By Eve Hill
People with disabilities continue to be unemployed and underemployed at disproportionate levels compared to nondisabled working-age individuals. The civil rights protections of the Americans with Disabilities Act haven’t transformed the employment landscape for people with disabilities, largely because employers have failed to recognize their negative attitudes toward people with disabilities as discrimination. Those negative attitudes have remained largely unchallenged.
During the Obama Administration, the Department of Labor took a significant step toward challenging the effects of negative employer attitudes by requiring federal contractors to take concrete steps to include people with disabilities in their workforces. Section 503 of the Rehabilitation Act has long required federal contractors to “take affirmative action to employ and advance in employment qualified individuals with disabilities.” 29 U.S.C. § 793. But contractors had no guidance as to how to implement affirmative action or what their goals should be. In 2014, the Department of Labor issued new rules clarifying the affirmative action requirement, requiring federal contractors to invite applicants and employees to self-identify as having disabilities for purposes of affirmative action programs, providing an aspirational goal of federal contractors having people with disabilities comprise 7% of their workforces (even though people with disabilities are some 20% of the US population), and requiring contractors to collect and track data on applicants, hiring, and employees. By updating the affirmative action requirements, DOL made disability a positive, rather than a negative, attribute in hiring, all while making clear that quotas were not permitted.
By analyzing data on who applied, who was hired, and who remained employed or got promoted, and applying the 7% utilization goal, employers (and the government) would be able to assess whether they were getting the word out to qualified prospective applicants with disabilities, whether discrimination was showing up in their hiring, retention, and promotion efforts, and whether their workforce reflected their community. They could then take steps to train staff, increase outreach, change policies and procedures, and offer accommodations to address identified barriers.
There is some evidence that these requirements are having the desired effect. The employment-to-population ratio for Americans with disabilities increased by over 11 percentage points from 2014 to 2023. The employment-to-population ratio and the labor force participation rate for people with disabilities in 2023 reached their highest levels since data collection began. And the unemployment rate for people with disabilities in 2023 was at an all-time low. While some of this improvement arose from the tight COVID-19 recovery labor market and the increased availability of remote work, employer attitudes, encouraged by affirmative action requirements, surely played some role.
But all that will soon come to an end if the Trump Administration has its way. This week, the DOL announced that it plans to rescind the self-identification and utilization goal requirements of the Section 503 regulations. This will leave federal contractors without any practical mechanism to implement affirmative action for employees with disabilities and without requirement to assess their progress, identify barriers, and make improvements.
As justification, DOL points to the President’s Executive Order calling for the termination of “illegal” Diversity, Equity, Inclusion, and Accessibility (“DEIA”) activities. But disability-based affirmative action simply is not illegal. And Section 503 specifically requires “affirmative action,” which can’t effectively be done without allowing self-identification and paying attention to the data.
DOL also points to the ADA prohibition on pre-employment medical inquiries as a basis for no longer requiring people with disabilities to voluntarily self-identify. It is true that the ADA generally prohibits employers from demanding that applicants disclose their disabilities, for fear that such information may be used for discriminatory purposes. But, as the Equal Employment Opportunity Commission has made clear for nearly 20 years, nothing in the ADA prohibits affirmative action or voluntary self-identification.
DOL’s rescission will soon be published in the Federal Register, which will start the clock for comments. People seeking to comment on the rule will have 60 days to do so through Regulations.gov.
Inclusivity Strategic Consulting advises businesses, organizations, and government agencies that want to achieve real inclusion of people with disabilities in their workforces and communities. Contact us to discuss your needs today.
About Eve Hill:
Eve Hill, one of the nation’s leading disability and civil rights attorneys, co-leads Inclusivity. She previously served as Deputy Assistant Attorney General of the U.S. Department of Justice, Civil Rights Division, where she was responsible for oversight of the Division’s disability rights enforcement and educational civil rights implementation. Her responsibilities included enforcement, regulation, and policy development regarding accessibility requirements for websites and other digital technology; Olmstead community integration requirements in employment and education; and disability rights in education, law enforcement, and health care.
About Inclusivity Strategic Consulting:
Inclusivity is dedicated to helping public and private sector organizations and industry groups navigate the rapidly changing landscape of disability and civil rights with strategic consulting services. Inclusivity offers solutions that advance the civil rights of workers and students with disabilities and helps organizations become more effective, inclusive, and diverse. Our advice enhances opportunities for businesses, government agencies, individuals, and communities.