By Tracy M. Billows and Craig B. Simonsen
The Equal Employment Opportunity Commission recently published an Advance Notice of Proposed Rulemaking (ANPR) to invite the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).
It may not be a coincidence that the publication by the Commission of the ANPR comes on top of the U.S. Department of Justice’s recent expression of its aggressive enforcement agenda on the obligation of public accommodations to ensure effective communication with individuals with disabilities. On April 10, 2014, the DOJ filed a Statement of Interest in a pending case to support the plaintiff’s position that retailers must provide a means for blind customers to independently input their personal identification numbers (PIN) at point of sale devices (POS) when making purchases using a debit card.
While the model employer of individuals with disabilities provisions of Section 501 require affirmative action and nondiscrimination in employment by federal agencies, what the EEOC determines to be best practices for federal agencies will be a preview of how it will handle private sector disability claims and charges. Current regulations, impose an obligation on federal agencies to be “model employers” of individuals with disabilities, but do not explain what federal agencies must do to comply with this obligation.
Similarly, the EEOC’s Management Directive 715 (EEO MD-715) on the topic provides little guidance. While providing an outline (may not discriminate; take proactive steps; regularly evaluate), the Directive, like the regulations, do not explain what exactly the model employer obligation entails.
With the publication of the ANPR the Commission has proposed to revise its regulations to include a more detailed explanation of the model employer obligations. The ANPR allows interested parties and the public to provide input on what the amended regulations should say.
The EEOC model employer rulemaking specifically applies to federal employers. However, private employers that submit bids for federal work or that do contracting on federal projects will be impacted by what the final regulations require. And, as noted above, this will also impact the EEOC’s handling of disability claims generally.
The Commission has invited comments from all interested parties. Written comments are due on July 14, 2014.
The EEOC continues to make protecting individuals with disabilities a top priority. Employers much vigilantly review policies, procedures and practices to ensure they are acting as a “model” employer.