Wall Street Journal: Obama’s New Disability Hiring Quota

Wall Street Journal April 9, 2012

The Wrong Way to Help the Disabled

A 7% hiring quota for government contractors is unfair and unwise.

By JAMES BOVARD

The Obama administration is on the verge of compelling most of the largest corporations and universities, as well as many smaller businesses, to adopt a 7% hiring quota for disabled job applicants—lest they be debarred from doing business with the federal government. This radical personnel policy could raise costs and slash the productivity of almost 200,000 companies with U.S. government contracts.

Announcing the proposed regulations for the quota last Dec. 8, Patricia Shiu, director of the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), declared: “For nearly 40 years, the rules have said that contractors simply need to make a ‘good faith’ effort to recruit and hire people with disabilities. Clearly, that’s not working.”

The evidence? Primarily that the percentage of disabled with jobs is lower now than it was in the 1980s. Yet as HR Policy, an association of chief human-resource officers, notes, the federal government itself has only 5% disabled on its payrolls—and the Labor Department’s percentage of disabled employees has decreased every year since President Obama took office, despite a sharp increase in the number of department employees.

The notice in the Federal Register about the hiring quota was more than 53,000 convoluted words, and many businesses and trade associations are vehement that the Labor Department’s $81 million estimate of the costs of compliance is greatly underestimated. HR Policy estimates the total cost would be at least $1.8 billion, not counting the losses resulting from companies hiring less-productive employees.

A deluge of record-keeping requirements will provide plenty of rope to hang contractors. The agency proposes requiring companies to invite all job applicants to label themselves as “disabled” prior to being hired. The International Food Service Distributors Association scoffed at this mandate: “The only thing that information is going to do is give OFCCP ammunition to challenge the non-hiring of individuals with disabilities who were not qualified to perform the jobs.” The regulations would also require companies to invite employees to label themselves disabled after being hired, and once a year thereafter.

The Americans with Disabilities Act Amendments of 2008 vastly expanded the definition of disability to include people with diabetes, depression, heart disease or cancer, as well as people who have significant troubles “standing, sitting, reaching, lifting, bending, reading, concentrating, thinking, communicating and interaction with others.” Anyone who is labeled disabled acquires a right to request “reasonable” accommodations from employers and others—with the federal government waiting to sue businesses who fail to pass muster.

The new regulations would require contractors with more than 50 employees to have a documented, specific reason why each disabled applicant was not hired. In recent cases, the agency has treated shortfalls of documentation as proof of discriminatory intent.

Every contractor would be compelled to annually review and document “the physical and mental job qualifications for [every] job opening . . . and provide an explanation as to why each requirement is related to the job to which it corresponds” and “consistent with business necessity.” But OFCCP has a long history of charging companies with discrimination for requiring more ability—such as the ability to read and write—than federal bureaucrats deemed necessary.

The agency’s disability quota is exceptionally draconian, in that it is proposing that all contractors achieve 7% disabled in each specific job group—which it defines as “one or more jobs with similar content, wages rates, and opportunities.” This job-group mandate is far more onerous than, say, an overall 7% quota. It is also patently unreasonable.

The Associated General Contractors of America, a construction industry lobby, has long complained that many construction craft positions are inherently unsuited and too perilous for physically disabled applicants. But the OFCCP has a long history of scorning common sense on safety—as I discovered when I investigated the agency in the 1990s.

In 1994, for example, the agency debarred Kentucky’s Commonwealth Aluminum Corp. in Lewisville, Ky., from federal contracts for refusing to hire applicants with serious back injuries and hernias for heavy-lifting jobs. The following year, the agency punished the Jack Kelley Trucking Firm in Amarillo, Texas, for refusing to hire a man who suffered from uncontrollable epileptic seizures to drive a truck full of hazardous waste. (Most companies, fearing retaliation, were afraid to talk about the details of their clashes with OFCCP.)

The agency’s approach to business is more militant, if not more pigheaded, now than it was in the 1990s. The OFCCP claims its latest proposal is not a quota—at the same time it warns contractors that “the primary indicator of effectiveness is whether qualified individuals with disabilities have been hired.” This is the same verbal flimflam the agency has used for decades to provide a legal cover for imposing racial hiring quotas on federal contractors.

The upshot is that the only way a company can be confident of avoiding federal charges is to hire by the numbers. Former OFCCP director Ellen Shong Bergman told Congress in 1995 that the agency compliance officers “who can cajole, defraud or bully contractors into behavior that goes beyond the agency’s legitimate authority, and sometimes goes beyond that permitted by any law . . . take on heroic status within the agency.”

The comment period has ended for the proposed regulations and the OFCCP could issue final rules at any time. Americans rightly favor helping the disabled. But using threats and quotas to move them to the front of the job line is unfair and unwise.

Mr. Bovard, the author of “Attention Deficit Democracy” (Palgrave, 2006), is working on a memoir.