Sinister or Just Stupid?

3/23/12

The Office of Federal Contract Compliance (OFCCP) published a Notice of Proposed Rulemaking massively changing the nature of affirmative action with regard to people with disabilities. In essence, the proposed regulatory change would require companies with federal contracts in excess of $50,000 to set a "goal" of 7 percent employment of individuals with disabilities in every job group, including 2 percent with "severe" disabilities.

The recent survey of CHROs conducted by the HR Policy Association revealed that 80% of respondents consider such a goal virtually impossible. The other 20 percent said that it would be very difficult but achievable. Not a single respondent reported that they did not see any difficulties in achieving this goal. Forget whether this is a "goal" or a "quota" (82% felt that either it was a quota or they would have to treat it like a quota). One has to wonder how the administration can set rules that those in the middle of the fray consider impossible.

One explanation is simply stupidity. As has been well documented, few senior leaders in the administration have any business experience, and particularly not in the HR realm. So, it could be that absent that experience, they do not understand the difficulties entailed in trying to hire and place people with disabilities. If this is the case, they might have overcome their lack in experience or knowledge in hiring people with disabilities by consulting the recruiters in the Department of Labor. In fact, the DOL has a goal of 2% of employees with disabilities, yet they only have 1% in their workforce. Perhaps a quick phone call to ask "How difficult would it be if we jacked the goal up to 7%?" I would guess their peers in DOL might have responded the same (80% impossible, 20% Very Difficult) as the CHROs polled above. I remember back in 1994 when the "Contract with America" suggested requiring Congress to live under the same rules they passed for others. Perhaps the next anti-regulatory revolution would be to require government agencies to live under the same rules they set for those they regulate.

However, if they are not stupid, perhaps the regulation could stem from a more sinister motivation. If the goal is completely impossible to achieve, then no firms will be in compliance. Given the limited resources of enforcement officers, they could not possibly take action against all employers, and would have to prioritize which ones to focus on and which ones to ignore. Given the suspicious nature of some of the "green energy" loans that seem to have found their way to campaign supporters with weak balance sheets, might it be possible that such donors could be ignored while enforcement focused on others?

I'm not suggesting the latter as being the true motivation. But when I see a regulation coming out that bears so little resemblance to reality (even the reality of their own regulatory agency), I have to wonder why. It seems to me that the motivation could either be sinister or just plain stupid. Which do you think?