February 21, Dear Ms. Carr:

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1 C H A M B E R O F C O M M E R C E O F T H E U N I T E D S T A T E S O F A M E R I C A H S T R E E T, N. W. W A S H I N G T O N, D. C / R A N D E L K. J O H N S O N S E N I O R V I C E P R E S I D E N T L A B O R, I M M I G R A T I O N & E M P L O Y E E B E N E F I T S M I C H A E L J. E A S T M A N E X E C U T I V E D I R E C T O R L A B O R L A W P O L I C Y February 21, 2012 Ms. Debra A. Carr, Director Division of Policy, Planning, and Program Development Office of Federal Contract Compliance Programs, Room C Constitution Avenue NW Washington, DC RE: RIN 1250-AA02; Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities Dear Ms. Carr: We are pleased to submit these comments on behalf of the U.S. Chamber of Commerce (Chamber) in response to the Office of Federal Contract Compliance Programs (OFCCP s or Department s) proposed rule amending regulations implementing section 503 of the Rehabilitation Act that were published in the Federal Register on December 9, A significant portion of Chamber members are federal contractors and subcontractors. The Chamber also represents many state and local chambers of commerce and other associations who, in turn, represent many additional contractors and subcontractors. Should the OFCCP s proposal be adopted, it will have a significant impact on these members. Overview We wish to emphasize that the Chamber supports the affirmative action and nondiscrimination provisions of the Rehabilitation Act of 1973 that are applicable to federal contractors and subcontractors with respect to individuals with disabilities. We also believe it is important that appropriate regulations implement this vital provision. The Chamber has taken the policy issues related to the employment of individuals with disabilities very seriously and we have a strong track record of working to see if common ground approaches can be developed in this area. The OFCCP s proposal would make very significant amendments to the regulations implementing section 503. In vetting these proposed amendments, it is clear to us that the proposal will impose dramatic new burdens on contractors should it be implemented. Many of 1 76 Fed. Reg. 77,056.

2 P a g e 2 the proposed amendments have also generated significant controversy within the contractor community. While we would welcome a measured discussion over amendments to the regulations implementing section 503, we are profoundly disappointed by the OFCCP s proposal. The agency has put forth a proposal heavy on paperwork and recordkeeping requirements and grossly underestimated the associated costs and burdens. In addition, there are many parts of the regulation that appear impractical at best. While we are disappointed with the OFCCP s proposal, we remain committed to working to see if a common ground approach can be found for ensuring that section 503 is implemented in an appropriate manner and would be pleased to engage in further discussions with you regarding these important issues. These comments are not a comprehensive response to the OFCCP s proposal. The comments first provide some context as to how the Chamber approaches this issue. They then discuss our primary concerns with the proposed affirmative action program amendments in Subpart C followed by a partial economic analysis based on the Chamber s calculations and a survey of federal contractors that we conducted. Finally, we offer our concluding thoughts urging the OFCCP to reconsider its approach. Context for Comments The Rehabilitation Act of 1973 was enacted with overwhelming bipartisan support. In fact, the conference report on the bill was enacted without a dissenting vote in either the Senate or the House of Representatives. 2 Likewise, the Americans with Disabilities Act was enacted with broad bipartisan support. When the ADA Restoration Act was introduced, it too had significant (though by no means universal) bipartisan support. However, it was widely and strongly opposed by the business community. Nevertheless, it was possible that proponents of the Restoration Act could have succeeded in enacting the bill without addressing the concerns of the business community. However, when disability groups initially approached the Chamber and other business groups to explore whether a compromise could be reached, they explained that maintaining broad support for the Americans with Disabilities Act was important to them and that the prospects for maintaining that broad support were greater if we could work to a solution acceptable to both sides. We were able to reach a compromise agreement between the business community and the disability community that was embraced by a broad cross-section of lawmakers. Ultimately, the final version of the ADA Amendments Act was passed without a dissenting vote in the Senate and House of Representatives. What this demonstrates is the depth and breadth of the support for the ADA Amendments Act. However, the EEOC experienced challenges in crafting regulations that appropriately implemented the compromise. As we noted at the time in comments on the EEOC s proposed regulations: 2 The conference report was agreed to in the Senate by a vote of 88 to 0 (Roll Call No. 393; 93 rd Cong., 1 st Sess.) and in the House by a vote of 400 to 0 (Roll Call No. 459, 93 rd Cong., 1 st Sess.).

3 P a g e 3 The EEOC has an opportunity to promulgate regulations that embody the spirit of this compromise and that the business community and disability community can enthusiastically support. However, it is also within the EEOC s power to undermine the compromise, whether intentional or not. We do not underestimate the difficulty in getting these regulations right. We know only too well how difficult some of these issues are and that reasonable people can disagree. However, we also know the cost of failure. If the major provisions of the regulations are not consistent with the compromise, it will only be a matter of time before we are back in court arguing over the definition of disability. 3 Ultimately, the EEOC implemented regulations that, while not perfect, were largely consistent with the compromise. In some ways, the OFCCP now stands at the same crossroads at which the EEOC stood just a few years ago. The agency has the power to promulgate a final rule that will enjoy widespread support among most, if not all, stakeholders. However, we are concerned that if the agency does not significantly alter its proposal, it will do harm to the broad support that the Rehabilitation Act currently enjoys. Before addressing the substance of the proposal, one additional comment about process must be made. The OFCCP proposed these amendments on December 9, 2011, providing a 60- day comment period. The Chamber requested a 90-day extension, explaining that the extension was necessary to allow us to more fully vet both the policy choices made in the proposal as well as the economic and burden analyses that were undertaken. We explained that we developed a survey instrument to help us in commenting on the proposal and stressed that additional time would be needed to implement the survey, compile data, and analyze the results. While the Department rejected our request, it later granted a two-week extension. We appreciate the two week extension as it enabled us to file more comprehensive comments than we otherwise would have filed without the extension. However, the comment period has not been sufficient to fully analyze the data we collected in our survey, to conduct follow-up interviews to answer new questions that have arisen since examining the data, and to more fully explore alternatives that may exist to the OFCCP s proposal. For this reason, we strongly urge the OFCCP to continue to seek and accept input from stakeholders that could assist the agency in developing an appropriate and less controversial proposal. 3 U.S. Chamber of Commerce Comments to the Equal Employment Opportunity Commission on Proposed Regulations Implementing the ADA Amendments Act at 4 (Nov. 23, 2009).

4 P a g e (a) General Purpose Subpart C - Affirmative Action Program The proposed regulations represent a marked change in the concept and design of the affirmative action plan ( AAP ) component of the section 503 program. This change in the concept of the program is highlighted in the proposed new introductory paragraph found at proposed (a). While the proposed paragraph clarifies that the AAP is to institutionalize the contractor s commitment to equality in every aspect of employment, it changes the entire thrust of the program into a numerical analysis requiring the AAP to contain measurable objectives, quantitative analyses, and internal auditing and reporting systems that measure the contractor s progress towards achieving equal employment opportunity for individuals with disabilities. 4 This new objective, which copies in part the design of AAPs under the E.O program, 5 thrusts the section 503 program into a wholly quantitative structure, ignoring the proactive inclusive program designed to deal with the thrust of the Rehabilitation Act and creating enormous new financial burdens on contractors and subcontractors, many of whom are small or medium sized businesses trying to reestablish their financial structure so that they may begin to create jobs for all potential employees which are so necessary. In addition, as discussed with respect to proposed 46, this quantitative based program does not incorporate many of the protections included in the E.O program which insure that the obligations are not quotas and that compliance is measured both by results but also by the good faith efforts employed to achieve those results Availability of Affirmative Action Program This proposed section would require that the contractor make the full affirmative action plan (AAP) available to any employee or applicant upon request. This provision is of significant concern to contractors, especially in light of the new information that must be included in the AAP should the proposal be implemented. Under the proposal, the AAP will include sensitive, trade secret, and proprietary information, such as metric analyses. Another serious concern is the requirement that the AAP be available to applicants. This issue is discussed more fully below. Given this complicated issue, contractors are concerned that the OFCCP is now proposing that they must disclose the very detailed AAPs to anyone who expresses an interest in employment. Contractors are also concerned whether without such a definition they will be required to collect data on all who express an interest rather than the narrower set of individuals who are qualified for a job Fed Reg. 77, See 41 CFR

5 P a g e Invitation to Self-Identify This section of the OFCCP s proposal has raised significant concern among contractors for a number of reasons. These comments address the issues raised by the lack of definition of applicant, whether applicants will self-identify, the extent to which self-identification is voluntary, interaction with linkage organizations, the yearly survey, and potential conflict with the ADA. Who Is an Applicant? Paragraph (a)(1) of this section would mandate that contractors ask individuals to voluntary self-identify when the applicant applies or is considered for employment, whichever comes first. Contractors are greatly concerned about the lack of definition of applicant and the requirement to ask for self-identification at this stage. As the OFCCP knows from the record developed in conjunction with the definition of internet applicant under E.O , the advent of technology and the use of the internet for recruiting and hiring has resulted in employers receiving vast numbers of resumes, applications, and other expressions of interest. A great many of such submissions are from individuals who do not meet the basic qualifications for the job. The definition promulgated under recognizes that it is not appropriate to require contractors to maintain records and collect data on the vast number of unqualified job seekers who have no chance at employment in the position. The current proposal raises this same question. We question the utility of collecting such data from individuals who do not meet the basic job qualifications. Indeed, it seems that collecting such information from all who express an interest in employment, regardless of qualifications, will render the data collected largely meaningless. A parallel approach to the regulations under would probably require that the invitation to self-identify occur after it is established that the individual can perform the job with or without reasonable accommodation. Indeed, it is worth noting that it is our understanding that this is the reason why the existing regulations implementing section 503 required an invitation to self-identify at the post-offer stage, recognizing the significant complexities raised by attempting to solicit self-identification before qualification issues are resolved. Will Individuals Self-Identify? Another concern raised by contractors is the extent to which employees and applicants will actually self-identify. While the proposed language for the form to be provided to employees states that the information is only being collected for affirmative action purposes, it is not clear that individuals with disabilities who do not need accommodations will actually certify. This may be especially true if they do not wish anyone at work to learn of their disability or they do not believe it is relevant or they do not understand the legal definition. We are aware that some believe requiring contractors to ask for self-identification may be a first step toward changing how society views disability. We do not quarrel with that goal. However, many of our members still question whether the mandates proposed in this regulation can be justified when it is

6 P a g e 6 unknown whether individuals will actually self-certify in appropriate numbers. As an alternative to a contractor-wide mandate, perhaps the OFCCP should consider a smaller scale pilot-program to see if employees and applicants actually self-certify. Voluntariness The voluntary nature of the self-identification requirement has also raised significant concern from contractors and will necessarily operate significantly differently from the voluntary self-identification provisions under E.O Under the Executive Order, if individuals do not self-identify, contractors may use post-employment records or visual observation in order to identify an individual s race, ethnicity, and gender. 6 There is no parallel for section 503. Indeed, it would seem unwise for an employer to make such an observation since that would immediately raise issues of whether the employee was regarded as disabled by the employer under the third prong of the definition of disability. Yet, without accurate self-identification data, the statistics required to be collected under proposed subsection 44(k) will be of questionable utility. What this means is that contractors may feel compelled to have applicants fill out the proposed voluntary form. In addition, we also find it curious that the proposed language for the self-identification form does not state that the form is voluntary until after the applicant is asked to self-identify. 7 We respectfully suggest that the language stating the voluntary nature of the form should appear before the applicant is asked to provide any responses. Interaction with Linkage Organizations In examining the utility of this section s requirements, some of our members have suggested that it is unclear how the requirement interacts with the requirements to enter into linkage agreements and the job posting requirements required by subsection (f). It is our understanding that some groups with which an employer might post a job or have a linkage agreement will encourage the individual to self-identify on the front end, and that some job boards will do this. Arguably, it is the data collected from those new requirements which would be used to determine whether recruitment efforts are sufficient. Yearly Survey As to the yearly survey proposed in paragraph (c), contractors have two principle issues. First, they are troubled by the burdens that would be imposed in developing the survey and implementing it on an annual basis. Second, they are concerned by the conflict between the supposed anonymous nature of the survey and the requirement to collect data in subsection 44(k) and the use of such data in conjunction with the utilization goals proposed in section 46. If the data is anonymous how can contractors analyze it by job group as called for in the proposal? 6 See, e.g., OFCCP ADM Notice 283 (Aug. 14, 2008) Fed. Reg. at 77,063.

7 P a g e 7 Potential Conflict with ADA Finally, we must address the whether the ADA permits contractors to ask applicants to self-identify at the pre-offer stage. OFCCP has repeatedly stated that there is no conflict and that employers may collect such information for affirmative action purposes. However, the OFCCP must understand that a great many contractors question this legal analysis. Perhaps the OFCCP s reliance of totally different regulatory provisions in the ANPRM and NPRM is evidence of this confusion. In the ANPRM, the agency asserted that pre-offer self-identification would not violate the ADA by citation to 29 C.F.R (e). This citation is to a portion of the regulations labeled Defenses and states: Defenses to an allegation of discrimination under this part may include, but are not limited to, the following: (e) Conflict with other Federal laws. It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part. The ANPRM also cited to EEOC Enforcement Guidance: Preemployment Disability Related Questions and Medical Examinations. As we noted in our comments at the time, this notice is conclusory and offers no legal support for its position. As we observed during the ANPRM comment period, the OFCCP s reasoning seemed to be that action done pursuant to any federal regulation would be a defense to a charge of discrimination under the ADA. We also observed that this assurance did not provide our members comfort because the ADA specifically states that: Except as otherwise provided, a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. (emphasis added) 8 At the time, we noted that while the language codified at (e) is very broad, we had significant doubts as to whether a regulation under the Rehabilitation Act that is directly in conflict with the text of the ADA could be successfully relied on as a defense. The current NPRM addresses these concerns by dropping the argument raised during the ANPRM and instead provides a citation to different regulations promulgated by the EEOC. The change in citation is not explained. This citation from the NPRM is certainly more appropriate than that from the ANPRM, and we appreciate the OFCCP making the change. The OFCCP has now cited to 29 C.F.R U.S.C (d)(2).

8 P a g e (c), which states that the ADA does not invalidate or limit the remedies, rights, and procedures of any Federal law that provides greater or equal protection for the rights of individuals with disabilities. It also cites to the Appendix to 29 C.F.R (a) which states: Collecting information and inviting individuals to identify themselves as individuals with disabilities as required to satisfy the affirmative action requirements of section 503 of the Rehabilitation Act is not restricted by this part. This citation is clearly more on point that that cited by the OFCCP during the ANPRM. However, it should be noted that this provision was originally promulgated in the context of section 503 regulations that did not call for an invitation to self-identify until the post-offer stage. Consequently, there are still contractors who are concerned that they could be exposed to litigation risk by complying with any mandate for pre-offer self-identification. Likewise, the question of whether the Rehabilitation Act qualifies as a federal law offering greater or equal protection is debatable. While its affirmative action requirements would likely be viewed as greater protection, the ADA s privacy protections may be viewed as greater than the Rehabilitation Act s provisions and thus make this provision of the ADA and its regulations unavailing. Regardless of whether the OFCCP believes this is a proper legal analysis, the OFCCP must recognize the concern. If the OFCCP moves forward with any mandate for contractors to ask applicants to self-identify, then it is critical that an explanation for the legal basis be very clearly articulated in regulatory language. While this concern will not be completely allieviated without statutory change, a clearer recognition of these concerns and an explanation would certainly be helpful (b), (c), (d) Required Contents of Affirmative Action Programs; Review of Personnel Processes, Physical and Mental Qualifications; Reasonable Accommodation to Physical and Mental Limitations Accessible Technology Subsections (b) and (d) would require contractors to insure that information and communication technology is accessible. This requirement does not take into account that other agencies with accessibility jurisdiction, the Department of Justice and the Access Board, are currently examining requiring website and technology accessibility and the availability of processes or technology to facilitate such access. The obligation the OFCCP proposes to place on contractors is therefore both premature and not consistent with the current state of developments. Too, such obligations will result in significant costs, particularly to small or medium sized employers which are not accounted for in the proposal. We further note that while employers must provide reasonable accommodations that do not impose an undue hardship, the Rehabilitation Act does not require that an employer utilize a specific accommodation, such as full accessibility, but may utilize another accommodation that may be equally effective.

9 P a g e 9 Identification and Record of Reason for Rejection Subsection (b) also proposes to establish enormously burdensome requirements on contractors by mandating that the contactor identify for applicants, however defined, and employees every vacancy for which the applicant was considered, every training program for which the applicant was considered, and similar records for employees. Even more troublesome is the requirement that the contractor provide to each rejected applicant a written explanation of the reason for the rejection or for employees a written explanation for each training or promotion opportunity considered or rejected and a description of accommodations considered. Nowhere is such a burdensome requirement authorized by law, nor is such requirement found in any other equal employment statute. Nor is such case by case record keeping required by the E.O program. The closest analogy that we are aware of is found in the Age Discrimination in Employment Act where employers who offer exit incentives must generally list eligible participants, the age and title of participants including those selected for the enhanced exit incentive and a general reason for the decision. 9 However, even this requirement does not mandate the vast recordkeeping burden that OFCCP now seeks to impose. It is also important to note that these provisions fail to recognize the extent to which some of the employment processes the OFCCP seeks to document occur informally. Does the OFCCP literally seek recordkeeping of every informal bit of training that occurs in the workplace? The use of the term training program suggests that this is not the case and that there must be some kind of more formal program at issue for the requirements to apply, but this is not clear. Subsection (b) would further increase recordkeeping burdens, and therefore act as a disincentive, toward considering applicants or employees for positions other than the position to which they applied. It is not uncommon for an employer, having considered and rejected an individual for one position, to later think that that same person might be a good fit for another position. The OFCCP appears to recognize this fact later in (f)(2)(vi) (see related comments below). Yet under this proposal it would seem that the moment this thought occurs to a manager, the recordkeeping requirements would be triggered. Such a requirement might require contractors to put in place processes to effectively prevent managers from considering applicants for a position other than that for which they applied. While this might make for neater record keeping, it is hard to see how this would benefit contractors or applicants in any way. To the contrary, it is likely to decrease opportunities for individuals with disabilities. Annual Review of Personnel Processes Subsection (b) of the proposal requires an annual review of various personnel processes while subsection (c) requires an annual review of physical and mental job qualification standards. We appreciate the OFCCP s interest in ensuring that contractors review personnel processes and job qualification standards regularly. However, contractors are concerned that 9 29 USC 626 (f).

10 P a g e 10 comprehensive review on an annual basis may not be a good use of resources in many situations. For example, many jobs may not have changed in any meaningful way from one year to the next. While we understand that the OFCCP wants to ensure that contractors are regularly reviewing such things, it would seem that in some cases a more limited review would suffice, such as a certification that circumstances have not changed (f) Required Contents of Affirmative Action Programs; External Dissemination of Policy, Outreach and Positive Recruitment This proposed subsection requires contractors to undertake two distinct outreach and recruitment efforts. First, contractors will be required to list all positions with the Employment One-Stop Career Center nearest to the establishment hiring. The contractor is further obligated to establish linkage agreements with at least three other outreach entities. One-Stop Listing As to the first requirement, the contractor must provide the information about each job vacancy in the manner and format required by the appropriate One-Stop. 10 This is similar to the requirement included in the OFCCP s proposed revisions of the section 4212 regulations. Our concerns regarding this proposal are similar to those raised in joint comments we submitted with the Equal Employment Advisory Council and the H.R. Policy Association on the section 4212 proposal. Our comments on that proposal described the concern that contractors had with a similar proposal embodied in the 2007 regulations that was resolved by compromise. The final rule stated: However, OFCCP appreciates the difficulties contractors may face if they must list job openings with multiple employment service delivery systems, particularly if those systems maintain different methods for posting job openings or if the contractor must act to fulfill multiple job openings in different geographical locations in a short period of time. A contractor may satisfy the mandatory job listing requirement by submitting job listings to the appropriate employment delivery system in a variety of ways, including via mail, facsimile (FAX), electronic mail, or other electronic postings. OFCCP believes that this approach allows contractors the necessary flexibility to determine the most effective way to comply with the mandatory job listing requirement, depending on the number, timing, and location of the positions to be filled. 11 In addition to these statements, OFCCP published the following FAQ on its website: 10 Proposed (f)(1)(i) Fed. Reg. at 44,397.

11 P a g e 11 Is there a particular way contractors must list employment openings with the appropriate employment delivery system? A contractor may satisfy the mandatory job listing requirement by submitting job listings to the appropriate employment delivery system in a variety of ways, including via mail, facsimile (FAX), electronic mail, or other electronic postings. The vast majority of the state workforce agency job banks accept job listings via the Internet. Contractors may use third parties, such as private or non-profit sector job banks, Internet gateway and portal sites, and recruiting services and directories, to assist them with the transmission of job listings to the appropriate employment service delivery system. As was the case with our joint comments on section 4212, we urge the OFCCP to consider that these same challenges remain today. Without a centralized mechanism to submit these job postings the true burden of this task is enormous, and frankly, incalculable. Moreover, OFCCP should make it clear that federal contractors may use third parties to assist them with the transmission of job listings to the appropriate employment service delivery system. Indeed, to mandate that every federal contractor establishment post its jobs directly with the appropriate job service office in the manner and format it requires is a monumental task, particularly when considering that there is no standard process across the states by which jobs can be submitted. This means that each state and each local employment service office could impose different requirements that may or may not be known by the contractor, with a simple misunderstanding of requirements yielding a violation of the regulations. As was the case with the proposed amendments to the section 4212 regulations, we strongly urge the OFCCP to consider how it might reduce the burdens imposed by this provision, such as the compromise offered previously and embodied in the 2007 regulations implementing section Linkage Agreements The contractor is further obligated to establish linkage agreements with at least three other outreach entities. While in concept such targeted outreach makes great sense, specifying the number of outreach linkage agreements and the entities with whom such agreements would be made seems to represent a significant overreach on the part of the OFCCP and elevates form over substance. This is further complicated by the fact that contractors also have to establish various outreach agreements with minority, gender as well as veterans referral organizations. Although the requirements derive from separate legal authorities, the OFCCP should recognize the totality of its authority and permit, if not encourage, contractors to maximize their outreach efforts by utilizing fewer but more inclusive outreach organizations so that they may avoid the operation burdens and costs of multiple agreements. For small or midsize contractors, the totality of the OFCCP obligations in this regard will be extremely burdensome.

12 P a g e 12 At a bare minimum, if OFCCP insists upon imposing this burden on the contracting community, we urge the agency to consider the impact it will have on those contractors that maintain multiple establishments. For example, contractors with hundreds or even more establishments questioned the value of establishing multiple linkage agreements with each establishment, when it might be much more efficient to establish linkage agreements at another corporate level, such as regional or enterprise wide. We urge OFCCP to consider a final rule that permits contractors the flexibility to establish the necessary linkage agreements at a higher level. Considering Applicants for Other Positions Generally, we do not object to the list of suggested outreach efforts that appear in paragraph 44(f)(2). However, while the first five subparagraphs listed under paragraph (2) use the permissive language should, subparagraph (2)(vi) uses the mandatory language shall. We would not object to this provision if should were substituted for shall. As it is written, the paragraph appears to require contractors to consider applicants with known disabilities for positions for which they have not applied. As we noted above, employers may often utilize such a process, but it is quite another thing to mandate it. This requirement does not state how such consideration is to be documented under the extensive requirements established by the proposal and whether the contractor must give a written explanation for its decision not to hire an applicant for every position for which it might have considered the applicant under this requirement. Assessment and Recordkeeping Paragraph (3) requires the contractor to consider and evaluate its outreach efforts over a three year period thereby establishing, for the first time, a three year data retention policy. And of even more concern, subsection (f)(4) requires all linkage agreements and all documents relating to outreach efforts to be maintained for five (5) years. There is no consistency or basis for these extensive record keeping obligations and the cost and inconvenience of these dissimilar requirements will result in no productive activity by the contractor. We discuss additional related concerns below in the discussion of (g) Internal Dissemination of Policy We received comparatively little feedback from contractors on the proposed requirements under subsection (g). However, more clarification would be helpful with the requirement that contractors, if they are parties to collective bargaining agreements, to meet with employee representatives to inform them of the contractors policy and request their cooperation. 12 Issues that may arise in a unionized workplace include the extent to which the employer s affirmative action plan will interact with seniority or preferential job bidding rights. Does one trump the other? Other contractors have wondered whether the requirement to seek the union s cooperation 12 Proposed (g)(2)(iii).

13 P a g e 13 invokes some kind of bargaining obligation. More clarity to address these points would be helpful (k) Required Contents of Affirmative Action Programs; Data Collection Analysis Subsection (k) represents a startling new series of obligations which create significant and extremely burdensome obligations for contractors. Contractors will be required to collect and analyze data in a manner inconsistent with other new requirements proposed to be established by these regulations. Contractors will be required to establish an applicant ratio comparing applicants with disabilities to all applicants, notwithstanding that the requirement to collect disability data for applicants, however defined, is purportedly voluntary. Thus, either contractors must compel applicants to complete the voluntary forms or they cannot compile an accurate applicant ratio. This is made more problematic by the fact that the self-reported data will be much less accurate and reliable given the complicated legal definition of disability. In comparison, it is far easier for individuals to self-identify on the basis of sex or race/ethnicity. The differences between the proposed data collection and that under E.O are an additional concern. For example, the proposed data collection analyses requires that one set of data be compiled for all hires whereas the longstanding requirements under the E.O program requires that such data be collected and analyzed on a job group basis. Section (k)(10) conflicts with section as the latter establishs a utilization goal on a job group basis. Thus, there are various data and collection analyses which are independent of each other and which are seemingly in conflict with each other. Equally troubling is the suggestion in the preamble, that the OFCCP may require contractors to submit the data and analyses established by subsection (k) and these regulations in an annual report. 13 Such a report, not required by the other affirmative action programs or otherwise, would represent a stunning new reporting obligation without any basis or indication that such reporting would serve any purpose under the Rehabilitation Act Reasonable Accommodation Procedures This section would require contractors to develop and implement written procedures for processing requests for reasonable accommodations. 14 In particular, this section would create a detailed, formal process that contractors must follow when an employee or applicant makes a request for a reasonable accommodation. These steps include providing a written confirmation of receipt, a requirement that any denial of a request be made in writing, a deadline for making determinations, and the requirement that requests may be made to any supervisor or management official in the employee s chain of command Fed. Reg. at 77, Fed. Reg. at 77,067.

14 P a g e 14 We have identified at least three issues with this section, which are addressed below. These issues are: The proposal ignores the fact that a very significant percentage of workplace accommodations occur informally; The proposal establishes an unworkable timeframe for responses; and The proposal mischaracterizes an employer s duty to accommodate a request for a reasonable accommodation. The Proposal Does Not Account for Informal Requests A major problem with the reasonable accommodation procedures outlined in the proposal is that it fails to account for the simple fact that the vast majority of workplace accommodation requests happen informally. This same concern was raised by the OFCCP s proposed changes to Item 13 of Itemized Listing. 15 Because the OFCCP s proposed changes to Item 13 show some agency misconceptions about the law and practice and the relation to the current proposal, a brief discussion of the issue is appropriate here. The proposed Item 13 requests Copies of accommodation policies and records of accommodations granted under section 503 and section In the Supporting Statement submitted to OMB accompanying the proposal, OFCCP notes that one commenter stated that contractors are not legally required to record afforded accommodations and as a result, most do not have a process in place to track this information. 17 OFCCP responded by stating: OFCCP emphasizes that it currently requires federal contractors to maintain records of requests for reasonable accommodations. Pursuant to 41 CFR , a federal contractor is required to preserve, for one or two years, any personnel or employment record, including requests related to reasonable accommodations. Therefore, contrary to what these commenters assert, no additional burden is imposed upon them to supply data in response to this item. Contractors should have an existing process in place to track the requested data. 18 We were puzzled by this statement since it is inaccurate as a matter of law. OFCCP s reliance on 41 CFR is inapposite. This regulation mandates that contractors keep 15 OMB solicited comments on the proposed changes through a Federal Register notice published on September 28, Fed. Reg. 60,083. The relevant modifications for the purposes of this discussion appear in Item 13 of the Itemized Listing. 16 Proposed Itemized Listing at September Supporting Statement at Id. at

15 P a g e 15 personnel or employment records for a certain period of time. It does not mandate that the records be created in the first place. Both the proposed change to Item 13 and the current proposal fail to consider the fact that the issue of accommodations arise every day in the workplace and are addressed routinely without any formal process or documentation. Consider the following hypothetical situations: Hypothetical A An employee asks his supervisor if he may report to work late tomorrow so that he can go to a doctor s appointment. The supervisor agrees. Hypothetical B An employee asks her supervisor if she may regularly schedule physical therapy appointments on Wednesday mornings, that would result in her to arriving at work 30 minutes late each Wednesday. Her supervisor agrees. Hypothetical C An employee asks her supervisor if she may regularly schedule physical therapy appointments on Wednesday mornings, that would result in her to arriving at work 30 minutes late each Wednesday. Her supervisor notes that Wednesday mornings are critical to the employer s production schedule and asks whether she could schedule the physical therapy on another day. The employee schedules regular physical therapy schedules for Thursdays instead. Hypothetical D An employee requests greater lighting for his work station. Hypothetical E An employee working in an office environment requests that a printer be located closer to her office. Has the employee made a request for accommodation under section 503 in any of these hypothetical situations? Perhaps. It is impossible to answer without knowing more about the reasons for the request. No law requires an employer to ask why its employee wants time off or what the reason is for a doctor s appointment or physical therapy. Nor does any law require an employer to create a record of the request. Supervisors make these kinds of informal accommodations every day in the workplace. Supervisors also regularly enter into the interactive process informally, as shown in Hypothetical C, without first establishing whether section 503 or another law applies.

16 P a g e 16 These kinds of informal accommodations should be encouraged, not discouraged by imposing burdensome and costly new reporting and paperwork requirements. Unworkable Timeframe for Responses While paragraph (4) purports to permit the contractor to set its own timeframe for responding to requests, the subsection then establishes a timeframe of between 5 and 10 days. While many accommodation requests will be processed within this time frame (or even much quicker as the hypothetical situations above illustrate), a 5 to 10 day window is not realistic in many cases. Many accommodations require a longer time period to more fully analyze the type of job restructuring that may be required. The arbitrary time limit has no basis and does not recognize the complexity of some accommodation requests. Mischaracterization of Duty to Accommodate Finally, paragraph (7) requires a written explanation of the denial or refusal to provide the requested accommodation. However, the law does not require the contractor, or an employer generally, to provide or deny the specific requested accommodation but rather the interactive process could result in the contractor in offering an accommodation not requested but which it believes will serve the intended purpose. This subsection does not appear to allow for such consideration. Most troubling however, is that the regulation suggests that a denial of an accommodation may be an act of discrimination. Whether or not such denial is justified, it may represent a failure to meet all affirmative action obligations but it certainly does not constitute a per se act of discrimination Utilization Goals The preamble attempts to justify the establishment of an aspirational goal and describes the methodology used to develop the numerical goal and its basis. In this section we comment on the extent to which the proposed utilization goals may appear to be more like inflexible quotas, the method by which the goal is established, the application of the goal to job groups, and additional issues including whether looking primarily at a sub-group of individuals with disabilities for the purposes of affirmative action is helpful. Goals versus Quotas We appreciate the OFCCP s assertion in the preamble that a utilization goal is neither a hiring quota, nor a restrictive hiring ceiling. 19 Nevertheless, the utilization goal established in the proposal is quite different from the most parallel provisions under E.O which makes the proposed utilization goal seem much more like an inflexible quota. Section 46(d) states: Fed. Reg. at 77,068.

17 P a g e 17 If individuals with disabilities are employed in a job group at a rate less than the utilization goal, the contractor must take specific measures to address the disparity. (emphasis added) There is nothing aspirational about this requirement. Unlike the E.O program, these goals do not require good faith efforts, nor do they permit the contractor to apply its own business requirements to the process. Indeed, the establishment of a utilization goal runs directly contrary to the requirements of the E.O program in which the workforce analysis may result in the establishment of Placement Goals. 20 In addition, the E.O regulations specifically state that the placement goals are not rigid, inflexible quotas Quotas are expressly forbidden. 21 In contrast, the language found at proposed subsection 46(g) does not approach the protections of the E.O regulatory language and is belied by the requirements in subsection (d) cited above. Establishment of Goal OFCCP has proposed a national utilization goal of 7%. While we appreciate that in some ways a single national numerical goal may be easier to administer and make things less complicated, there are other problems that it presents. For example, statistics show considerable variance in the rate of employees with disabilities both geographically and by job group. To cite just a few specifics, in one recent report commissioned by the Labor Department s Office of Disability Employment Policy, noted that only 1.1% of natural science managers and only 1.3% of actuaries are individuals with disabilities using the ACS definitions. 22 The same report noted that significant variance existed when examining major occupation categories for selected regions. For example, in the Chicago MSA only 3.2% of employees identified as professionals met the ACS definition. 23 While in some ways a single national goal is preferable to requiring contractors to create data that may not exist today, it poses other challenges of which OFCCP must be mindful. Even the best intentioned contractor may have significant challenges meeting a particular utilization goal. This data is buttressed from experiences that our members have shared with us. For example, one contractor with a strong diversity program reported that they have had great difficulty in recruiting applicants with disabilities in particular cities that have a poor reputation when it comes to being accessible. 20 See 41 CFR C.F.R (e)(1). 22 EconSys Economic Systems Inc, Affirmative Action for People with Disabilities: Quantitative Analysis and Goals at (May 2011). 23 Id. at 43.

18 P a g e 18 Application to Job Groups The application of utilization goals to job groups is further complicated by the fact that there does not appear to be any lawful way for an employer to obtain this information, as discussed above related to section 42, since the annual survey is anonymous. We understand the OFCCP s stated concern that analysis at the job group level may be necessary to prevent contractors from masking discrimination and segregation, 24 but given the particular problems with the data set, if the OFCCP decides to implement a utilization goal permitting data to be aggregated on a firm level or establishment level would present significantly fewer administrative challenges. Perhaps there are alternatives that could be considered that permit more aggregated data to be submitted while still giving the OFCCP the necessary ability to ensure contractors are not hiding unlawful behavior. Additional Concerns The agency must also address the significant differences that arise in setting utilization goals for individuals with disabilities in comparison to those under E.O Race and sex, for example, are immutable characteristics. Race is presumed to never be relevant to an individual s ability to do a job. Sex is the same, with very narrow exceptions. Disability, on the other hand, may be relevant as is recognized by both the Rehabilitation Act and the Americans with Disabilities Act. Statistics, as noted above, are likely to show significant variation in the employment rate of individuals with disabilities in particular job groups. While some of this variation can likely be addressed through stronger affirmative action and diversity programs, some significant variation is likely to be attributable to the fact that some disabilities will have a direct relationship with the essential functions of particular jobs and the availability of reasonable accommodations. We are also mindful of the desire Congress had in enacting the Americans with Disabilities Act Amendments Act that less emphasis be placed on analyzing whether an individual is an individual with a disability. We are concerned that the Department s proposal could cause contractors to refocus resources on determining whether or not an individual is disabled so as to determine whether it meets its utilization goal. This use of resources is of questionable utility. It should be noted that the preamble to the proposal suggests that the OFCCP may establish a sub goal of 2% for individuals with targeted disabilities as defined by the President s Executive Order and federal form Whether or not a utilization goal of 2% is appropriate, specific focus on targeted disabilities may represent a more efficient use of federal and contractor resources. In fact, in vetting this proposal with contractors, it became clear that many question the OFCCP s approach in this proposal because of the large numbers of 24 See 76 Fed. Reg. at 77, Fed. Reg. at 77,071.