[Federal Register Volume 79, Number 94 (Thursday, May 15, 2014)]
[Proposed Rules]
[Pages 27824-27826]
From the Federal Register Online via the Government Printing 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