Annual report on federal disability policy highlights gaps in enforcement

For Immediate Release 

October 31, 2018

WASHINGTON, D.C. – The National Council on Disability—an independent federal agency—today released its annual progress report on national disability policy, titled, Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws.

In this report, the Council revisits the NCD report, Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act, released in 2000, to assess the progress made by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Access Board to address NCD’s recommendations in the 2000 report. In this year’s report, NCD also uses the framework developed in Promises to Keep to consider the efforts of the U.S. Department of Labor’s (DOL) Employment and Training Administration, Office of Disability Employment Policy, Office of Federal Contract Compliance Programs, Office of the Solicitor, and the Wage and Hour Division to protect and advance the employment of people with disabilities.

The report examines and offers recommendations on these agencies’ implementation and enforcement activities related to the Americans with Disabilities Act and other federal disability rights laws and programs.

“During this time of economic expansion, job growth, and technological advancement in this country, it is vital that we ensure robust implementation of disability rights laws to ensure that Americans with disabilities share equally in the expanding opportunities,” said NCD Chairman Neil Romano.

Each year, NCD submits a report to the White House and Congress to report on the progress of national policy on behalf of people with disabilities and to offer recommendations on continuing, new, and emerging issues that affect their lives.

Since Promises to Keep was released in 2000, although progress in disability rights compliance has occurred, the overall results are mixed.

Eighteen years later, although there has been legal progress to ensure greater opportunities for people with disabilities, best exemplified by the bipartisan passage of the Americans with Disabilities Act Amendments Act (ADAAA) in 2008, federal enforcement agencies still face, or themselves create, bureaucratic, communications, budgetary, regulatory, staffing, and in some cases technological hurdles that can negatively impact the full realization of equal rights for people with disabilities.

Among NCD’s key findings in this report are the following:

• The number of discrimination complaints filed with EEOC increased significantly after passage of the ADAAA, as has the number of ADA cases filed by the EEOC in federal court. The EEOC, however, lacks a strong public quality assurance document to assess ADA investigations, does not clearly articulate how people with disabilities can request an accommodation through the new online public portal, and its investigative priority assignment system has the potential to negatively impact people with certain disabilities.
• DOL’s Office of Federal Contract Compliance Programs (OFCCP), responsible for oversight of affirmative action for people with disabilities by federal contractors under Section 503 of Rehabilitation Act, conducts a small number of compliance reviews of federal contractors and almost exclusively uses conciliation agreements to address violations.
• DOL’s Wage and Hour Division (WHD), has made leadership, management, and enforcement progress in oversight of the Section 14(c) subminimum wage program in the Fair Labor Standards Act, but does not investigate employers who do not renew 14(c) certificates or seek new resources to train investigators committed to 14(c) enforcement, and possesses an antiquated data system.
• The Access Board has developed important accessibility standards and the Board’s committees help identify emerging issues and to shape the research agenda. The Board, however, receives few complaints of inaccessible federal buildings and physical environments, and despite the ability to investigate based on noncomplaint information, relies solely on individual complaints.

Among NCD’s recommendations in this report are the following:

• That the EEOC create a specific method to assess the quality of ADA investigations, develop simpler documents, provide explicit explanation for requesting accommodations in the charge filing process, improve the response time to complainants, and study the charge investigations priority system.
• That ODEP revisit prior recommendations and evaluate how they have been adopted, continue to focus on persons with significant long-term disabilities seeking to enter the workforce, and that Congress and the President require relevant agencies to consult with ODEP.
• That OFCCP modify its compliance review procedures and improve staff levels to better identify and deter violations of Section 503 and ensure the focus in regulatory development is on the advancement of employment of people with disabilities.
• That WHD improve data collection and analysis, use directed investigations in Section 14(c) enforcement, increase education on the rights of workers paid a subminimum wage and analyze Family and Medical Leave Act violations.
• That the Access Board expedite the development of needed standards, investigate key parts of a facility during a complaint investigation, ensure timely completion of investigations, and partner with other enforcement agencies.

Read the full report at https://ncd.gov/progressreport-publications/2018/has-promise-been-kept

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