Today’s blog entry concerns the EEOC final rule on implementing affirmative-action requirements of §501 of the Rehabilitation Act of 1973. So, this particular blog entry only applies to federal employees and to federal agencies. As usual, it is divided into categories and they are: some highlights; is the rule susceptible to being challenged; and thoughts. The reader is free to focus on any or all of the categories. Since the blog entry is so short, you probably want to read all of it as it wouldn’t be much additional time.
- Sets hiring goals for persons with disabilities as follows:
- greater or equal to 12% of employees at the GS-11 level or higher;
- greater or equal to 12% of employees at GS-10 level or lower;
- greater or equal to 2% of employees at the GS-11 level or higher who have targeted disabilities;
- greater or equal to 2% of employees at the GS-10 level or lower who have targeted disabilities.
- Requires as an affirmative action an agency to pay for personal assistance services if:
- employee requires such services because of a targeted disability;
- provision of such services plus reasonable accommodations enables the employee to perform the essential functions of the job; and
- it does not constitute an undue hardship.
- Undue financial hardship is looked to the agency as a whole.
- Reassignment to a vacant position without competition is something an agency must consider where the agency determines that no other reasonable accommodation will permit an employee with a disability to perform the essential functions of his or her current position.
- Contains various reporting and notice requirements.
- If an accommodation can’t be provided immediately, interim accommodation must be made absent an undue hardship.
- Complaints must be filed with the EEO counselor within 45 days of the denial of reasonable accommodation.
Is the Rule Susceptible to Being Challenged
- Rule would not subject to the Congressional review act since the rule concerns agency management and personnel (5 U.S.C. 804 (3) (B)).
- Unable to find any case law suggesting a federal agency can bring a substantial due process claim or an equal protection claim against another agency when the regulations allegedly go too far. For that matter, I couldn’t find anything saying that an agency can use either of those principles as a defense when it fails to carry out regulations either. I also asked Lexis for help on that as well, and they couldn’t find anything.
- So, you are left with individuals that would have to challenge the law. Three such individuals to come to mind are; a person with a disability who is neither covered by Schedule A nor has a targeted disability; a person covered by Schedule A but who does not have a targeted disability; or a person who is desirous of having their personal services/devices paid for to ameliorate their disability but who is not in need of personal assistance services.
- Essentially, the rule breaks people with disabilities down into three categories: persons with disabilities generally; Schedule A; and persons with targeted disabilities. Targeted disabilities refers to those disabilities found on form SF-256. Schedule A allows an agency to hire a person with a disability that qualifies under Schedule A without going through the certificate process or having to post the job.
- Any of the people in ¶ II 3 might claim that the regulations exceed the enforcement clause of the 14th amendment since persons with disabilities with respect to employment are in the rational basis class per this case. As such, the argument would go that affirmative-action for persons with disabilities goes too far. Further, one wonders if an argument could not be made that the distinctions between persons with disabilities, Schedule A, and targeted disabilities is not supportable either.
- One of the biggest problems with respect to persons with disabilities is that we silo. That is, each disability has its own challenges. What I have found over the years is that people with the same disabilities, regardless of education level, tend to congregate with people of similar disabilities. Also, it is frequently difficult for a person with a disability to understand a disability that is not theirs. What that means is instead of a unifying disability force, you have group of disabilities attempting to get what is theirs. The siloing affect is such that it is quite an accomplishment that the ADA and its amendments were even passed. These particular regulations just plug into the siloing affect by separating persons with disabilities into different categories.
- The United States Supreme Court does not like affirmative-action at all and that is not likely to change in the foreseeable future. The problem here is that persons with disabilities with respect to employment are in the rational basis class, thereby making affirmative-action as a remedy something even harder to successfully argue for then it would be for race, for example, which is subject to strict scrutiny.
- It is interesting that the EEOC says that where a person with a disability can no longer perform the essential functions of their current job, the agency must consider transferring that person to a vacant position where they can perform the essential functions of with or without reasonable accommodations. The key term being, “consider.” That is, the term “consider,” on its face is not the same as “must.” So, the EEOC is taking a bit of a different position here when it comes to federal agencies that it has when it comes to the private sector (see this blog entry for example).