HEALTH CARE PROVIDERS: 2010 - 2011 Updates
SHOULD YOU HAVE AN AFFIRMATIVE ACTION PROGRAM (AAP)?
OFCCP Issues Guidance for Health Care Providers and Insurers to Assess Whether They Are Subject to OFCCP Requirements
Go to OFCCP website for more detailed information:
BOTTOM LINE AT THE TOP:
- If an employer has contracts of subcontracts with the federal government, most likely that employer will be covered. Examples of health facilities covered could be those that provide HMO plans for government employees and beneficiaries, direct contracts for providing service to TRICARE, Medicare’s Advantage Plan (Part C), FEHBP, and Prescription (Part D) program.
- Direct federal contracts for provision of health insurance to government employees and beneficiaries that involve the fee-for-service and PPO plans place the employer in the contractor category
- Contracts with health care plans or employers providing the desired managed care program will also land an employer in the contractor category
- Contracts involving provisions of administrative support, claims and data processing, customer service, medical savings plans/flexible spending plans, medical supplies, etc. will place an employer as a federal contractor or subcontractor
What will NOT place an employer in the federal contractor/subcontractor category:
- Medicare Parts A and B are Federal financial assistance programs providing medical and hospital insurance to Medicare beneficiaries (the reimbursed health care provider is considered a recipient of Federal financial assistance and therefore not considered a contractor)
- Receivers of grants and federal financial assistance awards are not contractors
- Reimbursement to a health care provider from an insurer. The Directive is quoted, “Because the prime contract is an insurance contract solely for the provision of health insurance to Federal Program members and beneficiaries, the payment of fees directly to health care providers is neither necessary to the performance of the prime contract, nor the fulfillment of an element of the prime contract.”
On December 16, 2010, OFCCP Director Shiu signed Management Directive 293 to provide “comprehensive guidance for assessing when health care providers and insurers are federal contractors and subcontractors based on their relationship with a Federal health care program or participants in a Federal health care program.” The new directive is meant to clarify subject medical providers and hospitals that fall within OFCCP’s jurisdiction.
OFCCP sets out its position that contractual arrangements under Medicare Part C (Medicare Advantage) and Medicare Part D (prescription drug plans) will impose OFCCP jurisdiction, in addition to its previously-articulated position that contractual arrangements with the Federal Employees Health Benefit Program (FEHBP) and TRICARE already impose jurisdiction.
OFCCP reiterates the position that arrangements to receive reimbursement under Medicare Parts A (medical insurance) and B (hospital insurance) do not subject a health care provider to OFCCP jurisdiction. Also arrangements that include medical providers getting reimbursed from an insurer such as Blue Cross or Blue Shield also do not subject the provider to OFCCP Executive Order 11246 and other related requirements.
Hospitals, medical providers, health plans, pharmaceutical companies, etc. are encouraged to gather documentation of their contractual and sub-contractual relationships to the federal government or TRICARE to determine if they are covered as a federal contractor or subcontractor. The requirements of the OFCCP are vast and most cannot be accomplished within the 30 day timeframe provided by OFCCP before a desk audit is conducted (120 days from the time a new contract is signed, the AAP should be in place).
GINA Title II Regulations Update:
The final regulations for Title II of the Genetic Information Nondiscrimination Act (GINA) became effective on January 10, 2011. Among other provisions, the regulations include model language that employers are encouraged to use when lawfully requesting medical information from an employee, physician or other third party.
I-9 Update: More than 500 businesses received notices from the U.S. Immigration and Customs Enforcement (ICE) that their officers would be inspecting the businesses for proper I-9 employment verification. Those employers will have three business day to prepare for the review of their documents.
Supposedly, these employers were chosen because of suspected hiring of illegal aliens. Fines for noncompliance range from $110 to $1100 per form. Higher fines apply for knowing employment of unauthorized workers. Employers who didn’t receive notice of inspection with this group should still perform an self-audit of their I-9 compliance. Call us with any questions: 812-284-2993
I-9 and the OFCCP
As of November 2010, OFCCP staff will discontinue the practice of inspecting the I-9 forms of contractors during the onsite phase of a compliance evaluation. This is good to hear, given the fact that little was accomplished through this process. OFCCP Compliance Officers are not Immigration experts and most resented this additional responsibility during on-site audits. .
OFCCP Policy Update: ADA Compliance of Online Application System
November 2010: All compliance evaluations shall include a review of the contractor's online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.
No More Active Case Management: Look for more OFCCP on-site to be conducted
BACKGROUND: On July 25, 2003, the Active Case Management (ACM) process for conducting S&S compliance evaluations was adopted by the Office of Federal Contract Compliance Programs (OFCCP). It was formally adopted on September 17, 2008. The stated purpose of ACM was to concentrate agency resources on identifying and remedying cases of systemic discrimination, thereby enabling the agency to use its resources in a more efficient manner. ACM, primarily an abbreviated desk audit process, was intended to quickly close reviews where there was no indicator of systemic discrimination (10 or more potential victims). Absent any indicators of discrimination, full desk audits were to be performed only in every 25th review and onsite evaluations only in every 50th review, as a "quality control" measure.
December 2010: OFCCP claims that while ACM has identified a number of systemic cases since its implementation, it has also "...caused OFCCP to narrow the focus of its enforcement efforts and has eroded OFCCP's enforcement authority."
Therefore, in accordance with the recommendations of the National Equal Pay Enforcement Task Force that reported to President Obama in July 2010, OFCCP has rescinded Directive Number 285, Active Case Management
September 30, 2010
EEOC Claims Obesity is a Disability Under ADAAA
The EEOC now claims obesity can be a disability under the Americans with Disabilities Act Amendments Act (ADAAA). Until now, courts have routinely rejected general obesity as a "disability" under the ADA and Rehabilitation Act, unless the obesity included medical complications (and those complications were used as the basis for the discrimination).
The EEOC filed suit recently, claiming that an employer discriminatorily fired an employee because of obesity. The EEOC claims that President George W. Bush authorized the ADA Amendments Act in 2008, allowing the law to have a much lower threshold for what constitutes a disability. The EEOC claims that basic obesity, without any other underlying condition, sufficiently impacts the life activities of bending, walking, digestion, cell growth, etc., to qualify as a disability or perceived disability.
The case, as indicated on the EEOC web site: http://www.eeoc.gov/eeoc/newsroom/release/9-30-10u.cfm
EEOC Sues Resources for Human Development, Inc. for Disability Discrimination
The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against Resources for Human Development, Inc. (RHD), for firing an employee because of her obesity, in violation of the Americans with Disabilities Act (ADA), the agency announced today. The case arose from the charge of a former RHD employee, Lisa Harrison, who claimed that RHD fired her from a New Orleans facility because of her disability.
According to the EEOC’s suit (No. 2:10-cv-03322 in U.S. District Court for the Eastern District of Louisiana), Harrison began working for RHD in 1999, as a Prevention / Intervention Specialist. Harrison worked with young children of mothers undergoing treatment for addiction. RHD fired Harrison in September of 2007 because of her severe obesity, the suit alleges. Harrison had worked for RHD at a location operating under the name of Family House of Louisiana, in Terrytown, La., a suburb of New Orleans. The EEOC alleges that, as a result of her obesity, RHD perceived Harrison as being substantially limited in a number of major life activities, including walking. Harrison was able, according to the lawsuit, to perform all of the essential functions of her position. Before the EEOC filed suit, Harrison died. Her private interests will be represented in the lawsuit by her estate.
EEOC v. Resources for Human Development (E.D. LA.2010).
Bottom Line: While obesity or being overweight has not specifically been determined to constitute a disability, the the resulting medical limitations the obesity may create could place the employee in the category of being covered by the ADA. Do not discriminate against an employee if he/she is obese or overweight. If the employee can perform the essential functions of the job, with or without an accommodation, an employer cannot remove them from the position. Contact us with further questions.
Religion and Age Biases Rising
Negative stereotypes and attitudes toward Muslims should raise a red flag for employers. They should be on alert in their workplaces for any discriminatory actions toward that particular group. The EEOC statistics on claims of bias toward Muslims in the workplace revealed 1,490 in 2009, compared to 697 in 2004.
Tips to keep discrimination out of your workplace:
* An employer cannot forbid Muslim employees from wearing head scarves because customers aren’t accustomed to seeing people dressed that way. However, if a head scarf presents a safety issue on a production line, the employer can require that the employee not wear the article of clothing. This is true for any type of clothing.
* Ensure employees and supervisors fully understand their obligations for ensuring non-discrimination in the workplace - provide proper training before harassment begins.
Age discrimination is another basis on the rise. As the Baby Boomers continue to work longer, we have more generations in the workplace, standing and working side-by-side. Some employers begin "pushing" older workers out the door. The Baby Boomers, well educated in their civil rights, will be stepping up to the EEOC table if they feel they are being harassed or discriminated against. Best method of circumventing this issue...educate.
Many Federal Contractors Now Required to Report First-Tier Subcontract Awards In Excess of $25,000
July 7, 2010
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have issued an interim rule requiring federal contractors to make certain disclosures regarding first-tier subcontract awards. The rule requires contractors to report first-tier subcontract awards expected to be $25,000 or more and for certain larger government contractors - to report the executive compensation of the top five executives of both the contractor and subcontractor.
A "first-tier" subcontract is one made directly with the company contracting directly with the federal government. The information will then be made available to the public.
The reporting requirements do not apply to classified contracts, contracts with individuals, or contractors and subcontractors whose annual gross income is less than $300,000. In addition, the executive compensation disclosures are only required of contractors and subcontractors if: (1) the entity receives at least $25 million in annual gross revenue from federal contracts, loans, grants, and cooperative agreements; (2) the annual gross revenue from the federal contracts, loans, grants, and cooperative agreements makes up more than 80 percent of the entity's annual gross revenue; and (3) the entity does not already publicly report the compensation of its senior executives.
The interim rule takes effect immediately; however, its reporting requirements will be phased in based upon the size of the prime contract at issue. Until Sept. 30, 2010, any new subcontract must be reported if the prime contract award was $20 million or more. From Oct. 1, 2010, to Feb. 28, 2011, the threshold will be lowered to prime contracts of $550,000 or more. On March 1, 2011, the threshold will be further reduced to prime contracts of $25,000 or more.
Employers with government contracts should determine whether the interim rule applies to them, and the best methods for compliance.
HEALTH CARE PROVIDERS: See article below most current:
The EEOC increased monetary benefits in 2009 ($294.2 MILLION), with less complaints filed (93,277 complaints), predominately filed under the bases: race, sex, and retaliation. Are you prepared to deal with the governement if a complaint is filed? Contact us today.
If the decision makers in your company are not aware of updates in EEO and related laws, such as discrimination against caregivers, EEO training should be incorporated into your annual agenda.
DOL Online Tool To Help You Understand Disability Nondiscrimination Laws 5/15/2010
The U.S. Department of Labor (DOL) is providing an internet tool to help employers ensure their employment policies and practices do not discriminate against qualified individuals with disabilities.
Go to: Disability Nondiscrimination Law Advisor (http://www.dol.gov/elaws/odep.htm)
Answer a few relevant questions about the nature of their organization to begin the process. Based on responses, the advisor generates a customized list of federal disability nondiscrimination laws that most likely apply, along with information about responsibilities under each applicable law.
The information includes a “Guide on Employing People with Disabilities” that outlines resources available to assist employers with compliance of disability nondiscrimination laws.
Breaks for Nursing Moms Now Required
Under the Patient Protection and Affordable Care Act, employers covered by the Fair Labor Standards Act will be required to furnish "rea
sonable" breaks to nursing mothers to express milk for their infants. Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.
Specifically, employers are required to provide nursing mothers with reasonable breaks any time that they need to express milk for up to one year after their child's birth. The breaks need not be paid if they occur during working time.
There is an exception for some smaller employers. Employers with 50 or fewer employees need not comply with the provision if its requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
Costs of Family Responsibilities Discrimination Increasing for Employers
||By Joanne Deschenaux
Litigation claiming bias against workers who care for children or aging parents has increased 400 percent in the past decade, and the average verdict in a family responsibilities discrimination (FRD) case now is more than $500,000, according to a report released by the Center for WorkLife Law in February 2010.
The report, Family Responsibilities Discrimination: Litigation Update 2010, is based on an analysis of over 2,100 lawsuits, most (67 percent) relating to pregnancy and maternity leave. Other cases claimed discrimination related to elder care (9.6 percent), care for sick children (7 percent), care for ill spouses (4 percent), time off for newborn care by fathers or adoptive parents (3 percent), and care for a family member who has a disability (2.4 percent). Most lawsuits (88 percent) were filed by women; 12 percent were filed by men.
Lawsuits have been brought against large and small employers and in every state and every industry, the report notes. Employees prevail in about 50 percent of the cases—far more often than in other types of employment cases.
Employer actions that have resulted in verdicts include:
Selecting an employee for layoff because she was pregnant.
Denying a promotion to a female employee because she was the mother of young children.
Firing a male employee who was on approved leave to care for a foster child.
Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.
“Laws are broken when supervisors make assumptions about the value of employees based on their family caregiving responsibilities and then take negative personnel actions, regardless of the employees’ actual performance,” said the report’s author, Cynthia Thomas Calvert, deputy director of WorkLife Law.
“Fortunately, employers can protect themselves against these lawsuits,” Calvert continued. “A good prevention program includes training supervisors so they can recognize the assumptions and be prepared to react in a more appropriate way.”
Laws Used in Family Responsibilities Cases
No federal statute expressly prohibits discrimination based on family responsibilities. As a result, most caregiver cases are brought under federal and state antidiscrimination and leave laws.
For example, a mother who is denied a promotion because she has young children may sue for sex discrimination under federal law, Title VII and/or her state’s counterpart. A man who is fired for taking time off to care for his sick mother may sue under the federal Family and Medical Leave Act (FMLA) and/or his state’s counterpart. An employee also may include common law claims such as wrongful discharge, intentional infliction of emotional distress, defamation and breach of contract.
Many of the cases studied for the report involved the use of the federal sex discrimination law, Title VII of the Civil Rights Act of 1964 and the federal FMLA.
However, the report notes, several states and 63 local jurisdictions have passed legislation that addresses family responsibilities discrimination in employment. Most of these laws expressly prohibit discrimination against employees based on familial or parental status or family responsibilities. These laws “change the litigation landscape,” the report says, because employees in these jurisdictions do not need to show that adverse actions taken against them are based on gender or tied to the taking of protected leave. They can prevail, for example, by showing that as caregivers, they were treated differently from employees who did not have caregiving obligations, that a hostile work environment for caregivers existed or that they were denied a job, a promotion, or certain benefits or conditions of employment based on stereotypes of caregivers.
The report has important implications for employers, Calvert says. “Their litigation risks are rising, as well as the costs associated with litigation. Perhaps more importantly, the many human stories behind the research show that workplace structures and expectations may be unrealistic in light of the changing characteristics of the workforce.
Detroit Adopts Scent Policy to Settle ADA Claim
The city of Detroit will encourage its employees to refrain from wearing perfumes, deodorants and cologne as part of a settlement of an Americans with Disabilities Act (ADA) claim, a policy change that Ann Curry Thompson, an attorney with Kelman Loria PLLC in Detroit, thinks other employers should adopt.
Detroit agreed to pay Susan McBride, a senior city planner whom Thompson represented, $100,000, and to change its ADA handbook and training, in addition to posting notices about the new policy.
Chemical Sensitivity Leads to Claim
McBride had sued the city under the ADA after it allegedly refused to accommodate her multiple chemical sensitivity.
In July 2006, a co-worker who wore strong perfume transferred into McBride’s department. The co-worker worked near McBride and used a room deodorizer. Shortly after the co-worker arrived at her work station, the smell of perfume and deodorizer overcame McBride, causing her to leave work.
McBride later asked the co-worker to unplug the room deodorizer and refrain from wearing perfume. The co-worker unplugged the deodorizer but refused to stop wearing perfume. McBride complained to her supervisor and requested that the city implement and enforce a “no-scent policy” to accommodate her disability. But the city allegedly refused her request and did not offer an alternative accommodation.
As a result of her exposure to the perfume, McBride missed much time off from work and received extensive medical treatment. She suspended fertility treatments because the fertility drugs were contraindicated medically with the medications she needed as a result of her exposure at work.
Depending on the level of exposure, McBride’s symptoms might remain after the workday ends and sometimes lasted until the next morning. The symptoms had a compounding effect, as each day during the week she felt worse and she could “barely function” by the end of the week. Her symptoms subsided until the next Monday, when the cycle repeated. McBride said that only a break of 10 days from work left her feeling completely well.
McBride used Family and Medical Leave Act (FMLA) leave and sick leave days frequently because of her reactions. Although there were discussions about relocating her workstation or her co-workers, neither employee was relocated. McBride sought accommodation through a union grievance request that her FMLA and/or sick leave time be recredited as an accommodation, but the city argued that it already provided accommodation in the form of granting McBride FMLA leave.
McBride sued, and the U.S. District Court for the Eastern District of Michigan on Nov. 28, 2007, denied the city’s motion for summary judgment (McBride v. City of Detroit, No. 07-12794). A year later, the court granted in part another motion by the city for summary judgment, but also denied it in part. The court concluded that McBride may proceed with her ADA claim based on her having a disability that substantially limited the major life activity of breathing, but it dismissed her claim of disability based on other major life activities that allegedly were substantially limited, such as speaking, interacting with others and reproduction.
In the 2008 decision, the court rejected the city’s argument that McBride’s request for a scent-free policy was an unreasonable accommodation because it would require an undue hardship. The court noted that McBride arguably did not seek a scent-free policy but instead “an opportunity to work with management and HR to help come up with something that would work to try to get some relief.” The court noted that McBride provided the city with a copy of policy enacted by the Michigan Department of Information Technology as an example of the type of policy she was seeking.
Although the policy was worded as a “no-scent policy,” it provided that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”
The court determined that “this type of policy does not require a completely scent-free environment nor does it address the public or those outside a department.” It added that the city did not explain why the policy would create an undue hardship, why it could not have ordered the co-worker to stop wearing “offensive perfumes or oils” or why such a directive would be an unreasonable accommodation.
It noted that the record contained conflicting assertions about why neither worker was relocated. The parties disputed whether either move was possible or feasible and whether the moves were pursued. The court observed that additional time off after the exhaustion of FMLA leave may be a reasonable accommodation.
In addition, it said that the city’s HR department might not have engaged in a proper interactive process to identify a reasonable accommodation, noting that city employees allegedly said such things as “If she’s allergic to perfumes and colognes then she has the problem, not the employer.”
In settling the claim on Feb. 12, 2010, the city agreed to add a section to its employee handbook, stating that “our goal is to be sensitive to employees with perfume and chemical sensitivities. Employees who are sensitive to perfumes and chemicals may suffer potentially serious health consequences. In order to accommodate employees who are medically sensitive to the chemicals in scented products, the city of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products. The city of Detroit also asks you to refrain the use of scented candles, perfume samples from magazines, spray or solid air fresheners, room deodorizers, plug-in wall air fresheners, cleaning compounds or similar products. Our employees with medical chemical sensitivities thank you for your cooperation.”
In a March 16, 2010, interview, Thompson said there was very little precedent in cases involving employees with multiple chemical sensitivities who request scent-free workplaces. In her jurisdiction, she found just one unpublished case on the issue, which found that a mandatory no-scent policy was not reasonable as a matter of law. Thompson called the holding “absurd” and something that she would challenge, but she noted that the policy McBride sought was not mandatory.
Thompson said that HR thought McBride’s accommodation request was “silly, not serious” and responded that there was a constitutional right to wear perfume. HR thought the request either was “laughable or not anything anyone could do anything about,” she added.
But Thompson said HR can and should take the lead in accommodating people with multiple chemical sensitivities, remarking that an employer “has an obligation to deal with a situation like this when it is presented.” She added that her law firm has a no-scent policy and said the policy has worked fine.
RESPONSE: As our environment continues to change, we may see more and more ADA cases like this. If the city had taken the complainant's requests for an accommodation seriously, they would never have gotten to this expensive and all encompassing point. Each case should be seriously reviewed on an individual basis. I find it interesting that the policy includes all deordorants - it would have been more effective to have specifically stated, "scented deordorants."
FMLA Military Family Leave Benefits Expanded
While this is not specifically EEOC or OFCCP related, we believe you will want to know about these changes to the FMLA...as it relates to the military.
The National Defense Authorization Act of 2010 (NDAA 2010) expands family and medical leave rights of military personnel and their families.
President Bush signed the National Defense Authorization Act for fiscal year 2008 (NDAA 2008), to amend the Family and Medical Leave Act (FMLA. This amendment gives eligible employees the right to take up to 12 weeks of unpaid leave in the applicable 12-month period due to a qualifying need resulting from the call to service of a member of the National Guard or the Reserves. The Act also amends the FMLA to provide for up to 26 weeks of unpaid leave in a single 12-month period to care for an injured family member who is a current member of the Armed Forces (this includes members of the National Guard or Reserves).
President Obama signed into law NDAA 2010 in October 2009, which expands the scope of who may take time off under the 2008 provisions. The new law allows for the following:
- Family members of active duty members of the regular Armed Forces to use qualifying exigency leave when the service member is deployed to a foreign country. The 2008 law only applied to family members of the National Guard and Reserves who were called to active duty in support of a contingency operation.
- Federal employees to use qualifying exigency leave. Only certain federal employees were allowed to use it under the 2008 law.
- Military caregiver leave to be taken for veterans who served within 5 years of the date of medical treatment, recuperation, or therapy. The 2008 law only applied to service members who were currently in the military.
- Military care giver leave for existing or preexisting injuries that are aggravated in the line of duty during active duty service. The current regulations deny coverage for these injuries.
The expansions took effect when the President signed the law. Proposed regulations from the Department of Labor and the Office of Personnel Management, which will be drafted in consultation with the Secretaries of Defense and Veterans Affairs, should be issued soon.
Given these important changes, employers should review and modify their FMLA policies to ensure compliance with NDAA 2010.
HOSPITALS (Health Care Providers) RULED TO BE FEDERAL
SUBCONTRACTORS ~ REQUIRED TO PREPARE AND
In the past, Office of Federal Contract Compliance Programs (OFCCP) interpreted Executive Order 11246 to exclude health institutions such as hospitals, nursing homes, etc., from requirements to create and maintain an Affirmative Action Plan (AAP), if their only federal money came from accepting Medicare and Medicaid payments. The directive detailing this interpretation was ADM 93-1/JUR, 12-16-93.However, health institutions could be considered prime contractors for the federal government if they provided contract medical services to active US military or veterans.
This guidance, based upon DOL Administrative Review Board (ARB) ruling, OFCCP v. University of Pittsburg Medical Center (UPMC) Braddock (DOL ARB, No. 08-048, May 29, 2009), has changed and as of June 2009 health care facilities may now be considered as sub-contractors.
Specifically in the Braddock case, several Pittsburgh-area hospitals received payments from a health maintenance organization (HMO) for providing medical services to federal government employees; however, the written contract between the hospitals and the HMO did not include requirements that the hospitals abide by Affirmative Action (AA) legal requirements.
Along came OFCCP with a scheduling letter (notification of an upcoming Affirmative Action Plan audit) for one of the hospitals. The hospital argued jurisdiction and OFCCP filed an administrative complaint against the hospital. Ultimately, an Administrative Law Judge (ALJ) ruled for OFCCP. In turn, the hospitals filed for further review by the ARB. The ARB’s decision was not positive for the hospitals.
The ARB’s conclusion stated,“The Court also characterized an HMO as a health care delivery system defined by the providing of medical benefits and the assumption of financial risk in providing those benefits. Here, there is ample evidence that the Defendents were operating primary as health care delivery providers and not strictly a insurance providers. We therefore agree with the ALJ’s finding that our Bridgeport decision is applicable and that the Defendents were subcontractors subject to the equal opportunity provisions of the three laws.” The three laws referenced: Executive Order No. 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, and their implementing regulations.”
The failure to include the mandatory clauses in the agreements with the hospital does not excuse them from compliance.
Regulations Requiring E-Verify for Many Federal Contractors Effective (most likely)
August 26, 2009
The U.S. District Court for the District of Maryland issued its decision in Chamber of Commerce of the United States of America v. Janet Napolitano, No. 8:08-cv-03444-AW, upholding the legality of Executive Order 13464 and its implementing regulation (requiring many federal contractors and subcontractors to use E-Verify). The rule, administered by the Department of Homeland Security (DHS), is scheduled to take effect Sept. 8, 2009.
E-Verify is the government's internet-based system by which employers will be required to check the eligibility of newly hired employees. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which provides the statutory basis for E-Verify, made the system voluntary; however, this decision makes it mandatory for most federal contractors.
To prepare for compliance and implementation of the amended Federal Acquisition Regulations (FAR), employers should analyze potential federal contracts to determine jurisdiction requiring the use of E-Verify. Applicable federal contractors can review the government’s guidance through: www.dhs.gov/e-verify.
As previous OFCCP Sr. Compliance Officers (who used to audit I-9 files), EEO GUIDANCE and EEO LOGIC strongly suggest all federal contractors implement a compliance policy and program and assign a professional in the HR, EEO, or Legal Department to monitor and enforce the Immigration and E-Verify program for your facility.
CHANGES TO EEO REQUIRED POSTERS (Displayed in your workplace):
For copies of the new poster, go to: http://www.dol.gov/esa/ofccp/regs/compliance/posters/ofccpost.htm_
Statistics and EEO:
Claims of discrimination are classified as“disparate treatment” or “disparate impact.” Disparate treatment claims depend upon evidence that an employer treated one individual or group of individuals differently than another group and consideration of the protected group (race, color, religion, sex/gender, national origin, age, or disability) were considered as part of the personnel decision. Disparate impact claims reveal that an otherwise neutral policy adversely impacts a set of employees in one of the protected groups. Evidence of discriminatory intent is not necessary.
LET US REITERATE: DO NOT RETALIATE AGAINST EEO COMPLAINANTS
Supreme Court Expands Protection from Discriminatory Retaliation – January 2009
Workers who cooperate in their employer’s internal investigation of discrimination are protected from unlawful retaliation, the U.S. Supreme Court has decided.
In the Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee (No. 06-1595), ruling, the Supreme Court unanimously reversed two earlier decisions that limited coverage to employees who file EEO complaints (verbal or written) and those who are included in the investigation, under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.
What does this mean? If an employee informs an employer of an EEO (Title VII) related issue or concern (complaint), that employee is protected from EEO retaliation. Also, anyone who is involved in the case as a witness would also be covered. Be sure your supervisors and managers are aware of this ruling, along with their many EEO requirements.
Remember, discrimination and retaliation are two separate legal claims. An employee who is unable to prove a claim of discrimination may still be able to prove retaliation by the employer. Supervisors and managers should be trained to understand the type of inappropriate activity protected under EEO laws. CONTACT US re: “Never Boring” EEO Training for Supervisors and Managers.
OFCCP annual number of
financial remedies for more American workers breaks records
OFCCP UPDATES: March 2009: President Obama and his new administration staff have indicated they plan to increase funding for the Office of Federal Contract Compliance Programs (OFCCP).
OFCCP may be in increasing their enforcement staff very soon. Specifically, OFCCP will be hiring new staff with specialized expertise (such as statisticians) to continue pushing their enforcement of statistical or systemic discrimination.
In fiscal year (FY) 2008, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) won a record $67,510,982 in back pay, salary and benefits for an unprecedented 24,508 American workers who had been subjected to unlawful employment discrimination.
Ninety-nine percent of dollars were collected in cases of systemic discrimination — those involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. The more than $67.5 million reflects a 133 percent increase over financial remedies obtained in FY 2001.
The last eight years of OFCCP enforcement data show a 14 percent increase in the total number of compliance reviews completed versus a similar period in the prior administration. More importantly, OFCCP's more strategic approach resulted in a 92 percent increase in the number of job applicants and employees (113,630) who financially benefited from OFCCP investigations and over $50 million in additional back pay salary and benefits versus the prior administration.
BOTTOM LINE: Litigation is expensive – OFCCP appears to be on a roll - don’t wait until it is too late to know if your statistics/actions reveal discrimination.
This is an excellent article from the law firm of Greenebaum Doll & McDonald PLLC (www.greenebaum.com) - we thought you should understand how having a union can change the outcome of an issue such as inappropriate language in the workplace.. We also see that this issue of inappropriate language (cursing) in the workplace could have a different outcome from an EEO standpoint. In some cases (depending on who was involved, the environment, etc.), cursing could be creating an illegal hostile working environment.
It's okay to discipline employees for using profanity . . . isn't it?
A recent decision of the National Labor Relations Board (the "Board") serves as a convenient reminder that employers must exercise restraint when dealing with employees who are engaged in activity protected by the National Labor Relations Act ("NLRA"). In this case, the Board determined that an employer violated the NLRA by disciplining a union steward for using profanity toward a supervisor during a disciplinary meeting. (Alcoa Inc., N.L.R.B. No. 141, 8/29/08)
An Alcoa employee (exercising his Weingarten rights) asked his union steward, Mark Hewitt, to represent him during a disciplinary meeting with management. During that meeting, Hewitt pointed at a supervisor, used a four-letter expletive to describe the supervisor, and expressed his view that the disciplinary action against the employee was unfair. Hewitt was promptly suspended for insubordination and abusive and offensive behavior toward the supervisor. The union filed an unfair labor practice charge with the Board, alleging that Alcoa had violated Hewitt's right to engage in union activity protected by the NLRA.
The Board agreed that Alcoa had violated the NLRA by suspending Hewitt, because Hewitt was acting as a union representative at the time of the incident. In determining whether an employee's conduct (such as Hewitt's outburst) is protected by the NLRA, the Board considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's conduct; and (4) whether the conduct was in any way provoked by an employer's unfair labor practice. Although Hewitt's outburst was not provoked by an unfair labor practice, the Board found that the other factors weighed in Hewitt's favor. Specifically, the Board noted that Hewitt's use of profanity occurred in the course of discharging his representative duties.
An employer normally would be free to discipline or discharge an employee for this or similar conduct. The presence of a union in the workplace changes things, especially where otherwise unacceptable conduct occurs in the course of protected activity. As this case indicates, the NLRA cloaks union representatives with protections that can trump normal disciplinary rules. Conduct that may normally warrant disciplinary action, such as the use of profanity, may be protected if occurs in the course of a union representative's discharge of his or her representative duties. There are, of course, limits to what is protected (e.g ., Hewitt would not be protected if he had punched the supervisor), but the limits are poorly defined and highly fact sensitive.
Unions are well aware of the NLRA's protections, and they typically ensure that employees who are selected to serve as union representatives also know what they can "get away with." Employers who don't know and follow the law are at a disadvantage. This case should remind employers to resist the temptation to rush to discipline an employee acting as a union representative for what would be legitimate reasons in other circumstances.
OFCCP Implements New Veteran Employment Program – Hire Military Veterans and Possibly Draw A Three Year Exemption from OFCCP Compliance Reviews
OFCCP has created a program to encourage the employment of military veterans by formally recognizing federal contractors and subcontractors that have undertaken successful efforts to employ covered veterans. The program, Good-Faith Initiative for Veterans Employment (G-FIVE Initiative), provides a three year exemption from OFCCP compliance reviews for those contractor or subcontractor establishments that receive a G-FIVE Rating (unless there is reason for OFCCP to believe discrimination exists).
Contact us to find out how to qualify or to obtain assistance with this initiative.
OFCCP Web site: http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir282.htm
Updates RE: ADA (that you need to know)
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. As a result of this new legislation, which will go into effect on January 1, 2009, minor changes have been made to this document.
EEOC’s web site includes this synopsis:
The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:
- directs EEOC to revise that portion of its regulations defining the term "substantially limits";
- expands the definition of "major life activities" by including two non-exhaustive lists:
- the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
- the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
- states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
- clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
- provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
- provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
- emphasizes that the definition of "disability" should be interpreted broadly.
EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.
There have been updates also to the way performance standards are conducted to ensure equality. For more information regarding the Americans with Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities
The OFCCP recently released directives on accessibility of online job application systems, specifically:
- If you use an on-line job application process, be sure the top of the first page contains the NAME and TELEPHONE NUMBER (and, email address) for the individual who can receive and act on requests for accommodation in the application process.
- Individuals must be able to read all graphics on a web site or the site does not function properly with adaptive technology (Zooming in on graphics and text to make them more readable, or converting graphics and text to voice for the sight impaired),
- Individuals must have appropriate access to the equipment - applicants must be able to get a wheel chair/scooter up to a Kiosk application facility so the keyboard can be used properly. Ensure individuals know who to contact for guidance or to report problems.
- The notice should also indicate an alternate method of application if the web site is the only normal avenue and it is unusable for some reason by an individual applicant with a disability.
Jurisdiction and AUDITS: Things You Should Know:
During the second week of October, OFCCP indicated they sent out approximately 2,500 scheduling letters for desk audits. In March, 2009, OFCCP will send out another 5,000 scheduling letters. Early FY 2009, OFCCP will make it policy to conduct an on-site review of one in every 50 desk audits. OFCCP has been doing random on-site audits for several years; however, have not necessarily followed a set number. This is being done to keep contractors honest with the statistics that are submitted. They do not need to find discriminatory indicators in order to select the contractor for the on-site review.
For the contractors who are one of the 7,500 audits who are randomly selected for the on-site visit, OFCCP has not specifically stated the details of the on-site review process. Expect at the very least:
- Interviews with employees and management staff
- Review of I-9 Forms
- Facility Inspection (policies, posters, and notices posted, proper job groupings, etc.)
- Data requests on compensation programs and details on compensation decisions (if statistical indications of discrimination have been found)
- Data requests on personnel activity where standard deviations over 2 have been identified
…more to come.
OFCCP SHOWS THEY STILL HAVE ENFORCEMENT MUSCLE
Record Breaking Financial Remedies in FY 07
In Fiscal Year 2007, OFCCP enforcement efforts resulted in a record $51,680,950 (that would be MILLION) in back-pay and annualized salary and benefits for 22,251 American workers (another record number). These 22,251 workers were subjected to unlawful employment discrimination. The majority of those recipients (98%) benefited from the OFCCP’s efforts through cases of systemic discrimination / class discrimination based upon an unlawful personnel policy or practice.
Take note: In addition to the fact that systemic discrimination cases are the bulk of the OFCCP’s discrimination findings, OFCCP also asserts that the huge (and continued) increase in findings and settlements is directly tied to the way in which contractors are selected for audit (the process of who passes the desk audit and who gets a friendly visit on-site). Not only does this method ensure more employers are audited, it ensures they are focusing their time and energy on those employers who have statistical RED FLAGS informing them of potential problems. OFCCP also attributes much of their success on their new method to identify first tier contractors (Contracts First project). They are going to continue finding federal contractors who have been quietly hiding behind the EEO-1 form).
Do you know what your personnel activity statistics would tell the federal government? If not, you are open to be included in the statistics for next year. Contact our offices today to find out how to ensure your personnel policies and procedures are not fodder for the OFCCP Compliance Officer looking for a systemic case.
FEDERAL CONTRACTORS: Check out E-Verify – You may soon be required to verify immigration information through this Homeland Security program. We will keep you informed as the Executive Order goes through the approval process. In the meantime, check out E-Verify at: www.dhs.gov/E-Verify
Executive Order: Amending Executive Order 12989, as Amended
The feds (VETS) raised the contract threshold on federal contractors who are required to report activity relating to veterans (from $25K to $100K). Contractors with federal contracts of $100K or more (issued on or after December 1, 2003) are now required to file a VETS-100A, with the Veterans’ Employment and Training Service (VETS). Federal contractors who are covered by the new rule are required to begin collecting the data (May 2008) and file their first annual report on the new form September 30, 2009.
The primary change to the VETS-100 form is the revision of the reporting categories to include disabled veterans, other protected veterans, armed forces service medal veterans, and veterans recently separated from military service. Vietnam era veterans were eliminated from coverage under the VETS-100A, unless they are also included in one of the new categories.
The requirement comes after a final rule on May 19 implementing the Jobs for Veterans Act (JVA), which requires federal contractors to file annual reports on their employment of veterans who are covered under the rule. JVA amended the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). JVA and VEVRAA require companies with federal contracts to take affirmative action in recruiting, hiring, promoting, etc., on behalf of veterans and to report employment of covered veterans annually.
Contractors with federal contracts of $25,000 or more (issued before December 1, 2003) should continue to file the original form (VETS-100). If the contractor has current contracts initiated before 12/1/2003 and also more recently issued contracts with the federal government, both forms must be filed. If a contract was issued before December 1, 2003 and it has been modified (and meets the $100K threshold), the VETS-100A should be filed.
To reiterate: New categories for veterans are:
o Disabled Veterans
o Other Protected Veterans
o Armed Forces Service Medal Veterans
o Recently Separated Veterans
For a copy of a PDF version of the Federal Register posting of this
final announcement, go to:
EEOC ISSUES NEW GUIDELINES FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES UNDER ADA AND USERRA
The EEOC’s web site now has two sets of guidelines for employers who hire veterans with service-connected disabilities. The guidelines specify the differences between employer responsibilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA).
These two federal laws provide important protections for veterans with disabilities. USERRA is enforced by the U.S. Department of Labor (DOL) and the ADA is enforced by the EEOC.
If you have veterans with disabilities in your workforce you will want to review both of these documents. One document tackles ten key questions about the issues involved. Learn: "How does USERRA differ from the ADA?" to "May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?"
The second document discusses the same issues from the veteran's viewpoint. It details how to appropriately handle the disability issue when seeking employment and what protections are offered by these laws.
OFCCP UPDATES VEVRAA REGULATIONS FOR JOB LISTING
On April 7, 2008, the Office of Federal Contract Compliance Programs
(OFCCP) published its final rule governing the regulations at 41 CFR 60-250 pertaining to the listing of job openings with state employment agencies. Until now there has been a difference in requirements between 60-250 and 60-300 which implements the Jobs for Veterans Act (JVA) of 2002.
This final rule revises the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA). The regulations in part 60-250 implement the nondiscrimination and affirmative action provisions of VEVRAA prior to their amendment in 2002 by the JVA, and apply to contracts entered into before December 1, 2003. This final rule revises the mandatory job listing provision in the part 60-250 regulations to provide that listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the mandatory job listing requirements under the part 60-250 regulations.
Since the elimination of America's Job Bank in 2007,all job openings must be listed with the local state employment service (as in the ‘old days of OFCCP’). There are the same three exceptions provided for in these regulations: Jobs that are at the senior executive level, jobs that are going to last only 3 days or less, and jobs that will only be filled from internal sources.
The regulations covering government contracts prior to December 1, 2003, and those covering contracts following that date are now lined up.
For a copy of the final rule go to:
EVERY EMPLOYER SHOULD HAVE AN EFFECTIVE EEO COMPLAINT PROCEDURE
Employers can protect themselves from liability for harassment under Title VII by maintaining adequate complaint procedures and taking prompt remedial action in response to harassment complaints. However, the 7th Circuit EEOC v. V&J Foods Inc. the key word to winning a case is “adequate”—complaint procedures must be thorough and easy to understand.
In V&J Foods, the plaintiff, a 16-year-old girl, accused the store manager of making several unwanted sexual advances. After several complaints from the teenager and her mother to the plaintiff’s co-workers and supervisors, the store manager fired the girl. The plaintiff sued her employer for sexual harassment, but the district court dismissed the case because the plaintiff failed to follow the complaint procedure set up by the company.
On appeal, the 7th Circuit reversed the district court’s decision after finding the employer’s complaint procedure to be insufficient. The process instructed employees to report harassment to their district manager. However, the policy failed to provide contact information, and did not provide a method for employees to bypass their supervisors when they feared retaliation or when they were the perpetrators of the harassment.
Employers should review their complaint procedures to ensure they are understandable and effective. If you don’t have one, contact us, we will be happy to help.
Second FY 2008 OFCCP Scheduling (To Be Audited) List Released
A second list of supply and service contractor establishments will be available to OFCCP regional offices beginning on March 10, 2008 for scheduling of compliance evaluations during this scheduling cycle (currently, October 1, 2007 through September 30, 2008). The first release for FY 2008 was made available to the regional offices for scheduling on October 1, 2007.
This release includes approximately 5000 facilities that have either self-identified as being an establishment of a Federal contractor, or have been identified as such by OFCCP. OFCCP generated this list through its Federal Contractor Selection System (FCSS) using multiple information sources and analytical procedures to select contractors for evaluation, including a mathematical model that ranks Federal contractor establishments based on an indicator of potential workplace discrimination. The list also includes a number of establishments identified through external Federal contract databases as part of OFCCP's Contracts First Initiative. The list excludes establishments based on a variety of factors, including, for example, establishments that are currently undergoing a compliance evaluation, were evaluated within the last 24 months, or have received the Secretary of Labor's Opportunity Award or an Exemplary Voluntary Efforts Award within the last three years. Additionally, Federal contractor establishments covered by Functional Affirmative Action Program (FAAP) agreements with OFCCP and those subject to a Corporate Management Compliance Evaluation (CMCE) are selected for evaluation through a separate process.
OFCCP has mailed a Corporate Scheduling Announcement Letter (CSAL) to the Chief Executive Officer (or designated point of contact) of each parent company with more than one establishment listed for the scheduling of a compliance evaluation this FCSS scheduling cycle. Because this is the second release of this scheduling cycle, the list of establishments included with the CSAL will include establishments identified by FCSS in either the first or second scheduling release. As in the past, depending on the workload of individual OFCCP offices, all establishments identified in the attachment to the CSAL may not be scheduled for an evaluation.
For a variety of reasons, it is possible that company establishments other than those identified in the CSAL have been selected for a compliance evaluation during this scheduling cycle. For example, company establishments that are not clearly associated with a parent organization through currently-available EEO-1 Reports, such as those that have been acquired through recent mergers, are not included on the CSAL. In addition, the CSAL does not identify whether an establishment of a company has been selected for evaluation because of a contract award notice, a directed review, as a result of conciliation agreement monitoring or an individual complaint, or as part of the CMCE or FAAP initiatives.
For contractors with multiple establishments, FCSS limits the number of new compliance evaluations identified to 25 new evaluations during a scheduling cycle. The 25-establishment limit does not apply to compliance evaluations scheduled as a result of the agency’s CMCE or FAAP initiatives, contract award notices, directed reviews, conciliation agreement monitoring, or credible reports of an alleged violation of a law or regulation, including complaints.
STATISTICS TO SHOW OFCCP IS STILL OUT AND ABOUT FINDING DISCRIMINATION, DEFICIENCIES, AND FINANCIAL SETTLEMENTS
In Fiscal Year (FY) 2007 OFCCP posted a record amount of financial remedies for job applicants and employees who had been discriminated against by employers. They also conducted 24% more compliance evaluations of AAPs than in the previous year. OFCCP remains focused on systemic discrimination and the results have proven the strategy to be extremely effective.
FY Financial Workers Compliance
Remedies Affected Evaluations
2007 $51,681,000 22,251 4,923
2006 $51,525,000 15,273 3,975
2005 $45,156,000 14,761 2,730
Details can be found on the OFCCP web site:
(use back arrow to return to this site)
Effective for new hires after DECEMBER 26, 2007:
Employment Eligibility Verification
Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. Acceptable documents are listed on the back of the form, and detailed below under "Special Instructions."
Number of Pages : 3
Edition Date : 06/05/07
Where to File :
Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., ICE, Department of Labor).
Filing Fee : $0.00
Special Instructions :
You should have the latest version of the free Adobe Reader to download and use the 2007 version of Form I-9.
Please note the following changes to the Form I-9 process:
· Five documents have been removed from List A of the List of Acceptable Documents:
Certificate of U.S. Citizenship (Form N-560 or N-561)
· One document was added to List A of the List of Acceptable Documents:
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)
Unexpired Employment Authorization Document (I-766)
· All Employment Authorization Documents with photographs have been consolidated as one item on List A:
I-688, I-688A, I-688B, I-766
· Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
· Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.
Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.
This page can be found at http://www.uscis.gov/i-9
EMPLOYMENT TESTS AND SELECTION PROCEDURES EEOC FACT SHEET 12/3/2007
Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.
The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older). Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.
On May 16, 2007, the EEOC held a public meeting on Employment Testing and Screening. Witnesses addressed legal issues related to the use of employment tests and other selection procedures.
Employer Best Practices for Testing and Selection
Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
- Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
For further background on experiences and challenges encountered by employers, employees, and job seekers in testing, see the testimony from the Commission’s meeting on testing, located on the EEOC’s public web site at: http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html
August 31, 2007
Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the "EEO-1 Report"). The revised EEO-1 Report must be filed for the first time by September 30, 2007.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.
Comments: OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published. It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories.
To review this OFCCP guidance, go to their web site at:
FINAL RULING: EXPANDS VETERANS COVERAGE AND CHANGES MANDATORY JOB LISTING
The Office of Federal Contract Compliance Programs (OFCCP) published its final rule for Veterans' AAP requirements. Veterans' affirmative action will now be addressed by two separate sections of
41 Code of Federal Regulations (CFR). The current provisions of Part 60-250 will continue to apply to contracts made on or before December 1, 2003. However, the new section in 41 CFR, Part 60-300, will apply to contracts made after December 1, 2003. The new contract threshold of $100,000 is what contractors must meet before they are required to prepare a written Veterans' AAP.
For a copy of the OFCCP Questions and Answers page on the changes, go to:
(you may have to cut and paste if the direct link doesn't work)
In a nutshell:
--USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.
--All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit's commander. Leave can be for required training as well as for extended service.
--Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee's normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.
--In normal times, the employee's job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left.
The new regulations are effective September 7, 2007.
Highlighted questions are found below :
What groups of veterans are covered under part 60-250?
Special disabled veteran --
(i) A veteran who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Department of Veterans Affairs for a disability:
(A) Rated at 30 percent or more; or
(B) Rated at 10 or 20 percent in the case of a veteran who has been determined under 38 U.S.C. 3106 to have a serious employment handicap; or
(ii) A person who was discharged or released from active duty because of a service-connected disability.
Veteran of the Vietnam era -- A person who
(1) served on active duty for a period of more than 180 days, and was discharged or released therefrom with other than a dishonorable discharge, if any part of such active duty occurred:
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases; or
(2) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed:
(i) In the Republic of Vietnam between February 28, 1961, and May 7, 1975; or
(ii) Between August 5, 1964, and May 7, 1975, in all other cases.
Other protected veteran -- a person who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized, under laws administered by the Department of Defense.
Recently separated veteran -- any veteran during the one-year period beginning on the date of such veteran's discharge or release from active duty.
What groups of veterans are covered under part 60-300?
Disabled Veteran -- (1) A veteran of the U.S. military, ground, naval or air service who is entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs, or (2) A person who was discharged or released from active duty because of a service-connected disability.
Recently separated veteran -- any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty in the U.S. military, ground, naval or air service.
Armed Forces service medal veteran -- any veteran who, while serving on active duty in the U.S. military, ground, naval or air service, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985.
Other protected veteran -- a veteran who served on active duty in the U.S. military, ground, naval or air service during a war or in a campaign or expedition for which a campaign badge has been authorized, under the laws administered by the Department of Defense.
What are the new job listing requirements under the Jobs for Veterans Act?
The Jobs for Veterans Act (JVA) and the regulation implementing the JVA at 41 CFR 60-300.5 require that contractors list job openings with the appropriate employment service delivery system. Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. Listing with the appropriate employment service delivery system must be done concurrently with a contractor's use of any other recruitment source or effort.
Where can I find a link to the state workforce agency job banks?
A link to the state workforce agency job banks is available at http://careeronestop.org/ajbprsjbl/. This link will allow contractors to identify those state workforce agency job banks that accept electronically-transmitted job listings.
Is a contractor required to list temporary positions?
Employment openings subject to the mandatory job listing requirement include all positions except (1) executive and top management positions, (2) positions that will be filled from within the contractor's organization, and (3) positions lasting three days or less. All other employment openings, including those for full-time employment, temporary employment of more than three days' duration, and part-time employment, are subject to the mandatory listing requirement.
What are my affirmative action obligations as a Federal contractor covered by VEVRAA?
The Equal Employment Opportunity Clause in a Federal contract requires that you practice nondiscrimination and take affirmative action in employment with respect to covered veterans. Affirmative actions are the actions, policies, and procedures designed to achieve equal employment opportunity. The affirmative action obligation requires (1) thorough, systematic efforts to prevent discrimination from occurring or to detect it and eliminate it as promptly as possible; and (2) proactive recruitment and outreach measures. You also may be required to develop a written affirmative action program for each of your establishments if you have 50 or more employees and (1) a contract of $50,000 or more entered into before December 1, 2003 or (2) a contract of $100,000 or more entered into or modified on or after December 1, 2003.
I am a contractor covered under parts 60-250 and 60-300. Must I develop two VEVRAA affirmative action plans (AAPs)?
A contractor that must comply with both sets of VEVRAA regulations need not develop two AAPs. The JVA amendments did not affect the required contents of the written AAP under VEVRAA. Since the contents of the written AAP required under § 60-300.44 and § 60-250.44 are the same, contractors may develop a single AAP that satisfies the requirements of both regulations. The affirmative action efforts of a contractor covered by both sets of regulations must include all veterans protected by law.
An Explanation of ADA Reasonable Accommodation
Best Practices in HR put out a checklist of the two of the most important (and often confusing) terms in the Americans with Disabilities Act (ADA), "reasonable accommodation," (what an employer is required to do to allow a person with disabilities to perform the essential functions of a job, and "undue hardship," the reason EEOC provides exemption from ADA compliance when making an accommodation that would seriously impair the business.
Here are the examples Best Practices in HR gave for what can be a reasonable accommodation:
- Making existing facilities accessible
- Job restructuring
- Reassignment to a vacant position
- Part-time or modified schedules
- Acquiring or modifying equipment
- Changing the physical layout of the work area
- Removing requirements to stand when a job is performed
- Changing tests, training materials, or policies
- Providing readers or interpreters
- Eliminating an essential job function
- Lowering production standards (after reasonable accommodations have been instituted)
- Having to provide personal-use items for daily activities (prosthetics, wheelchairs, hearing aids, etc.)
- Arrangements that conflict with the company's seniority system, regardless of whether it is a product of collective bargaining or simply of management decision
Here are examples of "undue hardships," to be considered when making accommodations, as typically viewed by the feds. (Remembering you should always explore all options that would be considered reasonable.)
- The nature and cost of the accommodation needed
- The overall financial resources of the facility making the accommodation
- The number of persons employed at the facility
- The effect on the facility's expenses and resources
- The type of operation, including the structure and function of the workforce, its geographical separateness, and the administrative or physical relationship of the facility making the accommodation
- The impact of the accommodation on the operation of the facility
These lists are not all-inclusive
ALL POWERFUL OFCCP
From the US Department of Labor/OFCCP website:
Improvements at OFCCP Produce Record Financial Recoveries for Record Number of American Workers in FY 06
$51,525,235 Recovered for 15,273 Workers Subjected to Discrimination
The Employment Standards Administration’s Office of Federal Contract Compliance Programs
(OFCCP) enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and
the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. These laws
prohibit federal contractors and subcontractors from discriminating in employment based on
race, gender, color, religion, national origin, disability or covered veteran status.
In Fiscal Year 2006, OFCCP recovered a record $51,525,235 for a record 15,273 American
workers who had been subjected to unlawful employment discrimination. Of that record
recovery, 88% was collected in cases of systemic discrimination – those involving a significant
number of workers or applicants subjected to discrimination because of an unlawful employment
practice or policy. The $51.5 million reflects a 14% increase over recoveries in FY 2005 and a
78% increase over FY 2001.
Fiscal Year Remedies Compliance Evaluations
2006 $51,525,235 3,975
2005 $45,156,462 2,730
2004 $34,479,294 6,529
2003 $26,220,356 4,698
2002 $23,975,000 4,135
2001 $28,975,000 4,716
2005 to 2006 14.1% 3.5% 10.3% 45.6%
2001 to 2006 77.8% 68% 5.9% (15.7%)1
Initiatives at OFCCP Yield Dividends
OFCCP’s initiatives of the last several years are making it a more effective and efficient civil
rights enforcement agency. Compared with years past, OFCCP more quickly and accurately
screens contractor establishments for indicators of potential discrimination with its Active Case
Management (ACM) system. Under ACM, which was fully implemented in each of OFCCP’s
regions in FY 2005, the agency opens more reviews than it did in the past and the agency uses
automated statistical tools to rank and prioritize establishments for further review based on the
probability that discrimination would be uncovered during a full-scale review. OFCCP is using
1 Although OFCCP completed fewer reviews in Fiscal Year 2005 and 2006 than in previous years, its Active Case
Management process has effectively enabled it to better target systemic discrimination.
ACM to identify and resolve cases of systemic discrimination with greater frequency. OFCCP is
monitoring a larger portion of the federal contractor universe than it has in the past and it is
prioritizing its resources to addressing the worst offenders of the law. ACM is an effective
mechanism for targeting systemic discrimination: In FY 2005 and 2006, OFCCP closed an
average of 11.7% evaluations with a conciliation agreement, compared with 6.7% of evaluations
closed with a conciliation agreement in FY 2004.
Clearer Guidance and More Enforceable Standards
Since 2001, OFCCP has enacted policy initiatives and directives to provide clearer guidance for
employers and more enforceable standards for OFCCP.
In June 2006, OFCCP published in the Federal Register interpretive standards for evaluating
compensation practices, providing contractors with the first definitive guidance on the subject
ever. The standards will provide the agency a stronger basis for pursuing investigations of
possible systemic compensation discrimination because of their transparency and because of
their consistency with court rulings on pay discrimination law. OFCCP also conducted 31
Corporate Management Compliance Evaluations (CMCEs), also known as “Glass Ceiling”
audits, in FY 2006.
Internet Applicant Rule
OFCCP also recently published a rule clarifying provisions of the recordkeeping requirements
for federal contractors concerning who is an “applicant” in the context of the Internet and related
electronic data technologies.
Compliance Assistance Efforts
OFCCP also continued to build upon its comprehensive compliance assistance program,
conducting more than one thousand compliance assistance events in each of the last three years.
OFCCP’s recently enhanced monitoring of the federal contractor universe encourages selfmonitoring by contractors. Compliance assistance outreach helps employers prevent unlawful
discrimination in their workplaces by providing them with the information necessary to
effectively monitor their workplaces.
A significant portion of the recoveries came from cases referred to the Office of the Solicitor
(SOL) for enforcement litigation. In FY 2006, OFCCP obtained over $15 million in financial
remedies for more than 3,340 workers in cases referred to SOL. OFCCP also now involves SOL
attorneys earlier in its review process and more often in conciliation meetings with contractors.
Financial Remedies Obtained Through SOL Enforcement:
FY 01: $810,000 FY 02: $130,000 FY 03: $11,756,573 FY 04: $11,756,573 FY 05: $6,389,582 FY 06: $15,104,124 Change from 2001 to 2006: N/A2
Referred Systemic Discrimination Cases
Discrimination Cases FY 01: 8 FY 02: 4 FY 03: 12 FY 04: 10 FY 05: 16 FY 06: 9 Change From 2001 to 2006: 12.5%
2 The methodology for tracking this data changed between FY 2003 and FY 2004. The pre-2004 figures do not capture the wages secured as a result of cases referred to litigation.
COMPENSATION ANALYSIS REGULATIONS FINALIZED JUNE 16, 2006
Bruce Kuehnl, EEO LOGIC, LLC and Carol Dawson, EEO GUIDANCE,
of June 16, 2006, specific compensation analysis is
a requirement for all federal affirmative
contractors. If you have 500 or more employees on your
payroll, you must perform a detailed regression analysis each
AAP year to
ensure there is no illegal discrimination. Regression
analysis is recommended for companies
less than 500 employees.
Regression Analysis is new to many companies. It is
a statistical analysis tool that requires large data
bases filled with information; not retained
or used for any other purpose. The Office of Federal
Contract Compliance Programs (OFCCP)
also be conducting its own regression analysis on your
program, if you are audited; however, they will need
your numbers to do so. If a company performs all of
the recommended analysis actions, and no apparent discriminatory
problems exist, OFCCP will accept the results and not
As a former OFCCP District/Area Directors, we can tell
you that OFCCP Compliance Officers have often had a
difficult time with data analysis. Most have not been
equipped with the education
experience to fully understand this statistical analysis. However,
OFCCP has hired several
statisticians for each region and they should become
more involved with the compensation portion of audits.
This doesn't mean there are not flaws within these new
requirements. HR professionals will be required to maintain
data beyond name, grade, etc., as regression requires
more specific data on each employee. i.e., education,
previous work experience, previous training, performance
ratings, etc. Basically, you will be required to supply
any data used to determine how employees are paid.
We will continue to monitor developments relating to
these new regulations, and will be making further comment
on recommendations to our clients. For specific information,
go to the US Dept.
Labor/OFCCP web site at:
THE CONTINUING SAGA: EEO-1 AND RACE BY EEOC/ OFCCP
EEO-4 Users have not been instructed to make any changes to their statistics, thus far. I have been in contact with EEOC’s primary EEO-4 expert and he advises to sit tight and continue what you are doing.
As you should know…the EEOC has issued final regulations about the EEO-1 changes. They apply to private sector employers with 100 or more employees, and employers with 50 or more workers who are federal
contractors, selling goods or services to the U.S. government.
Federal Register, Vol. 70, No. 227, Monday, November 28, 2005
The revised form will become effective with the 2007 EEO-1
reporting deadline. Contractors and other subject
employers must file the new format on September 30, 2007.
As always, you can expect that you will be sent the new form
with your company information pre-printed (if all goes well). There are no guidelines requiring contractors to re-survey their employees…at this time; however, that can change before the race changes go into effect in 2007.
One of the primary changes contractors should be prepared for is the
splitting of Officials & Managers into two categories...
Executive/Senior Level Officials & Managers, and First/Mid
Level Officials & Managers. Contractors will have to report their
workforce in each of these two new categories beginning at the same time the race changes are executed.
Regarding self identification, some employees/applicants will refuse to identify their race. In the past, contractors were expected then to make a visual observation and judgment. This will be much more difficult, given the new categories, which include two of more races. The November 28, 2005
The new EEO-1 splits the Asian race category and now there are both "Asian" and "Native Hawaiian and Other Pacific Islanders." There is also the addition of a new "Two or More Races" category.
If the answer is YES, then there is no further choice of race. They do not require employers to track both Hispanic ethnicity and some other Race as well. "The Commission reaffirms its decision not to require employers to
report the race of employees who identify as Hispanic or Latino."
The question of race only occurs when the employee says NO to
the question of Hispanic ethnicity. This has become known as the
"two question format." However, let’s imagine that an employee could be part African American and part Hispanic/Latino. Hmmmmm…what will you do? You will classify that employee as Hispanic, unless he/she self identifies otherwise.
EEOC states contractors should first ask if someone is Hispanic.
OFCCP must align their regulations with those of the EEOC, or the statistical gathering puzzle will be extremely complex for anyone who holds a federal contract.
EEOC GUIDANCE RE: NEW EEO-1 CHANGES FOR 2007: Q & A
Questions and Answers: Revisions to the EEO-1 Report
Background and Basic Requirements
Q: What is the EEO-1 Report?
A: The EEO-1 Report – formally known as the "Employer Information Report" – is a government form requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 report is submitted to both the EEOC and the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP).
Q: Who must file the EEO-1 report?
A: The EEO-1 report must be filed by:
- Employers with federal government contracts of $50,000 or more and 50 or more employees; and
- Employers who do not have a federal government contract but have 100 or more employees
Q: When must the EEO-1 report be filed?
A: The EEO-1 report must be filed annually with the EEOC by September 30. It must use employment numbers from any pay period in July through September of that year.
Q: When must employers begin using the revised EEO-1 report?
A: The revised EEO-1 report must be used beginning with the survey due by September 30, 2007. For the surveys due by September 2006, employers should continue to use the EEO-1 report format from previous years. This report is still available on the EEOC’s website at https://apps.eeoc.gov/eeo1/eeo1.jsp
Q: How do employers file EEO-1 reports?
A: We strongly recommend that EEO-1 reports be submitted through the EEO-1 Online Filing System or as an electronically transmitted data file. Paper EEO-1 forms will be generated on request only, and only in extreme cases where Internet access is not available to the employer. Instructions on how to file are available on the EEOC’s website at http://www.eeoc.gov/eeo1survey/howtofile.html.
Q: Is EEO-1 data confidential?
A: Yes. The Commission is required by law to keep individual employer EEO‑1 reports strictly confidential. 42 U.S.C. 2000e-8(e).
Q: Where can employers find more information about the EEO-1?
A: General information about the EEO-1 can be found at the EEOC’s website at http://www.eeoc.gov/eeo1survey/index.html.
Description of the Changes to the New EEO-1 Report
Q: What changes are being made to the ethnic and racial categories on the EEO-1 report?
A: A number of changes are being made to the race and ethnic categories. The revised EEO-1 report:
- adds a new category titled "Two or more races"
- divides "Asian or Pacific Islander" into two separate categories: "Asian" and "Native Hawaiian or other Pacific Islander"
- renames "Black" as "Black or African American"
- renames "Hispanic" as "Hispanic or Latino"
- strongly endorses self-identification of race and ethnic categories, as opposed to visual identification by employers
Q: What changes are being made to the job categories on the EEO-1 report?
A: First, the current category of "Officials and Managers" will be divided into two levels based on responsibility and influence within the organization.
These two levels will be:
- Executive/Senior Level Officials and Managers (plan, direct and formulate policy, set strategy and provide overall direction; in larger organizations, within two reporting levels of CEO)
- First/Mid-Level Officials and Managers (direct implementation or operations within specific parameters set by Executive/Senior Level Officials and Managers; oversee day-to-day operations)
The revised EEO-1 also will move business and financial occupations from the Officials and Managers category to the Professionals category (to improve data for analyzing trends in mobility of minorities and women within Officials and Managers).
Q: What process did the EEOC follow in adopting these revisions to the EEO-1 report?
A: On June 11, 2003, the EEOC published in the Federal Register a notice of proposed revisions to the EEO-1 and asked for comments in 60 days.
- Thirty-two interested parties, including employers, civil rights organizations, human resources and information technology professionals, and other individuals, submitted written comments.
- The EEOC held a public hearing at which nine witnesses testified. The record was completed by several written comments submitted subsequent to the hearing.
- The EEOC reviewed the comments and made revisions to the EEO-1 report, in coordination with OFCCP.
- On November 16, 2005, the Commission voted to approve the revisions to the EEO-1 Report. A final Notice of Submission for Office of Management Budget (OMB) review was published in the Federal Register on November 28, 2005. This notice is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html.
- After a 30-day public comment period during which OMB considered all comments submitted, the revised EEO-1 was given final approval.
- The final revised EEO-1 report was posted on the Commission's website on January 27, 2006 at http://www.eeoc.gov/eeo1/index.html.
Q: Where is more information about the revisions to the EEO-1?
A: More information about the revised EEO-1 - including the final Notice of Submission for OMB Review which explains the revisions in detail and the Instruction Booklet - is available on the Commission's website at http://www.eeoc.gov/eeo1/index.html . A copy of the final notice can also be found in the November 28, 2005 issue of the Federal Register (70 FR 71294) at http://edocket.access.gpo.gov/2005/05-23359.htm .
Uses of EEO-1 Data
Q: What do the EEOC and OFCCP do with the EEO-1 survey data?
A: Both the EEOC and OFCCP have used the EEO-1 since 1966.
The EEOC uses the data to support civil rights enforcement. The EEOC also uses the data to analyze employment patterns, such as the representation of female and minority workers within companies, industries, or regions.
OFCCP uses EEO-1 data to determine which employer facilities to select for compliance evaluations. OFCCP’s system uses statistical assessment of EEO-1 data to select facilities where the likelihood of systematic discrimination is the greatest.
Q: What happens now that OMB has approved the revised EEO-1 report?
A: The final EEO-1 report has been posted on the Commission's website, with the valid OMB number, at http://www.eeoc.gov/eeo1/index.html, along with the Instruction Booklet. Employers must begin to use the newly approved EEO-1 report beginning with the survey due September 30, 2007. (For the survey due September 30, 2006, employers should continue to use the EEO-1 report from previous years, still available on the Commission's website at https://apps.eeoc.gov/eeo1/eeo1.jsp.)
SHIFTS TARGETED DISCRIMINATION INVESTIGATION
TO SYSTEMIC DISCRIMINATION
The EEOC has approved a program that will refocus the
law enforcement efforts on systemic cases of discrimination
than individual cases. The OFCCP has been in this mode
years and the question remains: Where do our U.S. workers
from individual one-on-one discrimiation (especially
those who cannot
affort an attorney)?
Chair of the Commission, commended Commissioner
Leslie E. Silverman who led an internal agency task
prepared the recommendations considered and approved
by the entire
Commission at its meeting on April 4, 2006.
taken by the Commission are:
investigations and litigation will be conducted in the
field, and the systemic investigation and litigation
headquarters will be eliminated.
* Each district in the field must develop Systemic Plans
that the Commission is identifying and investigating
discrimination in a coordinated, strategic, effective
* The Office of General Counsel should facilitate the
of systemic cases using a national law firm model, whereby
are staffed with employees who have the expertise needed
some serious field training for the EEOC will be coming
down the pike very soon. For additional information,
go to the EEOC web site:
ISSUES NEW DISCRIMINATION GUIDELINES
The EEOC issued a new Compliance Manual section updating
on how Title VII of the Civil Rights Act of 1964 prohibits
discrimination in employment on the basis of race and
EEOC also issued a question-and-answer fact sheet on
the same topics. The effort is to help employers better
instances of discrimination and to help prevent discrimination
in the first place. The changes appear to be more of
a clarification than a change.
the new guidance are the following subjects: Recruiting,
Hiring, and Advancement ~
Harassment/Hostile Work Environment ~ Compensation and
Other Employment Terms, Conditions and
Privileges ~ Segregation and Classification of Employees
For more information,
go to the EEOC web site: http://www.eeoc.gov/types/race.html
YOU PROTECTED FROM TITLE VII EMPLOYMENT DISCRIMINATION
CLAIMS IF YOU HAVE LESS THAN 15 EMPLOYEES?
response should now be "not necessarily."
The U.S. Supreme Court recently ruled that federal courts
may have jurisdiction to handle Title VII law suits
even though the employer had fewer than the 15 required
by the Civil Rights Act of 1964 for coverage. Feel free
to read the opinion written by Supreme Court Justice
Ginsberg at: http://www.supremecourtus.gov/opinions/05pdf/04-944.pdf
is just a tad bit complicated and difficult to follow
(unless you are the legal type). The decision was primarily
based upon determination whether the disputed matter
concerns "jurisdiction" or "the merits"
of the case (admittedly often a close-call question).
The background to all of this is a case involved Jenifer
Arbaugh, who worked for the Moonlight Cafe in New Orleans,
LA for less than a year (May 2000 - February 2001),
as a bartender. She contends that she was sexually harassed
by the company owner which led to his leaving the job.
The claim went to trial and a jury voiced their decision
in her favor, awarding a total of $40K. After the trial,
the company brought up the court's lack of jurisdiction,
claiming they did not have 15 employees at the time
of Arbaugh's employment. The case hit the Supreme Court
and ultimately Justice Ginsberg wrote the majority,
"Title VII's numerical threshold does not circumscribe
federal court subject-matter
jurisdiction. Instead, the employee-numerosity requirement
relates to the substantive adequacy of Arbaugh's Title
VII claim, and therefore could not be raised defensively
late in the lawsuit, i.e., after [the employer] had
failed to assert the objection prior to the close of
trial on the merits." The opinion also says, "...the
15-employee threshold appears in a separate provision
[of the law] that 'does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the
It is unwise to let the jurisdiction question remain
dormant until after a ruling. However, more important
is the fact that it is simply unwise to sexually harass
your employees...no matter how many employees you legally
MANY AUDITS CAN YOU HANDLE AT ONE TIME?
Federal Contract Compliance Programs (OFCCP)
has previously held that contractors would be exempt
from more than
25 audits in any given year (which seems reasonable,
if not somewhat high).
However, OFCCP has now modified that position
and state that contractors will be scheduled for no
more than 25 "new"
evaluations in any given year, regardless of the number
evaluations that exist at the start of the year. So,
no longer will
25 be an absolute cap on activities.
CHANGES IN VETERAN
AAP REGULATIONS IN PROPOSAL STAGE
Go to OFCCP's
and you will find the proposal for new regulations for
Some changes are:
may be subject to TWO sets of
regulations on veterans affirmative action. For all
beginning before December 1, 2003, contractors are subject
the regulations at 41 CFR 60-250. For all contracts
after December 1, 2003, contractors will be subject
regulations at 41 CFR 60-300.
o The old monetary threshold requiring a written AAP
was $25,000. The new regulations will raise that limit
for contracts entered into on or after December 1, 2003.
March 21, 2006, is the deadline for comments on the
CHANGE IN EEO SURVEY IN 40 YEARS!
– The U.S. Equal Employment Opportunity Commission (EEOC)
today announced the implementation of final revisions
to the Employer Information Report, also known as the
EEO-1 Report, as recently voted on and approved by the
Commission. The implementation of the final revisions
marks the first major change to the employer survey
in four decades.
are required to submit annually the EEO-1 Report, which
provides the federal government with workforce profiles
by ethnicity, race and gender, divided into job categories.
The new format will be required for the first time for
the 2007 survey, which is due by September 30, 2007.
Employers are expected to use the current format for
their 2006 EEO-1 submissions.
“The new EEO-1
Report recognizes the shifting demographics of today’s
workplace,” said Commission Chair Cari M. Dominguez,
noting that this was the first major revision of the
EEO-1 report since 1966. “The revised report will also
better enable the Commission to accurately monitor the
advancement of women and people of color into the upper
ranks of management.”
The EEOC’s revisions
incorporate some of the recommendations received by
the Commission during the past two and one-half years.
In June 2003, the Commission published a notice of proposed
revisions to the EEO-1 Report in the Federal Register
, received and considered public comments, and then
held a public hearing in October 2003. As required under
the Paperwork Reduction Act (70 FR 71294), a second
Federal Register notice was published on November 28,
2005, for a 30-day comment period. The new report format,
Instructions, and explanation can be found on the EEOC’s
web site at www.eeoc.gov/eeo1/index.html
revision process, the Commission consulted with a broad
range of stakeholders and held extensive discussions
with other federal agencies – including the U.S. Office
of Management and Budget (OMB) and the U.S. Department
of Labor, Office of Federal Contract Compliance Programs
(OFCCP). The new EEO-1 Report’s race and ethnic categories
- Adding a new category titled “Two or more races,
not Hispanic or Latino”;
- Deleting the “Asian and Pacific Islanders” category;
- Adding a new category titled “Asians, not Hispanic
- Adding a new category titled “Native Hawaiian or
Other Pacific Islander, not Hispanic or Latino”;
- Extending the EEO-1 data collection by race and
ethnicity to the State of Hawaii; and
- Strongly endorsing employee self-identification
of race and ethnicity, as opposed to visual identification
The new EEO-1
Report’s job categories include:
- Dividing “Officials and Managers” into two levels
based on responsibility and influence within the organization:
“Executive/Senior Level Officials and Managers” and
“First/Mid-Level Official and Managers”; and
- Moving non-managerial business and financial occupations
from the “Officials and Managers” category to the
are submitted annually to the Joint Reporting Committee
for the use of the EEOC and OFCCP. The report must be
filed annually by employers with 100 or more employees,
or employers with federal government contracts of $50,000
or more and 50 or more employees. It also includes data
on the size of employer establishments, the existence
of other establishments within the company, the locations
of the company’s establishments, the industry of each
company establishment, and the metropolitan area of
the establishment. Further information about the EEO-1
Report, including questions and answers on the final
proposed revisions, is available on the agency’s web
site at www.eeoc.gov/eeo1/index.html
The EEOC is
the federal government agency responsible for enforcing
the nation's anti-discrimination laws in the workplace
based on race, color, sex, religion, national origin,
age and disability. Additional information about the
agency is available on its web site at www.eeoc.gov
OFFERS ADVICE ON PRESENTING EEOC CASES
(See our comments below article)
Chief Administrative Judge for the Equal Employment
Opportunity Commission’s New York office, explained
how his office handles cases and how federal employees
can best present their cases.
Chu began by
explaining AJ’s reference materials and where federal
employees can find these materials. Agencies have four
options when facing EEO cases: settlement/mediation,
planning discovery, motions, hearings. Chu argued, that
in most instances, agencies are better off settling
as soon as possible. Chu said he encourages parties
to settle as early as possible, saving agencies money
and time. A number of attendees asked, “What does an
agency do when it knows it is correct? Settling in that
scenario would open the agency up to numerous other
the question by offering a recent case as an example.
to set a precedent. If you offer $1,000 settlement,
it’s bonus pay. Everyone’s going to file a complaint.
But at the same time I’m looking at 10 cases consolidated
into one. You’re going to fly people in from all over
the country to testify. Is that worth $1,000?,” said
Chu , who estimated cases can cost agencies more than
Chu also offered
do’s and dont’s for exhibits, witnesses and presentations
during EEOC hearings. When exhibiting evidence:
* Do not submit
if already in the investigation file
* Exchange before
the Hearing date
* Provide sufficient
copies to parties, witnesses and AJ
the EEOC should:
* Be necessary
to the argument
* Be prepared
to testify, but not scripted
* Have clear
lines of examination
* Question witnesses
* Not argue with
* Not solicit
narrative response from witnesses
* Not object
EEO LOGIC/EEO GUIDANCE RESPONSE
COMMENTS: Surprised at this commentary by the EEOC,
our rebuttal is that we do not encourage a company to settle
complaints when they are absolutely not guilty. However,
that said, before you argue aginst a complaint, be sure that
there is absolutely no guilt whatsoever. Often, where
there is smoke, there is some sort of fire. We also
encourage mediation - in an effort to resolve the complaint
in a win-win manner. Complaints are not always filed
for monetary relief...very often they are filed because of
harassment or unfair treatment and the complainant simply
wants to work in a respectful environment...free from the
harassing behavior. These complaints are often settled
through mediation. As a responding company, you should
look at each complaint individually and decide it this is
something you can and need to settle. If the workforce
believes they can and will get a "bonus" check automatically
by filing a complaint, there is no doubt the abusers will
find their way out to the EEOC's 1-800 number.
Recent Updates to the New Racial Categories
(see the most recent update at bottom of this paragraph)
The OFCCP and DOL has released the special EEO Tabulation
file from the 2000 Census. OFCCP is requiring all contractors
who use the special EEO Tabulation to begin using this new
data for all AAPs effective January 1, 2005 and later; however,
this has not been confirmed with written requirements. The
2000 census introduced a new set of race codes as well. In
order to be ready and compliant by January 1, 2005, it is
recommended that those who are required to report for federal
government purposes begin immediately tracking all personnel
transactions (applicants, hires, promotions, and terminations)
using the new race codes, and to prepare to re-poll their
workforce for race identification based upon these new codes.
Please note an important change to the definition of Hispanic:
Hispanic is now considered to be an ethnicity, not a racial
category. Employees and applicants will be allowed to select
1 or more races on the disclosure form. If an employee or
applicant indicates Hispanic ethnicity, they will be considered
"White Hispanic" for all tracking requirements if
they have also selected only White as a race. If an employee
or applicant indicates Hispanic ethnicity and any race combination
(including no race selections) other than White only, they
will be considered "Other Hispanic or Latino".
The New Race/Ethnicity Tracking Categories:
White Alone non-Hispanic
White Alone Hispanic
Black Alone non-Hispanic
American Indian/Alaskan Native Alone non-Hispanic
Asian Alone non-Hispanic
Native Hawaiian/Other Pacific Islander Alone non-Hispanic
Black & White non-Hispanic
American Indian/Alaskan Native & White non-Hispanic
American Indian/Alaskan Native & Black non-Hispanic
Asian & White non-Hispanic
Other 2+ Races or Some Other Race non-Hispanic
Other Hispanic or Latino
THE 2007 APPLICANT TEAR OFF SHEET FOR SELF IDENTIFICATION OF GENDER, ETHNIC, AND RACE is found below. Feel free to copy this information for your applicant tracking needs. (Cut and paste into Word document - Change bullets to boxes or lines to be checked by applicants)
EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION STATISTICS
______________ is an Equal Employment Opportunity Employer
The information below is required by state and federal regulations for statistical and affirmative action purposes and does not influence employment decisions. This page is separated from your application immediately upon being received, and will be kept confidential. This form is to be completed voluntarily and failure to do so will not have an effect on the application process.
Sex: (please check one):
Ethnic Group: (please check one):
- Hispanic or Latino – all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race (if you have selected this category, you have completed this form - please DO NOT select from the below racial list)
- Non-Hispanic/Latino (if this category is checked, please select from the racial groups found below)
Racial Groups: If Non-Hispanic/Latino was selected above, please check one of the below race categories:
- White (Not Hispanic or Latino): all persons having origins in any of the original people of Europe, North Africa, or the Middle East
- Black or African American (Not of Hispanic origin): All persons having origins in any of the black racial groups of Africa
- Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) – any persons having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands
- Asian (Not Hispanic or Latino) – all persons having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam
- American Indian or Alaskan Native (Not Hispanic or Latino) - all persons having origins in any of the original peoples of North or South America, and who maintain cultural identification through tribal affiliation or community attachment
- Two or More Races (Not Hispanic or Latino) – all persons who identify with more than one of the above races
This information is submitted voluntarily, will be kept confidential, will be exclusively utilized for EEO statistical gathering and compliance purposes, and will not influence the application or hiring process
EEO GUIDANCE, Inc./EEO Logic, LLC – www.eeologic.com
Updates to the New Racial Categories
(see the most recent (September 2005) update
at bottom of this paragraph)
The OFCCP and DOL has released the special EEO Tabulation
file from the 2000 Census. OFCCP is requiring all contractors
who use the special EEO Tabulation to begin using this new
data for all AAPs effective January 1, 2005 and later; however,
this has not been confirmed with written requirements. The
2000 census introduced a new set of race codes as well. In
order to be ready and compliant by January 1, 2005, it is
recommended that those who are required to report for federal
government purposes begin immediately tracking all personnel
transactions (applicants, hires, promotions, and terminations)
using the new race codes, and to prepare to re-poll their
workforce for race identification based upon these new codes.
Please note an important change to the definition of Hispanic:
Hispanic is now considered to be an ethnicity, not a racial
category. Employees and applicants will be allowed to select
1 or more races on the disclosure form. If an employee or
applicant indicates Hispanic ethnicity, they will be considered
"White Hispanic" for all tracking requirements if
they have also selected only White as a race. If an employee
or applicant indicates Hispanic ethnicity and any race combination
(including no race selections) other than White only, they
will be considered "Other Hispanic or Latino".
The New Race/Ethnicity Tracking Categories:
White Alone non-Hispanic
White Alone Hispanic
Black Alone non-Hispanic
American Indian/Alaskan Native Alone non-Hispanic
Asian Alone non-Hispanic
Native Hawaiian/Other Pacific Islander Alone non-Hispanic
Black & White non-Hispanic
American Indian/Alaskan Native & White non-Hispanic
American Indian/Alaskan Native & Black non-Hispanic
Asian & White non-Hispanic
Other 2+ Races or Some Other Race non-Hispanic
Other Hispanic or Latino
RELEASES NEW EMPLOYMENT LAW GUIDE FOR EMPLOYERS
September 2005 ~ The U.S. Department of Labor
(DOL) announced the availability of an
updated version of the Employment Law Guide. Located at
www.dol.gov/compliance/guide , this publication helps the
community, particularly small businesses, understand their
and responsibilities under the major federal employment laws
administered by the Department.
Updated to reflect
recent regulatory and statutory changes, the new
Employment Law Guide summarizes coverage, basic requirements,
employee rights, compliance assistance available and penalties
non-compliance for each of DOL’s most widely applicable
Written in plain language - not legalese - it is geared toward
employers needing introductory information to develop wage,
benefit, safety and health, and nondiscrimination policies
The Guide will be
available in print, for free, in October. To
order a copy, call DOL’s Toll-Free Help Line at 1-866-4-USA-DOL.
The Spanish version will be available online at
www.dol.gov/compliance/guide/ and in print later this fall.
EEOC WORKING ON SYSTEM FOR ELECTRONIC
FILING OF EEO-4
2005 ~ The EEOC (EEOC) approved a plan to develop
a system that
would allow public
employers to file their EEO-4 survey responses electronically.
The EEO-4 survey
is one of the series of Standard Form 100 documents
designed to collect demographic information about America's
workforce. While the EEO-1 form is used for private employers,
the EEO-4 form is used for state and local governments. EEO-1
forms must be filed each year. The public sector form is required
only every other year.
This is one of the
years governments will have to complete EEO-4
documents. In the past, forms were mailed to the Joint Committee
on Reporting in Virginia. While that is expected to remain
option, the EEOC says it wants to move to electronic submission
because it will save money for the agency. If the government
does not have to enter data sent in on paper documents, they
can eliminate a step in the data analysis process.
The Commission objective
is to have the new system ready to capture
this year's data which is due by September 30th. Government
entities should expect to receive more information with their
REVISES TIMELINESS GUIDELINES FOR FILING EMPLOYMENT
The Equal Employment Opportunity Commission last Thursday
guidelines on "threshold issues", addressing time limitations
charges of employment discrimination with the Commission.
Under the new guidelines, a discrimination charge's timeliness
for a discrete act or a hostile work environment claim. Now,
"a discrete act
is only independently actionable if it occurred within the
filing period. In
contrast, all of the incidents that make up the same hostile
claim are actionable as long as at least one incident occurred
filing period," according to an EEOC press release.
"This update to the EEOC's Compliance Manual clarifies an
of threshold issues in light of recent legal developments
. It explains how
the time frames are applied to discrete acts, such as failure
to hire or
termination, and to hostile work environment claims," said
EEOC Chairman Cari
The new guidelines conform to the Supreme Court's decision
Passenger Corp. v Morgan, 536 U.S. 101 (2002) and can be found
the EEOC's Compliance Manual at: http://www.eeoc.gov/policy/compliance.html
to Comply with the Americans with Disabilities Act: A Guide
for Restaurants and Other Food Service Employers
AND Questions & Answers About Persons with Intellectual Disabilities
in the Workplace and the Americans with Disabilities Act
Summary of these EEOC Guides can be found at their
Your Facility Qualify?
The EEOC has announced the Freedom to Compete Award, which
is associated with the Freedom to Compete Initiative - a national
outreach, education and coalition-building campaign to emphasize
the importance of providing free and unfettered access to
employment opportunities for all individuals. The initiative
was launched by Chair Cari Dominguez in 2002. Its central
theme is that employees and applicants deserve the opportunity
to compete on a level playing field, and advance in the workplace
as far as their talents and abilities will take them, without
regard to discriminatory barriers based on race, color, gender,
religion, national origin, age or disability. As part of the
initiative, the EEOC has been forging strategic alliances
and partnerships with CEOs, employer associations, and a cross-section
of other stakeholders to influence positive change in the
With this award, the EEOC seeks to showcase, recognize, and
reward specific practices and concrete activities that produce
results and reflect an abiding commitment to access and inclusion
in the workplace. The award will recognize excellence in the
implementation of specific equal employment opportunity practices
that the Commission believes can be emulated by other employers
or organizations. This distinguished award will honor individuals
and organizations whose extraordinary efforts embody the theme
of the Freedom to Compete Initiative.
For more information,
you can review the EEOC's website at: http://eeoc.gov/initiatives/compete/award/qanda.html
of resolution doesn't limit attorney's fees
An EEOC administrative judge correctly determined a tractor
operator was subjected to retaliation for asserting she was
sexually harassed. Further, the agency's offer of resolution
was invalid. Under 29 CFR 1614.109(c)(3), an agency may limit
its liability for attorney's fees if it makes an offer of
resolution at least 30 days prior to the hearing. Here, the
offer was invalid because it did not specify nonmonetary relief
and was made after the liability hearing. Pearman v. Department
of Defense, Department of the Navy, 104 LRP 56826.
COLLECTS $34.5 MILLION IN FISCAL 2004
The Office of Federal Contract Compliance Programs (OFCCP)
financial remedies of $34.5 million for victims of employment
discrimination during fiscal year 2004, an increase of 31
over the previous year. The financial remedies, which included
$10.7 million in back pay and interest, benefited some 10,400
minority, female, disabled, and
veteran workers, according to statistics released by the agency.
According to Charles James, Director of OFCCP, "We set out
after the worst of the worst and to help the most people --
achieved that goal. From an enforcement perspective, we had
year." The agency conducted 6,529 compliance evaluations during
fiscal year, ended September 30th. The number of evaluations
federal contractors was down from 7,700 a year earlier. However,
the evaluations covered 3 million workers -- up from 2.5 million
a year earlier and more than any in at least the past decade.
"We had a focus on larger cases and getting more people covered,"
IN EEOC AND OFCCP - Dec. 2004
OFCCP is putting out a call for nominations for their
two primary awards: EVE and EPIC ~ Does your business or
non-profit qualify? To find out more, go to this DOL website: http://www.dol.gov/esa/ofccp/ofawards.htm
BEGINS SENDING FCSS LETTERS TO CONTRACTORS
started mailing pre-scheduling notification letters to federal
Earlier this year, OFCCP announced the design of a new system
for determining which federal contractors would be audited
affirmative action and non-discrimination compliance. Although
the OFCCP has not explained specifics relating to the Federal
Selection System (FCSS), it has begun the implementation process.
Charles James, Director of the OFCCP, stated that the first
of more than 1,700 FCSS letters would be mailed to the contractors
suspected to have the most serious problems with either affirmative
action plan (AAP) compliance or Equal Employment Opportunity
compliance. The letters are simply notification to contractors
that one or more of their establishments could
be audited during the
coming calendar year. Mr. James reported that OFCCP has
identified more than 3,600 establishments for compliance reviews
during the current fiscal year which began October 1, 2004.
Mr. James has imposed a limit of 25 compliance reviews for
contractor in any single year. For smaller contractors with
one establishment, that will not be much of a help. Supposedly,
contractors who do not receive this notice will not be scheduled
for a review (although there is speculation that problems
such as a class action complaint may trigger an audit).
We recommendation is that you contact anyone in your
company who might receive the FCSS letter, to ensure it doesn't
slip through the cracks...then call us if you need assistance.
Better yet, contact us well before you receive the letter.
NEW items of interest to federal contractors
re: OFCCP are found below:
OFCCP'S EMPLOYMENT RESOURCE
November 16, 2004
- The Office of Federal Contract Compliance Programs (OFCCP)
has developed an Employment Resource Referral Directory that
lists governmental and
non-governmental not-for-profit organizations as references
to assist hiring of qualified applicants by contractors. The
directory is intended to enhance access to various programs
that assist in providing job referral services to veterans,
individuals with disabilities, women and minority groups.
The purpose is to facilitate contractor compliance, increase
the usefulness of resource organizations to the contractor
community and reinforce the OFCCP Linkage Program.
HOW DO I FIND A COPY OF THE DIRECTORY?
Below are the links to each OFCCP Region's portion of the
(These are PDF documents, so you will need to have Adobe's
PDF Reader installed on the machine you use to access the
* Mid-Atlantic Region
* Midwest Region <http://www.dol.gov/esa/ofccp/ERRD/errd_mw.pdf>
* Northeast Region <http://www.dol.gov/esa/ofccp/ERRD/errd_ne.pdf>
* Pacific Region <http://www.dol.gov/esa/ofccp/ERRD/errd_pac.pdf>
* Southeast Region <http://www.dol.gov/esa/ofccp/ERRD/errd_se.pdf>
* Southwest Region <http://www.dol.gov/esa/ofccp/ERRD/errd_sw.pdf>
that wishes to get on the Referral List should submit its
name, address and brief description of its goals and activities
to the OFCCP National Office. The address is provided below:
Employment Standards Administration
Office of Federal Contract Compliance Programs
200 Constitution Avenue, NW
Washington, DC 20210
You may also contact
OFCCP by sending an e-mail message to:
OFCCP-Public@dol.gov or by sending a fax. The Fax telephone
number is (202) 693-1304.
Contractor Affirmative Action (AAP) Job Group Availability
are required to establish AAP job groups and compare their
employment of minorities and women within those job groups
to the availability of minorities and women who are "available"
for employment. Job groups are jobs that are grouped based
on three factors: 1) similar wages; 2) similar job duties
and responsibilities; and 3) similar opportunities for training,
promotion, transfer, and other employment benefits. Each job
title in an establishment should be placed into a job group.
These are called "AAP Job Groups."
Smaller contractors (contractors with fewer than 150 employees),
however, may formulate their AAP job groups according to EEO-1
job categories. A description of and occupation examples in
each of the nine EEO-1 job categories are available on the
Equal Employment Opportunity Commission's website: www.eeoc.gov
In order to make the job group-availability comparison, federal
contractors must conduct availability analyses to determine
the percentage of women and minorities who have the skills
required to perform the jobs within the each job group. The
purpose of the availability analyses is to estimate the percentage
of minorities and women among those qualified for employment
for each job group. Availability involves calculation of minorities
and women who are "available" to work in the job
from both external sources (i.e., hired from outside the company)
and internal sources (e.g., transfer or promotion of existing
employee in the company).
For calculating "external" availability, you want
to consider who is qualified for the job within "the
reasonable recruitment area" for that job. The "reasonable
recruitment area" represents the area from which a contractor
usually seeks or reasonably could seek workers for a particular
job group. The reasonable recruitment area availability may
be determined using the Total Civilian Labor Force data (residence
geography data) reported in the Census 2000 Data Tool on the
Census Bureau website: http://www.census.gov/eeo2000/index.html
Please note that the regulation 41 CFR 60-2.14(d) require
contractors to use the most current and discrete statistical
data available in determining availability estimates. Census
data is one example of an appropriate source of statistical
information. Other sources include data from local job service
offices and data from colleges or other training institutions.
Internal availability involves the percentage of minorities
and women inside a contractor's workforce who are considered
promotable, transferable and trainable for a particular job
group. This means the percentage of minorities and women who
are in "feeder" jobs or job groups who are (at the
start of the AAP year), or who will become (during the AAP
year) promotable or transferable from a current job or job
group into another job group. This factor also requires an
assessment of the number of employees who could, with appropriate
training (that a contractor is reasonably able to provide),
become promotable or transferable during the AAP year.
OFCCP recommends weighting the external percentage factor
and the internal percentage factor by historical usage patterns
to reflect the proportion of incumbents hired or to be hired
from external sources and the proportion from internal sources.
For example, in entry job groups, you may always hire from
outside. The external factor will therefore become the entire
availability. For other job groups, you may have hired from
the outside 10% of the time over the last several years, but
promoted from the inside 90% of the time. Each of your availability
factors should then be weighted accordingly i.e., in our example
the external percentage is multiplied by 10% and added to
the internal percentage after it has been multiplied by 90%
to come up with a final availability percentage.
Small contractors that use the nine EEO-1 job categories as
their job groups, may wish to use the Census 2000 "EEO-1
Job Categories" link to determine their external availability
estimates. This link can be accessed via the Census 2000 Data
Tool at: http://www.census.gov/eeo2000/index.html
At the top of the page are several links under the heading
"Choose the Tables You Want To Display." Simply
click the fifth circle to select "Employment by EEO-1
Go to the second part of the page to Select Geography. The
screen defaults to "Residence: Data based on where people
live." This category presents civilian labor force data.
Click "Next" at the bottom of the page.
A new screen appears where you are directed to select one
of the following levels of geography (U.S. Total; States;
Metropolitan Areas; Counties; and Places 50,000+). The geographic
area you select must be based on the reasonable recruiting
area for the AAP job group under consideration. Small contractors
typically use the local area, a metropolitan area, a county
or sometimes the State depending on the reasonable recruiting
area for the specific job group. Make the selection that is
most appropriate for the job group.
For example, if you select the "Metropolitan Areas"
and then click "Next", you will see a list of metropolitan
areas. Select the one for your area and then click "Next"
Once the appropriate EEO-1 Job Category is selected, go to
the "Select Race Categories To Display" and click
the second circle indicating "Show White, Non-Hispanic/All
Others". After you have made your selection, click "Display
Table" at the bottom of the screen.
The new screen displays two tables. The top table displays
population data and the bottom displays percentages . Minority
availabity estimates may be determined using the percentages
reported for All others, including Hispanics. Female estimates
are displayed on the table.
Outsourcing EEO Technical Assistance Complaint Calls
The EEOC is running a pilot program to outsource its initial
intake function -- a key function that determines which complaints
will be investigated.
The EEOC awarded to Pearson Government Solutions a contract
for a pilot National Contact Center to begin operating in
spring 2005, following a six-month planning and training period.
The center is intended to enhance customer service in responding
to an estimated one million or more unsolicited inquiries
received by the Commission each year.
"Pearson Government Solutions is ideally equipped to
rapidly move the EEOC, in terms of public access and front
line communications, into the 21st century," said Commission
Chair Cari M. Dominguez. "By partnering with a company
prepared to deliver the outstanding service and cutting edge
technology options that our customers expect and deserve,
the Commission will vastly improve both our professional face
to the public and, in turn, our full range of operations.
Between Pearson's strong proposal and its impressive track
record, I am confident that we have made an excellent choice."
The EEOC website indicates: Through the National Contact Center,
the public will gain a central EEOC point of contact offering
expanded hours of operation (8:00 a.m. and 8:00 p.m. Eastern
Time); informed customer service personnel; support for up
to150 languages; an automated system with answers to frequently
asked questions accessible on a 24-hour basis; the ability
to submit inquiries via electronic mail; and the assurance
that inquiries will be tracked for follow-up. The center also
will be invaluable to the Commission in identifying and responding
to workplace trends and emerging patterns of employment discrimination.
Individuals requiring assistance beyond general information
will be referred to appropriate EEOC staff for counseling,
guidance, and action. Additionally, the establishment of a
National Contact Center will allow EEOC staff at headquarters
and 51 field locations to focus more on responsibilities relating
to charge intake, investigations, mediation, litigation, and
outreach to employers and employees.
Pearson's contract calls for a two-year trial at a cost of
$4.9 million. Under the terms of the contract, the National
Contact Center will provide employees who speak English and
Spanish and will sub-contract with interpreters who are fluent
in 148 other languages.
Opponents of the National Contact Center say that outsourcing
the first response of any law-enforcement agency will further
harm victims of workplace discrimination. Critics also question
whether the call-center employees who answer the phones will
be adequately trained in discrimination and civil-rights laws.
Pearson’s cost, critics contends, could have been spent
in-house to ensure an adequate first response. “Creating
a private centralized call center staffed with low-paid contract
workers who will serve as a first screen to victims of employment
discrimination will not help us serve …" said Stuart
J. Ishimaru, EEOC commissioner, when the EEOC voted in September
to approve the Pearson contract.
After Pearson’s two-year contract is up, the EEOC will
have the option of continuing the contract with Pearson for
three additional years.
can get Dept. of Labor Updates via E-mail
US Department of Labor is making an effort to get information
(laws, regulatory changes, etc.) to you timely through a free
e-mail subscription offer. To get signed up for this service
all you need is a minute or two and an e-mail address. Go
to the DOL website at: http://www.dol.gov/
- look to the right of the home page and click on "Subscribe
to E-mail Updates" - provide your e-mail address and a password
(if you wish). The site then asks you to sign up for specific
updates you would like to receive. I doubt you will want all
of them. This effort is the result of President Bush requiring
federal agencies to become more accessible to the public through
technology and the internet. Be sure to sign up and spread
the news to other companies and organizations.
EEO-1 Joint Reporting Committee Representative has indicated
the report for 2004 will NOT be changed.
The new categories for 2005 have not been published by EEOC.
Businesses should receive the 2004 EEO-1 forms in July and
they should be completed as usual on Sept 30th.
2000 Special EEO File (from DOL website) - March 2004
Notice on OFCCP's Use of Census 2000 Special EEO File
For Determining Reasonableness of Availability Determinations
One of the requirements of an affirmative action program is
determining availability of qualified minorities or women
for job openings. Availability is defined as "an estimate
of the number of qualified minorities or women available for
employment in a given job group, expressed as a percentage
of all qualified persons available for employment in the job
group." 41 CFR 60-2.14 (a). "The purpose of the
availability determination is to establish a benchmark against
which the demographic composition of the contractor's incumbent
workforce can be compared in order to determine whether barriers
to equal employment opportunity may exist within particular
job groups." Id. Job groups are groupings of "jobs
at the establishment with similar content, wage rates, and
opportunities." 41 CFR 60-2.12(b). "Similarity of
content refers to the duties and responsibilities of the job
titles which make up the job group. Similarity of opportunities
refers to training, transfers, promotions, pay, mobility,
and other career enhancement opportunities offered by the
jobs within the job group." Id.
OFCCP regulations further require that "[t]he contractor
must use the most current and discrete statistical information
available to derive availability figures." 41 CFR 60-2.14
(d). "Examples of such information include census data,
data from local job service offices, and data from colleges
or other training institutions." Id.
Contractors frequently use U.S. Census Bureau data to determine
availability and OFCCP relies on Census data to assess whether
a contractor's availability determination is reasonable. Because
OFCCP uses Census data it is part of a Federal Consortium
consisting of the Equal Employment Opportunity Commission
(EEOC), the Department of Justice, and the Office of Personnel
Management that entered into a reimbursable agreement with
the Census Bureau to construct the Census 2000 Special EEO
File according to specifications developed by the Consortium.
The Census 2000 Special EEO File was released to the public
on December 29, 2003. This data file, which contains information
on 472 occupations, is similar to comparable files from the
1970, 1980 and 1990 censuses.
The Census 2000 Special EEO File data is available under the
"Access to Data from the Special EEO Tabulation"
link on the Census Bureau's website at: http://www.census.gov/hhes/www/eeoindex.html
(cut and paste)
Contractors who use the Special EEO File to determine availability
may begin using data from the Census 2000 Special EEO File
immediately. However, OFCCP recognizes that some contractors
have already prepared their AAPs for 2004 based on earlier
census data, which was the most current data available at
the time they developed their AAPs. OFCCP will provide contractors
using Special EEO File census data time to update their AAPs.
OFCCP will expect all contractors who use census data to determine
availability estimates to use data from the Census 2000 Special
EEO file to complete their AAPs for 2005. OFCCP will begin
to use data from the Census 2000 Special EEO File to assess
the reasonableness of the contractor's availability determinations
beginning with AAP years that commence on or after January
to Government Agencies(1/2004):
AGENCIES HAVE 45
DAYS TO REIMBURSE JUDGMENT FUND WHEN MAKING PAYMENTS UNDER THE NO FEAR
ACT, AND MUST POST INFORMATION CONCERNING DISCRIMINATION COMPLAINTS BY
JANUARY 31ST, ACCORDING TO NEW OPM RULES
Transmittal Number: 262
DATE: March 17, 2003
OFCCP ORDER NO.: ADM Notice/JUR
SUBJECT: Coverage of health
care providers based on their relationship with
participants in the Federal Employees Health Benefits Program (FEHBP).
PURPOSE: To confirm that health care providers having a relationship with
FEHBP participants are not covered under OFCCP's programs based solely
on that relationship.
BACKGROUND: On January 31, 2003, the Administrative Review Board (ARB)
issued a final decision unfavorable to OFCCP and ordered that the agency's
Administrative Complaint be dismissed. The ARB upheld an earlier ruling
by the Administrative Law Judge concluding that the contract between OPM
and Blue Cross did not obligate Blue Cross to provide medical services
and supplies to government employees. Rather, the contract obligated Blue
Cross to provide health insurance. A copy of the ARB's decision is attached.
In October 1996, OFCCP filed an administrative complaint against Bridgeport
with the Office of Administrative Law Judges (ALJ) alleging that Bridgeport
had violated its contractual obligations under OFCCP regulations when
it refused to maintain and submit to OFCCP affirmative action plans (AAPs).
Bridgeport asserted that it was not required to maintain AAPs because
it was not a covered Federal subcontractor. OFCCP argued that Bridgeport
was a covered Federal subcontractor when Bridgeport provided medical services
and/or supplies to persons receiving health care benefits under a Blue
Cross plan. Blue Cross held a prime contract with the OPM under the Federal
Employees Health Benefits Program (FEHBP).
OFCCP regulations define a covered subcontract as an agreement (1) between
a prime contractor and a person for the purchase, sale or use of personal
property or nonpersonal services which are necessary in whole or in part
to the performance of the Government contract, or (2) under which any
portion of the contractor's obligation to the Government is performed,
undertaken or assumed. 41 CFR 60 1.3.
On cross motions for summary judgment, the ALJ, on January 21, 2000, ruled
in favor of Bridgeport, holding that the hospital was not a covered Federal
subcontractor. Specifically, the ALJ found that Bridgeport was not covered
under either OFCCP definition of subcontractor under 41 CFR 60-1.3. Bridgeport
held a reimbursement agreement with Blue Cross. Blue Cross was to pay
Bridgeport a predetermined fee when it supplied particular medical services
and/or supplies to Federal employees covered by Blue Cross health insurance.
The ALJ held that this type of reimbursement agreement between Bridgeport
and Blue Cross was not necessary for Blue Cross to fulfill its contractual
obligations to OPM to provide medical insurance to Federal employees,
nor did Bridgeport perform any portion of the Blue Cross/OPM prime contract.
OFCCP filed exceptions to the ALJ's decision.
On appeal, the ARB upheld the ALJ's recommended decision that OFCCP's
administrative complaint should be dismissed.
The ARB ruled that the prime contract between Blue Cross and OPM did not
obligate Blue Cross to provide medical services to Blue Cross policyholders,
but rather, that Blue Cross contracted with OPM to reimburse the policyholders
for medical care costs. The ARB did not, however, specifically address
whether Bridgeport's obligation to provide medical services to Blue Cross
enrollees was "necessary" to the performance of the Blue Cross/OPM
contract (to provide medical insurance), or whether it constituted partial
performance by Bridgeport of that prime contract. Unlike the ALJ, the
ARB expressly declined to address either subcontractor coverage issue,
ruling instead that those two questions did not have to be addressed on
appeal, not because OFCCP's first argument had failed, but because Blue
Cross was not obligated to OPM to provide its enrollees with medical care.
Based on the ARB decision, the Office of the Solicitor (NSOL) has advised
that OFCCP cannot establish subcontractor coverage of hospitals, pharmacies
or other medical care providers based on the existence of prime contracts
with Blue Cross or other FEHBP providers. Accordingly, NSOL, by memorandum
dated February 5, 2003, has instructed its regional offices to close twelve
pending agency enforcement referrals raising the Bridgeport coverage issue
and to return those files to OFCCP.
POLICY: Based on the ARB decision, OFCCP cannot use FEHBP coverage as
a basis to assert jurisdiction over a health care provider. Coverage over
such a provider may be established by other means such as a contractual
relationship with the U.S. Department of Veterans' Affairs or the Department
of Defense. Coverage may also be established for a teaching hospital doing
research for a university that has a contract with the Federal government.
If you have questions regarding coverage of a medical care provider during
the scheduling process you may contact the Division of Program Operations
(DPO) for further guidance and assistance.
Transmittal Number: 247
DATE: May 24, 2001
OFCCP ORDER NO.: ADM Notice/Other
SUBJECT: Outstanding Partnership
and Liaison (OPAL) Award.
PURPOSE: (a) To outline the criteria and nomination process for the OPAL
Award and (b) to solicit nominations for this award.
BACKGROUND: Beginning in 1992 the OFCCP presented an Industry Liaison
Group with an EVE Award during the EVE/EPIC/Opportunity 2000 Award Ceremony
to honor that group's commitment to equal employment opportunity in the
workplace, and to recognize its support of the goals and mission of OFCCP.
In 1996, the Deputy Assistant Secretary for OFCCP determined that the
ILGs should be awarded a different award from the EVE because they are
not Federal contractors or public interest groups and thus do not fall
within the eligibility criteria for the EVE/EPIC/ Opportunity 2000 Awards.
As a result, the Superior Achievement in Affirmative Action and Equal
Employment Opportunity Award was established to honor the accomplishments
of ILGs. This award became the Outstanding Partnership and Liaison (OPAL)
Award in 2000. The nominating criteria are designed to fit the mission,
objectives and goals of the Liaison Groups. Additionally, this award is
presented at the Annual ILG Conference, not at the EVE/EPIC/Opportunity
2000 Awards Ceremony.
AWARD CRITERIA: The following criteria apply to the Outstanding Partnership
and Liaison (OPAL) Award:
Nominee must show concrete accomplishments in the support of equal employment
opportunity which were achieved by specific activities or projects of
the ILG. The activity, for which the award is being sought, may be a single
activity, or a multi-faceted activities program, including community based
projects, directed towards changing the demographics of the workforce.
The activity or event being considered for the award must have a substantial
impact on enhancing equal employment opportunity. The activity should
be considered a "best practice" that can be modeled by others
to achieve positive results. It could be an educational activity if the
impact of that activity was demonstrable and substantial.
Nominees must have demonstrated activity by the ILG, which "supports
the mission of OFCCP" and made a substantial, positive contribution
to the public understanding of equal employment opportunity.
ELIGIBILITY CRITERIA: Nominee must be a local ILG and may be nominated
by an OFCCP Regional Director or may self-nominate. Self-nominations are
to be submitted to the OFCCP Regional Directors.
NOMINATION AND SUBMISSION GUIDELINES: The following are guidelines for
preparing the nomination document:
Nomination submissions should be limited to the relevant information and
should include the following data: nominee's accomplishments, how those
accomplishments promote equal employment opportunity, and the length of
time of the project.
Provide the following data on nominee: name and address of the group;
name, address and title of the highest ranking official; and the name,
address, title and telephone number of the contact person.
All nominations submitted to the National Office must be forwarded with
a cover memorandum from the Regional Director. The memorandum should explain
why the ILG is being nominated and should include appropriate support
data substantiating the justification for the nomination. All self-nominations
must be submitted to the appropriate Regional Director by June 5th of
each year, reviewed by the Regional Director and forwarded with a cover
memorandum and appropriate support documentation. Regional Directors will
submit nominations for this award to the Deputy Assistant Secretary for
Federal Contract Compliance, Attn: Director, Division of Management and
Administrative Programs no later than June 15th of each year. Submissions
should be addressed as follows:
Harold M. Busch
Acting Deputy Assistant Secretary
200 Constitution Ave., NW, Rm. C3310
Washington DC 20210
Attn: Director, DMAP
THE ADMINISTRATIVE PROCESS:
A team of OFCCP managers will review and evaluate each nomination. Upon
completion of this process, the team will make recommendations to the
Deputy Assistant Secretary who will make the final selection.
The nominee will be notified of their selection and provided with details
regarding the presentation of the award.
The ceremony will be held during the annual ILG Conference. Date and time
of the award presentation will be announced.
File in the Administrative Binder under "Other." The Transmittal
Sheet may be filed separately or discarded at your option.
Transmittal Number: 226
DATE: August 5, 1998
OFCCP ORDER NO.: ADM Notice
SUBJECT: Discontinuing the use of the Letter of
PURPOSE: OFCCP is discontinuing the use of the letter of commitment (LOC)
as a resolution document. The violations formerly incorporated into the
LOC will be summarized in the closure letter. Discontinuation of the LOC
will reduce burdens on OFCCP field staff because there will be no progress
reports to monitor for minor, technical issues.
BACKGROUND: Historically, when OFCCP uncovered violations during compliance
reviews (now one of four methods referred to as compliance evaluations,
41 CFR 60-1.20), a written agreement was used that provided for remedial
action to correct the violations and/or deficiencies noted. Two types
of agreements were used, conciliation agreements (CA) and letters of commitment
A CA is used to resolve material (major, substantive) violations of any
of OFCCP's three programs.
LOCs are different from CAs in that they are used to resolve minor technical
violations which are generally correctable onsite within ten to fifteen
working days after the compliance evaluation. Normally a show cause notice
has not been issued when a LOC is used to correct such minor violations.
SIGNIFICANT CHANGES: OFCCP will continue to use the conciliation agreement
as a resolution document. The attached Compliance Evaluation Closure Letter
for Minor or No Violations replaces the LOC referred to in Chapter 8,
Section 8E of the Federal Contract Compliance Manual (FCCM), as well as
the Notice of Review Completion - Minor Deficiencies resolved in a Letter
of Commitment, Figure 8-15, and addressed in Section 8B03(g)(2). It also
replaces the letters currently used for review completion for supply and
service and construction reviews when no deficiencies have been identified.
Those letters are found at the end of Chapters 3 and 4 of the FCCM (Figures
3-5 and 4-2, respectively).
The closure letter which accompanies this Notice is to be used when there
is no show cause notice and when any minor deficiencies are corrected
and incorporated into the AAP, as appropriate, within ten to fifteen working
days. A different version of the letter is to be used when there are no
violations found during a compliance evaluation. The Compliance Evaluation
Closure Letter for Minor or No Violations is to be signed by the DD or
OFCCP anticipates making additional changes to the Manual over the next
several months. During that process we will modify the numerous references
to the LOC throughout the Manual. In the interim, disregard the references
to the LOC; the Notice of Review Completion - Minor Deficiencies Resolved
in a Letter of Commitment; the Notice of Review Completion Format, No
Deficiencies Found (Supply and Service); and the Letter of Review Completion
Format, No Deficiencies Found (Construction) that are currently in the
FILING INSTRUCTIONS: Whether any work at the facility directly or indirectly
supports or contributes to the satisfaction of the work performed on a
Holders of ADM and LEG Binders only: File this Notice with the attachment
behind the "Other" tab in your Administrative Practices Binder.
District and Area Office EOSs and EOAs only: File this Notice with the
attachment behind the tab for ADM Directives in your FCCM Binder.
OBSOLETE DATA: Letters of commitment and references to letters of commitment.
ATTACHMENTS: Compliance Evaluation Closure Letter for Minor or No Violations.
COMPLIANCE EVALUATION CLOSURE LETTER
FOR MINOR OR NO VIOLATIONS
(Name of CEO)
(Title of CEO)
(City, State, Zip Code)
Dear (Name of Contractor Official):
Our recent compliance evaluation of your equal employment opportunity
policies and practices at (name and location of the establishment reviewed)
has been completed.
Select either Paragraph 2 or Paragraphs 3 and 4
During this compliance evaluation process we found no apparent deficiencies
or violations of Executive Order 11246, as amended, Section 503 of the
Rehabilitation Act of 1973, as amended, or the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended (38 U.S.C. 4212). This determination
may be modified by the Regional Director, or by the Deputy Assistant Secretary
for Federal Contract Compliance, within 45 days of the issuance of this
During this compliance evaluation process we identified and resolved the
following violation(s): [identify the minor violation(s) resolved during
the review, including the appropriate regulatory citation and specific
remedy]. Your representative, [name of company representative and title],
agreed to future compliance on [date of verbal agreement with company
representative], and incorporated corrective actions into your affirmative
action program where appropriate. It is expected that this/these failure(s)
to comply with the regulatory requirements will not be repeated. If they
are repeated, we may determine that you have violated the Equal Opportunity
Clause and initiate appropriate enforcement action. Based on these assurances
by your representative, the review of your facility is closed.
We found no additional apparent violations of Executive Order 11246, as
amended, Section 503 of the Rehabilitation Act of 1973, as amended, or
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended
(38 U.S.C. 4212). This determination may be modified by the Regional Director,
or by the Deputy Assistant Secretary for Federal Contract Compliance,
within 45 days of the issuance of this letter.
The Office of Federal Contract Compliance Programs sincerely appreciates
the cooperation and courtesies extended by you and your staff during the
conduct of the compliance evaluation.
cc: (as appropriate)
Transmittal Number: 230
OFCCPORDER NO.: FCCM NOTICE CH 2
SUBJECT: Evaluation procedures: compliance
review, focused review, off-site review of records and compliance checks.
PURPOSE: To revise the Federal Contract Compliance Manual (FCCM) to include
guidance on some of the compliance evaluation procedures authorized under
41 CFR 60-1.20(a), 60-250.60(a), and compliance reviews under 60-741.60.
BACKGROUND: The regulations implementing Executive Order 11246 at 41 CFR
60-1.20 authorize OFCCP to conduct compliance evaluations to determine
if the contractor maintains nondiscriminatory hiring and employment practices
and is taking affirmative action to ensure equal employment opportunity.
A final rule revising the regulations implementing the Vietnam Era Veterans'
Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, published on November
4, 1998, also adopts the compliance evaluation approach (63 FR 59630).
The VEVRAA compliance evaluation procedures, which are found at 41 CFR
60-250.60, are effective January 4, 1999. The regulations implementing
Section 503 at 41 CFR 60-741.60 do not yet specify the compliance evaluation
approach found in 60-1.20 and 60-250.60. However, in the near future OFCCP
intends to revise the Section 503 regulations to include the compliance
evaluation approach, thereby conforming the provisions contained in the
Section 503 regulations to 41 CFR 60-1.20 and 60-250.60.
The regulations at 41 CFR 60-1.20 and 60-250.60 provide that a compliance
evaluation may consist of any one or a combination of the following investigative
procedures: a compliance review; an off-site review of records; a compliance
check; and a focused review.
Procedures for the compliance check evaluation method are set forth in
Chapter 2T. Included in this attachment is a one page revision to the
compliance check procedures issued September 10, 1998. The documentation
collected when conducting a compliance check is requested under 41 CFR
60-1.12 and not under 60-250 or 60-741. Therefore, this page contains
technical corrections to reflect this.
The regulations implementing Section 503 at 41 CFR 60-741.60 authorize
OFCCP to conduct compliance reviews to determine whether the contractor
is complying with its nondiscrimination and affirmative action obligations.
Section 60-741.60 provides that the compliance review shall consist of
a comprehensive analysis and evaluation of all relevant hiring and employment
practices. The regulations implementing Section 503, however, do not contain
rigid requirements regarding the scope and content of a compliance review.
The current regulations at 41 CFR 60-741.60 do not require OFCCP to conduct
a complete onsite review of every contractor selected for a compliance
review. Thus, a compliance review under Section 503 could be completed
without an onsite review, if a determination can be made about the contractor's
compliance based upon an analysis and evaluation of the documentation
submitted for the desk audit. Likewise, if an onsite review is required
in order to evaluate the contractor's compliance with the nondiscrimination
and affirmative action requirements of Section 503, that onsite review
could focus on one or two issues.
Although the current terminology in the Section 503 regulations differs
from that used in the Executive Order and 38 U.S.C. 4212 regulations,
parallel procedures will be used to evaluate contractor compliance under
all three laws enforced by OFCCP.
All compliance evaluations, except compliance checks, will begin with
the scheduling of a compliance review. In most cases, the results of the
desk audit will determine whether an onsite review is warranted.
A compliance review may: 1) close after the desk audit 2) continue with
an onsite review that is focused on one or two issues, and/or 3) continue
with an onsite review that involves an examination of several issues.
A small percentage of those contractors whose evaluations would normally
close at the desk audit stage will be scheduled for complete compliance
reviews. These contractors will be identified at the district office level
in accordance with neutral selection procedures distributed under separate
cover. The reason for conducting these neutrally selected, complete compliance
reviews is to help ensure the integrity of the program by allowing OFCCP
to verify the accuracy of information submitted by contractors.
COMPLIANCE REVIEW INFORMATION SYSTEM (CRIS)
PROCEDURES:The Compliance Review Information System (CRIS) is being revised
to allow the agency to track the four investigative procedures used to
evaluate contractor compliance. Further CRIS instructions will be issued
under separate cover.'
For copies of the procedures, check out the OFCCP link on this site, or
Transmittal Number: 227
OFCCPORDER NO.: FCCM NOTICE CH 2
SUBJECT: Investigative procedures: compliance check
PURPOSE: To revise the Federal Contract Compliance Manual (FCCM) to establish
procedures for one of the compliance evaluation procedures authorized
under 41 CFR 60-1.20(a).
BACKGROUND: In recent amendments to Parts 60-1 and 60-60, OFCCP removed
rigid requirements outlining the content and scope of compliance reviews
from the regulations and adopted a new approach to developing compliance
evaluation procedures. The new regulations provide at 41 CFR 60-1.20(a)
that OFCCP may evaluate compliance through one or a combination of methods.
However, OFCCP declined to establish detailed procedures for implementing
the new compliance evaluation methods in the regulations, reasoning that
it is more appropriate for the agency to establish the procedures through
amendments to the FCCM. 62 Fed. Reg. 44180 (August 19, 1997).
The FCCM amendments made through this transmittal are the first procedures
established under the new compliance evaluation authority. They will be
utilized to inspect certain records contractors are required to maintain
under the record retention requirements at 41 CFR 60-1.12(a)and (b). The
records contractors are required to retain under this section include,
among other things, records pertaining to requests for reasonable accommodation,
job advertisements and postings, copies of their AAPs and documentation
of good faith effort for the preceding AAP year. These procedures for
inspection of records onsite are established under the “compliance
check” compliance evaluation method authorized by section 60-1.20(a)(3).
- 1 -
All contractors selected for a compliance check will be sent a scheduling
letter (Figure 2-4) which informs them of the laws enforced by OFCCP,
and advises them of OFCCP’s upcoming inspection of data. Contractors
are asked to have available for inspection information identified in the
letter. The enclosure to the letter is an informational summary highlighting
important obligations of Federal supply and service contractors under
the laws enforced by OFCCP.
Scope of the Compliance Check:
The compliance check consists of an inspection of a limited number of
records. The Compliance Officer is not reviewing data for reasonableness
or acceptability, but is inspecting to ensure the contractor has maintained
some of the required records in accordance with 41 CFR 60-1.12.
Compliance Check Control Sheet:
When sending out the scheduling letter the Compliance Officer will begin
to fill out the compliance check control sheet (Figure 2-7). An electronic
version of this form will also be used for the case management tracking
Compliance Check Closure:
All compliance checks will be closed with a closure letter (Figure 2-5).
The letter specifies the finding of the compliance check, i.e. whether
the contractor made available for inspection all the data requested in
the scheduling letter. Contractors which fail to allow access to their
facilities will be notified that they will be selected for another form
of compliance evaluation.
- 2 -
5. INSTRUCTIONS: From Manual Chapter
2, remove and discard pages v, 2-65/2-66, 2-71, 2-72/2-73, 2-74/2-75 and
2-76 and insert in their place the attached pages v, 2-65/2-66, 2-66a/2-66b/2-66c,
2-71/2-72, 2-74/2-75, 2-76/2-77, 2-78/2-79, 2-80, 2C-1/2C-2, 2C-3/2C-4
and 2C-5/2C-6. Note that pages 2-65 and 2-71 are unchanged, but are printed
on the reverse side of pages which have been changed or which have included
in the Manual for the first time. The current pages 2-72 through 2-76,
which are being discarded, are the index to Chapter 2. Pages 2C-1 through
2C-6 are the replacement pages for the index, and they should be inserted
in the FCCM at the end of Chapter 2. The index pages were replaced because
it was necessary to assign new page numbers to the index pages. The replacement
pages 2-71 through 2-80 should be inserted in Chapter 2 immediately following
To view attachments to this Directive, go to:
Transmittal Number: 260
OFCCPORDER NO.: ADM Notice - Separate Facility Exemptions/Waivers
SUBJECT: Separate Facility Exemptions/Waivers.
PURPOSE: To identify the factors that will be considered by the Deputy
Assistant Secretary when deciding whether to grant separate facility exemptions/waivers
from the requirements of Executive Order 11246 and the affirmative action
provisions of the Vietnam Era Veterans' Readjustment Assistance Act of
1974, and the procedure for considering requests for such exemptions/waivers.
BACKGROUND: The regulations implementing Executive Order 11246, and the
affirmative action provisions of VEVRAA, provide for an exemption from
the requirements of their laws for facilities of a contractor that are
not connected to the performance of a Government contract. Specifically,
the regulations implementing EO 11246 authorize the Deputy Assistant Secretary
to grant an exemption for "any of the prime contractor's or subcontractor's
facilities which he finds to be in all respects separate and distinct
from activities of the prime contractor or subcontractor related to the
performance of the contract or subcontract," provided that there
is also a finding that such an exemption "will not interfere with
or impede the effectuation of the order." 41 CFR 60-1.5(b)(2).
Similarly, the regulations implementing the affirmative action provisions
of VEVRAA allow the Deputy Assistant Secretary to grant separate facility
waivers based on the same general standards. 41 CFR 60-250.4(b)(3).
Under both the regulations implementing EO 11246 and the affirmative action
provisions of VEVRAA, the contractor is responsible for providing sufficient
information for the Deputy Assistant Secretary to find that: 1) the facility
for which an exemption is sought is in all respects separate and distinct
from activities of the contractor related to the performance of a Government
contract; and 2) such an exemption/waiver will not interfere with or impede
the effectuation of EO 11246 or the affirmative action provisions of VEVRAA.
This directive identifies the factors that the Deputy Assistant Secretary
will consider in deciding whether the contractor has sufficiently demonstrated
that it meets the general standards for a separate facility exemption/waiver
under EO 11246 and the affirmative action provisions of VEVRAA.
Historically, OFCCP has narrowly interpreted the exemption and waiver
provisions and has granted requests for exemptions only in rare and compelling
circumstances. OFCCP intends to continue this practice when considering
requests for separate facility exemptions/waivers under EO 11246 and the
affirmative action provisions of VEVRAA.
POLICY: The Deputy Assistant Secretary may grant a separate facility exemption/waiver
from the requirements of EO 11246 or the affirmative action provisions
of VEVRAA, based on a finding that: 1) the facility is in all respects
separate and distinct from activities of the contractor related to the
performance of its Government contract; and 2) such an exemption/waiver
will not interfere with or impede the effectuation of the Order or the
The Deputy Assistant Secretary's finding as to whether the facility for
which an exemption/waiver is sought is separate and distinct from the
performance of the contractor's Government contracts shall be based upon
a consideration of the following factors:
Whether any work at the facility directly or indirectly supports or contributes
to the satisfaction of the work performed on a Government contract;
The extent to which the contractor derives benefits from a Government
contract, directly or indirectly, at the facility to be exempted;
Whether any costs associated with operating the facility are charged to
a Government contract;
Whether working at the facility for which an exemption/waiver is sought
is a prerequisite for advancement in job responsibility or pay at facilities
connected to a Government contract; and whether working at facilities
connected to a Government contract is a prerequisite for advancement in
job responsibility or pay at the facility for which an exemption/waiver
Whether employees who normally work at the facility are required to perform
work related a Government contract at another facility;
Whether the facility regularly or substantially transfers employees to
or from facilities at which a Government contract is performed;
Such other factors that the Deputy Assistant Secretary deems are necessary
or appropriate for considering whether the facility is in all respects
separate and distinct from the activities of the contractor related to
the performance of a contract.
Other factors could include the number of facilities connected to the
contractor's Government contracts and the nature of the contractor's contractual
relationship with the Government.
Example: A Government agency seeks to enter into a contract with a company
that has several hundred retail stores nationwide. Employees from the
company's corporate office would perform the work on the contract and
the total costs of the services would not exceed $65,000. The proposed
contract would be in effect for a 6-month period. Under the regulations
implementing EO 11246, the company would be required to develop and maintain
written affirmative action programs for all of its establishments, including
its retail stores. The company has requested an exemption from the requirement
to develop and maintain written AAPs for its retail stores. In deciding
whether the retail stores are separate and distinct from activities related
to the proposed Government contract, the Deputy Assistant Secretary considers
the total number of establishments connected with the proposed Government
contract and nature of the contractual relationship.
The Deputy Assistant Secretary's finding as to whether granting the request
for the separate facility exemption/waiver will interfere with or impede
the effectuation of EO 11246 or the affirmative action provisions of VEVRAA
shall be based upon a consideration of the following factors:
Whether the waiver will be used as a subterfuge to circumvent the contractor's
obligations under federal, state, or local equal employment opportunity
The contractor's record of compliance with Federal, State or local equal
employment opportunity laws; and
Such other factors that the Deputy Assistant Secretary deems are necessary
or appropriate for; considering whether the granting of the exemption/waiver
would interfere with or impede the effectuation of either the Executive
Order or the affirmative action provisions of VEVRAA.
PROCEDURES: A contractor desiring a separate facility waiver/exemption
must submit a written request to the Deputy Assistant Secretary. The contractor
must reasonably demonstrate that its circumstances meet the standards
for a separate facility exemption/waiver. OFCCP will not seek to make
unduly burdensome information requests in the process of considering an
exemption/waiver request. Contractors seeking such an exemption/waiver
must be prepared to submit information and materials in support of the
request, and that will allow the agency to understand the rationale for
granting its request. Otherwise, OFCCP ,will deny the request.
OFCCP will act with reasonable promptness in considering a contractor's
request for an exemption/ waiver. Although no strict deadline can be established
for OFCCP's consideration of such requests, in light of their variability,
the agency will normally issue a decision within ninety (90) days of the
contractor's submission of the necessary information.
The exemption/waiver shall be conditioned upon the contractor promptly
notifying OFCCP of significant changed circumstances pertaining to the
work at the facility covered by a separate facility exemption/ waiver
and the performance of its Government Contracts. Specifically, the contractor
shall advise OFCCP of significant changed circumstances relating to the
factors enumerated in paragraph 4, above, and considered by the Deputy
Assistant Secretary in granting the separate facility exemption/waiver.
Based upon the information provided by the contractor or any other relevant
information, the Deputy Assistant Secretary will determine whether the
separate facility exemption/waiver should continue.
The Deputy Assistant Secretary will terminate an exemption/waiver upon
sixty (60) days written notice to the contractor, based on a determination
that the facility no longer meets the standards for a separate facility
exemption/waiver. Once the termination of the exemption/waiver is effective,
OFCCP will afford the contractor 120 days to develop affirmative action
programs for facilities covered by the terminated exemption.
OFCCP will require the contractor to certify in writing every three years
that there has been no changed circumstances affecting the separate facility
When a facility covered by a separate facility exemption/waiver gets a
Government contract, or performs work that directly contributes to the
satisfaction of a Government contract, the exemption/waiver for the facility
automatically terminates. The contractor shall notify OFCCP when facility
covered by a separate facility exemption/waiver gets a Government contract
or when Government contract work has been shifted to the exempted facility.
The contractor will have 120 days from the commencement of the Government
contract work at the exempted facility to develop an affirmative action
Transmittal Number: 254
Affirmative Action Programs (AAPs)
PURPOSE: To establish the procedures for processing contractor requests
for agreements to use AAPs that are based on functional or business units.
ORIGINATOR: Division of Policy, Planning, and Program Development
BACKGROUND: The Final Rule published on November 13, 2000, (65 Fed. Reg.
68022), added a new provision to permit contractors to develop an AAP
that is organized around a business function or line of business, that
need not take into account the geographic locations of the establishments
and employees. The new regulation at 41 CFR 60-2.1(d)(4) provides:
If a contractor wishes to establish an affirmative action program other
than by establishment, the contractor may reach agreement with OFCCP on
the development and use of affirmative action programs based on functional
or business units. The Deputy Assistant Secretary, or his or her designee,
must approve such agreements. Agreements allowing the use of functional
or business unit affirmative action programs cannot be construed to limit
or restrict how the OFCCP structures its compliance evaluations.
Under the new regulation, "functional AAPs", as they are sometimes
called, are authorized when the contractor has reached an agreement with
OFCCP and the Deputy Assistant Secretary has approved the functional AAP
The new regulation also makes it clear that while OFCCP may enter into
an agreement allowing a contractor to use functional AAPs, the agency
will not negotiate how compliance evaluations will be conducted.
In the absence of an approved agreement required under 41 CFR 60-2.1(d)(4),
the regulations require contractors to develop and maintain AAPs for each
of their establishments, i.e., a separate AAP for each physical location.
Some multi-establishment contractors may find it appropriate to develop
AAPs based on functional or business units. Other contractors, however,
will continue to develop and maintain establishment-based AAPs.
Any multi-establishment supply and service contractor subject to AAP requirements
may request an agreement that would allow for the development and use
of AAPs based on functional or business units.
The functional AAP agreements that are permitted under 41 CFR 60-2.1(d)(4)
are to be distinguished from agreements for Standard Affirmative Action
Formats (SAAFS). The regulation at 41 CFR 60-1.20(e) provides that contractors
may reach agreement with OFCCP on a standardized AAP format that would
be used by the contractor in all establishments. A contractor that has
a SAAF agreement still develops an AAP for each establishment, but OFCCP
and the contractor have agreed upon the AAP format that will be used for
each AAP component such as job groups, availability analyses, and goal
DEFINITION: The term "functional AAP" as used throughout this
Administrative Notice refers to the development and preparation of an
AAP based on clearly distinct functional or business units within a corporate
structure as opposed to an AAP based solely on physical location.
A functional or business unit is a component of a company that operates
somewhat autonomously. For instance, a functional or business unit may
have its own managing official; it may be listed separately on a company's
organizational chart; and/or it may operate under separate cost centers.
A functional or business unit may also have personnel transactional activities
(e.g., applicant flow, hires, promotion, terminations, etc.) that are
distinguishable from other parts of the company.
POLICY: This Administrative Notice transmits the procedures for processing
and approving a contractor request for a functional AAP agreement. This
Notice will remain in effect until a further Notice is issued.
A functional AAP agreement may be implemented after the contractor has
received the written approval of the Deputy Assistant Secretary for Federal
Contract Compliance (DAS), or his or her designee.
After 120 calendar days from OFCCP's confirmed receipt of the contractor's
request, if OFCCP has neither approved nor disapproved the contractor's
request for a functional AAP agreement, the request will be deemed approved
by the DAS and may be implemented 120 calendar days after the date OFCCP
received the written request.
A functional AAP agreement must cover the contractor's entire workforce.
However this does not mean that the entire workforce must be covered by
functional AAP(s). In some cases it may be appropriate for a contractor
to use both functional AAP(s) and establishment-based AAP(s).
For example, a contractor with three establishments submits a request
for a functional AAP agreement. The establishments are located in different
States, and each location has both a Marketing and a Research function.
The contractor requests permission to develop two functional AAPs, one
for the Marketing employees and one for Research employees. The functional
AAP agreement would permit the contractor to develop and to implement
two functional AAPs (Marketing and Research) regardless of their geographic
location, and separate establishment-based AAPs covering all other employees
at the different locations.
Each functional AAP of a contractor must be based on an actual functional
or business unit.
When a contractor with an approved functional AAP agreement so significantly
changes its structure so as to alter the functions upon which the original
functional AAP agreement was based (e.g., a merger, acquisition, downsizing
or reorganization that would result either in the elimination of certain
functions that were included in the original functional AAP agreement
or the addition of new functions), the contractor will immediately notify
the DAS of the change(s) in writing. The contractor should also include
sufficient information to determine whether the agreement should be modified
or amended based upon the changed circumstances. The DAS will then determine
whether it is necessary to amend or modify the functional AAP agreement.
Failure to provide notification of significant changed circumstances may
result in termination of the functional AAP agreement.
Either party may terminate the functional AAP agreement upon 90 calendar
days written notice. The notice will provide a brief explanation of the
reason(s)for the termination, and the effective date of the termination.
Notwithstanding the notice of termination provided in 6(e) above, functional
AAP agreements will expire five years after the date of approval.
The contractor may request that the agreement be renewed for another five-year
term. The renewal request is to be submitted to the DAS at least 120 calendar
days prior to the expiration of the functional AAP agreement. The request
from the contractor that the agreement be renewed for another five-year
term will be deemed accepted by OFCCP unless rejected in writing within
60 calendar days of receipt.
A functional AAP agreement will not relieve a contractor of its obligation
to comply with OFCCP's regulations, policies and procedures. OFCCP will
not negotiate its procedures for determining compliance with its regulations.
A functional AAP agreement may not contain provisions limiting access
or the manner and means by which compliance evaluations will be initiated
or conducted. Such issues are not negotiable.
OFCCP will use the information that the contractor provides in support
of its request for a functional AAP agreement solely for the purpose of
evaluating the request.
OFCCP will treat the information the contractor provides in support of
a request for a functional AAP agreement as sensitive and confidential
to the maximum extent possible under the Freedom of Information Act (FOIA),
with the same disclosure safeguards that are applied to Affirmative Action
Program data that are of a sensitive or confidential nature.
A request for permission to use functional AAPs that was submitted prior
to the issuance of this directive will be considered received by OFCCP
on the date this directive is issued. OFCCP will provide written acknowledgement
of a request. If a contractor had requested permission to use functional
AAPs prior to the issuance of this directive and has not received a written
acknowledgement from OFCCP within 30 calendar days from the date this
directive is issued, the contractor should contact OFCCP.
CONTRACTOR CRITERIA: The criteria the OFCCP will use in evaluating a request
for a functional AAP will be whether the contractor operates with distinct
functional or business units.
MANDATORY COMPONENTS OF A FUNCTIONAL AAP: A functional AAP must include
the components that are prescribed in the regulations in 41 CFR Part 60-2
and as enumerated in items a-i, below. All AAP components, however, will
be based on functional or business units rather than an establishment.
An organizational profile, as required under 41 CFR 60-2.11.
A job group analysis and the placement of incumbents in job groups, as
required under 41 CFR 60-2.12 and 60-2.13, respectively.
The availability determinations required under 41 CFR 60-2.14, along with
a description of the methodology used to determine availability for the
job groups covered by the proposed functional AAP(s).
A comparison of incumbency to availability in an acceptable format, as
required under 41 CFR 60-2.15.
Placement goals, if applicable, and a description of the contractor's
methodology for goal setting as required under 41 CFR 60-2.16.
Designation of the responsibility for implementing the functional AAP(s)
as required under 41 CFR 60-2.17(a).
A description of the in-depth analyses of the employment process that
were conducted to determine whether impediments to equal employment opportunity
exist, and a list of the problem areas identified, as required under 41
A description of the action-oriented programs that will be implemented
to correct any problem areas identified and to establish goals and objectives,
as required under 41 CFR 60-2.17(c).
A description of the internal audit and reporting systems that are used
to measure the effectiveness of the AAP, as required under 41 CFR 60-2.17(d).
PROCEDURE: OFCCP desires that the process for approval of a functional
AAP agreement be simple and fluid - a collaborative effort in which OFCCP
and the contractor work together to process the functional AAP request
in an expeditious manner consistent with OFCCP policies and procedures.
A contractor desiring a functional AAP agreement must submit a written
request to the DAS briefly explaining why it believes that use of a functional
AAP would be most appropriate for its particular corporate structure.
The contractor will also designate a corporate contact person with telephone
number in this correspondence. This person must have the authority, resources,
and support of top management to ensure the effective implementation of
the functional AAP.
The request for a functional AAP agreement must be submitted at least
120 calendar days prior to the expiration of the current corporate headquarters
After receipt of the written request, OFCCP will provide written acknowledgement
of the request within two weeks to the designated corporate contact person.
If needed, OFCCP will schedule an initial meeting or a conference call
between OFCCP and the contractor to discuss the functional AAP request.
Members of an OFCCP Coordination Support Team (CST), discussed below,
and corporate representatives will attend the initial meeting or participate
in the conference call.
Prior to the initial meeting or conference call, the contractor will advise
OFCCP (through its CST contact person) of the names and positions of the
persons representing the contractor during the discussions.
In order to aid OFCCP in determining whether a contractor operates with
distinct functional or business units, the contractor's representatives
attending the initial meeting or participating in the conference call
should be prepared to discuss the following areas:
location of the facilities (or establishments) where the employees perform
how the company is organized within each functional or business unit (e.g.,
a discussion of the various divisions or departments within the corporate
the reporting hierarchy within each such functional or business unit;
the total number of employees within the contractor's workforce;
the total number of employees within each functional or business unit
and the identification of the managing official of each functional or
the total number of employees not covered by functional AAP(s) that are
covered in establishment-based AAP(s);
a description of the personnel processes (including recruitment, hiring
and promotion) as they apply to each unit; and
any other information the contractor believes would further assist OFCCP
in understanding its corporate structure, procedures and need for a functional
During the initial meeting or conference call between CST and the contractor's
representatives, a discussion regarding the preparation of the mandatory
components, e.g., job group construction and the appropriate methodology
for determining availability, will also take place.
Every effort will be made during the initial meeting or conference call
to gather sufficient information regarding the contractor's corporate
structure and need for a functional AAP agreement. However, additional
information may be necessary after the initial meeting or conference call
for OFCCP to make a final determination on the contractor's request.
National and Regional Office Responsibilities:
Coordination Support Team: The DAS will appoint a Coordination Support
Team (CST) to work with the contractor's designated representatives to
coordinate the development of an acceptable functional AAP agreement.
The CST may include representatives from OFCCP's Division of Program Operations,
the Division of Policy, Planning and Program Development, and the Regional
Office in which the contractor's corporate headquarters is located.
The relationship between the contractor and CST will be a cooperative
effort between the two to develop an instrument reflective of the contractor's
actual corporate structure and conducive to OFCCP's compliance evaluation
DAS Approval: If the contractor and CST reach an agreement, a copy of
the proposed functional AAP agreement will be sent to the DAS for review
and approval. The DAS may submit questions and comments to the CST, and/or
consult with the relevant Regional Director. If final approval is granted
by the DAS, a copy of the signed agreement will be sent to the contractor.
In addition, copies of the signed agreement materials will be sent to
each Regional Office for distribution to its district offices as appropriate.
If the DAS rejects the proposed agreement, it will be returned to the
CST who will work with the contractor to address and resolve any concerns
about the proposed agreement. After the issues are resolved, the proposed
agreement will be resubmitted to the DAS.
IMPLEMENTATION: Until the functional AAP agreement is approved, the contractor
must continue to develop and maintain AAPs for each establishment.
SUPPORT THE GUARD AND RESERVE
military personnel put their lives on the line in defense of
freedom, it is nice to know that a great many American employers
are extending to them and their families full (extra) support. Many
gone beyond the legal requirements and extended their employees
support through corporate policy, even in these very tough economic
The Employer Support of the Guard and Reserve (ESGR) that has assembled
of employers who have gone over and above what the law requires
offer their employees the help they need while they are away defending
If you would like to see that list go to:
your organization is extending benefits or continuing payroll
checks for your employees who are on military leave, let the ESGR
know so your organization can be added to the list.
Court to Clarify Sexual Harassment
The Supreme Court agreed Monday to clarify when employers can be sued
for sexual harassment, in a case involving a Pennsylvania woman who claims
male bosses told her dirty jokes and urged her to perform sex acts. Nancy
Drew Suders quit her state police dispatcher job after enduring persistent
harassment, including one boss who talked about man-on-animal sex and
oral sex, and another supervisor who called her "Momma" and
repeatedly acted out a sexually provocative wrestling stunt, she said.
Her supervisors said she was disorganized, often late for work and overwhelmed
by the duties.
Suders' case raises an employment question that the Supreme Court never
has decided -- whether people who voluntarily quit their jobs and then
claim harassment have the same legal rights as those who are fired. Suders
argues that the category should include people who feel as if they have
no choice but to resign, and then sue later for harassment. Businesses
fear a the court will open the gates for additional lawsuits.
Suders sued under the 1964 Civil Rights Act and other laws claiming she
was discriminated against based on her age, sex and political affiliation.
The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that Suders
could pursue her lawsuit. The Supreme Court will hear arguments next spring
in the state of Pennsylvania's appeal and issue a ruling before July.
DUE DATE - 2003
with contracts of $25,000 or more file the VETS-100 forms each year by
September 30 to report the number and job classifications of veterans
employed. However, this year the date was extended. According to the DOL
Veterans' Employment and Training Service, the VETS-100 forms for 2003
are due on October 31.
As always, filing
instructions and the 2003 form are now available at www.vets100.cudenver.edu
~ the filing address for the VETS-100 has changed to 4200 Forbes Blvd.,
Suite 202, Lanham, MD 20706. Questions can be directed through this website
or directly through the VETS-100 Help Desk at 301-306-6752 or email to
CHANGES For Government Agencies:
Issues New Guidance to Help Federal Agencies Strengthen Equal Employment
Directive: EEO MD-715
There is a new EEOC Management
Directive which applies to all federal government agencies. In a nutshell,
EEOC now requires the same affirmative steps required of private industry
(federal contractors and subcontractors - through Executive Order 11246).
All agencies are required to create an Affirmative Action Program, no
different from those audited by our former agency, the Office of Federal
Contract Compliance Programs (OFCCP). Government agencies are now required
to take such actions as (this list is not all inclusive):
* Maintain applicant flow by race and gender
* Conduct Impact Ratio Analyses (IRA) on hires, promotions, and terminations
* Develop AAP objectives and follow up the following year (similar to
the current AEP)
* Integrate EEO into your Agency strategic mission
* Ensure PROACTIVE prevention of unlawful discrimination
* Recruit, hire, develop and retain supervisors/mgrs. who have effective
managerial, communications and interpersonal skills. Provide managers
and supervisors with appropriate training and other resources
* Evaluate managers and supervisors (in performance evaluations) on efforts
to ensure equality of opportunity for all employees
* Ensure effective coordination between your EEO programs and related
human resource programs, including the FEORP and DVAAP
* Conduct a self-assessment on at least an annual basis to monitor progress
* Ensure the investigation and adjudication function of your Agency's
complaint resolution process are kept separate from the legal defense
arm of your Agency
* Appoint a senior official as the dispute resolution specialist of your
* Ensure all managers and supervisors at all levels WILL participate in
the ADR process
*Maintain a system that collects and maintains accurate information on
the race, national origin, sex, and disability status and the disposition
of all applications
* Maintain a tracking system of recruitment activities to permit analyses
of these efforts in any examination of potential barriers to equality
* Proactively prevent potential discrimination before it occurs and establish
systems to monitor compliance with Title VII
Effective date is October 1, 2003 ~
On August 23, 2003, U.S. Equal Employment Opportunity Commission (EEOC)
Chair Cari M. Dominguez announced the issuance of Management Directive
(MD) 715, which provides a roadmap for creating effective equal employment
opportunity (EEO) programs for all federal employees as required by Section
717 of Title VII of the 1964 Civil Rights Act and Section 501 of the Rehabilitation
Act of 1973.
The new Directive, which was approved by the full bipartisan Commission
by unanimous vote, becomes effective government-wide at the start of Fiscal
Year 2004 on October 1, 2003. It supersedes Management Directives 712,
713 and 714, which were issued in the 1980s. The full text of MD 715 is
available on the Commission's web site at www.eeoc.gov.
"Management Directive 715 is
part of a bigger EEO reform initiative underway, which is designed to
better address the organizational shifts and evolving trends in the federal
workplace," said Chair Dominguez. "The Directive provides a
substantive, practical roadmap for federal agencies to ensure access and
inclusion for all human talent at all levels of employment."
If you have questions, the EEOC
website (www.eeoc.gov) has additional information. Give us a call (or
email) if you need assistance with implementation of these new regulations
or just wish to ask questions. From direct experience, these changes,
if implemented correctly, will create an environment that works to ensure
all applicants and employees enjoy full equality under the law.
In some agencies, this has been lacking. For those agencies who voluntarily
have been complying with many of the orders in this directive, i.e., applicant
flow maintained by race/gender, you are ahead of the pack.
Federal and Non-federal posting requirements and downloaded copies of
the posters, go to the U.S. Department of Labor's website: http://www.dol.gov/osbp/sbrefa/poster/main.htm
Posters Distributed in Foreign Languages
If you have employees with limited
English speaking ability, you should know:
The U.S. Department of Labor has Spanish posters required by the EEOC,
OSHA, and FMLA. Website: http://www.dol.gov/osbp/sbrefa/poster/main.htm
The EEOC has translated posters you
are required to have in your workplace. The EEOC will send posters in
numerous languages ranging from Arabic to Vietnamese. Website: http://www.eeoc.gov/publications.html
03/2003: EEOC Launches New Mediation Pilot
Initiative to Refer Back Appropriate Charges to Employers for Internal Dispute
Resolution WASHINGTON - Cari M. Dominguez, Chair of the U.S. Equal Employment
Opportunity Commission (EEOC), announced the implementation of a voluntary
mediation pilot program in which private sector discrimination charges filed with
the EEOC will be referred back to a participating employer's internal dispute resolution
program, as appropriate. Under the new "referral back" mediation pilot, which will be
carried out at the district office level, employers that have internal dispute resolution
programs that meet specific criteria may participate in the pilot.
My Administration is committed to tearing down the barriers to equality that face
many of the 54 million Americans with disabilities.
Eleven years ago the Americans with Disabilities Act (ADA) made it a violation of
federal law to discriminate against a person with a disability.
But there is much more to do. Though progress has been made in the last decade,
too many Americans with disabilities remain trapped in bureaucracies of dependence,
denied the tools they need to fully access their communities.
The unemployment rate for Americans with disabilities hovers at 70 percent. Home
ownership rates are in the single digits. And Internet access for Americans with
disabilities is half that of people without disabilities.
I am committed to tearing down the remaining barriers to equality that face
Americans with disabilities today. My New Freedom Initiative will help Americans
with disabilities by increasing access to assistive technologies, expanding
educational opportunities, increasing the ability of Americans with disabilities
to integrate into the workforce, and promoting increased access into daily community
I look forward to working with Congress to see these proposals become law.
Disability is not the experience of a minority of Americans. Rather, it is an experience
that will touch most Americans at some point during their lives.
Today, there are over 54 million Americans with disabilities, a full 20 percent of the
U.S. population. Almost half of these individuals have a severe disability, affecting
their ability to see, hear, walk, or perform other basic functions of life. In addition,
there are over 25 million family caregivers and millions more who provide aid and
assistance to people with disabilities.
Eleven years ago, Congress passed and President George Bush signed one of the most
significant civil rights laws since the Civil Rights Act of 1964 - the Americans with
Disabilities Act (ADA). In doing so, America opened its door to a new age for people
with disabilities. Two and a half years ago, amendments to Section 508 of the
Rehabilitation Act of 1973 were enacted ensuring that the Federal Government
would purchase electronic and information technology which is open and accessible
for people with disabilities.
Although progress has been made over the years to improve access to employment,
public accommodations, commercial facilities, information technology,
telecommunications services, housing, schools, and polling places, significant
challenges remain for Americans with disabilities in realizing the dream of equal
access to full participation in American society. Indeed, the Harris surveys by the
National Organization on Disability and numerous other studies have highlighted
these persistent obstacles.
- One out of five adults with disabilities has not graduated from high
school, compared to less than one of ten adults without disabilities.
- National graduation rates for students who receive special
education and related services have stagnated at 27 percent for the past three
years, while rates are 75 percent for students who do not rely on special education.
- In 1997, over 33% of adults with disabilities lived in a household
with an annual income of less than $15,000, compared to only 12 percent of those
- Unemployment rates for working-age adults with disabilities have
hovered at the 70 percent level for at least the past 12 years, while rates are
significantly lower for working-age adults without disabilities.
- 71% of people without disabilities own homes, but fewer than 10%
of those with disabilities do.
Computer usage and Internet access for
people with disabilities is half that of people without
People with disabilities vote at a rate
that is 20 percent below voters without disabilities.
In local areas, disability issues seldom surface in election
campaigns, and inaccessible polling places often discourage
citizens with disabilities from voting.
People with disabilities want to be employed, educated, and
participating, citizens living in the community. In today's
global new economy, America must be able to draw on the talents
and creativity of all its citizens.
The Administration will work to ensure that all Americans
have the opportunity to learn and develop skills, engage in
productive work, choose where to live and participate in community
life. The President's "New Freedom Initiative" represents
an important step in achieving these goals. It will expand
research in and access to assistive and universally designed
technologies, further integrate Americans with disabilities
into the workforce and help remove barriers to participation
in community life.
The "New Freedom Initiative" is composed of the following
- Federal Investment in Assistive Technology
Research and Development. The Administration will provide
a major increase in the Rehabilitative Engineering Research
Centers' budget for assistive technologies, create a new
fund to help bring assistive technologies to market, and
better coordinate the Federal effort in prioritizing immediate
assistive and universally designed technology needs in
the disability community.
- Access to Assistive Technology. Assistive
technology is often prohibitively expEnsive. In order
to increase access, funding for low-interest loan programs
to purchase assistive technologies will increase significantly.
- Increase Funding for the Individuals with
Disabilities Education Act (IDEA). In return for participating
in a new system of flexibility and accountability in the
use of Federal education funds, states will receive an
increase in IDEA funds for education at the local level
and help in meeting the special needs of students with
- Focus on Reading in Early Grades. States
that establish a comprehensive reading program for students,
including those with disabilities, from preschool through
second grade will be eligible for grants under President
Bush's Reading First and Early Reading First Initiatives
- Integrating Americans with Disabilities
into the Workforce
- Expanding Telecommuting. The Administration
will provide Federal matching funds to states to guarantee
low-interest loans for individuals with disabilities to
purchase computers and other equipment necessary to telework
from home. In addition, legislation will be proposed to
make a company's contribution of computer and Internet
access for home use by employees with disabilities a tax-free
- Swift Implementation of "Ticket to Work."
President Bush has committed to sign an order that directs
the federal agency to swiftly implement the law giving
Americans with disabilities the ability to choose their
own support services and maintain their health benefits
when they return to work.
- Full Enforcement of the Americans with Disabilities
Act (ADA). Technical assistance will be provided to promote
ADA compliance and to help small businesses hire more
people with disabilities. The Administration will also
promote the Disabled Access Credit, an incentive program
created in 1990 to assist small businesses comply with
- Innovative Transportation Solutions. Accessible
transportation can be a particularly difficult barrier
for Americans with disabilities entering the workforce.
Funding will be provided for 10 pilot programs that use
innovative approaches to developing transportation plans
that serve people with disabilities. The Administration
will also establish a competitive matching grant program
to promote access to alternative methods of transportation
through community-based and other providers.
- Promote Homeownership for People with Disabilities.
Congress recently passed the "American Homeownership and
Economic Opportunity Act of 2000," which will permit recipients
with disabilities to use up to a year's worth of vouchers
to finance the down payment on a home. The Administration
will work to swiftly implement the recently enacted law.
- Swift Implementation of the Olmstead Decision.
President Bush has committed to sign an order supporting
the most integrated community-based settings for individuals
with disabilities, in accordance with the Olmstead decision.
- National Commission on Mental Health. President
Bush has committed to create a National Commission on
Mental Health, which will study and make recommendations
for improving America's mental health service delivery
system, including making recommendations on the availability
and delivery of new treatments and technologies for individuals
with severe mental illness.
- Improving Access. Federal matching funds
will be provided annually to increase the accessibility
of organizations that are currently exempt from Title
III of the ADA, such as churches, mosques, synagogues,
and civic organizations. The Administration also supports
improving access to polling places and ballot secrecy
for people with disabilities.
The Administration's commitment to increase access to assistive
and universally designed technologies is based upon the principle
that every American must have the opportunity to participate
fully in society. In the global new economy, America must
draw on the talents and creativity of all its citizens.
Assistive and universally designed technologies can be a powerful
tool for millions of Americans with disabilities, dramatically
improving one's quality of life and ability to engage in productive
work. New technologies are opening opportunities for even
those with the most severe disabilities. For example, some
individuals with quadriplegia can now operate computers by
the glance of an eye. As the National Council on Disability
(NCD) has stated, "for Americans without disabilities, technology
makes things easier. For Americans with disabilities, technology
makes things possible."
Unfortunately, assistive and universally designed technologies
are often prohibitively expensive. In addition, innovation
is being hampered by insufficient Federal funding for and
coordination of assistive technology research and development
The New Freedom Initiative will help ensure that Americans
with disabilities can access the best technologies of today
and that even better technologies will be available in the
future. At the core of this effort are proposals that reinvigorate
the Federal investment in assistive technologies; improve
Federal collaboration and promote private-public partnerships;
and increase access to this technology for people with disabilities.
Rehabilitative Engineering Research Centers (RERCs) are recognized
as conducting some of the most innovative and high impact
assistive technology research in the Federal Government. The
15 RERCs are housed in universities and other non-profit institutions
around the country and focus on a specific area of research
- for example, information technology access, prosthetics
and orthotics, and technology for children with orthopedic
disabilities. To advance research specifically targeted to
the disabilities community, the Administration will significantly
increase funding for the RERCs.
There is no effective coordinating body for assistive technology
research and development within the Federal Government. While
the Interagency Committee on Disabilities Research (ICDR)
was designed to coordinate the Federal effort, it has no real
authority and has no budget. The Administration will provide
new funding to the ICDR so that it can prioritize the immediate
assistive and universally designed technology needs in the
disability community, as well as foster collaborative projects
between the Federal laboratories and the private sector.
There are nearly 2,500 companies working to bring new assistive
technologies to market. Many small businesses, however, cannot
make the necessary capital investments until they have information
concerning the market for a particular assistive technology.
To help these businesses bring assistive technologies to market,
the Administration will establish an "Assistive Technology
Development Fund." Housed under the ICDR, the fund will help
underwrite technology demonstration, testing, validation and
market assessment to meet specific needs of small businesses
so that they can better serve the needs of people with disabilities.
Assistive technology is often prohibitively expensive. For
example, personal computers configured with assistive technology
can cost anywhere from $2,000 to $20,000. The Administration
will significantly increase Federal funding for low-interest
loans to purchase assistive technology. These grants will
go to a state agency in collaboration with banks or non-profit
groups to guarantee loans and lower interest rates.
Education is the key to independent living and a high quality
of life. Unfortunately, one in five adults with disabilities
has not graduated from high school, compared to less than
one of ten adults without disabilities. The Administration
will expand access to quality education for Americans with
Originally passed by Congress in 1975, the Individuals with
Disabilities Act, or IDEA, ensures that children with disabilities
would have a free public education that would meet their unique
The Administration will increase educational opportunity for
children with disabilities by working with Congress to give
states increased IDEA funds. This will help meet the needs
of students with disabilities and free up additional resources
for education at the local level.
Increases Funding for Special Education.In
return for participating in a new system of flexibility and
accountability in the use of Federal education funds, states
will receive an increase in IDEA funds for education at the
local level and help in meeting the special needs of students
Establishes the "Reading First" Program. President
Bush will increase Federal funding to students, including
those with disabilities, by creating an incentive fund for
states to teach every child to read by third grade. States
that choose to draw from this fund will be required to initiate,
among other requirements: a reading diagnostic test for students
in K-2 to determine where students need help; a research-based
reading curriculum; training for K-2 teachers in reading preparation;
and intervention for students who are not reading at grade
level in K-2.
Supplements Reading First with an Early Childhood Reading
Initiative. States participating in the Reading
First program will have the option to receive "Early Reading
First" funding to implement research-based reading programs
in existing pre-school programs and Head Start programs that
feed into participating elementary schools. The purpose of
this program is to illustrate on a larger scale recent research
findings that children taught pre-reading and math skills
in pre-school enter school ready to learn reading and mathematics.
Homeownership has always been at the heart of the "American
dream." This past year, Congress passed the "American Homeownership
and Economic Opportunity Act of 2000, " which reforms Federal
rental assistance to give individuals who qualify the opportunity
to purchase a home.
Rental assistance for low-income Americans, including those
with disabilities, is provided by a program known as Section
8 of the Housing Act of 1937, administered by the U.S. Department
of Housing and Urban Development (HUD). Residents are provided
Section 8 vouchers so that they can afford rental payments
for public housing. And many of those Section 8 vouchers go
to individuals with disabilities.
In addition to increasing independence, homeownership also
promotes savings. Mortgage payments, unlike rental payments,
help build net worth because a portion of the payment goes
toward building equity. In turn, as one's home equity increases,
it becomes easier to finance other purchases such as a computer
or further education.
The Administration will implement Public Law 106-569, which
allows local Public Housing Authorities to provide recipients
of Section 8 vouchers who have disabilities with up to a year's
worth of vouchers in a lump-sum payment to finance the down
payment on a home.
Americans with disabilities should have every freedom to pursue
careers, integrate into the workforce, and participate as
full members in the economic marketplace.
The New Freedom Initiative will help tear down barriers to
the workplace, and help promote full access and integration.
Computer technology and the Internet have tremendous potential
to broaden the lives and increase the independence of people
with disabilities. Nearly half of people with disabilities
say the Internet has significantly improved their quality
of life, compared to 27 percent of people without disabilities.
The computer and Internet revolution has not reached as many
people with disabilities as the population without disabilities.
Only 25% of people with disabilities own a computer, compared
with 66% of U.S. adults. And only 20% of people with disabilities
have access to the Internet, compared to over 40% of U.S.
The primary barrier to wider access is cost. Computers with
adaptive technology can cost as much as $20,000, which is
prohibitively expensive for many individuals. And the median
income of Americans with disabilities is far below the national
The New Freedom Initiative will expand the avenue of teleworking,
so that individuals with mobility impairments can work from
their homes if they choose.
Creates the "Access to Telework" Fund. Federal
matching funds will be provided annually to states to guarantee
low-income loans for people with disabilities to purchase
equipment to telecommute from home.
Makes a Company's Contribution of Computer and Internet Access
for Home Use by Employees with Disabilities a Tax-Free Benefit.
The Administration will encourage businesses
to give computers and Internet access to employees with disabilities
by making it explicit that this provision is a tax-free benefit.
By making this benefit tax free to employees, the proposal
will encourage more employers to provide computer equipment
and Internet access, and employees will have greater options
to take advantage of this flexibility for teleworking. For
individuals with disabilities, this flexibility will expand
the universe of potential and accessible employment.
Prohibits OSHA from Regulating "Home Office" Standards. In
November 1999, the U.S. Department of Labor's Occupational
Safety and Health Administration (OSHA) issued an 8-page response
to an employer inquiry asserting that it had the power to
regulate home office standards and hold employers responsible
if those standards were not met. This proposal would have
had a chilling effect on teleworking, as employers would seek
to avoid potential liabilities. Although OSHA has since withdrawn
the response, it has not yet foreclosed future action. The
proposal will amend the Occupational Safety and Health Act
of 1970 to prohibit OSHA from being applied to the home worksites
of employees who work at home through the use of "telephone,
computer or electronic device."
In 1999, Congress passed the "Ticket-to-Work and Work Incentives
Improvement Act," which will give Americans with disabilities
both the incentive and the means to seek employment.
As part of the New Freedom Initiative, the Administration
will ensure the Act's swift implementation.
Today, there are more than 7.5 million Americans with disabilities
receiving benefits under Federal disability programs. According
to a recent Harris Survey, conducted by the National Organization
of Disability, 72 percent of the Americans with disabilities
want to work. However, in part because of disincentives in
Federal law, less than 1 percent of those receiving disability
benefits fully enter the workforce.
Prior to the "Ticket to Work" law, in order to continue to
receive disability payments and health coverage, recipients
could not engage in any substantial work. The Ticket to Work
law, however, provides incentives for people with disabilities
to return to work by:
- Providing Americans with disabilities with
a voucher-like "ticket" that allows them to choose their
own support services, including vocational education programs
and rehabilitation services.
- Extending Medicare coverage for SSDI beneficiaries
so they can return to work without the fear of losing
- · Expanding Medicaid eligibility categories
for certain working people with severe disabilities so
that they can continue to receive benefits after their
income or condition improves.
President Bush Has Committed to Sign an Order to Support Effective
and Swift Implementation of "Ticket to Work". The
order will direct the federal agency to continue to swiftly
implement the law giving Americans with disabilities the ability
to choose their own support services and to maintain their
health benefits when they return to work.
When the Americans with Disabilities Act (ADA) was signed
into law on July 26, 1990, it was the most far reaching law
advancing access of individuals with disabilities, workforce
integration, and independence. The law, signed by President
George Bush, gives civil rights protections to individuals
with disabilities that are like those provided to individuals
on the basis of race, sex, national origin, and religion.
In the eleven years since it was signed, the ADA has worked
to guarantee equal opportunity for individuals with disabilities
in employment, public accommodations, transportation, State
and local government services, and telecommunications. The
law has been especially helpful in providing access to jobs,
especially in the small business sector, which has created
two-thirds of all net new jobs since the early 1970s.
To encourage small businesses to comply with the ADA, legislation
was signed into law in 1990 to provide a credit for 50 percent
of eligible expenses up to $5,000 a year. Such eligible expenses
include assistive technologies. Unfortunately, many small
businesses are not aware of this credit.
President George W. Bush believes that the Americans with
Disabilities Act has been an integral component of the movement
toward full integration of individuals with disabilities but
recognizes that there is still much more to be done. He also
recognizes that to further integrate individuals with disabilities
into the workforce, more needs to be done to promote ADA compliance.
Supports the ADA and Provides Technical Assistance to Small
Businesses. The President and the Attorney
General will ensure full enforcement of the Americans with
Disabilities Act by the Civil Rights Division of the Department
of Justice. In addition, the New Freedom Initiative will provide
resources annually for technical assistance to help small
businesses comply with the Act, serve customers, and hire
more people with disabilities.
Promotes the Awareness and Utilization of Disabled Access
Credit (DAC). The DAC, created in 1990, is
an incentive program to assist small businesses in complying
with the ADA. DAC provides a credit for 50 percent of eligible
expenses up to $5,000 a year, including expenses associated
with making their facilities accessible and with purchasing
assistive technologies. Utilization of the credit has been
limited because small businesses are often not aware of it.
Every American should have the opportunity to participate
fully in society and engage in productive work. Unfortunately,
millions of Americans with disabilities are locked out of
the workplace because they are denied the tools and access
necessary for success.
Transportation can be a particularly difficult barrier to
work for Americans with disabilities. In 1997, the Director
of Project Action stated that "access to transportation is
often the critical factor in obtaining employment for the
nation's 25 million transit dependent people with disabilities."
Today, the lack of adequate transportation remains a primary
barrier to work for people with disabilities: one-third of
people with disabilities report that inadequate transportation
is a significant problem.
Through formula grant programs and the enforcement of the
ADA, the Federal Government has helped make our mass transit
systems more accessible. More must be done, however, to test
new transportation ideas and to increase access to alternate
means of transportation, such as vans with specialty lifts,
modified automobiles, and ride-share programs for those who
cannot get to buses or other forms of mass transit.
On a daily basis, many non-profit groups and businesses are
working hard to help people with disabilities live and work
independently. These organizations often lack the funds to
get people with disabilities to job interviews, to job training,
and to work.
The Federal Government should support the development of innovative
transportation initiatives and partner with local organizations
to promote access to alternate methods of transportation.
Promotes innovative transportation solutions for people with
disabilities by funding pilot programs. The
proposal provides funding for 10 pilot programs run by state
or local governments in regional, urban, and rural areas.
Pilot programs will be selected on the basis of the use of
innovative approaches to developing transportation plans that
serve people with disabilities. The Administration will work
with Congress to evaluate the effectiveness of these pilot
programs and encourage the expansion of successful initiatives.
Helps create a network of alternate transportation through
community-based and other providers. The proposal
will establish a competitive matching grant program to promote
access to alternative methods of transportation. This dollar-for-dollar
matching program will be open to community-based organizations
that seek to integrate Americans with disabilities into the
workforce. The funds will go toward the purchase and operation
of specialty vans, assisting people with down payments or
costs associated with accessible vehicles, and extending the
use of existing transportation resources.
On June 22, 1999, the Supreme Court decided Olmstead v. L.C.,
ruling that, in appropriate circumstances, the ADA requires
the placement of persons with disabilities in a community-integrated
setting whenever possible. The Court concluded that "unjustified
isolation," e.g., institutionalization when a doctor deems
community treatment equally beneficial, "is properly regarded
as discrimination based on disability."
Olmstead has yet to be fully implemented. President Bush believes
that community-based care is critically important to promoting
maximum independence and to integrating individuals with disabilities
into community life.
President Bush has Committed to Sign an Order Supporting Swift Implementation of
the Olmstead Decision.
The order will support the most integrated community-based settings
for individuals with disabilities, in accordance with the Olmstead decision. The
Administration will pursue swift implementation in a manner that respects the proper
roles of the Federal Government and the several states.
Currently, there are numerous Federal agencies that oversee mental health policies,
funding, laws and programs including: the Substance Abuse and Mental Health
Services Administration, the National Institutes of Health, the Health Care Financing
Administration, the Office of Personnel Management, the Social Security
Administration, the Health Resources and Services Administration, the Department of
Housing and Urban Development, the Department of Education, the Department of
Justice, and the Department of Labor.
These Federal agencies are doing valuable work, but they would be much more
effective, efficient, and less duplicative if they were better coordinated.
With coordination, the competitive advantage of each agency could be leveraged to
provide the most needed and suitable service in the framework of federal efforts to
address mental health.
President Bush Has Committed to Create a National Commission on Mental Health.
The National Commission will study and make recommendations for
improving America's mental health service delivery system, including making
recommendations on the availability and delivery of new treatments and technologies
for individuals with severe mental illness.
There are over 35 million voting-age persons with disabilities, but currently people
with disabilities register to vote at a rate that is 16 percentage points less than the
rest of the population and vote at a rate that is 20 percent voters who have no
According to the National Organization on Disability, low voter turnout among people
who are disabled is due to both accessibility problems at voting locations and the lack
of secrecy and independence when voting. The most recent Federal Election
Commission (FEC) report states that at least 20,000 of the Nation's more than
120,000 polling places are inaccessible to people with disabilities.
President Bush recognizes that full integration into society must include access to
and participation in the political process.
Supports Improving Accessibility to Voting for Americans with Disabilities.
President Bush will support improved access to polling places and
ballot secrecy. He will work with Congress to address the barriers to voting for
Americans with disabilities and to expanding suffrage for all Americans.
Title III of the Americans with Disabilities Act of 1990 opened countless businesses
and public accommodations to people with disabilities by mandating that they be
made accessible. For constitutional and other concerns, however, Title III exempts
many civic organizations (such as Rotary and Lions Clubs) and religious organizations
from its requirements of full access.
Americans with disabilities should be fully integrated into their communities, and civic
and religious organizations are vital parts of those communities. Too many private
clubs, churches, synagogues, and mosques are inaccessible or unwelcoming to people
with disabilities. As a result, people with disabilities are often unable to participate as
fully in community or religious events.
The National Organization on Disability has led a national effort to make places of
worship accessible and welcoming to all Americans. Many organizations and
congregations want to be open to all but have limited resources to ensure accessibility.
Every effort should be made to ensure that Americans with disabilities have the
opportunity to be integrated into their communities and welcomed into communities
Establishes a National Fund to Provide Matching Grants for Accessibility Renovations
for ADA-Exempt Organizations:
To assist private clubs and religious organizations in making sure that
their facilities are fully accessible and to expand access for all, the proposal provides
annual Federal matching grants to ADA-exempt organizations making renovations or
accommodations to improve accessibility. Because all ADA-exempt organizations will
be eligible for the grants, irrespective of whether they are religious or secular, they
would comport with the Supreme Court's test for constitutional neutrality.