Before turning to this week’s blog entry, which I will keep very short (after all, it is Thanksgiving week and who wants to read a typical blog entry this week), a couple of housekeeping matters. First, happy Thanksgiving to everyone! Second, I received notice yesterday that this blog has made the ABA top 100 legal blawgs for a second year in a row!!! I want to thank all the readers of the blog, those who nominated me (whether you let me know that or not), and those who just read the blog, for your support. Thank you!!!!!!!!!!!!!!!!!!!!!!!!!!!!!. It is an honor to be selected for the second year in a row. The blog 100 has lots of great blogs, including some (Robin, Jon (Hall of Fame!), and Eric), that are in my blog roll. You can check out the blog 100 here.

Turning to the blog entry for the week, I am on a listserv run by the ABA Commission on Disability Rights and the below was recently posted to that listserv:

There are several tasks a federal contractor must complete to stay in line with Section 503 of the Rehabilitation Act, and while the U.S. Department of Labor considered 2015 a transition period for companies to get up to speed, Patricia Shiu, Director of the Office of Federal Contract Compliance Programs, said last month that “the waiting period is over.” During the Corporate Forum in Washington, D.C., Shiu said it is unlikely federal contractors will be sanctioned for not meeting the 7 percent mark because that goal is aspirational. “This is a process and not a switch,” Shiu said when she delivered her remarks. “Failure to achieve the 7 percent [goal] is not a violation but the failure to try probably is.”

So, the question is, is this comment enough to save the regulations? By way of background, previously, I talked about the OFCCP regulations and whether the Department of Labor’s Office of Federal Contracting Compliance Programs shot itself in the foot with respect to the likelihood of this OFCCP regulation being upheld if there were to be a constitutional challenge. In another blog entry, I discussed a municipality using the defense that title II regulations violated the equal protection laws, which can be found here.

So, will this comment be enough to save the regulation . On the one hand, she does say that the 7% goal is aspirational. That would seem to suggest that a company would not have to do much. She also says that it would be unlikely for OFCCP to go after a federal contractor for not meeting the goal. On the other hand, she does say that failure to try is probably something subject to being enforced as a violation. That doesn’t answer the question though. That is, what does failure to try mean? The regulations are quite specific and rather extensive. How close does a corporation need to come to the regulations in order to be deemed as trying? If the answer is very close, then my opinion, previously expressed in the above blog entries, that the regulations will not stand up to a constitutional challenge stands (i.e the regulations are out of proportion to the harm being meant to be redressed since persons with disabilities are in the rational basis class for purposes of employment per this case). If on the other hand, de minimis compliance is the only thing required, then there is a greater likelihood, though I am not sure how much greater (the Supreme Court has not been favorable to affirmative-action as of late), that a constitutional challenge to the affirmative-action regulation for persons with disabilities will be fought off.

Have a great Thanksgiving!!!!!! Also, thanks again for giving me the honor and privilege of being selected for the ABA 100 2015 Legal Blawg, and congratulations to all the other great blogs selected as well. I will be back with a more typical blog entry next week; I have several ideas in mind.