Summary of Federal Laws

 

Employment

 

Equal Employment Opportunity

 

Rehabilitation Act of 1973 (Sections 503 and 504)

 

29 U.S.C. § 793 et seq.; 34 C.F.R. § 104.1 et seq., 41 C.F.R. § 60-741.1 et seq.

 

The Law:  Section 503, contained at 29 U.S.C. § 793, requires government contractors with any contract in excess of $10,000 to take affirmative action to employ and advance in employment qualified individuals with disabilities.  Section 504, at 29 U.S.C. § 794, provides that no person, by reason of disability, shall be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving federal financial assistance.  This includes non-discrimination in employment by these programs.  See 34 C.F.R. § 104.11.  Contains remedies for discrimination against individuals with disabilities.  For non-discrimination in programs and activities with respect to students, see Non-Discrimination with Respect to Students.

 

Actions Required:

• Adopt grievance procedures.  A recipient must adopt an internal review procedure incorporating due process standards.  See 29 C.F.R. § 32.45 and 34 C.F.R. § 104.7.  Note, however, that grievance procedures need not be established with respect to complaints from applicants for employment.

• Designation of responsible employee.  A recipient that employs 15 or more persons must designate at least one person to coordinate compliance efforts.   See 34 C.F.R. § 104.7.

• Affirmative action.  Title 29 U.S.C. § 793 requires all institutions holding contracts with the federal government in excess of $10,000 to take affirmative action to employ and advance in employment qualified individuals with disabilities with respect to the federal contracts.  If a government contractor has 50 or more employees and a contract of $50,000 or more, then the contractor must prepare and maintain a written affirmative action plan.

• Certification requirement.  The exact language required for certification is contained at 48 C.F.R. § 52.222-36.

• Recordkeeping.  Records made or kept after August 29, 1996 are covered under 41 C.F.R. § 60-741 which requires that all employment and personnel records must be kept for a period of two years (150 or more employees and a government contract of $150,000 or more).  Title VII and the ADA impose separate recordkeeping requirements for institutions of higher education, which are set forth at 29 C.F.R. § 1602.48.  All records that are required for the completion of the Higher Education Staff Information Report EEO-6 are to be retained for a period of three years.  Currently, the Integrated Postsecondary Education Data System (Form IPEDS) Fall staff survey is used in place of the EEO-6.  The IPEDS report is to be produced biennially (but the National Center for Education Statistics (NCES) will no longer be collecting it), and a copy kept for three years thereafter and made available upon request to the appropriate representatives of the federal government.  See 20 U.S.C. § 1094(a)(17).  There is not an independent filing requirement for the affirmative action plan.  Records of all complaints filed alleging violations of the Rehabilitation Act shall be kept for a period of at least three years as well.  See 29 C.F.R. § 32.45.

• Posting requirements.  Must post notice of contractor’s obligations to take affirmative action to employ qualified individuals with disabilities.  Should be posted where both employees and applicants can see.  See 48 C.F.R. § 52.222-36.

 

On October 12, 2000, the Office of Federal Contract Compliance Programs (OFCCP) issued a proposed rule that would revise certain regulations implementing the affirmative action sections of Section 503.  Under the proposed rule, the OFCCP would be authorized to use additional investigative procedures to determine a contractor’s compliance with Section 503.  This would conform the compliance evaluation procedures with those in the regulations for Vietnam Era Veterans' Readjustment Assistance Act of 1974 and Executive Order 11,246.  In the proposal, the on-site visit requirement is eliminated, and three abbreviated methods are included:  the off-site review of records; the compliance check; and the focused review.  For the text of the proposed rule, see 65 Fed. Reg. 60815 (Oct. 12, 2000).

 

See 61 Fed. Reg. 19,336 (May 1, 1996) for the OFCCP rule implementing Section 503 (effective August 29, 1996). See also 63 Fed. Reg. 59,657 (Nov. 4, 1998), effective January 4, 1999, that contains an amendment to Appendix C to the regulations implementing Section 503, suggesting that the description of accommodations be maintained in separate confidential medical files.

 

Self Identification:  An invitation to self-identify as an individual with a disability who may need reasonable accommodation must be extended after the employment offer has been made.  The invitation to self-identify at the pre-offer stage can only be made when a) the contractor is undertaking affirmative action at the pre-offer stage, or b) the invitation is made pursuant to federal, state or local law requiring affirmative action for individuals with disabilities.  Employers should review application forms to make sure that they are in conformance with this requirement. For government contractors required to have an affirmative action program for individuals with disabilities, the offer to self-identify should still be made at the application phase.  The invitation must inform the individual that the request to benefit under the affirmative action plan may be made immediately or at any time in the future.  The invitation shall summarize the law and the contractor's affirmative action program, and, further, shall state that the information is being requested on a voluntary basis, that it will be kept confidential, and that refusal to provide it will not subject the applicant to any adverse treatment.

 

In the Future?  Legislation was adopted in 1998 (the Rehabilitation Act Amendments of 1998, which are part of the Workforce Investment Act of 1998) which updates Section 508 of the Rehabilitation Act of 1973.  That law requires all electronic and information technology developed, procured, maintained or used by the federal government to be accessible to people with disabilities.  Under the newly revised Section 508, electronic and information technology is expansively defined to include computers (such as hardware, software, and accessible data for Web pages), fax machines, copiers, telephones, and other equipment used for transmitting, receiving, using, or storing information.  The law became effective on August 7, 1998. By February 7, 2000, the federal government will issue and publish standards that will define which electronic information and technology is covered by Section 508.  The standards will set forth the technical and performance criteria necessary to implement the accessibility requirements.  The United States Access Board is expected to release draft standards for public comment in May or June 1999.  After August 7, 2000, all electronic and information technology acquired by federal agencies will be required to meet those standards. While this law does not currently apply to institutions of higher education, universities might consider the requirements when published and adopt them to the extent possible, as part of overall effort to be in compliance with disability law.   See the Department of Justice Section 508 Homepage for more information, including a software accessibility checklist.

 

Updated 10/16/00 (added proposed rule on contract compliance review)