[Federal Register Volume 79, Number 94 (Thursday, May 15, 2014)]
[Proposed Rules]
[Pages 27824-27826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11233]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA94
The Federal Sector's Obligation To Be a Model Employer of
Individuals With Disabilities
AGENCY: Equal Employment Opportunity Commission.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is issuing an Advance Notice of Proposed Rulemaking to
invite the public to comment on how it can amend its regulations to
clarify the federal government's obligation to be a model employer of
individuals with disabilities.
DATES: Submit comments on or before July 14, 2014.
ADDRESSES: You may submit comments, identified by RIN 3046-AA94, by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: (202) 663-4114. (There is no toll free FAX number).
Only comments of six or fewer pages will be accepted via FAX
transmittal, in order to assure access to the equipment. Receipt of FAX
transmittals will not be acknowledged, except that the sender may
request confirmation of receipt by calling the Executive Secretariat
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not
toll free numbers).
Mail: Bernadette Wilson, Acting Executive Officer,
Executive Secretariat, Equal Employment Opportunity Commission, U.S.
Equal Employment Opportunity Commission, 131 M Street NE., Washington,
DC 20507.
Hand Delivery/Courier: Bernadette Wilson, Acting Executive
Officer, Executive Secretariat, Equal Employment Opportunity
Commission, U.S. Equal Employment Opportunity Commission, 131 M Street
NE., Washington, DC 20507.
Instructions: The Commission invites comments from all interested
parties. All comment submissions must include the agency name and
docket number or the Regulatory Information Number (``RIN'') for this
rulemaking. Comments need be submitted in only one of the above-listed
formats. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov. Copies of the
received comments also will be available for review at the Commission's
library, 131 M Street NE., Suite 4NW08R, Washington, DC 20507, between
the hours of 9:30 a.m. and 5:00 p.m., from July 14, 2014 until the
Commission publishes the rule in final form.
FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Assistant Legal
Counsel, or Aaron Konopasky, Senior Attorney-Advisor, at (202) 663-4637
(voice) or (202) 663-7026 (TTY). (These are not toll free numbers.)
Requests for this notice in an alternative format should be made to the
Office of Communications and Legislative Affairs at (202) 663-4191
(voice) or (202) 663-4494 (TTY).
SUPPLEMENTARY INFORMATION: Section 501 of the Rehabilitation Act of
1973, as amended (``section 501''),\1\ requires both nondiscrimination
and affirmative action with respect to federal employees and applicants
for federal employment who are individuals with disabilities. It
provides specifically that the standards used to determine whether a
federal agency \2\ has discriminated against an individual with a
disability ``shall be the standards applied under title I of the
Americans with Disabilities Act of 1990 . . . and the provisions of
sections 501 through 504, and 510, of the Americans with Disabilities
Act of 1990 . . . as such sections relate to employment.'' \3\ It also
requires federal agencies to maintain, update annually, and submit to
the Commission an ``affirmative action program plan for the hiring,
placement, and advancement of individuals with disabilities.'' \4\
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\1\ 29 U.S.C. 791.
\2\ Section 501 applies to ``each department, agency, and
instrumentality (including the United States Postal Service and the
Postal Regulatory Commission) in the executive branch and the
Smithsonian Institution.'' 29 U.S.C. 791(b). For convenience, this
Notice uses the term ``federal agency'' or ``agency'' to mean any
federal entity covered by Section 501.
\3\ 29 U.S.C. 791(g).
\4\ 29 U.S.C. 791(b).
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Commission regulations implementing section 501 reiterate that
federal agencies are prohibited from discriminating against individuals
with disabilities under Americans with Disabilities Act (``ADA'')
standards, and further clarify that 29 CFR part 1630 is intended to set
forth those standards.\5\ Additionally, the section 501 regulations
provide that the federal government ``shall be a model employer of
individuals with disabilities.'' \6\
[[Page 27825]]
However, other than requiring federal agencies to ``give full
consideration to the hiring, placement, and advancement of qualified
individuals with disabilities,'' \7\ the section 501 regulations do not
explain what this obligation means or how it relates to agencies'
nondiscrimination or affirmative action obligations.
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\5\ 29 CFR 1614.203(b).
\6\ 29 CFR 1614.203(a).
\7\ Id.
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The Commission proposes to revise its regulations in 29 CFR part
1614 to include a more detailed explanation of the model employer
obligation. Before it publishes a proposed regulation, the Commission
seeks comments from members of the public on how further regulation by
the Commission may assist the federal government in meeting this
obligation.
Need for the Rule
Although Commission regulations already contain a detailed
explanation of the standards for determining whether an agency has
violated section 501's nondiscrimination provisions,\8\ and of the
process by which those provisions may be enforced,\9\ they do not
explain what the model employer obligation entails. Instead, the
Commission has, separate from the section 501 implementing regulations,
required agencies to undertake actions related to employment of
individuals with disabilities in addition to those required as a matter
of nondiscrimination. For example, 29 CFR 1614.102 imposes certain
minimum standards for federal equal employment opportunity programs,
and Management Directive 715 (``MD-715'') \10\ and its accompanying
materials\11\ provide some guidance on how to uncover and eliminate
barriers to employment faced by individuals with disabilities. However,
29 CFR 1614.102 does not address the specific obligation of federal
agencies to be model employers of individuals with disabilities. The
Commission is concerned that, without additional explanation about what
it means to be a model employer of individuals with disabilities,
federal agencies may not fulfill their obligations under section 501 of
the Rehabilitation Act.
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\8\ 29 CFR pt. 1630.
\9\ See 29 CFR pt. 1614.
\10\ Management Directive 715, U.S. Equal Emp't Opportunity
Comm'n (Oct. 1, 2003), http://www.eeoc.gov/federal/directives/md715.cfm.
\11\ See, e.g., Instructions to Federal Agencies for Equal
Employment Opportunity Management Directive 715 (EEO MD-715), U.S.
Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/federal/directives/md715instruct.cfm (last modified Dec. 12, 2008);
Frequently Asked Questions About Management Directive MD-715, U.S.
Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/federal/directives/qanda_md715.cfm (last visited Dec. 16, 2013).
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Authority
All responsibility for the administration and enforcement of equal
opportunity in federal employment is vested in the Commission.\12\ The
Commission is authorized under 29 U.S.C. 794a(a)(1) to issue rules,
regulations, orders, and instructions pursuant to section 501.\13\
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\12\ See E.O. 11478, 34 FR 12985 (1969); Reorg. Plan No. 1 of
1978, 43 FR 19807 (1978); E.O. 12144, 44 FR 37193 (1979); E.O.
12106, 44 FR 1053 (1979).
\13\ 29 U.S.C. 794a(a)(1) (incorporating the remedies,
procedures, and rights set forth in 42 U.S.C. 2000e-16, including
the EEOC's right to ``issue such rules, regulations, orders and
instructions as it deems necessary and appropriate to carry out its
responsibilit[y]'' to enforce the law, codified at 42 U.S.C. 2000e-
6(b)).
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Request for Comments
EEOC is seeking public comment on the following:
1. What barriers do individuals with disabilities face in the
federal recruitment and hiring process? For example, are there specific
job qualifications that frequently exclude individuals with
disabilities from federal jobs they can perform? What kinds of
regulatory requirements, other than the existing requirement not to
discriminate based on disability, might effectively address these
barriers?
2. Would requiring federal agencies to adopt employment goals for
individuals with disabilities help them to become model employers of
individuals with disabilities? What are the advantages and
disadvantages of requiring federal agencies to adopt employment goals?
How and what information should be used to analyze the benefits and
costs of such a requirement?
3. If goals are adopted--
a. How should the goals be set? For example:
i. Should an agency's goal be to have a workforce that reflects the
availability of individuals with disabilities in the national labor
pool, to increase the number of individuals with disabilities it
employs by a certain amount each year, or to have its new hires reflect
the availability of qualified individuals with disabilities in the
applicant pool? How should the goal(s) account for people with
disabilities who are not participating in the labor force, or the
extent to which people with disabilities in the labor pool are
qualified for agency positions?
ii. Should the regulations give federal agencies the option of
either meeting a uniform goal(s) set by EEOC or meeting a goal(s) which
they set after considering factors enumerated in the regulations? What
are the advantages and disadvantages of this approach, and what factors
are most relevant for establishing goals?
iii. Would information about the number of federal employees who
have self-identified as individuals with disabilities on the Standard
Form 256 (SF 256) \14\ and in the most recent Federal Employee
Viewpoint Survey \15\ be helpful in establishing goals for the
employment of people with disabilities? The Commission has recently
added questions about disability to the form used by federal agencies
to collect demographic information on job applicants.\16\ Could data
collected using that form, as revised, be used to set goals? What are
the advantages and disadvantages of relying on these data? What other
data are available?
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\14\ SF 256 is a form used by federal agencies to invite
employees to identify themselves as individuals with disabilities.
See Standard Form 256, U.S. Office of Pers. Mgmt. (July, 2010),
http://www.opm.gov/forms/pdf_fill/sf256.pdf.
\15\ The survey, which measures federal employees' perceptions
of their employers, invites respondents to indicate whether they
have disabilities. See Data, Analysis & Documentation, U.S. Office
of Pers. Mgmt. (July, 2010), http://www.opm.gov/policy-data-oversight/data-analysis-documentation/employee-surveys/#url=Governmentwide-Results (explaining the history and purpose of
the survey, and providing a link to reports summarizing survey
results).
\16\ See Demographic Information on Applicants, OMB No. 3046-
0046, U.S. Equal Emp't Opportunity Comm'n (approved Feb. 10, 2014),
http://www.eeoc.gov/federal/upload/Applicant_Tracking_Form_2-19-2014-2.pdf.
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iv. Should the goal(s) be applied to specified job categories, GS,
or SES levels, or applied across federal agencies' workforces?
b. Which types of disabilities should count toward fulfillment of
the goal(s), and why? For example, should there be separate goals for
individuals with disabilities as defined by the Rehabilitation Act and
individuals with the most significant disabilities (known in federal
employment as ``targeted disabilities'')?
c. What should an agency do to determine whether the goals have
been met? For example, should it rely solely on voluntary self-
disclosure through SF 256 and the form used by federal agencies to
collect demographic information on job applicants? Or should it also,
for example, consider individuals who have requested reasonable
accommodation or entered the workforce through the Schedule A excepted
hiring authority for ``persons with intellectual disabilities, severe
physical disabilities, or psychiatric disabilities''? \17\
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\17\ See 5 CFR 213.3102(u); see also Schedule A Hiring
Authority, U.S. Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/disability-employment/hiring/#url=Schedule-A-Hiring-Authority.
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[[Page 27826]]
d. Should there be consequences for federal agencies that fail to
meet the goals? If so, what should they be?
4. Are there specific hiring policies and practices other than, or
in addition to, establishing goals that should be part of the
regulation for being a model employer of individuals with disabilities?
For example, should the proposed model employer regulation require
agencies to work with entities specializing in the placement of
individuals with disabilities, such as state vocational rehabilitation
agencies or the Department of Labor's Office of Workers' Compensation
Programs; to interview all qualified job applicants with disabilities;
to assign additional ``points'' to qualified applicants with
disabilities; to subject their qualification standards (including
safety requirements) to internal or external review to identify
unnecessary barriers to people with disabilities; to include certain
information about affirmative action for individuals with disabilities
in their job advertisements; to observe certain guidelines for
determining the essential functions of the job; or to engage in
additional, targeted outreach? Commenters suggesting that specific
policies or practices be included in the proposed regulation are
encouraged to include information about the benefits and costs of the
suggested policy or practice.
5. Are there any policies or practices related to retention,
inclusion, and advancement of federal employees with disabilities,
other than policies and practices that are already required by EEOC
regulations, that a federal agency should be required to adopt to
become a model employer of individuals with disabilities? For example,
should the proposed model employer regulation require agencies to have
reasonable accommodation procedures meeting certain standards, or to
take certain remedial actions if they fail to achieve roughly equal
average levels of compensation for employees with and without
disabilities? Are there particular policies related to travel,
technology, or security measures that could eliminate systemic barriers
to federal employment of people with disabilities? Should agencies be
required to gather feedback regarding their efforts to retain, include,
and advance employees with disabilities on an ongoing basis, for
example by convening roundtables with managers or conducting exit
interviews with individuals with disabilities when they leave the
agency? Please be as specific as possible about what the proposed new
regulation should require. You are encouraged to provide information
about the benefits and costs of the suggested policy or practice.
6. Are there any policies or practices related to reasonable
accommodation, other than policies and practices that are already
required by EEOC regulations, that federal agencies should be required
to adopt to become model employers of individuals with disabilities?
For example, should the proposed model employer regulation require
agencies to establish certain time limits for the provision of
accommodations; observe certain limitations on the collection of
medical information during the interactive process; or adopt certain
methods of funding, or budgeting for, reasonable accommodations, such
as a centralized funding mechanism that would avoid charging individual
program budgets for the cost of accommodations, or a centralized
contracting vehicle or contract authority to streamline the
accommodation process? Again, please be as specific as possible about
what sorts of policies or practices the proposed new regulation should
require. You are encouraged to provide information about the benefits
and costs of the suggested policy or practice.
7. What requirements, other than those discussed above and the
existing requirement not to discriminate based on disability, should be
included in the proposed regulation to better clarify what it means to
be a model employer of individuals with disabilities?
The Commission encourages any interested party to comment on one or
more of these questions, and to provide any other relevant information,
including information about the benefits and costs of suggested
policies, practices, or general approaches.
Dated: May 12, 2014.
For the Commission.
Jacqueline A. Berrien,
Chair.
[FR Doc. 2014-11233 Filed 5-14-14; 8:45 am]
BILLING CODE 6570-01-P