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WASHINGTON—Employers would face difficulties meeting the requirements of a proposed federal rule mandating that federal contractors and subcontractors set a goal of having 7% of their workforce be people with disabilities, observers say.
Monitoring compliance with the rule, which was proposed by the Department of Labor's Office of Federal Contract Compliance Programs, would create administrative headaches, they say.
And finding sufficient numbers of disabled workers would be a challenge, especially as the proposed rule requires that contractors and subcontractors reach the percentage requirement in each job rather than the workforce as a whole, they say.
According to the proposal, which was published last month in the Federal Register, contractors and subcontractors would have to reach that percentage within each of their job groups rather than within its workforce as a whole.
In the proposal, which was published in the Federal Register last month, the OFCCP said it decided against setting an overall workforce goal “because of its potential for masking discrimination and segregation. For example, a contractor that has segregated all of its employees with disabilities into one or two low-paying jobs might be able to conceal this discrimination and satisfy the 7% if only a single whole-workforce comparison were required.”
The proposed regulation outlines the specific actions contractors would have to take in the areas of recruitment, training, record-keeping and policy discrimination, and are similar to those that have long been required to promote workplace equality for women and minorities, according to the Labor Department.
The OFCCP is accepting comments on the proposal until Feb. 7.
Employers who fail to make a good-faith effort to comply with any goal that is ultimately set by the OFCCP could face administrative proceedings and ultimately even suspension or cancellation of their federal contracts.
According to the Labor Department, the unemployment rate for people with disabilities, at 13%, is 1.5 times the rate for those without disabilities, while 79.2% of working-age individuals with disabilities are outside the labor force altogether, compared with 30.5% of those without disabilities.
Molly Kurt, of counsel to law firm Husch Blackwell L.L.P. in Kansas City, Mo., said, “Everybody agrees that it's good for our workforce and our country to get qualified disabled people working. But the bigger question is how to do that effectively and without imposing ineffective burdens on employers.”
Observers say one of the major challenges of the proposed rule would be finding applicants who self-identify as disabled, one of the requirements under the proposal.
“Everybody's going to be trying to find disabled candidates,” said Neil Dickinson, managing partner at Mount Pleasant, N.C.-based consultant HudsonMann Inc.
“Employers have had very low numbers” of persons who have self-identified as disabled in their work force over the years, said Ms. Kurt. Meeting that 7% goal would be a “significant challenge” in certain job categories, such as professionals, executives and people with certain technical computer skills, she said.
Cara Yates Crotty, a partner with law firm Constangy Brooks & Smith L.L.P. in Columbus, S.C., said the proposal would require employers to enter into “linkage agreements” with referral agencies that could be used to recruit disabled workers. But finding these organizations, particularly in rural areas where these types of services are either not available “or very difficult to find,” would be a “continuing challenge,” she said. The proposal does not “really address that,” Ms. Crotty said.
Ms. Kurt said the proposal also “presents a lot of questions in the minds of employers” in terms of surveying existing employees on an annual basis to seek disclosure of their disability status.
The proposal would require voluntary identification by the workers, “but employers have been conditioned for years not to ask about disabilities, and so it would be a sea change for them to begin asking current employees and applicants for their disabled status,” said Ms. Kurt.
Debra Milstein Gardner, president of Owings Mills, Md.-based human resources consultant Workplace Dynamics L.L.P., said many employees would be reluctant to self-identify themselves as disabled.
Mr. Dickinson said, “It's kind of a two-edged sword,” trying to collect information for those who classify themselves as disabled “and then managing that sensitive information.”
Furthermore, the proposal is silent on the issue of cases in which there might be only five people in a particular job group and 7% would be “less than a whole person,” Ms. Gardner said.
Administrative headaches also would result, say observers, who note employers would have to make annual reports on their efforts to reach the 7% goal.
Edwin Hopson, a member of law firm Wyatt Tarrant & Combs L.L.P. in Louisville, Ky., said this would be an issue for large employers in particular. “For large employers, with thousands of employees, you're going to see some pushback” on the proposal because it requires “a lot of internal paperwork, and it's not a one-time proposition.”
Ms. Crotty said also having employers ask applicants if they have a disability would “undoubtedly lead to more charges of disability discrimination” as a result of employers having that information.