Section 3 Regulations ANPRM Comments, Sept. 21, 2010 Feldman These comments, regarding "Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Affirmative Action Provisions." were offered to the U.S. Office of Contract Compliance via the online Public Comment procedure found at regulations,gov

1. Comments, Section 503 ANPRM 9/21/10 page 1 of 5
Dear OFCCP,
Thank you for seeking public comment re: Section 503 ANPRM, "Affirmative Action and
Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Affirmative Action
Provisions."
In general, this writer believes that Section 503 cannot be implemented effectively unless there is
corresponding Section 504 and ADA compliance, system-wide.
Responses to questions 1, 4, 5, 11, 13, and 14 follow.
1. How can the affirmative action requirements of Section 503 be strengthened to measurably
increase employment opportunities of covered contractors for individuals with disabilities? If
available, include examples or information illustrating the effectiveness of the suggested new
requirements.
4 Recommendations:
a. Eliminate the Section 503 exemptions for all Federally-funded contractors, sub-
contractors and vendors with 15 or more employees that :
o are receiving less than $10,000.
o have any state or local government affiliation.
Potential for effectiveness: This may encourage smaller Federally-funded businesses to recruit
and hire qualified individuals with disabilities right from the start, in order to have more
experienced in-house guidance regarding their Section 503 and 504 obligations. In addition, it
may increase local government compliance with ADA, Section 504 and associated regulations.
b. Implement threshold application requirements under Section 503 for all contractors,
sub-contractors and vendors who have 15 or more employees, to provide certification that they
have, in the past year, updated their Self Evaluations (and, if necessary, Transition Plans) to ensure
that no artificial or discriminatory barriers exist within their:
• employment and personnel policies and practices;
• facilities where any employment, programs, services and goods are contained and/or
marketed;
• information and communication products and documents, both internal and public; and
• all contractual, including vendor, arrangements.
Such certification should include the notarized signature of the entity's Section 504
Coordinator, who attests to the following:
• "I am the named Section 504 Coordinator , and am qualified, by proven performance, to
oversee the ongoing staff training necessary to implement the contractor's, subcontractor's, or
Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net

2. Comments, Section 503 ANPRM 9/21/10 page 2 of 5
vendor's Section 3 affirmative action plan. "
Potential for effectiveness: This may enable the contractors, subcontractors and vendors with 15
or more employees to more effectively fulfill their obligations to affirmatively update their ADA
and Section 504 Self Evaluations and to implement Transition Plans in a timely manner. In
addition, this can increase awareness of the ongoing mandate for all Federally-funded entities with
15 or more employees to ensure that their facilities, programs, policies and procedures are, to the
maximal extent feasible, not limiting the participation, including employment, of people with
diverse disabilities.
c. Enlarge scope of Recordkeeping to include (and to cross-file with applicable OFCCP
APP records):
i. All records pertaining to Section 503 compliance and annual certifications, for
businesses with 15 or more employees, must be readily available for review by any member of the
public and maintained for at least three years for inspection by any employee, applicant for
employment, and OFCCP,
ii. Annual summaries of Section 504 Self Evaluations and Transition Plan activities to be
cross-filed with 60-741.44 (b) Review of personnel processes. [see Recommendation below for
question 4.@ a.]
Potential for effectiveness: This may help to eliminate unneccessarily burdensome reasonable
accommodations requests, by potential applicants and employees, for program, policy and
procedural elements that should have already been incorporated into the organization's culture, by
law.
d. Section 503 should have certain minimal reporting requirements, to ensure that
workplace facilities, policies and procedures are, to the maximal extent feasible, not limiting the
applications and employment, of people with diverse disabilities.
A sunset provision is recommended: for Contractors, etc. to supply a Burden Statement on the
amount of time necessary for Section 504 Coordinators to develop written checklists and practices,
gather measurments and other data, complete, review and maintain the records required to
annually update and implement their Section 504 Self Evaluations and implement Transition Plans.
[see also 5b, below]
Potential for effectiveness: a baseline knowledge base regarding the cost/benefits of increased
awareness of compliance with associated Section 504 administrative and programmatic
requirements may yield data and evidence proving the real costs, to the nation, of noncompliance
with Section 504, and enable the Department of Justice and other associated Federal agencies to
analyze need for monitoring and enforcement efforts around ADA, Section 504, and all disability-
relevant EEO provisions.
4. Are there changes that could be made to the existing language on permissible qualifications
Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net

3. Comments, Section 503 ANPRM 9/21/10 page 3 of 5
1
standards that would better ensure equal employment opportunities for individuals with
disabilities?
2 Language Recommendations, in bold:
a. 60-741.44 (b) Review of personnel processes. The contractor shall ensure that its
personnel processes provide for careful, thorough, and systematic consideration of the job
qualifications of applicants and employees with [delete: known] disabilities for job vacancies filled
either by hiring or promotion, and for all training opportunities offered or available. The contractor
shall ensure that its personnel processes do not stereotype disabled persons in a manner which
limits their access to all jobs for which they are qualified. The contractor shall periodically review
such processes and make any necessary modifications to ensure that these obligations are carried
out. [add: Such review shall be included and documented within annual Section 504 Self
Evaluation summaries]. A description of the review and any necessary modifications to personnel
processes or development of new processes shall be included in any affirmative action programs
required under this part. The contractor must design [add: written] procedures that facilitate a
review of the implementation of this requirement by the contractor and the Government.
b. 60-741.44 (c) Physical [add: , communications] and mental qualifications. (1) The
contractor shall provide in its affirmative action program, and shall adhere to, a schedule for the
periodic review of all physical [add: , communications] and mental job qualification standards to
ensure that, to the extent qualification standards tend to screen out qualified individuals with
disabilities, they are job-related for the position in question and are consistent with business
necessity.
(2) Whenever the contractor applies physical [add: , communications] or mental qualification
standards in the selection of applicants or employees for employment or other change in
employment status such as promotion, demotion or training, to the extent that qualification
standards tend to screen out qualified individuals with disabilities, the standards shall be related
to the specific job or jobs for which the individual is being considered and consistent with
business necessity. The contractor shall have the burden to demonstrate that it has complied with
the requirements of paragraph (c)(2) of this section.
5. If OFCCP were to require Federal contractors to conduct utilization analyses and to establish
hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals
required under the regulations implementing Executive Order 11246, what data should be
examined in order to identify the appropriate availability pool of such individuals for employment?
2 Recommendations:
a. In determining the availability of qualified individuals with disabilities for employment
in particular job groups as in 41 CFR 60-2.14 (d), contractors should use the most current and
discrete statistical information available by the updated American Community Survey (ACS).
1
41 CFR 60-741.44b & c--Required contents of affirmative
action programs. To view, go to http://www.dol.gov/dol/allcfr/Title_41/Part_60-741/41CFR60-
741.44.htm.
Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net

4. Comments, Section 503 ANPRM 9/21/10 page 4 of 5
b. Contractors, etc. should supply a Burden Statement on the amount of time necessary for
Section 504 Coordinators to develop written checklists and practices, gather measurements and
other data, complete, review and maintain the records required to annually update and implement
their Section 504 Self Evaluations and implement Transition Plans so that a cross-cutting baseline
knowledge base regarding prior awareness and implementation of the Rehabilitation Act of 1973,
as amended, can be collected and analyzed over the next decade.
11. Federal contractors are required to invite all job applicants to voluntarily and confidentially
identify their race and gender pre-offer. The collection of this information allows contractors to
monitor the impact of their employment practices by race and gender and to assess progress in
meeting their affirmative action goals. Existing Section 503 regulations require contractors to invite
applicants to voluntarily and confidentially self-identify as a person with a disability after making
an offer of employment but before the applicant begins employment. (See 41 CFR 60-741.42(a).)
Would amending the Section 503 regulations to require contractors to invite all applicants to
voluntarily and confidentially self-identify if they have a disability prior to an offer of employment
enhance a federal contractor's ability to more effectively monitor their hiring practices with respect
to applicants with disabilities?
Answer: yes- if the applicant has confidence in the effectiveness of the organization's resources to
monitor and comply with nondiscrimination statutes and regulations pertaining to disability class
(such as compliance with Section 504).
2 Recommendations:
a. Section 3 should equivalently match monitoring of records of all personnel activity
(including hires, promotions, transfers and terminations) and compensation at all levels, as is
currently regulated by OFCCP to monitor success of Affirmative Action Plans at 41 CFR 60-
2.17(b)(1) through 41 CFR 60-2.17(b)(5).
b. OFCCP regulations at 41 CFR 60-1.12(c) allow that Visual observation is an acceptable
method for identifying demographic data.
This should be entirely eliminated for all disadvantaged classes, including disability, and not
included as guidance for Section 3 either.
13. What impact would result from requiring that Federal contractors and subcontractors make
information and communication technology used by job applicants in the job application process,
and by employees in connection with their employment fully accessible and usable by individuals
with disabilities?2 What are the specific costs and/or benefits that might result from this
2
For example, requiring that contractors ensure that application and testing kiosks are fully accessible and usable by
individuals with disabilities, and that contractors strive to ensure that their Internet and Intranet Web sites satisfy the
United States Access Board's accessibility standards for technology used by the Federal Government and subject to
section 508 of the Rehabilitation Act.
Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net

5. Comments, Section 503 ANPRM 9/21/10 page 5 of 5
requirement?
Answer: that would be hugely, positively significant. People with disabilities would have
significantly broader access to jobs they are qualified to perform. If this is combined with
increased broadband and other accessible technology investments, persons with disabilities will
also have increased opportunities to perform appropriate work responsibilities and to effectively
communicate with remote location teams, as well as increased potential for flexible work
locations, such as, home satellite offices.
As other MA advocates have stated: "In today’s world, accessible technology is a key factor
impacting employment opportunities for people with disabilities."
14. What other specific changes to the Section 503 regulations might improve the recruitment,
hiring, retention, and advancement of individuals with disabilities by Federal contractors?
Insofar as Federal Acquisition Regulation (FAR) policy dictates that all contractors must register
with the CCR before being awarded any contract or purchase agreement; and the Central
Contractor Registry (CCR) certifies and provides affirmative procurement and other economic
opportunities for certified disadvantaged businesses under the SBA, the necessity to prove, by a
preponderance of evidence, that disability-owned businesses are eligible to certification as a
disadvantaged business represents a root barrier to individuals with disabilities who seek to
develop and grow entrepreneurship and contracting opportunities with the Federal Government.
There is clear evidence, state by state, that individuals with disabilities continue to suffer enormous
low-opportunity disparities In: level of education attained, employment opportunities, annual
income, access to State and local assets development programs, and the hiring, recruitment and
retention practices within all aspects of the public commons.
Please grant individuals with disabilities the same opportunities as are currently provided to
women, minorities and service-disabled veterans, and affirm, within Section 3, that individuals
with disabilities are presumed to be disadvantaged; and, are eligible for equivalent affirmative
opportunities as other economically disadvantaged minorities.
Eileen Feldman, Community Access & Inclusion Project. Somerville, MA CAPSom@verizon.net