Challenge to DoL on disability hiring

by workforceplanner

Workforce Locator™ features U.S. Talent Acquisition data. Workforce Locator provides business intelligence with broad overviews that recruiters can narrow to determine their optimal geographic targets.

In one of my recent postings, I suggested organizations challenged by a goal to hire individuals with disabilities can consult Workforce Locator as a starting point to determine the appropriateness of work from home initiatives they may then create for new telecommuting opportunities – because such efforts could serve as a solution that may possibly comply with an “aspirational goal” that the OFCCP claims is not a quota for hiring disabled individuals – and telecommuters who happen to be disabled might be exceptionally productive in response to an opportunity to work from the comfort of their own homes.

From all that I’ve read, it still seems as if it will be quite the challenge for the construction industry to comply with a goal that will be a “rule” as of March 2014.

I’m not confident whether some of the concerns that have crossed my mind are truly valid, yet I can’t help wondering if construction companies who don’t consider the possibility of a telecommuting option would be making a mistake… I wonder if construction companies with sites and buildings that are in a rudimentary process of construction are currently required to have their own sites be fitted with ramps and wheelchair accessibility for the construction workers and/or site inspectors they employ?

I don’t know enough to understand what’s truly important. I realize the thought I expressed (without the benefit of prior research regarding the Americans with Disabilities Act and construction company site compliance) may be trivial in scope. Nevertheless, I tend to think those who happen to have a stake here, may want/need to be more aware of the challenges they’ll be subject to regarding this goal/rule, and any legal action they file should encompass a multitude of difficulties they’ll encounter in their efforts to be compliant…

Perhaps this paragraph from a Department of Labor Characteristics Summary is worth citing as case in point:

> The employment-population ratio for persons with a disability was 17.8 percent in 2012, unchanged from 2011. The ratio for those with no disability increased from 63.6 percent to 63.9 percent. The lower ratio among persons with a disability is due, in part, to the fact that a large share of the population of persons with a disability was age 65 and older, and older persons are less likely to be employed. However, across all age groups, persons with a disability were much less likely to be employed than those with no disability.

Here’s the WSJ report published online that inspired my posting today – it’s about a trade group “seeking to exempt construction companies from parts of a new rule requiring federal contractors to prove they are taking steps to hire minimum numbers of disabled workers.”

Trade Group Challenges Labor Department Rule on Disability Hiring


Melanie Trottman

Nov. 19, 2013

A construction industry trade group filed a lawsuit against the Labor Department Tuesday, seeking to exempt construction companies from parts of a new rule requiring federal contractors to prove they are taking steps to hire minimum numbers of disabled workers.

The Associated Builders and Contractors said it isn’t challenging the “legitimate affirmative action and nondiscrimination objectives” of the 40-year-old Rehabilitation Act, which requires most federal contractors to provide equal employment opportunities for qualified disabled workers. But the trade group’s lawsuit clearly challenges the Labor Department’s updated method of achieving those objectives.

The suit, filed Tuesday in the U.S. District Court for the District of Columbia, asks the court to exempt the construction industry from the data collection and analysis requirements of the rule, on the grounds that these requirements exceed the agency’s congressional authority, will be burdensome, wasteful and unprecedented, and “are likely to drive many construction contractors out of the market for government construction services.”

The group said that by subjecting the construction industry to these provisions, the Labor Department’s Office of Federal Contract Compliance Programs is ignoring long-standing differences between non-construction contractors and construction industry contractors. Construction industry contractors employ a uniquely fluid and temporary workforce, the lawsuit said, and have thus been previously exempted from similar forms of data collection and analyses that have otherwise been required for tracking minorities and women.

“You can’t collect data on the disabled the same way that you can with minorities and women,” said Maury Baskin, a Washington, D.C., lawyer with Littler Mendelson P.C. who represents the contractor group. “We have an issue with the way they are redefining affirmative action after 40 years, contrary to congressional intent,” Mr. Baskin said in an interview with The Wall Street Journal Tuesday.

The lawsuit is also challenging the Labor Department’s decision to set a target for the percentage of disabled workers employed by a federal contractor. The agency has said the 7% number is a goal, not a quota. But business groups have said they disagree and fear their members risk losing contracts if the members don’t meet the target.

“We’re challenging the arbitrary setting of a number,” Mr. Baskin said. “There is no magic number. There’s never been a magic number and yet there’s been affirmative action for 40 years,” he added.

While the trade group is asking the court to issue an order that makes it unlawful for the construction industry to be subjected to the Labor Department’s data collection and analyses provisions, “in reality, there’s no statutory authority for what they’ve done period,” Mr. Baskin said.

The trade group’s Vice President of Federal Affairs Geoff Burr said in a statement that the group and its members “support nondiscriminatory practices toward individuals with disabilities on government construction projects and we will remain committed to placing these individuals in good construction jobs.” The group, based in Arlington, Va., is a national association representing 22,000 members from more than 19,000 construction and industry-related firms.

A spokeswoman for the Labor Department declined to comment on the lawsuit, suggesting instead to refer to the agency’s Aug. 27 news release about the rule. In that release, the agency said it was updating the requirements under Section 503 of the Rehabilitation Act as “an important step toward reducing barriers to real opportunities” for individuals with disabilities. The agency also said the updates would “make it easier for employers to tap into a large, diverse pool of qualified candidates.”

The final rule becomes effective March 24 of next year.