Congress should create a new special interest group within the 8(a) program for disabled business owners. This proposal will achieve the legislative goals of the Rehabilitation Act and the Americans with Disabilities Act (ADA), particularly as they pertain to disability rights and employment policy. The Rehabilitation Act and the ADA focus on supporting and integrating disabled individuals in the business sector. Establishing a special interest group for disabled-owned businesses will support the disabled community through a federal small business assistance program. This proposal would also circumvent any issues resulting from AbilityOne’s restrictive nature. AbilityOne, a federal program designed to encourage nonprofit organizations to employ disabled individuals, allows participating nonprofits to pay disabled workers a subminimum wage. This proposal would give disabled individuals more economic opportunities and federal aid outside of an AbilityOne participant. Similarly, disabled business owners would be able to avoid several problems related to the 8(a) program that have prevented them from fully utilizing the program in the past, including restrictive eligibility requirements, drifting oversight of the program, and misallocation of program resources. By creating a special interest group in the 8(a) program specifically for disabled business owners, the federal government and Congress can support an invaluable source of economic activity and make progress towards realizing the congressional goals surrounding disability rights and employment policy within the existing government framework.
According to the Centers for Disease Control and Prevention (CDC), sixty-one million adults in the United States, or twenty-six percent of the adult population, currently live with a disability. There is legislative history surrounding disability rights policy dating back to 1938, when President Franklin D. Roosevelt signed the Wagner-O’Day Act into law, establishing the Committee on Purchases of Blind-Made Products, which created AbilityOne, a federal procurement program for nonprofit organizations that employed disabled individuals. Ever since, Congress has regularly passed disability rights legislation, often in tandem with other relevant civil rights policies. These actions suggest that Congress not only wants to support the disabled community, but is actively advocating for their equal opportunity and inclusion in American society.
For years, there has been a documented congressional commitment to promoting social and economic policy for disabled individuals; however, these policy goals have been severely lacking in the field of federal procurement. There have been many criticisms of the government procurement process as it relates to small businesses and public contracts, including the AbilityOne program limiting employment opportunities for disabled individuals and the Small Business Act language stifling full and open competition among small businesses. Yet, these issues have persisted in these programs in ways that often conflict with their original policy goals.
The Small Business Administration (SBA), the agency in charge of administering the 8(a) program under the Small Business Act, is one such federal agency that has not been immune to the common functional difficulties of executing public policy. Congress, by establishing a new special interest group within the 8(a) program for disabled business owners, can help the SBA adequately support disabled-owned businesses within the existing government procurement framework, as congressional policy has intended for decades.
In 1953, Congress authorized the SBA through sections 636(j)(10) and 637(a) of the Small Business Act to establish a business development program focused on aiding “socially and economically disadvantaged” small businesses; thus, the 8(a) Small Business Program was born. The SBA established a nine-year program through which small businesses owned and controlled by socially and economically disadvantaged individuals would receive specialized technical assistance, training, and contracting opportunities designed to stimulate effective competition in the economy. One of the biggest benefits of participating in the 8(a) program is that members receive prioritized consideration when bidding on set-aside and sole source contract awards from federal agencies. Set-aside and sole source contracts provide a restricted market for specific federal contract awards to allow small businesses the ability to compete in a market in which they might otherwise be unsuccessful. The 8(a) small businesses were awarded over $34 billion in federal contracts in fiscal year 2020. As Congress hoped, it seemed the 8(a) program was providing federal aid to thousands of small businesses.
However, the 8(a) program has faced several challenges. In recent years the program has shown a steep decline in participation, varying interpretation and implementation of standardized policies and procedures, inconsistent metrics for determining small business eligibility, and difficulties in measuring the program’s success. Unfortunately, this is not the only example of government execution falling short of congressional intent. For instance, the federal government has an annual goal of utilizing the 8(a) program to award at least five percent of all federal contracting dollars to disadvantaged small businesses every year. Yet, the program precludes certain disadvantaged businesses from being competitive within the program or even from being eligible for the program entirely for the reasons discussed below.
This Note suggests Congress create a new special interest group within the 8(a) program for disabled business owners. By creating a special interest group in the 8(a) program specifically for disabled business owners, Congress and the SBA can finally support an invaluable source of economic activity while making significant progress towards realizing the congressional goals surrounding disability rights and employment policy that have existed for decades. The 8(a) program is an ideal venue for such a change because the program was designed to help socially and economically disadvantaged small business owners, such as disabled business owners, and this change would modify the program in such a way that it would better achieve the goals of its creation. Furthermore, this change would allow Congress and the SBA to adequately support disabled business owners and individuals within the existing government procurement framework, as Congress has been advocating for since President Roosevelt signed into law the Wagner-O’Day Act in 1938.
After evaluating relevant legislative history, this Note will look in depth at the issues surrounding the 8(a) program and how those issues affect the disabled community. Next, this Note will outline the proposal for creating a special interest group for disabled-owned businesses under the 8(a) program and how that will achieve the legislative intent of Congress by providing various benefits to the disabled community. Lastly, this Note will discuss how this proposal will address the problems disabled business owners face within the 8(a) program specifically. Congress has made it explicitly clear through legislation that disabled business owners, disabled employees, and their working conditions should be considered when administering federal programs such as the 8(a) program, and this proposal will aid in realizing that intent.
Landmark legislation has endorsed economic and employment policy that has supported the disabled community for decades. In 1938, Congress began taking significant action to offer more opportunities for disabled Americans, including by enacting the Wagner-O’Day Act, which created what is now known as the AbilityOne Program. Other examples of important disability rights legislation affecting the federal procurement system are the Rehabilitation Act and the Americans with Disabilities Act (ADA). Each of these acts signaled the intent of Congress as well as of the rest of the country to support the disabled community through whatever means possible, including instituting new employment and disability rights policies in the field of government contracting.
This section of the Note will begin by explaining the specifics of the Wagner-O’Day Act and the creation of AbilityOne, a federal program—designed to provide employment to disabled individuals—that has faced significant criticism in the modern era. Next, this section will analyze the Rehabilitation Act of 1973, which focused on prohibiting federal programs and federal contractors from discriminating on the basis of disability. Lastly, this section will discuss the ADA, the most comprehensive piece of civil and disability rights legislation in recent American history.
The Wagner-O’Day Act was signed into law on June 25, 1938. The Act established the Committee on Purchases of Blind-Made Products (products made by blind people), which would go on to become the U.S. AbilityOne Commission in 2011. The original purpose of the Act was to support blind citizens in the employment sector as they worked to provide goods and services to the government, and the program’s mission has since expanded to include more members of the disabled community. Congress amended the Act to become the “Javits Wagner-O’Day Act” in 1971, and expanded the legislation to include people with significant disabilities, such as severe cognitive and physical disabilities, who were previously uncovered by the Act.
Today, AbilityOne has become one the country’s largest employers of disabled individuals, employing more than 42,000 people who are blind or have other significant disabilities. The AbilityOne program functions by creating nationwide partnerships with nonprofit agencies who train and employ individuals with significant disabilities and by providing a framework in which these nonprofit participants can sell their goods or services to the federal government. As a noncompetitive federal government contracts program, AbilityOne participants do not have to bid on available federal contracts and compete for them like most other federal contractors. Rather, the AbilityOne Commission, as an extension of the federal government, determines the fair market price for goods and services offered by participating nonprofits in the AbilityOne program. AbilityOne then regularly publishes a list in the Federal Register of the goods and services at set prices determined by the Commission to be eligible for the federal government to procure.
Participating nonprofits must have disabled individuals perform at least seventy-five percent of their overall direct labor hours to qualify for the AbilityOne program. AbilityOne seems to close the gap between small business owners and disabled workers by allowing disabled individuals to participate in the field of government procurement. This is because the AbilityOne program provides a forum through which disabled workers can theoretically better participate in federal procurement. However, contract practitioners and legal academics have been critical of AbilityOne. The criticism most significant for the purposes of this Note is that the AbilityOne program overly relies on paying disabled workers a subminimum wage, thereby decreasing competitive integrated employment rates for disabled employees in the workforce.
Competitive integrated employment, as outlined in § 705 of the Rehabilitation Act, requires that employees with disabilities be paid no less than the federal minimum wage. Yet many nonprofit participants of AbilityOne hold special certificates, known as 14(c) certificates, issued by the Department of Labor through the Fair Labor Standards Act, that allows them to pay a subminimum wage to disabled employees. Based on the notion that disabled employees are not as productive as able-bodied employees, 14(c) certificates allow employers to pay a subminimum wage to disabled employees in order to reflect that difference in work production. Because the Fair Labor Standards Act includes an exception to the federal minimum wage that allows employers of disabled individuals to pay a subminimum wage, nonprofits who participate in AbilityOne can utilize that exception and permanently reduce their business costs by ensuring they never pay their disabled employees more than a subminimum wage.
Allowing employers to pay disabled employees a subminimum wage places them in a particularly vulnerable position because they are less likely to negotiate or compete for better employment. Since every AbilityOne nonprofit employer can receive a 14(c) certificate to cut operating costs, they have no incentive to offer disabled employees a fair wage. Hence, the AbilityOne Program, while intending to support the disabled community, restricts the employment opportunities available to these workers, and the program cannot be considered to close the gap between small business owners and disabled workers.
Congress passed the Rehabilitation Act in 1973, since amended, which prohibits discrimination on the basis of disability in programs receiving federal financial assistance as well as in the employment practices of federal agencies and federal contractors. As the predecessor to the ADA, the Rehabilitation Act was the first piece of legislation to adequately address the idea of equal access for the disabled community by removing employment, transportation, and architectural barriers while also creating federal affirmative action programs. The federal government has since been working to achieve these goals. For example, a rule requiring federal contractors to implement new self-identification procedures and determine whether they are meeting a seven percent utilization goal for disabled employees was introduced in March 2014 by the Office of Federal Contract Compliance Programs, since adopted in the Rehabilitation Act.
More specifically, sections 503 and 504 of the Rehabilitation Act illustrate congressional intent to preserve and bolster the employment rights disabled Americans currently possess. Section 503 of the Rehabilitation Act requires federal contractors who make in excess of $50,000 to take affirmative steps to hire, retain, and promote disabled employees. Section 503 also includes the seven percent representation goal for disabled workers, which was the first of its kind and only furthers the government’s policy commitment to supporting the disabled community. The purpose of the seven percent utilization goal for disabled employees was to set a fair, attainable benchmark for equal employment objectives for every federal contractor without imposing a rigid quota. Therefore, the disabled worker utilization goal is not a legal requirement, and failure to maintain a seven percent disabled workforce does not violate the law.
Section 504 prohibits discrimination against individuals with disabilities by any program receiving federal funding or by any federal executive agency. The Rehabilitation Act standards for determining disability are the same as Title I of the ADA. This means that the judicial shortcomings of the ADA, including its narrow interpretation of disability as discussed in the next section of the Note, also apply to the Rehabilitation Act. Similarly, § section 504 of the Rehabilitation Act relies on the ADA for its interpretation of employment discrimination, which includes equal employment policies such as a prohibition on the segregation of an employee due to a disability. Section 504, however, is only applicable to programs or activities “receiving federal funding” and not to federal contractors themselves. Courts have interpreted federal contractors to be exempt from § section 504 because, in order for the Rehabilitation Act to apply, the government must intend to provide a subsidy to the program rather than compensate it for performance of a contract, permanently delineating “federally funded programs” from contractors who have federal customers. Thus, the congressional goal of providing equal opportunity to the disabled community in the employment sector has a demonstrated history of being limited by judicial action. Nonetheless, the intent of Congress to support the disabled community has been codified and should not be ignored.
The ADA is one of the country’s most comprehensive pieces of civil rights legislation. On July 26, 1990, President George H.W. Bush signed the ADA into law. Modeled after the Civil Rights Act, the ADA prohibited discrimination against people with disabilities while guaranteeing that the disabled community could participate in all aspects of mainstream society. Congress wanted to ensure that disabled individuals could purchase goods and services, seek out employment opportunities, and participate in state-sponsored programs and services, just as any American citizen would. The ADA, with its ambitious goals, has fallen short of achieving its purpose of eliminating disability-based discrimination. This is because the ADA is a voluntary compliance law which allows employers to ignore its provisions and the courts have heavily restricted the ADA definition of “disability” to include fewer members of the disabled community than Congress intended.
Even though the ADA is based on the Civil Rights Act and the Rehabilitation Act, the ADA is a voluntary compliance law, and employers are expected to voluntarily comply with the equal opportunity employment provisions. As such, there are no employer reporting requirements or any other legal mechanisms for accountability included in the legislation. This significantly weakens the ADA and makes it distinctly different from other civil rights legislation, such as the Civil Rights Act—for which compliance is legally mandatory.
Courts also have severely narrowed the ADA’s scope by limiting the definition of “disabled.” The ADA was meant to be an “equal opportunity law for the disabled community.” Because the ADA had been interpreted differently by several federal agencies shortly after its passing, a series of Supreme Court decisions at the turn of the century imposed a very limited interpretation of the word “disabled,” which caused certain conditions or impairments to warrant legislative protection and agency resources over others. The Supreme Court has defined “disability” within the scope of the ADA to apply only to (1) an individual with a physical or mental impairment that substantially limits one or more major life activities; (2) a person who has a history or record of the impairment; or (3) an individual who is perceived by others as having such an impairment. This is largely the definition of “disability” today under Title I of the ADA. Consequently, the ADA, while well-meaning, has fallen short of achieving its legislative goals. However, the ADA is still an unique piece of civil rights legislation showcasing congressional support for the disabled community in all aspects of life.
In conclusion, Congress has a demonstrated history of advocating for better, more nuanced disability policy by passing the Javits Wagner-O’Day Act, the Rehabilitation Act, and the ADA. Each of these acts, as inclusive economic and employment policies, signals the intent of Congress as well as of the rest of the country to support the disabled community as active members of society.
This section of the Note will examine the SBA’s 8(a) program, its congressional purposes, and how the program functions in practice. This section will also enumerate the problems disabled business owners face within the 8(a) program. The 8(a) program issues discussed in this section will be revisited in the following section to illustrate how creating a special interest group in the 8(a) program for disabled-owned businesses will solve or address them. The SBA is an agency dedicated to uplifting and supporting marginalized business owners through programs like the 8(a) program, but those principles can be threatened by the very actions taken to preserve them.
The Small Business Act was enacted on July 30, 1953. The Act was meant to aid, counsel, assist, and protect, insofar as is possible, the interests of small businesses across the country. Many programs and resources were created and distributed to thousands of small businesses across the country as the result of the Act. The 8(a) program, which aims to help small businesses owned and controlled by socially and economically disadvantaged persons, was one such program created by the Small Business Act. By partnering with federal agencies, the SBA can promote the use of the 8(a) program to provide various forms of assistance to eligible small businesses including management, technical, financial and procurement related support.
In the 1980s, Congress amended the 8(a) program to include special interest groups for four types of organizations: Alaska Native Corporations, Community Development Corporations (an eligible “nonprofit organization responsible to residents of the area it serves”), Native American Tribes, and Native Hawaiian Organizations. Congress included these groups because of their uniquely disadvantaged status within the American economy among other competing small businesses, and altered the 8(a) program to offer certain specialized benefits to each special interest group. These special interest groups and the implications of their certain specialized benefits will be discussed in further detail in part IV of this Note.
The 8(a) program and the SBA were created in the 1950s with the vision of supporting small business endeavors in the United States. As the U.S. economy has shifted and transformed from the post-war industrialization of the 1950s to the service economy of the modern day, the SBA has had to adapt to provide the federal assistance small businesses have needed, with mixed results. As a result, the 8(a) program as it exists today is administered without the disabled community in mind, in direct conflict with congressional intent.
Several significant issues within the 8(a) program affect disabled business owners. These issues include the following: (1) the requirements for eligibility in the 8(a) program are unduly restrictive for disabled-owned businesses; (2) a lack of program oversight prevents disabled-owned businesses from receiving adequate assistance; and (3) the misallocation of program resources for disabled business owners renders the program largely ineffective. Creating a new special interest group for disabled business owners within the 8(a) program will not only address these issues but also allow the SBA to better accomplish its legislative purpose of supporting small businesses by expanding its program to accommodate the disabled community.
First, to participate in the 8(a) program, a small business must meet several intensive eligibility requirements. To begin, small business owners must fit within the governmental definition of socially and economically disadvantaged, which is who the 8(a) program was designed to support. The government has defined “economically disadvantaged” as “individuals whose ability to compete in the free enterprise system has been impaired due to the diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.” Disabled business owners undoubtedly fit within the SBA definition of economically disadvantaged because the disabled community’s ability to compete in the economy has been impaired due to the diminished capital and credit opportunities offered to them as compared to those who are not socially disadvantaged. Among the many other criteria for eligibility are (1) limits on personal net worth and limits on all personal assets for the duration of program participation; (2) demonstrating “good moral character” as a business owner; (3) providing ample evidence of the business’s “potential for success,” (4) being owned and controlled by a socially and economically disadvantaged individual; and (5) continued economic scrutiny during participation in the program. These eligibility requirements are the same for all program participants regardless of disability status, except for special interest groups, whose eligibility requirements were congressionally tailored for each group’s demographics.
According to an annual study conducted by the U.S. Bureau of Labor Statistics, which accounts for discrepancies involving age and technical ability, disabled individuals are severely underemployed and underutilized in society, perhaps as a result of barriers or other obstacles preventing them from entering in or being competitive within the workforce. The current eligibility requirements could be an obstacle preventing disabled-owned businesses from being able to participate in the program. Placing the same social, economic, and financial obstacles to eligibility before disabled individuals and able-bodied individuals, without accounting for disability, can affect the likelihood of disabled applicants being accepted into the 8(a) program. This is in direct opposition of the intent of Congress to ensure the disabled individuals would not be overlooked or excluded when administering federal programs when passing the Rehabilitation Act and the ADA.
Next, another issue disabled business owners face in the 8(a) program is the unfair treatment and unequal distribution of program benefits to eligible small businesses. Witnesses at congressional hearings have testified that the interpretation and implementation of standardized policies and procedures related to the 8(a) program have varied between SBA offices, especially those in different states. This means that a small business who applied to the 8(a) program may or may not be accepted based on the SBA office to which they applied; or the resources and federal assistance offered to a small business can wildly vary depending on the SBA office they report to. Similarly, members of Congress have even argued that SBA offices are influenced by competing business interests rather than neutrally overseeing the 8(a) program and its participants as intended, essentially awarding more resources to certain small businesses over others. These actions, whether intentional or not, result in inconsistencies in the distribution of program benefits and the unequal treatment of program participants. Congress, by passing the ADA, the Rehabilitation Act, and the Small Business Act, has demonstrated its intention to support the disabled community and other socially and economically disadvantaged business owners through federal assistance programs. By failing to equally provide federal resources to the disabled community, the 8(a) program is actively working against Congress’s intent.
The last problem related to the 8(a) program addressed in this Note is the misallocation of resources to eligible small businesses. The SBA is statutorily required to provide oversight to the 8(a) program, and that includes regular evaluations of 8(a) small businesses to ensure continued eligibility for the program. However, a 2016 SBA Office of the Inspector General (OIG) audit found that SBA staff reviewed less than half of the small businesses required to be included in annual evaluations. Among other errors, this failure prevented the SBA from detecting nearly two dozen small businesses that were no longer eligible for the 8(a) program, yet were still receiving the benefits of program membership for years, including the ability to bid on set-aside and sole source contracts as well as financial and technical assistance.
Following the conclusion of the audit, the OIG made several recommendations to the SBA “to improve the overall management and effectiveness” of the 8(a) program. While this demonstrates that management and oversight of the 8(a) program are significant areas for concern, it also implicates that the resources, financial or otherwise, delegated to the 8(a) program for administration were inappropriately allocated. Small business participants, including disabled-owned businesses, rely on the resources offered through the 8(a) program to grow and expand their business as well as successfully compete in the field of federal procurement. When the federal resources meant for disabled-owned businesses are being poorly distributed, the purpose of the 8(a) program as well as the goals of the Rehabilitation Act and the ADA cannot be realized because the demographics congressionally targeted for federal assistance are not receiving assistance.
The 8(a) program has several issues that are particularly pertinent to disabled business owners because they negate Congress’s goal of supporting the disabled community. The requirements for participants in the 8(a) program are unfairly restrictive to disabled-owned businesses, the ineffective oversight of the program prevents disabled-owned businesses from receiving adequate federal assistance, and the misallocation of program resources burdens disabled business owners.
Based on Congress’s intent to support the disabled community through disability rights and employment policy and the current issues disabled business owners face within the 8(a) program, this Note recommends creating another special interest group under the 8(a) program specifically for disabled business owners. Most importantly, this proposal would finally realize decades old congressional policies regarding disability rights on a national scale; specifically, creating a special interest group for disabled-owned businesses would mark substantial progress towards better employment rates and improved economic opportunities for disabled citizens. As more disabled-owned businesses become competitors in the economy, the more opportunities become available to the entire disabled community, as legislation like the ADA and the Rehabilitation Act have intended for decades. Similarly, the congressional goal of the 8(a) program is to provide federal assistance to socially and economically disadvantaged business owners, which makes it the ideal venue for instituting change to further support the disabled community, a recognized socially and economically disadvantaged group. Disabled business owners would be able to avoid many of the 8(a) program’s issues because they would receive specialized assistance under the purview of the program. A closer examination of the other special interest groups that already exist within the 8(a) program will better illustrate why there should be a disabled-owned business special interest group within the 8(a) program.
Amendments to the Small Business Act of 1953, the 8(a) program, and subsequent legislative acts of the 1980s created special interest groups for small businesses at least fifty-one percent owned by Alaska Native corporations (ANCs), Community Development Corporations (CDCs), Native American tribes, and Native Hawaiian organizations (NHOs) because Congress recognized the need to provide additional federal support to these groups. These special interest groups receive specialized benefits, including tailored management, technical, financial, and procurement related assistance from the SBA. This support is like that offered to socially and economically disadvantaged small business owners under the 8(a) program, but special interest group benefits are specifically curated for their special interest group, making them more valuable to program participants.
Notably, ANCs, CDCs, Native American tribes, and NHOs are identified as “disadvantaged groups” rather than “disadvantaged individuals.” Disabled business owners are undoubtedly individuals, not groups. However, Congress identified ANCs, CDCs, Native American tribes, and NHOs for the 8(a) program specifically because they were struggling to compete in the American economy despite the federal resources and support already offered to small businesses. The disabled community—specifically disabled business owners—are facing similar economic struggles Congress has historically identified and relied on while creating the current special interest groups under the 8(a) program, such as the nature of the demographic and the unique obstacles they faced when competing in the economy. The disabled community is a group of individuals that have faced severe social and economic prejudice within American society based on others’ perceptions, just as ANCs, CDCs, Native American tribes, and NHOs historically have. For this reason, disabled-owned businesses are similar enough to ANCs, CDCs, Native American tribes, and NHOs that the 8(a) program would be an ideal setting for creating a special interest group for disabled-owned businesses.
Disabled business owners also, as a participating 8(a) small business, are eligible for prioritized set-aside contracts. Disabled business owners would receive the same assistance as a special interest group recognized by the set-aside and sole source contracting provisions without being subjected to the additional requirements of other 8(a) participants.
The remainder of this section will focus on evaluating the effects of this Note’s proposal. First, this Note will revisit all relevant legislation mentioned in the legislative history section to evaluate how the creation of a special interest group for disabled business owners under the 8(a) program finally fulfills the congressional intent of these acts. Then, this Note will explore how this proposal will solve or address the struggles disabled business owners currently face within the 8(a) program, as previously discussed. Lastly, this section will address potential downsides and counterarguments to this proposal.
For the purposes of this proposal, it is important to understand the legal and cultural nuances of defining a term such as “disability,” as well as its potential effects on the disabled community, specifically for those individuals who identify as disabled, yet may be excluded from any one definition of “disability.” For these reasons, defining a term like “disability” is a delicate issue that goes beyond the scope of this Note. The definition of “disability” as it relates specifically to the 8(a) program should be left to Congress and the SBA to determine.
Establishing a special interest group for disabled-owned businesses within the 8(a) program would help to realize decades old congressional policies regarding disability rights on a national scale. Legislation, such as the Javits Wagner-O’Day Act, the Rehabilitation Act, and the ADA, has clear aspirations for the disabled community as productive members of American society through supportive employment and disability rights policies. The benefits the 8(a) program could offer disabled-owned businesses would help them become more competitive in the U.S. economy. As more disabled-owned businesses become efficient economic competitors, the more opportunities become available to the entire disabled community.
First, establishing a special interest group for disabled-owned businesses in the 8(a) program achieves the congressional goals of the Javits Wagner-O’Day Act while avoiding AbilityOne’s reliance on paying disabled workers a subminimum wage. The intent of the Javits Wagner-O’Day Act was to increase employment rates among the disabled community. Creating a new special interest group for disabled-owned businesses would give disabled workers freedom when exploring their employment options. Disabled business owners are more likely to pay a living wage to disabled employees than AbilityOne nonprofits which hold a 14(c) certificate. Disabled employers are also less likely to carry negative perceptions of disability than able-bodied employers, which means they are not likely to view disabled employees as less impactful or less valuable than able-bodied employees. Thus, disabled business owners are more open to hiring disabled individuals for a living wage. If disabled-owned businesses are given the resources and assistance to better compete in the American economy, employment rates for the disabled community will likely rise. As a result, the goals of the Javits Wagner-O’Day Act would be realized without employers relying on 14(c) certificates to pay a subminimum wage to disabled workers.
Next, implementing a special interest group for disabled-owned businesses in the 8(a) program would further the congressional intent of the Rehabilitation Act. The Rehabilitation Act was the first significant piece of legislation to prohibit discrimination on the basis of disability in the employment practices of federal agencies and in programs receiving federal assistance. The Rehabilitation Act was also one of the first examples of Congress attempting to address the idea of equal access for the disabled community by removing societal barriers while supporting targeted affirmative action programs specifically for disabled employees. Creating a new special interest group for disabled business owners under the 8(a) program would not only allow the federal government to better support and assist disabled-owned businesses, but it would encourage all of American society to recognize disabled business owners as substantial players in the economy—finally carrying out the goals of the Rehabilitation Act.
Lastly, the ADA—while like the Rehabilitation Act in scope and intent—is much more comprehensive in establishing disability rights policy in the United States and would also benefit from this Note’s proposal. The main aspiration of the ADA was to ensure that disabled individuals could engage in all aspects of mainstream society. Activities that have historically been difficult or unobtainable for those in the disabled community such as purchasing goods and services, seeking out employment opportunities and advancement, and participating in state and federal sponsored programs and services are all mentioned as goals for the ADA. Creating space for disabled-owned businesses to participate in the 8(a) program meets these goals by removing obstacles which discourage or bar participation of disabled individuals in the business sector. Through the 8(a) program and its access to set-aside and sole source contracts, disabled-owned businesses can engage in purchasing and selling goods and services with various federal agencies, actively seek out employment opportunities and advancement in the field of federal procurement, and reap the benefits of the 8(a) program and its services by being program members. Creating a special interest group for disabled business owners within the 8(a) program would realize Congress’s intent when passing the ADA.
Creating a special interest group for disabled-owned businesses would address several of the issues disabled business owners face within the 8(a) program. The issues within the 8(a) program, including the restrictive eligibility requirements, the ineffective oversight of the program, and the misallocation of program resources, would be mitigated with this Note’s approach, thus making the 8(a) program an ideal venue.
First, members of special interest groups within the 8(a) program can bypass certain program eligibility requirements. The SBA automatically presumes that Native American tribes, owners of ANCs, owners of NHOs, and owners of CDCs are socially disadvantaged so long as they meet the other requirements of their special interest group. Similarly, the SBA presumes ANCs and CDCs to be economically disadvantaged. All other eligibility requirements for businesses in special interest groups were created with each particular special interest group in mind, resulting in more equitable eligibility requirements; this was done to promote program participation among the special interest groups. If disabled-owned businesses had their own requirements for program eligibility, program participation among disabled-owned businesses could also increase. For example, if disabled individuals were granted a presumption of social and economic disadvantage, eligibility requirements for disabled-owned businesses could be limited to (1) demonstrating a good moral character; (2) proving the business is at least fifty-one percent owned by a disabled individual; and (3) demonstrating the business meets current SBA standards to be classified as a small business. For disabled-owned businesses, having a presumption of social or economic disadvantage would make eligibility for the 8(a) program much more attainable and further support the economic activities of the disabled community.
Next, creating a special interest group for disabled business owners under the 8(a) program would remedy the issues of ineffective oversight and unfair resource distribution within the program as it relates to disabled-owned businesses. Native American tribes, ANCs, NHOs, and CDCs can receive individually tailored assistance through the 8(a) program, such as the 8(a) Mentor-Protégé program and industry specific financial counseling. While this assistance is similar to that received by all program participants, the oversight and management of the assistance provided to Native American tribes, ANCs, NHOs, and CDCs is often stricter because there are fewer eligible businesses to monitor. Because of this, the 8(a) program is more effective for participants in these special interest groups. By creating a new special interest group under the 8(a) program for disabled business owners, there would be increased access to federal resources and assistance as well as stricter program oversight. This proposal would modify the 8(a) program to further support the disabled community as Congress intended by providing federal resources and assistance to disabled-owned businesses.
Finally, the last issue within the 8(a) program addressed by this proposal is the misallocation of program resources for disabled-owned businesses. Like the last issue of ineffective oversight and management, those small businesses who qualify for a special interest group designation in the 8(a) program largely avoid the problem. Many of the resources offered to small businesses belonging to these special interest groups are industry- and business-specific, which, by virtue of the special interest group’s subject matter, is much more closely monitored. The act of being closely monitored would likely lessen the misallocation of program resources. Creating a special interest group for disabled business owners within the 8(a) program would give disabled-owned small businesses the opportunity to receive adequate specialized federal assistance.
As discussed throughout this Note, many problems surround the disabled community and civil rights and employment policy, and no one solution will provide the changes and innovation necessary to fix them. Even if one proposal could rectify the employment and accessibility issues affecting the disabled community, it would take time for such results to manifest. Similarly, creating a special interest group for disabled small business owners under the 8(a) program is not likely to have a significant effect on the disabled community immediately because substantial change takes time to achieve. However, the impact of this proposal will be felt for generations as the congressional vision for disability rights is eventually achieved. Any progress, regardless of how small it may appear at its inception, is worth advocating for. The disabled community is worth advocating for, and this proposal is one method of doing so.
A potential downside to this proposal is that it is likely that the definition of “disability” will be statutorily or judicially narrowed once again. Once disabled-owned businesses start receiving benefits, federal agencies may vary in their interpretation of “disabled,” requiring the courts to intervene. The Supreme Court has already shown a willingness to substantially limit disability rights by narrowly defining “disability” in a series of court cases after the ADA was passed. One way to combat this is to homogenize the governmental definition of disability as a legal term of art. For example, when Congress is legislating disability policy the definition of “disability” could be the same as Title I of the ADA. The ADA defines “disability” with respect to an individual as “a physical or mental impairment that substantially limits one or more major life activities.” By establishing a unified definition of “disability,” the federal government can be more consistent when creating and enforcing disability rights legislation. As previously stated, this Note makes no assessment as to what the definition of “disability” should be; it merely provides one potential example for a homogenous definition.
Lastly, some may argue that disabled business owners should petition the SBA under 13 C.F.R. 124.103(d)(1) to be included “as a presumptively socially disadvantaged group” under the 8(a) program. However, this approach is inadequate compared to a statutory change because it would not address all the problems disabled business owners face within the 8(a) program. A successful petition under 13 C.F.R. 124.103(d)(1) for disabled business owners, while offering a presumption of social disadvantage, would still require disabled applicants to adhere to every other eligibility requirement for the program, including limitations on personal income and assets, moral character, and economic viability. These restrictions could prevent disabled-owned businesses from being able to participate in the program, which conflicts with Congress’s intent when passing the Rehabilitation Act and the ADA to ensure that disabled individuals would not be overlooked participants of federal programs. Similarly, a petition under 13 C.F.R. 124.103(d)(1) does not address the program problems of inadequate program management or misallocation of program resources. The best approach would be a statutory change to create a special interest group under the 8(a) program for disabled business owners because it more fully realizes congressional goals for the disabled community.
Landmark legislation endorsing economic and employment policy that specifically supports the disabled community has existed for years. Beginning in 1938 with the Wagner-O’Day Act, Congress began a pattern of passing legislation that offered more social and economic opportunities for disabled Americans. Other pertinent examples of disability rights legislation are the ADA and the Rehabilitation Act, both of which promote supporting the disabled community through various methods such as instituting nondiscrimination policies in the business sector and allowing for equal access and opportunity in federal assistance programs. Each of these acts signals the intent of Congress as well as of the rest of the country to support the disabled community in meaningful and beneficial ways. This Note suggests Congress create a special interest group for disabled-owned businesses within the 8(a) program. Not only would creating special interest group for disabled business owners within the 8(a) program achieve the intent of Congress, but disabled business owners would also be able to escape many of the problems of the 8(a) program that have prevented them from fully utilizing the program in the past, including restrictive eligibility requirements, ineffective program oversight, and misallocation of program resources. By having Congress create a special interest group within the 8(a) program for disabled business owners, the SBA can adequately support disabled business owners and businesses within the existing government procurement framework, as congressional policy has intended for decades.
