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The Americans with Disabilities Act and EEO and Affirmative Action Guidelines for Federal Contractors Regarding Individuals with Disabilities
The mission of the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) is to ensure that companies doing business with the Federal government comply with their contractual obligations to provide equal employment opportunity and to develop positive programs to recruit, hire, and promote workers who traditionally have been discriminated against in the job market — minorities, women, persons with disabilities, and Vietnam era and special disabled veterans.
Basic Provisions
For the past two decades, OFCCP has enforced Section 503 of the Rehabilitation Act of 1973, as amended, (Section 503), which requires federal contractors and subcontractors with Government contracts in excess of $10,000, to take affirmative action to employ and advance in employment qualified individuals with disabilities.
Additionally, since 1992, OFCCP has had coordinating authority under Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits job discrimination by employers, with 15 or more employees, against qualified individuals with disabilities. The Equal Employment Opportunity Commission (EEOC) has primary authority for enforcing the ADA. Most Government contractors are covered by both Section 503 and the ADA.
Persons Protected
Section 503 and the ADA cover persons with a wide range of mental and physical impairments that substantially limit or restrict a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.
Section 503 and the ADA also protect qualified individuals with records of substantial mental or physical disabilities. Individuals who have recovered from their disabilities may face job discrimination because of their past medical records. Finally, individuals who are perceived as having disabilities, when in fact, they do not, are protected by Section 503 and the ADA as well. Only qualified individuals with disabilities are protected by Section 503 and the ADA. The person must have the necessary education, skills or other job-related requirements. The person also must be able to perform the essential functions of the job — the fundamental job duties of the position he or she holds or desires — with or without reasonable accommodation. Reasonable Accommodation involves making adjustments or modifications in the work, job application process, work environment, job structure, equipment, employment practices or the way that job duties are performed so that an individual can perform the essential functions of the job.
Medical Examinations and Pre-employment Inquiries
It is generally unlawful for the contractor to require medical examinations or to make inquiries as to whether an applicant or employee is an individual with a disability or as to the nature or severity of such disability. The contractor, however, may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform the duties of the job.
The contractor may also require a medical examination or make an inquiry after making an offer of employment but before the applicant begins his duties, and may condition the employment offer on the results of such examination, if all entering employees into the same job category are subjected to such examination or inquiry. In addition, the contractor may require a medical examination or make an inquiry of an employee if it is job-related and consistent with business necessity.
Enforcement & Compliance
Complaint Investigations
Individuals who believe they have been discriminated against on the basis of their disability by federal contractors or subcontractors, may file complaints with OFCCP. Disability discrimination complaints may also be filed by the authorized representatives of the person or persons affected. The complaints must be filed within 300 days from the date of the alleged discrimination, unless the time for filing is extended by OFCCP for good cause. Complaints may be filed directly with any of OFCCP's regional or district offices throughout the country, or with OFCCP in Washington, D.C.
Disability discrimination complaints filed with OFCCP will be considered charges filed simultaneously under the ADA whenever the complaints also fall within the ADA's jurisdiction. OFCCP will act as EEOC's agent in processing the ADA component of the charge. OFCCP will transfer to EEOC all disability discrimination complaints over which it does not, but EEOC may, have jurisdiction. OFCCP will investigate and process all of the Section 503/ADA complaints not transferred to EEOC. If OFCCP's investigation reveals a violation, the agency will attempt to conciliate with the contractor, often entering into a conciliation agreement. A conciliation agreement may include a job offer, back pay, reinstatement, promotion or reasonable accommodation.
If the investigation results in a finding of no violation, OFCCP will issue both a finding of no violation and a right-to-sue letter under the ADA, and will close the complaint. Complainants may request a right-to-sue letter earlier in the process.
Compliance Reviews
OFCCP also investigates the employment practices of Government contractors by conducting compliance reviews. During a compliance review, a compliance officer checks personnel, payroll, and other employment records; interviews employees and company officials; and investigates virtually all aspects of employment. The investigator also checks to see whether the contractor is making special efforts to achieve equal opportunity through affirmative action.
If problems are uncovered, OFCCP will recommend corrective action and suggest ways to improve the company's equal opportunity efforts.
Enforcing Contract Compliance
When a compliance review or complaint investigation discloses problems, and conciliation efforts are unsuccessful, OFCCP refers the case to the Office of the Solicitor for enforcement through administrative enforcement proceedings. Contractors cited for violating their EEO and affirmative action requirements may have a formal hearing before an administrative law judge. If conciliation is not reached before or after the hearing, sanctions may be imposed. For example, contractors could lose their government contracts or subcontracts or be debarred, i.e., declared ineligible for any future government contracts.
Further Information
For more information about filing disability discrimination complaints or compliance reviews, contact any of OFCCP's regional or district offices. All offices are listed in telephone directories under U.S. Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs.
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