HR Management & Compliance

SCOTUS to Review Affirmative Action, OFCCP Wants Disability ‘Goals

By Stephen D. Bruce, PHR
Editor, HR Daily Advisor

The Supreme Court has agreed to hear a case concerning affirmative action in higher education. Meanwhile, the Office of Federal Contract Compliance Programs (OFCCP) has issued a proposed rule that would set goals for disability hiring. Affirmative Action is getting interesting.

Supreme Court Review

While the case the Supreme Court will hear involves public colleges and universities, the ruling could eventually impact other courts’ decisions on affirmative action programs outside of higher education, notes BLR Legal Editor Susan Schoenfeld.

In 2003, the Supreme Court ruled in Grutter v. Bollinger that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer ways to ensure academic diversity.

At the time, the ruling was intended to stand for 25 years.

Nine years later, the Supreme Court, (with a different composition of Justices), has agreed to hear a new case, Fisher v. Texas. In Fisher, a white student is suing the state, claiming she was denied admission to the University of Texas because of her race.


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In Texas, students in the top 10 percent of their high school are automatically admitted to the state’s public university system. Fisher fell below 10 percent and was not admitted to the University of Texas. In 2008, she sued, claiming that the state made admission decisions for the remaining spots using a system that uses race as a factor.

Last week, the Supreme Court agreed to hear arguments in the case.
While Fisher concerns higher education, a ruling against affirmative action programs could indirectly affect employers’ and government contractors’ hiring practices.

“The school systems tend to lead the way for the courts concerning affirmative action,” says Schoenfeld.

OFCCP Proposes Hiring ‘Goal’ to Increase Jobs for People with Disabilities

At the same time, the U.S. Department of Labor (DOL) is proposing a new rule that would require federal contractors and subcontractors to set a “goal” of having 7 percent of their workforces comprised of people with disabilities.  

The quotes are around “goal” because many observers look at the rule and see “quotas.” By whatever name, it appears to be a stronger requirement than existing affirmative action requirements are.

The Office of Federal Contract Compliance Programs’ (OFCCP) proposed rule would strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities. The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping, and policy dissemination.

In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.

The current unemployment rate for people with disabilities is 13 percent, 1 1/2 times the rate of those without disabilities. Furthermore, the Bureau of Labor Statistics show disparities facing working-age individuals with disabilities, with 79.2 percent outside the labor force altogether, compared to 30.5 percent of those without disabilities.

Establishing a 7 percent hiring goal for the employment of individuals with disabilities would be a tool for contractors to measure the effectiveness of their affirmative action efforts and thereby inform their decision-making, according to the OFCCP.

The proposed rule also would enhance data collection and record-keeping requirements in order to improve accountability. Additionally, it would ensure annual self-reviews of employers’ recruitment and outreach efforts, and add a new requirement for contractors to list job openings to increase their pools of qualified applicants.

So readers, where do you come out on
affirmative action? Is it a good idea? Does it work? What should government’s
role be?

Let me know what you think using the
Comments button below.

5 thoughts on “SCOTUS to Review Affirmative Action, OFCCP Wants Disability ‘Goals”

  1. Promoting the hiring of individuals with disabilities is a very admirable goal, but quotas aren’t the way to do it. I haven’t reviewed the proposed rule yet, though, so I hope it allows for some common-sense nuances (for example, exemptions for positions that don’t have enough qualified applicants with disabilities). Even though the rule would only apply to federal contractors, these types of requirements often seep into the private sector eventually, so thanks for the update.

  2. The reason there is a hiring goal is because the unemployment rate for prospects/colleagues with disabilities has held at 80% for over a century, even with the passage of the ADA in 1990, the world’s first civil rights law for disability. As of January 2012, the labor force participation rate for people with disabilities is 20%. Of that 20%, 12.8% are unemployed, per the Department of Labor. The Wall Street Journal published an article about it on 02/29/12. The mere presence of either an obvious or non-obvious disability is not an immediate disqualifier or a reason a prospect/colleague cannot deliver. Disability can happen to anyone anytime anywhere. Most acquired disability happens when a person is in the workforce, at the peak of his or her earning power (diagnosis of cancer, an auto-immune disorder, heart disease, an accident/injury, course of progression, a loved one who has these, etc.) The ADA covers qualified candidates. Misinformation about applicants and employees with disabilities is rampant. Not recruiting to them violates the law. Positive and proactive diversity training goes beyond legal check the box compliance. How is your comfort level when it comes to interaction and engagement? Steve Jobs kept his cancer diagnosis a secret for five years, which affected succession planning. FDR, a president with post-polio, acquired on vacation when he was 39, led the country successfully through both the Great Depression and WWII. Thomas Edison, who had both a cognitive difference and a profound hearing loss, founded General Electric, now valued at nearly $500B. How much is a company willing to invest in a professional with a disability? Jennifer Woodside, President, The Disability Training Alliance, a Professional Training and Development Firm.

  3. CAN YOU POSSIBLY PRINT ARTICLES WITHOUT ADVERTISING YOUR PRODUCTS?????? IT MAKES IT IMPOSSIBLE TO READ AND PRINT OUT COPIES FOR OTHERS. IT IS AS BAD AS COMMERCIALS ON TV!

  4. As the new rules for what is considered disabilities, it makes it easier and harder. You still can”t ask but all it takes for them to be limited in a major life activity unless it is transitory and minor (lasting under six months). Someone with a minor cse of asthma can be considered disabled as it is alife changing impairment.

  5. The question is not whether someone who possesses a disability, either from birth or temporarily, should have a chance to be hired. Of course a disabled person who can be effective in a given occupation should have the same to chance to be considered for a job. The question is whether government intervention is an appropriate fix. The answer is a resounding no. Anytime the government places “goals” for hiring (minimum wage, age, race, religion), it acts as a barrier to hiring. Let the market prevail and the fix will happen. Regarding those with disabilities, private companies have been created just for those with certain disabilities. Many more can and would be created if the government would get off the back of private industry in this country, and we’d al be a lot freer. That’s a good thing. Thank you for highlightling this issue for companies to see the possible road ahead.

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