The Department of Labor’s Office of Federal Contract Compliance Programs 2013 final rule requiring federal contractors to invite job applicants to identify themselves as qualified individuals with disabilities and to set a seven-percent utilization goal for employment of those individuals was properly promulgated, the federal appeals court in Washington, D.C., has determined, upholding the rule against a legal challenge brought by a construction contractor group. Associated Builders & Contractors, Inc. v. Shiu, No. 14-5076 (D.C. Cir. Dec. 12, 2014). The Court also upheld the rule’s data collection requirements and rejected the argument that the construction industry should be exempted from the final rule because the industry is “uniquely hazardous and physical compared to other industries.” The Court pointed out that failing to exempt the construction industry from the final rule does not bar contractors from making case-by-case hiring decisions.
The final rule, which went into effect in 2014, revised implementing regulations for Section 503 of the Rehabilitation Act of 1973. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The final rule required contractors to invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. It also established a nationwide seven-percent utilization goal for qualified IWDs and required contractors to apply the goal to each of their job groups or to their entire workforce if the contractor has 100 or fewer employees. Further, it required contractors to document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire.