United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 180: SCOPE, INTENT
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.
The DOL and the Employment Standards Administration are both agencies under the APA
definition. OFCCP v. E.E. Black, Ltd., 77-OFCCP-7R, Assistant Secretary for
Employment Standards Order Denying Motion to Disqualify the Secretary of Labor, the
Assistant
Secretary and the U.S. Department of Labor, February 26, 1979, slip op. at 5.
It was specifically intended that the regulations and not the Act define the specific
affirmative
action duties of contractors. OFCCP v. Burlington Northern Railroad,
81-OFCCP-21, ALJ Order Granting Motion for Summary Judgment and Dismissing Complaint,
June 12, 1980, slip op. at 3.
The Act was not automatically implemented on its stated effective date, September 26, 1973.
The effective date was June 11, 1974, when the Secretary of Labor issued the implementing
regulations. Id. at 4.
The regulations promulgated on June 11, 1974, will be applied prospectively only, not
retrospectively. Id. at 5.
DOL has no authority to exercise its enforcement power under the Act prior to promulgation
of implementing regulations. OFCCP v. Western Electric Co., 80-OFCCP-29,
ALJ Order Granting Defendant's Motion to Dismiss, March 4, 1981, slip op. at 4, rev'dandremandedonothergrounds, Deputy Under Secretary
for Employment Standards, April 24, 1985.
The Act covers actions taken "in employing persons" which encompasses both
applications for employment and current employees. Id. at 5, rev'dandremandedonothergrounds, Deputy Under Secretary for
Employment Standards, April 24, 1985.
A decision to refuse to hire, to layoff, to terminate or to put on disability are actions that
come under the purview of Section 503. Id. at 5, rev'dandremandedonothergrounds, Deputy Under Secretary For
Employment Standards, April 24, 1985.
Section 503 was modeled on Executive Order 11246 and a Federal contractor's obligations
are parallel under both. Id. at 9, rev'dandremandedonothergrounds, Deputy Under Secretary for Employment Standards, April 24,
1985.
The validity of the waiver provision of former 20 CFR 741.25(a) must be assumed.
OFCCP v. Western Electric Co., 80-OFCCP-29, Deputy Under Secretary for
Employment Standards, Remand Dec.and Order, April 24, 1985, slip op. at 13, rev'gandremanding, ALJ Rec. Dec. March 14, 1981.
The regulations at 41 CFR 60-741.26(g)(2) and 60-741.28(a) are written in mandatory form
and require that some sort of conciliatory effort be made. OFCCP v. Southern Pacific
Transportation Co., 79-OFC-10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at
18; remanded on other grounds, Acting Assistant Secretary for Employment Standards
Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13,
1995.
Legislative intent of the Act was to exclude small, occasional contracts because of
administrative costs of applying the statute to minimal, essentially trivial, business relationships,
but to include substantial business relationships in the applicability of the Act. Id. at 31;
remanded on other grounds, Acting Assistant Secretary for Employment Standards
Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13,
1995.
The intent of Congress in enacting this statute was to encourage the widest possible
participation of its people in the governing, learning, producing and enjoyment that occurs in the
country and to enable individuals to have the widest feasible opportunity to exercise their talents.
Id. slip op. at 42; remanded on other grounds, Acting Assistant Secretary for
Employment Standards Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13, 1995.
The strictures of the statute extend to promotion situations as well as initial hire and
retention. Id. at 47; remanded on other grounds, Acting Assistant Secretary for
Employment Standards Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13, 1995.
Section 504 and Section 503 are to be administered in such a manner that a consistent,
uniform, and effective Federal approach to discrimination against handicapped persons would
result. Id. at 48; remanded on other grounds, Acting Assistant Secretary for
Employment Standards Decision and Order of Remand, February 24, 1994; ConsentOrder, October 13, 1995.
The ultimate goal of the Rehabilitation Act is to increase the employment of handicapped
workers. OFCCP v. American Commercial Barge Line, 84-OFC-13, ALJ Rec.
Dec. and Order, September 30, 1986, slip op. at 20, rev'donothergrounds, Special Assistant to the Assistant Secretary for Employment Standards Final
Decision and Order, April 15, 1992.
Section 503 contains a liberal grant of remedial authority to the Department of Labor and a
particular form of relief can be awarded under the Act if no other form of relief can better serve
the purposes of the Act and the relief is compatible with both the Act's regulations and the terms
of the contract. OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, ALJ Rec.
Dec., September 30, 1986, slip op. at 28-29; remandedonothergrounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993;
ConsentDecree, January 31, 1994.
The Department of Transportation's statutes on qualifications of drivers for motor carriers
overlap with DOL rehabilitation statutes and they must be constructed together. OFCCP
v. Yellow Freight Systems, Inc., 79-OFCCP-7, Associate Deputy Under Secretary for
Employment Standards Dec. and Order of Remand, April 8, 1987, remandingonothergrounds, ALJ Rec. Dec., July 30, 1982, slip op. at 7, ALJ Rec. Dec. on
Remand, August 26, 1988, rev'd, Special Assistant to the Assistant Secretary for
Employment Standards, August 24, 1992; ConsentDecree, February 2, 1993.
The Congressional policy to encourage employment of qualified handicapped individuals,
embodied by the Rehabilitation Act, is not overridden by the fact that DOT was given the power
to prescribe qualifications of interstate truck drivers. OFCCP v. Yellow Freight
Systems, 79-OFCCP-7, Associate Deputy Under Secretary for Employment Standards
Decision and Order of Remand, April 8, 1987, slip op. at 14, ALJ Rec. Dec. on Remand, August
26, 1988, rev'd, Special Assistant to the Assistant Secretary for Employment Standards,
August 24, 1992; ConsentDecree, February 2, 1993.
To grant the DOT exclusive jurisdiction to rule on qualifications for drivers under a carriers'
additional, more stringent, requirements would deprive complainants of remedies only available
under the Rehabilitation Act and would be contrary to the Congressional intent that handicapped
individuals be assured "full and fair consideration." Id. at 17, ALJ Rec. Dec.
on Remand, August 26, 1988, rev'd, Special Assistant to the Assistant Secretary for
Employment Standards, August 24, 1992; ConsentDecree, February 2, 1993.
Although Congress did amend the definition of handicapped individual for purposes of
employment under Sections 503 and 504, nothing in the Civil Rights Restoration Act of 1987 or
its legislative history indicates Congress intended any change in existing agency and judicial
interpretations of the scope of Section 503 and the operation of Department of Labor regulations
which, in this respect, had been unchanged since 1974. OFCCP v. PPG Industries,
Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and
Remand Order on Remedy, January 9, 1989, slip op. at 9; dismissedonAPAreview, PPG v. United States, C.A. No. 89-0757 JGP
(D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent
Decree, September 24, 1996.
If any inferences can be drawn from Congressional inaction on Section 503 when it
considered and passed the Civil Rights Restoration Act, they are that Congress was satisfied with
the current administration and enforcement of Section 503 and intended no changes. Id.
at 9-10; dismissedonAPAreview, PPG v. United
States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C.
Cir. 1995); Consent Decree, September 24, 1996.
When OFCCP seeks enforcement of one of the contract-related civil rights laws it
administers, it is vindicating the government's interest in performance of one of the terms of the
contract, not suing or initiating enforcement on behalf of private individuals. Section 503 is, in
this respect, indistinguishable from Executive Order 11246. OFCCP v.
WMATA,
84-OFC-8, Assistant Secretary for Employment Standards Order Denying Motion to Amend
August 23 Order, November 17, 1989, slip op. at 4, vacatedonothergrounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).
In determining which sanctions are appropriate, cases arising under the Service Contract Act
are not analogous to the Executive Order, Section 503 and VEVRA because of significant
differences in those laws regarding the scope of the Secretary's discretion to impose sanctions
after a violation has been found. 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 7-8, n.3.
In determining which sanctions are appropriate, FLSA cases are analogous to the Executive
Order, Section 503 and VEVRA, and hold that financial hardship caused by an administrative
order is not a valid basis on which to deny employees their remedy or to allow a wrong against
the public to go uncorrected. Id. at 8-10.
Although the definition of disability in the Americans with Disabilities Act, 42 U.S.C. 12101
et seq. (1990), is based on the same definition in the Rehabilitation Act, it does not necessarily
follow that the regulations governing the ADA apply to the Rehabilitation Act. OFCCP
v.
Delta Airlines, Inc., 94-OFC-8, ALJ Recommended Decision and Order on
Cross-Motions for Summary Judgment, March 20, 1996, at 9; exceptionspending,
Administrative Review Board.
If it was the intent of Congress to prohibit the consideration of mitigating devices when
analyzing a substantial impairment, then the language of the Rehabilitation Act could have been
changed given that the Act has twice been amended since its enactment in 1973. Id. at 9.
Under the EAJA, an "adversary adjudication" is defined as "an
adjudication
under section 554" of the Administrative Procedure Act in which the position of the United
States is represented by counsel. Section 554 applies in every case of adjudication required by
statute to be determined on the record after opportunity for an agency hearing. While the
Department's regulations afford an opportunity for a formal hearing, Section 503 of the
Rehabilitation Act does not require an adjudication under the APA or any hearing for that matter.
Instead, it requires the Department to investigate a complaint, and take such action thereon as the
facts and circumstances warrant. OFCCP v. Jacobi-Lewis Company, Inc.,
88-OFC-18, Assistant Secretary forEmployment Standards, Final Decision and Order, May 2,
1995,
at 6.
To determine the applicability of the Equal Access to Justice Act ("EAJA"), 5
U.S.C. §504 (1988), to a particular proceeding, the starting point is the language of the Act
itself. Id. at 7.
The Supreme Court has held that because the Equal Access to Justice Act
("EAJA"), 5 U.S.C. §504 (1988), amounts to a partial waiver of the
sovereign's
immunity, it must be strictly construed. Furthermore, the meaning of the phrase "an
adjudication under section 554" is unambiguous in the context of the EAJA. Thus,
proceedings must be specifically "subject to" or "governed by" section
554 to be considered "adversary adjudications." Id. at 7-8.
The fact that a statute affords "an opportunity for a hearing" and that its
implementing regulations enlarged upon the statute to "include essentially the same
procedural components as those prescribed in Section 554 of the APA" does not transform
proceedings under said statute to adversary adjudications. What counts is whether the statute
indicates that Congress intended to require full agency adherence to all section 554 procedural
components. Section 503 of the Rehabilitation Act does not expressly invoke the APA, hence
hearings conducted under the Rehabilitation Act are not required by statute and are not subject to
the EAJA. Id. at 8.
The Assistant Secretary found that Section 503's operative language requiring covered
government contractors to "take affirmative action to employ and advance in
employment" qualified disabled individuals has not changed over two decades and through
several amendments. The Assistant Secretary also affirmed that the Act directed the President to
implement its provisions by promulgating regulations, which the President delegated to the
Secretary of Labor. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant
Secretary For Employment Standards Decision and Remand Order, April 26, 1996 at 1-2.
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.
Id. 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.
The Assistant Secretary held that, while the term "affirmative action" is not
defined by the Rehabilitation Act, the legislative history of the Act dispels any doubt of
Congressional intent not to permit government contractors to discriminate against the disabled
while at the same time requiring them to take affirmative action to hire the disabled. Id.
at
6.
The Assistant Secretary's review of Section 503 legislative history, including direct
references
to Section 503 as a nondiscrimination program, revealed that Congress intended Section 503 to
be a nondiscrimination program and that the phrase "affirmative action" includes the
obligation not to discriminate and more. Ibid.at 7-8.
When Congress passed the Americans with Disabilities Act it recognized and ratified the
Department of Labor's enforcement of an antidiscrimination requirement under Section 503.
Id. at 9.
Congress' amendment of the Rehabilitation Act in 1978, to add private rights of action to
Section 501 and 504, but not 503, did not imply that Section 503 does not prohibit
discrimination.
Id. at 12.
The Assistant Secretary held, that because Section 503 obligates covered contractors not to
discriminate against qualified disabled individuals, that obligation would be meaningless if
contractors could violate it and not provide relief to victims of their illegal discrimination.
Id. at 16.
The Assistant Secretary held that Section 503 has always provided an administrative avenue
for individuals to seek remedies, and Congress made clear its intention that the Department of
Labor vigorously enforce the Act to obtain relief for victims of discrimination and impose
sanctions on contractors that refuse to comply. Id. at 17.
The Assistant Secretary held that it would be incongruous and inconsistent with
Congressional intent if persons discriminated against by recipients of federal financial assistance
in
violation of Section 504 were entitled to complete relief, but individuals subjected to
discrimination by government contractors had no recourse. Id. at 18.
When OFCCP seeks enforcement of Section 503, it is vindicating the government's interest
in
performance of one of the terms of the contract, not suing or initiating enforcement on behalf of
private individuals. Id. at 18-19, n.10.
The Assistant Secretary held irrelevant history of OFCCP's failed attempts to amend existing
regulations to include specific references to back pay. Case law holding that legislative history
of
failed efforts to amend legislation carries no significance, also applies to proposed regulations,
which were never adopted. Id. at 19-20.
The Assistant Secretary held, that as part of Congress' grant of broad legislative rule making
authority to the Secretary to implement the provisions of Section 503 by promulgating
regulations, the Secretary has the authority under the Act itself to establish a program of regular
compliance reviews. Id. at 22.
The Assistant Secretary held that the Department of Labor had the authority to conduct
compliance reviews and complaint investigations in light of Section 503 regulations which
provide, that OFCCP has responsibility for undertaking such investigations of complaints and
other matters as well as evaluations of contractor and agency performance as may be necessary;
that require contractors to maintain records regarding complaints and actions taken under the
regulations, and such other records as may be required by OFCCP or these regulations; that
require contractors to permit OFCCP access to its premises and records for purposes of
complaint
investigations and investigations of performance under the affirmative action clause; and which
prohibit retaliation and discrimination against any person for assisting or participating in a
compliance review. Id. at 23-25.
The Assistant Secretary held that the legislative history of Section 503 shows that Congress
intended the Department of Labor to conduct compliance reviews. Id. at 28-29.
One of the general purposes of the Act is to insure that any qualified handicapped individual
shall be given full and fair consideration for employment by any contractor who seeks to contract
with the Federal government. Therefore, OFCCP's interpretation of Section 503's affirmative
action obligation as including a nondiscrimination component is reasonably within the
contemplation of the statutory grant of authority. OFCCP v. American Airlines,
Inc., 94-OFC-9, ALJ Dec. and Order on Defendant's Motions for Summary
Judgment, September 19, 1995, at 4, rev'donothergrounds,
Assistant Secretary of Labor, Decision and Remand Order, April 19, 1996.
OFCCP does not have statutory authority to conduct compliance reviews under section 503.
Several attempts to provide such authority by explicit regulatory amendments have not been
successful, and OFCCP has nonetheless brought the instant action based on such an unauthorized
compliance review without any complaint having been filed. Further, as distinguished from the
issue of OFCCP's authority to proceed in behalf of discriminatees where at least one timely
complaint was filed, the Assistant Secretary has expressly reserved judgment whether OFCCP
may seek relief on behalf of alleged discriminatees following such compliance review in the
absence of any individual complaints. Id. at 9-10, reversed, Assistant
Secretary of Labor, Decision and Remand Order, April 19, 1996.
The Assistant Secretary held that language employed by an ALJ which paraphrased
exceptions to the Rehabilitation Act's definition of an "individual with handicaps" is
overly broad in that it can be read to include . . . past substance abusers, previously contagious or
infected persons, or persons with contagious diseases or infections who do not pose a
direct threat to the health and safety of others. OFCCP v. Mt. Bell Telephone
Co., 87-OFC-25, Assistant Secretary for Employment Standards, Order Denying Motion to
Strike; Decision and Order of Remand, August 25, 1994, at 4-5; ConsentDecree, February 9, 1995.
Remedial statutes such as Section 503 should be interpreted liberally. OFCCP v.
Norfolk Southern Corporation, 89-OFC-31, Assistant Secretary for Employment
Standards Decision and Order of Remand, October 3, 1995, at 9.
Since Section 503 contains no wording from which a retroactive application of the
regulations may be inferred, Congress intended no such retroactivity. OFCCP v.
Burlington Northern, Inc., 80-OFCCP-6, Special Assistant to the Assistant Secretary for
Employment Standards, Final Decision and Order of Dismissal, December 11, 1991, at 17.
[Section 503's implementing regulations] do not provide for retroactivity. Rather, they
indicate only a prospective application. Id. at 17.
Even had the arbitrator's decision not been made pursuant to a collective bargaining
agreement, OFCCP may still bring an action in its role as a Government agency. The principles
of
res judicata or collateral estoppel do not apply to such an action based on an arbitrator's decision.
OFCCP v. American Telephone and Telegraph Company (AT&T), 92-OFC-5,
ALJ Order Denying Defendant's Motion for Summary Judgment and Granting in part
Defendant's
Motion in Limine, April 23, 1995, at 7.