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Questions and Answers about EEOC's Notice of Proposed Rulemaking on Affirmative Action for People with Disabilities in the Federal Government

On February 24, 2016, the Equal Employment Opportunity Commission ("EEOC" or "Commission") issued a notice of proposed rulemaking ("NPRM") on the federal government's obligation to engage in affirmative action in employment for people with disabilities, imposed by Section 501 of the Rehabilitation Act of 1973 ("Section 501"). The following questions and answers provide further detail on the NPRM, and on what will happen now that it has been issued.

Background

1. What is the purpose of the NPRM?

The NPRM is a notice alerting the public that EEOC plans to change the Section 501 regulations requiring federal agencies to engage in affirmative action in employment for individuals with disabilities. Anyone who wishes to comment has 60 days to do so (until April 25, 2016).

2. Which employers would be affected by the proposed rule?

Agencies of the federal government would be affected. The rule explains what federal agencies must do to comply with Section 501.

3. Would the proposed rule apply to private businesses?

No. Private businesses are not subject to Section 501. Private businesses with 15 or more employees are subject to Title I of the Americans with Disabilities Act (ADA), but the ADA neither requires nor prohibits affirmative action for people with disabilities. Private businesses that are federal contractors are also subject to Section 503 of the Rehabilitation Act.

4. Why is EEOC proposing this rule now?

Guidance on what a federal agency must do to comply with Section 501's affirmative action requirement currently appears in a variety of Executive Orders, Management Directives, and sub-regulatory documents. Although federal agencies have improved their efforts to hire and retain individuals with disabilities, they remain underrepresented in the federal workforce. The proposed rule would clarify, in a single rule, what federal agencies must do to engage in affirmative action as required under Section 501. In 2013, the Department of Labor issued a similar rule implementing affirmative action requirements placed on federal contractors under Section 503 of the Rehabilitation Act.

5. What is EEOC's authority for issuing the proposed rule?

Congress gave EEOC the authority to issue regulations implementing Section 501. Section 501 also explicitly requires the Commission to evaluate federal agencies' Affirmative Action Plans for people with disabilities to ensure that they provide "sufficient assurances, procedures and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities." The rule specifies what must be included in an agency's Affirmative Action Plan for it to receive approval by the Commission.

6. Does the proposed rule affect federal agencies' non-discrimination obligations under Section 501?

No. Under existing regulations, Section 501 imposes the same prohibitions against disability-based employment discrimination on federal agencies that the ADA imposes on private businesses with 15 or more employees. The proposed rule would not change the standards for determining whether a federal agency has violated those prohibitions.

Disability

7. Who would be affected by the rule?

The proposed rule would require federal agencies to take actions that affect the employment of two groups of people: individuals with disabilities, and individuals with targeted/severe disabilities.

8. What is a "disability"?

Under the proposed rule, a "disability" is defined as an impairment (either physical or mental) that "substantially limits" one or more major life activities. This is the same definition that applies under the ADA, but is not the same definition used, for example, to determine eligibility for Social Security Disability Insurance or Workers' Compensation benefits. Since the ADA Amendments Act became effective in 2009, the ADA definition of "disability" has been construed broadly, to include many kinds of impairments.

9. What is a targeted/severe disability?

Targeted/severe disabilities are listed on Standard Form 256 ("SF-256"), which is published by the Office of Personnel Management ("OPM"). According to the SF-256, targeted/severe disabilities include total deafness in ears, blindness, missing extremities, partial or complete paralysis, epilepsy, severe intellectual disability, psychiatric disability, and dwarfism. People with targeted/severe disabilities have been the subject of special emphasis in federal employment because they continue to face significant barriers to employment, in large part due to common myths, fears, and stereotypes.

Goals

10. What sorts of goals are proposed by the rule?

The proposed rule states that federal agencies must adopt the goal of having 12% of their workforce consist of people with disabilities, and 2% of their workforce consist of people with targeted/severe disabilities. These goals would apply at both higher and lower levels of federal employment.

11. Isn't affirmative action illegal?

Affirmative action for people with disabilities is not illegal. An employer is allowed to hire someone because he or she has a disability, and a rejected applicant cannot sue an employer for discrimination based on the fact that he or she does not have a disability.

12. Where do the 12% and 2% figures come from?

Data show that the federal government as a whole has achieved a 12% representation rate for individuals with disabilities, but they are disproportionately represented at lower levels of employment. Establishing goals of 12% at both higher and lower levels of employment is intended to rectify this imbalance.

For some time, the Commission has encouraged federal agencies with 1,000 or more employees to set a goal of a 2% representation rate for individuals with targeted/severe disabilities. However, these individuals continue to be underrepresented in some agencies, especially at higher levels of employment.

13. Would adopting the proposed goals mean that someone with a disability must be chosen over someone who does not have a disability for a federal job?

No. The rule would set overall goals for the agency. It would not dictate outcomes in particular cases.

14. What would happen if an agency failed to meet the 12% and 2% goals?

Under the rule, if an agency failed to meet the proposed goals it would be required to take steps that are designed to increase the hiring and retention of people with disabilities and/or people with targeted disabilities. Exactly which changes would be required would depend on the particular circumstances.

15. Wouldn't agencies have to ask job applicants whether they have disabilities in order to meet the goals? Isn't that illegal?

Federal agencies, as well as private employers, are already allowed to invite job applicants to self-identify as individuals with disabilities if the information is only used for affirmative action. Agencies are also allowed to ask job applicants about possible disabilities for purely statistical purposes, if a disability is obvious and it is reasonable to believe that an accommodation would be necessary on the job, and during post-offer fitness-for-duty examinations (if the same questions are asked of everyone in the same job category).

The Job Application Process

16. How would the proposed rule affect the job application process?

The proposed rule would require federal agencies to engage in increased efforts to recruit individuals with disabilities into the federal workforce. It would also require agencies to have sufficient staff to process requests for reasonable accommodations related to the application process and applications for appointment under hiring authorities that take disability into account, such as the Schedule A hiring authority for people with intellectual disabilities, severe physical disabilities, and psychiatric disabilities.

Reasonable Accommodation

17. What are reasonable accommodations, and what does the proposed rule say about them?

A reasonable accommodation is a change in the way things are normally done that allows an individual with a disability to apply for a job, do a job, or enjoy equal access to the benefits and privileges of employment. Federal employers and employees covered by Title I of the ADA are required to provide reasonable accommodations for individuals with disabilities who need them, absent undue hardship, as a matter of nondiscrimination.

The proposed rule would require agencies to have written reasonable accommodation procedures that cover certain specific topics. Written procedures have been required since 2000, when President Bill Clinton issued Executive Order 13164. The rule would also require agencies to provide employees who are authorized to grant or deny requests for reasonable accommodation with information about any available funding and other resources.

18. Would the proposed rule alter an agency's responsibility to provide reasonable accommodations?

No, agencies would continue to provide reasonable accommodations according to existing Section 501 standards; the specific requirements addressed by the proposed rule would not change those standards.

Accessibility

19. How would the proposed rule improve accessibility to federal websites and buildings?

The proposed rule would require federal agencies to inform all employees how to file accessibility complaints under Section 508 of the Rehabilitation Act and the Architectural Barriers Act. It would also require them to assist job applicants and employees to file a complaint with another agency, if investigation shows that the other agency is responsible.

20. Why does the proposed rule require agencies to help job applicants and employees file with other agencies?

Someone who applies for a job at a certain agency may encounter inaccessible systems or facilities controlled by other agencies during the application process. Similarly, an agency's employees may encounter inaccessible systems and facilities controlled by other agencies during the course of their work. A federal agency is better equipped than job applicants or employees to identify the agency that is responsible for an alleged accessibility violation.

21. Does the proposed rule strengthen accessibility standards?

No. EEOC does not have Congressional authority to establish new accessibility standards, or to enforce existing standards under Section 508 of the Rehabilitation Act or the Architectural Barriers Act.

Personal Assistance Services

22. What are personal assistance services, and what does the proposed rule say about them?

Personal assistance services are services that help an individual perform basic human functions such as eating and using the restroom. The proposed rule says that federal agencies must provide personal assistance services to employees who need them because of a disability, unless doing so would impose undue hardship on the agency.

23. Why does the proposed rule include this requirement?

Some individuals with disabilities cannot work because personal assistance services are unavailable in the workplace. Providing these services would allow these individuals to enjoy the opportunity and independence offered by paid employment. It would also save taxpayer dollars by reducing the amount of funds spent on public disability benefits.

Accountability

24. If the rule is adopted, would the EEOC hold agencies that fail to engage in affirmative action for people with disabilities accountable?

Yes. Under Section 501, agencies are required to submit an Affirmative Action Plan for individuals with disabilities to the EEOC on an annual basis. EEOC is required to approve an agency's Plan only if it "provides sufficient assurances, procedures and commitments to provide adequate hiring, placement, and advancement opportunities for individuals with disabilities." This rule provides the elements EEOC will consider in assessing an agency's affirmative action efforts.

25. Would members of the public be able to see a federal agency's Affirmative Action Plan?

Yes, the rule would require all information submitted to EEOC during the approval process to be made public.

26. Will members of the public be able to challenge Affirmative Action Plans that they believe are inadequate?

No. Section 501 of the Rehabilitation Act vests the responsibility to approve and disapprove Plans with EEOC, not members of the public.

Next Steps

27. What happens next?

EEOC will evaluate the public comments it receives during the comment period, and make revisions to the proposed rule in response to those comments. The Commission will then vote on a final rule. After the Commission approves it, the final rule will be sent to the Office of Management and Budget ("OMB") pursuant to Executive Order 12866. As part of this process, the final rule will be coordinated with other federal agencies before it is published in the Federal Register.