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 155: PRIVATE RIGHT OF
ACTION
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.
Enforcement actions are not a mere subterfuge for private actions if the relief sought is
aimed
at circumstances revealed by an investigation begun in response to a private complaint.
OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec.,
November 9, 1982, slip op. at 17; remanded on other grounds, Acting Assistant
Secretary for Employment Standards Decision and Order of Remand, February 24, 1994;
ConsentOrder, October 13, 1995.
The amendment to the statute that allows a recovery of attorneys' fees implies that Congress
intended a private right of action to exist. Id. at 11-7; remanded on other
grounds, Acting Assistant Secretary for Employment Standards Decision and Order of
Remand, February 24, 1994; ConsentOrder, October 13, 1995.
Complaining handicapped worker is not a party to 503 actions. There is no private right of
action. OFCCP v. BurlingtonNorthern Railroad, 81-OFCCP-21, ALJ
Dec. on Motions and Prehearing Order, February 8, 1984, slip op. at 2.
Courts have generally held that Section 503, unlike Section 504 (which applies to programs
receiving Federal financial assistance), provides no private right of action; an aggrieved
employee
must register a complaint with OFCCP and OFCCP may then file an action against the employer
on behalf of the employee. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec.
Dec. and Order, June 15, 1993, slip op. at 21; affirmedonothergrounds, Administrative Review Board Final Decision and Order, October 28, 1996.
The Assistant Secretary held that while there are many cases stating that there is no private
right of action under Section 503, no where do those cases hold that OFCCP cannot seek a
remedy on behalf of a complainant. OFCCP v. Commonwealth Aluminum,
82-OFC-6, Acting Assistant Secretary for Employment Standards Final Decision and Order,
February
10, 1994, at 25, and n.13; remandedsub.nom., Commonwealth
Aluminum Corp. v. U.S. Department of Labor, No. 94-0071-0(c)(W.D. Ky.
September 6, 1996).
The Assistant Secretary held that cases holding that a private right of action cannot be
implied
from Section 503 do not lead to the conclusion that Section 503 does not prohibit discrimination
against the disabled. To the contrary, many of these cases rely in part on the existence of
administrative remedies as a basis for concluding that a private right of action in court may not
be
inferred. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant Secretary For
Employment Standards Decision and Remand Order,
April 26, 1996 at 13.
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. In this respect, Section 503 is indistinguishable from Executive order 11246.
Id. at 18-19, n.10.