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.
Eight out of ten people with a disability, across all age groups, do not have jobs and are not looking for work. Those that are employed are an anomaly. 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. The relevant statutory text provides that these contractors “shall take affirmative action to employ and advance in employment qualified individuals with disabilities.”
Recent regulations promulgated in 2014 clarified that the goal of these affirmative action programs should be a seven percent utilization rate, an aspirational, non–binding benchmark by which compliance with the law can be measured. The regulations also introduced a self-identification requirement for contractors to periodically ask employees about their disability status, along with the required components of a contractor’s affirmative action plan, and clarified how these requirements would be enforced. The agency in charge of enforcing Section 503 and the regulations is the Office of Federal Contract Compliance Programs (OFCCP).
Similarly, federal executive agencies are required to have an affirmative action program for the hiring, placement, and advancement of people with disabilities across the federal government. One way federal executive agencies comply with the law is the use of Schedule A hiring authority, a process by which qualified job applicants with disabilities can be selected for a job without competing the general applicant pool. Under Schedule A, hiring officials may even select from a list solely comprised of qualified people with disabilities. This may explain why the proportion of people with disabilities employed by federal, state, and local government entities was slightly higher than that of the general population in 2018.
Given the federal government’s relative success at implementing a disability affirmative action policy, this Note argues that Congress should amend Section 503 to incorporate a noncompetitive hiring requirement similar to Schedule A in order to better effectuate the purpose of the statute. Section II of this Note will examine the history and purpose of Section 503. Section III will detail the well-meaning but flawed 2014 regulations and the subsequent enforcement challenges post–2014. Section IV will argue that in order to provide stakeholders with more incentive to comply with the law, mitigate declining enforcement, and provide greater clarity for contractors on their Section 503 obligations, Congress should require that contractors adopt the Schedule A noncompetitive hiring process currently used by federal executive agencies.
In order to appreciate the broad purpose and hidden problems within Section 503 and its accompanying regulations, it is necessary to understand the history, both legislative and otherwise, of the law throughout various eras. Despite the protestations of committed textualists like the late Justice Antonin Scalia, legislative history remains a vital tool for courts and executive agencies to give effect to statutory language that is unclear. The ambiguous language in Section 503 lies in what type of “affirmative action” the contractor should engage in to “employ and advance in employment qualified individuals with disabilities.” This section will examine that uncertain language, the partial answer provided by the 2014 regulations, and the fate of those regulations under the deregulatory auspices of the most recent presidential administration.
Title V of the Rehabilitation Act marked the federal government’s first foray into protecting equal access to the workplace for people with disabilities. For the first time, Title V required federal executive agencies and contractors to take affirmative action to hire qualified people with disabilities, and that any activity or program receiving funding from the federal government should not discriminate on the basis of disability. While the contract threshold has since been increased, Section 503 of the Rehabilitation Act imposes the same affirmative action requirements on federal contractors as it did in 1973.
Despite evidence of a broad view of what constituted affirmative action for women and racial minorities, the term “affirmative action” in the context of disability was less clear. Congress’s intent in defining the term was difficult to discern, and Section 503 expressly gives the power to define it to the President. The legislative history shows that every version of the Rehabilitation Act between October 1972 and September 1973 contained language requiring federal contractors to adopt affirmative action policies to hire qualified individuals with disabilities. This at least indicates that Congress thought affirmative action was important enough to include in every draft of the Rehabilitation Act. Yet these documents only point to Congress’s general intent, and not what they specifically meant by the term “affirmative action.” Instead, it may be beneficial—as the Supreme Court has occasionally done—to look to general non–legislative history to see what Congress in the mid–1970s would have understood affirmative action to mean.
Congress’s actions must be viewed in the context of the 1970s, which marked the beginning of the disability civil rights movement. As the premier disability civil rights law of its day, the Rehabilitation Act featured prominently. Affirmative action was also a key concept in the concurrent development of disability social theory. Following the enactment of Section 503, contemporary commentators drew on popular ideas and experiences with affirmative action towards other protected classes to determine what Congress meant.
In this way, affirmative action in these other contexts served as an applicable model to understand what Congress meant in Section 503. Affirmative action on the basis of race and sex in federal contracting had existed since the 1960s, and federal regulations stipulated that contractors set employment goals and created timetables for achieving those goals. This shows that “affirmative action” in Section 503 would have been understood to specifically encompass goal setting, timetables, and even numerical quotas, though quotas under Section 503 were banned by subsequent regulations.
As the precursor to the OFCCP, the Employment Standards Administration (ESA) issued regulations to clarify what Congress meant by affirmative action in Section 503. Broadly speaking, the regulations required that contractors engage in outreach in order to diversify their hiring pools with a greater number of people with disabilities. To enforce these requirements, contractors were required to give the ESA access to employment records, but the agency had no direct investigatory role outside of undefined “evaluations” conducted by the Assistant Secretary of Labor. By the regulations’ own terms, it was hard to determine what a violation of an affirmative action plan would look like.
Likewise, the 1975 regulations did not compare well to different regulations governing affirmative action by contractors. In contrast to regulations mandating affirmative action by federal contractors on the basis of race and sex, Section 503 regulations included no requirement that the contractor set goals or timetables for hiring individuals with disabilities in their affirmative action plans. Instead, contractors were told to make a good faith effort towards hiring people with disabilities; however, what constituted a good faith effort would be subject to further elaboration by the Assistant Secretary of Labor. As a result, contractors felt unsure about their obligations even after ESA’s supposedly clarifying regulations were promulgated.
A subsequent revision of the Section 503 regulations by OFCCP in 1976 failed to address the issue of what constituted a “good faith” effort. Overall, the effectiveness of the Section 503 regulations was dependent on individual employees with disabilities asserting their right to affirmative action under the law, rather than compliance efforts on the part of the agency. In the absence of large-scale changes to the Section 503 regulations, it would take another forty years for some of the problems in the original ESA regulations to finally be addressed.
Although OFCCP made minor clarifications to the Section 503 regulations in the 1990s, major reforms to the original Section 503 regulations would not arrive until March 2014. A brief summary of these reforms is as follows.
First, the 2014 regulations set a nationwide seven percent utilization goal for federal contractors. A utilization goal is a yardstick by which compliance with Section 503 can be measured; if a contractor demonstrates that people with disabilities will eventually comprise seven percent of its workforce, it will have complied with the law. However, if a contractor does not meet the utilization goal requirement, this is not a per se violation of the law. OFCCP emphasized that the utilization goal is neither a rigid quota (which is forbidden), nor is it a floor, nor a ceiling. Instead the utilization goal serves as a benchmark against which a contractor must measure disability representation and the efficacy of its affirmative action plan.
Second, the 2014 regulations introduced contractors to the means by which they could achieve the utilization goal: an invitation to self-identify. Directly asking either employees or applicants about their disability status is prohibited; instead contractors must ask each applicant to self-identify if they have a disability. To clarify this distinction, an employer cannot ask an applicant walking on forearm crutches whether or not that applicant has a disability. Rather, the employer may ask the applicant to fill out a form to volunteer their disability status, but the applicant can decline to do so. The 2014 regulations also required that employers ask their employees to self-disclose their disability status once every five years, so contractors have relatively up-to-date data on employees with disabilities.
Third, the 2014 regulations more specifically identified the necessary components of a contractor’s affirmative action plan. The regulations require these plans from contractors that have at least fifty employees and a contract of $50,000 or more. Such plans should be in writing and include specific criteria, including: a publicly available equal opportunity policy statement, a review of personnel processes, and a review of all physical and mental qualifications used in the selection of applicants or employees. The written affirmative action plan does not require contractors to treat applicants with disabilities preferentially.
Fourth, the 2014 regulations clarified OFCCP’s enforcement procedures, now called compliance evaluations. If OFCCP determines a violation has occurred, it may, following enforcement proceedings, withhold progress payments, cancel a contract, or debar a contractor from receiving future contracts. OFCCP may also enter into a conciliation agreement with the contractor, a form of settlement whereby the contractor agrees to remedial steps to correct the violation in lieu of OFCCP pursuing additional enforcement action.
Overall, the 2014 revisions made many positive changes, and there was hope that the changes would unlock new doors to employment for people with disabilities. But as the forthcoming sections of this Note will argue, more reform is needed to increase incentives for compliance, to improve enforcement, and to increase clarity among contractors with respect to their Section 503 obligations.
Thankfully, the progress made in the 2014 revisions has not been rolled back. While the Trump administration has pursued a deregulatory program, no revisions have yet been made to the Section 503 regulations. In August 2018, OFCCP shifted towards conducting “focused reviews” whereby an OFCCP compliance evaluation is targeted to certain components of the contractor’s organization or employment practices. OFCCP confirmed that this was done to increase both the quantity and quality of OFCCP’s enforcement actions.
The other policy change pursued under the Trump administration has been the Excellence in Disability Inclusion Award (EDI Award). Two large contractors have been recognized with the Excellence in Disability Inclusion Gold Award, and will receive a three year moratorium on compliance evaluations, in exchange for participation in a “Year of Engagement” program to share best practices. OFCCP has characterized this program as highlighting the best of the best among contractors without imposing additional regulatory burdens. In contrast, disability rights lawyers are dismayed that the incentive for contractors to include people with disabilities is not enforceable, and that the award criteria does not technically require compliance with Section 503.
A recently proposed rule would do little to substantively alter the Section 503 regulations. In late December 2019, OFCCP published a draft rule to the Federal Register, with the goal of codifying OFCCP’s enforcement procedures with regards to Section 503 during a compliance evaluation. Notably, the draft rule makes no mention of the affirmative action obligation under Section 503, save for a reference to the corresponding regulations on the form of affirmative action plans. While the December 2019 draft rule shows that the Section 503 regulations have escaped the Trump administration’s deregulatory agenda, the remainder of this Note will argue that there is more Congress could do to clarify those obligations in the future.
Although it is heartening to see the 2014 regulations have survived the deregulatory push by the Trump administration, there are problems with the regulations and how they are enforced by OFCCP. This section will highlight three key issues. First, employees and applicants are not encouraged to self-identify in order for contractors to demonstrate compliance. Second, contractors have little incentive to demonstrate compliance absent an OFCCP enforcement action telling them to do so, and enforcements by OFCCP’s have declined in recent years. Third, apart from nebulous best practices suggested by the regulations and OFCCP, contractors lack clarity on how to comply with the law.
The first issue with the current law stems from the simple fact that contractors’ ability to comply with Section 503 and OFCCP’s regulations depends on knowing which applicants and employees have disabilities. To return to a previous hypothetical, a contractor could not ask an applicant walking on forearm crutches whether or not they have a disability. Instead, the contractor could ask that applicant to fill out a form wherein the applicant can choose to disclose their disability status. Thus, because contractors cannot directly ask applicants and employees whether they have a disability, they are required instead to ask their applicants and employees to self-identify as having a disability. However, applicants and employees are not incentivized to self-identify and help contractors reach the utilization goal, which leaves contractors left under the threat of OFCCP enforcement without a viable means of demonstrating compliance with the law.
There are two reasons why the current regulations do not incentivize this vital self-identification. First, neither applicants nor employees have any incentive to self-identify because they do not receive a tangible benefit for doing so. This is especially true in light of the Section 503 regulation dating back to the mid–1990s, which clarifies that contractors do not have to give a preference in hiring and advancement of individuals with disabilities as a part of their affirmative action plans. Under the current regulations, only the contractor benefits from an employee or applicant’s self-identification, because they can use that information to demonstrate that they are working towards the utilization goal, and thereby comply with the law.
Second, and far from being a benefit for either the applicant or employee with a disability, some may consider self-identification of their disability to be a hinderance in their advancement, given persistent social stigma surrounding disability in the workplace. Although the level of stigma varies between disabilities, the common thread across studies of disability stigma is either indifference or negative bias towards these individuals, depending on the type of disability. To combat these perceptions, organizational tools like affirmative action may change the presumption of incompetence associated with employees with disabilities.
Given the lack of research on Section 503 and its regulations, it is difficult to say whether the program effectively combats disability stigma in the workplace. What can be said is that neither applicants nor employees tangibly benefit from self-identification under the current regulatory scheme. Contractors are left to appeal to applicants and employees as a kind of team-building exercise, telling them to self-identify as a means of finding support and changing the company from within. Although this sentiment is laudable, contractors remain in an awkward position: they are required to invite applicants and employees to self-identify as individuals with disabilities, but they are not required to offer them any benefit for doing so. If applicants and employees all subsequently refuse to self-identify, this refusal puts contractors in potential noncompliance with the law because contractors could not show that they engaged in affirmative action to hire individuals with disabilities, which could then lead to an OFCCP enforcement action. Therefore, the lack of incentive for applicants and employees to self-identify ultimately harms the underlying purpose of Section 503, because contractors cannot show that they are using affirmative action to hire qualified individuals with disabilities if they do not know who those individuals are.
Just as employees and applicants have little incentive to self-identify, contractors have little incentive to work towards the non–binding utilization goal in the absence of OFCCP enforcement, particularly because the utilization goal is not to be treated as a quota. At first glance, it appears that contractors would be encouraged to meet the seven percent utilization goal because it is the easiest way for them to show that they are taking affirmative action pursuant to their Section 503 obligations. But as long as contractors are making an effort to use affirmative action to hire people with disabilities and can document their progress, OFCCP will not require more than this, and failure to meet the utilization goal is not a per se violation of the law. Given the nature of the utilization goal, a contractor is incentivized to meet the goal by the possibility that they might lose their contract through an OFCCP enforcement action. However, due to budgetary shortfalls, OFCCP’s enforcement has declined recently, which in turn removes an incentive for contractors to comply with the law.
An analysis of OFCCP data shows the breadth of the decline in OFCCP enforcement. The number of total compliance evaluations (including those not related to Section 503) in fiscal year (FY) 2017 was one-third of the number of total compliance evaluations from FY 2014. This trend goes back further than FY 2014. While the total number of compliance evaluations did increase slightly in recent years, the number of Section 503 compliance evaluations has remained in overall decline. The decline in enforcement means that OFCCP only evaluates two percent of its overall jurisdiction. This in turn forces OFCCP to rely on voluntary compliance for the vast majority of contractors in its ambit.
The decline in OFCCP enforcement dovetails with staff and budget cuts at the agency. In its FY 2020 Congressional Budget Justification, OFCCP remarked that between FY 2015 and FY 2019, its budget had decreased by millions of dollars. In that same period, the number of full-time or equivalent staff had similarly declined by nineteen percent.
In response, OFCCP might say that the decline in enforcement is unrelated to the diminution of the agency’s budget or staff. Instead, it could claim that this is proof of its “focused reviews” in action, whereby OFCCP restricts its Section 503 compliance evaluation to one or more components or aspects of a contractor’s organization. The focused reviews arguably show enforcement becoming deeper, if not necessarily broader, so as to not impose more regulatory burdens on contractors while making sure they adhere to the law, even though this approach still leaves ninety-eight percent of contractors unaccounted for.
Additionally, OFCCP touts the EDI Award as an example of the agency partnering with contractors to improve affirmative action practices. However, in light of the overall decrease in enforcement between FY 2015 and FY 2019, the promise of non–enforcement to the winner of the EDI award may be little different from what might have occurred anyway, and its efficacy as a motivational tool for compliance is in doubt.
The decline in OFCCP enforcement of Section 503 might not be an issue were it not central to the overall regulatory scheme. Under the Section 503 regulations, contractors must strive to hit a non–binding seven percent utilization goal, where they are incentivized to do so by the threat of OFCCP enforcement, which in recent years has been less of a threat. In the absence of a broad enforcement regime, OFCCP has come to rely on contractors voluntarily complying with the law. As a result, Section 503 is less effective as a means of increasing employment of people with disabilities, because a lack of enforcement could allow contractors to skirt their Section 503 obligations and not use affirmative action to hire qualified individuals with disabilities.
Even if OFFCP enforcement increased and contractors were more incentivized to meet their Section 503 obligations, contractors would still lack clarity as to how to comply with the law and institute an affirmative action plan for people with disabilities under Section 503. Several industry groups and contractors have noted that OFCCP guidance is too general and lacks needed specificity on how to comply with affirmative action requirements. Smaller and medium-sized contractors in particular feel the need for more specific guidance on compliance because they cannot afford pre–developed software that may be used to craft affirmative action plans.
In response to these concerns, OFCCP has taken positive steps, conducting a variety of compliance trainings to educate contractors on best practices to achieve their affirmative action responsibilities. Yet these best practices are couched in general and ambiguous language. For example, one such document encourages contractors to practice “CEO Leadership” and establish a “Comprehensive and Welcoming Self-ID Program.” Of course, both of these suggestions are ways a contractor can demonstrate that they are creating an inclusive workplace. But it remains unclear how a contractor should go about implementing these suggestions.
The predicament is compounded by the bifurcated requirements under the current regulations, which forces contractors of all sizes to rely on OFCCP’s nebulous best practices. Only contractors with 50 employees or a contract worth more than $50,000 are required to develop a written affirmative action plan. Contractors with contracts valued above $15,000 but below $50,000 are not required to create a written affirmative action plan, but are nevertheless subject to the seven percent utilization goal. They are also subject to the same enforcement procedures. For contractors with contracts above $50,000, the best practices codified in the regulations for written affirmative action plans are couched in the same general language as OFCCP’s general resources, and it is unclear on how to implement these ideas into action. Likewise, because contractors under the $50,000 threshold do not have to create a written affirmative action plan, they must necessarily rely on the unclear best practices posted on OFCCP’s website, because the codified best practices for written affirmative action plans do not apply to them.
In sum, contractors lack clarity on how they can comply with their affirmative action obligations for people with disabilities, and do not want to ask OFCCP how to fix the problem, lest they be subject to an enforcement action. This frustrates the purpose of Section 503, because without clear directions on how to comply with the law, contractors are less capable of complying, and less likely to hire qualified individuals with disabilities.
To address the many issues discussed in this Note, Congress should amend Section 503 to mandate that contractors engage in noncompetitive hiring of people with disabilities, as federal government agencies do through the use of Schedule A hiring. Schedule A hiring is a tool used by federal government agencies to satisfy their own disability affirmative action requirements; it allows agencies to interview candidates with a disability and hire them before interviewing the general population.
Before examining why a noncompetitive hiring process has been an effective affirmative action tool for federal executive agencies, it is worth comparing the two relevant affirmative action provisions in the Rehabilitation Act of 1973. Under Section 501 of the Rehabilitation Act, each federal executive department must develop an affirmative action plan for the hiring, placement, and advancement of individuals with disabilities in that department. This plan must be updated annually and submitted to the Equal Employment Opportunity Commission (EEOC), which then decides if the plan adequately documents procedures and commitments for affirmative action. When compared to the contractor requirements, the Government requirements are different because they apply to all federal executive departments and agencies, whereas the former only apply to certain federal contractors. Subsequent Section 501 regulations promulgated by the EEOC additionally require that agencies work towards a goal of having twelve percent of their workforce be people with disabilities, similar to the seven percent utilization rate under Section 503 regulations. Unlike contractor regulations, however, the Section 501 regulations require that federal executive agencies demonstrate increased use of hiring authorities that take disability into account as part of their affirmative action plans.
One such hiring authority is Schedule A hiring. Under the current regulations, agencies may permanently appoint individuals with “an intellectual disability, a severe physical disability, or a psychiatric disability,” subject to proof of that person’s disability and a determination that this person is likely to succeed in the performance of that job. This allows agencies to noncompetitively hire people with disabilities; essentially, they are brought to the front of the line of applicants and may be hired without competing with the general public.
A noncompetitive hiring process would address the issues with the current Section 503 regulations in the following ways. First, it would give applicants and employees an incentive to self-identify as having a disability by offering them a tangible benefit in return. Second, it would be an easier way for contractors to comply with the law, thereby reducing the potentially deleterious impact of OFCCP’s declining enforcement of the law. Third, it would provide contractors with much needed clarity on how to comply with the law by giving them a concrete policy to incorporate into their affirmative action plans.
Schedule A hiring has demonstrably increased the hiring of people with disabilities in federal executive agencies. Many agencies use Schedule A hiring, including OFCCP’s parent agency, the Department of Labor The use of Schedule A has also increased in recent years: between FY 2011 and 2015, Schedule A hires doubled. This contributed to a growth in the total number of federal employees with disabilities in the same period, which in turn led to the highest total number of new hires with disabilities on record in FY 2015.
Requiring that noncompetitive hiring be a part of all contractors’ affirmative action plans under Section 503 would give applicants much needed incentive to disclose their disabilities, as they would receive a tangible benefit from their disclosure. In turn, it would become easier for contractors to demonstrate compliance with the law by meeting the seven percent goal, because they would know who has a disability without having to rely overly on personal appeals around inclusivity in the workplace. This program could also be extended to include noncompetitive promotion as well as hiring to incentivize current employees to disclose, although this is not currently a part of the Schedule A regulations.
Despite the benefits for employees and applicants in incentivizing self-identification of their disabilities, contractors might have issues with this approach. Schedule A programs for contractors could require the hiring of more administrative staff, as many executive agencies have hired Selective Placement Program Coordinators to assist in implementing Schedule A hiring practices. But not every federal executive agency uses Selective Placement Program Coordinators, nor are they required to when implementing a Schedule A program.
Similarly, a Schedule A program would not require contractors to hire an applicant with a disability over a non–disabled applicant, as is the case with the current Section 503 regulations. In fact, the regulations only say that an agency “may appoint” an individual with a disability; the agency is not required to hire them. The only new requirement under a revised Section 503 would be to create a noncompetitive hiring program that may be used to hire qualified applicants with disabilities, just as it is under Schedule A. Given the clear uptick in the hiring of people with disabilities across the federal government following the implementation of Schedule A, the benefits of the program have arguably outweighed the costs.
In addition to improving incentives for applicants and employees to self-identify, requiring a Schedule A noncompetitive hiring program creates an easier way for contractors to demonstrate compliance, thereby incentivizing compliance, which mitigates the impact of declining OFCCP enforcement and the agency’s reliance on voluntary compliance. It would not be difficult for a contractor to show they have complied with this requirement, because they either they have interviewed an applicant or employee with a disability before a non–disabled applicant or employee, or they have not. If they have interviewed an applicant or employee noncompetitively, and then hired or promoted enough of those individuals to show they are working towards the utilization goal, contractors will have engaged in the “affirmative action” mandated by Section 503. This would mitigate the decline in OFCCP enforcement, because the ease of the Schedule A noncompetitive hiring program would incentivize compliance with this new statutory requirement, regardless of the level of enforcement.
In contrast, a Schedule A noncompetitive hiring requirement may not be needed if OFCCP was given a bigger budget to hire more enforcement personnel. But this position need not conflict with the adoption of a noncompetitive hiring requirement for contractors. Given the sheer number of contractors within OFCCP’s ambit, it would be unable to pursue enforcement actions against all of them regardless of its budget. And fulfilling a noncompetitive hiring program requirement would be an easier way for contractors to comply with Section 503, with or without greater enforcement by OFCCP.
Beyond being an easier way to comply with the law, there is also some evidence to suggest that the idea of a noncompetitive hiring authority has been an easier sell to agencies as a way of meeting their affirmative action requirements. Making the “business case” for affirmative action for qualified individuals with disabilities was easier when coupled with a noncompetitive hiring imitative, partially because a noncompetitive hiring policy made compliance easier. In the absence of broader enforcement, OFCCP would still rely on voluntary compliance in the vast majority of situations. As a result, use of a noncompetitive hiring procedure could provide an easy option for contractors wishing to demonstrate compliance with Section 503, which would mitigate the de-motivational effect of non-enforcement by OFCCP.
In addition to incentivizing contractor compliance, a Schedule A noncompetitive hiring program would be a clear and specific affirmative action tool that incentivizes contractors to comply with the law. In lieu of the vague standards for compliance set by both the Section 503 regulations and the accompanying OFCCP materials, a Schedule A program would send a clear message: hire noncompetitively, and a contractor will comply with the law.
This is the exact approach taken by the disability affirmative action regulations for federal executive agencies. In addition to the broad use of programs and resources to identify and maintain contact with organizations for people with disabilities (something the contractor regulations also suggest), agencies are also committed to using hiring authorities that take disability into account. Likewise, contractors could be subject to a similar commitment as a part of their affirmative action plans.
Requiring a Schedule A noncompetitive hiring program aligns with OFCCP’s goal to increase regulatory burdens on contractors, as the requirement clarifies the regulations instead of increases them. Large contractors must already ensure that their hiring policies duly consider people with disabilities in hiring and promotion. A noncompetitive hiring program would surely meet this standard, as it requires due consideration of individuals with disabilities in exchange for bringing them to the front of the metaphorical line of applicants.
Although the use of Schedule A hiring has demonstrably increased disability representation within executive agencies and should be used by federal government contractors to satisfy their obligations under Section 503, it is important not to lose sight of the reason why disability affirmative action exists in the first place. Affirmative action in this context exists to address the gross statistical imbalance in employment between people with disabilities and those without, by giving qualified individuals with disabilities an opportunity to serve their country as either a contractor or as a federal employee; an opportunity they might not have otherwise been afforded. Therefore, the forty-seven-year history of the Rehabilitation Act and its regulations can be seen as a journey to define what affirmative action means and how it can be used to better the lives of people with disabilities. Adopting a noncompetitive hiring program as a requirement for contractors under Section 503 would be a meaningful and positive step forward on that journey.
