Federal Court: Construction Contractors Must Comply with New Affirmative Action Disability Regulations Effective Today

On September 24, 2013, the Office of Federal Contract Compliance Programs (OFCCP) finalized regulations for federal contractors on the employment of individuals with disabilities. The new regulations require federal contractors to aim toward a utilization goal of 7 percent of individuals with disabilities in each of the contractor’s job groups. To measure this goal, contractors are required to solicit disability information from applicants. This is an unprecedented change for construction contractors who previously were not required to elicit or analyze data from applicants. 

In November 2013, Associated Builders and Contractors, Inc. (ABC) filed a complaint challenging the legality of the regulations as applied to construction contractors. ABC argued that the fluid and transitory nature of the construction industry makes collecting disability information significantly burdensome and ultimately meaningless. ABC also argued that the disability regulations should not apply because construction work is “uniquely hazardous and physical compared to other industries.” On March 21, 2014, the court rejected ABC’s arguments and held that the OFCCP has the authority to issue these regulations. Associated Builders &Contractors, Inc. v. Shiu (D.D.C. 2014). The ruling came on the eve of the regulations’ March 24, 2014 effective date.

Construction contractors with qualifying federal contracts must now solicit disability information from applicants and employees, and analyze the effectiveness of their outreach and recruitment efforts to recruit and employ individuals with disabilities. Construction contractors are required to continue tracking their compliance with the 16 action points that the OFCCP has defined to show compliance with Executive Order 11246. In addition, and for the first time, construction contractors will have to analyze applicant and employee data to complete the written disabled affirmative action plan.

To assist construction contractors in complying with these new regulations, MSEC is offering a briefing session in May 2014.  In the meantime, please contact Sandie Harrison Melinda Sanders from our Affirmative Action Planning Services at 800.884.1328 with questions.