The OFCCP Is at It Again — Revision to Compliance Requirements Is a “Game Changer”
Written by: Daniel A. Kaplan
Under the Obama administration, many Department of Labor agencies have stepped up their non-discrimination enforcement activities. The Office of Federal Contract Compliance Programs (OFCCP) (http://www.dol.gov/ofccp/) has stepped up enforcement even more than most. The latest OFCCP effort is a revision to the regulations on affirmative action for employers as it relates to persons with disabilities. On November 30, 2011, the Office of Management and Budget (OMB) (http://www.whitehouse.gov/omb) approved a Notice of Proposed Rulemaking (NPRM) that outlined the OFCCP’s revision, which OFCCP Director Patricia Shiu (http://tinyurl.com/c46drgq) suggested was going to be a “game changer.” On December 9, 2011, the OFCCP published its proposed revisions in the Federal Register (http://tinyurl.com/dy8jctm).
By publishing in the Federal Register, the OFCCP has commenced the period of solicitation of public comment. Public comments on the proposed revisions must be received by February 7, 2012.
The proposed revisions make a number of changes, the highlights of which include the following:
- Requiring federal contractors and subcontracts to set a hiring goal that seven percent of their employees be workers with disabilities in each job category.
- Requiring all contractors to invite applicants to voluntarily self-identify as an “individual with a disability” at the time of application, after an offer of employment has been extended, and to employees on an annual basis in a confidential and anonymous manner. The OFCCP is going to provide contractors with specific language to be used for this purpose.
- Require contractors to maintain records on the number of individuals with disabilities who apply for positions and the number of such individuals who are hired.
- Require all contractors to have formal, written reasonable accommodation policies and procedures.
- Require contractors to engage in a minimum of three specific types of outreach and recruitment efforts and to review effectiveness on an annual basis.
- Require contractors to review on an annual basis their personnel processes, as well as physical and mental job qualifications, as it relates to persons with disabilities.
The proposed revisions are the first with respect to the regulations implementing Section 503 of the Rehabilitation Act of 1973 41 C.F.R. §§ 60-741 and, given the OFCCP’s enhanced “enforcement approach,” this is probably a game changer for many employers.
Court Rules Severe Obesity Is a Disability Under the ADA
Written by: Scott P. Inciardi
Is a severely overweight employee entitled to accommodation rights and discrimination protections under federal law or would the employee need to show that he or she suffered from an underlying disorder that caused the obesity? Although courts have disagreed on this issue, a federal court this month ruled that severe obesity qualifies as a disability under federal law.
The case involved an employee with a severe weight problem. The employee, who supervised the employer’s day care program, weighed more than 400 pounds when she was hired by the employer in 1999, and her weight later exceeded 500 pounds. In 2006, the employee received a performance evaluation rating her quality of work as “excellent.” Nevertheless, the employee claimed that in 2007 she was called into her supervisor’s office and informed she was being terminated due to her “limited mobility” and concerns that she would have difficulty administering CPR. The employee filed a charge with the EEOC claiming that her termination violated the ADA. The employee later died due to complications from morbid obesity, but the EEOC filed suit in a Louisiana federal district court against the employer on behalf of her estate.
One of the principal issues in the case was whether the employee’s severe obesity qualified as a disability under the ADA. The EEOC, citing its own compliance manual (http://tinyurl.com/pw7xx), argued that, while, in general, being overweight does not qualify as a disability, persons with “severe obesity” (defined by the EEOC as body weight more than 100 percent over the norm) are disabled within the meaning of the ADA. The employer disagreed and argued that the EEOC had to prove that the employee’s obesity was caused by an underlying physiological condition (such as a cardiovascular, respiratory, or musculoskeletal ailment), not merely that she was severely obese.
The District Court sided with the EEOC and held that the case could proceed to trial. The Court noted that some federal circuit courts of appeal required that an employee’s obesity be caused by an underlying physiological condition in order to qualify as a disability and dismissed claims by obese plaintiffs who could not meet this standard. This Court, however, decided to follow the EEOC’s approach and held that an employee suffers from a disability when he or she is severely obese, regardless of whether the employee can show that a physiological disorder caused the obesity.
As noted above, some federal courts do hold severely overweight employees are not disabled unless they can show there is an underlying disorder that has caused them to be overweight. However, the EEOC continues to take the position that, when an employee’s weight is outside the “normal” range (more than 100 percent of the norm) the employee is disabled regardless of whether there is an underlying physiological condition. The Louisiana District Court’s decision this month bolsters the EEOC’s position.
Employers fielding accommodation requests from overweight employees should be aware of this issue and consider consulting legal counsel in borderline cases.
Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.
