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Office of Federal Contract Compliance Programs (OFCCP)

CORNELL UNIVERSITY SCHOOL OF INDUSTRIAL RELATIONS
EMPLOYMENT AND DISABILITY INSTITUTE
STATE-OF-THE-SCIENCE CONFERENCE

"Innovative Research on Employer Practices: Improving Employment for People with Disabilities."

KEYNOTE ADDRESS BY PATRICIA A. SHIU, DIRECTOR
U.S. Department Of Labor – Office of Federal Contract Compliance Programs

Tuesday, October 22, 2013 – 12:30-1:00 PM (EST)
DoubleTree Hotel – Arlington, Virginia

(You will be introduced by Susanne Marie BruyŤre, Director of the Employment and Disability Institute at Cornell Universityís School of Industrial Labor Relations.)

Good afternoon. It is a pleasure to be here with you today.

Susanne, I thank you for that kind introduction and for your leadership in promoting scholarly, collaborative research in the field of disability employment. As the head of a civil rights agency, I firmly believe that good data is the cornerstone of good public policy. And good public policy is the linchpin of effective enforcement.

Director Shiu Delivers Keynote Address at Cornell University's Disability Employment Conference in Arlington, Virginia on October 22, 2013

Director Shiu Delivers Keynote Address at
Cornell University's Disability Employment
Conference in Arlington, Virginia
on October 22, 2013

Thanks to the work of Susanne, her colleagues and so many of you in this room, the body of knowledge that forms the backbone of our work continues to expand. That is why I am so pleased to speak with all of you this afternoon. And it is why I am eager to attending this afternoon's session.

I also want to thank the team at Cornellís School of Industrial Relations for planning and supporting this state-of-the science conference. Together, you are addressing a key question which we have also been grappling with at the Labor Department and throughout the federal government: how to improve employment opportunities for almost 30 million working-age Americans with disabilities?

This question is one I focused on long before I joined the Obama administration. As a civil rights lawyer in San Francisco, I spent nearly 26 years advocating on behalf of individuals with disabilities – and their families – in cases involving workplace discrimination, access to schools and the right to reasonable accommodations.

What I took away from those experiences is that work is about more than a paycheck. Itís about dignity and an individualís sense of self-worth and self-reliance. There is a special joy in waking up every day looking forward to going to work, knowing that our contributions matter and that – through our daily labors – we can sustain ourselves and our families.

 


 

My colleagues and I got a stark reminder about the value of going to work when the government shut down earlier this month. For more than two weeks, one faction of one political party, in one house of Congress, representing one branch of our government held the entire country hostage to their political will.

As a result of the government shutdown, nearly 800,000 federal employees were furloughed and kept from performing our jobs. The S&P estimates that the 16-day government shutdown cost our economy $24 billion.

And we donít yet know what the long-term impact will be.

What we do know is that it was grossly unfair to the American people who depend on a functional government.

We know that the personal cost to federal employees – in terms of lost time, delayed wages and unnecessary stress – was entirely avoidable.

And we know for certain that this is no way to run the government of the greatest country on earth.

Last week, when the government re-opened, my colleagues and I were relieved to get back to work. We came back more committed than ever to fulfilling the century-old mission of the Labor Department: to strengthen the American workforce and to ensure the health, safety and fairness of all workplaces.

But most of all, we returned with a renewed appreciation for having jobs... good jobs... jobs that matter... jobs that afford us far more than just a paycheck.

 


 

The Office of Federal Contract Compliance Programs is a jewel in the crown of our nationís civil rights apparatus. Along with the Equal Employment Opportunity Commission and the Justice Department, we stand on the front lines of protecting workers from discrimination.

OFCCP's jurisdiction covers the nearly one-quarter of American workers who are employed by or seek jobs with companies that hold federal contracts and subcontracts. Collectively, that includes about 200,000 business establishments which receive more than 500 billion dollars in taxpayer dollars each year to provide supplies and services or to perform construction work for our government.

Being a federal contractor is a privilege, not a right. And with that privilege comes a responsibility to safeguard workers from discrimination.

Since President Obama took office, OFCCP compliance officers have reviewed 19,000 federal contractor establishments. Collectively, they employ more than seven-and-a-half million workers.

In the past four-and-a-half years, we have won more than $45 million in financial remedies for 84,000 workers who were affected by discrimination.

And all the while, we seek to make lasting relief – to correct bad employment practices, to fix policies that create barriers to equal opportunity and to get qualified workers into good jobs.

Since 2009, we have negotiated nearly 9,300 potential job offers for workers who were denied their fair shot at employment because of unlawful discrimination.

The OFCCP is also one of the last bastions of affirmative action in the federal government. Each year, we work with thousands of government contractors to ensure that they are meeting their legal obligations to employ – and to advance in employment – women, minorities, people with disabilities and protected veterans.

This has been the mandate of OFCCP for nearly half a century. Under both Democratic and Republican administrations, and from one Congress to the next, we are tasked with protecting workers, promoting diversity and enforcing the laws which require equal employment opportunity in the contracting workforce.

However, when I arrived at OFCCP in 2009, I found an agency that was faltering in its mission. And one of the first challenges I had to confront was a set of sorely outdated regulations that hadnít been updated in decades. Chief among those outdated regulations were the ones that pertained to veterans and to people with disabilities.

 


 

In 1973, Congress passed and President Nixon signed the Rehabilitation Act. Section 503 of that law prohibits federal contractors from discriminating on the basis of disability. It also requires employers to take affirmative action to recruit, employ, train, and promote qualified individuals with disabilities in their workforce.

For nearly four decades, the framework articulating that requirement, and how contractors complied, remained unchanged. It was a framework based on the idea that employers would simply make "good faith" efforts to comply. In reality, it required federal contractors to take process steps, but without a particular goal in mind.

But, to put it simply, good faith efforts alone did not significantly improve the employment of people with disabilities by federal contractors as Congress intended.

Last year, the unemployment rate for working-age people with disabilities was 15%, nearly double the 8% rate for working-age individuals without disabilities. This substantial disparity persists despite years of technological advances that have made it possible for many people with disabilities to apply for and successfully perform a broad array of jobs.

Even more troubling, a staggering 4 out of 5 working-age Americans with disabilities are out of the labor force entirely – that is, they were not employed, and they have stopped even looking for a job. But as you and I know, many of these so-called "discouraged workers" – or, as I prefer to call them, "prospective workers" &ndash can be valuable assets in workplaces across our county.

When we match people with disabilities to jobs aligned with their interests and abilities, when we educate employers about the business case for hiring workers with disabilities and when we set clear targets for hiring people with disabilities, they can make important contributions to our labor force and to the American economy.

With that understanding, last month OFCCP published two new rules which aim to strengthen the laws we enforce and to more effectively harness the talents and potential contributions of qualified workers with disabilities and protected veterans.

This afternoon, I am going to focus almost exclusively on the Section 503 rule, while noting that our veterans rule will also have a tremendous impact on thousands of veterans who have returned from battle with service-related disabilities.

 


 

Our final rule updating the implementing regulations of Section 503 was developed with a set of specific interests in mind:

  1. First and foremost, to improve employment opportunities for qualified workers with disabilities in the federal contracting workforce;
  2. Second, to update outdated provisions in the regulations, including aligning them with the ADA Amendments Act of 2008 and its revised and much broader definition of disability;
  3. Third, to provide businesses with real metrics by which to measure their affirmative action efforts;
  4. Fourth, to give my investigators a tangible way to evaluate compliance with the law when they review contractor establishments; and
  5. Fifth, to facilitate the success of employers by increasing their access to a large, diverse pool of qualified workers whose talents may have been overlooked or left untapped for far too long.

 


 

Real Metrics

The new Section 503 rule is ground-breaking in that it sets – for the first time ever – targeted hiring goals for individuals with disabilities in the federal contracting workforce. "Good faith efforts" will now be replaced by real metrics.

As any good business leader knows: what gets measured gets done.

To that end, the Section 503 rule establishes an aspirational seven percent utilization goal for the employment of qualified individuals with disabilities in each job category of a contractor's workforce.

For contractors or subcontractors with 50 to 100 employees, the goal can apply to the workforce as a whole. Companies with less than 50 employees are not covered by the affirmative action requirements of Section 503.

This employment goal is similar to the metrics – the affirmative action and reporting obligations – that contractors have long used to promote equal opportunity for women and minorities.

By our estimation, if every company subject to this rule were to achieve the seven percent employment goal, nearly 600,000 qualified workers with disabilities would be added to the workforce in just the first year.

Consider that.

And just so we are clear – and because words matter – this is an aspirational goal. It is not a mandatory quota.

It is neither a floor nor a ceiling. It does not arbitrarily limit or restrict the employment of individuals with disabilities.

Instead, the goal is a management tool that informs decision-making and provides real accountability.

The goal is a means to an end, not an end in and of itself. Failure to meet the goal is not a violation of the regulation and would not lead to a fine, penalty or sanction.

Rather, if the goal is not achieved, contractors will be expected to examine their policies and practices to determine whether and where impediments to equal employment exist, and to develop a plan to address any deficiencies.

 


 

Improving Policies and Practices

In addition to the goal, the new rule requires contractors to maintain several quantitative measurements and comparisons for the number of individuals with disabilities who apply for jobs and the number they actually hire. We believe this provision is critical to create greater accountability for employment decisions and practices.

Having this data will enable both employers and OFCCP compliance officers to evaluate the effectiveness of contractorsí outreach and recruitment efforts and to better examine the hiring and selection processes related to individuals with disabilities.

That means, for example, looking at how job postings and position descriptions are written and considering whether or not they inadvertently screen out or discourage otherwise qualified workers with disabilities from applying and being considered for jobs.

For some contractors it might also mean taking a fresh look at what they list as "minimum qualifications" or "essential functions" of a job.

To be sure, the new rule does not require any employer to hire someone who is not qualified to perform the job in question.

But I believe that it is completely fair and totally reasonable to ask employers to consider whether or not there are barriers to equal opportunity for people with disabilities in their establishments. If so, we must work together to overcome those barriers.

 


 

Voluntary Self-Identification

Another major provision of the new Section 503 rules is the requirement that contractors invite job applicants to voluntarily self-identify as individuals with a disability at the pre-offer stage of the hiring process. This is in addition to the already existing requirement that contractors invite new hires to voluntarily self-identify after receiving a job offer.

Under the new rule, contractors must also invite their employees to voluntarily self-identify on a regular basis. After all, the status of employees may change over time and an invitation to self-identify provides workers with a way to either self-identify for the first time or to change their previously reported status.

We believe that providing workers with multiple opportunities to voluntarily self-identify is a good thing.

When we first proposed these self-identification provisions, I overheard a consultant speaking to a group of federal contractors about them:

"Is OFCCP obsessed?" he asked. "They want us to ask our employees if they have a disability when they apply for the job, after they get the job and again and again while they are on the job! Workers are going to think we care!"

I felt like yelling out, "Bingo!"

This is how things change:

This is how attitudes shift and how individuals with disabilities become more confident in asking for reasonable accommodations when needed.

This is how employers learn the language of tolerance, acceptance and, ultimately integration.

This is how workplaces become more welcoming.

We've seen this before. We saw it with racial integration, when lighter-skinned workers would try to "pass" as white for fear of losing out on opportunities for employment and advancement if they identified as people of color.

I saw it when I started my career as an attorney. Many of my female colleagues worried about employers learning their age, their marital status or whether or not they were planning to start a family.

But as workers feel safer in the workplace, as they better understand their rights under the law and as they feel increasingly confident that those rights will be protected – these sorts of invitations to disclose demographic information or to voluntarily self-identify will be seen as inclusive, not intrusive... as a means to promote, not to pry.

Look, I know that there are a lot of human resources professionals who find this to be uncomfortable. Many of them even think they are prohibited from asking employees about their disability status.

But, in fact, the EEOC has long held that inviting employees to voluntarily self-identify as people with disabilities does not violate the ADA when it's in furtherance of an employer's affirmative action obligations. And just to underscore that point – since it is so often misunderstood or misrepresented – we've posted on our web site a letter to that effect from EEOC's counsel.

At OFCCP, we believe that providing multiple opportunities for workers to self-identify as individuals with disabilities will increase self-identification rates, improving data collection that is vital to assessing the effectiveness of an employer's affirmative action efforts.

 


 

The self-identification provisions go hand-in-hand with achieving the seven percent employment goal established by our new rule.

And that is why conferences like this are critical to our work.

What we need from you is fact-based evidence on both the real and the perceived barriers to voluntary self-identification.

Throughout this rule-making process, I have heard from numerous individuals, advocates and leaders in the disability community who tell me that they want these invitations to self-identify, that they welcome the question when it is genuinely intended to increase their opportunities in the workforce.

But as I said from the start, "good data is the cornerstone of good public policy."

What we need from you is data. How can employers ask the question? How can they put it in the right context? What steps will they need to take to achieve the intended result?

To put it another way, what is the state-of-the science on this issue and how can we expand the field of understanding about what it will take to improve a worker's willingness to self-identify as a person with a disability?

The answers to these questions are critical from the perspectives of both employers and workers. And I believe they provide the key to the success of our new rule.

 


 

Both the Section 503 and the veterans' rules become effective on March 24, 2014.

Over the next five month, my staff and I will be working closely with our regulated community to provide technical assistance, conduct trainings, answer questions and develop resource materials as needed.

But we will also be in listening mode.

Now that the rules are finalized, we are moving into the operational phase of implementation. And we believe that operationalizing these rules is going to be a process, not a switch.

In closing, let me say that I am proud of our rulemaking process.

I am proud of the work that was done by dozens of individuals at OFCCP and throughout the Labor Department.

I am proud of the collaborative approach we took – in concert with our colleagues in sister agencies like the EEOC and with staff from the OMB and the White House.

And I am proud of the tremendous feedback we received from workers, employers, advocates, scholars and the public.

In the four years since I arrived at OFCCP, I met with countless stakeholders to talk about these two rules. We managed a comprehensive rulemaking process and reviewed hundreds of comments on our proposed rules.

In the end, I hope you will find that we listened. We heard the valid concerns of business leaders who were concerned about over-burdensome regulations, and we took note of the priorities of advocates in the disability rights community.

On October 1 – the very first day of the government shutdown – I was pleased to see those engagement efforts recognized by former Pennsylvania Governor Tom Ridge, who served as the very first Secretary of Homeland Security. In an op-ed published in the Wall Street Journal, Governor Ridge praised our rulemaking as an example of how government and business should work together.

I couldn't agree more.

These rules are game-changers. And as I stand here today, I imagine a world where people are evaluated based on their abilities, not their disabilities. A world where veterans who have made tremendous sacrifices for their country "over there" know how much their country values them right here.

We can and must do better. Thanks to these new and improved regulations, I believe we will.

Thank you very much.