December 18, 2020 Notes

Schedule A for All: A Noncompetitive Approach to Disability Affirmative Action in Federal Contracting

Evan Monod

Abstract

People with disabilities are less likely to be employed than people without disabilities. To combat this disparity, Congress created a mandate in Section 503 of the Rehabilitation Act of 1973, which requires federal government contractors to take affirmative action when hiring qualified individuals with disabilities. In 2014, regulations promulgated by the Office of Federal Contract Compliance (OFCCP) clarified that contractors should strive to hit a seven percent utilization goal: an aspirational, non–binding benchmark by which compliance can be measured. However, numerous problems remain. Applicants and employees are not incentivized to self-identify their disabilities, leaving contractors without a means to demonstrate compliance with Section 503. Contractors have little incentive to work towards the aspirational utilization goal besides OFCCP enforcement, which has declined in recent years. Contractors also lack clarity on how to comply with Section 503 and its regulations outside of nebulous best practices from OFCCP.

To address these problems, Congress should amend Section 503 to mandate that contractors follow a noncompetitive hiring process used by federal executive agencies known as Schedule A hiring. Schedule A hiring allows federal executive agencies to interview and hire qualified individuals with disabilities before interviewing the general population. Schedule A has resulted in a significant increase in the number of federal employees with disabilities and would incentivize applicants and employees to self-identify their disabilities. Schedule A would also encourage voluntary compliance with Section 503, which could mitigate the impact of declining OFCCP enforcement. Similarly, Schedule A would encourage compliance by clarifying contractors’ duties under Section 503: if they were to hire noncompetitively, they would be in compliance with the law. The result of these reforms would better effectuate the purpose of Section 503 as it attempts to close the employment gap between people with disabilities and the general population.

I. Introduction

Eight out of ten people with a disability, across all age groups, do not have jobs and are not looking for work.1 Those that are employed are an anomaly.2 In an effort to increase employment among people with disabilities, Section 503 of the Rehabilitation Act of 1973 mandates that federal contractors with contracts over $10,000 engage in affirmative action to hire qualified individuals with disabilities.3 The relevant statutory text provides that these contractors “shall take affirmative action to employ and advance in employment qualified individuals with disabilities.”4

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