or the ADA may be informed.

2. If you are a qualified individual with a disability, we would like to include you under the affirmative action program. It would assist us if you tell us about (i) any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and (ii) the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties related to the job, provision of personal assistance services or other accommodations.

OFCCP Sample Affirmative Action PlanSet out below are the Invitations to Self Identify contained in the OFCCP Sample Affirmative Action Plan.

Invitation to Self-Identify for Qualified Protected Veterans

FCI is a federal contractor subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as amended, which requires federal contractors to take affirmative action to employ and advance in employment qualified disabled veterans and qualified protected veterans.

1. An invitation to veterans of the Vietnam era only: If you are a veteran of the Vietnam era, we would like to include you under our affirmative action program.

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If you would like to be included under the affirmative action program, please tell us. The term “veteran of the Vietnam era” refers to a person who served on active duty for a period of more than 180 days, and was discharged or released there from with other than a dishonorable discharge, if any part of such active duty occurred in the Republic of Vietnam between February 28, 1961 and May 7, 1975, or between August 5, 1964 and May 7, 1975 in all other cases. The term also refers to a person who was discharged or released from active duty for a service-connected disability if any part of such active duty was performed in the Republic of Vietnam between February 28, 1961 and May 7, 1975, or between August 5, 1964 and May 7, 1975 in all other cases.

2. An invitation to qualified disabled veterans only: If you are a qualified special disabled veteran, we would like to include you in our affirmative action program. If you would like to be included under the affirmative action program, please tell us. This information will assist us in placing you in an appropriate position and in making accommodations for your disability. The term “qualified special disabled veteran” refers to a veteran who is entitled to compensation (or who, but for the receipt of military retired pay, would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability rated at 30 percent or more, or rated at 10 or 20 percent in the case of a veteran who has been determined by the Department of Veterans Affairs to have a serious employment handicap. The term also refers to a person who was discharged or released from active duty because of a service-connected disability.

3. An invitation to both (1) veterans of the Vietnam era and (2) qualified disabled veterans: If you are a veteran of the Vietnam era or a qualified special disabled veteran, we would like to include you under our affirmative action program. If you would like to be included under the affirmative action program, please tell us. The term “veteran of the Vietnam era” refers to a person who served on active duty for a period of more than 180 days, and was discharged or released there from with other than a dishonorable discharge, if any part of such active duty occurred in the Republic of Vietnam between February 28, 1961 and May 7, 1975, or between August 5, 1964 and May 7, 1975 in all other cases. The term also refers to a person who was discharged or released from active duty for a service connected disability if any part of such active duty was performed in the Republic of Vietnam between February 28, 1961 and May 7, 1975, or between August 5, 1964 and May 7, 1975 in all other cases. The term “qualified special disabled veteran” refers to a veteran who is entitled to compensation (or who, but for the receipt of military retired pay, would be entitled to compensation) under laws administered by the Department of Veterans Affairs, for a disability rated at 30 percent or more, or rated at 10 or 20 percent in the case of a veteran who has been determined by the Department of Veterans Affairs to have a serious employment handicap. The term also refers to a person who was discharged or released from active duty because of a service-connected disability.

You may inform us of your desire to benefit under the program at this time and/or at any time in the future.

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Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.

The information you submit will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of qualified disabled veterans, and regarding necessary accommodations; (ii) first aid and safety personnel may be informed, when and to the extent appropriate, if you have a condition that might require emergency treatment; and (iii) government officials engaged in enforcing laws administered by OFCCP, or enforcing the Americans with Disabilities Act, may be informed.

If you are a qualified special disabled veteran it would assist us if you tell us about (i) any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and (ii) the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties relating to the job, provision of personal assistance services or other accommodations. This information will assist us in placing you in an appropriate position and in making accommodations for your disability.

A written copy of this Affirmative Action Program is available for inspection by any employee or applicant for employment, during normal business hours, in the Administration Department. Interested persons should contact the Personnel Manager at 555-555-1212 for assistance.

Note: Paragraph 6 (ii) above will be omitted if this invitation to self-identify is being extended prior to an offer of employment. This avoids conflict with EEOC’s guidance under the ADA, which in most cases precludes asking a job applicant about potential reasonable accommodations prior to a job offer being made.

Invitation to Self-Identify for Individuals with Disabilities

FCI is a Government contractor subject to section 503 of the Rehabilitation Act of 1973, as amended, which requires Government contractors to take affirmative action to employ and advance in employment qualified individuals with disabilities.

If you have a disability and would like to be considered under the affirmative action program, please tell us.

You may inform us of your desire to benefit under the program at this time and/or at any time in the future. This information will assist us in placing you in an appropriate position and in making accommodations for your disability.

Submission of this information is voluntary and refusal to provide it will not subject you to any adverse treatment. The information provided will be used only in ways that are not inconsistent with Section 503 of the Rehabilitation Act.

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Information you submit about your disability will be kept confidential, except that (i) supervisors and managers may be informed regarding restrictions on the work or duties of qualified individuals with disabilities, and regarding necessary accommodations; (ii) first-aid and safety personnel may be informed, when and to the extent appropriate, if the condition might require emergency treatment; and (iii) government officials engaged in enforcing laws administered by OFCCP or the Americans with Disabilities Act, may be informed.

If you are a qualified individual with a disability, we would like to include you under the affirmative action program. It would assist us if you tell us about (i) any special methods, skills, and procedures which qualify you for positions that you might not otherwise be able to do because of your disability so that you will be considered for any positions of that kind, and (ii) the accommodations which we could make which would enable you to perform the job properly and safely, including special equipment, changes in the physical layout of the job, elimination of certain duties relating to the job, provision of personal assistance services or other accommodations.

A written copy of this Affirmative Action Program is available for inspection by any employee or applicant for employment, during normal business hours, in the Administration Department. Interested persons should contact the Personnel Manager at 555-555-1212 for assistance.

Note: Paragraph 6 (ii) above will be omitted if this invitation to self-identify is being extended prior to an offer of employment. This avoids conflict with EEOC’s guidance under the ADA, which in most cases precludes asking a job applicant about potential reasonable accommodations prior to a job offer being made.

Examples of Selected Portions of AAPs Related to Self-Identification Submitted to OFCCPMost of the affirmative action programs reviewed simply restate the language included in the OFCCP Sample AAP related to self-identification. Set out below are examples of policies and practices that vary from those included in the OFCCP Sample:

With reference to the revised regulations to Section 503 of the Rehabilitation Act of 1973 as amended and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as amended, the contractor no longer asks applicants to self-identify, even voluntarily, their status as a special disabled veteran or an individual with disabilities until after an offer of employment has been made and before the person’s employment commences.

Following an offer of employment but prior to an individual beginning other employment duties, the company invites job applicants who are individuals with disabilities or Covered Veterans and believe themselves covered by the Rehabilitation Act of 1973 as amended, or the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as amended, to identify themselves in order to receive the benefits of affirmative action. If an individual identifies himself or herself as an individual with a disability or a disabled veteran, the

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Company seeks the advice of the individual concerning any necessary accommodations to allow the individual to perform his/her job.

Employees who believe themselves covered by the Plan, either as veterans or as individuals with disabilities, are invited to self-identify. The invitation states that the information will be kept confidential, refusal will not subject the applicant or employee to any adverse treatment, and that the information will only be used in accordance with appropriate regulations.

o We are an Equal Opportunity/Affirmative Action employer and voluntarily comply with the laws and regulations related to employment and the advancement of employment opportunities for qualified disabled persons, disable veterans, Vietnam-era veterans, women and member so minority groups. Any information you provide is voluntary, confidential, and separate from your application. The information is used for government reporting and affirmative action recordkeeping only. Refusal to provide the information will not subject you to adverse treatment.

o Our employment application includes the supplemental page inviting veterans to self-identify. Our applicant tracking system captures this information. Our practice for inquiring about any disability is as follows:

After making an offer of employment to a job applicant and before the applicant begins his or her employment duties, the recruiter shall invite the applicant to complete a new hire self-identification form to indicate if covered by the Rehabilitation Act.

Neither the hiring manager, recruiter, nor any other company representative will make a pre-employment invitation to self-identify disabilities.

It is the organization’s policy and procedure to provide this self-identification opportunity after the employment offer.

The form of invitation is as prescribed by the regulations: it indicates that identification may be made now or at any time in the future, and it summarizes the relevant potions of the Acts and of the company’s AAP.

The invitation states that the information is voluntary and will be kept confidential and will be used in a manner consistent with law.

Human resources will maintain a separate file list of persons who have self-identified and will provide that list to the OFCCP upon request. This data is maintained on our HR System database for reporting purposes.

2. Equal Opportunity ClauseUnder the regulations implementing Section 503 and VEVRAA (60-741.5; 60-300.5), each Government contract agency and each Government contractor shall include the following equal opportunity clause in each of its covered government contracts or subcontracts (and modifications, renewals, and extensions thereof if not included in the original contract).

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Equal Opportunity for Workers with DisabilitiesEqual Opportunity for Disabled Veterans, Recently Separated Veterans, Other Protected Veterans, and Armed Forces Service Medal Veterans.

The following language reflects the policy in the Section 503 regulation (VEVRAA includes comparable but not identical language).

The contractor will not discriminate against any employee or applicant for employment because of a physical or mental disability in regard to any position for which the employee or applicant for employment is qualified.

The contractor agrees to take affirmative action to employ, advance in employment, and otherwise treat qualified individuals with disabilities without discrimination based on their physical or mental disability in all employment practices, including the following:

Recruitment, advertising, a job application procedures Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff,

termination, right of return from layoff and rehiring Rates of pay or any other form of compensation and changes in compensation Job assignments, job classification, organizational structures, position

descriptions, lines of progression, and seniority lists Leaves of absence, sick leave, or any other leave Fringe benefits available by virtue of employment, administered by the

contractor Selection and financial support for training, including apprenticeship,

professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training

Activities sponsored by the contractor including social or recreational programs Any other terms, conditions, or privilege of employment

The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices in a form to be prescribed by OFCCP. Such notices shall state the rights of applicants and employees as well as the obligation under law to take affirmative action to employ and advance in employment qualified employees and applicants with disabilities. The contractor must ensure that applicants and employees with disabilities are informed of the contents of the notice (e.g., the contractor may have the notice read to a visually disabled individual, or may lower the posted notice so that it might be read by a person in a wheelchair).

3. Components of Affirmative Action Program; Key Components of Other Affirmative Action Programs and Civil Rights Laws

Components of AAP under Section 503 and VEVRAA

In general, the affirmative action program must set forth the contractor’s policies and procedures in accordance with the section 503 regulation. This program may be integrated into or kept separate from other affirmative action programs. The affirmative

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action program shall be reviewed and updated annually.12 The full affirmative action program must be available to any employee or applicant for employment for inspection upon request.13 Under the affirmative action obligations imposed by the Act, contractors shall not discriminate because of physical or mental disability and shall take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level. Such action shall apply to all employment activities.14

OFCCP regulations implementing Section 503 and VEVRAA require covered federal contractors and subcontractors to develop affirmative action plans that include the ten major components outlined below.

1. Policy statement: Prepare and post an equal opportunity policy statement.2. Review personnel processes: Review personnel processes to ensure job

applicants and employees with disabilities are considered for all job vacancies and training opportunities and are not stereotyped in a manner which limits their access to all jobs for which they are qualified.

3. Job qualification standards: Review all job qualification standards to ensure that they are job-related for the position in question and consistent with business necessity.

4. Reasonable accommodations: Make reasonable accommodations to the known functional limitations of otherwise qualified individuals with disabilities.

5. Harassment procedures: Develop and implement procedures to ensure that employees with disabilities are not harassed because of disability.

6. External dissemination of policy, outreach and positive recruitment: Undertake appropriate outreach and positive recruitment activities.

7. Internal dissemination of policy: Develop procedures to disseminate information about affirmative action policies within a company in order to ensure greater employee cooperation and participation.

8. Audit and reporting system: Design and implement an audit and reporting system to measure the effectiveness of an affirmative action program. Where an affirmative action program is found to be deficient, actions must be taken to remedy the situation.

9. Assignment of Responsible employee: Assign a company official to be responsible for the implementation of affirmative action activities.

10. Training of personnel: Train all personnel involved in recruitment, screening, selection, promotion, disciplinary action and related processes to ensure that affirmative action steps are taken.

In 2004, OFCCP developed a Section 503 and VEVRAA Sample Affirmative Action Program (Sample AAP). The Sample AAP includes model language for each of the ten components of the plan.

12 60-741.40; 60-300.4013 60-741.41; 60-300.4114 60-741.43; 60-300.43

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Significant Differences between AAPs under Section 503/VEVRAA and Executive Order 11246It is important to note a significant difference between AAPs developed in accordance with Section 503 and VEVRAA and the implementing regulations and AAPs developed in accordance with Executive Order 11246 and the implementing regulations (See 41 CFR Part 60-2.10). Under regulations implementing Executive Order 11246, affirmative action programs contain, among other things, a diagnostic component which includes a number of quantitative analyses designed to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools. Affirmative action programs also include action-oriented programs. If women and minorities are not being employed at a rate to be expected given their availability in the relevant labor pool, the contractor’s affirmative action program includes specific steps designed to address the underutilization. Effective affirmative action programs also include internal auditing and reporting systems as a means of measuring the contractor’s progress toward achieving the workforce that would be expected in the absence of discrimination. Regulations implementing Section 503 and VEVRAA do not include comparable requirements.

Use of Goals and Statistical Analyses under Section 501 of the Rehabilitation ActIt should be noted that under EEOC Management Directive 715 (October 1, 2003) implementing Section 501 of the Rehabilitation Act (affirmative action by federal agencies), federal agencies are required to conduct an internal review and analysis of the effects of all current and proposed policies, practices and procedures and conditions that, directly or indirectly, relate to the employment of individual with disabilities. As part of the analysis, an agency must collect and evaluate information and data necessary to make an informed assessment.

A snapshot of the numerical representation and distribution of applicants and employees with disabilities can alert an agency to possible barriers. The Directive notes that “with regard to the absence of reliable data for individuals with disabilities, any statistical analysis is complicated by the fact that disabilities are individual in nature, making gross statistical comparisons of limited value. Notwithstanding these limitations, any agency’s analysis of the above information can help facilitate an assessment concerning the extent to which persons with disabilities offered equal employment opportunity. Statistical information may be a useful starting point for a more thorough examination of the agency’s physical facilities, electronic and information processes, personnel policies, selection and promotion procedures, evaluation procedures, rules of conduct and training systems to ensure full accessibility for individuals with disabilities.”

The self-assessment must encompass the full spectrum of employment, including workforce distribution (permanent and temporary), major occupational groups, grade level, applicants, promotions, voluntary and involuntary separations, requests for reasonable accommodations, compliance with Section 508 complaints.

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More specifically, EEOC requires agencies with 1,000 or more employees to maintain a special recruitment program for persons with targeted disabilities and to establish specific goals for the employment and advancement of such individuals. All agencies, regardless of their size should ensure that goals “are set and accomplished in such a manner that will affect measurable progress from the preceding fiscal year.”

To better understand the status of persons with targeted disabilities in the federal work force, EEOC has collected data from the Central Personnel Data File maintained by the Office of Personnel Management as well as reports that agencies have submitted to EEOC, including Form 462 and MD-715 Reports. The most recent EEOC report Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force (January 2008) provide data, and where appropriate, trend analysis on topics such as:

Persons with targeted disabilities in the federal work force Goals for recruitment of persons with targeted disabilities Ranking of cabinet level agencies by percentage of persons with targeted

disabilities Grade groupings of persons with targeted disabilities Participation of persons with targeted disabilities by type of targeted disabilities New hires or persons with targeted disabilities Separation of persons with targeted disabilities Promotion of persons with targeted disabilities Awards for persons with targeted disabilities Most frequently raised issues in complaints alleging disability discrimination.

Methods of Administration Plans under Section 188 of the Workforce Investment ActIn addition to reviewing the policy framework with respect to Section 501 of the Rehabilitation Act, I reviewed Section 188 of the Workforce Investment Act (equal opportunity/nondiscrimination provisions) and guidance issued by the Civil Rights Center at the US Department of Labor. In 2000, CRC published in the Federal Register State Guidance for Developing Methods of Administration Required by Regulations Implementing Section 188 of the Workforce Investment Act of 1998; Notice.15 An MOA is a document that describes the actions an individual state will take to ensure that its WIA Title I-financially assisted programs, activities, and recipients are complying, and will continue to comply, with the nondiscrimination and equal opportunity requirements of WIA and its implementing regulations. The MOA must be in writing, addressing each element, with both a narrative and a documentation section for each element; reviewed and updated; and signed.

According to CRC:

“The first section of each element should be a narrative description of how the state and its recipients are meeting and will continue to meet the applicable requirements. The narrative should be specific. CRC regards the

15 65 FR 51984-51985 (August 25, 2000)

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narrative as the more important section since it contains the description of what the state and its recipients are doing and will continue to do to fulfill their obligations. The second section of each element should include documentation that shows how the state is carrying out that element of the MOA. When reviewing the adequacy of and/or performance under an MOA, CRC may request additional supporting documentation.”

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III. AAP—Policy StatementThis section of the paper describes and analyzes the first component of an affirmative action program—policy statement.

1. Section 503 and VEVRAA Regulatory FrameworkIn accordance with the regulations implementing Section 503 and VEVRAA, the contractor shall include an equal opportunity policy statement in its affirmative action program and shall post the policy statement on company bulletin boards. The contractor must ensure that applicants and employees with disabilities are informed of the contents of the policy statement (for example, the contractor may have the statement read to a visually disabled individual or may lower the posted notice so that it may be read by a person in a wheelchair).16

The policy statement should indicate the CEO/s attitude on the subject matter, provide for an audit and reporting system, and assign overall responsibility for the implementation of affirmative action activities. Additionally, the policy should state, among other things, that the contractor will do the following:

Recruit, hire, train, and promote persons in all job titles Ensure that all other personnel actions are administered without regard to

disability Ensure that all employment decisions are based only on valid job requirements

The policy must also state that employees and applicants shall not be subjected to harassment, intimidation, threats, coercion, or discrimination because they engaged in or may engage in any of the following activities:

Filing a complaint Assisting or participating in an investigation, compliance review, hearing, or any

other activity related to the administration of Section 503 or any other federal, state, or local law requiring equal opportunity for persons with disabilities

Opposing any act or practice made unlawful under Section 503 or its implementing regulations or any other federal, state, local law requiring equal opportunity for persons with disabilities

Exercising any other right protected by Section 503 or its implementing regulations

2. OFCCP Sample Affirmative Action PlanIt is the policy of Federal Contractor, Inc. (FCI) not to discriminate against any employee or applicant for employment because he or she is a qualified individual with a disability, a disabled veteran, a newly separated veteran, a campaign veteran, or an armed forces service medal veteran (i.e., qualified protected veterans). It is also the policy of FCI to take affirmative action to employ and to advance in employment, all persons regardless of their status as qualified individuals with disabilities or qualified protected veterans, and to base 16 60-741.44(a); 60-300.44(a); Preamble 61 FR 19345

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all employment decisions only on valid job requirements. This policy shall apply to all employment actions, including but not limited to recruitment, hiring, upgrading, promotion, transfer, demotion, layoff, recall, termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship, at all levels of employment.

Employees of and applicants to FCI will not be subject to harassment, intimidation, threats, coercion, or discrimination because they have engaged or may engage in filing a complaint, assisting in a review, investigation, or hearing or have otherwise sought to obtain their legal rights related to any Federal, State, or local law regarding EEO for qualified individuals with disabilities or qualified protected veterans.

As General Manager of FCI, I am committed to the principles of Affirmative Action and Equal Employment Opportunity. In order to ensure dissemination and implementation of equal employment opportunity and affirmative action throughout all levels of the company, I have selected the Personnel Manager as the Equal Employment Opportunity (EEO) Manager for FCI. One of the Personnel Manager’s duties will be to establish and maintain an internal audit and reporting system to allow for effective measurement of FCI’s programs.

In furtherance of FCI’s policy regarding Affirmative Action and Equal Employment Opportunity, FCI has developed a written Affirmative Action Program which sets forth the policies, practices and procedures which FCI is committed to applying in order to ensure that its policy of non-discrimination and affirmative action for qualified individuals with disabilities and qualified protected veterans is accomplished. This Affirmative Action Program is available for inspection by any employee or applicant for employment upon request, during normal business hours, in the Administration Department. Interested persons should contact the Personnel Manager at 555-555-1212 for assistance.

3. Examples of Selected Portions of Policy Statements in AAPs Submitted to OFCCP and From Company Websites

An overwhelming percentage of the policy statements contained in affirmative action programs we reviewed simply repeat the language included in the Sample AAP. Set out below are statements by companies on their websites about their commitment to hiring, retaining, and advancing in employment individuals with disabilities. To reiterate, these statements were not included in affirmative action programs submitted to OFCCP.

“Diversity is individuality. It’s a wide spectrum of traits, including personal style, age, race, gender, ethnicity, sexual orientation, gender identity or expression, language, physical ability, religion, family, citizenship status, socioeconomic circumstances, education, and life experiences. We see diversity as any trait that makes someone unique and does not interfere with effective job performance.”

“(The Contractor) is proud of its commitment to diversity and inclusion among its employees. We believe that having a diverse workplace isn’t just the right thing to do, it makes good business sense. We strive to capitalize on the strengths of our many differences and the advantages of an inclusive workplace.”

“The success of our company depends on more than just producing a great product and delivering outstanding services. It depends on inspiring the dedicated people who come together every day and work with a sense of

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purpose and pride in being the best. That’s why a climate of inclusion is important to our company. A workplace that rewards new ideas, welcomes individual differences and draws on the unique experiences and perspectives of employees makes us better at what we do, as individuals and as a company. Our commitment to equal employment opportunity and diversity helps make our company a great place to work, but it is also a defining value for our company that guides our relationships with customers and the communities we serve. By treating all people with respect and valuing our differences, we can reach our fullest potential.”

“We respect individual differences in culture, ethnicity, and color. We are committed to equal opportunity for all employees and applicants. We are committed to providing a workplace free from all forms of discrimination. We respect the right of individuals to achieve professional and personal balance in their lives. Our commitment is underlined by our current diversity initiatives. They have been formulated to ensure that we attain our core value of diversity as a competitive advantage.”

“We recognize cultural differences exist and different standards apply in various countries, but we believe all terms and conditions of employment should be based on an individual’s ability to do the job, not on the basis of personal characteristics or beliefs. Our company favors suppliers who have a social and political commitment to basic principles of human rights and who do not discriminate against their employees in hiring practices or any other term or condition of work, on the basis of race, color, gender, sexual orientation, national origin, religion, disability, age, or political opinion.”

“Diversity is important to the company’s growth plans. A diverse workforce encourages the creativity and innovation critical to growth and helps build a stimulating work environment. The company wants to maximize diversity, capitalizing on employee differences while enabling all to realize their highest potential and contribute to the enterprise and to society as a whole. … When job openings occur, an extensive employee-résumé system enables hiring managers to search for individuals with the right skills and experience. Training and education enable employees to reach their potential in every discipline from the factory floor to the corporate headquarters.”

“The company recognizes the capabilities and contributions of people with disabilities. We have seen the benefits of recruiting and employing people with disabilities, and we recognize that they provide a valuable resource in helping to ensure that our products meet all of our customer’s needs.”

“Our diverse workforce, supplier base, and supporting culture enable [us] to better serve our customers and compete more effectively in the global marketplace. We value the contributions and perspectives of all employees regardless of race, gender, culture, religion, age, nationality, disability or sexual orientation. We will strive in our workplace practices to deal with our employees, customers and suppliers in a fair and ethical manner.”

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“Our greatest asset is our people. We are committed to providing a workplace where our employees and contractors feel respected, satisfied and appreciated. Our policies are designed to promote fairness and respect for everyone. We hire, evaluate and promote employees, and engage contractors, based on their skills and performance. With this in mind, we will not tolerate certain behaviors. These include harassment, violence, intimidation and discrimination of any kind involving race, color, religion, national origin, gender, sexual orientation, age, disability, veteran status or, where applicable, marital status.”

“As part of our continuing commitment, I would like to take this opportunity to remind you of our equal opportunity and affirmative action policies and the spirit in which we embrace them. Not only are the principles and objectives of these policies a reflection of the law, but they also embody the philosophy of the company Credo. We all share the responsibility of creating an open and welcoming work environment that encourages contributions from people of all backgrounds and experiences. In this way, we can ensure that our workplace reflects the full intent of Our Credo.

“Our equal opportunity policies and affirmative action programs are designed to ensure that all applicants and employees are considered for opportunities without regard to race, color, religion, gender, sexual orientation, gender identity or expression, national origin, age, veteran status or disability except where an accommodation is unavailable and an individual’s disability is a bona fide occupational disqualification. These policies and programs cover every aspect of the employment experience: recruitment, selection, promotion, transfer, layoff, recall from layoff, compensation, access to training, benefits, education, tuition assistance, company-sponsored social and recreational activities, and termination.”

“I, as President and CEO of the company, have the responsibility to ensure that equal employment and affirmative action receive the appropriate level of attention and strong management support. I will hold each officer and manager accountable for the prompt execution of necessary preventive, corrective, and affirmative actions.”

“The company’s affirmative action program for employment of persons with disabilities and covered veterans is an action-oriented program designed to enhance the opportunities for qualified disabled individuals and covered veterans. Recognizing that the ultimate success of this undertaking will be largely the result of ‘good faith efforts’ detailed in this plan, the company has committed to the following action-oriented steps…”

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IV. AAP—Review of Personnel ProcessesThis section describes and analyzes the second component of an affirmative action program—review of personnel processes.

1. Section 503 and VEVRAA Policy Framework. (60-741.44(b); 60-300.44(b)) (See also Appendix C)

In accordance with the regulations implementing Section 503 and VEVRAA, the contractor must ensure that its personnel processes provide for careful, thorough, and systematic consideration of the job qualifications of applicants and employees with known disabilities for job vacancies filled either by hiring or promotion, and for all training opportunities offered or available. The contractor shall ensure that its personnel processes do not stereotype disabled persons in a manner which limits their access to all jobs for which they are qualified. The contractor shall periodically review such processes and make any necessary modifications to ensure that these obligations are carried out. A description of the review and any necessary modifications to personnel processes or development of new processes shall be included in any affirmative action programs required. The contractor must design procedures that facilitate a review of the implementation of this requirement by the contractor and the Government.

Appendix C contains an example of an appropriate set of procedures. The following are selected examples of procedures which contractors may use to meet the requirements of 60-741.44(b) relating to personnel processes:

The application or personnel form of each known applicant with a disability should be annotated to identify each vacancy for which the applicant was considered, and the form should be quickly retrievable for review the DOL and the contractor’s personnel officials for use in investigations and internal compliance activities.

The personnel or application records of each known individual with a disability should include the identification of each promotion for which the employee with a disability was considered and the identification of each training program for which the individual with a disability was considered.

2. OFCCP Sample Affirmative Action PlanFCI reviews annually its personnel processes to determine whether its present procedures assure careful, thorough and systematic consideration of the qualifications of known qualified individuals with disabilities and qualified protected veterans. This review covers all procedures related to the filling of job vacancies either by hire or by promotion, as well as all training opportunities offered or made available to employees.

In determining the qualifications of veterans, FCI limits its consideration of a qualified protected veteran’s military record, including discharge papers, to only that portion of the record, which is relevant to the specific job qualifications for which the veteran is being considered.

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Based upon FCI’s review of its personnel processes, FCI will modify the personnel processes when necessary, and will include the development of new procedures in this Affirmative Action Program to ensure equal employment opportunity. To date, no modifications have been necessary.

3. Examples of Selected Portions of Policy Statements from AAPs Relating to Personnel Policies Submitted to OFCCP

An overwhelming percentage of statements contained in affirmative action programs related to personnel policies we reviewed simply repeat the language included in the OFCCP Sample AAP. Set out below are selected portions of policy statements from AAPs that differ from the Sample.

“In order to determine whether an individual is qualified for a particular job, a close examination of the content of the job is made, as well as a review of the job qualifications of known disabled veterans and individuals with disabilities. In determining the qualifications of a covered veteran, consideration is given only to that portion of the military record, including discharge papers, relevant to the job qualifications for which the veteran is being considered. The following steps are in the review process:

a) “Review employment records to determine the availability of promotable and transferable qualified disabled veterans…and individuals with disabilities presently employed, and to determine whether their present and potential skills are being fully utilized or developed. Note each instance where full representation or development is not accomplished. Develop a procedure specifically designed to address the disparity between incumbency and availability; implement and report results.

b) “Ensure annotation of the personnel form of each known covered veteran or employee with disabilities to identify each vacancy for which the individual was considered, ensure these forms are quickly and easily retrievable for review and internal auditing activities.

c) “Limit the consideration of covered veteran’s military record to only the portion of that record which is relevant to the specific job qualifications for which the veteran is being considered.

d) “Ensure documentation is provided on personnel records of each known covered veteran or employee with disabilities to include promotion for which the employee is considered and training programs for which the employee is considered.

e) “In each instance where a covered veteran or employee with disabilities is rejected for promotion or training, ensure a written statement for the reason for rejection is attached to the personnel file. Ensure the statement includes a comparison of the qualifications of the covered veteran or employee with disabilities with those of the person selected and a description of the accommodations considered where appropriate. Ensure this statement is made available to the employee upon request.

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f) “When accommodations were undertaken which made it possible to promote or train a covered veteran or employee with disabilities, ensure a description of the accommodation is attached to the personnel file. In any instance where accommodations where not undertaken, but could have been, follow-up to determine why accommodations were not made. Identify and implement any corrective action needed to prevent future omissions.

“The company ensures that its personnel processes do not stereotype disabled veterans, recently separated veterans, other protected veterans, armed forces service medal veterans, or individuals with disabilities in a manner which limits their access to jobs for which they are qualified. “The company will also examine and compare minimum medical requirements for entry to the actual duties and physical demands of each reviewed job qualification. “When appropriate, the company will provide the examining physician with information about the work prospective employees will perform in the reviewed job classifications. Identify each physical requirement from the job analysis. Identify all related working conditions and hazards. Ensure the physician understands the company’s desire to eliminate all unnecessary or non-job-related medical requirements.“If needed, provide the physician with any identified possible accommodations to disabilities. “If appropriate, give the medical examination only after an offer of employment is made. Whenever an inquiry is made into an employee’s physical or mental condition or a medical examination is conducted due to a change in employment status, the information is kept confidential, except as otherwise provided for in the regulations.”

“Consistent with the regulations, the company has instituted the following procedures to further assure the careful, thorough, and systematic consideration of the job qualifications of employees or job applicants who are known individuals with disabilities or Covered Veterans for job vacancies, promotions, and/or educational or training opportunities and to assure that its personnel practices facilitate the implementation of the Company’s affirmative action obligations.”

“As covered individuals apply for positions within the Company, their personnel forms will be annotated to identify each vacancy for which the person was considered.The personnel records for each known covered individual will include

o “The identification of each promotion for which the person was consideredo “The identification of each training program for which the person was

considered

“In each case where a covered individual is rejected for employment, training, or promotion, a statement of the reasons will be appended to the file. This

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statement will include a comparison of the qualifications of the covered individual and the person selected.“Where applicants or employees are selected for hire, promotion, or training and the Company undertakes any accommodation which makes it possible to place a covered individual in the job, the Company will keep a record of the accommodation in a confidential medical file. This information will be quickly retrievable for review by government officials and the Company’s personnel officials for use in investigations and compliance activities.”

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V. AAP—Review of Physical and Mental Job Qualification StandardsThis section describes and analyzes the third component of an affirmative action program—review of physical and mental job qualifications.

1. Section 503 and VEVRAA Policy Framework (60-741.44(c); 60-300.44(c))

In accordance with the Section 503 regulations, the contractor must provide in its affirmative action program, and shall adhere to, a schedule for the periodic review of all physical and mental job qualification standards to ensure that, to the extent qualification standards tend to screen out qualified individuals with disabilities, they are job-related for the position in question and are consistent with business necessity. The contractor shall have the burden to demonstrate that the standards are job related and consistent with business necessity. The contractor may also use the direct threat defense.

2. OFCCP Sample Affirmative Action PlanThe physical and mental job qualifications of all jobs were reviewed during calendar year 2003 to ensure that, to the extent that such qualifications requirements tend to screen out qualified individuals with disabilities and qualified disabled veterans, job qualifications are consistent with business necessity and the safe performance of the job.

No qualification requirements were identified which had a screening effect. All job qualification requirements were found to be job-related and consistent with business necessity and safety.

FCI will continue to review physical and mental job qualification requirements whenever a job is vacated and the company intends to fill it through either hiring or promotion and will conduct a qualification review whenever job duties change.

No pre-employment physical examinations or questionnaires are used by FCI’s hiring process.

If at any time in the future FCI should inquire into an employee’s physical or mental condition or should conduct a medical examination prior to a change in employment status, FCI affirms that information obtained as a result of the inquiry will be kept confidential, except as otherwise provided for in the Section 503 regulations. The result of the examination or inquiry will be used in accordance with the Section 503 regulations.

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3. Examples of Selected Portions of AAPs Related to Job Qualification Standards Submitted to OFCCP

An overwhelming percentage of provisions related to job qualification standards in AAPs we reviewed simply restated the language from the OFCCP Sample AAP. Set out below are examples of selected portions of AAP that differed from the OFCCP Sample.

“To ensure that all physical and mental qualifications and requirements are job-related and promote equal employment opportunity for all known covered veterans and employees with disabilities, reviews are periodically made of the company’s physical and mental qualifications and requirements as they relate to employment, training, and promotion.”

“The company’s physical and mental job requirements are reviewed to determine whether or not they are job-related and consistent with business necessity and safe performance on the job.”

“Any previously reviewed classification will be reviewed again if there is a change in working conditions which affects the job’s physical or mental requirements (e.g., new requirements, new equipment).”

“Listed below are the steps used in conducting the physical and mental job requirements review for each job classification:

o “A job analysis is conducted by subject-matter experts (personnel department staff, job incumbents, supervisors, and/or trainers) using a methodology which addresses the content validity requirements of the Uniform Guidelines on Employee Selection Procedures, the requirements of the ADA, and the EEOC’s Technical Assistance Manual for ADA. The job analysis identifies the essential job duties, tasks, and responsibilities, as well as the knowledge, skills, and abilities, including physical and mental requirements, needed to perform them in an efficient and safe manner. Therefore, the updated job description resulting from the job analysis includes only those job requirements which are job-related, consistent with business necessity, and required for safe performance of essential job functions.

o “As appropriate and as resources are available, the company will go beyond this required step, however, and includes a procedure to minimize any adverse impact resulting from its physical and mental requirements. Working with the same subject-matter experts and, if appropriate, specialists such as rehabilitation counselors, and also by referencing our adverse impact analyses conducted for the classification being studied, we identify which job qualification requirements, if any, tend to screen out or might tend to screen out disabled veterans or individuals with disabilities.

o “We then modify the selection procedure to reduce the disqualifying impact, and/or we develop a list of accommodations which can be made to the physical and mental limitations of an employee. Such accommodations may include providing assistive devices, removing architectural barriers, and/or restructuring work sites and job content. The list of accommodations is

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considered a starting point only, with the understanding that employees may bring to our attention additional accommodations which can be made on a case-by-case basis.

o “Finally, we make the job analysis, the modified selection procedure, and/or list of identified accommodations available to all members of management involved in the promotion process.”

“This facility has reviewed physical or mental qualification requirements for jobs to insure that they are job related and consistent with business necessity and safe performance. These reviews were conducted through combined efforts of a medical professional, personnel manager, and respective supervisors of each department. As a result of these reviews, functional requirements have been designated for each job. These functional requirements are reviewed as job openings occur and disabled individuals/special disabled veterans are considered for those jobs.”

4. Examples of Practices from the Section 188 Disability ChecklistSet out below are questions included in the DOL Section 188 Disability Checklist. These issues identified in the Checklist may serve as the basis for examples of practices that could be addressed by Government contractors in their AAPs (simply substitute contractor for recipient).

“Provide for and Adhere to a Schedule to Evaluate Job Qualifications to Ensure That the Qualifications Do Not Discriminate on the Basis of Disability (5.8 Employment Practices)

5.8.3 For employment, does the recipient review job qualifications to ensure that it does not use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability on the basis of that disability, unless the standard, test or other selection criteria, as used, is job-related for the position in question and consistent with business necessity?For employment-related training, does the recipient review selection criteria to ensure that they do not screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying the training unless the criteria can be shown to be necessary for the training being offered?For employment and employment-related training, does the recipient select and administer employment and training tests that, when administered to an individual with a disability that impairs sensory, manual, or speaking skills, accurately reflect the skills, aptitude, or other factors that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of the individual?”

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VI. AAP—Reasonable Accommodation to Physical and Mental LimitationsThis section describes and analyzes the fourth component of an affirmative action program—reasonable accommodation to physical and mental limitations.

1. Section 503 and VEVRAA Policy Framework (60-741.44(d); 60-300.44(d); 61 FR 19345)

In accordance with the regulations implementing Section 503 and VEVRAA, the contractor must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

If an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the known disability, the contractor shall confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability; if the employee responds affirmatively, the contractor shall confidentially inquire whether the employee is in need of a reasonable accommodation.

Appendix A includes guidelines on a contractor’s duty to provide reasonable accommodation. The guidelines are in large part derived from, and are consistent with, the discussion regarding the duty to provide reasonable accommodation contained the Interpretive Guidance on Title I of the ADA issued by the EEOC.

2. OFCCP Sample Affirmative Action PlanFCI commits to making a reasonable accommodation to the known physical and mental limitations of qualified individuals with disabilities and qualified disabled veterans, unless such accommodation would impose an undue hardship on the conduct of its business. In determining the extent of its obligation, FCI will consider business necessity and financial costs and expenses, among other factors.

3. Section 501 of the Rehabilitation Act In accordance with EEOC’s Management Directive 715, federal agencies must establish written procedures for reasonable accommodation requests. The procedures should address at least the following:

The personnel whom employees, selectees, or applicants should initially contact to request a reasonable accommodation

The personnel forms, if any, that an individual may be asked to complete in connection with a request for an accommodation

The circumstances in which supervisors or other should initiate inquiries about the need for an accommodation

The personnel and/or offices that must approve an accommodation request

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The amount of time decision makers have to answer requests for accommodation

An explanation of when decision-makers may request documentation of the existence of a disability or the need for an accommodation

The resources, including technical assistance, available to decision makers to gain information about possible accommodations for particular disabilities

The ways in which accommodations may be funded The documentation, if any, that must be maintained concerning the

consideration and disposition of requests for accommodation The process that individuals may follow to appeal denials of requests for

accommodation or for specific accommodations

4. Examples of Selected Portions of AAPs Related to Reasonable Accommodations Submitted to OFCCP

An overwhelming percentage of provisions related to reasonable accommodations in AAPs reviewed simply repeat the language set out in the OFCCP Sample AAP. Set out below are examples of statements that differ from the OFCCP Sample.

“The contractor has a full-time Director of ADA Services to ensure the effectiveness of our reasonable accommodations process and to provide training to the campus community regarding disability issues in employment.”

“The contractor has established a number of services for accommodations and general access needs, which are listed on the Company’s website:

o “The Office of the Chief Information Officer has established an Assistive Technology Team that offers computer needs assessments and assistive technology for reasonable accommodations and program accessibility. The team also tests computer software for accessibility to disabled individuals.

o “The contractor’s Assistive Technology Center showcases emerging and existing technology solutions to assist individuals with disabilities. The Center provides periodic demonstrations of new products where employees and supervisors may see real solutions in action.

o “The contractor provides Computer Assisted Real-Time Transcription (CART) to improve access to meetings or events for deaf or hearing impaired people.

o “The contractor’s Alternative Format Center produces documents in Braille, audiotape and other alternate formats.

o “The contractor provides services for closed or open captioning of videotapes, broadcast events, or live satellite feeds. All ED videos must be captioned.”

“Information and policy on reasonable accommodations and related support services are available on the contractor’s web pages.”

“In addition, the contractor has developed a handbook on reasonable accommodations, including policy and procedures.”

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“The contractor understands that accommodating and enabling employees to perform the necessary functions of their jobs ultimately enhances our ability to develop great products and services for everyone. One of the ways we do this is through the company’s Accessibility Lab, which provides employees with the opportunity to experience assistive technologies and ergonomic hardware designs firsthand in the lab. This enables us to determine appropriate methods, techniques, and products that can help maintain or improve job performance while increasing comfort. The Accessibility Lab has been very helpful in assisting employees with disabilities to be more productive, comfortable, and injury-free at work.”

“The contractor is committed to working with and providing reasonable accommodation to applicants with physical or mental disabilities. Applicants applying for a position with a physical or mental disability who require a reasonable accommodation for any part of the application or hiring process may contact the company’s Employee Relations Department at 408-862-1160 or EmployeeRelations@[company].com for assistance. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.”

“If an employee with a known disability is having significant difficulty performing his or her job and it is reasonable to conclude that the performance problem may be related to the employee’s known disability, the company will confidentially notify the employee of the performance problem and inquire whether the problem is related to the employee’s disability. If the employee responds affirmatively, the company will confidentially inquire whether the employee is in need of a reasonable accommodation.”

5. Examples of Practices from the Section 188 Disability ChecklistSet out below are questions included in the DOL Section 188 Disability Checklist. These issues identified in the Checklist may serve as the basis for examples of practices that could be addressed by Government contractors in their AAPs (simply substitute contractor for recipient).

Provide Reasonable Accommodation for Individuals with Disabilities The recipient has a written policy explaining that a recipient must make

reasonable accommodation to the known physical or mental impairments of an otherwise qualified individual with a disability who is an applicant, registrant, eligible applicant/registrant, or participant.

The policy explains that a recipient is not required to provide a reasonable accommodation if it would cause undue hardship.

The policy describes the appropriate process for determining whether an accommodation would cause an undue hardship and the consequences of such a determination.

The policy includes processes for handling requests for reasonable accommodations; e.g., the procedure provides for designation of a specific

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supervisory staff member to coordinate reasonable accommodation, including determining whether an accommodation is or is not reasonable.

The policy explains the circumstances under which reasonable accommodation must be provided (e.g., application, core, intensive, training, and support services).

The policy provides for maintenance of records of the types of accommodations provided.

The policy includes examples of reasonable accommodations.

Orientation The recipient’s staff asks all registrants (including individuals with disabilities)

whether they need assistance during the application/orientation process. The recipient’s staff offers assistance in filling out forms and application

materials during intake to all persons, including persons with disabilities. Intake workers inform individuals that if they have a disability they can disclose

their disability and seek reasonable accommodation, reasonable modification, and auxiliary aids and services. In addition, it is made clear that disclosure is voluntary and information regarding disability will be kept confidential and maintained in a separate file.

Staff working with persons with disabilities obtain permission from the individual before discussing information about his or her disability with other staff and other agencies.

All discussions between staff and customers are conducted in a manner that ensures the preservation of confidentiality.

Initial Screening and Assessment Initial intake procedures used by the recipient direct staff to notify registrants if

there is an initial indication that an individual has a disability that may impact his or her ability to benefit from services provided to nondisabled persons. The procedures instruct the intake worker to provide the individual with an opportunity for a more comprehensive assessment conducted by qualified personnel to make such a determination.

Service Delivery (Training) To the extent a recipient provides services (e.g., education and training

opportunities, labor market information, job listing and job search assistance, resume and cover letter preparation, etc.) on a self-service basis, the recipient’s staff provides appropriate assistance to individuals with disabilities so that they can effectively benefit from such services (including assistance in using computers and other forms of technology).

To the extent the recipient provides or makes available through contract or other arrangement intensive and training services with eligible training providers:

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o The recipient collaborates with other agencies that have knowledge of promising practices for addressing the unique needs of persons with disabilities (e.g., physical, mental/cognitive, and sensory impairments).

o There are an adequate supply of qualified providers (including specialized service providers) that have the requisite knowledge, expertise, and experience to address the needs of individuals with disabilities.

o The procedures for reimbursing providers take into consideration the additional costs of providing reasonable accommodations and auxiliary aids and services to individuals with disabilities.

Reasonable modifications are made to eligibility criteria for training services in order to ensure that individuals with disabilities have an opportunity to benefit from such services that is as effective as that provided to nondisabled customers.

Manuals, guidelines, or other materials used by the recipient’s staff (and used to train recipient’s staff) include examples of reasonable modifications to ensure that individuals with disabilities are provided effective opportunity to benefit from training services.

Factors such as the place, time, and lighting are altered for persons with disabilities to enable them to read and comprehend materials. For example, access to a quiet environment is made available for individuals with disabilities who require such a quiet environment in order to read and comprehend materials.

Able to Communicate with Persons with Disabilities as Effectively as with Others

The recipient’s staff informs customers of its obligation to ensure effective communication and its obligation to provide appropriate auxiliary aids and services.

The recipient has a list, in an accessible format, of all currently available assistive technology devices and services. For example, a recipient might include in its list that VCRs and TV monitors have closed caption capability; that Ovac is available; that ZoomText has been installed in computers available in resource areas; and that Pocket Talkers are provided for hard of hearing customers.

For customers that are deaf and hard of hearing, the recipient adopts the following strategies to ensure effective communication:

o The staff members secure a qualified sign language interpreter, where necessary, on a timely basis.

o All appropriate employees know how to use a TDD/TTY and the telephone relay service to make and receive calls. TDDs/TTYs are maintained in good working order. Test calls are made on a periodic basis to ensure that TDD/TTY calls are answered to the same extent as voice calls.

o If the recipient has courtesy telephones that the public may use for outgoing calls, it considers making available a portable TDD/TTY for public use (as currently required by the Americans with Disabilities Act Accessibility

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Guidelines, which are applicable to entities subject to Title III of the Americans with Disabilities Act (public accommodations and commercial facilities) and some entities subject to Title II of the ADA (the Department of Justice currently permits state and local governments subject to Title II of the ADA to follow either UFAS or ADAAG standards)). If the recipient does make a portable TDD/TTY available, it posts a notice at the location of each courtesy telephone advising the public on how the portable TDD/TTY may be obtained, and instructs staff on the location of the portable TDD/TTY and its use.

For customers who are blind or visually-impaired, the recipient adopts the following strategies to ensure effective communication:

o Staff members have materials transcribed into Braille or large print, recorded on audiocassette, or placed on ASCII diskette, on a timely basis.

o If the recipient has a video library for public use, the videos purchased are available with audio descriptions.

For customers with cognitive disabilities (e.g., persons with brain injury, mental retardation, and learning disabilities), the recipient adopts the following strategies to ensure effective communication:

o Staff members offer assistance with and/or extra time for the completion of forms and written instructions.

o Staff members repeat instructions, provide information in a slower voice, and use simple sentences and words and use graphics (e.g., symbols, pictures).

o Staff members provide a quiet environment for people to read materials if the public area has distractions.

For customers with mobility impairments, the recipient adopts the following strategies to ensure effective communication:

o Staff members put themselves at the wheelchair user’s eye level (if possible, sit next to the customer when having a conversation).

o Staff members provide a clipboard as a writing surface if counters or reception desks are too high, and come around to the customer side of the desk/counter during interaction.

For customers with speech impairments, the recipient adopts the following strategies to ensure effective communication:

o If a staff member does not understand something, he or she does not pretend to understand. The staff member asks the customer to repeat what he or she said and then repeats it back.

o Staff members ask questions that require only short answers, or a nod of the head.

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o If a staff member has difficulty understanding the customer, he or she considers having the customer write or sit at a computer screen as an alternative, but first asks whether this is acceptable.

o If no solution to the communication problem can be worked out, the staff member asks if there is someone who could interpret on the customer’s behalf.

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VII. AAP—Harassment Prevention Procedures This section describes and analyzes the fifth component of an affirmative action program—harassment prevention procedures.

1. Section 503 and VEVRAA Policy Framework According to the regulations implementing Section 503 and VEVRAA, the contractor must develop and implement procedures to ensure that its employees with disabilities are not harassed because of disability.17

2. OFCCP Sample Affirmative Action PlanEmployees of and applicants to FCI will not be subject to harassment, intimidation, threats, coercion, or discrimination because they have engaged or may engage in filing a complaint, assisting in a review, investigation, or hearing or have otherwise sought to obtain their legal rights related to any federal, state, or local law regarding EEO for qualified individuals with disabilities or qualified protected veterans. Any employees or applicants who feel that they have been subject to harassment, intimidation, threats, coercion, or discrimination because of their disability or status as a qualified protected veteran should contact the Personnel Manager at 555-555-1213 for assistance. This policy is communicated to all employees and supervisors annually, most recently on December 1, 2003, and a notice is posted in the personnel office.

17 60-741.44(e); 60-300.44(e)

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VIII. AAP—External Dissemination of Policy, Outreach and Positive Recruitment Activities This section describes and analyzes the sixth component of an affirmative action program—external dissemination of policy, outreach and positive recruitment activities.

1. Section 503 and VEVRA Policy Framework (60-741.44(f); 60-300.44(f))

In accordance with the regulations implementing Section 503 and VEVRAA, the contractor must undertake appropriate outreach and positive recruitment activities that are reasonably designed to effectively recruit qualified individuals with disabilities. The scope of the contractor’s efforts will depend on all the circumstances including the contractor’s size and resources and the extent to which existing employment practices are adequate.

Examples of appropriate outreach and positive recruitment activities:

The contractor should enlist the assistance and support of recruiting sources (including state employment security agencies, state vocational rehabilitation agencies, sheltered workshops, college placement officers, state educational agencies, labor organizations, and organizations of or for individuals with disabilities) for the contractor’s commitment to provide meaningful employment opportunities to qualified individuals with disabilities. Formal briefing sessions should be held, preferably on company premises, with representatives from recruiting sources. Plant tours, clear and concise explanations of current and future job openings, position descriptions, worker specifications, explanations of the company’s selection process, and recruiting literature should be an integral part of the briefing. Formal arrangements should be made for referral of applicants, follow up with sources, and feedback on disposition of applicants.

The contractor’s recruitment efforts at all schools should incorporate special efforts to reach students with disabilities. The contractor should engage in recruitment activities at educational institutions which participate in training of individuals with disabilities such as schools for the blind, deaf, or learning disabled. An effort should be made to participate in work-study programs with rehabilitation facilities and schools which specialize in training and educating individuals with disabilities.

The contractor should establish meaningful contacts with appropriate social service agencies, organization of and for individuals with disabilities, and vocational rehabilitation agencies for such purposes as advice, technical assistance, and referral of potential employees. Technical assistance may consist of advice on proper placement, recruitment, training, and accommodations contractors may undertake, but no such authority providing technical assistance shall have the authority to approve or disapprove the acceptability of affirmative action programs.

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The contractor should include individuals with disabilities when employees are pictured in consumer, promotional, or help wanted advertising. Individuals with disabilities should be made available for participation in career days, youth motivation programs, and related activities in their communities.

The contractor should send written notification of company policy to all subcontractors, vendors, and suppliers requesting appropriate action on their part.

The contractor should take positive steps to attract qualified individuals with disabilities not currently in the work force who have requisite skills and can be recruited through affirmative action measures. These persons may be located through the local chapters of organizations of and for individuals with disabilities.

The contractor, in making hiring decisions, should consider applicants with known disabilities for all available positions for which they may be qualified when the position applied for is unavailable.

2. OFCCP Sample Affirmative Action PlanAll subcontractors, vendors and suppliers have been sent written notification of FCI’s Equal Employment Opportunity and Affirmative Action policy regarding employment of qualified individuals with disabilities and qualified protected veterans.

All recruiting sources, including State employment agencies, educational institutions, and social service agencies, have been informed of the company’s policy concerning the employment of qualified individuals with disabilities and qualified protected veterans and have been advised to actively recruit and refer qualified persons for job opportunities.

FCI lists all suitable employment openings with the appropriate local office of the State Employment Service and maintains regular contact with the local Veterans Employment Representative. A copy of FCI’s Affirmative Action Policy for qualified individuals with disabilities and qualified protected veterans is provided to the State Employment Service annually.

Formal briefing sessions are held with representatives from recruitment sources and placement agencies, which include facility tours, discussion of current and prospective position openings, job descriptions, and required qualifications and explanations of FCI’s selection procedures. Formal arrangements have been made to ensure that each recruitment source is provided with timely notice of job opportunities, to ensure that recruitment sources have an opportunity to refer qualified candidates.

FCI participates in local job fairs sponsored by support groups for qualified individuals with disabilities and qualified protected veterans.

The equal employment opportunity clause concerning the employment of qualified individuals with disabilities and qualified protected veterans is included in all nonexempt subcontracts and purchase orders.

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3. Examples of Selected Portions of AAPs Related to External Dissemination Submitted to OFCCP

Many of the AAPs reviewed included provisions related to external dissemination that simply repeated the language set out in the OFCCP Sample AAP. Below are examples of statements that differ from the OFCCP Sample.

“The Company’s external policy dissemination, outreach, and positive recruitment includes the following practices:

o “Initiate and maintain communication with organizations having special interest in, and that may assist in, the recruitment of and job accommodations for disabled veterans…and individuals with disabilities. (see examples included A-H)

o “Include workers with disabilities when employees are pictured in consumer, promotional, or help wanted advertising.

o “Disseminate information concerning employment opportunities to radio and television stations, and to publications that primarily reach disabled veterans and individuals with disabilities.

o “Provide information emphasizing job opportunities for disabled veterans and individuals with disabilities to all local educational institutions, public and private.

o “Inform all recruiting sources, in writing and orally, of the company’s affirmative action policy for disabled veterans…and individuals with disabilities.

o “List with the State Employment Service all suitable job openings.o “Include in all Purchase Orders a written notification of the Company’s

affirmative action policy to all subcontractors, vendors, and suppliers requesting appropriate action on their part.

o “Participate in job fairs and work study programs with VA Administration rehabilitation facilities and schools which specialize in training or educating disabled veterans.”

“The Company’s implementation and external dissemination of its policies and the positive steps it takes to attract qualified individuals with disabilities and covered veterans not currently in the work force are set forth as follows:

o “Enlisting the assistance and support of recruiting sources for its commitment to provide meaningful employment opportunities to qualified individuals with disabilities and covered veterans.

o “Establishing meaningful contacts with appropriate social service agencies, organizations and for individuals with disabilities and covered veterans, and vocational rehabilitation agencies and facilities, for such purposes as advice, technical assistance, and referral of potential employees. For example, the Company has partnered with the Disabled American Veterans to provide flexible work options to veterans with disabilities. Also, the Company

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participates in Seamless Transition Apprenticeship Program, a collaborative effort with the US Department of Veterans Affairs Vocational Rehabilitation and Employment Services to provide veterans with employment, mentoring, coaching, training, and other employment services.

o “Listing with JoCentral.com and Direct Employers Network Sites all job openings for which external recruiting will occur, with the exception of executive and top management positions. These Direct Employers Network Sites include DiversityWorking.com, disABLEperson.com, Disaboomjobs.com, and VETcentral. In addition, the Company has a presence on 100 diversity websites, including the National Business and Disability Council site and Monsterdiversity.com and through the company’s relationship with CareerBuilder.com including Disasbilityjobs.org, AbilitesOnLine.org, and Veterans Enterprise.com.

o “Sending written notification of the Company’s policy regarding the employment of qualified individuals with disabilities and covered veterans to all subcontractors, vendors, and suppliers, requesting appropriate action on their part.

o “Taking positive steps to attract qualified individuals with disabilities and qualified covered veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures. For example, the Company annually manages as part of its Military Outreach Plan, approximately 160 nationwide transitioning military events (e.g., job fairs and transition assistance seminars). The Company partners with both EntryPoint and Emerging Leaders to provide internship opportunities to students with disabilities and attends numerous job fairs targeting individuals with disabilities and covered veterans such as Careers in the disabled and Hiring for Heroes Job Fairs.”

“In conjunction with its affirmative action plan for the employment and advancement of qualified disabled individuals and covered veterans, the company undertakes the following outreach and positive recruitment activities:

o “The Company has solidified relationships with Bender Consulting Services, the Office of Vocational Rehabilitation, Life’s Work of Western PA, AHEDD, Goodwill Industries, and NTID. Through these partnerships we are able to employ individuals with disabilities and provide comparable access to electronic and information technology in the workplace.

o “Representatives from these sources receive information on job openings, job descriptions and worker specifications, explanations of the selection process, and tours of the facility.

o “The Company has established a process for referral of applicants for employment, and routinely follows up on the results of the process from these sources.

o “The Company is a member of the Circle of Champions.

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o “The Company is the lead company for the State Business Leadership Network and a member of the National BLN. Both of these organizations foster effective relationships designed to ensure employment opportunities for individuals with disabilities and covered veterans.”

“The Company will develop a variety of resources and networks to enhance opportunities for employment and assist in actively recruiting people with disabilities. Some resources that the Company will use are:

o “State VR Agencies and the US Department of Veterans Affairso “The Job Accommodation Network (JAN), which provides expert

accommodation information before, during, and after the recruitment process. JAN is a confidential service that allows any manager or employee to receive individualized information on his or her accommodation issue.

o “The Workforce Recruitment Program for College Students with Disabilities. It is a resource used to connect public and private sector employers nationwide with highly motivated post-secondary students and recent graduates with disabilities.

o “Project ABLE is a national resume bank that provides employers an easily accessible applicant pool of qualified job-ready individuals. The goal is to provide employers convenient access to quality human resources while providing training and employment services to eligible people with disabilities.”

“The contractor will use the Internet to assist in recruiting individuals with disabilities and raising awareness of the company as an employer. Internally, the contractor will use its intranet and e-mail systems to publicize diversity recruitment initiatives, including the employment of people with disabilities, and post related reports on the web.”

“The contractor will employ students with disabilities through student employment programs and will ensure greater emphasis on employment strategies to recruit students with disabilities. ED will use the Student Temporary Employment Program (STEP) and the Student Career Experience Program (SCEP), as well as the Workforce Recruitment Program (WRP). Coordinated by the Office of Disability Employment Policy (ODEP) and the US Department of Defense, the WRP is a recruitment and referral program that connects federal and private sector employers with highly motivated postsecondary students with disabilities who are eager to prove their abilities in the workplace through summer or permanent jobs. Annually, trained recruiters from WRP’s federal agency partners conduct personal interviews with more than 1,900 students with disabilities at college and university campuses across the nation, and develop a database listing the qualifications of each student. This searchable database is available to federal Human Resource Specialists, Equal Opportunity Employment Specialists, and other hiring officials in federal agencies at the WRP federal website. Employers in the private and non-profit sectors can gain access to the WRP’s

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pool of candidates through the Employer Assistance and Resource Network (EARN), a free service of ODEP.

“College career counselors or disability student services providers who would like to schedule a recruitment trip to their campuses in 2010 can see the Information Brochure below or contact wrp@dol.gov. Students interested in the program must work through their colleges. Due to limited staff resources, the Office of Disability Employment Policy cannot respond to direct student inquiries.”

“The Employer Assistance & Resource Network (EARN) provides employers with free consulting services and resources to support the recruitment and hiring of people with disabilities.”

“Recruiting programs shall be established, as appropriate, and assistance of recruiting sources shall be enlisted where applicable and feasible from:

o “State Employment Serviceso “Vocational Rehabilitation Agencieso “Easter Seal Rehabilitation Centerso “Veterans Administration Regional Officeo “National Association of Disabled Veteranso “Paralyzed Veterans of America”

“The Company will establish meaningful contacts with appropriate organizations for individuals with disabilities and covered veterans, and vocational rehabilitation agencies, for such purposes as advice, technical assistance, and referral of potential employees. ABLE, an affinity network formed in 2006, focuses on disability issues and coordinates many efforts directed toward people with disabilities. ABLE strives to:

o “Facilitate an inclusive and accessible environment for staff affected by disability issues

o “Collaborate with communities to increase inclusion and access for people with disabilities living in those communities

o “Supports the Company’s talent to attract, recruit, develop, and retain top talent from within the disability community.”

“The company establishes meaningful contacts with social service organizations serving people with disabilities and Vietnam Era/special disabled veterans for the purpose of advice, technical assistance and referral of potential employees.

o “Participate in community activities serving disabled and Vietnam Era/special disabled veterans

o “Strive to include persons with disabilities and Vietnam Era/special disabled veterans when employees are pictured in consumer, promotional or help wanted advertising

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o “Take positive steps to attract qualified disabled persons and Vietnam Era/special disabled veterans not currently in the work force who have requisite skills and can be recruited through affirmative action measures

o “Participated in job fairso “Links to applicable web sites for veterans, disabled veterans, and reservists

is also available through our company’s website”

4. Examples of Practices from the Section 188 Disability Checklist Set out below are questions included in the DOL Section 188 Disability Checklist. These issues identified in the Checklist may serve as the basis for examples of practices that could be addressed by Government contractors in their AAPs (simply substitute contractor for recipient).

“2.4 Does the recipient indicate in recruitment brochures and other materials that the WIA Title I-financially assisted program or activity is an “equal opportunity employer/program” and that “auxiliary aids and services are available upon request to individuals with disabilities”?“2.5 Does the recipient that publishes or broadcasts program information in the news media indicate that auxiliary aids and services are available upon request to individuals with disabilities?“2.6 Does the Notice meet the general posting and dissemination requirements and is the Notice provided in appropriate formats to individuals with visual impairments? Where the Notice has been given in an alternate format to a participant with a visual impairment, is a record that such Notice has been given made a part of the participant’s file?“2.7 Where marketing, recruitment, and other materials indicate that the recipient may be reached by telephone, do the materials state the telephone number of the TDD/TTY or relay service used by the recipient?”

5. Examples of Concrete Actions that Comply with Some of these Requirements: Where a telephone number is included in official stationary, business cards, civic

newsletters, web sites, and other materials, the materials indicate a TDD/TTY number or provide for an equally effective means of communication with individuals with hearing impairments (e.g., the number for the telephone relay service).

The recipient’s general marketing and recruitment materials (including photos and ad copy) mention people with disabilities as one of the groups served by the recipient, contain positive images of persons with disabilities, and indicate the recipient’s commitment to hire persons with disabilities.

Marketing and recruitment materials mention people across the full range of physical, mental, cognitive, and sensory disabilities as eligible for services, and images show diversity in their portrayal of persons with disabilities.

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o The Notice is made available in Braille or large print, recorded on audiocassette, or placed on ASCII diskette.

o The nondiscrimination policy is read or explained to individuals with cognitive impairments as a matter of routine or on request.

6. Examples of Practices from the “Universal Strategies” DocumentSet out below are examples of practices included in the “Universal Strategies” document prepared by the Institute for Community Inclusion as part of a contract with ODEP. The examples identified in the document may serve as the basis for examples of practices that could be addressed by Government contractors in their AAPs (simply substitute contractor for One-Stop Career Center).

Outreach and MarketingUnder the programmatic regulations issued by ETA and nondiscrimination/equal opportunity regulations issued by CRC, One-Stop Centers and other organizations in the workforce investment system are required to conduct outreach and marketing. The outreach and marketing requirement is intended to accomplish a number of goals, including ensuring that members of various populations that are frequently underserved (such as people who face multiple barriers to employment) are made aware of the services and supports provided by the One-Stop Center and other organizations in the workforce investment system.

This section of the Guide identifies specific strategies and practices relating to outreach and marketing that One-Stop Centers and other organizations in the workforce investment system have found useful in reaching the divergent population that these organizations serve. These outreach and marketing examples include strategies and practices relating to:

Consulting with community groups Engaging in general and targeted marketing Making presentations to the public

Consulting with Community GroupsOne-Stop Centers and other organizations in the workforce investment system (other workforce organizations) have reported success in satisfying part of the outreach function by using the universal strategy of working closely with community groups, such as civic organizations, advocacy groups, faith-based and community-based entities, and neighborhood associations. This collaboration has helped both the One-Stop Centers and other workforce organizations and the community groups to promote employment opportunities for their diverse customer bases. Specific examples of consultation practices that have proven successful include:

Actively creating and maintaining relationships with a broad range of community organizations and agencies. These relationships enable staff of the One-Stop Centers and other workforce organizations to use the programs offered by the

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community organizations and agencies as resources in developing employment options for job seekers with multiple barriers to employment. Conversely, staff of the community organizations and agencies are able to call on staff of the One-Stop Centers/other workforce organizations for information and expertise.

Educating community groups about services, including individualized and specialized services and supports that are available through the One-Stop Centers/other workforce organizations for the members, customers, or constituents of the community groups.

Asking community groups to encourage their members, customers, and constituents to take advantage of the services offered by the One-Stop Centers/other workforce organizations in the workforce investment system.

Conducting tours of One-Stop Centers or service provider facilities, in partnership with community organizations, to help job seekers from those organizations and their family members become familiar with the facilities and the services offered there.

Encouraging staff from community organizations to use the resources of the One-Stop Centers/other workforce organizations in job development activities for the people with whom the community organizations work.

Recruiting non-affiliated individuals from the diverse population groups that make up the local community, as well as representatives from the organizations in the community, to offer their input on policy decisions about One-Stop Center programs and activities. In some cases, this recruitment process may result in having these individuals or representatives serve on local and state workforce boards.

Engaging in General and Targeted MarketingOne-Stop Centers/other workforce organizations have recognized the importance of using marketing strategies to inform the general public and potential customers about their commitment to welcome and provide individualized/customized services and supports to all job seekers seeking assistance, including those with multiple barriers to employment. Specific examples of practices related to engaging in general and targeted marketing that have proved successful include:

Mentioning in marketing and recruitment materials (as well as other materials describing the programs and activities that the One-Stops/other workforce organizations offer) that people of diverse backgrounds and physical, mental/cognitive, and sensory disabilities are eligible for services, and including positive images of such diverse individuals in the materials.

Specifically and overtly communicating the One-Stops/other workforce organizations’ commitment not only to serve but also to hire persons from diverse racial and ethnic backgrounds and persons with disabilities.

Advertising through a broad range of media sources, including media targeted toward people with various ethnic and racial backgrounds, people with

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disabilities, individuals with limited English proficiency, people of varying ages, and members of other groups.

Notifying particular personnel within schools that serve various specific populations about openings in the organization’s programs or activities as well as providing the school personnel with general information about those programs and activities.

Ensuring that all of the organization’s materials, including its website, provide directions to the organization’s facilities, programs, or activities via public transportation, or information about other transportation options for customers who do not drive.

Ensuring that wherever the organization provides a phone number for contact via voice telephone, it also includes at least one alternative contact number for reaching that same person or office via TTY, TDD, and/or relay service.

Making Presentation to the PublicOne universal strategy often used by One-Stop Centers/other workforce organizations for getting the word out about the availability of job-related services and supports for all customers, including customers with multiple barriers to employment, is to make presentations to members of the community (such as Chambers of Commerce, civic groups, public forums, and other similar contexts). Specific examples of successful practices related to presentations to the public include:

When conducting outreach, recruiting qualified speakers of diverse backgrounds (including persons with disabilities) to present or co-present to entities in the community about the programs and activities offered by One-Stop/other workforce organizations.

As part of such general presentations, explaining that people with multiple barriers to employment and people with unique needs, including those with disabilities, are encouraged to take advantage of the general programs and activities offered by the One-Stop/other workforce organizations. These explanations include the information that people with specific barriers to employment may also be entitled to specialized services and supports. For example, people with disabilities may be eligible for reasonable accommodations/modifications or auxiliary aids and services for communication. People with limited English proficiency may receive communication assistance, such as interpretation services or translation of materials.

Holding offsite presentations to the general public in locations that are accessible to and usable by all prospective customers, including individuals with disabilities and those who do not drive.

Offering presentations in appropriate languages other than English.

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IX. AAP—Internal Dissemination of Policy This section describes and analyzes the seventh component of an affirmative action program—internal dissemination of policy.

1. Section 503 and VEVRAA Policy Framework (60-741.44(g); 60-300.44(g))

A strong outreach program will be ineffective without adequate internal support from supervisory and management personnel and other employees who may have had limited contact with individuals with disabilities in the past. The contractor shall develop internal procedures designed to foster understanding, acceptance and support among the contractor’s executive, management, supervisory and other employees and to encourage such persons to take the necessary actions to aid the contractor in meeting this obligation.

Examples of internal procedures for disseminating the affirmative action policy:

Include affirmative action efforts in the contractor’s policy manual Periodically inform all employees and prospective employees of its commitment

to engage in affirmative action to increase employment opportunities for qualified individuals with disabilities (e.g., schedule special meetings with all employees to discuss policy and explain individual employee responsibility)

Publicize its affirmative action efforts in the company’s newspaper, magazine, annual reports, and other media

Conduct special meetings with executive, management, and supervisory personnel to explain the intent of the policy and individual responsibility for effective implementation, making clear the chief executive officer’s attitude

Discuss the affirmative action policy thoroughly in both employee orientation and management training programs

Meet with union officials and/or employee representatives to inform them of the contractor’s policy and request their cooperation

Include articles on accomplishments of disabled workers in company publications

When employees are featured in employee handbooks or similar publications for employees, include individuals with disabilities

2. OFCCP Sample Affirmative Action PlanCopies of our affirmative action programs will be made available for inspection to any employee or applicant upon request to promote understanding, acceptance and support. Policies are re-emphasized to managers and supervisors annually.

FCI’s Affirmative Action Policy and the EEO poster are posted on bulletin boards located throughout our facilities and office work areas.

All applicants who believe they are a qualified individual with a disability, as defined in Section 503 of the Rehabilitation Act of 1973, as amended, or who are a qualified

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protected veteran under the equal employment opportunity provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, have been invited to identify themselves if they wish to benefit under this affirmative action program. Such invitation has been posted on bulletin boards throughout the facility and work areas. Employees may self-identify at anytime.

All employees are advised annually of the company’s policy and encouraged to aid in FCI’s affirmative action efforts to ensure a fair and effective program.

Briefing sessions are conducted annually for managers and supervisors to review the applicable regulations and to discuss such affirmative action measures as training and reasonable accommodation. The last such meeting was held on December 1, 2003.

When making internal equal opportunity audits, implementation of this affirmative action program will be reviewed.

This facility’s Personnel Manager has attended State-sponsored workshops, which stressed the use of vocational rehabilitation agencies in hiring qualified individuals with disabilities and qualified special disabled veterans and reasonable accommodation.

Articles (and pictures) regarding accomplishments of employees who are qualified individuals with disabilities and qualified protected veterans shall be included in Company and/or facility publications.

At least once a year the policy is distributed to all employees.

3. Section 501 Policy Framework EEOC Management Directive 715, regarding compliance by federal agencies with affirmative action obligations under Section 501 of the Rehabilitation Act, includes the following specific provisions for ensuring management, program accountability, and proactive prevention:

“Agency managers constitute an integral part of the agency’s EEO program.” “Hire, develop, and retain supervisors and managers who have effective

communication skills.” “Inform managers and supervisors that success and a positive evaluation will

include an assessment of how a manager contributes to the agency’s EEO program.”

“Make clear that all managers and supervisors share responsibility with the EEO program and human resources for the successful implementation of EEO programs.”

“Agency must conduct self-assessment on at least an annual basis to monitor progress, identify areas where barriers may operate and develop strategic plans to eliminate identified barriers.”

“Develop comprehensive anti-harassment policy.” “Develop written reasonable accommodation policy (see minimum components

described above).”

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4. Examples of Selected Portions of AAPs Related to Internal Dissemination

Many of the AAPs reviewed included provisions related to internal dissemination that simply repeated the language set out in the OFCCP Sample AAP. Set out below are examples of statements that differ from the OFCCP Sample.

“Exemplary Programs. The contractor has several programs and initiatives that support our effort to ensure equal employment opportunity and affirmative action for individuals with disabilities and qualified covered veterans. Some activities include:

o “Return to Work Program. The contractor makes every reasonable effort to return those employees to work who have sustained work-related injuries or illnesses, and as a result are prevented from returning to their full former employment. The program hopes to facilitate the employee’s return to work on a transitional or full time basis as soon as it is determined to be medically feasible to do so.

o “Assistive Technology Lab. The contractor has facilities to ensure that employees can acquire appropriate affordable assistive and information technologies and services they need to work.

o “Employee Resource Center. The contractor has developed an Employee Resource Center which provides publications, webpage, programs (e.g., mental health provider networking events) and information raising employee awareness of available disability resources.

o “High School High Tech. The contractor is involved in an access program to increase the representation of individuals with disabilities in technical fields. High School High Tech is a community-based partnership of parents, educators, rehab professionals, and business representatives. Its purpose is to encourage students with disabilities to explore career opportunities in the fields of science, engineering and technology.

o “ADA Executive Committee. The ADA Executive Committee is comprised of individuals throughout the university who have oversight or responsibility for accessibility issues on campus. The Committee reviews policies and procedures to ensure that disability issues are addressed.”

“The contractor has been proactive in ensuring that persons with disabilities have equal access to all leadership and career development opportunities available to employees. Examples of strategies used by the contractor include the following:

o “Working closely with providers of on-site training (contractors and vendors of off-the-shelf courses) to ensure they are compliant with the ADA. Any training conducted at the Department must allow all employees to be able to participate fully in the training, and course materials must be made available in alternative formats (Braille, workbooks, closed-captioned videos, etc.)

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o “Ensuring managers are offered specific course, such as disability access workshops, where managers are provided with information and skills to hire and supervise employees with disabilities. They learn to ensure that the workplace is accessible and how to access the ability of potential employees with disabilities to perform the essential functions of the job. They also learn about reasonable accommodation program and requirements of the ADA and the Rehabilitation Act.

o “Working with providers of software and online training to ensure that all courses available to employees through the intranet/Internet meet stringent standards of accessibility.

o “Sponsoring a mentoring program and encouraging all employees to participate.

o “Supporting a system that allows all employees the opportunity to develop new skills through details in other parts of the organization. The Mobility Assignment Program (MAP) provides competitive opportunities for individuals to be detailed to other parts of the Department where they can gain skills and new perspectives and knowledge of the organization.”

5. Roadmaps for Enhancing Employment of Persons with Disabilities through Accessible Technology

Set out below are examples of practices presented in Roadmaps, the outcome an extensive dialogue with businesses that use cutting edge strategies for employing individuals with disabilities.

Mission statement: The company’s mission statement recognizes the inclusion of people with disabilities and its commitment to the integration of universal design strategies into every phase of the business, including employment and every departmental function (e.g., human resources, financial, procurement, education, training, and marketing).

Procurement: The company adopts criteria for the purchase and use of information and communication technology by the company that is accessible to and usable by persons with disabilities and others and reflects universal design features (i.e., redefine the corporation’s standard operating systems).

Internships, mentorships, shadowing: The company provides opportunities for internships, mentoring, and shadowing programs to determine (without fear of litigation if things do not work out) whether there is a good match between the company and the individual.

Disability management and prevention programs: The company adopts disability management and prevention programs that result in workers remaining part of the workforce (retain experienced workers and avoid re-training).

Website accessibility: The company ensures that websites are accessible (Internet and intranet).

Designation of authority: Centralized responsibility and source of information.

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o The company designates a person, position, and/or unit responsible for ensuring that consistent focus and resources are provided to employees and customers on disability matters, including the development, implementation and evaluation of accessibility and usability (universal design) initiatives. Designation of authority includes empowering individuals with sufficient authority so that they are at the table with other key decision-makers. Designation of authority also includes serving as in-house resource and expert and establishing a line of responsibility and accountability with goals, timetables, and budgets.

Affinity group: The company uses existing employees with disabilities and employees that have family members or friends with disabilities to help identify policies and practices that need to be addressed and expand and improve on how the company can do business with its customers with disabilities, from a disability perspective.

Informal network of employees impacted by disability: The company creates goodwill and a sense of community among all employees by supporting opportunities for employees to openly discuss disability-related issues. This network enables the company to discover how many employees are parents of children with disabilities, have husbands or wives and brothers and sisters with disabilities.

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X. AAP—Audit and Reporting SystemThis section describes and analyzes the eighth component of an affirmative action program—audit and reporting system.

1. Section 503 and VEVRAA Policy Framework In accordance with regulations implementing Section 503 and VEVRAA (60-741.44(h); 60-300.44(h)), the contractor must design and implement an audit and reporting system that will:

Measure the effectiveness of the contractor’s affirmative action program Indicate any need for remedial action Determine the degree to which the contractor’s objectives have been attained Determine whether individuals with known disabilities have had the opportunity

to participate in all company sponsored educational, training, recreational and social activities

Measure the contractor’s compliance with the affirmative action program’s specific obligations

Where the affirmative action program is deficient, the contractor must undertake necessary action to bring the program into compliance.

2. OFCCP Sample Affirmative Action PlanThe Personnel Manager has the responsibility for developing and preparing the formal documents of the AAP. The Personnel Manager is responsible for the effective implementation of the AAP; however, responsibility is likewise vested with each department manager and supervisor. FCI’s audit and reporting system is designed to accomplish the following:

Measure the effectiveness of the AAP/EEO program Document personnel activities Identify problem areas where remedial action is needed Determine the degree to which FCI’s AAP goals and objectives have been

obtained

The following activities are reviewed at least annually to ensure freedom from stereotyping qualified individuals with disabilities and qualified protected veterans in any manner, including those which may limit their access to any job for which they are qualified:

Recruitment, advertising, and job application procedures; Hiring, promotion, upgrading, award of tenure, layoff, recall from layoff; Rates of pay and any other forms of compensation including fringe benefits; Job assignments, job classifications, job descriptions, and seniority lists; Sick leave, leaves or absence, or any other leave; Training, apprenticeships, attendance at professional meetings and conferences;

and

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Any other term, condition, or privilege of employment.

FCI’s audit system includes a quarterly report documenting FCI’s efforts to achieve its EEO/AAP responsibilities. Managers and supervisors are asked to report any current or foreseeable EEO problem areas and are asked to outline their suggestions/recommendations for solutions. If problem areas arise, the manager or supervisor is to report problem areas immediately to the Personnel Manager. During quarterly reporting, the following occurs:

The Personnel Manager will discuss any problems relating to significant rejection ratios, EEO charges, etc., with the General Manager.

The Personnel Manager will report the status of the FCI’s AAP goals and objectives to the General Manager. The Personnel Manager will recommend remedial actions for the effective implementation of the AAP.

3. Examples from Selected Portions of AAPs Related to Audits and Reporting Submitted to OFCCP

An overwhelming percentage of the AAPs reviewed included provisions related to audits and reporting that simply repeated the language set out in the OFCCP Sample AAP. Below are examples of statements that differ from the OFCCP Sample:

“The Company will adhere to a ’zero tolerance’ approach in the enforcement of its equal employment opportunity policy with our goal being to maintain a safe and secure workplace consistent with our corporate values to do what’s right, respect others, and perform with excellence. Zero tolerance means that we will investigate thoroughly and objectively any report of violation of this policy by any leader, employee, or non-employee. We will take appropriate action, up to and including termination from employment, whenever such inappropriate behavior occurs.”

“The following activities will be reviewed at least annually to ensure freedom from stereotyping qualified individuals with disabilities and qualified covered veterans in any manner, including that which may limited their access to any job for which they are qualified:

o “Recruitment, advertising, and job application procedureso “Hiring, promotion, role changes, layoff, and recall from layoffo “Rates of pay and other forms of compensation including fringe benefitso “Job assignments, job classifications, and job descriptionso “Sick leave, leaves of absence, or any other leaveo “Opportunities for training, attendance at professional meetings and

conferenceso “Any other term, condition, or privilege of employment.”

“The company’s Performance Appraisal System includes a required performance element on workforce diversity for all supervisors. During performance reviews,

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efforts by managers and supervisors to achieve diversity in their organization are considered, including efforts to hire people with disabilities.”

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XI. AAP—Responsibility for Implementation of Affirmative Action PlanThis section describes and analyzes the ninth component of the affirmative action program—responsibility for implementation.

1. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60.300.44(j))

In accordance with regulations implementing Section 503 and VEVRAA, an official of the contractor must be assigned responsibility for implementation of the contractor’s affirmative action activities. His or her identity should appear on all internal and external communications regarding the company’s affirmative action program. This official must be given the necessary top management support and staff to manage the implementation of the program.

2. OFCCP Sample Affirmative Action PlanIn furtherance of FCI’s commitment to Affirmative Action and Equal Employment Opportunity for qualified individuals with disabilities and qualified protected veterans, the Personnel Manager has the responsibility for designing and ensuring effective implementation of FCI’s AAP. These responsibilities include, but are not limited to:

1. The development of the AAP for individuals with disabilities and protected veterans, policy statements, personnel policies and procedures, internal and external communication of the policy, and monitoring the effectiveness of these actions

2. Reviewing all personnel actions, policies, and procedures to ensure compliance with FCI’s affirmative action obligations

3. Reviewing the qualifications of all applicants and employees to ensure qualified individuals are treated in a nondiscriminatory manner when hiring, promotion, transfer, and termination actions occur

4. Assisting in the identification of problem areas and the development of solutions to those problems

5. Monitoring the effectiveness of the program on a continuing basis through the development and implementation of an internal audit and reporting system that measures the effectiveness of the program

6. Keeping the General Manager of FCI informed of equal opportunity progress and problems within the company through quarterly reports

7. Providing department managers with a copy of the Affirmative Action Program for Qualified Individuals with Disabilities and Qualified Protected Veterans and reviewing the program with them on an annual basis to ensure knowledge of their responsibilities for implementation of the program

8. Reviewing the Company’s AAP for qualified individuals with disabilities and qualified protected veterans with all managers and supervisors at all levels to ensure that the policy is understood and is followed in all personnel activities

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9. Auditing the contents of company bulletin boards annually to ensure that compliance information is posted and is up-to-date

10. Serving as liaison between FCI and enforcement agencies11. Serving as liaison between FCI and organizations for qualified individuals with

disabilities and qualified protected veterans

Responsibilities of Managers and SupervisorsManagers and supervisors are advised annually of their responsibilities under the company’s AAP for qualified individuals with disabilities and qualified protected veterans and of their obligations to:

1. Review the Company’s Affirmative Action Policy for qualified individuals with disabilities and qualified protected veterans with subordinate managers and supervisors to ensure that they are aware of the policy and understand their obligation to comply with it in all personnel actions

2. Assist in the identification of problem areas, formulate solutions, and establish departmental goals and objectives when necessary

3. Review the qualifications of all applicants and employees to ensure qualified individuals with disabilities are treated in a nondiscriminatory manner when hiring, promotion, transfer, and termination actions occur

4. Review all employees’ performance to ensure that non-discrimination is adhered to in all personnel activities

3. Section 501 Policy Framework The EEOC Program Directive 751 regarding implementation of Section 501 of the Rehabilitation Act (affirmative action by federal agencies) includes the following guidance regarding responsibility for implementation of affirmative action responsibilities of federal agencies:

An agency shall provide sufficient staffing and resources to operate the EEO program in an effective manner.

To determine the sufficiency of resources, the agency should examine a number of factors:

o Whether the agency employs personnel with the training and experience to conduct the required analyses

o Whether the agency’s EEO staff has the knowledge, skills, and ability to ensure that agency EEO programs and procedures are effectively implemented

o Whether the agency has implemented adequate data collection and analysis systems that permit necessary tracking of information

o Whether there are sufficient resources to conduct effective auditso Whether training and education programs are made available to all

managers and employees

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o Whether a central fund or other mechanism has been established for providing reasonable accommodations

o Whether there is in place a disability program manager or other mechanism to ensure coordination of disability accommodations in all major components of the agency

The EEO office serves as a resource to managers by providing direction, guidance, and monitoring of key activities to achieve a diverse workplace free of barriers to equal employment opportunity.

The EEO director must have a regular and effective means of informing the agency head and other top management officials of the effectiveness, efficiency, and legal compliance of the agency’s EEO program, including regular briefings.

Ensure that EEO officials are involved in critical workplace decisions, have regular access to senior staff, and participate in meetings where critical personnel decisions regarding management and the deployment of Human Resources are made

4. Section 188 Disability ChecklistThe Section 188 Disability Checklist includes several examples of practices regarding responsibility for implementing nondiscrimination/equal opportunity requirements that may be used by Government contractor to meet their affirmative action responsibilities (simply substitute contractor for recipient each time the term is used).

The recipient’s EO Officer and his/her staff have the education, training, and experience (skill, ability and knowledge) to perform assigned duties regarding nondiscrimination and equality of opportunity for persons with disabilities.

The EO Officer is also the Section 504 Coordinator. If not, the recipient appoints a Section 504 Coordinator, who has the education, training and experience to perform assigned duties.

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XII. AAP—Training of PersonnelThis section describes and analyzes the tenth component of an affirmative action program—training of personnel.

1. Section 503 and VEVRAA Policy Framework (60-741.44(j); 60-300.44(j))

In accordance with the regulations implementing Section 503 and VEVRAA, all personnel involved in the recruitment, screening, selection, promotion, disciplinary, and related processes shall be trained to ensure that the commitments in the contractor’s affirmative action program are implemented.

2. OFCCP Sample Affirmative Action PlanTraining is provided to all personnel involved in the recruitment, screening, hiring, promotion, disciplinary and related employment processes, to ensure that the commitments made in FCI’s AAP are implemented. Training sessions were most recently conducted on December 1, 2003.

3. Examples from Portions of Selected AAPsAn overwhelming percentage of the AAPs reviewed simply restate the language from the OFCCP Sample AAP. Set out below is an example from an AAP that includes additional training practices:

“The company annually offers a mandatory affirmative action on-line training course to its executives, management, and supervisory personnel. Supervisory training programs incorporate segments on equal employment opportunity.”

4. Examples from “Universal Strategies” DocumentSet out below are examples of practices included in the “Universal Strategies” document prepared by the Institute for Community Inclusion as part of a contract with ODEP. The examples identified in the document may serve as the basis for examples of practices that could be addressed by Government contractors in their AAPs (simply substitute contractor for One-Stop Career Center).

“Under the programmatic regulations issued by ETA and the non-discrimination/equal opportunity regulations issued by CRC, One-Stop Centers and other organizations in the workforce investment system are required to conduct capacity building and staff training to ensure that the goals of the new workforce investment system are achieved. Staff members also need ongoing training to continually develop their skills and to have updated information about how to directly serve job seekers with complex needs, as well as how to work with partner agencies to meet the employment needs of these job seekers as well as employers.

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“Specific examples of practices related to capacity building/staff training that have proven successful include:

o “Training staff members about the range of service delivery options available to job seekers with multiple barriers to employment, and about how to help these job seekers determine their best employment options

o “Conducting cross-training (by and for persons in various roles such as State VR agency counselors, job service personnel, job training staff, local disability providers, etc.) to promote relationship-building between various partner agencies in areas such as job search techniques, job development and employer negotiation, and job support strategies related to individualized employment services

o “Including in manuals, guidelines, and other materials used by staff (and used to train staff) examples of specialized services and supports for customers with multiple barriers to employment

o “Training staff to use nontraditional assessment strategies that maintain a focus on customer strengths

o “Training staff members about when and how to lawfully and appropriately screen job seeker and customers for non-apparent challenges and barriers to employment so that those customers may receive suitable services and supports and may be connected with other resources for further assessment, if appropriate

o “Ensuring that all staff members interact, whenever possible, with a wide variety of customer groups, rather than being “siloed” to a given population

o “Establishing a process for an individual partner to identify the training needs of One-Stop staff and the training needs of other partners

o “Training specific personnel to coordinate planning teams for customers with more significant needs

o “Ensuring that partner agencies provide their staff with training about serving customers with particular barriers to employment, such as disability or limited English proficiency

o “Ensuring that partner agencies contribute resources (staff and dollars) to continuing training of staff operating One-Stop centers

o “Ensuring that staff performance evaluations include requirements that staff have participated in training on effectively serving customers with particular barriers to employment

o “Training staff about all applicable civil rights protections, including (but not limited to) the rules relating to disclosure, confidentiality, and privacy of information

o “Training staff about how to procure and use various types of equipment and materials for assisting customers with unique needs such as people with disabilities. Examples of such equipment and materials includes telecommunications device for the deaf (TTY/TDD), accessible workstations, materials in alternative formats or languages other than English, et cetera.

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Providing ongoing training about such equipment and materials, and ensuring that they are used

o “Training staff on communicating effectively with individuals with limited English proficiency and resources for interpretation and translation services

o “Training staff in emergency evacuation procedures, including the evacuation of persons with varying types of impairments”

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XIII. Overarching Conclusions and RecommendationsThis section concludes the papers with three overarching conclusions and recommendations regarding the affirmative action policy framework under Section 503 and VEVRAA.

1. Affirmative Action Programs (AAPs) submitted under Section 503 and VEVRAA do not narrate and document “proactive”, “positive” “action” measures, steps, and practices; instead, AAPs reflect mere paper compliance. OFCCP should review the current approach used for purposes of developing and submitting AAPs under Section 503 and VEVRAA and consider adopting the approach included in the Civil Rights Center and DOL guidelines governing the submission of “methods of administration” by states under Section 188 of the Workforce Investment Act. These guidelines require, among other things, the inclusion of narratives and documentation. In addition, OFCCP should disseminate technical assistance materials that include examples of practices that Government contractors may adopt.

Based on a review of more than 30 affirmative action programs submitted to OFCCP by companies that use “best practices” for hiring and promoting individuals with disabilities, it is clear that an overwhelming percentage of AAPs simply restate the language included in the OFCCP Sample AAP. In other words, AAPs appear to be “paper compliance” documents; AAPs do not appear to be “action” documents used to reflect a system of “proactive, positive measures and/or steps” or “careful and thorough evaluation and monitoring of current practices” (language from the Section 503 and VEVRAA regulations and guidelines). This conclusion should not be construed to mean that these Government contractors are not adopting best or promising practices regarding the employment of qualified individuals with disabilities and qualified disabled veterans; rather, it simply means that the AAPs are not being used as the vehicle for narrating and documenting these policies and practices.

We recommend that OFCCP review the approach taken and guidelines issued by the Department of Labor’s Civil Rights Center regarding the submission of ”Methods of Administration” by the States under Section 188 of the Workforce Investment Act. The MOA guidelines may serve as a model for revising the content of AAPs submitted pursuant to Section 503 and VEVRAA. The MOA guidelines apply to the administration of programs, projects, and activities adopted by recipients of WIA Title funds. According to CRC, “(t)he first section of each element should be a narrative description of how the state and its recipients are meeting and will continue to meet the applicable requirements. The narrative should be specific. CRC regards the narrative as the more important section since it contains the description of what the state and its recipients are doing and will continue to do to fulfill their obligations. The second section of each element should include documentation that shows how the state is carrying out that element of the MOA. When reviewing the

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adequacy of and/or performance under an MOA, CRC may request additional supporting documentation.”

In addition, OFCCP should disseminate technical assistance materials that include examples of practices that Government contractors may adopt.

2. Affirmative Action Programs (AAPs) prepared in accordance with Section 503 and VEVRAA do not include goals and timetables comparable to those included in affirmative action programs submitted under Executive Order 11246, as amended and implementing regulations. Policies issued by EEOC governing the administration of Section 501 of the Rehabilitation Act (affirmative action regarding the hiring and promotion of qualified individuals with disabilities by federal agencies) require goals and timetables based on quantitative analysis. OFCCP should consider revising the regulations and guidelines implementing Section 503 and VEVRAA to reflect the approach taken by EEOC regarding affirmative action programs applicable to federal agencies under Section 501. The inclusion of goals should be limited to larger contractors.

There is a significant difference between AAPs developed in accordance with Section 503 and VEVRAA and the implementing regulations and AAPs developed in accordance with Executive Order 11246, as amended and the implementing regulations.18 Under regulations implementing Executive Order 11246, affirmative action programs contain, among other things, a diagnostic component that includes a number of quantitative analyses designed to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools. AAPs also include action-oriented programs. If women and minorities are not being employed at a rate to be expected given their availability in the relevant labor pool, the contractor’s affirmative action program includes specific steps designed to address the underutilization. Effective affirmative action programs also include internal auditing and reporting systems as a means of measuring the contractor’s progress toward achieving the workforce composition that would be expected in the absence of discrimination. Regulations implementing Section 503 and VEVRAA do not include comparable requirements regarding goals and timetables.

Under EEOC Management Directive 715 implementing Section 501 of the Rehabilitation Act (affirmative action by federal agencies), federal agencies are required to conduct an internal review and analysis of the effects of all current and proposed policies, practices, procedures, and conditions that, directly or indirectly, relate to the employment of individual with disabilities. As part of the analysis, an agency must collect and evaluate information and data necessary to make an informed assessment.

According to EEOC, a snapshot of the numerical representation and distribution of applicants and employees with disabilities can alert an agency to possible barriers. The Directive notes that:

18 See 41 CFR Part 60-2

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…[With] regard to the absence of reliable data for individuals with disabilities, any statistical analysis is complicated by the fact that disabilities are individual in nature, making gross statistical comparisons of limited value. Notwithstanding these limitations, any agency’s analysis of the above information can help facilitate an assessment concerning the extent to which persons with disabilities are offered equal employment opportunity. Statistical information may be a useful starting point for a more thorough examination of the agency’s physical facilities, electronic and information processes, personnel policies, selection and promotion procedures, evaluation procedures, rules of conduct and training systems to ensure full accessibility for individuals with disabilities.

The self-assessment must encompass the full spectrum of employment, including workforce distribution (permanent and temporary), major occupational groups, grade level, applicants, promotions, voluntary and involuntary separations, requests for reasonable accommodations, compliance with Section 508 complaints.

More specifically, EEOC requires agencies with 1,000 or more employees to maintain a special recruitment program for persons with targeted disabilities and to establish specific goals for the employment and advancement of such individuals. All agencies, regardless of their size should ensure that goals “are set and accomplished in such a manner that will affect measurable progress from the preceding fiscal year.”

To better understand the status of persons with targeted disabilities in the federal work force, EEOC has collected data from the Central Personnel Data File maintained by the Office of Personnel Management, as well as reports that agencies have submitted to EEOC, including Form 462 and MD-715 Reports. The most recent EEOC report, Improving the Participation Rate of People with Targeted Disabilities in the Federal Work Force (January 2008), provides data and, where appropriate, trend analysis on topics such as:

Persons with targeted disabilities in the federal work force Goals for recruitment of persons with targeted disabilities Ranking of cabinet level agencies by percentage of persons with targeted

disabilities Grade groupings of persons with targeted disabilities Participation of persons with targeted disabilities by type of targeted

disability New hires or persons with targeted disabilities Separation of persons with targeted disabilities Promotion of persons with targeted disabilities Awards for persons with targeted disabilities Most frequently raised issues in complaints alleging disability discrimination.

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We recommend that OFCCP consider requiring that large Government contractors include goals and timetables for hiring and promotion of qualified individuals with disabilities and qualified disabled veterans in their affirmative action programs and report statistics related to separation awards and most frequently raised issues in complaints alleging discrimination on the basis of disability.

3. Current regulations and the OFCCP Sample AAP do not include appropriate references to the Internet and websites consistent with contemporary business practice. An overwhelming percentage of AAPs reviewed do not include references to company websites in their AAPs. OFCCP should be commended for issuing a program directive regarding Federal contractor’s online application selection systems. Consistent with this Directive, OFCCP should consider revising its Section 503 regulations and Sample AAP to include appropriate references to websites (and the obligation to ensure equal opportunity through accessible websites or alternative methods and the provision of reasonable accommodation) and consider providing additional guidance and technical assistance supplementing the Directive regarding online application systems.

Current regulations and the OFCCP Sample AAP do not include references to the Internet and websites consistent with contemporary business practice. An overwhelming percentage of AAPs reviewed do not include any references to company websites in their AAPs. We recommend that that the regulations implementing Section 503 and VEVRAA and the OFCCP Sample AAP be updated to include appropriate references to company websites.

OFCCP should be commended for the recent issuance of a program directive regarding Federal contractor’s online application selection systems under Section 503 and VEVRAA. In accordance with this directive, Contractor’s Online Application Selection System, all compliance evaluations must include a review of the contractor’s online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. In this directive, the term “online system” includes all electronic or web-based systems that the contractor uses in all of its personnel activities. The review should include whether the contractor is providing reasonable accommodation when requested, unless such accommodation would cause undue hardship.19

In a nutshell, Section 503, VEVRAA, and ADA require companies that use the internet to communicate with the public to make their websites accessible to individuals with disabilities or to provide an alternative means of communication that provides equal opportunity (i.e., provides such individuals with the same efficiency, immediacy, and convenience as that provided to non-disabled individuals who can use the website). This includes companies’ career websites that are used to post jobs and receive

19 James, Charles E., “Federal Contractor's Online Application Selection System”, OFCCP Directive: Transmittal No. 281, Washington, DC: Department of Labor, Office of Federal Contract Compliance Programs (July 10, 2008): Available at http://www.dol.gov/ofccp/regs/compliance/directives/dir281.htm (Accessed November 10, 2009)

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online applications. Regardless of whether contractors use an accessible website or use an alternative, they must also provide individuals with disabilities with reasonable accommodations in the application process when requested, unless doing so would pose an undue burden.

This topic is comprehensively discussed and analyzed in a separate paper prepared by the author—A Technical Assistance Guide for Implementing Online Application Systems that Meet the Needs of Qualified Individuals with Disabilities and Qualified Disabled Veterans. Consistent with this paper, we recommend that OFCCP consider revising its Section 503 regulations and Sample AAP to include appropriate references to websites (and the obligation to ensure equal opportunity through accessible websites or alternative methods and the provision of reasonable accommodation) and consider providing additional guidance and technical assistance supplementing the transmittal regarding online application systems.

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