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Federal Contracts-Equal Opportunity in Employment: Employment Nondiscrimination and Equal Opportunity for Qualified Individuals with Disabilities
Updated: September 2009
Section 503 of the Rehabilitation Act of 1973, as amended (41 CFR Parts 60-741(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9S&exitTitle=www.ecfr.gov&fedpage=yes) and 60-742(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9T&exitTitle=www.ecfr.gov&fedpage=yes))
Who is Covered
Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793(http://www4.law.cornell.edu/uscode/29/793.html), is administered by the Office of Federal Contract Compliance Programs (OFCCP). Section 503 requires employers with federal contracts or subcontracts that exceed $10,000, and contracts or subcontracts for indefinite quantities (unless the purchaser has reason to believe that the cost in any one year will not exceed $10,000), to take affirmative steps to hire, retain, and promote qualified individuals with disabilities. The regulations implementing Section 503 make clear that this obligation to take affirmative steps includes the duty to refrain from discriminating in employment against qualified individuals on the basis of disability.
The following types of contracts and subcontracts are exempt from Section 503:
The Deputy Assistant Secretary of the Office of Federal Contract Compliance Programs may grant a waiver from the requirements of Section 503 in the following circumstances:
Section 503 and its implementing regulations apply only to the specific state or local government entities that participate in work on or under a federal contract or subcontract. This coverage is narrower than that which applies to employers in the private sector.
Under Section 503 and its implementing regulations, an "individual with a disability" means a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.
A “qualified individual” means a person who satisfies the job-related requirements of the employment position he or she holds or is applying for, and who, with or without reasonable accommodation, can perform the essential job functions of that position.
Additional information on the definitions of “individual with a disability" and “qualified individual with a disability" can be found in several of the Enforcement Guidance documents published by the Equal Employment Opportunity Commission (EEOC).
Under Section 503 and its implementing regulations, covered employers with federal contracts or subcontracts must take affirmative steps to employ qualified individuals with disabilities. This obligation covers the full range of employment and personnel practices, such as recruitment, hiring, rates of pay, upgrading, and selection for training. All covered contractors must also include a specific equal opportunity clause in each of their nonexempt subcontracts. The regulations provide the required language for this clause.
In addition, Section 503 and its regulations require covered federal contractors and subcontractors to make reasonable accommodations for the known physical or mental limitations of employees and applicants for employment with disabilities, unless providing an accommodation would create an undue hardship. Furthermore, covered contractors and subcontractors are required to take all necessary actions to ensure that no one attempts to intimidate or discriminate against any individual for filing a complaint or participating in a proceeding under Section 503.
Under Section 503, each employer that has both a federal contract or subcontract of $50,000 or more, and 50 or more employees, must prepare, implement, and maintain a written affirmative action program (AAP) covering each of its establishments. The employer must review and update the program annually and must make it available for inspection by any employee or applicant for employment, as well as by the OFCCP. The program may be integrated with, or kept separate from, any other affirmative action program the employer is required to prepare.
Employees of and applicants for employment with a covered contractor or subcontractor have the right to file a complaint with OFCCP if they believe that a federal contractor or subcontractor has discriminated against them on the basis of a disability. Anyone may call OFCCP with a question about interpreting the regulations, filing a complaint, or any other related matter. Additional telephone numbers are located on OFCCP’s Office Contact Web page(http://www.dol.gov/ofccp/contacts/ofcpkeyp.htm).
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
Contractors and subcontractors who have a covered federal contract or subcontract are required to post the EEO notice, “Equal Employment Opportunity is the Law Poster”(http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm). The notice must be posted prominently, where it can be readily seen by employees and applicants for employment, (e.g., personnel office, work-out facility, lunchroom, or company bulletin board). There is no particular size requirement.
The notice is also available in Spanish(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeosp.pdf) and Chinese(http://www.dol.gov/ofccp/regs/compliance/posters/pdf/eeopost(chinese).pdf). Posting of the notice in languages other than English is not required.
OFCCP recognizes that there are differences between its poster and the Equal Employment Opportunity Commission’s (EEOC) poster(http://www1.eeoc.gov/employers/poster.cfm). Despite these differences, both posters are accepted as valid by OFCCP and the EEOC.
Contractors that have the obligation to develop a written Section 503 AAP must post a notice at each establishment providing the location and hours the AAP may be obtained. Additionally, the policy statement required by the Section 503 AAP must be posted on company bulletin boards so that applicants and employees with disabilities are informed of the contents of the policy statement (for example, the contractor may have the statement read to a visually disabled individual, or may lower the posted notice so that it can be read by a person in a wheelchair).
Personnel records. Federal contractors are required to maintain any personnel or employment records for two years from the date of the making of the record or the personnel action involved, whichever occurs later. Examples of records that must be maintained include:
Contractors with fewer than 150 employees or who do not have a government contract of at least $150,000, only need to keep records for one year from the date of the making of the record or the personnel action involved, whichever occurs later.
Affirmative Action Program. Under Section 503, each employer that has both a federal contract or subcontract of $50,000 or more, and 50 or more employees, must prepare, implement, and annually update a written affirmative action program (AAP) covering each of its establishments. The employer must make it available for inspection by any employee or applicant for employment, as well as by OFCCP. The program may be integrated with, or kept separate from, any other AAP the employer is required to prepare.
A contractor establishment required under Section 503 to develop and maintain a written AAP must preserve its AAP and documentation of its good faith efforts to affirmatively recruit and promote individuals with disabilities in accordance with its AAP for the immediately preceding year, unless the contractor establishment was not then covered by the AAP requirement.
There are no reporting requirements under Section 503.
Note that contractors may be asked to submit AAPs or other employment records to OFCCP if selected for a compliance evaluation or because of a complaint investigation.
OFCCP investigates for violations of Section 503 either through compliance evaluations or in response to complaints. If a violation is found, OFCCP may ask the federal contractor or subcontractor to enter into conciliation negotiations. If conciliation efforts fail, OFCCP may initiate an administrative enforcement proceeding by issuing an administrative complaint against the contractor or subcontractor.
If OFCCP files an administrative complaint, the contractor or subcontractor has 20 days to request a review by an Administrative Law Judge, who hears the case and recommends a decision. If the contractor or subcontractor is dissatisfied with the Administrative Law Judge's decision, it may appeal the decision to the Department of Labor's Administrative Review Board. The Board issues the final decision, whether or not there is an appeal.
If the Board finds that a violation of Section 503 has occurred, it may order the contractor or subcontractor to provide appropriate relief, which may include back pay and benefits, and restoration of employment status, for the victim(s) of discrimination. Depending on the circumstances, violations also may result in cancellation, suspension, or termination of contracts, withholding of progress payments, and debarment.
If the contractor or subcontractor is dissatisfied with the Board's decision, it may appeal that decision to the federal courts.
Relation to State, Local, and Other Federal Laws
Section 107(b) of the Americans with Disabilities Act of 1990 (ADA) required agencies with enforcement responsibilities under the Rehabilitation Act of 1973 (e.g., OFCCP) and under Title I of the ADA (i.e., the Equal Employment Opportunity Commission(http://www.eeoc.gov/)) to develop procedural regulations to ensure that complaints filed under these laws are addressed in a manner that avoids duplication of effort and prevents application of inconsistent or conflicting standards for the same requirements under the two laws. These regulations are found at 41 CFR Part 60-742(/cgi-bin/leave-dol.asp?exiturl=http://s.dol.gov/9T&exitTitle=www.ecfr.gov&fedpage=yes).
Compliance Assistance Available
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Rehabilitation Act of 1973. Among the many resources available are:
Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law” Web page(http://www.dol.gov/compliance/laws/comp-rehab.htm).
Office of Federal Contract Compliance