Is Your Company Ready to Meet its New Disability Hiring Quota?

Is Your Company Ready to Meet its New Disability Hiring Quota?

March 06, 2012
Originally published in Forbes

Has the economy got you worried about reelection? Looking for clever ways to showcase your bona fides as a promoter of “fairness,” champion of the little guy, and scourge of big business? Want to fill the front pages with dumb pronouncements that distract voters from the real issues? Then don’t miss a chance to goad your opponents into taking a principled stand against intrusive government which your allies in the media can easily spin as being insensitive to the plight of the less fortunate.

The White House did such a boffo job firing up its base with its “heads I win, tails you lose” culture war initiative against the Catholic Church that it apparently decided to pick a new fight over the imposition of handicapped hiring quotas. Get ready for an onslaught of new regulations, litigation, intimidation, and selective enforcement, as the Obama administration works to transform the Rehabilitation Act of 1973, which prohibits discrimination against the handicapped, into an affirmative action quota system.

Under changes proposed by Obama’s Labor Department, 7 percent of a company’s employees will soon have to qualify as disabled if the company hopes to continue doing business with the federal government. “What gets measured gets done,” Patricia Shiu, director of the Labor Department’s Office of Federal Contract Compliance Programs, told The Wall Street Journal. “And we’re in the business of getting things done.”

The proposed regulations would go well beyond the “reasonable accommodations” and workplace access requirements called for in the Americans with Disabilities Act. They would impose, for the first time, numerical reporting and hiring quotas on employers. And just to make sure hiring managers don’t fill these quotas with low-wage, make-work jobs that end up becoming just another cost of doing business with the federal government (all passed on to you, the taxpayer and consumer), DOL will monitor subsets of workers grouped by skills and wage rates to make sure the handicapped are evenly apportioned throughout an organization. Stay tuned for 2,000 pages of regulations describing exactly how this is supposed to work, burdening companies with hundreds of thousands of dollars in additional training and compliance costs.

But that’s not all. The original Rehabilitation and Americans with Disabilities Acts were constructed to prevent employment discrimination and expand public accommodation, so the list of qualifying disabilities was made both flexible and expansive. This encouraged a parade of plaintiffs to flesh out the law. Thanks to two decades of litigation, covered handicaps now include not just physical limitations that can be objectively observed or documented by a physician, but behavioral handicaps like alcoholism, drug addiction, depression, ADHD, dyslexia, emotional disturbance, and a panoply of mental illnesses.

Inverting the law by turning it into a quota system will have little impact if so many people are covered that it is relatively easy to comply. How hard will it be to take a survey of existing employees to show that at least 7 percent of them drink too much beer, smoke pot, get depressed, are allergic to peanuts, or have had the occasional panic attack, not to mention anger management problem? Heck, we already know that a third are obese, which is now considered a handicap, rather than a lifestyle choice.

Hence, regulators are considering an additional rule that at least 2 percent of a contractor’s workforce must be made up of the “severely disabled,” meaning total blindness, deafness, or missing limbs. Hopefully, it will be some time before we hear reports of a desperate job applicant chopping off a finger to land a job.

The reaction of the business community has been both predictable and impotent, painfully aware that they are being set up for another public relations fiasco. How are employers supposed to meet handicapped hiring quotas when other employment laws strictly forbid them from asking applicants if they are handicapped? Not to worry, says Labor apparatchik Shiu. Job seekers will be encouraged to voluntarily self-identify their handicaps. Now there’s a litigator’s dream come true! Every rejected applicant that checked the handicapped box would have cause to sue for discrimination.

You can’t make this stuff up. Or maybe you can if you’re running for reelection as President and have the Labor Department at your beck and call. And you can keep making stuff like this up all the way into November, proving an assertion recently making the rounds based on research done at Cornell University: that people aren’t smart enough for democracy to flourish. Ya think?