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Legal Alert: Trade Association Challenges OFCCP's Rehabilitation Act Rule

Date   Nov 22, 2013

A construction trade association has sued the director of the OFCCP and the Secretary of Labor, seeking to exclude government contractors in the construction industry from the data collection and utilization review analysis requirements of the OFCCP's new rule amending the requirements for government contractors under § 503 of the Rehabilitation Act. 

Executive Summary:  A construction trade association has sued the director of the OFCCP and the Secretary of Labor, seeking to exclude government contractors in the construction industry from the data collection and utilization review analysis requirements of the OFCCP's new rule amending the requirements for government contractors under § 503 of the Rehabilitation Act.  The lawsuit, filed by the Associated Builders and Contractors, Inc. (ABC), claims the OFCCP's new rule "imposes unprecedented, wasteful and burdensome data collection and utilization analysis requirements on government construction contractors, without statutory authority and in an arbitrary and capricious manner."

The OFCCP published its rule, "Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities," in September 2013, and it is scheduled to take effect in March 2014.  The rule establishes a 7 percent utilization goal for disabled individuals within each job group of the workforce for covered federal contractors.  It also requires contractors to engage in data collection and analysis with regard to their hiring and employment of disabled workers.

The lawsuit claims that the Rehabilitation Act does not authorize the President or OFCCP to require data collection or analysis with regard to the hiring or employment of disabled individuals.  Further, the suit notes that the Act has been amended numerous times in the past four decades; however, unlike the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), Congress has never amended it to authorize any change in the affirmative action requirements for government contractors.  Additionally, the lawsuit notes that in the past, the OFCCP has exempted construction contractors from similar forms of data collection because of the industry's uniquely fluid and temporary workforce.

The lawsuit argues that the new rule imposes burdens on small businesses that frequently do not have the staff to perform data collection and analysis.  The suite further claims that requiring contractors to track the application and hiring of individuals with disabilities is even more problematic for the construction industry than other industries because of the uniquely hazardous and physical nature of construction work.

The OFCCP has declined to comment on the lawsuit.  We will keep you updated on the status of this challenge to the OFCCP's new rule.

If you have any questions about the new rule or federal contractors' affirmative action and nondiscrimination obligations, please contact Linda Cavanna-Wilk, lcavanna-wilk@fordharrison.com, who is a member of FordHarrison's Affirmative Action/Government Contracts Group.  You may also contact the FordHarrison attorney with whom you usually work.