Examples of Practices: Federal Affirmative Action Programs for Qualified Individuals with Disabilities and Qualified Disabled Veterans November 2009

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1 Examples of Practices: Federal Affirmative Action Programs for Qualified Individuals with Disabilities and Qualified Disabled Veterans 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.

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4 Table of Contents I. Introduction Resources and Literature Organization... 3 II. Equal Opportunity Policy Statement Section 503 and VEVRAA Policy Frameworks OFCCP Sample AAP Examples of Policies... 5 III. AAP: Review of Personnel Processes Section 503 and VEVRAA Policy Frameworks [ (b); (b)] OFCCP Sample AAP Examples of Policies and Practices... 9 IV. Review of Physical and Mental Job Qualification Standards Section 503 and VEVRAA Policy Frameworks [ (c ); (c )] OFCCP Sample AAP Examples of policies and practices V. Reasonable Accommodation to Physical and Mental Limitations Section 503 and VEVRAA Policy Frameworks [ (d); (d); 61 FR 19345] OFCCP Sample AAP Examples of Policies and Practices from EEOC Guidance under Section 501 of the Rehabilitation Act Examples of Selected Portions of AAPs Related to Reasonable Accommodations Submitted to OFCCP Examples of Practices from Roadmaps and the Section 188 Disability Checklist VI. Harassment Prevention Procedures Section 503 and VEVRAA Policy Frameworks OFCCP Sample AAP VII. External Dissemination of Policy, Outreach and Positive Recruitment Section 503 and VEVRA Policy Frameworks [ (f); (f)] OFCCP Sample AAP Examples of Selected Portions of AAPs Related to External Dissemination of Policy Submitted to OFCCP Examples of Practices from the Roadmaps and Universal Strategies Documents VIII. Internal Dissemination of Policy Section 503 and VEVRAA Policy Frameworks [ (g); (g)] OFCCP Sample AAP Examples of Practices from Section 501 Policy Framework Examples of Selected Portions of AAPs Related to Internal Dissemination Roadmaps for Enhancing Employment of Persons with Disabilities through Accessible Technology i

5 IX. Audit and Reporting System Section 503 and VEVRAA Policy Framework OFCCP Sample AAP Examples from Selected Portions of AAPs Related to Audits and Reporting Submitted to OFCCP X. RESPONSIBILITY FOR IMPLEMENTATION OF AAP Section 503 and VEVRAA Policy Frameworks [ (j); (j)] OFCCP Sample AAP Examples from EEOC Guidance Regarding Implementation of Section 501 of the Rehabilitation Act XI. Training to Ensure AAP Implementation Section 503 and VEVRAA Policy Frameworks [ (j); (j)] OFCCP Sample AAP Examples from Universal Strategies Document XII. Self-Identification Section 503 and VEVRAA Policy Framework OFCCP Sample AAP ii

6 I. Introduction President 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, which require that government contractors provide equal opportunity 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. This includes recruitment, advertising, and job application procedures. Section 503 and VEVRAA are administered by the Office of Federal Contract Compliance (OFCCP) in the Department of Labor. The purpose of this guide is to provide examples of practices that contractors may use to meet their obligations under Section 503 and VEVRAA with respect to their affirmative action program (AAP). This technical assistance document has been prepared by Robert Bobby Silverstein of Powers, Pyles, Sutter, & Verville, PC in partnership with Economic Systems Inc. (EconSys) and Bender Consulting Services, Inc. The project has been funded by the Office of Disability Employment Policy (ODEP), US Department of Labor under a contract awarded to EconSys. The examples of practices included in this technical assistance guide are not mandatory requirements under Section 503, VEVRAA, or their implementing regulations. The examples do not create new legal requirements or change current legal requirements. Instead, they suggest ways in which contractors might meet their obligations to ensure that qualified individuals and veteran with disabilities enjoy equal opportunities in the employment application process, and to take affirmative action to employ and advance these individuals. The descriptions of possible approaches in this technical assistance guide should not be construed as precluding contractors from devising alternative approaches to meeting their legal obligations. 1. Resources and Literature This guide 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 Americans with Disabilities Act (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. Page 1

7 Section 503 regulations are codified in Part of Title 41 of the Code of Federal Regulations VEVRAA regulations are codified in Part and Part of Title 41 of the Code of Federal Regulations [Part applies only to Government contracts entered into or modified on or after December 1, The existing VEVRAA regulations found in Part will continue to apply to Government contracts entered into before December 1, 2003] Preamble and section-by-section analysis accompanying the Section 503 regulation appears in the Federal Register at 61 FR (May 1, 1996) Preamble and Section-by-section analysis accompanying the VEVRAA regulations appears in the Federal Register at 72 FR (August 8, 2007) Office of Federal Contract Compliance Programs, Section 503 and VEVRAA Sample Affirmative Action Program, Washington, DC: US Department of Labor, Employment Standards Administration (2003) Office of Federal Contract Compliance Programs, Federal Contract Compliance Manual (FCCM), Washington, DC: US Department of Labor, Employment Standards Administration 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 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) 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) Civil Rights Division, Accessibility of State and Local Government Websites to People with Disabilities, Washington, DC: Department of Justice (June 2003): Available (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. Part 1614 of Title 29 of the Code of Federal Regulations Equal Employment Opportunity Commission, Management Directive 715, Washington, DC (October 1, 2003) Statutory, regulatory, and guidelines applicable to other civil rights provisions Regulations implementing Section 188 of the Workforce Investment Act are codified in Part 37 of Title 29 of the Code of Federal Regulations Page 2

8 Civil Rights Center, WIA Section 188 Disability Checklist, Washington, DC: Department of Labor (July 25, 2003) State Guidance for Developing Methods of Administration Required by Regulations Implementing Section 188 of the Workforce Investment Act of 1998, 65 FR (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. 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) National Disability Rights Network, Roadmaps II: For Enhancing Employment of Persons with Disabilities through Accessible Technology, Washington, DC: Department of Labor (2007) 2. Organization This guide is divided into eleven sections, which correspond to the ten components of an affirmative action program and the contractor s policy regarding self-identification. Under each component, the guide includes the following: References to applicable provisions of the Section 503 and VEVRAA policy frameworks A recitation of the actual language included in OFCCP s Sample AAP for qualified individuals with disabilities and qualified disabled veterans Examples of practices from various sources, including AAPs submitted by government contractors to OFCCP In its Sample AAPs, OFCCP makes reference to a fictitious Government contractor, Federal Contract, Incorporated (FCI). For purposes of conformity, each section of this guide that includes supplemental examples of practices also makes reference to FCI. Page 3

9 II. Equal Opportunity Policy Statement This section of the guide relates to the first component of an AAP the equal opportunity policy statement. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement Examples of policies and practices that may be used to supplement the policies and practices set out in the OFCCP Sample AAP 1. Section 503 and VEVRAA Policy Frameworks In 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 an individual with a vision impairment or may lower the posted notice so that it may be read by a person in a wheelchair). 1 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: 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 (and/or VEVRAA) 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 (and/or VEVRAA), their implementing regulations, or any other federal, state, local law requiring equal opportunity for persons with disabilities Exercising any other right protected by Section 503 (and/or VEVRAA) or their implementing regulations (a); (a); Preamble 61 FR Page 4

10 2. OFCCP Sample AAP It 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 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 FCI, I have selected the Personnel Manager as the Equal Employment Opportunity 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 that 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 for assistance. 3. Examples of Policies Below are examples of statements of equal opportunity policy gleaned from a review of the Section 503 and VEVRAA policy frameworks. They include an amalgamation of actual statements of commitment to affirmative action and equal opportunity from particular Government contractors which have a reputation for recruiting, hiring, and promoting qualified individuals with disabilities and qualified disabled veterans. These statements supplement the statements in the OFCCP Sample AAP: Page 5

11 FCI recognizes the capabilities and contributions of people with disabilities. We have seen the benefits of recruiting, employing, and promoting people with disabilities, and we recognize that they provide a valuable resource in helping to ensure that our products meet all of our customers needs. FCI 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. FCI s affirmative action program for employment of qualified individuals with disabilities and qualified disabled veterans is an action-oriented program designed to enhance the opportunities for qualified individuals with disabilities and qualified disabled veterans. We recognize that the duty to take affirmative action regarding the employment of qualified persons with disabilities and qualified disabled veterans subsumes the duty not to discriminate. Nondiscrimination is the starting point the first step required in fulfilling our affirmative action obligation. We believe that affirmative action includes much more than nondiscrimination on the basis of disability; affirmative action includes instituting a system of proactive, positive measures and 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). Our system of proactive, positive measures and steps includes efforts to prevent discrimination on the basis of disability before it occurs by periodically, carefully, and thoroughly evaluating and monitoring our employment practices to identify and detect barriers to employment, and, where such barriers are identified, eliminate and remedy them. Our affirmative action program also includes expanded outreach, recruitment, mentoring, training, and management development and creating a work environment that actively welcomes and fosters advancement of qualified individuals with disabilities and qualified disabled veterans. I, as President and CEO of FCI, 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. FCI includes in all Purchase Orders a written notification of its affirmative action policy to all subcontractors, vendors, and suppliers requesting appropriate action on their part. For example, FCI adopts criteria for the purchase and use of information and communication technology by FCI that is accessible to and Page 6

12 usable by persons with disabilities and others, and reflects universal design features. FCI 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. Page 7

13 III. AAP: Review of Personnel Processes This section of the guide relates to the second component of an AAP the review of personnel processes. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement Examples of policies and practices that may be used to supplement the policies and practices set out in the OFCCP Sample AAP 1. Section 503 and VEVRAA Policy Frameworks [ (b); (b)] 2 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 to Part , Review of Personnel Processes, 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 (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 by 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 See also Appendix C to Part , Review of Personnel Processes. Page 8

14 2. OFCCP Sample AAP FCI 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 that is relevant to the specific job qualifications for which the veteran is being considered. 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 Policies and Practices Below are selected portions of statements taken from actual AAPs which supplement the language included in the OFCCP Sample AAP: 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 determine whether their present and potential skills are being fully utilized or developed. Note each instance where full representation or development is not accomplished to address the disparity between incumbency and availability and implement, and report the 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, and ensure these forms are quickly and easily retrievable for review and internal auditing activities. c) 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. d) 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 Page 9

15 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. e) When accommodations were undertaken which made it possible to promote or train a covered veteran or employee with disabilities, attach a description of the accommodation to the personnel file. FCI 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. FCI will also examine and compare minimum medical requirements, from entry to the actual duties and physical demands, of each reviewed job qualification. When appropriate, FCI 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; and ensure that the physician understands FCI 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. Page 10

16 IV. Review of Physical and Mental Job Qualification Standards This section of the guide relates to the third component of an AAP the review of physical and mental job qualification standards. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement Examples of policies and practices that may be used to supplement the policies and practices set out in the OFCCP Sample AAP 1. Section 503 and VEVRAA Policy Frameworks [ (c ); (c )] In accordance with regulations implementing Section 503 and VEVRAA, 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 AAP The 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 FCI 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. Page 11

17 3. Examples of policies and practices Below are selected portions of statements taken from actual AAPs that supplement the language included in the OFFCP Sample AAP. To ensure that all physical and mental qualifications and requirements are jobrelated and promote equal employment opportunity for all known covered veterans and employees with disabilities, reviews are periodically made of FCI s physical and mental qualifications and requirements as they relate to employment, training, and promotion. 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). 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. Listed below are the steps used in conducting the physical and mental job requirements review for each job classification: 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 the job in an efficient, safe manner. Therefore, the updated job description, resulting from the job analysis, includes only those job requirements that are job-related, consistent with business necessity, and required for safe performance of essential job functions. FCI goes 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. 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 considered a starting Page 12

18 point only, with the understanding that employees may bring to our attention additional accommodations which can be made on a case-by-case basis. Finally, we make the job analysis, modified selection procedure, and/or list of identified accommodations available to all members of management involved in the promotion process. Page 13

19 V. Reasonable Accommodation to Physical and Mental Limitations This section of the guide relates to the fourth component of an AAP reasonable accommodation to physical and mental limitations. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement Examples of policies and practices that may be used to supplement the policies and practices set out in the OFCCP Sample AAP 1. Section 503 and VEVRAA Policy Frameworks [ (d); (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 to Part 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 AAP FCI 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. Examples of Policies and Practices from EEOC Guidance under Section 501 of the Rehabilitation Act Below are selected portions of statements taken from EEOC guidance to federal agencies regarding the implementation of Section 501 of the Rehabilitation Act that can be used to supplement the language included in the OFFCP Sample AAP. In accordance Page 14

20 with EEOC Management Directive 715, federal agencies must establish written procedures for reasonable accommodation requests. 3 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, which an individual may be asked to complete in connection with a request for an accommodation The circumstances in which supervisors or others should initiate inquiries about the need for an accommodation The personnel and/or offices that must approve an accommodation request 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 Below are examples of statements taken from actual AAPs submitted to OFCCP regarding reasonable accommodations that supplement the language included in the OFCCP Sample AAP: 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 company regarding disability issues in employment. The contractor has established a number of services for accommodations and general access needs, which are listed on FCI s website: 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 individuals with disabilities. FCI s Assistive Technology Center showcases emerging and existing technology solutions to assist individuals with disabilities. The Center 3 Equal Employment Opportunity Commission, Management Directive 715, Washington, DC (October 1, 2003). Page 15

21 provides periodic demonstrations of new products where employees and supervisors may see real solutions in action. FCI provides Computer-Assisted Real-Time Transcription (CART) to improve access to meetings or events for deaf or hearing-impaired people FCI s Alternative Format Center produces documents in Braille, audiotape, and other alternate formats. FCI provides services for closed- or open-captioning of videotapes, broadcast events, or live satellite feeds. All videos must be captioned. Information and policy on reasonable accommodations and related support services are available on FCI s web page. In addition, FCI has developed a handbook on reasonable accommodations, including policy and procedures. FCI 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 FCI 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. 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, FCI 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, FCI will confidentially inquire whether the employee is in need of a reasonable accommodation. 5. Examples of Practices from Roadmaps and the Section 188 Disability Checklist Below are examples of practices that are based on examples included in Roadmaps and the DOL Section 188 Disability Checklist. These examples have been modified to reflect the focus of Section 503 on Government contractors in lieu of Section 188 s focus on recipients of financial assistance under Title I of the Workforce Investment Act. Centralized Accommodation (Including Assistive Technology) Strategies The company: Provides for specialized expertise to assess and evaluate the need for reasonable accommodations, including the need for assistive technology Establishes a mechanism for centralized payment for such accommodations Page 16

22 Creates an online system for tracking accommodations; i.e., documents successful strategies in order to avoid re-inventing the wheel Orientation for new employees FCI asks all new employees (including individuals with disabilities) whether they need assistance during the orientation process. FCI s staff offers assistance in filling out forms and application materials during orientation to all persons, including persons with disabilities. Orientation 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 such individuals before discussing information about their disabilities with other staff and other agencies. Training To the extent FCI provides training opportunities on a self-service basis, the FCI 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 FCI provides or makes available through contract or other arrangement training services, FCI collaborates with other agencies that have knowledge of promising practices for addressing the unique needs of 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 FCI's staff (and used to train FCI'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. Communication FCI's staff informs customers of its obligation to ensure effective communication. Page 17

23 FCI has a list, in an accessible format, of all currently available assistive technology devices and services. For employees who are deaf and hard of hearing, FCI adopts the following strategies to ensure effective communication: A staff member secures a qualified sign language interpreter, where necessary, on a timely basis. 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. For employees who are blind or visually-impaired, FCI adopts the following strategies to ensure effective communication: Staff members have materials transcribed into Braille or large print, recorded on audiocassette, or placed on ASCII diskette on a timely basis. To the extent that we have a video library for use by employees, the videos purchased are available with audio descriptions. For employees with cognitive disabilities (e.g., persons with brain injuries, mental retardation, and learning disabilities), FCI adopts the following strategies to ensure effective communication: Other employees offer assistance with and/or extra time for the completion of forms and written instructions. Managers and supervisors repeat instructions, provide information in a slower voice, and use simple sentences, words, and graphics (e.g., symbols, pictures). For employees with mobility impairments, FCI adopts the following strategies to ensure effective communication: Staff members put themselves at the wheelchair user's eye level (and if possible, sit next to the customer when having a conversation). Staff members provide a clipboard as a writing surface if counters or reception desks are too high, and come around to the employee side of the desk/counter during interaction. For employees with speech impairments, FCI adopts the following strategies to ensure effective communication: 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. Staff members ask questions that require only short answers, or a nod of the head. 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. Page 18

24 VI. Harassment Prevention Procedures This section of the guide relates to the fifth component of an AAP harassment prevention procedures. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement 1. Section 503 and VEVRAA Policy Frameworks According to the regulations implementing Section 503 and VEVRAA, FCI must develop and implement procedures to ensure that its employees with disabilities are not harassed because of disability [ (e); (e)]. 2. OFCCP Sample AAP 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. 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 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. Page 19

25 VII. External Dissemination of Policy, Outreach and Positive Recruitment This section of the guide relates to the sixth component of an AAP external dissemination of policy, outreach and positive recruitment. Specifically, the section includes the following: A brief description of the Section 503 and VEVRAA policy frameworks The OFCCP Sample AAP relating to the equal opportunity policy statement Examples of policies and practices that may be used to supplement the policies and practices set out in the OFCCP Sample AAP 1. Section 503 and VEVRA Policy Frameworks [ (f); (f)] In accordance with the regulations implementing Section 503 and VEVRAA, FCI 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 FCI 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, organizations 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 Page 20

26 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. 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 workforce 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 AAP All 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 FCI 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. Page 21