Debra A. Carr
Division of Policy, Planning, and Program Development
Office of Federal Contract Compliance Programs
200 Constitution Avenue, N.W.
Washington, D.C. 20210
February 20, 2012
Dear Director Carr:
The Autistic Self Advocacy Network appreciates this opportunity to comment on the proposed rulemaking implementing Section 503 of the Rehabilitation Act of 1973; these regulations will strengthen employment protections and require affirmative action for individuals with disabilities seeking employment with federal contractors. The Autistic Self Advocacy Network is the nation’s leading advocacy organization run by and for autistic adults. We would like to note that we also support the comments provided by the Judge David L. Bazelon Center for Mental Health Law and the National Disability Leadership Alliance.
First, it is our pleasure to support strongly the Office of Federal Contract Compliance Programs’ Notice of Proposed Rulemaking with regards to Section 503. In particular, we commend OFCCP’s identification of a utilization goal for the hiring of people with disabilities by federal contractors and its requirement for data collection to ensure effective monitoring of progress. These provisions would bring federal contractors’ disability-based affirmative action obligations in line with historically successful requirements to conduct affirmative action programs for race and gender.
Second, we applaud OFCCP’s consideration of a sub-goal for individuals within targeted disability categories. OFCCP’s broader utilization goal adopts the definition of disability set forward by the ADA Amendments Act (ADAAA) of 2008. It is worth noting that the ADAAA’s definition of disability is designed to be very broad. Such a broad definition is necessary and appropriate in the context of an anti-discrimination law. However, given Section 503’s more narrow purpose of rectifying past discrimination against people with disabilities with the greatest history of exclusion from the workforce, we believe that a sub-goal of five to six percent for individuals from targeted disability categories is appropriate. A program of affirmative action must be more narrowly tailored to meet the needs of those whose disabilities are most likely to lead to exclusion from the workforce.
We note that the ADAAA definition of disability covers well over seven percent of the population. It is quite likely that most employers already possess people with disabilities as seven percent of their workforce (OFCCP’s proposed utilization goal) under the ADAAA definition. Furthermore, many employers who do undertake efforts to ensure they meet the broader utilization goal may attempt to do so by “creaming the crop” and only employing individuals with the least stigmatized and easiest to accommodate disabilities—rather than those with the greatest history of workforce exclusion. Thus, a sub-goal is critical to ensure that affirmative action efforts incorporate people with the greatest history of exclusion from the workforce.
Furthermore, in light of current employment data, the definition of targeted disabilities should incorporate Autism Spectrum Disorder (including Asperger’s Syndrome and PDD-NOS). According to the National Longitudinal Transition Study (NLTS-2), the proportion of autistic young adults who had a job was nearly half that of all young adults with disabilities (33 percent vs. 59 percent). The proportion of autistic young adults who had a job was comparable to that for young adults with deaf-blindness and multiple disabilities and far below the proportion of those with blindness, learning disabilities, or traumatic brain injuries (Standifer, 2011). NLTS-2 data also shows that the proportion of autistic young adults working full time (as defined as 35 hours or more per week) was one-third that of all young adults with disabilities who were employed (26 percent vs. 71 percent). Given the fact that autistic adults face greater exclusion from the workforce than most groups of people with disabilities, including several already incorporated within the targeted disability definition, we believe that the inclusion of Autism Spectrum Disorder within the targeted disability category is appropriate.
OFCCP’s Notice of Proposed Rulemaking notes the possibility of a 2 percent sub-goal for individuals with targeted disabilities. We believe that such a sub-goal is set too low. According to the Substance Abuse and Mental Health Services Administration (SAMHSA)’s National Survey on Drug Use and Health, 4.5 percent of the population has a serious mental illness (NIMH, 2012). According to research funded by the National Institute for Disability and Rehabilitation Research (NIDRR), 2.7 percent of the population has a severe cognitive impairment (Kraus, Stoddard, & Gilmartin, 1996). These two categories—severe intellectual disability and serious mental illness—are already covered within the definition of targeted disability category and already exceed the utilization goal considered by OFCCP. We urge the consideration of a utilization sub-goal for individuals with targeted disabilities in the 5-6 percent range, and for OFCCP to consider revising upwards its utilization goal for the broader population of people with disabilities accordingly.
Finally, we urge OFCCP to modify the Section 503 regulation to explicitly prohibit contractors from meeting their affirmative action obligations through sub-contracts to sheltered workshops. Currently, the regulation states that, “Contracts with sheltered workshops may be included within an affirmative action program if the sheltered workshop trains employees for the contractor and the contractor is obligated to hire trainees at full compensation when such trainees become ‘qualified individuals with disabilities.’”
Research suggests that this represents a significant loophole that will be exploited—if not closed. Although this provision is not novel to the NPRM and exists within the underlying Section 503 regulation, the addition of a utilization goal and other provisions aimed at meaningfully enforcing Section 503 for the first time make it potentially more dangerous as a mechanism for contractors to avoid meeting their affirmative action obligations through hiring people with disabilities into integrated employment. According to a September 16, 2011 informational bulletin from the Center for Medicare and Medicaid Services, all sheltered workshops receiving Medicaid funds are considered to be: “not an end point, but a time limited (although no specific limit is given) service for the purpose of helping someone obtain competitive employment.” Despite this requirement, in practice these programs are not effective as transitional services leading to competitive employment. Additionally, in most cases, those “employed” by a shelter workshop are paid less than minimum wage. Given that the vast majority of sheltered workshops are Medicaid-financed, OFCCP’s requirement that such a setting merely be a training program is not a credible additional safeguard. The requirement, like Medicaid’s definition, lacks any meaningful time-limitation on time spent in a training program or an objective, concrete definition of the term “qualified individual with a disability.” As a result, the obligation to hire trainees at full compensation lacks any possibility for meaningful enforcement.
Furthermore, sheltered workshops represent a poor means of training even if those safeguards become enhanced. According to a 2011 analysis published in the Journal of Vocational Rehabilitation, individuals with intellectual disabilities who spent time in sheltered workshops before moving into integrated employment face worse employment outcomes (lower earnings, higher service-provision costs) than individuals with comparable disabilities who did not spend time in sheltered workshops (Cimera, 2011). A subsequent analysis published in the journal Autism employing the same data set found the same result for autistic adults (Cimera, Wehman, West, & Burgess, 2011). The rate of transition from sheltered workshop settings into integrated employment is exceedingly low (GAO, 2001). For these reasons, we urge OFCCP to close this loophole and specifically prohibit the use of sheltered workshop sub-contracts as a means for contractors to meet affirmative action obligations.
The Autistic Self Advocacy Network