District Court Upholds Provisions of New OFCCP Disability Regulations

March 21, 2014

In a decision handed down today, Judge Emmet G. Sullivan of the United States District Court for the District of Columbia upheld the U.S. Department of Labor’s Office of Federal Contract Compliance Programs final rule regarding individuals with disabilities.  Notably, the Court held the pre-offer self-identification requirement does not violate the Americans with Disabilities Act based on a review of the legislative history of the Act, which the judge cited as permitting an entity to "invite applicants for employment to indicate whether and to what extent they have a disability" as a part of affirmative action.  In addressing the seven percent utilization goal required under the new regulations, the Court held that the OFCCP’s methodology for setting the goal was not arbitrary and capricious, and that OFCCP was forced to reasonably estimate the goal using the best data available.  The legal challenge to the final rule, in which HR Policy joined as an amicus curiae, was brought by the Associated Builders and Contractors'.  Separately, the Wall Street Journal examined a number of problems federal contractors and workers will face with the rules, including asking every applicant and employee whether she or he has a disability.  As stated by Chris Miller, Vice President of Employee Relations at HR Policy member Southern Company, "A lot of employees don't see those issues as being properly categorized as disabilities. They see it as something they've learned to live with."  Although the nondiscrimination provisions of the final rule are effective Monday March 24, 2014, federal contractors with an Affirmative Action Program (AAP) in place on that date may delay their compliance with many of the final rule’s requirements until the start of their next AAP cycle.