[Federal Register Volume 61, Number 85 (Wednesday, May 1, 1996)]
[Rules and Regulations]
[Pages 19336-19366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9662]
[[Page 19335]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Office of Federal Contract Compliance Programs
_______________________________________________________________________
41 CFR Parts 60-250 and 60-741
Affirmative Action and Nondiscrimination Obligations of Contractors and
Subcontractors Regarding Individuals With Disabilities, Disabled
Veterans and Veterans of the Vietnam Era; Invitation to Self-Identify;
Final Rules
Federal Register / Vol. 61, No. 85 / Wednesday, May 1, 1996 / Rules
and Regulations
[[Page 19336]]
DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Part 60-741
RIN 1215-AA76
Affirmative Action and Nondiscrimination Obligations of
Contractors and Subcontractors Regarding Individuals With Disabilities
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: The Office of Federal Contract Compliance Programs of the
Department of Labor (OFCCP) is revising the regulations implementing
section 503 of the Rehabilitation Act of 1973, as amended (section 503
or the act), which requires Government contractors and subcontractors
to take affirmative action to employ and advance in employment
qualified individuals with disabilities. The final rule makes three
general types of revisions to the section 503 regulations. First, the
regulations' nondiscrimination provisions generally are conformed to
the regulations published by the Equal Employment Opportunity
Commission (EEOC) implementing title I of the Americans with
Disabilities Act of 1990 (ADA). Second, the regulations incorporate
recent amendments to section 503. Third, the regulations are revised to
strengthen and clarify various existing provisions relating to
affirmative action, recordkeeping, enforcement and other issues. In
addition, the term ``Director'' that appears in the current regulations
and the previous proposal has been replaced throughout the final rule
with the term ``Deputy Assistant Secretary.''
The final rule partially withdraws a final rule published by the
Department of Labor on December 30, 1980 (which was subsequently
suspended) concerning section 503, Executive Order 11246 and the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended.
The withdrawal applies only to those provisions of the rule which
pertain to section 503.
EFFECTIVE DATE: These regulations will take effect on August 29, 1996.
FOR FURTHER INFORMATION CONTACT: Joe N. Kennedy, Deputy Director,
OFCCP, 202-219-9475 (voice), 1-800-326-2577 (TDD). Copies of this final
rule, including copies in alternative formats, may be obtained by
calling OFCCP at 202-219-9430 (voice) or 1-800-326-2577 (TDD). The
alternative formats available are: Large print, electronic file on
computer disk, and audio-tape.
SUPPLEMENTARY INFORMATION:
Current Regulations and Rulemaking History
This final rule revises the current regulations (41 CFR part 60-
741) implementing section 503 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793) (section 503 or the act), which requires
parties holding a Government contract or subcontract in excess of
$10,000 to ``take affirmative action to employ and advance in
employment qualified individuals with disabilities.'' These regulations
establish specific affirmative action obligations for contractors
(e.g., contractors are required to use effective practices to recruit
qualified individuals with disabilities). The duty to undertake
affirmative action encompasses a duty to refrain from discriminating
against qualified individuals with disabilities.
On October 21, 1992, the Department of Labor's Office of Federal
Contract Compliance Programs (OFCCP) published a notice of proposed
rulemaking (NPRM or the proposal), 57 FR 48084, proposing to revise the
regulations implementing section 503. A notice correcting certain
technical errors in the NPRM was issued on October 30, 1992. 57 FR
49160. The comment period ended November 20, 1992. Thirty-seven
comments were received. A number of comments were submitted on behalf
of several organizations and represented the views of various groups,
employers, or individuals with disabilities. The comments have been
analyzed and considered in the development of this final rule.
Regulatory Revisions
1. Conformance With Americans With Disabilities Act Standards
The final rule was precipitated, in part, by the passage of the
Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. The
Americans with Disabilities Act provides comprehensive civil rights
protections to individuals with disabilities in the areas of
employment, public accommodations, State and local governmental
services, and telecommunications. Title I of the Americans with
Disabilities Act (ADA), which is enforced by the Equal Employment
Opportunity Commission (EEOC), prohibits private and State and local
governmental employers from discriminating against qualified
individuals with disabilities in all aspects of employment. The EEOC
published regulations implementing the ADA on July 26, 1991 (29 CFR
part 1630). The ADA regulations establish comprehensive, detailed
prohibitions regarding disability discrimination but do not address
issues regarding affirmative action. The ADA and its implementing
regulations became effective on July 26, 1992, with respect to
employers with 25 or more employees; on July 26, 1994, this coverage
was extended to employers with 15 or more employees.
This final rule conforms OFCCP's section 503 regulations to the
EEOC's ADA regulations. This action ensures that OFCCP and EEOC will
avoid the imposition of inconsistent legal standards when processing
complaints of discrimination that fall within the overlapping
jurisdiction of both section 503 and title I of the ADA, as is required
by section 107(b) of the ADA and by a recent amendment to section 503.
Section 107(b) of the ADA requires that OFCCP and EEOC establish
procedures to ensure that administrative complaints filed under both
laws are ``dealt with in a manner that avoids duplication of effort and
prevents imposition of inconsistent or conflicting standards.'' 1
Section 505(c) of the Rehabilitation Act Amendments of 1992 (Pub. L.
102-569, 106 Stat. 4344) (the 1992 amendments or the 1992 legislation)
amended section 503 by adding a new paragraph (e) which expressly
obligates the Secretary of Labor to develop these same procedures.
Also, the 1992 amendments added a new paragraph (d) to section 503,
which provides that ``The standards used to determine whether [section
503] has been violated in a complaint alleging nonaffirmative action
employment discrimination under [section 503] shall be the standards
applied under title I of the Americans with Disabilities Act of 1990.''
In conforming the section 503 regulations to the EEOC's ADA
regulations, this rule effectively implements these requirements.
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\1\ Pursuant to that section, OFCCP and EEOC published joint
regulations which set forth procedures governing the processing of
complaints that fall within the overlapping jurisdiction of both
title I of the ADA and section 503. 41 CFR part 60-742 (OFCCP) and
29 CFR part 1641 (EEOC). The joint rule requires, among other
things, that OFCCP (acting as EEOC's agent) process and resolve
complaints of employment discrimination based on disability for
purposes of title I of the ADA (as well as for section 503) when
there is jurisdiction under both statutes. OFCCP is required by the
rule to apply legal standards that are consistent with the
substantive legal standards applied under the ADA.
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One of the comments submitted in response to the publication of the
NPRM expressed the view that OFCCP's post-ADA role should be to focus
its enforcement efforts on affirmative action matters, as distinguished
from discrimination issues. The commenter's view is based on the
assertion that
[[Page 19337]]
OFCCP's authority to engage in compliance activities under section 503
relating to issues of discrimination was limited by the passage of the
ADA, which, the commenter contends, effectively transferred much of
OFCCP's authority in this area to EEOC. OFCCP disagrees. OFCCP's role
in the enforcement of the nondiscrimination requirements of section 503
was reaffirmed by the provisions of the ADA and the 1992 amendments
requiring coordination of enforcement under the ADA and section 503 and
the application of ADA standards in section 503 discrimination cases.
Nondiscrimination requirements are discussed in more detail in this
final rule than in the current regulations, because the final rule
incorporates the more expansive discussion of these requirements
contained in the ADA regulations. However, OFCCP views the expanded
discussion as a clarification of the general nondiscrimination
requirements under the current regulations, rather than as a
significant alteration of those requirements. Accordingly, in general,
this final rule does not affect the applicability of case law
(administrative and judicial) developed under section 503. (Thus,
section 503 case law continues in effect unless inconsistent or in
conflict with this rule.)
Because this final rule generally conforms the section 503
nondiscrimination regulations to the EEOC's ADA regulations, the
Interpretative Guidance on Title I of the Americans with Disabilities
Act set out as an appendix to the title I regulations--which provides
guidance about key provisions of the regulations--is equally applicable
with respect to the interpretation of the parallel provisions of these
regulations. Similarly, the Technical Assistance Manual on the
Employment Provisions (Title I) of the Americans with Disabilities Act
issued by the EEOC may also be relied upon for guidance.
As is discussed later in this preamble, however, there are a number
of differences, primarily of an editorial or technical nature, between
this rule and EEOC's regulations. For instance, the rule uses the term
``contractor,'' which is specific to the section 503 program, rather
than the analogous terms used by the ADA--``covered entity'' and
``employer.'' This final rule also contains a few explanatory
footnotes, which are intended for clarity only. OFCCP wishes to
reemphasize that it intends to apply its regulations consistently with
parallel provisions of the ADA regulations.
2. Implementation of the 1992 Statutory Amendments
This rule also implements a number of recent legislative amendments
to section 503, including--with one exception discussed below--the
amendments set forth in the 1992 legislation. The 1992 legislation was
signed into law on October 29, 1992, eight days after the issuance of
the NPRM, and thus the amendments to section 503 contained in that
legislation were not reflected in the proposal. The amendments to the
current section 503 regulations that are necessitated by the 1992
legislation and are ministerial and technical in nature have been
incorporated into this rule without substantive change. Publication in
proposed form would serve no useful purpose and is unnecessary under
the Administrative Procedure Act (5 U.S.C. 553(b)(B)). OFCCP,
therefore, finds good cause to waive notice of proposed rulemaking with
respect to the implementation of these amendments. The revisions to the
regulations necessitated by the legislative amendments are described
below.
The 1992 legislation amended the act's general jurisdictional
provisions in two respects. First, section 505(a) of the 1992
legislation amended section 503(a) by raising the contract dollar
amount threshold for covering a contractor from ``in excess of $2500''
to ``in excess of $10,000.'' Accordingly, this rule replaces all
references to $2500 contained in the current regulations with
references to $10,000.
Second, section 505(a) of the 1992 legislation also removed a
provision in section 503 of the act limiting its coverage to the
contractor's positions that are engaged in work related to Government
contracts. Prior to this amendment, section 503(a) provided that
Government contracts and subcontracts ``shall contain a provision
requiring that, in employing persons to carry out such contract, the
party contracting with the United States shall take affirmative action
to employ and advance in employment qualified individuals with
handicaps.'' The 1992 legislation struck out the phrase ``in employing
persons to carry out such contract.'' The effect of this amendment is
to apply the requirements of section 503 to all of a covered
contractor's or subcontractor's work force at all of its facilities.
In response to the coverage amendment, the few references to the
``carry out the contract'' language contained in the NPRM are omitted
from this final rule. Further, in order to reflect this amendment,
proposed Sec. 60-741.4(a)(2)--which expressly limited application of
the regulations to positions that are engaged in carrying out a
contract--has been revised in the final rule to clarify that such
limitation applies only to the contractor's employment decisions and
practices occurring before the amendment (see discussion in the
section-by-section analysis below).
Moreover, section 505(b) of the 1992 legislation codified the
``separate facility'' waiver provision contained in the current
regulations (Sec. 60-741.3(a)(5)) by expressly incorporating it (with
minor editorial changes) into section 503. The provision permits the
contractor to seek a waiver from the requirements of the regulations
for facilities that are not connected to a Government contract. (The
amendment added a new subsection (c)(2) to section 503 of the act; it
supplemented existing subsection (c), which the amendment redesignated
as subsection (c)(1), authorizing the granting of regulatory waivers in
the national interest.) The legislative history of the waiver amendment
indicates that it was included in the legislation in order to reaffirm
the long-standing ``separate facility'' waiver policy codified in the
regulations. S. Rep. 357, 102nd Cong., 2d Sess. 72 (1992).
This rule implements the waiver amendment by retaining the current
regulations' separate facility waiver provision (without change); the
final rule sets out the provision at Sec. 60-741.4(b)(3). As is
discussed above, the NPRM had replaced the current waiver provision
with proposed Sec. 60-741.4(a)(2), which is retained in this final rule
with modifications (see discussion below).2
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\2\ Section 505(b) of the 1992 amendments also requires OFCCP to
promulgate regulations that set forth the standards used for
granting separate facility waivers. This final rule does not
implement this requirement. OFCCP issued a separate proposed rule
setting out proposed regulatory standards for granting separate
facility waivers on February 14, 1996 (60 FR 5902).
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Also, the 1992 legislation (Sec. 102(f)(4)) clarified that
homosexuality and bisexuality are not disabilities under section 503,
and excluded from protection under section 503 certain conditions
(e.g., transvestism, transsexualism, pedophilia and compulsive
gambling) in order to conform the types of conditions protected from
discrimination under section 503 and the ADA. These provisions are
incorporated by the final rule in Secs. 60-741.3(d) and (e), and are
discussed in the section-by-section analysis below.
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Finally, the 1992 legislation substituted the term ``disability''
for the term ``handicap'' throughout the Rehabilitation Act, including
section 503 (see, e.g., Sec. 102(f)(2) of the 1992 legislation). This
amendment, which did not affect the meaning or application of the term,
conforms the terminology used by the Rehabilitation Act to that used in
the ADA. The NPRM proposed a similar substitution in language
throughout the section 503 regulations, which is carried forward in
this final rule. (The proposed definition of ``individual with a
disability'' clarified, at Sec. 60-741.2(n)(2), that the regulations
refer to that term rather than to the term ``individual with
handicaps,'' which was then used in the Rehabilitation Act. This
statement is omitted from this final rule.)
3. Partial Withdrawal of the 1980 Final Rule
This final rule also partially withdraws a final rule published by
OFCCP on December 30, 1980 (45 FR 86215; corrected at 46 FR 7332,
January 23, 1981), and deferred indefinitely on August 25, 1981 (46 FR
42865). That 1980 rule would have revised the regulations at 41 CFR
chapter 60 implementing section 503 of the Rehabilitation Act as well
as two other laws enforced by OFCCP--Executive Order 11246 (30 FR
12319, September 28, 1965), as amended (the Executive Order), and the
affirmative action provisions of the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended (38 U.S.C. 4212) (section 4212). The
Executive Order requires Government contractors and subcontractors to
assure equal employment opportunity without regard to race, color,
religion, sex and national origin. Section 4212 mandates similar
requirements with regard to the employment of certain disabled veterans
and veterans of the Vietnam era.
The December 30, 1980, rule was to take effect on January 29, 1981.
On January 28, 1981, the Department of Labor published a notice (at 46
FR 9084) delaying the effective date of the final rule until April 29,
1981, to allow the Department time to review the regulation fully. The
Department published three subsequent deferrals of the rule in 1981 in
order to fully review the regulations in accordance with Executive
Order 12291, to permit consultation with interested groups, and to
comply with intergovernmental review and coordination procedures. The
Department again postponed the rule's effective date on August 25,
1981, until action could be taken on a proposed rule published on the
same date (46 FR 42968). The August 25, 1981, proposal would have
revised a number of provisions contained in the December 30, 1980,
final rule as well as a number of provisions in 41 CFR chapter 60 which
were not amended by that final rule. Final action has not been taken
with respect to the proposed regulations issued on August 25, 1981, or,
consequently, with respect to the 1980 final rule.
The substance of a number of the provisions contained in the 1980
final rule pertaining to the current section 503 regulations was
incorporated into the NPRM and is carried forward by this final rule.
However, as explained in the NPRM, OFCCP has determined not to go
forward with some of the other revisions to the regulations. In order
to avoid conflict with the 1980 final rule, this final rule withdraws
all provisions of the 1980 rule that pertain to section 503.
4. Impact on the 1980 Proposed Rule
On December 30, 1980, OFCCP published a proposed rule (45 FR
86206), the primary purpose of which was to conform the regulations
implementing section 503 and section 4212 (which were patterned after
those implementing section 503) to the employment provisions of the
Department of Labor's regulations implementing section 504 of the
Rehabilitation Act, which appear at 29 CFR part 32. Because this final
rule conforms the section 503 regulations to those implementing title I
of the ADA, it supersedes the 1980 proposal insofar as the 1980
proposal would conform section 503's regulations to those implementing
section 504.
Overview of Final Rule
This final rule consists of five subparts. Subpart A, ``Preliminary
Matters, Equal Opportunity Clause,'' explains the purpose, application
and construction of the regulations in general and contains an
extensive definitions section. The definitions section incorporates the
definitions contained in the EEOC regulations implementing title I of
the ADA which are relevant to the enforcement of section 503 and
contains a number of revisions to the current definitions as well.
Subpart A also contains provisions relating to coverage under section
503, and coverage exemptions and waivers, as well as the equal
opportunity clause, which delineates a covered contractor's general
duties under the act. Subpart B is a new subpart, which specifies the
employment actions that will be deemed to constitute prohibited
discrimination under section 503. In general, this subpart is identical
to the parallel provisions in the EEOC regulations. Some deletions and
modifications have been made with respect to the EEOC regulations to
conform to section 503 policies and procedures. Subpart C, which
governs the applicability of the affirmative action program
requirement, reorganizes, clarifies and strengthens the affirmative
action provisions in the current regulations. This subpart is not
paralleled in the ADA regulations, which mandate nondiscrimination
requirements only. As stated in Sec. 60-741.40(a) and discussed below,
the requirements of subpart C apply only to Government contractors with
50 or more employees and a contract of $50,000 or more. All other
subparts of the regulation are applicable to all contractors covered by
section 503.3 Subpart D covers general enforcement and complaint
procedures. To help ensure an enforcement approach consistent with that
used under the Executive Order, this subpart incorporates a number of
provisions from the regulations implementing the Executive Order.
Further, subpart D's provisions regarding complaint procedures are
conformed to the counterpart provisions contained in procedural
regulations applicable to the ADA. Subpart E, Ancillary Matters,
incorporates revised provisions on recordkeeping (e.g., it extends the
current one-year record retention period to two years for larger
contractors and conforms the scope of the retention obligation to that
applied by the EEOC under the ADA) and makes other revisions.
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\3\ The NPRM specifically requested public input on the topic of
affirmative action under section 503, including comment on the
appropriateness of the affirmative action obligations contained in
the proposal and suggestions regarding other obligations that might
be imposed. The public input on these issues was quite limited.
OFCCP is continuing to explore these issues and will consider
whether further revisions to the regulations' affirmative action
provisions would be appropriate.
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Finally, the rule contains two new appendices. One of the new
appendices sets out guidance on positions engaged in carrying out a
Government contract. This is an important concept in determining which
of the contractor's positions are subject to part 60-741 with respect
to its employment decisions and practices occurring before October 29,
1992. (As noted above, on that date, section 503, which had applied
only insofar as the contractor was employing persons to carry out a
contract, was amended to extend coverage thereunder to all of the
contractor's positions--irrespective of their relation to the
contract.) The second new appendix
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sets out guidance on the duty to provide reasonable accommodation under
the act. The appendix is consistent with the discussion of this issue
contained in the Interpretative Guidance on Title I of the Americans
with Disabilities Act which is set out as an appendix to the EEOC's ADA
regulations.
A discussion of significant comments and an explanation of the
changes made from the NPRM to this final rule (other than those
discussed above) follows.
Section-by-Section Analysis of Comments and Revisions
Section 60-741.1 Purpose, Applicability and Construction
Section 60-741.1(b) Applicability
Proposed paragraph (b) stated in part that the regulations apply to
Government contracts which are performed within the United States. Upon
reconsideration, OFCCP believes that this statement is unnecessary in
this context, inasmuch as a similar clarification is made in Sec. 60-
741.4(a)(4) (which, as discussed below, has been revised for clarity).
Therefore, the statement is omitted in the final rule.
Section 60-741.2 Definitions
Section 60-741.2(a) Act
The citation of authority contained in the proposed definition has
been revised to make reference to the Rehabilitation Act Amendments of
1992.
Section 60-741.2(d) Deputy Assistant Secretary
The current regulation defines the term ``Director.'' The Director
has been given the new title of ``Deputy Assistant Secretary for
Federal Contract Compliance''; the final rule has been revised
accordingly.
Section 60-741.2(f) United States
The current regulation defines the United States as including the
Panama Canal Zone. The proposal deleted the Panama Canal Zone, which by
treaty is no longer part of the United States, and added the Northern
Mariana Islands. The final rule further updates the definition by
listing Wake Island and deleting the Trust Territory of the Pacific
Islands.
Section 60-741.2(i) Government Contract
Four commenters objected to the clarification set forth in the
definition of the term ``Government contract''--that contracts covered
under section 503 include those under which the Government is a seller
of goods or services as well as those under which it is a purchaser. In
relevant part, the definition provides that a ``Government contract''
is ``any agreement or modification thereof between any contracting
agency and any person for the purchase, sale or use of personal
property or nonpersonal services (including construction).'' The NPRM
proposed substitution of a reference to contracts for the ``purchase,
sale or use'' of goods or services for the existing reference (Sec. 60-
741.2) to the ``furnishing'' of goods or services. (The existing
regulation also states that the term ``services,'' as used in the
definition, applies irrespective of whether the Government is a
purchaser or seller. This statement is unnecessary in light of the
proposed revision, and thus was not carried forward in the NPRM.) The
commenters contended that this interpretation is inconsistent with
section 503(a), because the statute expressly or implicitly limits
coverage to those contracts in which the Federal Government is
procuring property or nonpersonal services, rather than those in which
it is the supplier. For the reasons discussed below, OFCCP believes
that the definition as proposed in the NPRM is consistent with the
statute, and thus declines to modify it.
In relevant part, section 503(a) provides that coverage under the
act applies to ``Any contract * * * entered into by any Federal
department or agency for the procurement of personal property and
nonpersonal services (including construction).'' OFCCP has long
interpreted the statute to cover both contracts in which the Government
is the seller of goods or services and those in which it is the
purchaser. This interpretation is supported by the statute's use of the
term ``any contract'' and by its broad remedial purpose. OFCCP believes
that the statute's use of the term ``procurement'' simply refers to the
subject matter of the contract, and does not restrict its application
to situations in which the Government, rather than the contractor, is
procuring goods or services. Further direct support is found in the
act's legislative history--which describes section 503 as applying to
``any contract * * * entered into by any Federal department or agency
for personal property or services'' (S. Rep. No. 318, 93rd Cong., 1st
Sess., reprinted in 1973 U.S. Code Cong. & Ad. News 2142 (emphasis
added)), and as ``a provision to ensure [that] any qualified
handicapped individual shall be given full and fair consideration for
employment by any contractor who seeks to contract with the Federal
Government'' (id., reprinted in 1973 U.S. Code Cong. & Ad. News 2123
(emphasis added)). There is nothing in this legislative history
suggesting that Congress intended to limit coverage under the act to
contracts in which the Government is a purchaser.
Moreover, at least one court has upheld a similar interpretation
under the Executive Order. Crown Central Petroleum Corp. v. Kleppe, 424
F. Supp. 744 (D. Md. 1976). In relevant part, the Executive Order (at
section 202) provides that (with the exception of certain specified
types of contracts), a provision obligating the contractor to comply
with the Order shall be included in ``every Government contract.'' In
Kleppe, the court held that the Executive Order is applicable to the
Government's lease to Crown Central of rights to mine on Federal lands.
The court ruled that the application of the Executive Order to this
situation is consistent with the Order's literal language, and that an
interpretation limiting the Order's application to only suppliers of
goods or services would be inconsistent with the national policy of
eliminating racial and other discrimination embodied in the Executive
Order. 424 F. Supp. at 427-28. An analogous rationale applies to
section 503 in view of Congress' clear intent that the contract
coverage provisions of section 503 parallel those of the Executive
Order. See S. Rep. No. 1297, 93rd Cong., 2d Sess., reprinted in 1974
U.S. Code Cong. & Ad. News 6427.
One commenter objected to the subdefinition of ``personal
property'' (Sec. 60-741.2(i)(6)) as inconsistent with OFCCP's statutory
authority. The definition states that the term, as used in connection
with the terms ``Government contract'' and ``subcontract'' (Sec. 60-
741.2(l)), ``includes supplies and contracts for the use of real
property (such as lease arrangements), unless the contract for the use
of real property itself constitutes real property (such as
easements).'' The commenter asserted that neither a plain reading of
section 503 itself--which states that the act applies to contracts
concerning personal property and nonpersonal services--nor its
legislative history supports an interpretation that leasehold interests
in real property are covered by the act.
The current definition of ``Government contract'' (at Sec. 60-
741.2) provides, in relevant part, that the term includes agreements
``for the furnishing of supplies or services or for the use of real or
personal property including lease arrangements.'' As stated in the
NPRM's preamble, the revision to the regulation was intended ``to make
clear, consistent with the language of the act, that only contracts
regarding personal property
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(including those for the use of real property where such use
constitutes personal property) and `nonpersonal' services are
covered.'' The subdefinition of ``personal property'' simply recognizes
that real property leases constitute personal property under the common
law, and applies that principle in defining the scope of coverage under
section 503. See, e.g., In re Wolverton Associates, Inc. v. Official
Creditors' Committee, 909 F.2d 1286 (9th Cir. 1990); United States v.
Dally, 165 F. Supp. 194 (S.D.N.Y. 1958); First National Bank of Kansas
City v. Nee, 85 F. Supp. 840 (W.D. Mo. 1949), aff'd, 190 F.2d 61 (8th
Cir. 1951). The subdefinition is retained in the final regulation
without modification.
Several commenters representing credit unions raised objections to
OFCCP's position, as stated in the NPRM's preamble, that Federal
deposit and share insurance constitutes a Government contract within
the meaning of section 503, and thus subjects financial institutions
with such insurance to coverage under the act. The statement in the
NPRM's preamble regarding coverage of Federal deposit and share
insurance as a Government contract did not reflect any change in the
regulations implementing section 503--indeed, the NPRM did not propose
any regulatory provisions regarding this issue. Rather, the preamble
discussion merely restated and clarified the agency's long-standing
position; it was noted that OFCCP stated this position in the purpose
and application section (Sec. 60-741.1) of its 1980 final rule.
(Similar opposition had been raised in response to the proposal
preceding the 1980 final rule.) The preamble also stated that OFCCP
continues to hold this view, and that OFCCP declined to incorporate
into the proposal a similar statement regarding coverage of Federal
deposit and share insurance, because OFCCP believed it is unnecessary
to single out this contractual relationship from any other covered by
the regulations. This statement, then, was merely intended to explain
why the proposal differed from the 1980 final rule, and simply echoed
OFCCP's long-standing policy on the issue. Nevertheless, OFCCP
conducted a careful and detailed reevaluation of its position in light
of changes in some of the statutes affecting the financial industry.
Based upon that review, OFCCP continues to believe in the soundness of
its position and does not modify it.
Additionally, these commenters asserted that coverage of Federal
deposit and share insurance under section 503 would improperly
interfere with the authority of the regulatory agencies of financial
institutions to regulate credit unions. Also, some commenters asserted
that such a position is invalid because to date OFCCP has failed to
issue a rule codifying it; relatedly, some commenters requested that
OFCCP seek public comment on the coverage issue, and others requested
that the comment period for the NPRM be extended to permit additional
public input on the issue. OFCCP believes that it need not expressly
incorporate its policy into a regulatory provision or seek public
comment, inasmuch as the policy merely reflects an interpretation of an
existing regulatory provision (i.e., the definition of ``Government
contract''); thus, it is exempt from the notice and comment procedures
of the Administrative Procedure Act. See 5 U.S.C. 553(b)(A).
OFCCP also wishes to reemphasize that it will continue to maintain
its long-standing policy of imposing sanctions other than debarment of
financial institutions from future deposit or share insurance, or
cancellation, termination or suspension of a financial institution's
deposit or share insurance for violations of section 503 (see Sec. 60-
741.66 Sanctions and penalties).
Section 60-741.2(l) ``Subcontract''
The final rule was revised slightly to correct a clerical error.
The proposed definition of ``subcontract'' had inadvertently omitted
the parenthetical phrase ``(including construction)''. The proposed and
final definitions of the term ``Government contract'' (Sec. 60-
741.2(i)(5)) confirm that the parenthetical phrase was intended to be
included in the definition of ``subcontract'' the same as it is
included in the definition of the term ``Government contract'' so that
the definitions are parallel.
Section 60-741.2(q) ``Substantially limits''
The final rule was revised slightly to mirror the corresponding
definition in the ADA regulations. The proposed rule had used the
phrase ``within the normal range of abilities of persons in the general
population'' in place of the ADA rule's reference to the ``average
person in the general population.'' The proposal stated that the
difference in language was intended for clarity only and that OFCCP
intended to apply the definition and subdefinition in the same manner
as they are applied under the ADA. However, in order to prevent any
misunderstanding regarding OFCCP's intent, the final rule repeats the
ADA language verbatim and includes a footnote further describing the
definition.
Additionally, the subdefinition relating to substantial limitation
in the major life activity of working has been revised slightly to
conform to the corresponding ADA provision at 29 CFR 1630.2(j)(3). As
revised, it refers to the average person in the general population
having comparable training, skills, and abilities.
Section 60-741.2(v) ``Reasonable accommodation''
The final rule incorporates a definition identical to the ADA
definition at 29 CFR 1630.2(o) (see appendix discussion related to
Sec. 1630.2(o)); the current section 503 regulations do not contain a
definition of the term. The definition states that a reasonable
accommodation is any change in the work environment or the way job
duties are customarily performed that enables individuals with
disabilities to perform the essential functions of the job in issue, or
that ensures equal opportunity for individuals with disabilities with
respect to the application process or the enjoyment of benefits and
privileges of employment.
The proposal had contained a slight modification of the ADA
definition. Paragraph (v)(1)(i) of the OFCCP proposal referred to
modifications to the job application process that enable ``an
applicant'' with a disability to be considered for a position, while
the ADA definition uses the term ``qualified applicant'' in this
context. However, the final rule repeats the ADA regulation verbatim,
in order to clarify that the interpretation is meant to be the same.
OFCCP now explains in a footnote that contractors should not draw the
erroneous inference that their duty to provide a reasonable
accommodation with respect to applicants with disabilities is limited
to those who ultimately can demonstrate that they are qualified to
perform the job in issue. Applicants with disabilities must be provided
a reasonable accommodation if they are qualified with respect to the
application process (e.g., if they present themselves at the correct
location and time to fill out an application). This is the same
approach used under the ADA's definition.
The proposal contained a similar departure from the ADA regulation
in paragraph (v)(3), which referenced an informal, interactive process
with ``the individual with a disability.'' To clarify that the
regulations are meant to be interpreted consistently, the final rule
mirrors the ADA regulation and refers to a ``qualified'' individual.
OFCCP now
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explains in a footnote that contractors must engage in such an
interactive process with individuals with disabilities because, until
they have done so, they may be unable to determine whether a reasonable
accommodation is available that will result in the person being
qualified.
Section 60-741.2(y) Direct Threat
Two disability rights groups objected to the reference to the
health or safety of the individual with a disability in the definition
of ``direct threat.'' One group expressed the concern that the
reference to the risk to the individual might result in direct threat
determinations that are based on paternalistic or stereotypical views
concerning persons with disabilities. The other group asserted that
contractors might exempt themselves from the requirements of section
503 simply by invoking this rationale with little or no evidence of an
actual threat. OFCCP believes that such concerns are unwarranted. The
definition is identical to the parallel definition contained in EEOC's
ADA regulations (Sec. 1630.2(r)), which, in turn, is based on the case
law interpreting the Rehabilitation Act. As noted in EEOC's
interpretative guidance, the employer's assessment of whether there is
a risk to the individual with a disability, like its assessment of risk
to others, must be based strictly on valid medical analyses or other
objective evidence. The assessment must be made on a case-by-case basis
relying on the factors set out in the definition, rather than on
subjective perceptions, irrational fears, patronizing attitudes or
stereotypes. See Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985);
Bentivegna v. U.S. Department of Labor, 694 F.2d 619 (9th Cir. 1982);
E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (D. Hi. 1980). OFCCP
intends to ensure that contractors comply with this requirement. The
final rule adopts the definition without change.
Section 60-741.3 Exceptions to the Definitions of ``Individual With a
Disability'' and ``Qualified Individual with a Disability''
Section 60-741.3(a)(4) Construction
Paragraph (a)(4)(ii) clarifies that an individual is not
necessarily protected by section 503 simply because he or she is a
recovered or recovering drug abuser or is erroneously regarded as a
current drug user. Such an individual must still satisfy the
requirements for protection as a ``qualified individual with a
disability.'' An individual erroneously regarded as illegally using
drugs, for example, would have to show that he or she was regarded as a
drug addict in order to demonstrate that he or she meets the definition
of a ``qualified individual with a disability.''
Section 60-741.3(a)(5) Current Illegal Use of Drugs--Drug Testing
One commenter expressed a concern that this provision conflicts
with the policy of the National Labor Relations Board (NLRB) relating
to an employer's obligation to engage in collective bargaining with its
employees' representatives regarding the imposition of a workplace drug
testing policy. Paragraph (a)(5) provides that a contractor may seek
reasonable assurances, through drug testing and other means, that a
recovered or recovering drug user is no longer engaging in the illegal
use of drugs. This paragraph merely clarifies that such drug testing
does not conflict with the regulations implementing section 503. It
does not require an employer to implement drug testing, and therefore
does not conflict with the above NLRB policy.
Section 60-741.3(d) Homosexuality and Bisexuality
This paragraph of the final rule, which clarifies that
homosexuality and bisexuality do not constitute disabilities under
section 503, incorporates (with minor editorial changes) an amendment
contained in the 1992 legislation (Sec. 102(f)(4)). (The amendment
added a new paragraph (E) to the definition of ``individual with a
disability'' set out at 29 U.S.C. 706(8).) The amendment parallels a
provision contained in the ADA (42 U.S.C. 12211(a)), which is
implemented in the EEOC's regulations at Sec. 1630.3(e). The amendment
was intended to facilitate the consistent application of section 503
and the ADA.
Section 60-741.3(e) Other Conditions
This paragraph, which specifies that section 503 does not apply to
certain specified conditions--for instance, transvestism,
transsexualism, pedophilia and compulsive gambling--incorporates (with
minor editorial changes) an amendment contained in the 1992 legislation
(Sec. 102(f)(4)). (The amendment added a new paragraph (F) to the
statutory definition of ``individual with a disability.'') The
paragraph parallels a provision contained in the EEOC's regulations
(Sec. 1630.3(d)). The amendment was intended to conform the types of
conditions excluded from protection under section 503 to those excluded
from protection under the ADA (see 42 U.S.C. 12211(b)). (Paragraph (d)
of the NPRM provided that the terms ``individual with a disability''
and ``disability'' do not apply to an individual solely because the
individual is a transvestite. That clarification is subsumed within
this paragraph of the final rule.)
Section 60-741.4 Coverage and Waivers
Section 60-741.4(a)(2) Coverage--Positions Engaged in Carrying out a
Contract
The NPRM, among other things, provided (at paragraph (a)(2)(i))
that the regulations cover only positions of the contractor that are
engaged in carrying out a Government contract, and (in paragraphs
(a)(2)(i) (A) and (B)) set forth standards defining the circumstances
under which a position shall be deemed to be engaged in carrying out a
contract. Further, the proposal (in paragraphs (a)(2)(iii) (A) and (B))
required the contractor to make a determination as to which of its
positions are covered by the regulations as well and a record of its
determination, and (in paragraph (a)(2)(iii)(C)) provided that if a
contractor fails to make this determination, it must extend the
protections of the act and the regulations to all of its positions
until such time as it makes the coverage determination for a particular
position. The final rule revises these provisions consistent with the
1992 amendment to section 503 extending coverage under the act to the
contractor's entire work force.
As stated in the preamble to the NPRM, the purpose of the provision
limiting application of the regulations to positions that are engaged
in carrying out a contract was to more closely conform the regulations
to the jurisdictional limitation then-contained in section 503(a) as
interpreted by the court in Washington Metropolitan Area Transit
Authority v. DeArment, 55 EPD para.40,507 (D.D.C. 1991). The 1992
legislation, by striking this jurisdictional limitation from section
503, amended the act to apply to all of a covered contractor's or
subcontractor's work force. This amendment had prospective effect only.
In order to reflect this statutory amendment, the coverage
limitation set forth in paragraph (a)(2)(i) of the NPRM has been
revised in the final rule to provide that the limitation applies only
to the contractor's employment decisions and practices occurring before
the amendment's effective date--October 29, 1992. The proposed
standards governing the determination whether a position is engaged in
carrying out a contract have been carried forward in the final rule
without
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substantive change. (Stylistic revisions reflecting the jurisdictional
limitation's retroactive application have been incorporated throughout
paragraph (a)(2) as well as in appendix D, which sets out guidance
regarding positions engaged in carrying out a contract.) Thus, for
instance, in investigating whether a contractor covered by section 503
has discriminated against an individual with a disability in violation
of the act, the issue whether the discriminatee was employed in, or was
an applicant for, a position engaged in carrying out a Government
contract will be relevant only if the alleged discrimination occurred
before October 29, 1992. This section still has practical utility
because there are a number of pending section 503 complaints involving
alleged violations of the act which occurred before the amendment.
Moreover, the requirement contained in the NPRM that the contractor
determine which of its positions carry out contracts (and thus are
covered) and make a record of that determination has been eliminated in
the final rule. As explained in the preamble to the NPRM, this
determination was necessary in order to define the scope of the
contractor's affirmative action and nondiscrimination obligations under
the regulations. This determination, which was intended to be applied
prospectively only, is no longer needed inasmuch as the act has been
amended to extend those obligations to the contractor's entire work
force.
Three commenters objected to ``prong A'' of the coverage test
(paragraph (a)(2)(i)(A))--which provides that a position is engaged in
carrying out a contract if its duties include work that fulfills a
contractual obligation, or work that is necessary to, or that
facilitates, performance of the contract or a provision of the
contract. The commenters asserted that this provision is inconsistent
with the jurisdictional limitation that was contained in the statute in
that it would result in the coverage of positions with a tenuous
connection to the contract. Further, these commenters stated that the
regulation fails to provide sufficient guidance as to which positions
are engaged in carrying out a contract. Two of these commenters also
objected to the paperwork burdens associated with the coverage
determination requirement.
OFCCP disagrees with the assertion that prong A is inconsistent
with the jurisdictional limitation. As stated in the preamble to the
proposed rule, prong A reflects the practical reality that performance
of a contract generally requires the cooperation of a variety of
individuals engaged in auxiliary and related functions beyond direct
production of the goods or provision of the services that are the
object of the contract. Therefore, OFCCP believes it reasonable to
construe positions ``engaged in carrying out'' a contract as including
those which perform work that is necessary to, or that facilitates,
performance of the contract--even if the work is not directly required
by an express contractual term. OFCCP also disagrees that the
regulation fails to provide sufficient guidance on the application of
prong A; OFCCP has attempted to provide contractors with as much
guidance as possible on this issue in appendix D to the regulations.
Finally, the commenters' concerns regarding increased burdens have been
rendered moot in that the coverage determination requirement has been
omitted in the final rule.
Section 60-741.4(a)(3) Contracts and Subcontracts for Indefinite
Quantities
One commenter raised a concern that paragraph (a)(3) of this
section will result in undue burdens on contractors in that it would
require the incorporation of the equal opportunity clause (see Sec. 60-
741.5) into existing indefinite quantity contracts whenever an
individual order under such contracts meets the jurisdictional amount
for coverage. This concern is unwarranted. This provision does not
require that an existing contract be revised or reissued to incorporate
the clause physically in the contract in such a situation; it simply
provides that the requirements of the clause shall apply to the
contract (irrespective of whether the clause is physically incorporated
into the contract).
Section 60-741.4(a)(4) Work Within the United States (Proposed)
Proposed Sec. 60-741.4(a)(4) stated that the regulations apply only
to ``employment within the United States.'' (For the sake of clarity,
the final rule revises this section to substitute the phrase
``employment activities within the United States'' for the above
language.)
Under current Sec. 60-741.4(a)(3), the regulations are made
applicable to work performed abroad by employees recruited within the
United States. The final rule narrows the scope of that coverage. As
discussed in the NPRM, the proposed narrowing was a response to the
Supreme Court's decision in EEOC v. Aramco, 111 S. Ct. 1227 (1991),
which held that title VII of the Civil Rights Act of 1964 (title VII)
does not apply to United States citizens employed abroad by United
States employers. OFCCP concluded that a similar coverage limitation
applies to section 503. Upon reconsideration, OFCCP believes that
proposal failed to clearly reflect OFCCP's policy with respect to the
coverage of employment decisions made within the United States
affecting employment opportunities abroad (issues which were not
addressed by the Aramco decision). Accordingly, the final rule revises
this section to clarify that the regulations cover decisions of the
contractor made within the United States, pertaining to the
contractor's applicants and employees who are within the United States,
regarding employment opportunities abroad. OFCCP's established policy
is to treat these particular employment decisions as covered by section
503.
In the Civil Rights Act of 1991, Congress amended title VII and the
ADA to provide expressly for extraterritorial application of those
laws. We considered whether it is possible to apply a similar rule
under section 503, and concluded that it is not. Although the Civil
Rights Act of 1991 reversed the result of Aramco with respect to title
VII and the ADA, it did not erase the longstanding legal principle
repeated in that case that, absent contrary intent, legislation applies
only within the borders of the United States. We are unaware of any
such expressed intent regarding section 503.
Section 60-741.5 Equal Opportunity Clause
Section 60-741.5(a) Government Contracts
Proposed paragraph 4 of this section (one of the provisions of the
equal opportunity clause, which must be included in all covered
contracts and subcontracts) stated that the contractor agrees to post,
in a form to be prescribed by the Director (now the Deputy Assistant
Secretary for Federal Contract Compliance Programs), a notice regarding
the rights of applicants and employees under section 503. The final
rule revises this section to require the contractor to ensure that
applicants and employees with disabilities are informed of the contents
of the notice. In part, this revision responds to a suggestion by a
disability rights group that the regulations be revised to require that
the posting mandated by proposed Sec. 60-741.80 (the contractor's equal
opportunity policy statement) be accessible to persons with vision
impairments. (As discussed below, this posting requirement has been
transferred to Sec. 60-741.44(a).) OFCCP believes that such an
accessibility requirement should apply both to this
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posting and the posting mandated by Sec. 60-741.5(a) (paragraph 4);
therefore, the final rule makes the requirement applicable to both
notices. OFCCP concludes that the contractor must ensure that these
notices are accessible to applicants and employees with disabilities to
satisfy its duty to provide a reasonable accommodation. A contractor
may make these notices accessible, for example, by having the notice
read to a visually disabled individual or by lowering the posted notice
so that it may be read by a person in a wheelchair.
Section 60-741.5(f) Duties of Contracting Agencies
The proposal provided in part that contracting agencies are
required to cooperate with the Director (now Deputy Assistant Secretary
for Federal Contract Compliance Programs) in the performance of his or
her responsibilities under the act, including taking such actions for
noncompliance as set forth in Sec. 60-741.66 (Sanctions and penalties)
as may be ordered by the Director (now Deputy Assistant Secretary). The
final rule revises this section by incorporating references to the
Secretary of Labor (in addition to the reference to the Deputy
Assistant Secretary for Federal Contract Compliance Programs); this
revision is intended to accurately reflect the role of the Secretary in
the enforcement of the act.
Section 60-741.21(g) Prohibitions
The text of this subsection has been altered slightly from the
proposal, to provide that exclusionary selection criteria that
``concern only marginal functions of the job,'' rather than those that
``do not concern an essential function of the job,'' would not be
consistent with business necessity. This subtle distinction allows for
the possibility that there may be selection criteria that do not relate
to either essential or marginal functions, which are consistent with
business necessity. Conforming changes have been made to Secs. 60-
741.44(c)(1) and (2).
Section 741.21(h) Administration of Tests
In the proposed rule this paragraph contained broader language than
the comparable ADA provision. The NPRM specified that contractors must
administer employment tests in an appropriate format to individuals
with impaired ``sensory, manual, speaking, mobility or other skills.''
The ADA rule does not reference ``mobility and other skills.'' Our
stated intent in including the additional language was to clarify that
individuals with disabilities may not be excluded from a job that they
can actually perform merely because they are hampered in the ability to
complete or succeed on a test as a result of their impaired skills
(resulting from their disability)--no matter what the impaired skills
may be. Upon further consideration, we have decided to track more
strictly the wording of the EEOC regulation, which in turn strictly
tracks the wording of the ADA. We have added to appendix A on
reasonable accommodation additional guidance on the administration of
tests that is consistent with our proposed rule.
Section 741.23 Medical Examinations and Inquiries
Section 60-741.23(b) Permitted Medical Examinations and Inquiries
One commenter suggested that the regulations clarify that OFCCP
will follow EEOC's interpretative guidance (relating to Sec. 1630.14(a)
of the ADA regulations) which provides that physical agility tests are
not medical examinations, and thus may be given at any point in the
application or employment process. OFCCP does indeed intend to follow
this interpretation. As stated earlier, the EEOC's interpretative
guidance is equally applicable with respect to the counterpart
provisions of this rule, and it may be relied upon for guidance. See
Sec. 60-741.1(c)(1). Further, a phrase was deleted from the final rule
as redundant.
Section 60-741.23(c) Invitation to Self-Identify
This paragraph of the NPRM stated that the contractor may invite
applicants and employees to self-identify as individuals with
disabilities as specified in Sec. 60-741.42. This paragraph has been
revised to reflect changes made by the final rule to Sec. 60-741.42
(see discussion below).
Section 60-741.23(d) Confidentiality and Use of Medical Information
One commenter raised the concern that the requirement contained in
proposed Sec. 60-741.23(d), that information regarding the medical
condition or history of an applicant or employee be treated as a
confidential record, conflicts with an employer's obligation under the
Railway Labor Act to provide such information to bargaining
representatives under specified circumstances. OFCCP has not yet taken
a position on this issue. The EEOC will be addressing similar issues
under the ADA in future Compliance Manual sections and policy guidance.
OFCCP intends to coordinate its policy under section 503 relating to
this issue with the EEOC at an appropriate time in the future.
Further, to ensure greater confidentiality OFCCP has narrowed the
scope of the requirement that confidential medical information be made
available to Government officials. As revised, the rule provides access
to Government officials enforcing the laws administered by OFCCP (i.e.,
section 503, Executive Order 11246, and the affirmative action
provisions of the Vietnam Era Veterans' Readjustment Assistance Act (38
U.S.C. Sec. 4212)), and those enforcing the ADA. A corresponding
revision has been made in appendix B, which contains a sample
invitation to self identify.
Section 60-741.25 Health Insurance, Life Insurance and Other Benefit
Plans
One commenter recommended that the regulations provide additional
clarification regarding permissible coverage restrictions under benefit
plans. OFCCP intends to develop future guidance on this and related
issues in coordination with EEOC.
Subsection (a) has been slightly revised to refer to ``[a]n insurer
* * *, or any agent or entity that administers benefit plans * * *.''
The proposal had erroneously deviated from the corresponding ADA
provision, using the word ``contractor'' rather than ``entity.''
Subpart C--Affirmative Action Program
Several commenters made observations concerning this subpart as a
whole. One, for example, recommended that the final rule clarify that
nondiscrimination and affirmative action are separate and distinct
concepts, and that affirmative action does not mean that an employer is
required to grant a preference. Affirmative action and
nondiscrimination are separate, but related, concepts. The duty to
undertake affirmative action subsumes the duty to refrain from
discrimination. Thus, for example, a contractor that is discriminating
is not fulfilling its affirmative action obligations to identify,
prevent and remedy discrimination. OFCCP also wishes to clarify that
section 503 and these implementing regulations do not require employers
to grant a preference to individuals with disabilities.
Subpart C requires covered contractors to institute a system of
proactive measures designed to ensure equal employment opportunity for
individuals with disabilities. For example, contractors are required to
ensure that their personnel processes provide for careful consideration
of the
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job qualifications of known disabled individuals (Sec. 60-741.44(b));
periodically review job qualification standards to ensure that, to the
extent they tend to screen out qualified persons with disabilities,
such requirements are consistent with business necessity (Sec. 60-
741.44(c)); and take appropriate efforts to effectively recruit workers
with disabilities (Sec. 60-741.44(f)). These measures do not require
the contractor to extend a preference for individuals with
disabilities; rather, they are designed to create a working environment
that actively welcomes qualified persons with disabilities at all
levels in the contractor's work force.
Section 60-741.40 Applicability of the Affirmative Action Program
Requirement
The NPRM contained a proposal (in paragraph (a)) to raise the
threshold for the application of the written affirmative action program
(AAP) requirement from the current (Sec. 60-741.5(a)) 50 or more
employees and a Government contract of $50,000 or more, to 150 or more
employees and a contract of $150,000 or more. Several commenters
expressed approval of the NPRM proposal, one expressed disapproval, and
two favored a higher threshold--250 employees and a Federal contract of
$250,000 or more.
Upon further consideration, OFCCP believes it is in the public
interest to maintain the threshold requirements imposed at current
Sec. 60-741.5(a). Raising the threshold as proposed would remove nearly
two million workers from the protection of a Section 503 affirmative
action program. Further, since a large proportion of new jobs are
created in companies with fewer than 150 employees, relieving such
companies from the affirmative action program requirement would have a
significant impact on the employment opportunities of individuals with
disabilities. Finally, OFCCP wishes to maintain consistency in its
affirmative action program threshold among its three programs, and that
threshold under both its Executive Order 11246 program (Secs. 60-
1.40(a), 60-2.1(a)) and 38 U.S.C. 4212 program (Sec. 60-250.5(a)) is 50
or more employees and a Government contract of $50,000 or more.
Accordingly, the corresponding threshold in the current Section 503
regulations is carried forward in this final rule without change.
A number of commenters expressed concern regarding proposed
paragraph (b) insofar as it requires contractors to prepare and
maintain an AAP at each establishment. These commenters asserted that
it would be overly burdensome to comply with this requirement at
establishments which employ very few people. Although this paragraph,
which is virtually identical to current Sec. 60-741.5(a), does not
define ``establishment,'' OFCCP has applied that term flexibly in order
to accommodate small establishment issues. The Secretary of Labor's
decision in OFCCP v. Coldwell, Banker and Co., 78-OFCCP-12 (August 14,
1987), an Executive Order 11246 case, recognized that the term
``establishment'' generally means a physically distinct place of
business or location. However, he also recognized that there may be
circumstances where it is appropriate for OFCCP to approve the grouping
of separate facilities for AAP purposes. Factors that may be relevant
include whether there is centralized authority for personnel decisions,
whether the facilities are in the same labor market or recruiting area,
and the number of employees at the facilities. Contractors may request
that OFCCP approve the grouping of particular facilities for AAP
purposes.
Section 60-741.42 Invitation to Self-Identify
This section addresses a contractor's obligation to invite
applicants and employees with disabilities to self-identify in order to
benefit from the contractor's affirmative action program. Under the
current regulations (41 CFR 60-741.5(c)(1)) contractors are required to
invite employees and applicants to self-identify. Under paragraph (a)
of the NPRM contractors would be permitted, but not required, to invite
self-identification. The final rule differs from the proposed version,
and is similar to the current rule, in that it makes the obligation to
extend the invitation mandatory. The final rule takes a different
approach from the current rule, however, in that it specifies that
except in limited circumstances the invitation is to be extended after
an employment offer has been made and before the applicant begins work.
OFCCP had explained in the preamble to the NPRM that it believed
the invitation to self-identify should be permissive, rather than
mandatory, in light of other proposed provisions (Secs. 60-741.44(b)
and (d)) which provide comparable protections. However, upon
reconsideration, OFCCP believes that these provisions (which are
carried forward in the final rule) do not provide protections
comparable to a mandatory invitation to self-identify. Sections 60-
741.44(b) and (d) are intended to ensure that the contractor will
afford individuals with a known disability proper consideration for
employment opportunities and reasonable accommodations. In contrast,
the mandatory invitation to self-identify is designed to afford persons
whose disabilities may not be known to the contractor a full
opportunity to come forward to request an accommodation. Further, the
mandatory invitation ensures that notice is provided of the
contractor's obligations with respect to individuals with disabilities.
Accordingly, the final rule carries forward the mandatory requirement
from the current regulations.
Further, the proposed permissive invitation provision was based in
part on the concern that a mandatory requirement might result in
inadvertent violations of the ADA regulatory prohibitions regarding
medical inquiries by employers subject to both laws. Those regulations
generally prohibit inquiries (such as those required by Sec. 60-741.42)
whether an applicant or employee is an individual with a disability or
as to the nature or severity of the disability but specify that such
inquiries are permitted if required to satisfy the affirmative action
requirements of section 503 (see Sec. 1630.13 of the ADA regulations
and the interpretative guidance relating to Sec. 1630.14). At the time
the NPRM was published, OFCCP was concerned that a contractor might
inadvertently extend the invitation to workers who are not covered by
section 503--and thus, such an invitation arguably would not fall
within this exception to the medical inquiries prohibition. (As is
discussed above, prior to the act's amendment by the 1992 legislation
only employees who were employed in, or applicants for, positions that
are engaged in carrying out a Government contract were covered.) OFCCP
believed that a permissive invitation would permit the contractor to
avoid extending the invitation where an applicant's or employee's
coverage under section 503 was unclear. In view of the amendment
extending coverage under the act to all of the contractor's positions,
this issue no longer presents a significant concern.
The revised provision is intended to comport with EEOC regulations
and guidance on pre-employment inquiries. Paragraph (a) of the rule
requires the contractor to issue the invitation after making an offer
of employment and before the applicant begins his or her employment
duties. This approach is consistent with Sec. 1630.14(b) of the EEOC's
regulations, which provides that an employer may require a medical
inquiry after making an offer of employment to a job applicant and
[[Page 19345]]
before the applicant begins his or her job duties, if all entering
employees in the same job category are subjected to such an inquiry
regardless of disability. Inviting an applicant to self-identify before
an offer of employment has been made is permitted only in two limited
circumstances: If the invitation is made when the contractor actually
is undertaking affirmative action at the pre-offer stage; and if the
invitation is made pursuant to a Federal, state or local law requiring
affirmative action for individuals with disabilities. EEOC's October
10, 1995, ``ADA Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations'' authorizes pre-employment
inquiries in these circumstances. Furthermore, in order to ensure
consistency between the requirements of section 503 and the Vietnam Era
Veterans' Readjustment Assistance Act (VEVRAA), OFCCP plans to issue an
Interim Final Rule conforming the invitation to self-identify provision
of VEVRAA with that in this rule.
Further, the rule has been revised (paragraph (b) of the final
rule; paragraph (a) of the proposal) to require that the invitation
inform the individual that the request to benefit under the
contractor's affirmative action program may be made immediately or at
any time in the future. This revision is intended to help ensure that
the individual is aware that he or she is not precluded from making the
request at any time in the future merely because an initial request was
made or because he or she failed to make the request immediately in
response to the invitation. For example, an individual with a
disability simply may not choose to self-identify before beginning
work, but may wish to do so later; after beginning work an individual
may develop a disability; or a pre-existing minor disability may become
more severe. Proposed paragraph (b), which set forth a similar
clarification--but did not require that it be included in the
invitation itself--has been omitted in the final rule.
Section 60-741.44 Required Contents of Affirmative Action Programs
Section 60-741.44(a) Policy Statement
Paragraph (a) of the proposal, which provided that the contractor
shall include its equal opportunity policy statement in its affirmative
action program, has been revised for clarity. As revised, this section
states that the contractor shall post the policy statement on company
bulletin boards, and specifies the type of information that should be
included in the policy statement--both suggested (relevant information
about the contractor's policy) and required (notification that the
contractor is obligated, as specified in Sec. 60-741.69, to refrain
from harassment or intimidation). In this part, OFCCP uses the term
``shall'' when material is mandatory and ``should'' when the material
is encouraged but not required. This revision largely conforms the
provision to the counterpart Executive Order regulation (41 CFR 60-
2.20(a)). The notice posting requirement was set out in proposed
subpart E (Ancillary Matters) at Sec. 60-741.80; that section also
provided that the posting shall include a notification regarding the
contractor's obligation to refrain from harassment or intimidation. For
the sake of clarity, the substance of these provisions has been
transferred to Sec. 60-741.44(a). (Proposed Secs. 60-741.81 through 60-
741.85 have been redesignated as Secs. 60-741.80 through 60-741.84,
respectively.) OFCCP believes that the revisions establishing suggested
guidance on the contents of equal opportunity notices, will simplify
the process of preparing such notices. Additionally, as discussed in
connection with Sec. 60-741.5(a), the final rule revises this section
to require the contractor to ensure that applicants and employees with
disabilities are informed of the contents of the policy statement.
Section 60-741.44(d) Reasonable Accommodation to Physical and Mental
Limitations
A few commenters objected to paragraph (d) of the proposal insofar
as it provides that where an employee with a known disability is having
difficulty performing his or her job, the contractor shall
confidentially inquire whether the employee is in need of a reasonable
accommodation. The preamble to the proposal stated that the contractor
is required to make the inquiry only in situations where it is
reasonable to conclude that a performance problem may be related to a
disability. These commenters asserted that it may be difficult to
determine with certainty whether the employee's performance problem is
the result of a disability. Consequently, the commenters argued, the
requirement may compel some contractors to make potentially offensive
inquiries regarding needed accommodations (i.e., inquiries based on
unfounded and stereotypical assumptions).
In order to address this concern, paragraph (d) has been revised in
the final rule to require the contractor to make an initial inquiry as
to whether the performance problem has any connection to the employee's
disability, and that a second inquiry about needed accommodations only
be made where the individual indicates that the problem does have such
a connection. Moreover, paragraph (d) has been revised to require the
contractor to make the initial inquiry only where the employee is
having significant difficulty performing the job and it is reasonable
to conclude that the performance problem may be related to the known
disability.
The revision requiring the contractor to make the initial inquiry
only where the employee is having a significant job performance problem
is intended to minimize the burden placed on the contractor while also
helping to ensure that the accommodation issue is fully explored by
both the employee and the contractor before the employee may be subject
to adverse action.
One commenter suggested that, rather than imposing a requirement on
contractors to inquire about the need for a reasonable accommodation
where an individual with a known disability is having a job performance
problem, OFCCP should encourage contractors to ensure that individuals
with disabilities are aware of their rights under section 503,
including their right to request a reasonable accommodation. The
difficulty with this approach is that, notwithstanding a contractor's
efforts to disseminate this information, some individuals with
disabilities may remain unaware of their right to request a reasonable
accommodation. Moreover, many individuals with disabilities may not
perceive the need for an accommodation (for instance, a person with
narcolepsy might fail to recognize the fact that his or her disability
is so severe as to interfere with the performance of the job).
Section 60-741.44(f) External Dissemination of Policy, Outreach and
Positive Recruitment
Some commenters viewed paragraph (f) as imposing too many
burdensome requirements. OFCCP disagrees. Proposed paragraph (f), which
is generally consistent with current Sec. 60-741.6(f), does not impose
any new appreciable obligations. It simply specifies that a contractor
is required to engage in such outreach and recruitment activities--as
appropriate to its circumstances (such as size, resources, and the
adequacy of current procedures)--that are reasonably designed to
effectively recruit qualified individuals with disabilities. The
methods for doing so that are specified in paragraphs (f)(1) through
(f)(7) are
[[Page 19346]]
suggested, rather than mandatory. This provision is carried forward in
the final rule without change.
Section 60-741.60 Compliance Reviews
OFCCP did not receive any comments during the comment period
regarding the proposed provision relating to compliance reviews.
However, questions subsequently have arisen regarding whether this
provision gives OFCCP new authority to conduct reviews or simply
clarifies existing authority under section 503 and the present
regulations. This provision simply reaffirms more clearly OFCCP's
existing authority under the act and the regulations (see current
Sec. 60-741.25) to conduct compliance reviews to evaluate contractors'
compliance with the law.
Section 60-741.61 Complaint Procedures
Section 60-741.61(b) Place and Time of Filing
OFCCP's paragraph (b) proposal to extend the current 180 day
complaint filing period to 300 days is adopted in this final rule. The
final rule provides a uniform national standard which will not be
shorter than the complaint filing period under the ADA. Section 107(a)
of the ADA, which incorporates the procedural requirements of section
706 of title VII, requires the EEOC to defer for 60 days to State or
local agency processing of an ADA complaint if a State or local law
prohibits the employment practice alleged to be unlawful, and the
agency is authorized to grant or seek relief. In such jurisdictions, an
ADA complaint may be filed with the EEOC within 30 days of the
conclusion of the State or local agency processing or within 300 days
of the date of the alleged violation, whichever occurs earlier.
However, where there is no deferral (no State or local law prohibits
the employment practice at issue, or no State or local agency is
authorized to grant or seek relief), an ADA complaint must be filed
with the EEOC within 180 days of the alleged violation.
The proposed 300 day filing period under section 503 thus ensured
that in deferral jurisdictions a complaint covered by both section 503
and the ADA would be timely under both statutes. As discussed in the
preamble to the NPRM, however, the 300 day section 503 period also
would mean that in nondeferral jurisdictions complaints covered by both
statutes and filed between 181 and 300 days of the alleged violation
would be timely under section 503 but not under ADA. In such cases, the
complainant would lose rights unique to ADA (such as the private right
to file a law suit).
Some commenters objected to a blanket 300 day period because
witnesses may not still be available, and if available, may no longer
have a fresh recollection of pertinent events--particularly in the
construction industry, where many projects are completed within 300
days. However, inasmuch as the ADA 300 day filing period in deferral
jurisdictions is a statutory requirement (as it has been under title
VII), contractors would encounter any such problem under the ADA
irrespective of the time period adopted under section 503.
Another commenter objected to the proposal because, in its view,
the 300 day period was developed for the convenience of the states
rather than the Federal enforcement agencies, and thus it offers no
support for extension of the filing period under section 503. However,
OFCCP does not rely on the ADA filing period as legal support for
extending the section 503 period to 300 days. Rather, OFCCP's decision
to extend the period is based upon a desire to establish a uniform
national standard which will be at least as long as the complaint
filing period under the ADA. Because no frequently updated list of
deferral jurisdictions is published and readily available, complainants
and contractors may not know whether they are in a deferral
jurisdiction. Therefore, a uniform national standard will result in
ease of administration and public certainty regarding the filing
deadline.
Section 60-741.61(c)(2) Contents of Complaints--Third Party Complaints
Five commenters objected to this paragraph, which provides in part
that a complaint filed by an authorized representative need not
identify by name the person on whose behalf the complaint is filed. The
purpose of this provision, which is derived from the analogous ADA
regulation (29 CFR 1601.7(a)), is to help prevent retaliation against
persons seeking to exercise their rights under the act. The commenters
asserted that in some cases contractors would have difficulty
responding to the allegations of a complaint without knowing the
identity of the person on whose behalf it is filed. OFCCP wishes to
emphasize that in many cases it would not be necessary to disclose the
individual's identity to enable the contractor to respond effectively.
For example, where the complaint alleges a broad contractor policy or
practice (such as the rejection of all applicants who have had a back
injury or the use of an application form that requests pre-offer
medical information), the contractor will be able to respond fully
without knowing the name of the person(s) on whose behalf the complaint
was filed. However, OFCCP acknowledges that where the complaint
involves practices with limited applicability (such as a failure to
provide reasonable accommodation for a specific disability in a
specific job), it may not be possible to protect the individual's
confidentiality. Therefore, the final rule reflects that
confidentiality will be protected where possible, given the facts and
circumstances in the complaint.
Additionally, the proposal stated that ``during the investigation''
of a third-party complaint OFCCP shall verify the authorization of the
complaint by the person on whose behalf the complaint is made. The
phrase ``during the investigation'' is omitted in the final rule. This
revision is intended to permit OFCCP to verify the complaint's
authorization at an earlier stage of its processing of the complaint--
that is, before the contractor is provided notice that the complaint
has been filed.
Section 60-741.61(f) Resolution of Matters
Paragraph (f)(1) has been revised to clarify that the notification
required thereunder shall be provided to the contractor as well as to
the complainant. This reflects current OFCCP practice.
Section 60-741.66 Sanctions and Penalties
Section 60-741.66(c) Debarment
The proposed paragraph authorizes OFCCP to impose fixed-term
debarments. A few commenters objected to the fixed-term debarment
concept. These commenters were concerned that fixed-term debarment is
too harsh a measure, especially if it is used in response to what the
commenters termed ``paper'' violations, that is, violations of
recordkeeping or affirmative action requirements which do not involve
discrimination. OFCCP does not view fixed-term debarments as too harsh
a measure, and OFCCP does not intend to seek a fixed term debarment for
minor, technical violations of the law. Explicit regulatory authority
to impose debarment for a minimum fixed-term is necessary to ensure the
continued future compliance of some contractors.
OFCCP believes the fixed-term debarment sanction will be
particularly effective in encouraging compliance among the recalcitrant
contractors who repeatedly break their promises of future compliance
with respect to affirmative action and recordkeeping
[[Page 19347]]
requirements. OFCCP views affirmative action and recordkeeping
requirements as fundamental to section 503 compliance. These
requirements provide the foundation for the contractor's affirmative
action efforts and provide the basis for monitoring the contractor's
compliance by both the contractor and OFCCP.
The current regulations (at Sec. 60-741.50) require a showing that
a debarred contractor will carry out employment policies and practices
in compliance with section 503 and its regulations as one of the
conditions of reinstatement. OFCCP has traditionally accepted a
contractor's promise of future compliance as sufficient to meet this
requirement. Unfortunately, OFCCP has found that, for some contractors,
a promise is not enough. The sanction of debarment for a fixed-term of
not less than six months but no more than three years establishes a
minimum trial period during which a contractor can demonstrate its
commitment and ability to establish personnel practices that will
ensure continuing compliance with its section 503 obligations. See,
e.g., OFCCP v. Disposable Safety Wear, 92-OFC-11 (Decision and Final
Administrative Order of the Secretary of Labor, September 29, 1992).
The express recognition of fixed-term debarment in the regulations is
designed to put contractors on notice that an empty promise of future
compliance will not be a sufficient premise for continued contracting
with the Federal Government. Express regulatory recognition of the
sanction of fixed-term debarment will strengthen the section 503
enforcement scheme by deterring contractors from engaging in violations
``based on a cold weighing of the costs and benefits of
noncompliance.'' Janik Paving & Construction v. Brock, 828 F.2d 84 (2d
Cir. 1987).
Accordingly, OFCCP has determined to retain in this final rule the
authority to impose fixed-term debarments. However, after further
consideration, OFCCP has decided to remove reference to willful or
aggravated from the fixed-term debarment provision. Although a few
commenters expressed concern that the proposal would fail to provide
sufficient guidance as to the types of violations that would trigger
the sanction, OFCCP believes that it is neither practicable nor
necessary to precisely define the types of violations for which it
would impose a fixed-term debarment, and declines to do so. Rather,
OFCCP will retain discretion to make determinations on a case-by-case
basis. In making such determinations, OFCCP will consider, among other
factors, the severity of the violation, whether the violation can be
fully remedied in the absence of a fixed-term debarment and the
contractor's compliance history.
Section 60-741.69 Intimidation and Interference
One commenter objected to the references to state and local laws in
paragraph (a) as exceeding OFCCP's jurisdiction. The objective of this
provision is not, as the commenter suggests, to enforce a state or
local law, but to proscribe activities which interfere with a person's
exercise of his or her rights under a state or local law. OFCCP may
seek the same range of sanctions for a violation of this provision
(such as debarment and/or back pay) as it does for other violations of
section 503.
Section 60-741.80 Posting of Notices (Proposed)
As discussed in connection with Sec. 60-741.44(a), proposed
Sec. 60-741.80 is not carried forward in the final rule. Subsequent
sections have been redesignated accordingly.
Section 60-741.80 Recordkeeping
Section 60-741.80(a) General Requirements
A number of commenters raised concerns regarding paragraph (a) of
this section. This paragraph revises the current record retention
obligation--which at Sec. 60-741.52(a) provides that contractors are
required to maintain for one year records relating to complaints
against the contractor--by making it applicable to any personnel or
employment record made or kept by the contractor. This revision
conforms the obligation to the analogous requirement under EEOC's
recordkeeping regulations (29 CFR 1602.14(a)) issued pursuant to title
VII and the ADA. Paragraph (a) also specifies that when a contractor
has been notified that a complaint has been filed, that a compliance
review has been initiated or that an enforcement action has commenced,
the contractor shall preserve all relevant personnel records until the
final disposition of the action. Again, this requirement parallels the
corresponding EEOC regulation issued pursuant to title VII and the ADA.
Paragraph (a) of the final rule varies slightly from the
corresponding provision contained in the NPRM. The final rule does not
carry forward the reference to records regarding coverage
determinations contained in the provision's listing of examples of the
types of records that must be preserved, inasmuch as contractors are no
longer required to make such coverage determinations (see discussion
regarding Sec. 60-741.4(a)(2)). Further, the recordkeeping obligation
in the final rule remains at one year for smaller contractors, instead
of being increased to two years for all contractors as had been
proposed. In order to provide regulatory relief for smaller
contractors, only contractors that have 150 or more employees and a
Government contract of $150,000 or more are required to maintain
records for two years.
One commenter was concerned that paragraph (a) unjustifiably
expands the types of records that must be kept beyond those required by
EEOC. This concern is misplaced and was apparently based on the fact
that the listing in paragraph (a) of examples of the types of personnel
records that must be maintained varies somewhat from the corresponding
listing contained in the EEOC regulation. OFCCP intends that this
requirement apply to the same records as does the EEOC regulation--that
is, to any personnel or employment record made or kept by the employer.
A number of commenters objected to the extension of the retention
period on the grounds that it is inconsistent with the one-year
retention period under EEOC's regulations applicable to title VII and
the ADA. Some commenters objected that it would impose unreasonable
record storage burdens on large companies that have many thousands of
applicants and employees, and others stated that it would burden small
and medium size contractors that have fewer personnel department
resources, including small construction firms that have a fluid
workforce and high turnover. With respect to the first concern, the
longer retention period is justified by differences between the
enforcement activities of OFCCP and EEOC. As explained in the proposal,
a two year retention period provides greater assurance that relevant
records will be available during OFCCP compliance reviews (during which
the agency generally reviews employment practices and activity going
back two years). In contrast, EEOC's enforcement of title VII and the
ADA is triggered exclusively by charges--which must be filed within 180
days (or, in deferral jurisdictions, 300 days) of an alleged violation.
Thus, EEOC's one-year retention period is adequate to ensure that
relevant records are not discarded before the expiration of the filing
period.
Turning to the second concern, OFCCP believes that overall there
will be only a minimal increase in burden imposed on the larger
contractors as a result of the extended record retention period. (EEOC
reached a similar conclusion in 1991 (see 56 FR 35753
[[Page 19348]]
(July 26, 1991)) when it doubled its existing six-month retention
period under title VII to one year--an obligation that applies to a
significantly larger universe of employers than does the obligation
under section 503, which applies only to contractors that have 150 or
more employees and a Government contract of $150,000 or more.) Many
large employers, and some small employers as well, are increasingly
maintaining electronic records. Where this is the case, compliance with
the requirement will impose little or no additional burden. Moreover,
the decision to reduce the record retention period for small
contractors to one year--the same period required by EEOC--will provide
relief to small companies that are less likely to maintain electronic
records.
Section 60-741.80(b) Failure to Preserve Records
Proposed paragraph (b) provided in part that where a contractor has
destroyed or failed to preserve the records that it is required to
preserve under paragraph (a), there shall be a presumption that such
records would have been unfavorable to the contractor. However,
proposed paragraph (b) contained a proviso which stated that the
presumption shall not apply where the contractor shows that the
destruction or failure to preserve records results from circumstances
that are outside of its control. A number of commenters objected to
this adverse inference provision on the grounds that it would deny due
process and would be unduly harsh, especially, they asserted, because
records are frequently misplaced or destroyed inadvertently through
clerical error. One commenter requested that OFCCP clarify that the
failure to preserve records must be willful.
OFCCP believes that this requirement is necessary to prevent
OFCCP's compliance monitoring and enforcement efforts from being
frustrated by the destruction or failure to preserve records. OFCCP
intends to invoke the presumption selectively where the facts warrant
(and reserves the right to do so, when warranted, even in cases where
the contractor claims but cannot substantiate that the destruction or
failure to preserve records was inadvertent). In recognition of this
discretionary approach, the final rule revises this section to state
that the presumption ``may'' be invoked. Contractors will have a full
opportunity to submit evidence to rebut the inference.
Section 60-741.80(c)
The final rule changes the effective date of this section from the
proposed 30 days after the date of publication to 120 days after the
date of publication. This change in the effective date is due to
amendments that altered the requirements of the Paperwork Reduction Act
after OFCCP published the NPRM. OFCCP anticipates obtaining and
publishing an OMB control number during the 120 day period.
Section 60-741.82 Labor Organizations and Recruiting and Training
Agencies
One commenter expressed concern that this section may authorize
OFCCP to compel the parties to a collective bargaining agreement to
make modifications to the agreement. The commenter contended that such
a position may be inconsistent with that of the EEOC under its
regulations implementing the ADA. Section 60-741.82 does not make any
substantive changes to the section 503 regulation that it replaces, and
that regulation has been in effect since the first section 503
regulations were promulgated in 1976. Moreover, the regulation
parallels an Executive Order 11246 regulation (Sec. 60-1.9) that has
been in effect since 1968. Section 60-741.82 does not on its face
require such modifications to collective bargaining agreements, and
OFCCP normally does not have jurisdiction over the union.
The EEOC will be addressing various issues under the ADA related to
collective bargaining agreements in future Compliance Manual sections
and policy guidance. OFCCP, to the extent possible, intends to
coordinate its policy under section 503 relating to collective
bargaining agreements with the EEOC at an appropriate time in the
future.
Section 60-741.84 Effective Date
The final rule was modified slightly to clarify that contractors
presently holding Government contracts are required to update their
affirmative action programs within 120 days of the effective date of
these regulations only as required to comply with the changes made by
the final rule. A complete annual updating of the programs is not
required within 120 days. The proposal also had stated that the
effective date would be 30 days after publication. However, OFCCP must
display a valid OMB control number before the recordkeeping provisions
in the final rule can become effective. Therefore, the effective date
of the rule will be when OFCCP publishes the OMB control number in the
Federal Register, which OFCCP anticipates will be between 90 and 120
days after publication of this final rule.
Appendix D to Part 60-741--Guidelines Regarding Positions Engaged in
Carrying Out a Contract (Proposed as Appendix A)
Proposed appendix A was included in the NPRM to provide guidance on
the application of proposed Sec. 60-741.4(a)(2)(i)(A)--prong A of the
regulatory test for determining which of the contractor's positions are
engaged in ``carrying out'' a Government contract--and to assist
contractors in making the coverage determinations required under
proposed Sec. 60-741.4(a)(2)(iii) (see discussion regarding Sec. 60-
741.4(a)(2) above). As noted above, as a result of an amendment to
section 503, the issue whether the contractor's positions were engaged
in carrying out a Government contract is relevant only with respect to
the contractor's employment decisions and practices which occurred
before October 29, 1992. On that date, the act, which had applied only
insofar as the contractor was employing persons to carry out a
contract, was amended to extend coverage thereunder to all of the
contractor's positions--irrespective of their relation to the contract.
Consequently, the proposed coverage determination requirement, which
was intended to be applied prospectively to define the scope of the
contractor's obligations under section 503, is omitted from the final
rule as unnecessary. OFCCP has nevertheless determined to retain the
appendix in the final rule to provide guidance on its policy relating
to coverage with respect to the contractor's employment decisions and
practices occurring before the act's amendment, and has revised the
appendix to make this clarification.
This appendix still has practical utility because, as noted above,
there are a number of pending section 503 complaints involving alleged
violations of the act which occurred before the amendment. Moreover, it
is OFCCP's general practice during its compliance reviews to examine
the contractor's employment practices dating back two years immediately
preceding the compliance review and, as applicable, to assess liability
for violations occurring during that period. Once all matters involving
employment practices and decisions occurring before October 29, 1992,
are finally resolved, OFCCP will withdraw this appendix. In order to
preserve the continuity of the letter designations for the appendices
to the regulations at the time of the withdrawal, proposed appendix A
has been redesignated as appendix D, and
[[Page 19349]]
proposed appendices B, C, and D have been redesignated as appendices A,
B and C, respectively.
Proposed appendix A stated that a contract is not deemed covered
unless, among other things, it is performed within the United States.
This statement is omitted from the final rule to reflect the revision
to Sec. 60-741.1(b) (see discussion above). Also, the paragraphs of the
appendix have been numbered for ease of reference.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To Provide
Reasonable Accommodation (Proposed as Appendix B)
The discussions of Secs. 60-741.42 and 741.44(d) contained in
paragraph 2 of proposed appendix B have been revised to reflect the
revisions to those sections in the final rule (see discussion above
regarding those sections). Additionally, the appendix has been renamed,
and a paragraph of introductory text has been added, to clarify the
differences between reasonable accommodation and affirmative action
under section 503. As discussed above, this final rule redesignates
this appendix as appendix A.
Appendix B to Part 60-741--Invitation to Self-Identify (Proposed as
Appendix C)
Paragraph 1 has been revised to incorporate a clarification that
the individual may make a request--immediately in response to the
invitation or at any time in the future--to benefit under the
contractor's affirmative action program (see discussion above regarding
Sec. 60-741.42). As discussed above, this final rule redesignates this
appendix as appendix B. The appendix is renamed to clarify that it is a
``sample'' invitation. Finally, a note has been added at the beginning
of the appendix to state that when the invitation to self-identify is
being extended prior to an offer of employment, sample text relating to
identification of reasonable accommodations should be omitted. This
will avoid a conflict with the EEOC's ADA Guidance, which generally
precludes asking a job applicant (prior to a job offer being made)
about potential reasonable accommodations.
Appendix C to Part 60-741--Review of Personnel Processes (Proposed as
Appendix D)
As discussed above, this final rule redesignates this appendix as
appendix C.
Regulatory Procedures
Executive Order 12866
The Department is issuing this rule in conformance with Executive
Order 12866. This rule has been determined to be significant for
purposes of Executive Order 12866 and therefore has been reviewed by
OMB. This rule does not meet the criteria of section 3(f)(1) of
Executive Order 12866 and therefore the information enumerated in
section 6(a)(3)(C) of that Order is not required.
Regulatory Flexibility Act
The final rule clarifies existing requirements for Federal
contractors. In view of this fact and because the final rule does not
substantively change existing obligations for Federal contractors, the
rule will not have a significant economic impact on a substantial
number of small business entities. The Secretary has certified to the
Chief Counsel for Advocacy of the Small Business Administration to this
effect. Therefore, a regulatory flexibility analysis under the
Regulatory Flexibility Act is not required.
Unfunded Mandates Reform Act
This final rule does not include any Federal mandate that may
result in the expenditure by state, local and tribal governments in the
aggregate, or by the private sector, of $100,000,000 or more in any one
year.
Paperwork Reduction Act
This final rule establishes new recordkeeping provisions that did
not previously exist. The rule extends the current one-year record
retention period to two years for those larger contractors that have
150 or more employees and a Government contract of $150,000 or more,
and it makes this retention obligation applicable to a broader range of
records. It requires that, for purposes of confidentiality, information
obtained by contractors regarding the medical condition or history of
any applicant or employee be collected and maintained on separate forms
and in separate medical files. Lastly, it requires contractors to
maintain a separate file regarding applicants who have identified
themselves as individuals with disabilities.
The NPRM projected an increase of 1.1 million paperwork burden
hours associated with contractors determining which positions carry out
Government contracts. As discussed above, the 1992 legislation, by
striking this jurisdictional limitation from Section 503, eliminates
the need for contractors to determine which positions are covered.
Therefore, contractors will not need to incur the estimated 1.1 million
paperwork burden hours mentioned in the proposal. As stated in the
NPRM, OFCCP does not believe the other recordkeeping requirements
created by this rule will result in a net increase in burden hours as
compared to the current regulation.
These recordkeeping requirements have been submitted to the Office
of Management and Budget for clearance under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.). OFCCP solicits comments concerning these
recordkeeping requirements to: (i) evaluate whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (ii) evaluate the accuracy of the agency's
estimate of the burden of the proposed collection of information,
including the validity of the methodology and assumptions used; (iii)
enhance the quality, utility, and clarity of the information to be
collected; and (iv) minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Written comments on the recordkeeping requirements should be sent
to Joe N. Kennedy, Deputy Director, OFCCP, Room C-3325, 200
Constitution Ave., N.W., Washington, D.C. 20210. To be assured of
consideration, comments must be in writing and must be received on or
before July 1, 1996. As a convenience to commenters, OFCCP will accept
public comments transmitted by facsimile (FAX) machine. The telephone
number of the FAX receiver is (202) 219-6195. To assure access to the
FAX equipment, only public comments of six or fewer pages will be
accepted via FAX transmittal. Receipts of FAX transmittals will not be
acknowledged, except that the sender may request confirmation of
receipt by calling OFCCP at (202) 219-9430 (voice), 1(800) 326-2577
(TDD).
These new recordkeeping requirements are not effective until OFCCP
displays a currently valid OMB control number. Upon receipt of that
number, which OFCCP anticipates will take between 90 and 120 days,
OFCCP will publish a document in the Federal Register.
List of Subjects in 41 CFR Part 60-741
Administrative practice and procedure, Civil rights, Employment,
Equal employment opportunity,
[[Page 19350]]
Government contracts, Government procurement, Individuals with
disabilities, Investigations, Reporting and recordkeeping requirements.
Signed at Washington, D.C., this 12th day of April, 1996.
Robert B. Reich,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
Accordingly, with respect to the rule amending 41 CFR chapter 60
published on December 30, 1980 (45 FR 86216), which was suspended
indefinitely at 46 FR 42865, the revision of part 60-741 is withdrawn,
and in parts 60-1 and 60-30, all references to section 503 of the
Rehabilitation Act are withdrawn; with respect to title 41 of the Code
of Federal Regulations, chapter 60 is amended as set forth below.
Part 60-741 is revised to read as follows:
PART 60-741--AFFIRMATIVE ACTION AND NONDISCRIMINATION OBLIGATIONS
OF CONTRACTORS AND SUBCONTRACTORS REGARDING INDIVIDUALS WITH
DISABILITIES
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec.
60-741.1 Purpose, applicability and construction.
60-741.2 Definitions.
60-741.3 Exceptions to the definitions of ``individual with a
disability'' and ``qualified individual with a disability.''
60-741.4 Coverage and waivers.
60-741.5 Equal opportunity clause.
Subpart B--Discrimination Prohibited
60-741.20 Covered employment activities.
60-741.21 Prohibitions.
60-741.22 Direct threat defense.
60-741.23 Medical examinations and inquiries.
60-741.24 Drugs and alcohol.
60-741.25 Health insurance, life insurance and other benefit plans.
Subpart C--Affirmative Action Program
60-741.40 Applicability of the affirmative action program
requirement.
60-741.41 Availability of affirmative action program.
60-741.42 Invitation to self-identify.
60-741.43 Affirmative action policy.
60-741.44 Required contents of affirmative action programs.
60-741.45 Sheltered workshops.
Subpart D--General Enforcement and Complaint Procedures
60-741.60 Compliance reviews.
60-741.61 Complaint procedures.
60-741.62 Conciliation agreements and letters of commitment.
60-741.63 Violation of conciliation agreements and letters of
commitment.
60-741.64 Show cause notices.
60-741.65 Enforcement proceedings.
60-741.66 Sanctions and penalties.
60-741.67 Notification of agencies.
60-741.68 Reinstatement of ineligible contractors.
60-741.69 Intimidation and interference.
60-741.70 Disputed matters related to compliance with the act.
Subpart E--Ancillary Matters
60-741.80 Recordkeeping.
60-741.81 Access to records.
60-741.82 Labor organizations and recruiting and training agencies.
60-741.83 Rulings and interpretations.
60-741.84 Effective date.
Appendix A To Part 60-741--Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
Appendix B To Part 60-741--Sample Invitation to Self-Identify
Appendix C To Part 60-741--Review of Personnel Processes
Appendix D To Part 60-741--Guidelines Regarding Positions Engaged in
Carrying Out a Contract
Authority: 29 U.S.C. 706 and 793; and E.O. 11758 (3 CFR, 1971-
1975 Comp., p. 841).
Subpart A--Preliminary Matters, Equal Opportunity Clause
Sec. 60-741.1 Purpose, applicability, and construction.
(a) Purpose. The purpose of this part is to set forth the standards
for compliance with section 503 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 793), which requires Government contractors and
subcontractors to take affirmative action to employ and advance in
employment qualified individuals with disabilities.
(b) Applicability. This part applies to all Government contracts
and subcontracts in excess of $10,000 for the purchase, sale or use of
personal property or nonpersonal services (including construction):
Provided, That subpart C of this part applies only as described in
Sec. 60-741.40(a). Compliance by the contractor with the provisions of
this part will not necessarily determine its compliance with other
statutes, and compliance with other statutes will not necessarily
determine its compliance with this part: Provided, That compliance
shall also satisfy the employment provisions of the Department of
Labor's regulations implementing section 504 of the Rehabilitation Act
of 1973 (see 29 CFR 32.2(b)) when the contractor is also subject to
those requirements.
(c) Construction--(1) In general. Except as otherwise provided in
this part, this part does not apply a lesser standard than the
standards applied under title I of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.), or the regulations issued by the
Equal Employment Opportunity Commission pursuant to that title (29 CFR
part 1630). The Interpretive Guidance on Title I of the Americans with
Disabilities Act set out as an appendix to 29 CFR part 1630 issued
pursuant to that title may be relied upon for guidance in interpreting
the parallel provisions of this part.
(2) Relationship to other laws. This part does not invalidate or
limit the remedies, rights, and procedures under any Federal law or the
law of any State or political subdivision that provides greater or
equal protection for the rights of individuals with disabilities as
compared to the protection afforded by this part. It may be a defense
to a charge of violation of this part that a challenged action is
required or necessitated by another Federal law or regulation, or that
another Federal law or regulation prohibits an action (including the
provision of a particular reasonable accommodation) that would
otherwise be required by this part.
Sec. 60-741.2 Definitions.
(a) Act means the Rehabilitation Act of 1973, Pub. L. 93-112 (29
U.S.C 706 and 793), as amended by sec. 111, Pub. L. 93-516; sec.
103(d)(2)(B), Pub. L. 99-506; sec. 9, Pub. L. 100-259; sec. 512, Pub.
L. 101-336 ; and secs. 102 and 505, Pub. L. 102-569.
(b) Equal opportunity clause means the contract provisions set
forth in Sec. 60-741.5, ``Equal opportunity clause.''
(c) Secretary means the Secretary of Labor, United States
Department of Labor, or his or her designee.
(d) Deputy Assistant Secretary means the Deputy Assistant Secretary
for Federal Contract Compliance of the United States Department of
Labor, or his or her designee.
(e) Government means the Government of the United States of
America.
(f) United States, as used herein, shall include the several
States, the District of Columbia, the Virgin Islands, the Commonwealth
of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and Wake Island.
(g) Recruiting and training agency means any person who refers
workers to any contractor, or who provides or supervises apprenticeship
or training for employment by any contractor.
(h) Contract means any Government contract or subcontract.
(i) Government contract means any agreement or modification thereof
[[Page 19351]]
between any contracting agency and any person for the purchase, sale or
use of personal property or nonpersonal services (including
construction). The term Government contract does not include agreements
in which the parties stand in the relationship of employer and
employee, and federally assisted contracts.
(1) Modification means any alteration in the terms and conditions
of a contract, including supplemental agreements, amendments and
extensions.
(2) Contracting agency means any department, agency, establishment
or instrumentality of the United States, including any wholly owned
Government corporation, which enters into contracts.
(3) Person, as used in paragraphs (i) and (l) of this section,
means any natural person, corporation, partnership or joint venture,
unincorporated association, State or local government, and any agency,
instrumentality, or subdivision of such a government.
(4) Nonpersonal services, as used in paragraphs (i) and (l) of this
section, includes, but is not limited to, the following: Utility,
construction, transportation, research, insurance, and fund depository.
(5) Construction, as used in paragraphs (i) and (l) of this
section, means the construction, rehabilitation, alteration,
conversion, extension, demolition, or repair of buildings, highways, or
other changes or improvements to real property, including facilities
providing utility services. The term also includes the supervision,
inspection, and other on-site functions incidental to the actual
construction.
(6) Personal property, as used in paragraphs (i) and (l) of this
section, includes supplies and contracts for the use of real property
(such as lease arrangements), unless the contract for the use of real
property itself constitutes real property (such as easements).
(j) Contractor means, unless otherwise indicated, a prime
contractor or subcontractor holding a contract in excess of $10,000.
(k) Prime contractor means any person holding a contract in excess
of $10,000, and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' includes any person who has
held a contract subject to the act.
(l) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the purchase, sale or use of personal property or
nonpersonal services (including construction) which, in whole or in
part, is necessary to the performance of any one or more contracts; or
(2) Under which any portion of the contractor's obligation under
any one or more contracts is performed, undertaken, or assumed.
(m) Subcontractor means any person holding a subcontract in excess
of $10,000 and, for the purposes of subpart D of this part, ``General
Enforcement and Complaint Procedures,'' any person who has held a
subcontract subject to the act.
(n)(1) Individual with a disability means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more of such person's major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) See Sec. 60-741.3 for exceptions to the definition in paragraph
(n)(1) of this section.
(o) Physical or mental impairment means:
(1) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and
endocrine; or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(p) Major life activities means functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(q) Substantially limits--(1) The term substantially limits means:
(i) Unable to perform a major life activity that the average person
in the general population can perform; \1\ or
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\1\ People have a range of abilities with regard to many major
life activities such as walking, lifting, and bending, and a range
of such abilities may be considered average. Thus, the term
``average'' person in the general population does not indicate a
need to determine a precise average ability, but rather reflects
that a range of abilities may be considered average.
---------------------------------------------------------------------------
(ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life
activity as compared to the condition, manner, or duration under which
the average person in the general population can perform that same
major life activity.
(2) The following factors should be considered in determining
whether an individual is substantially limited in a major life
activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment.
(3) With respect to the major life activity of working--
(i) The term substantially limits means significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs
in various classes as compared to the average person having comparable
training, skills, and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working.
(ii) In addition to the factors listed in paragraph (q)(2) of this
section, the following factors may be considered in determining whether
an individual is substantially limited in the major life activity of
working:
(A) The geographic area to which the individual has reasonable
access;
(B) The job from which the individual has been disqualified because
of an impairment, and the number and types of jobs utilizing similar
training, knowledge, skills or abilities, within that geographic area,
from which the individual is also disqualified because of the
impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because
of an impairment, and the number and types of other jobs not utilizing
similar training, knowledge, skills or abilities, within that
geographic area, from which the individual is also disqualified because
of the impairment (broad range of jobs in various classes).
(r) Has a record of such impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(s) Is regarded as having such an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the contractor as
constituting such limitation;
(2) Has a physical or mental impairment that substantially limits
major life activities only as a result of
[[Page 19352]]
the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in paragraph (o)(1) or (2)
of this section, but is treated by the contractor as having a
substantially limiting impairment.
(t) Qualified individual with a disability means an individual with
a disability who satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of such position.
(See Sec. 60-741.3 for exceptions to this definition.)
(u) Essential functions--(1) In general. The term essential
functions means fundamental job duties of the employment position the
individual with a disability holds or desires. The term essential
functions does not include the marginal functions of the position.
(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the position
exists is to perform that function;
(ii) The function may be essential because of the limited number of
employees available among whom the performance of that job function can
be distributed; and/or
(iii) The function may be highly specialized so that the incumbent
in the position is hired for his or her expertise or ability to perform
the particular function.
(3) Evidence of whether a particular function is essential
includes, but is not limited to:
(i) The contractor's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
(v) Reasonable accommodation--(1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the
position such applicant desires; \2\ or
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\2\ A contractor's duty to provide a reasonable accommodation
with respect to applicants with disabilities is not limited to those
who ultimately demonstrate that they are qualified to perform the
job in issue. Applicants with disabilities must be provided a
reasonable accommodation with respect to the application process if
they are qualified with respect to that process (e.g., if they
present themselves at the correct location and time to fill out an
application).
---------------------------------------------------------------------------
(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable the contractor's
employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by the contractor's other similarly situated
employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the contractor to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation.\3\ This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations. (Appendix A of this part
provides guidance on a contractor's duty to provide reasonable
accommodation.)
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\3\ Contractors must engage in such an interactive process with
an individual with disabilities whether or not a reasonable
accommodation ultimately is identified. Contractors must engage in
the interactive process because, until they have done so, they may
be unable to determine whether a reasonable accommodation exists
that will result in the person being qualified.
---------------------------------------------------------------------------
(w) Undue hardship--(1) In general. Undue hardship means, with
respect to the provision of an accommodation, significant difficulty or
expense incurred by the contractor, when considered in light of the
factors set forth in paragraph (w)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on the contractor, factors
to be considered include:
(i) The nature and net cost of the accommodation needed, taking
into consideration the availability of tax credits and deductions, and/
or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the contractor, the
overall size of the business of the contractor with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the contractor,
including the composition, structure and functions of the work force of
such contractor, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
contractor; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
(x) Qualification standards means the personal and professional
attributes including the skill, experience, education, physical,
medical, safety and other requirements established by the contractor as
requirements which an individual must meet in order to be eligible for
the position held or desired.
(y) Direct threat means a significant risk of substantial harm to
the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodation. The determination
that an individual with a disability poses a ``direct threat'' shall be
based on an individualized assessment of the individual's present
ability to perform safely the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies
on the most current medical knowledge and/or on the best available
objective evidence. In determining whether an individual would pose a
direct threat, the factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
[[Page 19353]]
Sec. 60-741.3 Exceptions to the definitions of ``individual with a
disability'' and ``qualified individual with a disability.''
(a) Current illegal use of drugs--(1) In general. The terms
individual with a disability and qualified individual with a disability
do not include individuals currently engaging in the illegal use of
drugs, when the contractor acts on the basis of such use.
(2) ``Drug'' defined. The term drug means a controlled substance,
as defined in schedules I through V of section 202 of the Controlled
Substances Act (21 U.S.C. 812).
(3) ``Illegal use of drugs'' defined. The term illegal use of drugs
means the use of drugs, the possession or distribution of which is
unlawful under the Controlled Substances Act, as updated pursuant to
that act. Such term does not include the use of a drug taken under
supervision by a licensed health care professional, or other uses
authorized by the Controlled Substances Act or other provisions of
Federal law.
(4) Construction. (i) Nothing in paragraph (a)(1) of this section
shall be construed to exclude as an ``individual with a disability'' or
as a ``qualified individual with a disability'' an individual who:
(A) Has successfully completed a supervised drug rehabilitation
program and is no longer engaging in the illegal use of drugs, or has
otherwise been rehabilitated successfully and is no longer engaging in
the illegal use of drugs;
(B) Is participating in a supervised rehabilitation program and is
no longer engaging in such use; or
(C) Is erroneously regarded as engaging in such use, but is not
engaging in such use.
(ii) In order to be protected by section 503 and this part, an
individual described in paragraph (a)(4)(i) of this section must
satisfy the requirements of the definition of qualified individual with
a disability.
(5) Drug testing. It shall not be a violation of this part for the
contractor to adopt or administer reasonable policies or procedures,
including but not limited to drug testing, designed to ensure that an
individual described in paragraphs (a)(4)(i)(A) and (B) of this section
is no longer engaging in the illegal use of drugs. (See Sec. 60-
741.24(b)(1).)
(b) Alcoholics--(1) In general. The terms individual with a
disability and qualified individual with a disability do not include an
individual who is an alcoholic whose current use of alcohol prevents
such individual from performing the essential functions of the
employment position such individual holds or desires or whose
employment, by reason of such current alcohol abuse, would constitute a
direct threat to property or to the health or safety of the individual
or others.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(b)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (b)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desires, or when the accommodation
will eliminate or reduce the direct threat to property or the health or
safety of the individual or others posed by such individual, provided
that such individual satisfies the requisite skill, experience,
education and other job-related requirements of such position.
(c) Contagious disease or infection--(1) In general. The terms
individual with a disability and qualified individual with a disability
do not include an individual who has a currently contagious disease or
infection and who, by reason of such disease or infection, would
constitute a direct threat to the health or safety of the individual or
others or who, by reason of the currently contagious disease or
infection, is unable to perform the essential functions of the
employment position such individual holds or desires.
(2) Duty to provide reasonable accommodation. Nothing in paragraph
(c)(1) of this section shall relieve the contractor of its obligation
to provide a reasonable accommodation for an individual described in
paragraph (c)(1) of this section when such an accommodation will enable
the individual to perform the essential functions of the employment
position such individual holds or desires, or when the accommodation
will eliminate or reduce the direct threat to the health or safety of
the individual or others posed by such individual, provided that such
individual satisfies the requisite skill, experience, education and
other job-related requirements of such position.
(d) Homosexuality or bisexuality. The term impairment as defined in
this part does not include homosexuality or bisexuality, and therefore
the term individual with a disability as defined in this part does not
include an individual on the basis of homosexuality or bisexuality.
(e) Other conditions. The term individual with a disability does
not include an individual on the basis of:
(1) Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders resulting from current
illegal use of drugs.
Sec. 60-741.4 Coverage and waivers.
(a) Coverage--(1) Contracts and subcontracts in excess of $10,000.
Contracts and subcontracts in excess of $10,000 are covered by this
part. No contracting agency or contractor shall procure supplies or
services in less than usual quantities to avoid the applicability of
the equal opportunity clause.
(2) Positions engaged in carrying out a contract. (i) With respect
to the contractor's employment decisions and practices occurring before
October 29, 1992, this part applies only to employees who were employed
in, and applicants for, positions that were engaged in carrying out a
Government contract; with respect to employment decisions and practices
occurring on or after October 29, 1992, this part applies to all of the
contractor's positions irrespective of whether the positions are or
were engaged in carrying out a Government contract. A position shall be
considered to have been engaged in carrying out a contract if:
(A) The duties of the position included work that fulfilled a
contractual obligation, or work that was necessary to, or that
facilitated, performance of the contract or a provision of the
contract; or
(B) The cost or a portion of the cost of the position was allowable
as a cost of the contract under the principles set forth in the Federal
Acquisition Regulation at 48 CFR Ch. 1, part 31: Provided, That a
position shall not be considered to have been covered by this part by
virtue of this provision if the cost of the position was not allocable
in whole or in part as a direct cost to any Government contract, and
only a de minimis (less than 2%) portion of the cost of the position
was allocable as an indirect cost to Government contracts, considered
as a group.
(ii) Application. Where a contractor or a division or establishment
of a contractor was devoted exclusively to Government contract work,
all positions within the contractor, division, or establishment shall
be considered to have been covered by this part. (Appendix D of this
part provides guidance on positions engaged in carrying out a
contract.)
[[Page 19354]]
(3) Contracts and subcontracts for indefinite quantities. With
respect to indefinite delivery-type contracts and subcontracts
(including, but not limited to, open end contracts, requirement-type
contracts, Federal Supply Schedule contracts, ``call-type'' contracts,
and purchase notice agreements), the equal opportunity clause shall be
included unless the contracting agency has reason to believe that the
amount to be ordered in any year under such contract will not be in
excess of $10,000. The applicability of the equal opportunity clause
shall be determined at the time of award for the first year, and
annually thereafter for succeeding years, if any. Notwithstanding the
above, the equal opportunity clause shall be applied to such contract
whenever the amount of a single order exceeds $10,000. Once the equal
opportunity clause is determined to be applicable, the contract shall
continue to be subject to such clause for its duration, regardless of
the amounts ordered, or reasonably expected to be ordered in any year.
(4) Employment activities within the United States. This part
applies only to employment activities within the United States and not
to employment activities abroad. The term employment activities within
the United States includes actual employment within the United States,
and decisions of the contractor made within the United States,
pertaining to the contractor's applicants and employees who are within
the United States, regarding employment opportunities abroad (such as
recruiting and hiring within the United States for employment abroad,
or transfer of persons employed in the United States to contractor
establishments abroad).
(5) Contracts with State or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a
State or local government (or any agency, instrumentality or
subdivision thereof) shall not be applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract or subcontract.
(b) Waivers--(1) Specific contracts and classes of contracts. The
Deputy Assistant Secretary may waive the application to any contract of
the equal opportunity clause in whole or part when he or she deems that
special circumstances in the national interest so require. The Deputy
Assistant Secretary may also grant such waivers to groups or categories
of contracts: where it is in the national interest; where it is found
impracticable to act upon each request individually; and where such
waiver will substantially contribute to convenience in administration
of the act. When a waiver has been granted for any class of contracts,
the Deputy Assistant Secretary may withdraw the waiver for a specific
contract or group of contracts to be awarded, when in his or her
judgment such action is necessary or appropriate to achieve the
purposes of the act. The withdrawal shall not apply to contracts
awarded prior to the withdrawal, except that in procurements entered
into by formal advertising, or the various forms of restricted formal
advertising, such withdrawal shall not apply unless the withdrawal is
made more than 10 calendar days before the date set for the opening of
the bids.
(2) National security. Any requirement set forth in the regulations
of this part shall not apply to any contract whenever the head of the
contracting agency determines that such contract is essential to the
national security and that its award without complying with such
requirements is necessary to the national security. Upon making such a
determination, the head of the contracting agency will notify the
Deputy Assistant Secretary in writing within 30 days.
(3) Facilities not connected with contracts. The Deputy Assistant
Secretary may waive the requirements of the equal opportunity clause
with respect to any of a contractor's facilities which he or she finds
to be in all respects separate and distinct from activities of the
contractor related to the performance of the contract, provided that he
or she also finds that such a waiver will not interfere with or impede
the effectuation of the act. Such waivers shall be considered only upon
the request of the contractor.
Sec. 60-741.5 Equal opportunity clause.
(a) Government contracts. Each contracting agency and each
contractor shall include the following equal opportunity clause in each
of its covered Government contracts or subcontracts (and modifications,
renewals, or extensions thereof if not included in the original
contract):
Equal Opportunity for Workers With Disabilities
1. The contractor will not discriminate against any employee or
applicant for employment because of physical or mental disability in
regard to any position for which the employee or applicant for
employment is qualified. The contractor agrees to take affirmative
action to employ, advance in employment and otherwise treat
qualified individuals with disabilities without discrimination based
on their physical or mental disability in all employment practices,
including the following:
i. Recruitment, advertising, and job application procedures;
ii. Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff and
rehiring;
iii. Rates of pay or any other form of compensation and changes
in compensation;
iv. Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and
seniority lists;
v. Leaves of absence, sick leave, or any other leave;
vi. Fringe benefits available by virtue of employment, whether
or not administered by the contractor;
vii. Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other
related activities, and selection for leaves of absence to pursue
training;
viii. Activities sponsored by the contractor including social or
recreational programs; and
ix. Any other term, condition, or privilege of employment.
2. The contractor agrees to comply with the rules, regulations,
and relevant orders of the Secretary of Labor issued pursuant to the
act.
3. In the event of the contractor's noncompliance with the
requirements of this clause, actions for noncompliance may be taken
in accordance with the rules, regulations, and relevant orders of
the Secretary of Labor issued pursuant to the act.
4. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices in a
form to be prescribed by the Deputy Assistant Secretary for Federal
Contract Compliance Programs, provided by or through the contracting
officer. Such notices shall state the rights of applicants and
employees as well as the contractor's obligation under the law to
take affirmative action to employ and advance in employment
qualified employees and applicants with disabilities. The contractor
must ensure that applicants and employees with disabilities are
informed of the contents of the notice (e.g., the contractor may
have the notice read to a visually disabled individual, or may lower
the posted notice so that it might be read by a person in a
wheelchair).
5. The contractor will notify each labor organization or
representative of workers with which it has a collective bargaining
agreement or other contract understanding, that the contractor is
bound by the terms of section 503 of the Rehabilitation Act of 1973,
as amended, and is committed to take affirmative action to employ
and advance in employment individuals with physical or mental
disabilities.
6. The contractor will include the provisions of this clause in
every subcontract or purchase order in excess of $10,000, unless
exempted by the rules, regulations, or orders of the Secretary
issued pursuant to section 503 of the act, as amended, so that such
provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or
purchase order as the Deputy Assistant Secretary for Federal
Contract
[[Page 19355]]
Compliance Programs may direct to enforce such provisions, including
action for noncompliance.
[End of Clause]
(b) Subcontracts. Each contractor shall include the equal
opportunity clause in each of its subcontracts subject to this part.
(c) Adaption of language. Such necessary changes in language may be
made to the equal opportunity clause as shall be appropriate to
identify properly the parties and their undertakings.
(d) Inclusion of the equal opportunity clause in the contract. It
is not necessary that the equal opportunity clause be quoted verbatim
in the contract. The clause may be made a part of the contract by
citation to 41 CFR 60-741.5(a).
(e) Incorporation by operation of the act. By operation of the act,
the equal opportunity clause shall be considered to be a part of every
contract and subcontract required by the act and the regulations in
this part to include such a clause, whether or not it is physically
incorporated in such contract and whether or not there is a written
contract between the agency and the contractor.
(f) Duties of contracting agencies. Each contracting agency shall
cooperate with the Deputy Assistant Secretary and the Secretary in the
performance of their responsibilities under the act. Such cooperation
shall include insuring that the equal opportunity clause is included in
all covered Government contracts and that contractors are fully
informed of their obligations under the act and this part, providing
the Deputy Assistant Secretary with any information which comes to the
agency's attention that a contractor is not in compliance with the act
or this part, responding to requests for information from the Deputy
Assistant Secretary, and taking such actions for noncompliance as are
set forth in Sec. 60-741.66 as may be ordered by the Secretary or the
Deputy Assistant Secretary.
Subpart B--Discrimination Prohibited
Sec. 60-741.20 Covered employment activities.
The prohibition against discrimination in this part applies to the
following employment activities:
(a) Recruitment, advertising, and job application procedures;
(b) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(c) Rates of pay or any other form of compensation and changes in
compensation;
(d) Job assignments, job classifications, organizational
structures, position descriptions, lines of progression, and seniority
lists;
(e) Leaves of absence, sick leave, or any other leave;
(f) Fringe benefits available by virtue of employment, whether or
not administered by the contractor;
(g) Selection and financial support for training, including
apprenticeships, professional meetings, conferences and other related
activities, and selection for leaves of absence to pursue training;
(h) Activities sponsored by the contractor including social and
recreational programs; and
(i) Any other term, condition, or privilege of employment.
Sec. 60-741.21 Prohibitions.
The term discrimination includes, but is not limited to, the acts
described in this section and Sec. 60-741.23.
(a) Disparate treatment. It is unlawful for the contractor to deny
an employment opportunity or benefit or otherwise to discriminate
against a qualified individual with a disability because of that
individual's disability.
(b) Limiting, segregating and classifying. Unless otherwise
permitted by this part, it is unlawful for the contractor to limit,
segregate, or classify a job applicant or employee in a way that
adversely affects his or her employment opportunities or status on the
basis of disability. For example, the contractor may not segregate
qualified employees with disabilities into separate work areas or into
separate lines of advancement.
(c) Contractual or other arrangements--(1) In general. It is
unlawful for the contractor to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the
contractor's own qualified applicant or employee with a disability to
the discrimination prohibited by this part.
(2) Contractual or other arrangement defined. The phrase
contractual or other arrangement or relationship includes, but is not
limited to, a relationship with: an employment or referral agency; a
labor organization, including a collective bargaining agreement; an
organization providing fringe benefits to an employee of the
contractor; or an organization providing training and apprenticeship
programs.
(3) Application. This paragraph (c) applies to the contractor, with
respect to its own applicants or employees, whether the contractor
offered the contract or initiated the relationship, or whether the
contractor accepted the contract or acceded to the relationship. The
contractor is not liable for the actions of the other party or parties
to the contract which only affect that other party's employees or
applicants.
(d) Standards, criteria or methods of administration. It is
unlawful for the contractor to use standards, criteria, or methods of
administration, that are not job-related and consistent with business
necessity, and that:
(1) Have the effect of discriminating on the basis of disability;
or
(2) Perpetuate the discrimination of others who are subject to
common administrative control.
(e) Relationship or association with an individual with a
disability. It is unlawful for the contractor to exclude or deny equal
jobs or benefits to, or otherwise discriminate against, a qualified
individual because of the known disability of an individual with whom
the qualified individual is known to have a family, business, social or
other relationship or association.
(f) Not making reasonable accommodation. (1) It is unlawful for the
contractor to fail to make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified applicant or
employee with a disability, unless such contractor can demonstrate that
the accommodation would impose an undue hardship on the operation of
its business.
(2) It is unlawful for the contractor to deny employment
opportunities to an otherwise qualified job applicant or employee with
a disability based on the need of such contractor to make reasonable
accommodation to such an individual's physical or mental impairments.
(3) A qualified individual with a disability is not required to
accept an accommodation, aid, service, opportunity or benefit which
such qualified individual chooses not to accept. However, if such
individual rejects a reasonable accommodation, aid, service,
opportunity or benefit that is necessary to enable the individual to
perform the essential functions of the position held or desired, and
cannot, as a result of that rejection, perform the essential functions
of the position, the individual will not be considered a qualified
individual with a disability.
(g) Qualification standards, tests and other selection criteria--
(1) In general. It is unlawful for the contractor to use qualification
standards, employment tests or other selection criteria that screen out
or tend to screen out an individual with a disability or a class of
individuals with disabilities, on the basis of disability, unless the
standard, test or other selection criterion, as used by the contractor,
is shown to be job-
[[Page 19356]]
related for the position in question and is consistent with business
necessity. Selection criteria that concern an essential function may
not be used to exclude an individual with a disability if that
individual could satisfy the criteria with provision of a reasonable
accommodation. Selection criteria that exclude or tend to exclude an
individual with a disability or a class of individuals with
disabilities because of disability but concern only marginal functions
of the job would not be consistent with business necessity. The
contractor may not refuse to hire an applicant with a disability
because the applicant's disability prevents him or her from performing
marginal functions.
(2) The Uniform Guidelines on Employee Selection Procedures, 41 CFR
part 60-3, do not apply to the Rehabilitation Act and are similarly
inapplicable to this part.
(h) Administration of tests. It is unlawful for the contractor to
fail to select and administer tests concerning employment in the most
effective manner to ensure that, when a test is administered to a job
applicant or employee who has a disability that impairs sensory,
manual, or speaking skills, the test results accurately reflect the
skills, aptitude, or whatever other factor of the applicant or employee
that the test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant,
except where such skills are the factors that the test purports to
measure.
(i) Compensation. In offering employment or promotions to
individuals with disabilities, it is unlawful for the contractor to
reduce the amount of compensation offered because of any income based
upon a disability-related pension or other disability-related benefit
the applicant or employee receives from another source.
Sec. 60-741.22 Direct threat defense.
The contractor may use as a qualification standard the requirement
that an individual be able to perform the essential functions of the
position held or desired without posing a direct threat to the health
or safety of the individual or others in the workplace. (See Sec. 60-
741.2(y) defining direct threat.)
Sec. 60-741.23 Medical examinations and inquiries.
(a) Prohibited medical examinations or inquiries. Except as stated
in paragraphs (b) and (c) of this section, it is unlawful for the
contractor to require a medical examination of an applicant or employee
or to make inquiries as to whether an applicant or employee is an
individual with a disability or as to the nature or severity of such
disability.
(b) Permitted medical examinations and inquiries--(1) Acceptable
pre-employment inquiry. The contractor may make pre-employment
inquiries into the ability of an applicant to perform job-related
functions, and/or may ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will be
able to perform job-related functions.
(2) Employment entrance examination. The contractor may require a
medical examination (and/or inquiry) after making an offer of
employment to a job applicant and before the applicant begins his or
her employment duties, and may condition an offer of employment on the
results of such examination (and/or inquiry), if all entering employees
in the same job category are subjected to such an examination (and/or
inquiry) regardless of disability.
(3) Examination of employees. The contractor may require a medical
examination (and/or inquiry) of an employee that is job-related and
consistent with business necessity. The contractor may make inquiries
into the ability of an employee to perform job-related functions.
(4) Other acceptable examinations and inquiries. The contractor may
conduct voluntary medical examinations and activities, including
voluntary medical histories, which are part of an employee health
program available to employees at the work site.
(5) Medical examinations conducted in accordance with paragraphs
(b)(2) and (b)(4) of this section do not have to be job-related and
consistent with business necessity. However, if certain criteria are
used to screen out an applicant or applicants or an employee or
employees with disabilities as a result of such examinations or
inquiries, the contractor must demonstrate that the exclusionary
criteria are job-related and consistent with business necessity, and
that performance of the essential job functions cannot be accomplished
with reasonable accommodations as required in this part.
(c) Invitation to self-identify. The contractor shall invite the
applicant to self-identify as an individual with a disability as
specified in Sec. 60-741.42.
(d) Confidentiality and use of medical information. (1) Information
obtained under this section regarding the medical condition or history
of any applicant or employee shall be collected and maintained on
separate forms and in separate medical files and treated as a
confidential medical record, except that:
(i) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the applicant or employee and
necessary accommodations;
(ii) First aid and safety personnel may be informed, when
appropriate, if the disability might require emergency treatment; and
(iii) Government officials engaged in enforcing the laws
administered by OFCCP, including this part, or enforcing the Americans
with Disabilities Act, shall be provided relevant information on
request.
(2) Information obtained under this section regarding the medical
condition or history of any applicant or employee shall not be used for
any purpose inconsistent with this part.
Sec. 60-741.24 Drugs and alcohol.
(a) Specific activities permitted. The contractor:
(1) May prohibit the illegal use of drugs and the use of alcohol at
the workplace by all employees;
(2) May require that employees not be under the influence of
alcohol or be engaging in the illegal use of drugs at the workplace;
(3) May require that all employees behave in conformance with the
requirements established under the Drug-Free Workplace Act of 1988 (41
U.S.C. 701 et seq.);
(4) May hold an employee who engages in the illegal use of drugs or
who is an alcoholic to the same qualification standards for employment
or job performance and behavior to which the contractor holds its other
employees, even if any unsatisfactory performance or behavior is
related to the employee's drug use or alcoholism;
(5) May require that its employees employed in an industry subject
to such regulations comply with the standards established in the
regulations (if any) of the Departments of Defense and Transportation,
and of the Nuclear Regulatory Commission, and other Federal agencies
regarding alcohol and the illegal use of drugs; and
(6) May require that employees employed in sensitive positions
comply with the regulations (if any) of the Departments of Defense and
Transportation, and of the Nuclear Regulatory Commission, and other
Federal agencies that apply to employment in sensitive positions
subject to such regulations.
(b) Drug testing--(1) General policy. For purposes of this part, a
test to determine the illegal use of drugs is not considered a medical
examination.
[[Page 19357]]
Thus, the administration of such drug tests by the contractor to its
job applicants or employees is not a violation of Sec. 60-741.23.
Nothing in this part shall be construed to encourage, prohibit, or
authorize the contractor to conduct drug tests of job applicants or
employees to determine the illegal use of drugs or to make employment
decisions based on such test results.
(2) Transportation employees. Nothing in this part shall be
construed to encourage, prohibit, or authorize the otherwise lawful
exercise by contractors subject to the jurisdiction of the Department
of Transportation of authority to test employees in, and applicants
for, positions involving safety-sensitive duties for the illegal use of
drugs or for on-duty impairment by alcohol; and remove from safety-
sensitive positions persons who test positive for illegal use of drugs
or on-duty impairment by alcohol pursuant to paragraph (b)(1) of this
section.
(3) Any information regarding the medical condition or history of
any employee or applicant obtained from a test to determine the illegal
use of drugs, except information regarding the illegal use of drugs, is
subject to the requirements of Secs. 60-741.23(b)(5) and (c).
Sec. 60-741.25 Health insurance, life insurance and other benefit
plans.
(a) An insurer, hospital, or medical service company, health
maintenance organization, or any agent or entity that administers
benefit plans, or similar organizations may underwrite risks, classify
risks, or administer such risks that are based on or not inconsistent
with State law.
(b) The contractor may establish, sponsor, observe or administer
the terms of a bona fide benefit plan that are based on underwriting
risks, classifying risks, or administering such risks that are based on
or not inconsistent with State law.
(c) The contractor may establish, sponsor, observe, or administer
the terms of a bona fide benefit plan that is not subject to State laws
that regulate insurance.
(d) The contractor may not deny a qualified individual with a
disability equal access to insurance or subject a qualified individual
with a disability to different terms or conditions of insurance based
on disability alone, if the disability does not pose increased risks.
(e) The activities described in paragraphs (a), (b) and (c) of this
section are permitted unless these activities are used as a subterfuge
to evade the purposes of this part.
Subpart C--Affirmative Action Program
Sec. 60-741.40 Applicability of the affirmative action program
requirement.
(a) The requirements of this subpart apply to every Government
contractor that has 50 or more employees and a contract of $50,000 or
more.
(b) Contractors described in paragraph (a) of this section shall,
within 120 days of the commencement of a contract, prepare and maintain
an affirmative action program at each establishment. The affirmative
action program shall set forth the contractor's policies and procedures
in accordance with this part. This program may be integrated into or
kept separate from other affirmative action programs.
(c) The affirmative action program shall be reviewed and updated
annually.
(d) The contractor shall submit the affirmative action program
within 30 days of a request from OFCCP, unless the request provides for
a different time. The contractor also shall make the affirmative action
program promptly available on-site upon OFCCP's request.
Sec. 60-741.41 Availability of affirmative action program.
The full affirmative action program shall be available to any
employee or applicant for employment for inspection upon request. The
location and hours during which the program may be obtained shall be
posted at each establishment.
Sec. 60-741.42 Invitation to self-identify.
(a) The contractor shall, after making an offer of employment to a
job applicant and before the applicant begins his or her employment
duties, invite the applicant to inform the contractor whether the
applicant believes that he or she may be covered by the act and wishes
to benefit under the affirmative action program. The contractor may
invite self-identification prior to making a job offer only when:
(1) The invitation is made when the contractor actually is
undertaking affirmative action for individuals with disabilities at the
pre-offer stage; or
(2) The invitation is made pursuant to a Federal, state or local
law requiring affirmative action for individuals with disabilities.
(b) The invitation referenced in paragraph (a) of this section
shall state that a request to benefit under the affirmative action
program may be made immediately and/or at any time in the future. The
invitation also shall summarize the relevant portions of the act and
the contractor's affirmative action program. Furthermore, the
invitation shall state that the information is being requested on a
voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant to any adverse treatment, and
that it will not be used in a manner inconsistent with the act. If an
applicant so identifies himself or herself, the contractor should also
seek the advice of the applicant regarding proper placement and
appropriate accommodation, after a job offer has been extended. The
contractor also may make such inquiries to the extent they are
consistent with the ADA (e.g., in the context of asking applicants to
describe or demonstrate how they would perform the job). The contractor
shall maintain a separate file on persons who have self-identified and
provide that file to OFCCP upon request. This information may be used
only in accordance with this part. (An acceptable form for such an
invitation is set forth in Appendix B of this part. Because a
contractor usually may not seek advice from an applicant regarding
placement and accommodation until after a job offer has been extended,
the invitation set forth in Appendix B of this part contains
instructions regarding modifications to be made if it is used at the
pre-offer stage.)
(c) Nothing in this section shall relieve the contractor of its
obligation to take affirmative action with respect to those applicants
or employees of whose disability the contractor has knowledge.
(d) Nothing in this section shall relieve the contractor from
liability for discrimination under the act.
Sec. 60-741.43 Affirmative action policy.
Under the affirmative action obligations imposed by the act
contractors shall not discriminate because of physical or mental
disability and shall take affirmative action to employ and advance in
employment qualified individuals with disabilities at all levels of
employment, including the executive level. Such action shall apply to
all employment activities set forth in Sec. 60-741.20.
Sec. 60-741.44 Required contents of affirmative action programs.
Acceptable affirmative action programs shall contain, but not
necessarily be limited to, the following ingredients:
(a) Policy statement. The contractor shall include an equal
opportunity policy statement in its affirmative action program, and
shall post the policy statement on company bulletin boards. The
contractor must ensure that applicants and employees with
[[Page 19358]]
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 may be
read by a person in a wheelchair). The policy statement should indicate
the chief executive officer's attitude on the subject matter, provide
for an audit and reporting system (see paragraph (h) of this section)
and assign overall responsibility for the implementation of affirmative
action activities required under this part (see paragraph (i) of this
section). Additionally, the policy should state, among other things,
that the contractor will: recruit, hire, train and promote persons in
all job titles, and ensure that all other personnel actions are
administered, without regard to disability; and ensure that all
employment decisions are based only on valid job requirements. The
policy shall state that employees and applicants shall not be subjected
to harassment, intimidation, threats, coercion or discrimination
because they have engaged in or may engage in any of the following
activities:
(1) Filing a complaint;
(2) Assisting or participating in an investigation, compliance
review, hearing, or any other activity related to the administration of
section 503 of the Rehabilitation Act of 1973, as amended (section 503)
or any other Federal, State or local law requiring equal opportunity
for disabled persons;
(3) Opposing any act or practice made unlawful by section 503 or
its implementing regulations in this part or any other Federal, State
or local law requiring equal opportunity for disabled persons; or
(4) Exercising any other right protected by section 503 or its
implementing regulations in this part.
(b) Review of personnel processes. The contractor shall ensure that
its personnel processes provide for careful, thorough, and systematic
consideration of the job qualifications of applicants and employees
with known disabilities for job vacancies filled either by hiring or
promotion, and for all training opportunities offered or available. The
contractor shall ensure that its personnel processes do not stereotype
disabled persons in a manner which limits their access to all jobs for
which they are qualified. The contractor shall periodically review such
processes and make any necessary modifications to ensure that these
obligations are carried out. A description of the review and any
necessary modifications to personnel processes or development of new
processes shall be included in any affirmative action programs required
under this part. The contractor must design procedures that facilitate
a review of the implementation of this requirement by the contractor
and the Government. (Appendix C of this part is an example of an
appropriate set of procedures. The procedures in Appendix C of this
part are not required and contractors may develop other procedures
appropriate to their circumstances.)
(c) Physical and mental qualifications. (1) The contractor shall
provide in its affirmative action program, and shall adhere to, a
schedule for the periodic review of all physical and mental job
qualification standards to ensure that, to the extent qualification
standards tend to screen out qualified individuals with disabilities,
they are job-related for the position in question and are consistent
with business necessity.
(2) Whenever the contractor applies physical or mental
qualification standards in the selection of applicants or employees for
employment or other change in employment status such as promotion,
demotion or training, to the extent that qualification standards tend
to screen out qualified individuals with disabilities, the standards
shall be related to the specific job or jobs for which the individual
is being considered and consistent with business necessity. The
contractor shall have the burden to demonstrate that it has complied
with the requirements of paragraph (c)(2) of this section.
(3) The contractor may use as a defense to an allegation of a
violation of paragraph (c)(2) of this section that an individual poses
a direct threat to the health or safety of the individual or others in
the workplace. (See Sec. 60-741.2(y) defining direct threat.)
(d) Reasonable accommodation to physical and mental limitations.
The contractor shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified individual
with a disability unless it can demonstrate that the accommodation
would impose an undue hardship on the operation of its business. If an
employee with a known disability is having significant difficulty
performing his or her job and it is reasonable to conclude that the
performance problem may be related to the known disability, the
contractor shall confidentially notify the employee of the performance
problem and inquire whether the problem is related to the employee's
disability; if the employee responds affirmatively, the contractor
shall confidentially inquire whether the employee is in need of a
reasonable accommodation.
(e) Harassment. The contractor must develop and implement
procedures to ensure that its employees with disabilities are not
harassed because of disability.
(f) External dissemination of policy, outreach and positive
recruitment. The contractor shall undertake appropriate outreach and
positive recruitment activities such as those listed in paragraphs
(f)(1) through (7) of this section that are reasonably designed to
effectively recruit qualified individuals with disabilities. It is not
contemplated that the contractor will necessarily undertake all the
activities listed in paragraphs (f)(1) through (7) of this section or
that its activities will be limited to those listed. The scope of the
contractor's efforts shall depend upon all the circumstances, including
the contractor's size and resources and the extent to which existing
employment practices are adequate.
(1) The contractor should enlist the assistance and support of
recruiting sources (including State employment security agencies, State
vocational rehabilitation agencies or facilities, sheltered workshops,
college placement officers, State education agencies, labor
organizations and organizations of or for individuals with
disabilities) for the contractor's commitment to provide meaningful
employment opportunities to qualified individuals with disabilities.
Formal briefing sessions should be held, preferably on company
premises, with representatives from recruiting sources. Plant tours,
clear and concise explanations of current and future job openings,
position descriptions, worker specifications, explanations of the
company's selection process, and recruiting literature should be an
integral part of the briefing. Formal arrangements should be made for
referral of applicants, follow up with sources, and feedback on
disposition of applicants.
(2) The contractor's recruitment efforts at all schools should
incorporate special efforts to reach students with disabilities. The
contractor should engage in recruitment activities at educational
institutions which participate in training of individuals with
disabilities, such as schools for the blind, deaf, or learning
disabled. An effort should be made to participate in work-study
programs with rehabilitation facilities and schools which specialize in
training or educating individuals with disabilities.
(3) The contractor should establish meaningful contacts with
appropriate social service agencies, organizations of and for
individuals with disabilities, and vocational rehabilitation agencies
or
[[Page 19359]]
facilities, for such purposes as advice, technical assistance and
referral of potential employees. Technical assistance from the
resources described in this paragraph may consist of advice on proper
placement, recruitment, training and accommodations contractors may
undertake, but no such resource providing technical assistance shall
have authority to approve or disapprove the acceptability of
affirmative action programs.
(4) The contractor should include individuals with disabilities
when employees are pictured in consumer, promotional or help wanted
advertising. Individuals with disabilities should be made available for
participation in career days, youth motivation programs, and related
activities in their communities.
(5) The contractor should send written notification of company
policy to all subcontractors, vendors and suppliers, requesting
appropriate action on their part.
(6) The contractor should take positive steps to attract qualified
individuals with disabilities not currently in the work force who have
requisite skills and can be recruited through affirmative action
measures. These persons may be located through the local chapters of
organizations of and for individuals with disabilities.
(7) The contractor, in making hiring decisions, should consider
applicants with known disabilities for all available positions for
which they may be qualified when the position(s) applied for is
unavailable.
(g) Internal dissemination of policy. (1) A strong outreach program
will be ineffective without adequate internal support from supervisory
and management personnel and other employees, who may have had limited
contact with individuals with disabilities in the past. In order to
assure greater employee cooperation and participation in the
contractor's efforts, the contractor shall develop internal procedures
such as those listed in paragraph (g)(2) of this section for
communication of its obligation to engage in affirmative action efforts
to employ and advance in employment qualified individuals with
disabilities. It is not contemplated that the contractor will
necessarily undertake all the activities listed in paragraph (g)(2) of
this section or that its activities will be limited to those listed.
These procedures shall be designed to foster understanding, acceptance
and support among the contractor's executive, management, supervisory
and other employees and to encourage such persons to take the necessary
actions to aid the contractor in meeting this obligation. The scope of
the contractor's efforts shall depend upon all the circumstances,
including the contractor's size and resources and the extent to which
existing practices are adequate.
(2) The contractor should implement and disseminate this policy
internally as follows:
(i) Include it in the contractor's policy manual.
(ii) Periodically inform all employees and prospective employees of
its commitment to engage in affirmative action to increase employment
opportunities for qualified individuals with disabilities. The
contractor should schedule special meetings with all employees to
discuss policy and explain individual employee responsibilities.
(iii) Publicize it in the company newspaper, magazine, annual
report and other media.
(iv) Conduct special meetings with executive, management, and
supervisory personnel to explain the intent of the policy and
individual responsibility for effective implementation, making clear
the chief executive officer's attitude.
(v) Discuss the policy thoroughly in both employee orientation and
management training programs.
(vi) Meet with union officials and/or employee representatives to
inform them of the contractor's policy, and request their cooperation.
(vii) Include articles on accomplishments of disabled workers in
company publications.
(viii) When employees are featured in employee handbooks or similar
publications for employees, include individuals with disabilities.
(h) Audit and reporting system. (1) The contractor shall design and
implement an audit and reporting system that will:
(i) Measure the effectiveness of the contractor's affirmative
action program.
(ii) Indicate any need for remedial action.
(iii) Determine the degree to which the contractor's objectives
have been attained.
(iv) Determine whether individuals with known disabilities have had
the opportunity to participate in all company sponsored educational,
training, recreational and social activities.
(v) Measure the contractor's compliance with the affirmative action
program's specific obligations.
(2) Where the affirmative action program is found to be deficient,
the contractor shall undertake necessary action to bring the program
into compliance.
(i) Responsibility for implementation. An official of the
contractor shall be assigned responsibility for implementation of the
contractor's affirmative action activities under this part. His or her
identity should appear on all internal and external communications
regarding the company's affirmative action program. This official shall
be given necessary top management support and staff to manage the
implementation of this program.
(j) Training. All personnel involved in the recruitment, screening,
selection, promotion, disciplinary, and related processes shall be
trained to ensure that the commitments in the contractor's affirmative
action program are implemented.
Sec. 60-741.45 Sheltered workshops.
Contracts with sheltered workshops do not constitute affirmative
action in lieu of employment and advancement of qualified disabled
individuals in the contractor's own work force. Contracts with
sheltered workshops may be included within an affirmative action
program if the sheltered workshop trains employees for the contractor
and the contractor is obligated to hire trainees at full compensation
when such trainees become ``qualified individuals with disabilities.''
Subpart D--General Enforcement and Complaint Procedures
Sec. 60-741.60 Compliance reviews.
(a) OFCCP may conduct compliance reviews to determine if the
contractor maintains nondiscriminatory hiring and employment practices
and is taking affirmative action to ensure that applicants are employed
and that employees are placed, trained, upgraded, promoted, and
otherwise treated in accordance with this part during employment. The
compliance review shall consist of a comprehensive analysis and
evaluation of each aspect of the aforementioned practices, policies,
and conditions resulting therefrom. Where necessary, recommendations
for appropriate sanctions shall be made.
(b) Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion
pursuant to Sec. 60-741.62.
Sec. 60-741.61 Complaint procedures.
(a) Coordination with other agencies. Pursuant to section 107(b) of
the Americans with Disabilities Act of 1990 (ADA), OFCCP and the Equal
Employment Opportunity Commission have promulgated regulations setting
[[Page 19360]]
forth procedures governing the processing of complaints falling within
the overlapping jurisdiction of both the act and title I of the ADA to
ensure that such complaints are dealt with in a manner that avoids
duplication of effort and prevents the imposition of inconsistent or
conflicting standards. Complaints filed under this part will be
processed in accordance with those regulations, which are found at 41
CFR part 60-742, and with this part.
(b) Place and time of filing. Any applicant for employment with a
contractor or any employee of a contractor may, personally or by an
authorized representative, file a written complaint with the Deputy
Assistant Secretary alleging a violation of the act or the regulations
in this part. The complaint may allege individual or class-wide
violation(s). Complaints may be submitted to the OFCCP, 200
Constitution Avenue, N.W., Washington, D.C. 20210, or to any OFCCP
regional, district, or area office. Such complaint must be filed within
300 days of the date of the alleged violation, unless the time for
filing is extended by OFCCP for good cause shown.
(c) Contents of complaints--(1) In general. A complaint must be
signed by the complainant or his or her authorized representative and
must contain the following information:
(i) Name and address (including telephone number) of the
complainant;
(ii) Name and address of the contractor who committed the alleged
violation;
(iii) The facts showing that the individual is disabled or has a
history of a disability or was regarded by the contractor as having a
disability;
(iv) A description of the act or acts considered to be a violation,
including the pertinent dates (in the case of an alleged continuing
violation, the earliest and most recent date that the alleged violation
occurred should be stated); and
(v) Other pertinent information available which will assist in the
investigation and resolution of the complaint, including the name of
any known Federal agency with which the employer has contracted.
(2) Third party complaints. A complaint filed by an authorized
representative need not identify by name the person on whose behalf it
is filed. The person filing the complaint, however, shall provide OFCCP
with the name, address and telephone number of the person on whose
behalf it is made, and the other information specified in paragraph
(c)(1) of this section. OFCCP shall verify the authorization of such a
complaint by the person on whose behalf the complaint is made. Any such
person may request that OFCCP keep his or her identity confidential,
and OFCCP will protect the individual's confidentiality wherever that
is possible given the facts and circumstances in the complaint.
(d) Incomplete information. Where a complaint contains incomplete
information, OFCCP shall seek the needed information from the
complainant. If the information is not furnished to OFCCP within 60
days of the date of such request, the case may be closed.
(e) Investigations. The Department of Labor shall institute a
prompt investigation of each complaint.
(f) Resolution of matters. (1) If the complaint investigation finds
no violation of the act or this part, or if the Deputy Assistant
Secretary decides not to refer the matter to the Solicitor of Labor for
enforcement proceedings against the contractor pursuant to Sec. 60-
741.65(a)(l), the complainant and contractor shall be so notified. The
Deputy Assistant Secretary, on his or her own initiative, may
reconsider his or her determination or the determination of any of his
or her designated officers who have authority to issue Notifications of
Results of Investigation.
(2) The Deputy Assistant Secretary will review all determinations
of no violation that involve complaints that are not also cognizable
under title I of the Americans with Disabilities Act.
(3) In cases where the Deputy Assistant Secretary decides to
reconsider the determination of a Notification of Results of
Investigation, the Deputy Assistant Secretary shall provide prompt
notification of his or her intent to reconsider, which is effective
upon issuance, and his or her final determination after
reconsideration, to the person claiming to be aggrieved, the person
making the complaint on behalf of such person, if any, and the
contractor.
(4) If the investigation finds a violation of the act or this part,
OFCCP shall invite the contractor to participate in conciliation
discussions pursuant to Sec. 60-741.62.
Sec. 60-741.62 Conciliation agreements and letters of commitment.
(a) If a compliance review, complaint investigation or other review
by OFCCP finds a material violation of the act or this part, and if the
contractor is willing to correct the violations and/or deficiencies,
and if OFCCP determines that settlement on that basis (rather than
referral for consideration of formal enforcement) is appropriate, a
written conciliation agreement shall be required. The agreement shall
provide for such remedial action as may be necessary to correct the
violations and/or deficiencies noted, including, where appropriate (but
not necessarily limited to) such make whole remedies as back pay and
retroactive seniority. The agreement shall also specify the time period
for completion of the remedial action; the period shall be no longer
than the minimum period necessary to complete the action.
(b) The term ``conciliation agreement'' does not include ``letters
of commitment,'' which are appropriate for resolving minor technical
deficiencies.
Sec. 60-741.63 Violation of conciliation agreements and letters of
commitment.
(a) When OFCCP believes that a conciliation agreement has been
violated, the following procedures are applicable:
(1) A written notice shall be sent to the contractor setting forth
the violation alleged and summarizing the supporting evidence. The
contractor shall have 15 days from receipt of the notice to respond,
except in those cases in which OFCCP asserts that such a delay would
result in irreparable injury to the employment rights of affected
employees or applicants.
(2) During the 15-day period the contractor may demonstrate in
writing that it has not violated its commitments.
(b) In those cases in which OFCCP asserts that a delay would result
in irreparable injury to the employment rights of affected employees or
applicants, enforcement proceedings may be initiated immediately
without proceeding through any other requirement contained in this
chapter.
(c) In any proceedings involving an alleged violation of a
conciliation agreement OFCCP may seek enforcement of the agreement
itself and shall not be required to present proof of the underlying
violations resolved by the agreement.
(d) When OFCCP believes that a letter of commitment has been
violated, the matter shall be handled, where appropriate, pursuant to
Sec. 60-741.64. The violation may be corrected through a conciliation
agreement, or an enforcement proceeding may be initiated.
Sec. 60-741.64 Show cause notices.
When the Deputy Assistant Secretary has reasonable cause to believe
that the contractor has violated the act or this part, he or she may
issue a notice requiring the contractor to show cause, within 30 days,
why monitoring,
[[Page 19361]]
enforcement proceedings or other appropriate action to ensure
compliance should not be instituted. The issuance of such a notice is
not a prerequisite to instituting enforcement proceedings (see Sec. 60-
741.65).
Sec. 60-741.65 Enforcement proceedings.
(a) General. (1) If a compliance review, complaint investigation or
other review by OFCCP finds a violation of the act or this part, and
the violation has not been corrected in accordance with the
conciliation procedures in this part, or OFCCP determines that referral
for consideration of formal enforcement (rather than settlement) is
appropriate, OFCCP may refer the matter to the Solicitor of Labor with
a recommendation for the institution of enforcement proceedings to
enjoin the violations, to seek appropriate relief, and to impose
appropriate sanctions, or any of the above in this sentence. OFCCP may
seek back pay and other make whole relief for aggrieved individuals
identified during a complaint investigation or compliance review. Such
individuals need not have filed a complaint as a prerequisite to OFCCP
seeking such relief on their behalf. Interest on back pay shall be
calculated from the date of the loss and compounded quarterly at the
percentage rate established by the Internal Revenue Service for the
underpayment of taxes.
(2) In addition to the administrative proceedings set forth in this
section, the Deputy Assistant Secretary may, within the limitations of
applicable law, seek appropriate judicial action to enforce the
contractual provisions set forth in Sec. 60-741.5, including
appropriate injunctive relief.
(b) Hearing practice and procedure. (1) In administrative
enforcement proceedings the contractor shall be provided an opportunity
for a formal hearing. All hearings conducted under the act and this
part shall be governed by the Rules of Practice for Administrative
Proceedings to Enforce Equal Opportunity Under Executive Order 11246
contained in 41 CFR part 60-30 and the Rules of Evidence set out in the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges contained in 29 CFR part 18,
subpart B: Provided, That a final administrative order shall be issued
within one year from the date of the issuance of the recommended
findings, conclusions and decision of the Administrative Law Judge, or
the submission of any exceptions and responses to exceptions to such
decision (if any), whichever is later.
(2) Complaints may be filed by the Solicitor, the Associate
Solicitor for Civil Rights, Regional Solicitors and Associate Regional
Solicitors.
(3) For the purposes of hearings pursuant to this part, references
in 41 CFR part 60-30 to ``Executive Order 11246'' shall mean section
503 of the Rehabilitation Act of 1973, as amended; to ``equal
opportunity clause'' shall mean the equal opportunity clause published
at 41 CFR 60-741.5; and to ``regulations'' shall mean the regulations
contained in this part.
Sec. 60-741.66 Sanctions and penalties.
(a) Withholding progress payments. With the prior approval of the
Deputy Assistant Secretary so much of the accrued payment due on the
contract or any other contract between the Government contractor and
the Federal Government may be withheld as necessary to correct any
violations of the provisions of the act or this part.
(b) Termination. A contract may be canceled or terminated, in whole
or in part, for failure to comply with the provisions of the act or
this part.
(c) Debarment. A contractor may be debarred from receiving future
contracts for failure to comply with the provisions of the act or this
part subject to reinstatement pursuant to Sec. 60-741.68. Debarment may
be imposed for an indefinite period, or may be imposed for a fixed
period of not less than six months but no more than three years.
(d) Hearing opportunity. An opportunity for a formal hearing shall
be afforded to a contractor before the imposition of any sanction or
penalty.
Sec. 60-741.67 Notification of agencies.
The Deputy Assistant Secretary shall ensure that the heads of all
agencies are notified of any debarments taken against any contractor.
Sec. 60-741.68 Reinstatement of ineligible contractors.
(a) Application for reinstatement. A contractor debarred from
further contracts for an indefinite period under the act may request
reinstatement in a letter filed with the Deputy Assistant Secretary at
any time after the effective date of the debarment; a contractor
debarred for a fixed period may make such a request following the
expiration of six months from the effective date of the debarment. In
connection with the reinstatement proceedings, all debarred contractors
shall be required to show that they have established and will carry out
employment policies and practices in compliance with the act and this
part. Additionally, in determining whether reinstatement is appropriate
for a contractor debarred for a fixed period, the Deputy Assistant
Secretary also shall consider, among other factors, the severity of the
violation which resulted in the debarment, the contractor's attitude
towards compliance, the contractor's past compliance history, and
whether the contractor's reinstatement would impede the effective
enforcement of the act or this part. Before reaching a decision, the
Deputy Assistant Secretary may conduct a compliance review of the
contractor and may require the contractor to supply additional
information regarding the request for reinstatement. The Deputy
Assistant Secretary shall issue a written decision on the request.
(b) Petition for review. Within 30 days of its receipt of a
decision denying a request for reinstatement, the contractor may file a
petition for review of the decision with the Secretary. The petition
shall set forth the grounds for the contractor's objections to the
Deputy Assistant Secretary's decision. The petition shall be served on
the Deputy Assistant Secretary and the Associate Solicitor for Civil
Rights and shall include the decision as an appendix. The Deputy
Assistant Secretary may file a response within 14 days to the petition.
The Secretary shall issue the final agency decision denying or granting
the request for reinstatement. Before reaching a final decision, the
Secretary may issue such additional orders respecting procedure as he
or she finds appropriate in the circumstances, including an order
referring the matter to the Office of Administrative Law Judges for an
evidentiary hearing where there is a material factual dispute that
cannot be resolved on the record before the Secretary.
Sec. 60-741.69 Intimidation and interference.
(a) The contractor shall not harass, intimidate, threaten, coerce,
or discriminate against, any individual because the individual has
engaged in or may engage in any of the following activities:
(1) Filing a complaint;
(2) Assisting or participating in any manner in an investigation,
compliance review, hearing, or any other activity related to the
administration of the act or any other Federal, State or local law
requiring equal opportunity for disabled persons;
(3) Opposing any act or practice made unlawful by the act or this
part or any other Federal, State or local law requiring equal
opportunity for disabled persons; or
(4) Exercising any other right protected by the act or this part.
[[Page 19362]]
(b) The contractor shall ensure that all persons under its control
do not engage in such harassment, intimidation, threats, coercion or
discrimination. The sanctions and penalties contained in this part may
be exercised by the Deputy Assistant Secretary against any contractor
who violates this obligation.
Sec. 60-741.70 Disputed matters related to compliance with the act.
The procedures set forth in the regulations in this part govern all
disputes relative to the contractor's compliance with the act and this
part. Any disputes relating to issues other than compliance, including
contract costs arising out of the contractor's efforts to comply, shall
be determined by the disputes clause of the contract.
Subpart E--Ancillary Matters
Sec. 60-741.80 Recordkeeping.
(a) General requirements. Any personnel or employment record made
or kept by the contractor shall be preserved by the contractor for a
period of two years from the date of the making of the record or the
personnel action involved, whichever occurs later. However, if the
contractor has fewer than 150 employees or does not have a Government
contract of at least $150,000, the minimum record retention period
shall be one year from the date of the making of the record or the
personnel action involved, whichever occurs later. Such records
include, but are not necessarily limited to, records relating to
requests for reasonable accommodation; the results of any physical
examination; job advertisements and postings; applications and resumes;
tests and test results; interview notes; and other records having to do
with hiring, assignment, promotion, demotion, transfer, lay-off or
termination, rates of pay or other terms of compensation, and selection
for training or apprenticeship. In the case of involuntary termination
of an employee, the personnel records of the individual terminated
shall be kept for a period of two years from the date of the
termination, except that contractors that have fewer than 150 employees
or that do not have a Government contract of at least $150,000 shall
keep such records for a period of one year from the date of the
termination. Where the contractor has received notice that a complaint
of discrimination has been filed, that a compliance review has been
initiated, or that an enforcement action has been commenced, the
contractor shall preserve all personnel records relevant to the
complaint, compliance review or action until final disposition of the
complaint, compliance review or action. The term ``personnel records
relevant to the complaint, compliance review or action'' would include,
for example, personnel or employment records relating to the aggrieved
person and to all other employees holding positions similar to that
held or sought by the aggrieved person and application forms or test
papers completed by an unsuccessful applicant and by all other
candidates for the same position as that for which the aggrieved person
applied and was rejected.
(b) Failure to preserve records. Failure to preserve complete and
accurate records as required by paragraph (a) of this section
constitutes noncompliance with the contractor's obligations under the
act and this part. Where the contractor has destroyed or failed to
preserve records as required by this section, there may be a
presumption that the information destroyed or not preserved would have
been unfavorable to the contractor: Provided, That this presumption
shall not apply where the contractor shows that the destruction or
failure to preserve records results from circumstances that are outside
of the contractor's control.
(c) The requirements of this section shall apply only to records
made or kept on or after August 29, 1996.
Sec. 60-741.81 Access to records.
Each contractor shall permit access during normal business hours to
its places of business for the purpose of conducting on-site compliance
reviews and complaint investigations and inspecting and copying such
books and accounts and records, including computerized records, and
other material as may be relevant to the matter under investigation and
pertinent to compliance with the act or this part. Information obtained
in this manner shall be used only in connection with the administration
of the act, the administration of the Americans with Disabilities Act
of 1990 (ADA) and in furtherance of the purposes of the act and the
ADA.
Sec. 60-741.82 Labor organizations and recruiting and training
agencies.
(a) Whenever performance in accordance with the equal opportunity
clause or any matter contained in the regulations in this part may
necessitate a revision of a collective bargaining agreement, the labor
organizations which are parties to such agreement shall be given an
adequate opportunity to present their views to OFCCP.
(b) OFCCP shall use its best efforts, directly or through
contractors, subcontractors, local officials, vocational rehabilitation
facilities, and all other available instrumentalities, to cause any
labor organization, recruiting and training agency or other
representative of workers who are employed by a contractor to cooperate
with, and to assist in, the implementation of the purposes of the act.
Sec. 60-741.83 Rulings and interpretations.
Rulings under or interpretations of the act and this part shall be
made by the Deputy Assistant Secretary.
Sec. 60-741.84 Effective date.
This part shall become effective August 29, 1996, and shall not
apply retroactively. Contractors presently holding Government contracts
shall update their affirmative action programs as required to comply
with this part by December 27, 1996.
Appendix A to Part 60-741--Guidelines on a Contractor's Duty To
Provide Reasonable Accommodation
The guidelines in this appendix are in large part derived from,
and are consistent with, the discussion regarding the duty to
provide reasonable accommodation contained in the Interpretive
Guidance on Title I of the Americans with Disabilities Act (ADA) set
out as an appendix to the regulations issued by the Equal Employment
Opportunity Commission (EEOC) implementing the ADA (29 CFR part
1630). Although the following discussion is intended to provide an
independent ``free-standing'' source of guidance with respect to the
duty to provide reasonable accommodation under this part, to the
extent that the EEOC appendix provides additional guidance which is
consistent with the following discussion, it may be relied upon for
purposes of this part as well. See Sec. 60-741.1(c). Contractors are
obligated to provide reasonable accommodation and to take
affirmative action. Reasonable accommodation under section 503, like
reasonable accommodation required under the ADA, is a part of the
nondiscrimination obligation. See EEOC appendix cited in this
paragraph. Affirmative action is unique to section 503, and includes
actions above and beyond those required as a matter of
nondiscrimination. An example of this is the requirement discussed
in paragraph 2 of this appendix that a contractor shall make an
inquiry of an employee with a known disability who is having
significant difficulty performing his or her job.
1. A contractor is required to make reasonable accommodations to
the known physical or mental limitations of an ``otherwise
qualified'' individual with a disability, unless the contractor can
demonstrate that the accommodation would impose an undue hardship on
the operation of its business. As stated in Sec. 60-741.2(t), an
individual with a disability is qualified if he or she satisfies all
the skill, experience,
[[Page 19363]]
education and other job-related selection criteria, and can perform
the essential functions of the position with or without reasonable
accommodation. A contractor is required to make a reasonable
accommodation with respect to its application process if the
individual with a disability is qualified with respect to that
process. One is ``otherwise qualified'' if he or she is qualified
for a job, except that, because of a disability, he or she needs a
reasonable accommodation to be able to perform the job's essential
functions.
2. Although the contractor would not be expected to accommodate
disabilities of which it is unaware, the contractor has an
affirmative obligation to provide a reasonable accommodation for
applicants and employees of whose disability the contractor has
actual knowledge. As stated in Sec. 60-741.42 (see also Appendix B
of this part), the contractor is required to invite applicants who
have been provided an offer of employment, before they begin their
employment duties, to indicate whether they may have a disability
and wish to benefit under the contractor's affirmative action
program. That section further provides that the contractor should
seek the advice of individuals who ``self-identify'' in this way as
to proper placement and appropriate accommodation. Moreover,
Sec. 60-741.44(d) provides that if an employee with a known
disability is having significant difficulty performing his or her
job and it is reasonable to conclude that the performance problem
may be related to the disability, the contractor is required to
confidentially inquire whether the problem is disability related and
if the employee is in need of a reasonable accommodation.
3. An accommodation is any change in the work environment or in
the way things are customarily done that enables an individual with
a disability to enjoy equal employment opportunities. Equal
employment opportunity means an opportunity to attain the same level
of performance, or to enjoy the same level of benefits and
privileges of employment as are available to the average similarly
situated employee without a disability. Thus, for example, an
accommodation made to assist an employee with a disability in the
performance of his or her job must be adequate to enable the
individual to perform the essential functions of the position. The
accommodation, however, does not have to be the ``best''
accommodation possible, so long as it is sufficient to meet the job-
related needs of the individual being accommodated. There are three
areas in which reasonable accommodations may be necessary: (1)
Accommodations in the application process; (2) accommodations that
enable employees with disabilities to perform the essential
functions of the position held or desired; and (3) accommodations
that enable employees with disabilities to enjoy equal benefits and
privileges of employment as are enjoyed by employees without
disabilities.
4. The term ``undue hardship'' refers to any accommodation that
would be unduly costly, extensive, substantial, or disruptive, or
that would fundamentally alter the nature or operation of the
contractor's business. The contractor's claim that the cost of a
particular accommodation will impose an undue hardship requires a
determination of which financial resources should be considered--
those of the contractor in its entirety or only those of the
facility that will be required to provide the accommodation. This
inquiry requires an analysis of the financial relationship between
the contractor and the facility in order to determine what resources
will be available to the facility in providing the accommodation. If
the contractor can show that the cost of the accommodation would
impose an undue hardship, it would still be required to provide the
accommodation if the funding is available from another source, e.g.,
a State vocational rehabilitation agency, or if Federal, State or
local tax deductions or tax credits are available to offset the cost
of the accommodation. In the absence of such funding, the individual
with a disability should be given the option of providing the
accommodation or of paying that portion of the cost which
constitutes the undue hardship on the operation of the business.
5. Section 60-741.2(v) lists a number of examples of the most
common types of accommodations that the contractor may be required
to provide. There are any number of specific accommodations that may
be appropriate for particular situations. The discussion in this
appendix is not intended to provide an exhaustive list of required
accommodations (as no such list would be feasible); rather, it is
intended to provide general guidance regarding the nature of the
obligation. The decision as to whether a reasonable accommodation is
appropriate must be made on a case-by-case basis. The contractor
generally should consult with the individual with a disability in
deciding on the appropriate accommodation; frequently, the
individual will know exactly what accommodation he or she will need
to perform successfully in a particular job, and may suggest an
accommodation which is simpler and less expensive than the
accommodation the contractor might have devised. Other resources to
consult include the appropriate State vocational rehabilitation
services agency, the Equal Employment Opportunity Commission (1-800-
669-EEOC (voice), 1-800-800-3302 (TDD)), the Job Accommodation
Network (JAN) operated by the President's Committee on Employment of
People with Disabilities (1-800-JAN-7234), private disability
organizations, and other employers.
6. With respect to accommodations that can permit an employee
with a disability to perform essential functions successfully, a
reasonable accommodation may require the contractor to, for
instance, modify or acquire equipment. For the visually-impaired
such accommodations may include providing adaptive hardware and
software for computers, electronic visual aids, braille devices,
talking calculators, magnifiers, audio recordings and brailled or
large print materials. For persons with hearing impairments,
reasonable accommodations may include providing telephone handset
amplifiers, telephones compatible with hearing aids and
telecommunications devices for the deaf (TDDs). For persons with
limited physical dexterity, the obligation may require the provision
of goose neck telephone headsets, mechanical page turners and raised
or lowered furniture.
7. Other reasonable accommodations of this type may include
providing personal assistants such as a reader, interpreter or
travel attendant, permitting the use of accrued paid leave or
providing additional unpaid leave for necessary treatment. The
contractor may also be required to make existing facilities readily
accessible to and usable by individuals with a disability--including
areas used by employees for purposes other than the performance of
essential job functions such as restrooms, break rooms, cafeterias,
lounges, auditoriums, libraries, parking lots and credit unions.
This type of accommodation will enable employees to enjoy equal
benefits and privileges of employment as are enjoyed by employees
who do not have disabilities.
8. Another of the potential accommodations listed in Sec. 60-
741.2(v) is job restructuring. This may involve reallocating or
redistributing those nonessential, marginal job functions which a
qualified individual with a disability cannot perform to another
position. Accordingly, if a clerical employee is occasionally
required to lift heavy boxes containing files, but cannot do so
because of a disability, this task may be reassigned to another
employee. The contractor, however, is not required to reallocate
essential functions, i.e., those functions that the individual who
holds the job would have to perform, with or without reasonable
accommodation, in order to be considered qualified for the position.
For instance, the contractor which has a security guard position
which requires the incumbent to inspect identity cards would not
have to provide a blind individual with an assistant to perform that
duty; in such a case, the assistant would be performing an essential
function of the job for the individual with a disability. Job
restructuring may also involve allowing part-time or modified work
schedules. For instance, flexible or adjusted work schedules could
benefit persons who cannot work a standard schedule because of the
need to obtain medical treatment, or persons with mobility
impairments who depend on a public transportation system that is not
accessible during the hours of a standard schedule.
9. Reasonable accommodation may also include reassignment to a
vacant position. In general, reassignment should be considered only
when accommodation within the individual's current position would
pose an undue hardship. Reassignment is not required for applicants.
However, in making hiring decisions, contractors are encouraged to
consider known applicants with disabilities for all available
positions for which they may be qualified when the position(s)
applied for is unavailable. Reassignment may not be used to limit,
segregate, or otherwise discriminate against employees with
disabilities by forcing reassignments to undesirable positions or to
designated offices or facilities. Employers should reassign the
individual to an equivalent position in terms of pay, status, etc.,
if the individual is qualified, and if the
[[Page 19364]]
position is vacant within a reasonable amount of time. A
``reasonable amount of time'' should be determined in light of the
totality of the circumstances.
10. The contractor may reassign an individual to a lower graded
position if there are no accommodations that would enable the
employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or
without reasonable accommodation. The contractor may maintain the
reassigned individual with a disability at the salary of the higher
graded position, and must do so if it maintains the salary of
reassigned employees who are not disabled. It should also be noted
that the contractor is not required to promote an individual with a
disability as an accommodation.
11. With respect to the application process, appropriate
accommodations may include the following: (1) providing information
regarding job vacancies in a form accessible to the vision or
hearing impaired, e.g., by making an announcement available in
braille, in large print, or on audio tape, or by responding to job
inquiries via TDDs; (2) providing readers, interpreters and other
similar assistance during the application, testing and interview
process; (3) appropriately adjusting or modifying employment-related
examinations, e.g., extending regular time deadlines, allowing a
blind person or one with a learning disorder such as dyslexia to
provide oral answers for a written test, and permitting an
applicant, regardless of the nature of his or her disability, to
demonstrate skills through alternative techniques and utilization of
adapted tools, aids and devices; and (4) ensuring an applicant with
a mobility impairment full access to testing locations such that the
applicant's test scores accurately reflect the applicant's skills or
aptitude rather than the applicant's mobility impairment.
Appendix B to Part 60-741--Sample Invitation to Self-Identify
Note: When the invitation to self-identify is being extended
prior to an offer of employment, as is permitted in limited
circumstances under Sec. 60-741.42(a), paragraph 2(ii) of this
appendix, relating to identification of reasonable accommodations,
should be omitted. This will avoid a conflict with the EEOC's ADA
Guidance, which in most cases precludes asking a job applicant
(prior to a job offer being made) about potential reasonable
accommodations.
[Sample Invitation to Self-Identify]
1. This employer is a Government contractor subject to section
503 of the Rehabilitation Act of 1973, as amended, which requires
Government contractors to take affirmative action to employ and
advance in employment qualified individuals with disabilities. If
you have a disability and would like to be considered under the
affirmative action program, please tell us. You may inform us of
your desire to benefit under the program at this time and/or at any
time in the future. This information will assist us in placing you
in an appropriate position and in making accommodations for your
disability. [The contractor should here insert a brief provision
summarizing the relevant portion of its affirmative action program.]
Submission of this information is voluntary and refusal to provide
it will not subject you to any adverse treatment. Information you
submit about your disability will be kept confidential, except that
(i) supervisors and managers may be informed regarding restrictions
on the work or duties of individuals with disabilities, and
regarding necessary accommodations; (ii) first aid and safety
personnel may be informed, when and to the extent appropriate, if
the condition might require emergency treatment; and (iii)
Government officials engaged in enforcing laws administered by OFCCP
or the Americans with Disabilities Act, may be informed. The
information provided will be used only in ways that are not
inconsistent with section 503 of the Rehabilitation Act.
2. If you are an individual with a disability, we would like to
include you under the affirmative action program. It would assist us
if you tell us about (i) any special methods, skills, and procedures
which qualify you for positions that you might not otherwise be able
to do because of your disability so that you will be considered for
any positions of that kind, and (ii) the accommodations which we
could make which would enable you to perform the job properly and
safely, including special equipment, changes in the physical layout
of the job, elimination of certain duties relating to the job,
provision of personal assistance services or other accommodations.
Appendix C to Part 60-741--Review of Personnel Processes
The following is a set of procedures which contractors may use
to meet the requirements of Sec. 60-741.44(b):
1. The application or personnel form of each known applicant
with a disability should be annotated to identify each vacancy for
which the applicant was considered, and the form should be quickly
retrievable for review by the Department of Labor and the
contractor's personnel officials for use in investigations and
internal compliance activities.
2. The personnel or application records of each known individual
with a disability should include (i) the identification of each
promotion for which the employee with a disability was considered,
and (ii) the identification of each training program for which the
individual with a disability was considered.
3. In each case where an employee or applicant with a disability
is rejected for employment, promotion, or training, a statement of
the reason should be appended to the personnel file or application
form as well as a description of the accommodations considered. This
statement should be available to the applicant or employee concerned
upon request.
4. Where applicants or employees are selected for hire,
promotion, or training and the contractor undertakes any
accommodation which makes it possible for him or her to place an
individual with a disability on the job, the application form or
personnel record should contain a description of that accommodation.
Appendix D to Part 60-741--Guidelines Regarding Positions Engaged
in Carrying Out a Contract
As stated in Sec. 60-741.4(a)(2), with respect to the
contractor's employment decisions and practices occurring before
October 29, 1992, this part 60-741 applies only to employees who
were employed in, and applicants for, positions that were engaged in
carrying out a Government contract.1 The regulatory definition
has two prongs. Under Sec. 60-741.4(a)(2)(i)(A) (``prong A''),
positions are deemed to have been engaged in carrying out a
Government contract if their duties included work that fulfilled a
contractual obligation, or work that was necessary to, or that
facilitated, performance of the contract or a provision of the
contract. Alternatively, under Sec. 60-741.4(a)(2)(i)(B) (``prong
B''), positions are deemed to have been engaged in carrying out a
Government contract if, pursuant to principles set forth in the
Federal Acquisition Regulation (FAR) at 48 CFR Ch. 1, part 31, the
cost of the positions or a portion of their cost was allocable to a
contract as a direct cost, or 2 percent or more of the cost was
allocable as an indirect cost to Government contracts considered as
a group. This appendix provides guidance as to the application of
prong A of the definition.
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\1\ Prior to October 29, 1992, section 503 applied only insofar
as the contractor was ``employing persons to carry out'' a
Government contract. On that date, the act was amended to apply to
all of a covered contractor's work force, irrespective of whether
particular positions are engaged in carrying out a Government
contract. Accordingly, the guidance contained in this appendix will
be relied on by OFCCP in monitoring and enforcing compliance with
section 503 only with respect to the contractor's employment
decisions and practices occurring before October 29, 1992.
(Moreover, prior to that date, section 503 covered only contractors
holding a contract ``in excess of $2500''; this figure was amended
on October 29, 1992 to ``in excess of $10,000.'' Consequently, this
appendix makes reference to the $2500 threshold level.)
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1. The regulatory definition includes positions whose duties
involved work that fulfilled a contractual obligation. Such work
includes work producing the goods or providing the services that
were the object of the contract and also work that fulfilled
ancillary contract obligations. For example, if a contract required
the contractor to keep certain cost records or to meet certain
quality control standards, employees who were engaged in such
functions were fulfilling a contractual obligation.
2. Positions are also included if their duties included work
that was necessary to or that facilitated performance of the
contract. The inclusion of work of this character is intended to
reflect the practical reality that performance of a contract
generally requires the cooperation of a variety of individuals
engaged in auxiliary and related functions beyond direct production
of the goods or provision of the services that are the object of the
contract.
[[Page 19365]]
3. To give one example, a contract for production and sale of
goods to the Government commonly requires the work not only of the
production employees assembling the goods, but also of those engaged
in functions such as repairing the machinery used in producing the
goods; maintaining the plant and facilities; assuring quality
control and security; storing the goods after production; delivering
them to the Government; hiring, paying, and providing personnel
services for the employees engaged in contract-related work; keeping
financial and accounting records; performing related office and
clerical tasks; and supervising or managing the employees engaged in
such tasks. This list is not intended to be exhaustive, but only to
illustrate that a variety of functions may commonly be involved in
carrying out a contract.
4. Whether a particular position was engaged in carrying out a
contract depends on the facts as to the nature of the duties that
were actually performed and their relationship to contract
performance. A position is included if its duties included work that
furthered or contributed to the performance of the contract. The
work need not have been essential or indispensable to performance of
the contract. It is sufficient that it was useful or that it
benefitted or contributed to carrying out the contract.
5. Nor is it material that the work was not required by an
express contract term. For example, a contract to provide
transportation services may not have explicitly incorporated terms
requiring maintenance and repair of the means of transportation to
keep them in safe operating condition. Such work, however, was
implicitly necessary to carry out the contract.
6. It is irrelevant that the contractor could have performed the
contract some other way, without making use of a particular function
or particular employees, if the way the contractor chose to carry
out the contract does in fact make use of them. For example, if a
contractor employed three quality control inspectors, or used three
quality control processes, to monitor the manufacture of goods for
sale to the Government, all three were involved in carrying out the
contract, notwithstanding any claim that two would have been
sufficient. If a contractor manufactured goods at its plant in St.
Louis for delivery in Chicago, employees who transported the goods
were carrying out the contract, regardless whether the contractor
could have made the goods locally at its plant in Chicago. If a
contractor employed security guards or watchmen to protect its plant
producing goods for the Government from vandalism or theft of
equipment, because in its business judgment it was prudent to do so,
employees who were engaged in those tasks were contributing to
performance of the contract and were covered.
7. If a position's regular duties included work that contributed
to the performance of the contract, and the contract met the act's
dollar threshold for coverage, it is irrelevant that such work was
only a portion of the position's total duties or that it took only a
small amount of time. For example, a Government agency may have
contracted to lease a photocopying machine under terms that
obligated the leasing company to provide repair and maintenance
service. The technician assigned to provide such service was
``carrying out the contract'' regardless whether he or she provided
similar service for numerous private customers and spent only a
small fraction of his or her time working on the agency's machine.
Similarly, individuals who worked on an assembly line manufacturing
automobiles, a portion of which were sold under contract to the
Government, while the bulk were sold commercially, were covered.
That 95% of the vehicles they produced were sold elsewhere does not
negate the fact that the individuals were carrying out the contract
to make vehicles for the Government.
8. A group of employees may also have performed duties that
simultaneously contributed to performance of both Government and
non-Government contracts. In this situation, if the contract
exceeded $2500 and the duties of the position in fact contributed to
carrying out the contract, the position was covered. For example,
the Government may have contracted with airline carriers to provide
transportation to Federal employees performing official duties. The
contract was performed through the work of employees including the
flight crew, the ground maintenance crew, the baggage handlers, the
ticketing agents, the airport and gate staff, and other corporate
personnel. Federal employees probably typically formed only a small
percentage of an airline's passengers. Nonetheless, the pilots who
flew the planes and the other staff were carrying out the terms of
the contract.
9. These principles are illustrated by the final decision of the
Department in OFCCP v. Monongahela Railroad Co., 85-OFC-2
(Administrative Law Judge Recommended Decision, April 2, 1986),
aff'd, (Deputy Under Secretary for Employment Standards, March 11,
1987). Monongahela involved the interpretation of the term
``necessary'' in the context of the definition of the term
``subcontract'' under this part 60-741. ``Subcontract'' is defined
in relevant part as any agreement for the furnishing of supplies or
services ``which in whole or in part is necessary to the performance
of any one or more [Government] contracts.'' The decision held that
a railroad company's transport of coal that was used by a power
company to generate electricity was ``necessary'' to the performance
of the power company's obligation to supply the Government with
power and that the railroad company was therefore a covered
``subcontractor''. The decision reached this result even though
numerous other carriers also transported coal to the power company,
the coal that the carrier delivered was used to generate electricity
for the Government and for nongovernmental customers alike, and the
power company sold only a small fraction (less than 1%) of its
output to the Government. That is, the decision found that the
crucial factor is whether the activity contributes to the
performance of a Government contract, regardless of whether the
contractor could have performed the contract some other way, and
regardless of whether the activity contributes as well, and
predominantly, to carrying out non-Government contracts.
10. Although the act broadly reached all positions that
contributed to or facilitated the performance of the Government
contract, its coverage was not limitless. First, positions were
covered only if they bore an appropriate relationship to a covered
contract. The contract must have been for the purchase, sale, or use
of personal property or nonpersonal services, must have been for an
amount in excess of $2500, and must not have been otherwise exempt.
11. Second, the breadth of coverage depended to a large extent
on how the contractor chose to organize its work force to perform
its contract obligations. A contractor who segregated contract from
noncontract work necessarily employed fewer persons to carry out its
contracts than one who did not. To continue the example given above,
if a plant with several assembly lines produced automobiles, some of
which were shipped to the Government and others sold commercially,
the application of section 503 would have been limited if the
Government contract automobiles were made on only one of the
assembly lines. In that case, employees who were on the other lines,
which never produced automobiles for the Government, were outside
the act. If, however, the contractor did not segregate the contract
from noncontract production, the employees on each of the lines were
covered.
12. Third, while the relationship between the work of a position
and the performance of the contract need not have been direct, the
relationship must have been real and not hypothetical. For example,
a firm may have done substantial business with both the Government
and private customers. Individuals who were employed to plan and
design new facilities that were intended for use with non-Government
work would not be deemed to have been covered merely because of the
possibility that at some point in the future the facilities would be
used to carry out Government contracts. Again, a firm may have been
partly unionized and partly non-unionized. Assume the Government
contract was performed exclusively in the non-union part of the work
force. An individual who was assigned to represent management in
dealing with the union would not have been covered simply because
the arrangements he or she made with the union might subsequently
influence the personnel practices followed for the nonunion
employees as well.
13. Coverage depended on the regular or assigned duties and
responsibilities of the position. A person that held a position did
not go in and out of coverage as she performed first contract and
then noncontract work if, throughout the period, one of the duties
of the position was to perform contract-related work as the need or
occasion arose. For example, the photocopy machine technician who
was assigned responsibility to repair machines leased to the
Government and to private firms was covered throughout the contract
term, including the period before he or she first repaired the
Government's machine. Discrimination against the employee was not
permissible simply because the discrimination was effected on a
[[Page 19366]]
day when the technician was servicing a private firm. Likewise,
workers who were on an assembly line whose products were shipped at
times to the Government and at times to private customers were
covered, as were employees of the airline carrier whose duties
included at times helping to transport Federal employees pursuant to
a contract.
14. On the other hand, a person whose duties were permanently
changed may have gained or lost coverage as a result. For example,
an engineer who had been working on developing weapons under a
contract with the military, and who accordingly was covered, may
have been transferred to work on development of civilian aircraft
for private customers. If the new position did not include any
contract-related duties, the individual lost protection under the
act at the time of the transfer.
15. It is the position's regular or assigned duties that were
controlling. If a portion, however small, of a position's regular
duties was necessary to or facilitated carrying out a Government
contract, the position was covered. On the other hand, the isolated
and unanticipated performance, outside the position's regular
duties, of a contract-related task will not result in a finding of
coverage. For example, suppose another employee of the photocopy
machine company, whose regular duties were in no way contract-
related, was unexpectedly needed to substitute for the technician
who repaired the machine leased to the Government. Assuming
substitution in such situations was not one of the employee's
regular or foreseeable duties, his or her isolated performance of
the task on a particular occasion would not result in a finding of
coverage. In some cases, there will be a formal written position
description that will serve as evidence of the position's actual
duties and responsibilities. In other cases, there may not be a
written position description, or the position description may be
inaccurate or incomplete. In all cases, however, it should be
possible to identify the position's actual duties, and to make a
determination of coverage on that basis.
16. The fact that a position is deemed not to have been engaged
in carrying out a Government contract does not affect the
individual's rights under the Americans with Disabilities Act of
1990.
[FR Doc. 96-9662 Filed 4-30-96; 8:45 am]
BILLING CODE 4510-27-P
