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Executive Director
Direct Line: 213-736-8362 Fax: 213-736-1428 E-mail: Paula.Pearlman@LLS.edu
Debra A. Carr Director Division of Policy, Planning, and Program Development Office of Federal Contract Compliance Programs Room C-3325 200 Constitution Avenue, N.W. Washington, D.C. 20210
Re: Comments on Proposed Regulations Implementing Section 503 of the Rehabilitation Act, RIN 1250-AA02 Dear Director Carr: The Disability Rights Legal Center (DRLC) is a national organization that champions the rights of people with disabilities through education, advocacy, and litigation. The DRLC submits the following comments in response to the Notice of Proposed Rulemaking issued on December 9, 2011 by the Office of Federal Contract Compliance Programs (OFCCP) to implement Section 503 of the Rehabilitation Act. General Comments: We Strongly Support the Proposed Regulations We strongly support OFCCP's proposal to strengthen its regulations implementing Section 503 of the Rehabilitation Act. Access to federal contracting employment for people with disabilities under Section 503 has been ineffective for too long, as the current regulations lack baseline goals for hiring people with disabilities, do not require the data collection needed to evaluate the effectiveness of affirmative action efforts, and rely almost exclusively on voluntary action. To that end, we support OFCCPs proposal to require covered contractors to collect anonymous, self-selected data from applicants and keep records that would enable those contractorsas well as OFCCPto determine the effectiveness of their targeted hiring efforts, to enter linkage agreements with organizations that serve individuals with disabilities, and to take other steps to improve recruitment efforts. These are important measures to ensure access to employment. From our experiences with working with federal contractors through our Disability Mentoring Day programs and the work with the Employment Round Table of Southern California, we have found that federal contractors are interested in more guidance on what are acceptable recruitment and retention polices.
Disability Rights Legal Center Located at: Loyola Law School Public Interest Law Center 800 S. Figueroa Street, Suite 1120 Los Angeles, CA 90017 Telephone 213-736-1031 TDD 213-736-8310/8311 Video Relay 866-912-8193 PROTECTING THE POSSIBILITIES SINCE 1975
Founded in Memory of A. Milton Miller
OFCCP cites Bureau of Labor Statistics data that is based on the Current Population Survey, which captures a narrower group of individuals with disabilities than the ADA and Section 503. As OFCCP also notes, 2009 American Community Survey data shows similar results, with 23% of people with disabilities participating in the labor force compared to 65.8% of people without disabilities. 2 H. Stephen Kaye, The Impact of the 2007-09 Recession on Workers with Disabilities, Monthly Labor Review, at 2 (Oct. 2010), http://www.bls.gov/opub/mlr/2010/10/art2full.pdf (using Current Population Survey data). 3 76 Fed. Reg. 16991 (March 25, 2011). The EEOC began with data from the Current Population Survey, which uses the same definition of disability as the ACS, and adjusted to account for the much greater scope of individuals covered under the ADA. The baseline percentage of people with disabilities participating in the labor force using the CPS data was 20%. This figure is significantly higher than the 5.7% derived by OFCCP by averaging ACS disability data averaged by EEO-1 job category and then averaging across EEO-1 job categories. We note that averaging across job categories will significantly depress the percentage of individuals with disabilities in the labor force by giving equal weight to the low percentage of individuals with
disabilities in high level job categories (due in part to a history of discrimination and unwarranted assumptions about the capabilities of people with disabilities), even though those categories represent comparatively small numbers of individuals. 4 See Zana Marie Lutfiyya, Pat Rogan & Bonnie Shoultz, Ctr. on Human Pol'y, Supported Employment: A Conceptual Overview (1988), http://thechp.syr.edu/workovw.htm (citing critiques of sheltered workshops as early as 1976). 5 For example, 3309(b)(4) of the Federal Unemployment Tax Act, 28 U.S.C. 3309 (2006), permits states to exclude sheltered workshops from coverage under state unemployment compensation programs (service performed in a facility for purpose of carrying out program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, or providing remunerative work for individuals who because of their impaired mental or physical capacity cannot readily be absorbed into the competitive labor market). See Tyler v. Smith, 472 F. Supp. 2d 818, 825 (M.D. La. 2006) (Likewise, this Court holds that the ADA and RA are not violated by FUTA's characterizing, for purposes of section 3309(b)(4), that certain disabled persons are within the category of individuals who receive services from entities which are covered by the exemption.). 6 Sheltered Workshops of San Diego, Inc., 126 N.L.R.B. 961 (1960). Since 1960, some sheltered workshops have been required to permit unions and others have remained protected, based on an individualized inquiry 7 Although each state has its own workers' compensation law, many states exempt employees of sheltered workshops. See, e.g., N.Y. Mental Hyg. Law 33.09(c) (McKinney 1989) (exempting employees of sheltered workshops from workers compensation requirements but permitting an employer to elect to cover them under workers' compensation); Cal. Gov't Code 12926 (West 2005) (excludes from definition of employee for purposes of discrimination law any individual employed in a sheltered workshop). Some states, including those like Missouri that are increasing their support of sheltered workshops, require sheltered workshops to maintain workers compensation insurance. See Mo. Code Regs. Ann. tit. 5, 70-770.010(2)(D) (1999). 8 U.S. Gen. Accounting Office, Special Minimum Wage Program, Centers Offer Employment and Support Services to Workers with Disabilities, but Labor Should Improve Oversight 10 (2001), available at http:// www.gao.gov/new.items/d01886.pdf [hereinafter GAO Report (2001)].
Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 65, 249 (1994). Thomas Simmons & Robert Flexer, Business and Rehabilitation Factors in the Development of Supported Employment Programs for Adults with Developmental Disabilities, J. Rehabilitation, Jan.-Mar. 1992, at 35, available at 1992 WLNR 4695411; see also Peter Blanck, Helen A. Schartz & Kevin M. Schartz, Labor Force Participation and Income of Individuals with Disabilities in Sheltered and Competitive Employment: CrossSectional and Longitudinal Analyses of Seven States During the 1980s and 1990s, 44 Wm. & Mary L. Rev. 1029, 1041 (2003).
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Shawn Kravich Associate Director, Cancer Legal Resource Center Disability Rights Legal Center
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