Posted tagged ‘ADA’

President Issues Executive Order to Increase Federal Employment of Individuals with Disabilities

October 4, 2010

July 27, 2010

Despite a strong economy, the passage of landmark legislation, the Americans With Disabilities Act (ADA), government tax incentives, and a record low unemployment in the 1990s, the employment rate of individuals with disabilities actually decreased. Now, with unemployment looking to be a continuing issue for the American worker, individuals with disabilities may find it even more difficult to obtain employment.

According to the U.S. Census Bureau, about 54 million Americans—or approximately one out of five—have some kind of disability and 26 million of those individuals—or approximately one out of 10—have a severe disability. In the prime employable years of 21 to 64, 82% of Americans without a disability have a job or business compared with 77% of those with a non-severe disability and 26% of those with a severe disability.

To address the issue, July 26, 2010, President Obama addressed a ceremony honoring the 20th anniversary of the Americans With Disabilities Act, calling it “one of the most comprehensive civil rights bills in the history of this country.”

“Not dependence, but independence,” Obama said. He then signed an Executive Order intended to establish the Federal Government as a model employer of individuals with disabilities. The order directs several federal agencies to design model recruitment and hiring strategies for agencies seeking to increase their employment of people with disabilities, as well as mandatory training programs for both human resources personnel and hiring managers on the employment of individuals with disabilities.

The White House described the new order as a means of fulfilling a “… pledge by the President to have the federal government be a model employer of people with disabilities.  … and establishes mechanisms such as mandatory training for hiring managers, requires preparing of strategic plans by agencies to be approved by OPM and OMB, requires OPM to develop model guidelines and assistance for hiring people with disabilities, reporting to the President about progress, and publicizing results on a website as a way to promote transparency.”

The Fair Labor Standards Act (FLSA), which establishes the federal minimum wage and overtime pay requirements, contains a provision allowing for the employment of individuals with disabilities at special minimum wages (SMW).

A SMW is a commensurate wage paid a worker with a disability that is commensurate with that worker’s individual productivity as compared to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the vicinity where the worker with a disability is employed. Payment at SMWs is only permitted under certificates issued by the Wage and Hour Division (WHD) of the DOLs Employment Standards Administration.

Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations from discriminating in employment against qualified individuals with disabilities.

Title II of the ADA prohibits state and local governments from discriminating against qualified individuals with disabilities in programs, activities, and services. As a matter of practice, each agency requires federal contractors to comply with these provisions in all qualified contracts.

ADA is primarily enforced by the Equal Employment Opportunity Commission (EEOC), an independent federal agency.

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Department of Labor reaffirms commitment to the ADA’s principles

October 4, 2010

The Americans with Disabilities Act (ADA) provides broad nondiscrimination protection in employment, public services, public accommodations, and services operated by private entities, transportation, and telecommunications for individuals with disabilities. As stated in the act, its purpose is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

According to Sheridan Walker, President HirePotential, Inc., a study to understand the effect of accessible technology for the general population (with or without disabilities) was conducted by Forrester Research Inc. (2003) “In the United States, 60% (101.4 million) of working-age adults who range from 18 to 64 years old are likely or very likely to benefit from the use of accessible technology.”

With the enactment of the Health Information Technology for Economic and Clinical Health (HITECH) Act as part of P.L. 111-5, the economic stimulus bill that the President signed into law on February 17, 2009, Internet accessibility issues are about to become increasingly topical. Last week the President and Department of Labor demonstrated this fact as they announced initiatives to begin a systematic focus on ADA accommodations and accessibility progress since the law went into effect twenty years ago.

An event on Friday to celebrate the 20-year anniversary of ADA provided a unique opportunity for the Department of Labor to reaffirm its commitment to the ADA’s principles of equality, access, and inclusion; and to commit itself to ensuring that the goals of a diverse workforce and good jobs for everyone includes workers with disabilities. The keynote speaker for the event was former United States Congressman Tony Coelho, an author and sponsor of the ADA and Board Chair of the American Association of People with Disabilities (AAPD), who shared his thoughts on the impact of the ADA and the importance of initiatives designed to increase the effectiveness of the Act.

Congressman Coelho’s comments are further substantiated by a recent poll conducted to learn more about the opinions of people with disabilities, their family members and individuals who work with people with disabilities, the government sought information about how well the ADA is being implemented in their communities. Overall the results indicated that the majority of the more than 3500 respondents indicated that while they saw progress over the past 20 years, barriers to community participation and employment continue.

When asked if accessibility will become a part of the OFCCP assessment as it relates to the on-line application process, Patricia Shiu, Director of OFCCP responded, “Yes – on-line accessibility is one of the OFCCP’s focus initiatives. We consider it a critical element in ensuring that all applicants and employees have equal access to employment opportunities.” Currently, all Federal Agencies must have Section-508 Compliant web sites, and that includes anyone the Federal Government uses as a supplier/vendor.

In response, Naomi Levin from OFCCP said that “OFCCP will retain and investigate individual complaints involving a contractor’s online application system.”

The focus on accessibility is given credence by the DoJ who have long affirmed that web sites can be “places of public accommodation” and the lower courts have held that inaccessible web sites can give rise to ADA violations. A consistent argument holds that it is not economically un-feasible to make web site functions accessible.

However, the ADA, enacted on July 26, 1990, prior to widespread use of the Internet, did not specifically cover the Internet and the issue of coverage has not been definitively resolved. Although the Supreme Court has not addressed this issue there are some lower court case decisions that directly discuss the ADA’s application to the Internet.  Yet those decisions vary in their conclusions about coverage.

In Martin v. MARTA, Judge Thomas W. Thrash, Jr. stated in his order that “MARTA can do a better job of making information available in accessible formats.” The judge stated that although MARTA did provide information to people with visual impairments over the telephone, this service was not equivalent to that provided over the Internet to non-disabled passengers. Although MARTA is attempting to correct accessibility issues on its Internet site, Judge Thrash found that “MARTA must deliver on its promises”. “Until these deficiencies are corrected,” the judge stated, “MARTA is violating the ADA.” 

To attend to the shortcomings of compliance efforts, a directive for Evaluation of Online Application Systems was issued requiring online application systems to be accessible to persons with disabilities last month.  Although there is no current guidance from OFCCP, it is clear that they may ultimately require extensive redesign of websites to increase accessibility. The obvious take away is that OFCCP scrutiny can, and very likely will, lead to an increase in ADA suits for web accessibility.

OFCCP intends to publish new regulations late in 2010 for Veterans and Persons with Disabilities The Proposal is likely to strengthen requirements in AAP(s) for veterans and persons with disabilities and may include placement goals for veterans and persons with disabilities (even though no data on these groups exists!)

According to Walker, “it is clear what the courts are saying, if your company does business over the web, you need to consider if your website or web based applications give a person with disabilities the same access to information as a person  without disabilities?” She further states that “just as you provide ramp access to a building, you would provide a ramp access to your on-line site.”

Walker emphasizes that there is an upside for businesses working to increase accessibility of their on-line applications.  As a result of a technical review and upgrade, businesses also increase the on-line search and document management capability of their sites, as well as to ensure consistent branding capacity and meta-data quality.

To accomplish a system review, it is important that key transactional paths are tested and all functional pages sampled to ensure full documentation towards a plan to resolve, and implement solutions for accessibility issues.

Doing a review allows a baseline document to demonstrate “good faith efforts at compliance” with accessibility requirements, and also helps to achieve a more technical and user friendly environment with a software lifecycle enhancement through:

  • The ability to map to Internal Content Standards
  • Accessibility testing built into the QA & Development Cycle
  • Integration of accessibility into Content Management System work-flow processes

One thing is for sure, to not document, results in conciliation agreements issued by OFCCP and no longer will a more generalized outreach be sufficient.

You can connect with HirePotential by contacting Kelly Egan, Vice President Business Development or by visiting their website www.hirepotential.com, The Leader in Integrating the Untapped Workforce