HR Policy Supports Suit to Block OFCCP Disability Rules

Employment Law, Inclusion and Diversity

This week, HR Policy Association filed an amicus curiae brief backing the Associated Builders & Contractors' attempt to prevent parts of OFCCP's final affirmative action rule for individuals with disabilities from taking effect.  Though the case challenges the applicability of the rules to federal construction contractors, it could have implications for all federal contractors, depending on how the court rules.  A key aspect of the ABC lawsuit is to challenge the OFCCP’s "arbitrary and capricious" creation of a specific numerical goal of seven percent for the utilization of individuals with disabilities by federal contractors in every job group.  As we note in our brief, the agency failed to establish any reliable statistical basis for the seven percent goal:

The fictitious “goal” raises profound doubts as to the ability of the most willing contractors to even find an adequate pool of individuals with disabilities with the skills and talents needed for each of their job groups. 

We also emphasize the strong likelihood that the goal will become an illegal quota upon enforcement by OFCCP, noting a recent audit in which a federal contractor was found to have failed to hire a "sufficient" number of veterans.  Absent any allegations of unlawful discrimination, OFCCP required the contractor to hire additional veterans before it could consider any other qualified applicants.  A ruling in the case is expected later this winter before the final rule takes effect on March 24.  The Association is represented by David Fortney and Burt Fishman of Fortney & Scott in the case.