August 14, 2025
Catherine L. Eschbach, Director
Office of Federal Contract Compliance Programs
United States Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210
RE: Modifications to the Regulations Implementing Section 503 of the Rehabilitation Act of 1973
Dear Director Eschbach:
The National Federation of the Blind is the nation’s premier membership and advocacy organization of blind Americans, and we appreciate the opportunity to comment on the Office of Federal Contract Compliance Programs’ (OFCCP) proposed rule. Due to our longstanding advocacy efforts to improve employment opportunities for the blind of America, we must oppose the OFCCP’s proposal to rescind the affirmative action and employment utilization goal of Section 503 of the Rehabilitation Act of 1973.
Since our founding in 1940, we have worked tirelessly to advance the lives of our tens of thousands of members from our fifty-two affiliates, as well as all blind people in the United States. Naturally, a significant part of our advocacy over the past eighty-five years has been striving to ensure that blind Americans are able to obtain steady, fulfilling, and gainful employment. The OFCCP’s proposed rule is contrary to those efforts.
Section 503 of the Rehabilitation Act requires federal contractors with contracts in excess of 15,000 dollars to engage in “affirmative action to employ and advance in employment qualified individuals with disabilities” (29 U.S.C. § 793). By requiring “affirmative action,” Congress thus imposed higher obligations on federal contractors – beyond mere nondiscrimination – than it imposed on noncontractor employers under the Americans with Disabilities Act (“ADA”).
The Office of Federal Contract Compliance Programs promulgated regulations clarifying the meaning of “affirmative action” for purposes of Section 503 by specifying that federal contractors should have an affirmative action policy and plan in place, undertake positive outreach and recruitment activities to recruit individuals with disabilities to apply, invite applicants and employees to voluntarily self-identify as people with disabilities for purposes of affirmative action, and use a utilization goal of having 7 percent of their employees be people with disabilities as a guideline for assessing their progress. This regulation went through extensive notice and comment and reflected a compromise lower than the prevalence of people with disabilities in the working-age population (approximately 20 percent).
Importantly, the invitation for applicants and employees to self-identify as people with disabilities under Section 503 is voluntary and the self-identification can only be used for affirmative action purposes. No individual with a disability is required to self-identify, there are no penalties for failing to self-identify, and the self-identification is subject to strict confidentiality protections.
The self-identification cannot be used to discriminate and cannot be compelled. These protections distinguish Section 503 self-identification from the pre-employment medical inquiries prohibited by the ADA Title I regulations, which are mandatory and could be used for the purpose of discrimination.
However, OFCCP, in proposing to rescind the Section 503 self-identification requirement conflates the Section 503 self-identification requirements with the prohibited pre-employment medical inquiry prohibition. Indeed, even the ADA permits post-offer medical examinations before an employee starts working and permits employers to seek voluntary medical information for purposes of employee wellness programs.
There is no legal basis for OFCCP’s conflation of the Section 503 and ADA provisions. The Equal Employment Opportunity Commission, which is legally responsible for interpreting Title I of the ADA, has repeatedly made clear that disability affirmative action programs, including voluntary self-identification, do not violate the ADA.
The Office of Federal Contract Compliance Programs refers to merely one example of the EEOC’s expression of this conclusion – a 2013 letter from the EEOC Legal Counsel to the OFCCP Director. It ignores the fact that the EEOC’s position has been consistent for three decades and has, indeed, been issued by the Commission itself and not merely its Legal Counsel (See Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, 1995).
In addition, in the thirty years since that guidance was issued, and in the decade since the Section 503 self-identification regulation was promulgated, no court has found that voluntary affirmative-action-related self-identification violates the ADA. Far from being an “exception” to the ADA prohibition on mandatory pre-employment inquiries, the Section 503 voluntary self-identification requirement is fully consistent with, and furthers the goals of, the ADA.
There is also no basis for eliminating the Section 503 utilization goal. Again, no court has found the goal to be illegal and OFCCP does not provide any basis for finding the goal illegal. The Section 503 regulation specifically provides that quotas are not required, and in fact are prohibited. Thus, there is no basis for OFCCP’s unsupported conclusion that “contractors may, in practice, be induced to using quotas to meet the utilization goal.”
There is no evidence – and OFCCP cites to none – that contractors are instituting disability quotas. The utilization goal requirement merely provides a benchmark for contractors to assess their progress toward a nondiscriminatory workplace. Because the ADA does not protect nondisabled people and the United States Constitution merely protects nondisabled people under the rational basis standard, a nondisabled person would not have standing to challenge the utilization goal, even if it did result in a quota.
Because disability discrimination in employment is so prevalent and because employment rates of people with disabilities have consistently lagged so far behind disability prevalence in the workforce (see US Bureau of Labor Statistics, Economic News Release, Persons with a Disability: Labor Force Characteristics Summary (showing working-age disabled people with double the unemployment rate and half the labor force participation rate of nondisabled people)) there are good policy reasons, far beyond a rational basis, to require affirmative action and to provide contractors a tool for assessing their progress in eliminating disability discrimination.
It is worth noting that according to the American Community Survey, conducted annually by the United States Census Bureau, the full-time/full-year employment rate for blind, working age (ages 21-64) Americans has increased steadily each year since the implementation of the Section 503 utilization goal regulation in 2014.
In fact, the rate has increased by nearly 12 percent in the decade since the regulation has been in effect. Prior to that, the number was stagnant. We know there have also been advancements in training, education, and technology in that time, but with all of these factors combined the employment rate for the blind of the nation is trending in a positive direction and we would hate to see any of that progress reversed.
Once again, we appreciate the opportunity to comment and we are available to answer any further questions you may have.
Sincerely,
Mark A. Riccobono, President
National Federation of the Blind