An attempt by Associated Builders and Contractors to stop a final rule issued by the Office of Federal Contract Compliance Programs that requires contractors and subcontractors, including construction contractors, to establish a seven percent utilization goal for the employment of workers with disabilities has been rejected by the District Court for the District of Columbia. The rule, published in the Federal Register on September 24, 2013 (78 FR 58682), revises the OFCCP’s regulations at 41 CFR Part 60-741 that implement the provisions of Section 503 of the Rehabilitation Act. In addition to the utilization goal, the rule will also impose new data collection and recordkeeping requirements. Accordingly, the rule will take effect as scheduled today, March 24.
Among other things, the court held that the rule’s pre-offer self-identification inquiry requirement does not violate the American with Disabilities Act and that the OFCCP’s methodology for reaching the seven percent figure for the utilization goal was legally permissible. Notably, the court also found that, in promulgating the rule, the OFCCP was justified in refusing to exempt construction contractors and reasonably rejected arguments that construction work is uniquely hazardous and physical compared to other industries. In addition, the court found that the OFCCP’s interpretation of Section 503 did not exceed its statutory authority and was a permissible construction of the statutory provision. For the text of the ruling, dated March 21, 2014, see Associated Builders & Contractors v Shiu.