United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

A Federal contractor's affirmative action clause obligations are not limited solely to Federal contract jobs but extend to any position for any operations. OFCCP v. E.E. Black, Ltd., 77- OFCCP-7R, Assistant Secretary for Employment Standards, February 26, 1979, slip op. at 18, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

It was specifically intended that the regulations and not the Act define the specific affirmative action duties of contractors. OFCCP v. Burlington Northern Co., 80-OFCCP-6, ALJ's Order Granting Defendant's Motion For Summary Judgment and Dismissing Complaint, June 12, 1980, slip op. at 3, pending, Assistant Secretary for Employment Standards.

The Act does not directly impose affirmative action obligations upon Federal contractors. It imposes a duty upon the Federal Government to incorporate an affirmative action provision into its contracts. OFCCP v. Western Electric Co., 80-OFCCP-29, ALJ Order Granting Defendant's Motion to Dismiss Complaint, March 4, 1981, slip op. at 8, rev'd and remanded on other grounds, Deputy Under Secretary for Employment Standards, April 24, 1985.

The very minimum of "affirmative action" in favor of handicapped individuals is to avoid discrimination against them. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 35, 60; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An employer's affirmative action obligation includes notifying the discriminatee of the existence of the affirmative action obligation and plan, and how the discriminatee can obtain additional information about that plan. Id. at 20; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

A prospective employer who denies employment has a duty under this law to inform the rejected applicant of the basis for the rejection and to give information on the existence either of alternative employment with this employer or a readily available source of such information. Id. at 61; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An employer's affirmative action obligation includes indicating other possible assignments for which the individual discriminatee might be considered or how the discriminatee may obtain information about other employment opportunities with this employer. Id. at 120; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Although an employer failed to supply sufficient direct information for affirmative action, the employee received the information indirectly and this eliminated the technical insufficiencies. Id. at 81; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Contract termination may not be a practical remedy in certain situations, in which case specific performance of the terms of the affirmative action portion of the contract may be appropriate. Id. at 122; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

An employer violates its affirmative action obligations when it requires an employee to provide a special medical release in order to return to work, without investigating the medical diagnosis made during the employee's absence. OFCCP v. Exide Corp., 84-OFC-11, ALJ Rec. Dec., April 18, 1986, slip op. at 11, aff'd, Acting Assistant Secretary for Employment Standards Decision and Final Order, April 30, 1991, slip op. at 12-13, vacated, Exide Corporation v. Martin, C.A. No. 91-242 (E.D. Ky. 1992), slip op. at 23-26.

When an individual does not file a complaint with OFCCP, OFCCP may not pursue a remedy on behalf of the individual but may use evidence that the person was discriminated against to demonstrate the propensity of a contractor to violate its affirmative action duties. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, slip op. at 7, 16, rev'd, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

OFCCP bears the burden of showing that the contractor violated its affirmative action duties by discriminating against qualified handicapped individuals. Id. at 16, rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Rehabilitation Act requires Federal contractors to take affirmative action in employing qualified handicapped individuals including a contractual pledge of non-discrimination. OFCCP v. Exide Corporation, 84-OFC-11, Acting Assistant Secretary for Employment Standards Dec. and Final Order, April 30, 1991, slip op. at 4, vacated on other grounds, Exide Corporation v. Martin, Civil Action No. 91-242, (E.D. Ky. 1992).

The same decision rule articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), is applicable to Section 503 cases even though the dissent in that case rejected the rule and the plurality of four justices disregarded, for purposes of its discussion, the special context of affirmative action. The plurality did not hold that the same decision rule does not apply to affirmative action statutes. OFCCP v. Norfolk and Western Railway Co., 80-OFCCP-14, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order, November 19, 1991, slip op. at 5.

A requirement of nondiscrimination is included in the affirmative action clause. Id. at 5, n.4.

The Rehabilitation Act seeks to promote and expand employment opportunities for the handicapped. However, it may not be used as a tool for those who seek employment by subterfuge. Id. at 13.

Section 503 requires contractors to take affirmative action to reasonably accommodate handicapped individuals to enable them to perform the functions essential to the job. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 13; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Section 503 imposes an affirmative action obligation on Government contractors to employ "qualified handicapped individuals," defined as those capable of performing a particular job with reasonable accommodation. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The affirmative action obligation applies to all employment practices of a contractor. Ibid.; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractor's failure to comply with the terms of a conciliation agreement, in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA, was not merely a failure to comply with "paperwork" rules, nor merely a failure to file routine reports on time, but rather a deliberative, complete violation of that agreement and of substantive equal employment opportunity law. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, ALJ Recommended Dec. and Order, August 20, 1992, slip op. at 13, rev'd on other grounds, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

The personnel data compiled and correlated in an AAP is not mere paperwork, but a practical necessity; the data is needed for self-evaluation by an employer. Id. at 13, rev'd on other grounds, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

The Secretary orders debarment of contractor for a period of 90 days for contractor's repeated violations of a conciliation agreement in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA. After 90 days, contractor may petition for reinstatement in accordance with 41 CFR 60-1.31. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992, slip op. at at 13-14.

Because the regulations require contractors to take affirmative action to employ and advance in employment qualified handicapped individuals and requires actual recruitment of handicapped individuals, it is clear that Section 503 requires much more than non-discrimination. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

ALJ finds that contractor's decision to transfer complainant to a non-safety sensitive job, based on its policy of excluding all recovering alcoholics from such jobs was unlawful and violated Section 503. Because the policy does not differentiate between those who have been successful in rehabilitating themselves and those who have not, the policy runs afoul of Section 503's mandate of affirmative action and non-discrimination. Id. at 43-44; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 23.

Commonwealth has an obligation under the duty to make reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14-15; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The contractor has the obligation to gather all relevant information regarding the applicant's work history and medical history and independently assess both the probability and severity of potential injury. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6,Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 20; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Section 503 of the Rehabilitation Act requires government contractors and subcontractors to take affirmative action in the employment of qualified handicapped individuals to carry out contracts [covered] by section 503. OFCCP v. Texas Utilities Generating Co., 85-OFC-13, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994, at 4; Consent Decree, April 15, 1996.

As a simple matter of logic, the concept of "affirmative action" must include a duty not to discriminate against members of the class protected by Section 503. Nondiscrimination is the starting point, the first step required of any contractor, in fulfilling its affirmative action obligation. If a contractor were free to discriminate against employees and applicants for employment on the grounds that they are disabled and without regard to their ability to perform the job, the contractor could avoid any responsibility for affirmative action. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant Secretary For Employment Standards Decision and Remand Order, April 26, 1996, at 5.

The starting point for interpretation of any legislation is the words of the statute itself. But the term "affirmative action" is not defined in the Rehabilitation Act. If it has any "plain meaning" at all that does not reduce it to an absurdity, it must clearly prohibit discrimination. Id. at 6.

Even if the meaning of the term "affirmative action" is unclear, there can be no question that the Secretary's interpretation of it in the Section 503 regulations as prohibiting discrimination and requiring all covered contracts to include a clause [Affirmative Action Clause] so committing the contractor is reasonable. Id. at 15.

The Assistant Secretary held that it makes sense that OFCCP enforce Section 503 through compliance reviews, since affirmative action requires significantly more than simple nondiscrimination and the regulations specify in considerable detail the steps required of contractors to meet that obligation. Individual complaints are unlikely to raise issues beyond the narrow question of a contractor's treatment of one person and without an overall investigation it ordinarily would be impossible to determine whether a contractor is in compliance with all of its commitments under the affirmative action clause. Id. at 27-28.

The affirmative action mandate is broader than a nondiscrimination mandate. Discrimination in hiring practices and decisions is inconsistent with the affirmative action obligation of section 503. The affirmative action requirement of section 503 includes an obligation not to discriminate. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Dec. and Order on Defendant's Motions for Summary Judgment, September 19, 1995, at 4-5; reversed and remanded on other grounds, Assistant Secretary of Labor, Decision and Remand Order, April 19, 1996.

A government contractor may not refuse to comply with the obligation to make reasonable accommodation to the physical limitations of an employee under Section 503, because it has a company policy of no light duty jobs. Such a refusal [breaches the affirmative action obligations] of § 503. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 1; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Contractors "must make reasonable accommodation to the physical . . . limitations of an employee . . . unless the contractor can demonstrate that the accommodation would impose an undue hardship on the conduct of the contractor's business." Id. at 7; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell made no attempt to accommodate the complainant when it strictly adhered to its "no light duty" policy. Furthermore, its justification for refusing to accommodate the complainant, (1) insisting that each of its employees must be available to perform any job in the department to which they are assigned, and (2) asserting that every job in the welding and spot welding departments "require[s] some stooping or bending," which complainant was unable to do, did not meet its burden under the regulations. Id. at 7-8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell had an affirmative obligation under Section 503 and the regulations to gather all relevant information about the complainant's condition and the job duties he was capable of performing, and to make reasonable accommodations to his limitations unless to do so unduly burdened its business. Id. at 9; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Cissell breached its duty to accommodate a qualified employee with a handicap by strictly adhering to its "no light duty" policy; despite said employee's request to be assigned to existing jobs that he thought himself capable of performing, and voluntarily bidding to take lower paying jobs which required less bending. Id. at 9-10; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held, that Cissell's arguments that it was not required to eliminate one of the essential functions of the job, to make fundamental modifications in the job, or to reassign the complainant to a permanent light duty position was without merit. Id. at 10-14 and n.8; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that "[b]ecause a particular function is found to be essential does not relieve the . . . employer of its burden of showing that the handicapped individual cannot be reasonably accommodated." Id. at 11; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The Assistant Secretary held that whether a physical requirement is an essential function of a job "requires . . . a highly fact-specific inquiry . . . based upon more than . . . a job description and should reflect the actual functioning and circumstances" of the employer. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

Even where a physical requirement is an essential function of the overall position, the employer has the burden to show that the complainant could not be accommodated in a job within the position because not every accommodation related to an essential function necessarily eliminates that function. Id. at 12; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

The employer cannot claim that other employee's rights under the collective bargaining agreement make accommodation an undue hardship where the contract gives the company broad discretion to make assignments and where the company failed to consult with the union about accommodation. Id. at 12-13; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.