NOTE:  EEO LOGIC/EEO GUIDANCE RESPONSE COMMENTS:  Surprised at this commentary by the EEOC, our rebuttal is that we do not encourage a company to settle complaints when they are absolutely not guilty.  However, that said, before you argue aginst a complaint, be sure that there is absolutely no guilt whatsoever.  Often, where there is smoke, there is some sort of fire.  We also encourage mediation - in an effort to resolve the complaint in a win-win manner.  Complaints are not always filed for monetary relief...very often they are filed because of harassment or unfair treatment and the complainant simply wants to work in a respectful environment...free from the harassing behavior.  These complaints are often settled through mediation.  As a responding company, you should look at each complaint individually and decide it this is something you can and need to settle.  If the workforce believes they can and will get a "bonus" check automatically by filing a complaint, there is no doubt the abusers will find their way out to the EEOC's 1-800 number. 

Most Recent Updates to the New Racial Categories (see the most recent update at bottom of this paragraph)

2004:   The OFCCP and DOL has released the special EEO Tabulation file from the 2000 Census. OFCCP is requiring all contractors who use the special EEO Tabulation to begin using this new data for all AAPs effective January 1, 2005 and later; however, this has not been confirmed with written requirements. The 2000 census introduced a new set of race codes as well. In order to be ready and compliant by January 1, 2005, it is recommended that those who are required to report for federal government purposes begin immediately tracking all personnel transactions (applicants, hires, promotions, and terminations) using the new race codes, and to prepare to re-poll their workforce for race identification based upon these new codes. Please note an important change to the definition of Hispanic: Hispanic is now considered to be an ethnicity, not a racial category. Employees and applicants will be allowed to select 1 or more races on the disclosure form. If an employee or applicant indicates Hispanic ethnicity, they will be considered "White Hispanic" for all tracking requirements if they have also selected only White as a race. If an employee or applicant indicates Hispanic ethnicity and any race combination (including no race selections) other than White only, they will be considered "Other Hispanic or Latino".
The New Race/Ethnicity Tracking Categories:
White Alone non-Hispanic
White Alone Hispanic
Black Alone non-Hispanic
American Indian/Alaskan Native Alone non-Hispanic
Asian Alone non-Hispanic
Native Hawaiian/Other Pacific Islander Alone non-Hispanic
Black & White non-Hispanic
American Indian/Alaskan Native & White non-Hispanic
American Indian/Alaskan Native & Black non-Hispanic
Asian & White non-Hispanic
Other 2+ Races or Some Other Race non-Hispanic
Other Hispanic or Latino

_____________________________________________________

THE 2007 APPLICANT TEAR OFF SHEET FOR SELF IDENTIFICATION OF GENDER, ETHNIC, AND RACE is found below.  Feel free to copy this information for your applicant tracking needs.   (Cut and paste into Word document - Change bullets to boxes or lines to be checked by applicants)

EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION STATISTICS

______________ is an Equal Employment Opportunity Employer

The information below is required by state and federal regulations for statistical and affirmative action purposes and does not influence employment decisions.  This page is separated from your application immediately upon being received, and will be kept confidential.  This form is to be completed voluntarily and failure to do so will not have an effect on the application process. 

Sex: (please check one):      

• Male
• Female

Ethnic Group:  (please check one):

• Hispanic or Latino – all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race (if you have selected this category, you have completed this form - please DO NOT select from the below racial list)
• Non-Hispanic/Latino (if this category is checked, please select from the racial groups found below)

_____________________________________________________________________ 

Racial Groups:  If Non-Hispanic/Latino was selected above, please check one of the below race categories:

• White (Not Hispanic or Latino):  all persons having origins in any of the original people of Europe, North Africa, or the Middle East
• Black or African American (Not of Hispanic origin): All persons having origins in any of the black racial groups of Africa
• Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino) – any persons having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands
• Asian (Not Hispanic or Latino) – all persons having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam
• American Indian or Alaskan Native (Not Hispanic or Latino) - all persons having origins in any of the original peoples of North or South America, and who maintain cultural identification through tribal affiliation or community attachment
• Two or More Races (Not Hispanic or Latino) – all persons who identify with more than one of the above races 

Thank you

This information is submitted voluntarily, will be kept confidential, will be exclusively utilized for EEO statistical gathering and compliance purposes, and will not influence the application or hiring process

EEO GUIDANCE, Inc./EEO Logic, LLC – www.eeologic.com

__________________________________________

Updates to the New Racial Categories (see the most recent (September 2005) update at bottom of this paragraph)

2004:   The OFCCP and DOL has released the special EEO Tabulation file from the 2000 Census. OFCCP is requiring all contractors who use the special EEO Tabulation to begin using this new data for all AAPs effective January 1, 2005 and later; however, this has not been confirmed with written requirements. The 2000 census introduced a new set of race codes as well. In order to be ready and compliant by January 1, 2005, it is recommended that those who are required to report for federal government purposes begin immediately tracking all personnel transactions (applicants, hires, promotions, and terminations) using the new race codes, and to prepare to re-poll their workforce for race identification based upon these new codes. Please note an important change to the definition of Hispanic: Hispanic is now considered to be an ethnicity, not a racial category. Employees and applicants will be allowed to select 1 or more races on the disclosure form. If an employee or applicant indicates Hispanic ethnicity, they will be considered "White Hispanic" for all tracking requirements if they have also selected only White as a race. If an employee or applicant indicates Hispanic ethnicity and any race combination (including no race selections) other than White only, they will be considered "Other Hispanic or Latino".
The New Race/Ethnicity Tracking Categories:
White Alone non-Hispanic
White Alone Hispanic
Black Alone non-Hispanic
American Indian/Alaskan Native Alone non-Hispanic
Asian Alone non-Hispanic
Native Hawaiian/Other Pacific Islander Alone non-Hispanic
Black & White non-Hispanic
American Indian/Alaskan Native & White non-Hispanic
American Indian/Alaskan Native & Black non-Hispanic
Asian & White non-Hispanic
Other 2+ Races or Some Other Race non-Hispanic
Other Hispanic or Latino

_________________________________________________________

DOL RELEASES NEW EMPLOYMENT LAW GUIDE FOR EMPLOYERS

September 2005 ~ The U.S. Department of Labor (DOL) announced the availability of an
updated version of the Employment Law Guide. Located at
www.dol.gov/compliance/guide , this publication helps the regulated
community, particularly small businesses, understand their rights
and responsibilities under the major federal employment laws
administered by the Department.

Updated to reflect recent regulatory and statutory changes, the new
Employment Law Guide summarizes coverage, basic requirements,
employee rights, compliance assistance available and penalties for
non-compliance for each of DOL’s most widely applicable laws.
Written in plain language - not legalese - it is geared toward
employers needing introductory information to develop wage,
benefit, safety and health, and nondiscrimination policies for
their businesses.

The Guide will be available in print, for free, in October. To
order a copy, call DOL’s Toll-Free Help Line at 1-866-4-USA-DOL.
The Spanish version will be available online at
www.dol.gov/compliance/guide/ and in print later this fall.

____________________________________________________________

EEOC WORKING ON SYSTEM FOR ELECTRONIC FILING OF EEO-4

July 18, 2005 ~ The EEOC (EEOC) approved a plan to develop a system that

would allow public employers to file their EEO-4 survey responses electronically.

The EEO-4 survey is one of the series of Standard Form 100 documents
designed to collect demographic information about America's
workforce. While the EEO-1 form is used for private employers,
the EEO-4 form is used for state and local governments. EEO-1
forms must be filed each year. The public sector form is required
only every other year.

This is one of the years governments will have to complete EEO-4
documents. In the past, forms were mailed to the Joint Committee
on Reporting in Virginia. While that is expected to remain an
option, the EEOC says it wants to move to electronic submission
because it will save money for the agency. If the government
does not have to enter data sent in on paper documents, they
can eliminate a step in the data analysis process.

The Commission objective is to have the new system ready to capture
this year's data which is due by September 30th. Government entities should expect to receive more information with their
EEO-4 instructions.

EEOC REVISES TIMELINESS GUIDELINES FOR FILING EMPLOYMENT
DISCRIMINATION CHARGES

The Equal Employment Opportunity Commission last Thursday released revised 
guidelines on "threshold issues", addressing time limitations on filing
charges of employment discrimination with the Commission.

Under the new guidelines, a discrimination charge's timeliness is different
for a discrete act or a hostile work environment claim. Now, "a discrete act
is only independently actionable if it occurred within the filing period. In
contrast, all of the incidents that make up the same hostile work environment
claim are actionable as long as at least one incident occurred within the
filing period," according to an EEOC press release.

"This update to the EEOC's Compliance Manual clarifies an important aspect
of threshold issues in light of recent legal developments . It explains how
the time frames are applied to discrete acts, such as failure to hire or
termination, and to hostile work environment claims," said EEOC Chairman Cari
Dominguez.

The new guidelines conform to the Supreme Court's decision in National
Passenger Corp. v Morgan, 536 U.S. 101 (2002) and can be found the EEOC's Compliance Manual at: http://www.eeoc.gov/policy/compliance.html 

How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers AND Questions & Answers About Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act
Summary of these EEOC Guides can be found at their website: 

Restaurants:  http://eeoc.gov/facts/restaurant_guide.html

Intellectual Disabilities:  http://eeoc.gov/facts/intellectual_disabilities.html

Does Your Facility Qualify?
The EEOC has announced the Freedom to Compete Award, which is associated with the Freedom to Compete Initiative - a national outreach, education and coalition-building campaign to emphasize the importance of providing free and unfettered access to employment opportunities for all individuals. The initiative was launched by Chair Cari Dominguez in 2002. Its central theme is that employees and applicants deserve the opportunity to compete on a level playing field, and advance in the workplace as far as their talents and abilities will take them, without regard to discriminatory barriers based on race, color, gender, religion, national origin, age or disability. As part of the initiative, the EEOC has been forging strategic alliances and partnerships with CEOs, employer associations, and a cross-section of other stakeholders to influence positive change in the workplace.
With this award, the EEOC seeks to showcase, recognize, and reward specific practices and concrete activities that produce results and reflect an abiding commitment to access and inclusion in the workplace. The award will recognize excellence in the implementation of specific equal employment opportunity practices that the Commission believes can be emulated by other employers or organizations. This distinguished award will honor individuals and organizations whose extraordinary efforts embody the theme of the Freedom to Compete Initiative.

For more information, you can review the EEOC's website at: http://eeoc.gov/initiatives/compete/award/qanda.html

Offer of resolution doesn't limit attorney's fees
An EEOC administrative judge correctly determined a tractor operator was subjected to retaliation for asserting she was sexually harassed. Further, the agency's offer of resolution was invalid. Under 29 CFR 1614.109(c)(3), an agency may limit its liability for attorney's fees if it makes an offer of resolution at least 30 days prior to the hearing. Here, the offer was invalid because it did not specify nonmonetary relief and was made after the liability hearing. Pearman v. Department of Defense, Department of the Navy, 104 LRP 56826.

OFCCP COLLECTS $34.5 MILLION IN FISCAL 2004

The Office of Federal Contract Compliance Programs (OFCCP) collected
financial remedies of $34.5 million for victims of employment
discrimination during fiscal year 2004, an increase of 31 percent
over the previous year. The financial remedies, which included $10.7 million in back pay and interest, benefited some 10,400 minority, female, disabled, and
veteran workers, according to statistics released by the agency.

According to Charles James, Director of OFCCP, "We set out to go
after the worst of the worst and to help the most people -- and we
achieved that goal. From an enforcement perspective, we had a great
year." The agency conducted 6,529 compliance evaluations during the last
fiscal year, ended September 30th. The number of evaluations of
federal contractors was down from 7,700 a year earlier. However,
the evaluations covered 3 million workers -- up from 2.5 million
a year earlier and more than any in at least the past decade.
"We had a focus on larger cases and getting more people covered,"
James said.

UPDATES IN EEOC AND OFCCP - Dec. 2004

OFCCP BEGINS SENDING FCSS LETTERS TO CONTRACTORS
December 2004

OFCCP started mailing pre-scheduling notification letters to federal contractors. 
Earlier this year, OFCCP announced the design of a new system
for determining which federal contractors would be audited for
affirmative action and non-discrimination compliance. Although
the OFCCP has not explained specifics relating to the Federal Contractor
Selection System (FCSS), it has begun the implementation process.

Charles James, Director of the OFCCP, stated that the first wave
of more than 1,700 FCSS letters would be mailed to the contractors
suspected to have the most serious problems with either affirmative
action plan (AAP) compliance or Equal Employment Opportunity (EEO)
compliance. The letters are simply notification to contractors
that one or more of their establishments could be audited during the
coming calendar year. Mr. James reported that OFCCP has
identified more than 3,600 establishments for compliance reviews
during the current fiscal year which began October 1, 2004.

Mr. James has imposed a limit of 25 compliance reviews for any one
contractor in any single year. For smaller contractors with only
one establishment, that will not be much of a help. Supposedly, contractors who do not receive this notice will not be scheduled for a review (although there is speculation that problems such as a class action complaint may trigger an audit).

We recommendation is that you contact anyone in your company who might receive the FCSS letter, to ensure it doesn't slip through the cracks...then call us if you need assistance.  Better yet, contact us well before you receive the letter. 

Three NEW items of interest to federal contractors re: OFCCP are found below:
November 2004

OFCCP'S EMPLOYMENT RESOURCE REFERRAL DIRECTORY

November 16, 2004 - The Office of Federal Contract Compliance Programs (OFCCP) has developed an Employment Resource Referral Directory that lists governmental and
non-governmental not-for-profit organizations as references to assist hiring of qualified applicants by contractors. The directory is intended to enhance access to various programs that assist in providing job referral services to veterans, individuals with disabilities, women and minority groups. The purpose is to facilitate contractor compliance, increase the usefulness of resource organizations to the contractor community and reinforce the OFCCP Linkage Program.
HOW DO I FIND A COPY OF THE DIRECTORY?
Below are the links to each OFCCP Region's portion of the Directory:
(These are PDF documents, so you will need to have Adobe's PDF Reader installed on the machine you use to access the documents.)

* Mid-Atlantic Region <http://www.dol.gov/esa/ofccp/ERRD/errd_mdatl.pdf>
* Midwest Region <http://www.dol.gov/esa/ofccp/ERRD/errd_mw.pdf>
* Northeast Region <http://www.dol.gov/esa/ofccp/ERRD/errd_ne.pdf>
* Pacific Region <http://www.dol.gov/esa/ofccp/ERRD/errd_pac.pdf>
* Southeast Region <http://www.dol.gov/esa/ofccp/ERRD/errd_se.pdf>
* Southwest Region <http://www.dol.gov/esa/ofccp/ERRD/errd_sw.pdf>

Any organization that wishes to get on the Referral List should submit its name, address and brief description of its goals and activities to the OFCCP National Office. The address is provided below:

U.S. Department of Labor
Employment Standards Administration
Office of Federal Contract Compliance Programs
200 Constitution Avenue, NW
Room C-3310
Washington, DC 20210

You may also contact OFCCP by sending an e-mail message to:
OFCCP-Public@dol.gov or by sending a fax. The Fax telephone
number is (202) 693-1304.

________________________________________________

Small Contractor Affirmative Action (AAP) Job Group Availability Determinations

Federal contractors are required to establish AAP job groups and compare their employment of minorities and women within those job groups to the availability of minorities and women who are "available" for employment. Job groups are jobs that are grouped based on three factors: 1) similar wages; 2) similar job duties and responsibilities; and 3) similar opportunities for training, promotion, transfer, and other employment benefits. Each job title in an establishment should be placed into a job group. These are called "AAP Job Groups."
Smaller contractors (contractors with fewer than 150 employees), however, may formulate their AAP job groups according to EEO-1 job categories. A description of and occupation examples in each of the nine EEO-1 job categories are available on the Equal Employment Opportunity Commission's website: www.eeoc.gov
In order to make the job group-availability comparison, federal contractors must conduct availability analyses to determine the percentage of women and minorities who have the skills required to perform the jobs within the each job group. The purpose of the availability analyses is to estimate the percentage of minorities and women among those qualified for employment for each job group. Availability involves calculation of minorities and women who are "available" to work in the job from both external sources (i.e., hired from outside the company) and internal sources (e.g., transfer or promotion of existing employee in the company).
For calculating "external" availability, you want to consider who is qualified for the job within "the reasonable recruitment area" for that job. The "reasonable recruitment area" represents the area from which a contractor usually seeks or reasonably could seek workers for a particular job group. The reasonable recruitment area availability may be determined using the Total Civilian Labor Force data (residence geography data) reported in the Census 2000 Data Tool on the Census Bureau website: http://www.census.gov/eeo2000/index.html
Please note that the regulation 41 CFR 60-2.14(d) require contractors to use the most current and discrete statistical data available in determining availability estimates. Census data is one example of an appropriate source of statistical information. Other sources include data from local job service offices and data from colleges or other training institutions.
Internal availability involves the percentage of minorities and women inside a contractor's workforce who are considered promotable, transferable and trainable for a particular job group. This means the percentage of minorities and women who are in "feeder" jobs or job groups who are (at the start of the AAP year), or who will become (during the AAP year) promotable or transferable from a current job or job group into another job group. This factor also requires an assessment of the number of employees who could, with appropriate training (that a contractor is reasonably able to provide), become promotable or transferable during the AAP year.
OFCCP recommends weighting the external percentage factor and the internal percentage factor by historical usage patterns to reflect the proportion of incumbents hired or to be hired from external sources and the proportion from internal sources. For example, in entry job groups, you may always hire from outside. The external factor will therefore become the entire availability. For other job groups, you may have hired from the outside 10% of the time over the last several years, but promoted from the inside 90% of the time. Each of your availability factors should then be weighted accordingly i.e., in our example the external percentage is multiplied by 10% and added to the internal percentage after it has been multiplied by 90% to come up with a final availability percentage.
Small contractors that use the nine EEO-1 job categories as their job groups, may wish to use the Census 2000 "EEO-1 Job Categories" link to determine their external availability estimates. This link can be accessed via the Census 2000 Data Tool at: http://www.census.gov/eeo2000/index.html
At the top of the page are several links under the heading "Choose the Tables You Want To Display." Simply click the fifth circle to select "Employment by EEO-1 Job Categories".
Go to the second part of the page to Select Geography. The screen defaults to "Residence: Data based on where people live." This category presents civilian labor force data. Click "Next" at the bottom of the page.
A new screen appears where you are directed to select one of the following levels of geography (U.S. Total; States; Metropolitan Areas; Counties; and Places 50,000+). The geographic area you select must be based on the reasonable recruiting area for the AAP job group under consideration. Small contractors typically use the local area, a metropolitan area, a county or sometimes the State depending on the reasonable recruiting area for the specific job group. Make the selection that is most appropriate for the job group.
For example, if you select the "Metropolitan Areas" and then click "Next", you will see a list of metropolitan areas. Select the one for your area and then click "Next" again.
Once the appropriate EEO-1 Job Category is selected, go to the "Select Race Categories To Display" and click the second circle indicating "Show White, Non-Hispanic/All Others". After you have made your selection, click "Display Table" at the bottom of the screen.
The new screen displays two tables. The top table displays population data and the bottom displays percentages . Minority availabity estimates may be determined using the percentages reported for All others, including Hispanics. Female estimates are displayed on the table.

EEOC Outsourcing EEO Technical Assistance Complaint Calls

The EEOC is running a pilot program to outsource its initial intake function -- a key function that determines which complaints will be investigated.

The EEOC awarded to Pearson Government Solutions a contract for a pilot National Contact Center to begin operating in spring 2005, following a six-month planning and training period. The center is intended to enhance customer service in responding to an estimated one million or more unsolicited inquiries received by the Commission each year.
"Pearson Government Solutions is ideally equipped to rapidly move the EEOC, in terms of public access and front line communications, into the 21st century," said Commission Chair Cari M. Dominguez. "By partnering with a company prepared to deliver the outstanding service and cutting edge technology options that our customers expect and deserve, the Commission will vastly improve both our professional face to the public and, in turn, our full range of operations. Between Pearson's strong proposal and its impressive track record, I am confident that we have made an excellent choice."

The EEOC website indicates: Through the National Contact Center, the public will gain a central EEOC point of contact offering expanded hours of operation (8:00 a.m. and 8:00 p.m. Eastern Time); informed customer service personnel; support for up to150 languages; an automated system with answers to frequently asked questions accessible on a 24-hour basis; the ability to submit inquiries via electronic mail; and the assurance that inquiries will be tracked for follow-up. The center also will be invaluable to the Commission in identifying and responding to workplace trends and emerging patterns of employment discrimination. Individuals requiring assistance beyond general information will be referred to appropriate EEOC staff for counseling, guidance, and action. Additionally, the establishment of a National Contact Center will allow EEOC staff at headquarters and 51 field locations to focus more on responsibilities relating to charge intake, investigations, mediation, litigation, and outreach to employers and employees.

Pearson's contract calls for a two-year trial at a cost of $4.9 million. Under the terms of the contract, the National Contact Center will provide employees who speak English and Spanish and will sub-contract with interpreters who are fluent in 148 other languages.
Opponents of the National Contact Center say that outsourcing the first response of any law-enforcement agency will further harm victims of workplace discrimination. Critics also question whether the call-center employees who answer the phones will be adequately trained in discrimination and civil-rights laws. Pearson’s cost, critics contends, could have been spent in-house to ensure an adequate first response. “Creating a private centralized call center staffed with low-paid contract workers who will serve as a first screen to victims of employment discrimination will not help us serve …" said Stuart J. Ishimaru, EEOC commissioner, when the EEOC voted in September to approve the Pearson contract.
After Pearson’s two-year contract is up, the EEOC will have the option of continuing the contract with Pearson for three additional years.

You can get Dept. of Labor Updates via E-mail

The US Department of Labor is making an effort to get information (laws, regulatory changes, etc.) to you timely through a free e-mail subscription offer. To get signed up for this service all you need is a minute or two and an e-mail address.  Go to the DOL website at: http://www.dol.gov/ - look to the right of the home page and click on "Subscribe to E-mail Updates" - provide your e-mail address and a password (if you wish). The site then asks you to sign up for specific updates you would like to receive. I doubt you will want all of them. This effort is the result of President Bush requiring federal agencies to become more accessible to the public through technology and the internet.  Be sure to sign up and spread the news to other companies and organizations. 

_______________________________________________________

The EEO-1 Joint Reporting Committee Representative has indicated the report for 2004 will NOT be changed.

The new categories for 2005 have not been published by EEOC.  Businesses should receive the 2004 EEO-1 forms in July and they should be completed as usual on Sept 30th. 

Census 2000 Special EEO File (from DOL website) - March 2004
Notice on OFCCP's Use of Census 2000 Special EEO File For Determining Reasonableness of Availability Determinations

One of the requirements of an affirmative action program is determining availability of qualified minorities or women for job openings. Availability is defined as "an estimate of the number of qualified minorities or women available for employment in a given job group, expressed as a percentage of all qualified persons available for employment in the job group." 41 CFR 60-2.14 (a). "The purpose of the availability determination is to establish a benchmark against which the demographic composition of the contractor's incumbent workforce can be compared in order to determine whether barriers to equal employment opportunity may exist within particular job groups." Id. Job groups are groupings of "jobs at the establishment with similar content, wage rates, and opportunities." 41 CFR 60-2.12(b). "Similarity of content refers to the duties and responsibilities of the job titles which make up the job group. Similarity of opportunities refers to training, transfers, promotions, pay, mobility, and other career enhancement opportunities offered by the jobs within the job group." Id.
OFCCP regulations further require that "[t]he contractor must use the most current and discrete statistical information available to derive availability figures." 41 CFR 60-2.14 (d). "Examples of such information include census data, data from local job service offices, and data from colleges or other training institutions." Id.
Contractors frequently use U.S. Census Bureau data to determine availability and OFCCP relies on Census data to assess whether a contractor's availability determination is reasonable. Because OFCCP uses Census data it is part of a Federal Consortium consisting of the Equal Employment Opportunity Commission (EEOC), the Department of Justice, and the Office of Personnel Management that entered into a reimbursable agreement with the Census Bureau to construct the Census 2000 Special EEO File according to specifications developed by the Consortium. The Census 2000 Special EEO File was released to the public on December 29, 2003. This data file, which contains information on 472 occupations, is similar to comparable files from the 1970, 1980 and 1990 censuses.
The Census 2000 Special EEO File data is available under the "Access to Data from the Special EEO Tabulation" link on the Census Bureau's website at: http://www.census.gov/hhes/www/eeoindex.html (cut and paste)
Contractors who use the Special EEO File to determine availability may begin using data from the Census 2000 Special EEO File immediately. However, OFCCP recognizes that some contractors have already prepared their AAPs for 2004 based on earlier census data, which was the most current data available at the time they developed their AAPs. OFCCP will provide contractors using Special EEO File census data time to update their AAPs. OFCCP will expect all contractors who use census data to determine availability estimates to use data from the Census 2000 Special EEO file to complete their AAPs for 2005. OFCCP will begin to use data from the Census 2000 Special EEO File to assess the reasonableness of the contractor's availability determinations beginning with AAP years that commence on or after January 1, 2005.

________________________

Note to Government Agencies(1/2004): 

AGENCIES HAVE 45 DAYS TO REIMBURSE JUDGMENT FUND WHEN MAKING PAYMENTS UNDER THE NO FEAR ACT, AND MUST POST INFORMATION CONCERNING DISCRIMINATION COMPLAINTS BY JANUARY 31ST, ACCORDING TO NEW OPM RULES

_________________________________________

OFCCP POLICY DIRECTIVES     

OFCCP Directive
Transmittal Number: 262
DATE: March 17, 2003
OFCCP ORDER NO.: ADM Notice/JUR
SUBJECT: Coverage of health care providers based on their relationship with participants in the Federal Employees Health Benefits Program (FEHBP).
PURPOSE: To confirm that health care providers having a relationship with FEHBP participants are not covered under OFCCP's programs based solely on that relationship.
BACKGROUND: On January 31, 2003, the Administrative Review Board (ARB) issued a final decision unfavorable to OFCCP and ordered that the agency's Administrative Complaint be dismissed. The ARB upheld an earlier ruling by the Administrative Law Judge concluding that the contract between OPM and Blue Cross did not obligate Blue Cross to provide medical services and supplies to government employees. Rather, the contract obligated Blue Cross to provide health insurance. A copy of the ARB's decision is attached.
In October 1996, OFCCP filed an administrative complaint against Bridgeport with the Office of Administrative Law Judges (ALJ) alleging that Bridgeport had violated its contractual obligations under OFCCP regulations when it refused to maintain and submit to OFCCP affirmative action plans (AAPs). Bridgeport asserted that it was not required to maintain AAPs because it was not a covered Federal subcontractor. OFCCP argued that Bridgeport was a covered Federal subcontractor when Bridgeport provided medical services and/or supplies to persons receiving health care benefits under a Blue Cross plan. Blue Cross held a prime contract with the OPM under the Federal Employees Health Benefits Program (FEHBP).
OFCCP regulations define a covered subcontract as an agreement (1) between a prime contractor and a person for the purchase, sale or use of personal property or nonpersonal services which are necessary in whole or in part to the performance of the Government contract, or (2) under which any portion of the contractor's obligation to the Government is performed, undertaken or assumed. 41 CFR 60 1.3.
On cross motions for summary judgment, the ALJ, on January 21, 2000, ruled in favor of Bridgeport, holding that the hospital was not a covered Federal subcontractor. Specifically, the ALJ found that Bridgeport was not covered under either OFCCP definition of subcontractor under 41 CFR 60-1.3. Bridgeport held a reimbursement agreement with Blue Cross. Blue Cross was to pay Bridgeport a predetermined fee when it supplied particular medical services and/or supplies to Federal employees covered by Blue Cross health insurance. The ALJ held that this type of reimbursement agreement between Bridgeport and Blue Cross was not necessary for Blue Cross to fulfill its contractual obligations to OPM to provide medical insurance to Federal employees, nor did Bridgeport perform any portion of the Blue Cross/OPM prime contract. OFCCP filed exceptions to the ALJ's decision.
On appeal, the ARB upheld the ALJ's recommended decision that OFCCP's administrative complaint should be dismissed.
The ARB ruled that the prime contract between Blue Cross and OPM did not obligate Blue Cross to provide medical services to Blue Cross policyholders, but rather, that Blue Cross contracted with OPM to reimburse the policyholders for medical care costs. The ARB did not, however, specifically address whether Bridgeport's obligation to provide medical services to Blue Cross enrollees was "necessary" to the performance of the Blue Cross/OPM contract (to provide medical insurance), or whether it constituted partial performance by Bridgeport of that prime contract. Unlike the ALJ, the ARB expressly declined to address either subcontractor coverage issue, ruling instead that those two questions did not have to be addressed on appeal, not because OFCCP's first argument had failed, but because Blue Cross was not obligated to OPM to provide its enrollees with medical care.
Based on the ARB decision, the Office of the Solicitor (NSOL) has advised that OFCCP cannot establish subcontractor coverage of hospitals, pharmacies or other medical care providers based on the existence of prime contracts with Blue Cross or other FEHBP providers. Accordingly, NSOL, by memorandum dated February 5, 2003, has instructed its regional offices to close twelve pending agency enforcement referrals raising the Bridgeport coverage issue and to return those files to OFCCP.
POLICY: Based on the ARB decision, OFCCP cannot use FEHBP coverage as a basis to assert jurisdiction over a health care provider. Coverage over such a provider may be established by other means such as a contractual relationship with the U.S. Department of Veterans' Affairs or the Department of Defense. Coverage may also be established for a teaching hospital doing research for a university that has a contract with the Federal government. If you have questions regarding coverage of a medical care provider during the scheduling process you may contact the Division of Program Operations (DPO) for further guidance and assistance.
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OFCCP Directive
Transmittal Number: 247
DATE: May 24, 2001
OFCCP ORDER NO.: ADM Notice/Other
SUBJECT: Outstanding Partnership and Liaison (OPAL) Award.
PURPOSE: (a) To outline the criteria and nomination process for the OPAL Award and (b) to solicit nominations for this award.
BACKGROUND: Beginning in 1992 the OFCCP presented an Industry Liaison Group with an EVE Award during the EVE/EPIC/Opportunity 2000 Award Ceremony to honor that group's commitment to equal employment opportunity in the workplace, and to recognize its support of the goals and mission of OFCCP. In 1996, the Deputy Assistant Secretary for OFCCP determined that the ILGs should be awarded a different award from the EVE because they are not Federal contractors or public interest groups and thus do not fall within the eligibility criteria for the EVE/EPIC/ Opportunity 2000 Awards. As a result, the Superior Achievement in Affirmative Action and Equal Employment Opportunity Award was established to honor the accomplishments of ILGs. This award became the Outstanding Partnership and Liaison (OPAL) Award in 2000. The nominating criteria are designed to fit the mission, objectives and goals of the Liaison Groups. Additionally, this award is presented at the Annual ILG Conference, not at the EVE/EPIC/Opportunity 2000 Awards Ceremony.
AWARD CRITERIA: The following criteria apply to the Outstanding Partnership and Liaison (OPAL) Award:
Nominee must show concrete accomplishments in the support of equal employment opportunity which were achieved by specific activities or projects of the ILG. The activity, for which the award is being sought, may be a single activity, or a multi-faceted activities program, including community based projects, directed towards changing the demographics of the workforce. The activity or event being considered for the award must have a substantial impact on enhancing equal employment opportunity. The activity should be considered a "best practice" that can be modeled by others to achieve positive results. It could be an educational activity if the impact of that activity was demonstrable and substantial.
Nominees must have demonstrated activity by the ILG, which "supports the mission of OFCCP" and made a substantial, positive contribution to the public understanding of equal employment opportunity.
ELIGIBILITY CRITERIA: Nominee must be a local ILG and may be nominated by an OFCCP Regional Director or may self-nominate. Self-nominations are to be submitted to the OFCCP Regional Directors.
NOMINATION AND SUBMISSION GUIDELINES: The following are guidelines for preparing the nomination document:
Nomination submissions should be limited to the relevant information and should include the following data: nominee's accomplishments, how those accomplishments promote equal employment opportunity, and the length of time of the project.
Provide the following data on nominee: name and address of the group; name, address and title of the highest ranking official; and the name, address, title and telephone number of the contact person.
All nominations submitted to the National Office must be forwarded with a cover memorandum from the Regional Director. The memorandum should explain why the ILG is being nominated and should include appropriate support data substantiating the justification for the nomination. All self-nominations must be submitted to the appropriate Regional Director by June 5th of each year, reviewed by the Regional Director and forwarded with a cover memorandum and appropriate support documentation. Regional Directors will submit nominations for this award to the Deputy Assistant Secretary for Federal Contract Compliance, Attn: Director, Division of Management and Administrative Programs no later than June 15th of each year. Submissions should be addressed as follows:
Harold M. Busch
Acting Deputy Assistant Secretary
U.S. DOL/ESA/OFCCP
200 Constitution Ave., NW, Rm. C3310
Washington DC 20210
Attn: Director, DMAP
THE ADMINISTRATIVE PROCESS:
A team of OFCCP managers will review and evaluate each nomination. Upon completion of this process, the team will make recommendations to the Deputy Assistant Secretary who will make the final selection.
The nominee will be notified of their selection and provided with details regarding the presentation of the award.
The ceremony will be held during the annual ILG Conference. Date and time of the award presentation will be announced.
FILING INSTRUCTIONS:
File in the Administrative Binder under "Other." The Transmittal Sheet may be filed separately or discarded at your option.
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OFCCP Directive
Transmittal Number: 226
DATE: August 5, 1998
OFCCP ORDER NO.: ADM Notice
SUBJECT: Discontinuing the use of the Letter of Commitment.
PURPOSE: OFCCP is discontinuing the use of the letter of commitment (LOC) as a resolution document. The violations formerly incorporated into the LOC will be summarized in the closure letter. Discontinuation of the LOC will reduce burdens on OFCCP field staff because there will be no progress reports to monitor for minor, technical issues.
BACKGROUND: Historically, when OFCCP uncovered violations during compliance reviews (now one of four methods referred to as compliance evaluations, 41 CFR 60-1.20), a written agreement was used that provided for remedial action to correct the violations and/or deficiencies noted. Two types of agreements were used, conciliation agreements (CA) and letters of commitment (LOC).
A CA is used to resolve material (major, substantive) violations of any of OFCCP's three programs.
LOCs are different from CAs in that they are used to resolve minor technical violations which are generally correctable onsite within ten to fifteen working days after the compliance evaluation. Normally a show cause notice has not been issued when a LOC is used to correct such minor violations.
SIGNIFICANT CHANGES: OFCCP will continue to use the conciliation agreement as a resolution document. The attached Compliance Evaluation Closure Letter for Minor or No Violations replaces the LOC referred to in Chapter 8, Section 8E of the Federal Contract Compliance Manual (FCCM), as well as the Notice of Review Completion - Minor Deficiencies resolved in a Letter of Commitment, Figure 8-15, and addressed in Section 8B03(g)(2). It also replaces the letters currently used for review completion for supply and service and construction reviews when no deficiencies have been identified. Those letters are found at the end of Chapters 3 and 4 of the FCCM (Figures 3-5 and 4-2, respectively).
The closure letter which accompanies this Notice is to be used when there is no show cause notice and when any minor deficiencies are corrected and incorporated into the AAP, as appropriate, within ten to fifteen working days. A different version of the letter is to be used when there are no violations found during a compliance evaluation. The Compliance Evaluation Closure Letter for Minor or No Violations is to be signed by the DD or ADD.
OFCCP anticipates making additional changes to the Manual over the next several months. During that process we will modify the numerous references to the LOC throughout the Manual. In the interim, disregard the references to the LOC; the Notice of Review Completion - Minor Deficiencies Resolved in a Letter of Commitment; the Notice of Review Completion Format, No Deficiencies Found (Supply and Service); and the Letter of Review Completion Format, No Deficiencies Found (Construction) that are currently in the Manual.
FILING INSTRUCTIONS: Whether any work at the facility directly or indirectly supports or contributes to the satisfaction of the work performed on a Government contract;
Holders of ADM and LEG Binders only: File this Notice with the attachment behind the "Other" tab in your Administrative Practices Binder.
District and Area Office EOSs and EOAs only: File this Notice with the attachment behind the tab for ADM Directives in your FCCM Binder.
OBSOLETE DATA: Letters of commitment and references to letters of commitment.
ATTACHMENTS: Compliance Evaluation Closure Letter for Minor or No Violations.
Attachment:
COMPLIANCE EVALUATION CLOSURE LETTER
FOR MINOR OR NO VIOLATIONS
(Name of CEO)
(Title of CEO)
(Establishment Name)
(Street Address)
(City, State, Zip Code)
Dear (Name of Contractor Official):
Our recent compliance evaluation of your equal employment opportunity policies and practices at (name and location of the establishment reviewed) has been completed.
Select either Paragraph 2 or Paragraphs 3 and 4
(2)
During this compliance evaluation process we found no apparent deficiencies or violations of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, or the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212). This determination may be modified by the Regional Director, or by the Deputy Assistant Secretary for Federal Contract Compliance, within 45 days of the issuance of this letter.
(3)
During this compliance evaluation process we identified and resolved the following violation(s): [identify the minor violation(s) resolved during the review, including the appropriate regulatory citation and specific remedy]. Your representative, [name of company representative and title], agreed to future compliance on [date of verbal agreement with company representative], and incorporated corrective actions into your affirmative action program where appropriate. It is expected that this/these failure(s) to comply with the regulatory requirements will not be repeated. If they are repeated, we may determine that you have violated the Equal Opportunity Clause and initiate appropriate enforcement action. Based on these assurances by your representative, the review of your facility is closed.
(4)
We found no additional apparent violations of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, or the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212). This determination may be modified by the Regional Director, or by the Deputy Assistant Secretary for Federal Contract Compliance, within 45 days of the issuance of this letter.
[Optional]
The Office of Federal Contract Compliance Programs sincerely appreciates the cooperation and courtesies extended by you and your staff during the conduct of the compliance evaluation.
Sincerely,
DD/ADD
cc: (as appropriate)
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OFCCP Directive
Transmittal Number: 230
DATE: 12/22/98
OFCCPORDER NO.: FCCM NOTICE CH 2
SUBJECT: Evaluation procedures: compliance review, focused review, off-site review of records and compliance checks.
PURPOSE: To revise the Federal Contract Compliance Manual (FCCM) to include guidance on some of the compliance evaluation procedures authorized under 41 CFR 60-1.20(a), 60-250.60(a), and compliance reviews under 60-741.60.
BACKGROUND: The regulations implementing Executive Order 11246 at 41 CFR 60-1.20 authorize OFCCP to conduct compliance evaluations to determine if the contractor maintains nondiscriminatory hiring and employment practices and is taking affirmative action to ensure equal employment opportunity. A final rule revising the regulations implementing the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), 38 U.S.C. 4212, published on November 4, 1998, also adopts the compliance evaluation approach (63 FR 59630). The VEVRAA compliance evaluation procedures, which are found at 41 CFR 60-250.60, are effective January 4, 1999. The regulations implementing Section 503 at 41 CFR 60-741.60 do not yet specify the compliance evaluation approach found in 60-1.20 and 60-250.60. However, in the near future OFCCP intends to revise the Section 503 regulations to include the compliance evaluation approach, thereby conforming the provisions contained in the Section 503 regulations to 41 CFR 60-1.20 and 60-250.60.
The regulations at 41 CFR 60-1.20 and 60-250.60 provide that a compliance evaluation may consist of any one or a combination of the following investigative procedures: a compliance review; an off-site review of records; a compliance check; and a focused review.
Procedures for the compliance check evaluation method are set forth in Chapter 2T. Included in this attachment is a one page revision to the compliance check procedures issued September 10, 1998. The documentation collected when conducting a compliance check is requested under 41 CFR 60-1.12 and not under 60-250 or 60-741. Therefore, this page contains technical corrections to reflect this.
The regulations implementing Section 503 at 41 CFR 60-741.60 authorize OFCCP to conduct compliance reviews to determine whether the contractor is complying with its nondiscrimination and affirmative action obligations. Section 60-741.60 provides that the compliance review shall consist of a comprehensive analysis and evaluation of all relevant hiring and employment practices. The regulations implementing Section 503, however, do not contain rigid requirements regarding the scope and content of a compliance review.
The current regulations at 41 CFR 60-741.60 do not require OFCCP to conduct a complete onsite review of every contractor selected for a compliance review. Thus, a compliance review under Section 503 could be completed without an onsite review, if a determination can be made about the contractor's compliance based upon an analysis and evaluation of the documentation submitted for the desk audit. Likewise, if an onsite review is required in order to evaluate the contractor's compliance with the nondiscrimination and affirmative action requirements of Section 503, that onsite review could focus on one or two issues.
Although the current terminology in the Section 503 regulations differs from that used in the Executive Order and 38 U.S.C. 4212 regulations, parallel procedures will be used to evaluate contractor compliance under all three laws enforced by OFCCP.
All compliance evaluations, except compliance checks, will begin with the scheduling of a compliance review. In most cases, the results of the desk audit will determine whether an onsite review is warranted.
A compliance review may: 1) close after the desk audit 2) continue with an onsite review that is focused on one or two issues, and/or 3) continue with an onsite review that involves an examination of several issues.
A small percentage of those contractors whose evaluations would normally close at the desk audit stage will be scheduled for complete compliance reviews. These contractors will be identified at the district office level in accordance with neutral selection procedures distributed under separate cover. The reason for conducting these neutrally selected, complete compliance reviews is to help ensure the integrity of the program by allowing OFCCP to verify the accuracy of information submitted by contractors.
COMPLIANCE REVIEW INFORMATION SYSTEM (CRIS)
PROCEDURES:The Compliance Review Information System (CRIS) is being revised to allow the agency to track the four investigative procedures used to evaluate contractor compliance. Further CRIS instructions will be issued under separate cover.'
For copies of the procedures, check out the OFCCP link on this site, or go to:
http://www.dol.gov/esa/regs/compliance/ofccp/directives/dir230.htm
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OFCCP Directive
Transmittal Number: 227
DATE: 9/10/98
OFCCPORDER NO.: FCCM NOTICE CH 2
SUBJECT: Investigative procedures: compliance check
PURPOSE: To revise the Federal Contract Compliance Manual (FCCM) to establish procedures for one of the compliance evaluation procedures authorized under 41 CFR 60-1.20(a).
BACKGROUND: In recent amendments to Parts 60-1 and 60-60, OFCCP removed rigid requirements outlining the content and scope of compliance reviews from the regulations and adopted a new approach to developing compliance evaluation procedures. The new regulations provide at 41 CFR 60-1.20(a) that OFCCP may evaluate compliance through one or a combination of methods. However, OFCCP declined to establish detailed procedures for implementing the new compliance evaluation methods in the regulations, reasoning that it is more appropriate for the agency to establish the procedures through amendments to the FCCM. 62 Fed. Reg. 44180 (August 19, 1997).
The FCCM amendments made through this transmittal are the first procedures established under the new compliance evaluation authority. They will be utilized to inspect certain records contractors are required to maintain under the record retention requirements at 41 CFR 60-1.12(a)and (b). The records contractors are required to retain under this section include, among other things, records pertaining to requests for reasonable accommodation, job advertisements and postings, copies of their AAPs and documentation of good faith effort for the preceding AAP year. These procedures for inspection of records onsite are established under the “compliance check” compliance evaluation method authorized by section 60-1.20(a)(3).
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4. GUIDELINES:
Scheduling:
All contractors selected for a compliance check will be sent a scheduling letter (Figure 2-4) which informs them of the laws enforced by OFCCP, and advises them of OFCCP’s upcoming inspection of data. Contractors are asked to have available for inspection information identified in the letter. The enclosure to the letter is an informational summary highlighting important obligations of Federal supply and service contractors under the laws enforced by OFCCP.
Scope of the Compliance Check:
The compliance check consists of an inspection of a limited number of records. The Compliance Officer is not reviewing data for reasonableness or acceptability, but is inspecting to ensure the contractor has maintained some of the required records in accordance with 41 CFR 60-1.12.
Compliance Check Control Sheet:
When sending out the scheduling letter the Compliance Officer will begin to fill out the compliance check control sheet (Figure 2-7). An electronic version of this form will also be used for the case management tracking system.
Compliance Check Closure:
All compliance checks will be closed with a closure letter (Figure 2-5). The letter specifies the finding of the compliance check, i.e. whether the contractor made available for inspection all the data requested in the scheduling letter. Contractors which fail to allow access to their facilities will be notified that they will be selected for another form of compliance evaluation.
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5. INSTRUCTIONS: From Manual Chapter 2, remove and discard pages v, 2-65/2-66, 2-71, 2-72/2-73, 2-74/2-75 and 2-76 and insert in their place the attached pages v, 2-65/2-66, 2-66a/2-66b/2-66c, 2-71/2-72, 2-74/2-75, 2-76/2-77, 2-78/2-79, 2-80, 2C-1/2C-2, 2C-3/2C-4 and 2C-5/2C-6. Note that pages 2-65 and 2-71 are unchanged, but are printed on the reverse side of pages which have been changed or which have included in the Manual for the first time. The current pages 2-72 through 2-76, which are being discarded, are the index to Chapter 2. Pages 2C-1 through 2C-6 are the replacement pages for the index, and they should be inserted in the FCCM at the end of Chapter 2. The index pages were replaced because it was necessary to assign new page numbers to the index pages. The replacement pages 2-71 through 2-80 should be inserted in Chapter 2 immediately following page 2-70b.
To view attachments to this Directive, go to:
http://www.dol.gov/esa/regs/compliance/ofccp/directives/c_check.htm
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OFCCP Directive
Transmittal Number: 260
DATE: 9/13/2002
OFCCPORDER NO.: ADM Notice - Separate Facility Exemptions/Waivers
SUBJECT: Separate Facility Exemptions/Waivers.
PURPOSE: To identify the factors that will be considered by the Deputy Assistant Secretary when deciding whether to grant separate facility exemptions/waivers from the requirements of Executive Order 11246 and the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, and the procedure for considering requests for such exemptions/waivers.
BACKGROUND: The regulations implementing Executive Order 11246, and the affirmative action provisions of VEVRAA, provide for an exemption from the requirements of their laws for facilities of a contractor that are not connected to the performance of a Government contract. Specifically, the regulations implementing EO 11246 authorize the Deputy Assistant Secretary to grant an exemption for "any of the prime contractor's or subcontractor's facilities which he finds to be in all respects separate and distinct from activities of the prime contractor or subcontractor related to the performance of the contract or subcontract," provided that there is also a finding that such an exemption "will not interfere with or impede the effectuation of the order." 41 CFR 60-1.5(b)(2).
Similarly, the regulations implementing the affirmative action provisions of VEVRAA allow the Deputy Assistant Secretary to grant separate facility waivers based on the same general standards. 41 CFR 60-250.4(b)(3).
Under both the regulations implementing EO 11246 and the affirmative action provisions of VEVRAA, the contractor is responsible for providing sufficient information for the Deputy Assistant Secretary to find that: 1) the facility for which an exemption is sought is in all respects separate and distinct from activities of the contractor related to the performance of a Government contract; and 2) such an exemption/waiver will not interfere with or impede the effectuation of EO 11246 or the affirmative action provisions of VEVRAA. This directive identifies the factors that the Deputy Assistant Secretary will consider in deciding whether the contractor has sufficiently demonstrated that it meets the general standards for a separate facility exemption/waiver under EO 11246 and the affirmative action provisions of VEVRAA.
Historically, OFCCP has narrowly interpreted the exemption and waiver provisions and has granted requests for exemptions only in rare and compelling circumstances. OFCCP intends to continue this practice when considering requests for separate facility exemptions/waivers under EO 11246 and the affirmative action provisions of VEVRAA.
POLICY: The Deputy Assistant Secretary may grant a separate facility exemption/waiver from the requirements of EO 11246 or the affirmative action provisions of VEVRAA, based on a finding that: 1) the facility is in all respects separate and distinct from activities of the contractor related to the performance of its Government contract; and 2) such an exemption/waiver will not interfere with or impede the effectuation of the Order or the statute.
The Deputy Assistant Secretary's finding as to whether the facility for which an exemption/waiver is sought is separate and distinct from the performance of the contractor's Government contracts shall be based upon a consideration of the following factors:
Whether any work at the facility directly or indirectly supports or contributes to the satisfaction of the work performed on a Government contract;
The extent to which the contractor derives benefits from a Government contract, directly or indirectly, at the facility to be exempted;
Whether any costs associated with operating the facility are charged to a Government contract;
Whether working at the facility for which an exemption/waiver is sought is a prerequisite for advancement in job responsibility or pay at facilities connected to a Government contract; and whether working at facilities connected to a Government contract is a prerequisite for advancement in job responsibility or pay at the facility for which an exemption/waiver is sought;
Whether employees who normally work at the facility are required to perform work related a Government contract at another facility;
Whether the facility regularly or substantially transfers employees to or from facilities at which a Government contract is performed;
Such other factors that the Deputy Assistant Secretary deems are necessary or appropriate for considering whether the facility is in all respects separate and distinct from the activities of the contractor related to the performance of a contract.
Other factors could include the number of facilities connected to the contractor's Government contracts and the nature of the contractor's contractual relationship with the Government.
Example: A Government agency seeks to enter into a contract with a company that has several hundred retail stores nationwide. Employees from the company's corporate office would perform the work on the contract and the total costs of the services would not exceed $65,000. The proposed contract would be in effect for a 6-month period. Under the regulations implementing EO 11246, the company would be required to develop and maintain written affirmative action programs for all of its establishments, including its retail stores. The company has requested an exemption from the requirement to develop and maintain written AAPs for its retail stores. In deciding whether the retail stores are separate and distinct from activities related to the proposed Government contract, the Deputy Assistant Secretary considers the total number of establishments connected with the proposed Government contract and nature of the contractual relationship.
The Deputy Assistant Secretary's finding as to whether granting the request for the separate facility exemption/waiver will interfere with or impede the effectuation of EO 11246 or the affirmative action provisions of VEVRAA shall be based upon a consideration of the following factors:
Whether the waiver will be used as a subterfuge to circumvent the contractor's obligations under federal, state, or local equal employment opportunity laws;
The contractor's record of compliance with Federal, State or local equal employment opportunity laws; and
Such other factors that the Deputy Assistant Secretary deems are necessary or appropriate for; considering whether the granting of the exemption/waiver would interfere with or impede the effectuation of either the Executive Order or the affirmative action provisions of VEVRAA.
PROCEDURES: A contractor desiring a separate facility waiver/exemption must submit a written request to the Deputy Assistant Secretary. The contractor must reasonably demonstrate that its circumstances meet the standards for a separate facility exemption/waiver. OFCCP will not seek to make unduly burdensome information requests in the process of considering an exemption/waiver request. Contractors seeking such an exemption/waiver must be prepared to submit information and materials in support of the request, and that will allow the agency to understand the rationale for granting its request. Otherwise, OFCCP ,will deny the request.
OFCCP will act with reasonable promptness in considering a contractor's request for an exemption/ waiver. Although no strict deadline can be established for OFCCP's consideration of such requests, in light of their variability, the agency will normally issue a decision within ninety (90) days of the contractor's submission of the necessary information.
The exemption/waiver shall be conditioned upon the contractor promptly notifying OFCCP of significant changed circumstances pertaining to the work at the facility covered by a separate facility exemption/ waiver and the performance of its Government Contracts. Specifically, the contractor shall advise OFCCP of significant changed circumstances relating to the factors enumerated in paragraph 4, above, and considered by the Deputy Assistant Secretary in granting the separate facility exemption/waiver. Based upon the information provided by the contractor or any other relevant information, the Deputy Assistant Secretary will determine whether the separate facility exemption/waiver should continue.
The Deputy Assistant Secretary will terminate an exemption/waiver upon sixty (60) days written notice to the contractor, based on a determination that the facility no longer meets the standards for a separate facility exemption/waiver. Once the termination of the exemption/waiver is effective, OFCCP will afford the contractor 120 days to develop affirmative action programs for facilities covered by the terminated exemption.
OFCCP will require the contractor to certify in writing every three years that there has been no changed circumstances affecting the separate facility exemption/waiver.
When a facility covered by a separate facility exemption/waiver gets a Government contract, or performs work that directly contributes to the satisfaction of a Government contract, the exemption/waiver for the facility automatically terminates. The contractor shall notify OFCCP when facility covered by a separate facility exemption/waiver gets a Government contract or when Government contract work has been shifted to the exempted facility. The contractor will have 120 days from the commencement of the Government contract work at the exempted facility to develop an affirmative action program.
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OFCCP Directive
Transmittal Number: 254
DATE: 3/21/2002

SUBJECT: Functional Affirmative Action Programs (AAPs)
PURPOSE: To establish the procedures for processing contractor requests for agreements to use AAPs that are based on functional or business units.
ORIGINATOR: Division of Policy, Planning, and Program Development
BACKGROUND: The Final Rule published on November 13, 2000, (65 Fed. Reg. 68022), added a new provision to permit contractors to develop an AAP that is organized around a business function or line of business, that need not take into account the geographic locations of the establishments and employees. The new regulation at 41 CFR 60-2.1(d)(4) provides:
If a contractor wishes to establish an affirmative action program other than by establishment, the contractor may reach agreement with OFCCP on the development and use of affirmative action programs based on functional or business units. The Deputy Assistant Secretary, or his or her designee, must approve such agreements. Agreements allowing the use of functional or business unit affirmative action programs cannot be construed to limit or restrict how the OFCCP structures its compliance evaluations.
Under the new regulation, "functional AAPs", as they are sometimes called, are authorized when the contractor has reached an agreement with OFCCP and the Deputy Assistant Secretary has approved the functional AAP agreement.
The new regulation also makes it clear that while OFCCP may enter into an agreement allowing a contractor to use functional AAPs, the agency will not negotiate how compliance evaluations will be conducted.
In the absence of an approved agreement required under 41 CFR 60-2.1(d)(4), the regulations require contractors to develop and maintain AAPs for each of their establishments, i.e., a separate AAP for each physical location.
Some multi-establishment contractors may find it appropriate to develop AAPs based on functional or business units. Other contractors, however, will continue to develop and maintain establishment-based AAPs.
Any multi-establishment supply and service contractor subject to AAP requirements may request an agreement that would allow for the development and use of AAPs based on functional or business units.
The functional AAP agreements that are permitted under 41 CFR 60-2.1(d)(4) are to be distinguished from agreements for Standard Affirmative Action Formats (SAAFS). The regulation at 41 CFR 60-1.20(e) provides that contractors may reach agreement with OFCCP on a standardized AAP format that would be used by the contractor in all establishments. A contractor that has a SAAF agreement still develops an AAP for each establishment, but OFCCP and the contractor have agreed upon the AAP format that will be used for each AAP component such as job groups, availability analyses, and goal establishment.
DEFINITION: The term "functional AAP" as used throughout this Administrative Notice refers to the development and preparation of an AAP based on clearly distinct functional or business units within a corporate structure as opposed to an AAP based solely on physical location.
A functional or business unit is a component of a company that operates somewhat autonomously. For instance, a functional or business unit may have its own managing official; it may be listed separately on a company's organizational chart; and/or it may operate under separate cost centers. A functional or business unit may also have personnel transactional activities (e.g., applicant flow, hires, promotion, terminations, etc.) that are distinguishable from other parts of the company.
POLICY: This Administrative Notice transmits the procedures for processing and approving a contractor request for a functional AAP agreement. This Notice will remain in effect until a further Notice is issued.
A functional AAP agreement may be implemented after the contractor has received the written approval of the Deputy Assistant Secretary for Federal Contract Compliance (DAS), or his or her designee.
After 120 calendar days from OFCCP's confirmed receipt of the contractor's request, if OFCCP has neither approved nor disapproved the contractor's request for a functional AAP agreement, the request will be deemed approved by the DAS and may be implemented 120 calendar days after the date OFCCP received the written request.
A functional AAP agreement must cover the contractor's entire workforce. However this does not mean that the entire workforce must be covered by functional AAP(s). In some cases it may be appropriate for a contractor to use both functional AAP(s) and establishment-based AAP(s).
For example, a contractor with three establishments submits a request for a functional AAP agreement. The establishments are located in different States, and each location has both a Marketing and a Research function. The contractor requests permission to develop two functional AAPs, one for the Marketing employees and one for Research employees. The functional AAP agreement would permit the contractor to develop and to implement two functional AAPs (Marketing and Research) regardless of their geographic location, and separate establishment-based AAPs covering all other employees at the different locations.
Each functional AAP of a contractor must be based on an actual functional or business unit.
When a contractor with an approved functional AAP agreement so significantly changes its structure so as to alter the functions upon which the original functional AAP agreement was based (e.g., a merger, acquisition, downsizing or reorganization that would result either in the elimination of certain functions that were included in the original functional AAP agreement or the addition of new functions), the contractor will immediately notify the DAS of the change(s) in writing. The contractor should also include sufficient information to determine whether the agreement should be modified or amended based upon the changed circumstances. The DAS will then determine whether it is necessary to amend or modify the functional AAP agreement. Failure to provide notification of significant changed circumstances may result in termination of the functional AAP agreement.
Either party may terminate the functional AAP agreement upon 90 calendar days written notice. The notice will provide a brief explanation of the reason(s)for the termination, and the effective date of the termination.
Notwithstanding the notice of termination provided in 6(e) above, functional AAP agreements will expire five years after the date of approval.
The contractor may request that the agreement be renewed for another five-year term. The renewal request is to be submitted to the DAS at least 120 calendar days prior to the expiration of the functional AAP agreement. The request from the contractor that the agreement be renewed for another five-year term will be deemed accepted by OFCCP unless rejected in writing within 60 calendar days of receipt.
A functional AAP agreement will not relieve a contractor of its obligation to comply with OFCCP's regulations, policies and procedures. OFCCP will not negotiate its procedures for determining compliance with its regulations. A functional AAP agreement may not contain provisions limiting access or the manner and means by which compliance evaluations will be initiated or conducted. Such issues are not negotiable.
OFCCP will use the information that the contractor provides in support of its request for a functional AAP agreement solely for the purpose of evaluating the request.
OFCCP will treat the information the contractor provides in support of a request for a functional AAP agreement as sensitive and confidential to the maximum extent possible under the Freedom of Information Act (FOIA), with the same disclosure safeguards that are applied to Affirmative Action Program data that are of a sensitive or confidential nature.
A request for permission to use functional AAPs that was submitted prior to the issuance of this directive will be considered received by OFCCP on the date this directive is issued. OFCCP will provide written acknowledgement of a request. If a contractor had requested permission to use functional AAPs prior to the issuance of this directive and has not received a written acknowledgement from OFCCP within 30 calendar days from the date this directive is issued, the contractor should contact OFCCP.
CONTRACTOR CRITERIA: The criteria the OFCCP will use in evaluating a request for a functional AAP will be whether the contractor operates with distinct functional or business units.
MANDATORY COMPONENTS OF A FUNCTIONAL AAP: A functional AAP must include the components that are prescribed in the regulations in 41 CFR Part 60-2 and as enumerated in items a-i, below. All AAP components, however, will be based on functional or business units rather than an establishment.
An organizational profile, as required under 41 CFR 60-2.11.
A job group analysis and the placement of incumbents in job groups, as required under 41 CFR 60-2.12 and 60-2.13, respectively.
The availability determinations required under 41 CFR 60-2.14, along with a description of the methodology used to determine availability for the job groups covered by the proposed functional AAP(s).
A comparison of incumbency to availability in an acceptable format, as required under 41 CFR 60-2.15.
Placement goals, if applicable, and a description of the contractor's methodology for goal setting as required under 41 CFR 60-2.16.
Designation of the responsibility for implementing the functional AAP(s) as required under 41 CFR 60-2.17(a).
A description of the in-depth analyses of the employment process that were conducted to determine whether impediments to equal employment opportunity exist, and a list of the problem areas identified, as required under 41 CFR 60-2.17(b).
A description of the action-oriented programs that will be implemented to correct any problem areas identified and to establish goals and objectives, as required under 41 CFR 60-2.17(c).
A description of the internal audit and reporting systems that are used to measure the effectiveness of the AAP, as required under 41 CFR 60-2.17(d).
PROCEDURE: OFCCP desires that the process for approval of a functional AAP agreement be simple and fluid - a collaborative effort in which OFCCP and the contractor work together to process the functional AAP request in an expeditious manner consistent with OFCCP policies and procedures.
A contractor desiring a functional AAP agreement must submit a written request to the DAS briefly explaining why it believes that use of a functional AAP would be most appropriate for its particular corporate structure. The contractor will also designate a corporate contact person with telephone number in this correspondence. This person must have the authority, resources, and support of top management to ensure the effective implementation of the functional AAP.
The request for a functional AAP agreement must be submitted at least 120 calendar days prior to the expiration of the current corporate headquarters AAP.
After receipt of the written request, OFCCP will provide written acknowledgement of the request within two weeks to the designated corporate contact person.
If needed, OFCCP will schedule an initial meeting or a conference call between OFCCP and the contractor to discuss the functional AAP request. Members of an OFCCP Coordination Support Team (CST), discussed below, and corporate representatives will attend the initial meeting or participate in the conference call.
Prior to the initial meeting or conference call, the contractor will advise OFCCP (through its CST contact person) of the names and positions of the persons representing the contractor during the discussions.
In order to aid OFCCP in determining whether a contractor operates with distinct functional or business units, the contractor's representatives attending the initial meeting or participating in the conference call should be prepared to discuss the following areas:
location of the facilities (or establishments) where the employees perform their duties;
how the company is organized within each functional or business unit (e.g., a discussion of the various divisions or departments within the corporate structure);
the reporting hierarchy within each such functional or business unit;
the total number of employees within the contractor's workforce;
the total number of employees within each functional or business unit and the identification of the managing official of each functional or business unit;
the total number of employees not covered by functional AAP(s) that are covered in establishment-based AAP(s);
a description of the personnel processes (including recruitment, hiring and promotion) as they apply to each unit; and
any other information the contractor believes would further assist OFCCP in understanding its corporate structure, procedures and need for a functional AAP(s).
During the initial meeting or conference call between CST and the contractor's representatives, a discussion regarding the preparation of the mandatory components, e.g., job group construction and the appropriate methodology for determining availability, will also take place.
Every effort will be made during the initial meeting or conference call to gather sufficient information regarding the contractor's corporate structure and need for a functional AAP agreement. However, additional information may be necessary after the initial meeting or conference call for OFCCP to make a final determination on the contractor's request.
National and Regional Office Responsibilities:
Coordination Support Team: The DAS will appoint a Coordination Support Team (CST) to work with the contractor's designated representatives to coordinate the development of an acceptable functional AAP agreement.
The CST may include representatives from OFCCP's Division of Program Operations, the Division of Policy, Planning and Program Development, and the Regional Office in which the contractor's corporate headquarters is located.
The relationship between the contractor and CST will be a cooperative effort between the two to develop an instrument reflective of the contractor's actual corporate structure and conducive to OFCCP's compliance evaluation processes.
DAS Approval: If the contractor and CST reach an agreement, a copy of the proposed functional AAP agreement will be sent to the DAS for review and approval. The DAS may submit questions and comments to the CST, and/or consult with the relevant Regional Director. If final approval is granted by the DAS, a copy of the signed agreement will be sent to the contractor. In addition, copies of the signed agreement materials will be sent to each Regional Office for distribution to its district offices as appropriate. If the DAS rejects the proposed agreement, it will be returned to the CST who will work with the contractor to address and resolve any concerns about the proposed agreement. After the issues are resolved, the proposed agreement will be resubmitted to the DAS.
IMPLEMENTATION: Until the functional AAP agreement is approved, the contractor must continue to develop and maintain AAPs for each establishment.

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 EMPLOYERS SUPPORT THE GUARD AND RESERVE

While our military personnel put their lives on the line in defense of
freedom, it is nice to know that a great many American employers
are extending to them and their families full (extra) support.  Many who

have gone beyond the legal requirements and extended their employees

extra support through corporate policy, even in these very tough economic

times.
The Employer Support of the Guard and Reserve (ESGR) that has assembled a

list of employers who have gone over and above what the law requires 

to offer their employees the help they need while they are away defending us. 
If you would like to see that list go to:
http://www.esgr.org/employers/outstandingEmployers.asp

If your organization is extending benefits or continuing payroll
checks for your employees who are on military leave, let the ESGR
know so your organization can be added to the list.                      

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Supreme Court to Clarify Sexual Harassment

The Supreme Court agreed Monday to clarify when employers can be sued for sexual harassment, in a case involving a Pennsylvania woman who claims male bosses told her dirty jokes and urged her to perform sex acts. Nancy Drew Suders quit her state police dispatcher job after enduring persistent harassment, including one boss who talked about man-on-animal sex and oral sex, and another supervisor who called her "Momma" and repeatedly acted out a sexually provocative wrestling stunt, she said. Her supervisors said she was disorganized, often late for work and overwhelmed by the duties.
Suders' case raises an employment question that the Supreme Court never has decided -- whether people who voluntarily quit their jobs and then claim harassment have the same legal rights as those who are fired. Suders argues that the category should include people who feel as if they have no choice but to resign, and then sue later for harassment. Businesses fear a the court will open the gates for additional lawsuits.  
Suders sued under the 1964 Civil Rights Act and other laws claiming she was discriminated against based on her age, sex and political affiliation. The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that Suders could pursue her lawsuit. The Supreme Court will hear arguments next spring in the state of Pennsylvania's appeal and issue a ruling before July. (AP)

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VETS-100 DUE DATE - 2003

Federal contractors with contracts of $25,000 or more file the VETS-100 forms each year by September 30 to report the number and job classifications of veterans employed. However, this year the date was extended. According to the DOL Veterans' Employment and Training Service, the VETS-100 forms for 2003 are due on October 31.

As always, filing instructions and the 2003 form are now available at www.vets100.cudenver.edu ~ the filing address for the VETS-100 has changed to 4200 Forbes Blvd., Suite 202, Lanham, MD 20706. Questions can be directed through this website or directly through the VETS-100 Help Desk at 301-306-6752 or email to helpdesk@vets100.com.

There is a new EEOC Management Directive which applies to all federal government agencies. In a nutshell, EEOC now requires the same affirmative steps required of private industry (federal contractors and subcontractors - through Executive Order 11246). All agencies are required to create an Affirmative Action Program, no different from those audited by our former agency, the Office of Federal Contract Compliance Programs (OFCCP). Government agencies are now required to take such actions as (this list is not all inclusive):

* Maintain applicant flow by race and gender
* Conduct Impact Ratio Analyses (IRA) on hires, promotions, and terminations
* Develop AAP objectives and follow up the following year (similar to the current AEP)
* Integrate EEO into your Agency strategic mission
* Ensure PROACTIVE prevention of unlawful discrimination
* Recruit, hire, develop and retain supervisors/mgrs. who have effective managerial, communications and interpersonal skills. Provide managers and supervisors with appropriate training and other resources
* Evaluate managers and supervisors (in performance evaluations) on efforts to ensure equality of opportunity for all employees
* Ensure effective coordination between your EEO programs and related human resource programs, including the FEORP and DVAAP
* Conduct a self-assessment on at least an annual basis to monitor progress (AAP)
* Ensure the investigation and adjudication function of your Agency's complaint resolution process are kept separate from the legal defense arm of your Agency
* Appoint a senior official as the dispute resolution specialist of your Agency
* Ensure all managers and supervisors at all levels WILL participate in the ADR process
*Maintain a system that collects and maintains accurate information on the race, national origin, sex, and disability status and the disposition of all applications
* Maintain a tracking system of recruitment activities to permit analyses of these efforts in any examination of potential barriers to equality of opportunity
* Proactively prevent potential discrimination before it occurs and establish systems to monitor compliance with Title VII

Effective date is October 1, 2003 ~ On August 23, 2003, U.S. Equal Employment Opportunity Commission (EEOC) Chair Cari M. Dominguez announced the issuance of Management Directive (MD) 715, which provides a roadmap for creating effective equal employment opportunity (EEO) programs for all federal employees as required by Section 717 of Title VII of the 1964 Civil Rights Act and Section 501 of the Rehabilitation Act of 1973.

The new Directive, which was approved by the full bipartisan Commission by unanimous vote, becomes effective government-wide at the start of Fiscal Year 2004 on October 1, 2003. It supersedes Management Directives 712, 713 and 714, which were issued in the 1980s. The full text of MD 715 is available on the Commission's web site at www.eeoc.gov.

"Management Directive 715 is part of a bigger EEO reform initiative underway, which is designed to better address the organizational shifts and evolving trends in the federal workplace," said Chair Dominguez. "The Directive provides a substantive, practical roadmap for federal agencies to ensure access and inclusion for all human talent at all levels of employment."

If you have questions, the EEOC website (www.eeoc.gov) has additional information. Give us a call (or email) if you need assistance with implementation of these new regulations or just wish to ask questions. From direct experience, these changes, if implemented correctly, will create an environment that works to ensure all applicants and employees enjoy full equality under the law.  In some agencies, this has been lacking. For those agencies who voluntarily have been complying with many of the orders in this directive, i.e., applicant flow maintained by race/gender, you are ahead of the pack.

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REQUIRED LABOR POSTERS

For Federal and Non-federal posting requirements and downloaded copies of the posters, go to the U.S. Department of Labor's website: http://www.dol.gov/osbp/sbrefa/poster/main.htm

Required Posters Distributed in Foreign Languages

If you have employees with limited English speaking ability, you should know:

The U.S. Department of Labor has Spanish posters required by the EEOC, OSHA, and FMLA. Website: http://www.dol.gov/osbp/sbrefa/poster/main.htm

The EEOC has translated posters you are required to have in your workplace. The EEOC will send posters in numerous languages ranging from Arabic to Vietnamese. Website: http://www.eeoc.gov/publications.html

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               03/2003: EEOC Launches New Mediation Pilot Program

Initiative to Refer Back Appropriate Charges to Employers for Internal Dispute Resolution WASHINGTON - Cari M. Dominguez, Chair of the U.S. Equal Employment Opportunity Commission (EEOC), announced the implementation of a voluntary mediation pilot program in which private sector discrimination charges filed with the EEOC will be referred back to a participating employer's internal dispute resolution program, as appropriate. Under the new "referral back" mediation pilot, which will be carried out at the district office level, employers that have internal dispute resolution programs that meet specific criteria may participate in the pilot.

The New Freedom Initiative and the Americans with Disabilities Act

EEOC Website

Foreword by President George W. Bush

My Administration is committed to tearing down the barriers to equality that face many of the 54 million Americans with disabilities.

Eleven years ago the Americans with Disabilities Act (ADA) made it a violation of federal law to discriminate against a person with a disability.

But there is much more to do. Though progress has been made in the last decade, too many Americans with disabilities remain trapped in bureaucracies of dependence, denied the tools they need to fully access their communities.

The unemployment rate for Americans with disabilities hovers at 70 percent. Home ownership rates are in the single digits. And Internet access for Americans with disabilities is half that of people without disabilities.

I am committed to tearing down the remaining barriers to equality that face Americans with disabilities today. My New Freedom Initiative will help Americans with disabilities by increasing access to assistive technologies, expanding educational opportunities, increasing the ability of Americans with disabilities to integrate into the workforce, and promoting increased access into daily community life.

I look forward to working with Congress to see these proposals become law.

Executive Summary

Fulfilling America's Promise to Americans with Disabilities

Disability is not the experience of a minority of Americans. Rather, it is an experience that will touch most Americans at some point during their lives.

Today, there are over 54 million Americans with disabilities, a full 20 percent of the U.S. population. Almost half of these individuals have a severe disability, affecting their ability to see, hear, walk, or perform other basic functions of life. In addition, there are over 25 million family caregivers and millions more who provide aid and assistance to people with disabilities.

Eleven years ago, Congress passed and President George Bush signed one of the most significant civil rights laws since the Civil Rights Act of 1964 - the Americans with Disabilities Act (ADA). In doing so, America opened its door to a new age for people with disabilities. Two and a half years ago, amendments to Section 508 of the Rehabilitation Act of 1973 were enacted ensuring that the Federal Government would purchase electronic and information technology which is open and accessible for people with disabilities.

Although progress has been made over the years to improve access to employment, public accommodations, commercial facilities, information technology, telecommunications services, housing, schools, and polling places, significant challenges remain for Americans with disabilities in realizing the dream of equal access to full participation in American society. Indeed, the Harris surveys by the National Organization on Disability and numerous other studies have highlighted these persistent obstacles.

Americans with disabilities have a lower level of educational attainment than those without disabilities:

• One out of five adults with disabilities has not graduated from high school, compared to less than one of ten adults without disabilities.
• National graduation rates for students who receive special education and related services have stagnated at 27 percent for the past three years, while rates are 75 percent for students who do not rely on special education.

Americans with disabilities are poorer and more likely to be unemployed than those without disabilities:

• In 1997, over 33% of adults with disabilities lived in a household with an annual income of less than $15,000, compared to only 12 percent of those without disabilities.
• Unemployment rates for working-age adults with disabilities have hovered at the 70 percent level for at least the past 12 years, while rates are significantly lower for working-age adults without disabilities.

Too many Americans with disabilities remain outside the economic and social mainstream of American life:

• 71% of people without disabilities own homes, but fewer than 10% of those with disabilities do.
• Computer usage and Internet access for people with disabilities is half that of people without disabilities.
• People with disabilities vote at a rate that is 20 percent below voters without disabilities. In local areas, disability issues seldom surface in election campaigns, and inaccessible polling places often discourage citizens with disabilities from voting.

People with disabilities want to be employed, educated, and participating, citizens living in the community. In today's global new economy, America must be able to draw on the talents and creativity of all its citizens.

The Administration will work to ensure that all Americans have the opportunity to learn and develop skills, engage in productive work, choose where to live and participate in community life. The President's "New Freedom Initiative" represents an important step in achieving these goals. It will expand research in and access to assistive and universally designed technologies, further integrate Americans with disabilities into the workforce and help remove barriers to participation in community life.

The Policy

The "New Freedom Initiative" is composed of the following key components:

Increasing Access to Assistive and Universally Designed Technologies:

Expanding Educational Opportunities for Americans with Disabilities:

Promoting Full Access to Community Life:

Increasing Access to Assistive and Universally Designed Technologies

(Title I)

Overview

The Administration's commitment to increase access to assistive and universally designed technologies is based upon the principle that every American must have the opportunity to participate fully in society. In the global new economy, America must draw on the talents and creativity of all its citizens.

Assistive and universally designed technologies can be a powerful tool for millions of Americans with disabilities, dramatically improving one's quality of life and ability to engage in productive work. New technologies are opening opportunities for even those with the most severe disabilities. For example, some individuals with quadriplegia can now operate computers by the glance of an eye. As the National Council on Disability (NCD) has stated, "for Americans without disabilities, technology makes things easier. For Americans with disabilities, technology makes things possible."

Unfortunately, assistive and universally designed technologies are often prohibitively expensive. In addition, innovation is being hampered by insufficient Federal funding for and coordination of assistive technology research and development programs.

The New Freedom Initiative will help ensure that Americans with disabilities can access the best technologies of today and that even better technologies will be available in the future. At the core of this effort are proposals that reinvigorate the Federal investment in assistive technologies; improve Federal collaboration and promote private-public partnerships; and increase access to this technology for people with disabilities.

Summary of Proposals

Increases Federal Investment in Assistive Technology Research and Development:

Rehabilitative Engineering Research Centers (RERCs) are recognized as conducting some of the most innovative and high impact assistive technology research in the Federal Government. The 15 RERCs are housed in universities and other non-profit institutions around the country and focus on a specific area of research - for example, information technology access, prosthetics and orthotics, and technology for children with orthopedic disabilities. To advance research specifically targeted to the disabilities community, the Administration will significantly increase funding for the RERCs.

Improves Coordination of the Federal Assistive Technology Research and Development Program:

There is no effective coordinating body for assistive technology research and development within the Federal Government. While the Interagency Committee on Disabilities Research (ICDR) was designed to coordinate the Federal effort, it has no real authority and has no budget. The Administration will provide new funding to the ICDR so that it can prioritize the immediate assistive and universally designed technology needs in the disability community, as well as foster collaborative projects between the Federal laboratories and the private sector.

Promotes Private-Public Partnerships:

There are nearly 2,500 companies working to bring new assistive technologies to market. Many small businesses, however, cannot make the necessary capital investments until they have information concerning the market for a particular assistive technology. To help these businesses bring assistive technologies to market, the Administration will establish an "Assistive Technology Development Fund." Housed under the ICDR, the fund will help underwrite technology demonstration, testing, validation and market assessment to meet specific needs of small businesses so that they can better serve the needs of people with disabilities.

Increases Access to Assistive Technology:

Assistive technology is often prohibitively expensive. For example, personal computers configured with assistive technology can cost anywhere from $2,000 to $20,000. The Administration will significantly increase Federal funding for low-interest loans to purchase assistive technology. These grants will go to a state agency in collaboration with banks or non-profit groups to guarantee loans and lower interest rates.

Expanding Educational Opportunities for Americans with Disabilities

(Title II)

Overview

Education is the key to independent living and a high quality of life. Unfortunately, one in five adults with disabilities has not graduated from high school, compared to less than one of ten adults without disabilities. The Administration will expand access to quality education for Americans with disabilities.

Originally passed by Congress in 1975, the Individuals with Disabilities Act, or IDEA, ensures that children with disabilities would have a free public education that would meet their unique needs.

The Administration will increase educational opportunity for children with disabilities by working with Congress to give states increased IDEA funds. This will help meet the needs of students with disabilities and free up additional resources for education at the local level.

Summary of Proposals

Increases Funding for Special Education.In return for participating in a new system of flexibility and accountability in the use of Federal education funds, states will receive an increase in IDEA funds for education at the local level and help in meeting the special needs of students with disabilities.

Establishes the "Reading First" Program. President Bush will increase Federal funding to students, including those with disabilities, by creating an incentive fund for states to teach every child to read by third grade. States that choose to draw from this fund will be required to initiate, among other requirements: a reading diagnostic test for students in K-2 to determine where students need help; a research-based reading curriculum; training for K-2 teachers in reading preparation; and intervention for students who are not reading at grade level in K-2.

Supplements Reading First with an Early Childhood Reading Initiative. States participating in the Reading First program will have the option to receive "Early Reading First" funding to implement research-based reading programs in existing pre-school programs and Head Start programs that feed into participating elementary schools. The purpose of this program is to illustrate on a larger scale recent research findings that children taught pre-reading and math skills in pre-school enter school ready to learn reading and mathematics.

Promoting Homeownership for Americans with Disabilities

(Title III)

Overview

Homeownership has always been at the heart of the "American dream." This past year, Congress passed the "American Homeownership and Economic Opportunity Act of 2000, " which reforms Federal rental assistance to give individuals who qualify the opportunity to purchase a home.

Rental assistance for low-income Americans, including those with disabilities, is provided by a program known as Section 8 of the Housing Act of 1937, administered by the U.S. Department of Housing and Urban Development (HUD). Residents are provided Section 8 vouchers so that they can afford rental payments for public housing. And many of those Section 8 vouchers go to individuals with disabilities.

In addition to increasing independence, homeownership also promotes savings. Mortgage payments, unlike rental payments, help build net worth because a portion of the payment goes toward building equity. In turn, as one's home equity increases, it becomes easier to finance other purchases such as a computer or further education.

Summary of Action

Implementation of the Section 8 Program to Allow Recipients to Apply Their Rental Vouchers to Homeownership:

The Administration will implement Public Law 106-569, which allows local Public Housing Authorities to provide recipients of Section 8 vouchers who have disabilities with up to a year's worth of vouchers in a lump-sum payment to finance the down payment on a home.

Integrating Americans with Disabilities into the Workforce

Title IV
(Part A: Promoting Telework)

Overview

Americans with disabilities should have every freedom to pursue careers, integrate into the workforce, and participate as full members in the economic marketplace.

The New Freedom Initiative will help tear down barriers to the workplace, and help promote full access and integration.

Computer technology and the Internet have tremendous potential to broaden the lives and increase the independence of people with disabilities. Nearly half of people with disabilities say the Internet has significantly improved their quality of life, compared to 27 percent of people without disabilities.

The computer and Internet revolution has not reached as many people with disabilities as the population without disabilities. Only 25% of people with disabilities own a computer, compared with 66% of U.S. adults. And only 20% of people with disabilities have access to the Internet, compared to over 40% of U.S. adults.

The primary barrier to wider access is cost. Computers with adaptive technology can cost as much as $20,000, which is prohibitively expensive for many individuals. And the median income of Americans with disabilities is far below the national average.

The New Freedom Initiative will expand the avenue of teleworking, so that individuals with mobility impairments can work from their homes if they choose.

Summary of Proposals

Creates the "Access to Telework" Fund. Federal matching funds will be provided annually to states to guarantee low-income loans for people with disabilities to purchase equipment to telecommute from home.

Makes a Company's Contribution of Computer and Internet Access for Home Use by Employees with Disabilities a Tax-Free Benefit. The Administration will encourage businesses to give computers and Internet access to employees with disabilities by making it explicit that this provision is a tax-free benefit. By making this benefit tax free to employees, the proposal will encourage more employers to provide computer equipment and Internet access, and employees will have greater options to take advantage of this flexibility for teleworking. For individuals with disabilities, this flexibility will expand the universe of potential and accessible employment.

Prohibits OSHA from Regulating "Home Office" Standards. In November 1999, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued an 8-page response to an employer inquiry asserting that it had the power to regulate home office standards and hold employers responsible if those standards were not met. This proposal would have had a chilling effect on teleworking, as employers would seek to avoid potential liabilities. Although OSHA has since withdrawn the response, it has not yet foreclosed future action. The proposal will amend the Occupational Safety and Health Act of 1970 to prohibit OSHA from being applied to the home worksites of employees who work at home through the use of "telephone, computer or electronic device."

Integrating Americans with Disabilities into the Workforce

(Part B: Ticket-to-Work)

Overview

In 1999, Congress passed the "Ticket-to-Work and Work Incentives Improvement Act," which will give Americans with disabilities both the incentive and the means to seek employment.

As part of the New Freedom Initiative, the Administration will ensure the Act's swift implementation.

Today, there are more than 7.5 million Americans with disabilities receiving benefits under Federal disability programs. According to a recent Harris Survey, conducted by the National Organization of Disability, 72 percent of the Americans with disabilities want to work. However, in part because of disincentives in Federal law, less than 1 percent of those receiving disability benefits fully enter the workforce.

Prior to the "Ticket to Work" law, in order to continue to receive disability payments and health coverage, recipients could not engage in any substantial work. The Ticket to Work law, however, provides incentives for people with disabilities to return to work by:

Summary of Action

President Bush Has Committed to Sign an Order to Support Effective and Swift Implementation of "Ticket to Work". The order will direct the federal agency to continue to swiftly implement the law giving Americans with disabilities the ability to choose their own support services and to maintain their health benefits when they return to work.

Integrating Americans with Disabilities into the Workforce

(Part C: Compliance with Americans with Disabilities Act)

Overview

When the Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, it was the most far reaching law advancing access of individuals with disabilities, workforce integration, and independence. The law, signed by President George Bush, gives civil rights protections to individuals with disabilities that are like those provided to individuals on the basis of race, sex, national origin, and religion.

In the eleven years since it was signed, the ADA has worked to guarantee equal opportunity for individuals with disabilities in employment, public accommodations, transportation, State and local government services, and telecommunications. The law has been especially helpful in providing access to jobs, especially in the small business sector, which has created two-thirds of all net new jobs since the early 1970s.

To encourage small businesses to comply with the ADA, legislation was signed into law in 1990 to provide a credit for 50 percent of eligible expenses up to $5,000 a year. Such eligible expenses include assistive technologies. Unfortunately, many small businesses are not aware of this credit.

President George W. Bush believes that the Americans with Disabilities Act has been an integral component of the movement toward full integration of individuals with disabilities but recognizes that there is still much more to be done. He also recognizes that to further integrate individuals with disabilities into the workforce, more needs to be done to promote ADA compliance.

Summary of Proposals

Supports the ADA and Provides Technical Assistance to Small Businesses. The President and the Attorney General will ensure full enforcement of the Americans with Disabilities Act by the Civil Rights Division of the Department of Justice. In addition, the New Freedom Initiative will provide resources annually for technical assistance to help small businesses comply with the Act, serve customers, and hire more people with disabilities.

Promotes the Awareness and Utilization of Disabled Access Credit (DAC). The DAC, created in 1990, is an incentive program to assist small businesses in complying with the ADA. DAC provides a credit for 50 percent of eligible expenses up to $5,000 a year, including expenses associated with making their facilities accessible and with purchasing assistive technologies. Utilization of the credit has been limited because small businesses are often not aware of it.

Expanding Transportation Options

(Title V)

Overview

Every American should have the opportunity to participate fully in society and engage in productive work. Unfortunately, millions of Americans with disabilities are locked out of the workplace because they are denied the tools and access necessary for success.

Transportation can be a particularly difficult barrier to work for Americans with disabilities. In 1997, the Director of Project Action stated that "access to transportation is often the critical factor in obtaining employment for the nation's 25 million transit dependent people with disabilities." Today, the lack of adequate transportation remains a primary barrier to work for people with disabilities: one-third of people with disabilities report that inadequate transportation is a significant problem.

Through formula grant programs and the enforcement of the ADA, the Federal Government has helped make our mass transit systems more accessible. More must be done, however, to test new transportation ideas and to increase access to alternate means of transportation, such as vans with specialty lifts, modified automobiles, and ride-share programs for those who cannot get to buses or other forms of mass transit.

On a daily basis, many non-profit groups and businesses are working hard to help people with disabilities live and work independently. These organizations often lack the funds to get people with disabilities to job interviews, to job training, and to work.

The Federal Government should support the development of innovative transportation initiatives and partner with local organizations to promote access to alternate methods of transportation.

Summary of Proposals

Promotes innovative transportation solutions for people with disabilities by funding pilot programs. The proposal provides funding for 10 pilot programs run by state or local governments in regional, urban, and rural areas. Pilot programs will be selected on the basis of the use of innovative approaches to developing transportation plans that serve people with disabilities. The Administration will work with Congress to evaluate the effectiveness of these pilot programs and encourage the expansion of successful initiatives.

Helps create a network of alternate transportation through community-based and other providers. The proposal will establish a competitive matching grant program to promote access to alternative methods of transportation. This dollar-for-dollar matching program will be open to community-based organizations that seek to integrate Americans with disabilities into the workforce. The funds will go toward the purchase and operation of specialty vans, assisting people with down payments or costs associated with accessible vehicles, and extending the use of existing transportation resources.

Promoting Full Access to Community Life

Title VI

(Part A: Commitment to Community-Based Care)

Overview

On June 22, 1999, the Supreme Court decided Olmstead v. L.C., ruling that, in appropriate circumstances, the ADA requires the placement of persons with disabilities in a community-integrated setting whenever possible. The Court concluded that "unjustified isolation," e.g., institutionalization when a doctor deems community treatment equally beneficial, "is properly regarded as discrimination based on disability."

Olmstead has yet to be fully implemented. President Bush believes that community-based care is critically important to promoting maximum independence and to integrating individuals with disabilities into community life.

Summary of Proposals

President Bush has Committed to Sign an Order Supporting Swift Implementation of the Olmstead Decision. The order will support the most integrated community-based settings for individuals with disabilities, in accordance with the Olmstead decision. The Administration will pursue swift implementation in a manner that respects the proper roles of the Federal Government and the several states.

Promoting Full Access to Community Life

(Part B: Better Coordination of Federal Resources to Address Mental Health Problems)

Overview

Currently, there are numerous Federal agencies that oversee mental health policies, funding, laws and programs including: the Substance Abuse and Mental Health Services Administration, the National Institutes of Health, the Health Care Financing Administration, the Office of Personnel Management, the Social Security Administration, the Health Resources and Services Administration, the Department of Housing and Urban Development, the Department of Education, the Department of Justice, and the Department of Labor.

These Federal agencies are doing valuable work, but they would be much more effective, efficient, and less duplicative if they were better coordinated.

With coordination, the competitive advantage of each agency could be leveraged to provide the most needed and suitable service in the framework of federal efforts to address mental health.

Summary of Proposals

President Bush Has Committed to Create a National Commission on Mental Health. The National Commission will study and make recommendations for improving America's mental health service delivery system, including making recommendations on the availability and delivery of new treatments and technologies for individuals with severe mental illness.

Promoting Full Access to Community Life

(Part C: Access to the Political Process)

Overview

There are over 35 million voting-age persons with disabilities, but currently people with disabilities register to vote at a rate that is 16 percentage points less than the rest of the population and vote at a rate that is 20 percent voters who have no disabilities.

According to the National Organization on Disability, low voter turnout among people who are disabled is due to both accessibility problems at voting locations and the lack of secrecy and independence when voting. The most recent Federal Election Commission (FEC) report states that at least 20,000 of the Nation's more than 120,000 polling places are inaccessible to people with disabilities.

President Bush recognizes that full integration into society must include access to and participation in the political process.

Summary of Proposals

Supports Improving Accessibility to Voting for Americans with Disabilities. President Bush will support improved access to polling places and ballot secrecy. He will work with Congress to address the barriers to voting for Americans with disabilities and to expanding suffrage for all Americans.

Promoting Full Access to Community Life

(Part D: Access to ADA-Exempt Organizations)

Overview

Title III of the Americans with Disabilities Act of 1990 opened countless businesses and public accommodations to people with disabilities by mandating that they be made accessible. For constitutional and other concerns, however, Title III exempts many civic organizations (such as Rotary and Lions Clubs) and religious organizations from its requirements of full access.

Americans with disabilities should be fully integrated into their communities, and civic and religious organizations are vital parts of those communities. Too many private clubs, churches, synagogues, and mosques are inaccessible or unwelcoming to people with disabilities. As a result, people with disabilities are often unable to participate as fully in community or religious events.

The National Organization on Disability has led a national effort to make places of worship accessible and welcoming to all Americans. Many organizations and congregations want to be open to all but have limited resources to ensure accessibility.

Every effort should be made to ensure that Americans with disabilities have the opportunity to be integrated into their communities and welcomed into communities of faith.

Summary of Proposals

Establishes a National Fund to Provide Matching Grants for Accessibility Renovations for ADA-Exempt Organizations: To assist private clubs and religious organizations in making sure that their facilities are fully accessible and to expand access for all, the proposal provides annual Federal matching grants to ADA-exempt organizations making renovations or accommodations to improve accessibility. Because all ADA-exempt organizations will be eligible for the grants, irrespective of whether they are religious or secular, they would comport with the Supreme Court's test for constitutional neutrality.