The Office of Federal Contract Compliance Programs (“OFCCP”) is considering a rule that would require certain federal contractors to ensure that at least 7% of their workforce is composed of individuals with disabilities. This is a significant proposal, as the federal government has never before set a specific, numerical hiring goal for federal contractors.
The proposal would only apply to employers with contracts of $50,000 or more who employ 50 or more employees. Those employers would have to ensure that at least 7% of their workforce consists of individuals with disabilities. The requirement would be more than simply numerical: employers would also be required to employ individuals with disabilities in several different positions/departments (the OFCCP’s theory is that individuals with disabilities might be disproportionately represented in a handful of low-paying, low-talent positions). Failing to meet the 7% figure would not result in a finding of discrimination; however, it could result in the cancellation of the federal contract or have a detrimental effect on the contract’s renewal.
The rule would also encourage employees to identify themselves as individuals with disabilities. As employers know, it is ordinarily impermissible to make disability-related inquiries to employees under state and federal discrimination laws. The new rule, however, would get around this by encouraging applicants to self-identify as individuals with disabilities. It would also require that contractors distribute annual, anonymous surveys encouraging employees to voluntarily identify whether or not they have a disability.
Other significant proposals included in the rule are: (1) a requirement that federal contractors develop written procedures for processing reasonable accommodation requests; and (2) a requirement that employers engage in certain outreach/posting procedures to encourage individuals with disabilities to apply for open positions.
The public comment for the rule has ended, and the OFCCP is now considering those comments before issuing a final rule. These proposals are significant and would result in greatly increased obligations for certain federal contractors.