Within the US Department of Labor, Patricia A. Shiu directs the Office of Federal Contract Compliance Programs (OFCCP). Her team makes sure that contractors who do business with the federal government adhere to affirmative action and equal employment opportunities for both job seekers and wage earners.
Recently, OFCCP proposed new rules that will compel contractors and subcontractors to set a hiring goal of 7 percent for workers with disabilities. Shiu discussed the changes on the horizon with ABILITY’s Pamela K. Johnson and Stan Hoskins.
Pamela K. Johnson: I see that you worked as an attorney and a litigator. How would you sum up your background before you joined the OFCCP?
Patricia A. Shiu: My first law job was working as a law clerk for Arlene Mayerson, who as you know is one of the leading advocates for the disability community. As a civil-rights litigator advocating for the working poor and their families, I worked on disability discrimination cases, and class action cases—some against the San Francisco Unified School District.
At one point there was not even one totally accessible school in all of San Francisco. I also worked on classaction lawsuits against UC Davis and UC Berkeley on behalf of hearing impaired and visually impaired students. I have a commitment to this area of civil rights.
Stan Hoskins: How do you manage a staff of 800?
Shiu: I have an excellent team in the national office, and extremely talented regional directors and deputy directors throughout the country, including our compliance officers who are the heart and soul, I think, of the OFCCP in terms of their commitment to Labor Secretary Hilda Solis’s vision of good jobs for everyone.
Johnson: What direction do you give them regarding protection of workers, diversity and enforcing the law?
Shiu: We’ve hired and trained 200 new compliance officers, and we’re engaged in further training both at the intermediate and advanced stages. There are also interim trainings that we provide people on regulations and new development.
With respect to disability issues, I don’t know if you know this, but prior to this administration, there had really not been much attention paid to enforcing section 503 of the Rehabilitation Act, which is one of the laws that we enforce, because 25 percent of the American workforce works for federal contractors.
When you think federal contractors, you think big companies. It’s really important that we ensure that we are opening doors for everybody, including people with disabilities. And of course that means that places have to be accessible. So we’re working a lot to try and provide what I call the three-dimensional equal employment opportunity philosophy and affirmative action.
I find that every workplace tells a story. It may not be a story of discrimination, but it may be a story where there’s some mismanagement going on. I want to make sure that my compliance officers are steeped in the law, and understand how to investigate cases with a real eye towards accuracy, thoroughness and completeness, so they can serve the American people and ensure that there’s no discrimination going on.
Johnson: When and why did you hire the 200 compliance workers, and does that mean that your staff is actually closer to 1,000 now?
Shiu: It’s actually around 750. The 200 compliance workers were hired when President Obama was elected, because of his commitment to civil rights. Those 200 employees had been essentially laid off over a number of years, and they were backfilled.
Between the OFCCP, the Equal Employment Opportunity Commission and the Department of Justice, we are working together as one federal civil rights government on one civil rights agenda, which hasn’t been done for almost 50 years. We share resources; we cross train; we talk to each other—and I don’t mean at just the top levels; it goes on at our compliance officer level and investigator levels, as well.
Hoskins: Why is it necessary to update the federal contractor rules dealing with recruitment and hiring of people with disabilities?
Shiu: They are sorely out of date, and to be quite honest with you, they have focused on good-faith efforts for affirmative action and process-oriented steps that federal contractors could take to increase the number of people with disabilities. But I think the numbers show that over the past 40
years, people with disabilities have among the highest of unemployment rates, and it’s time for us to get serious about this.
Good-faith efforts haven’t worked. What gets measured gets done. This is not something new in terms of the goals that we’re setting, which of course are aspirational but enforceable—enforceable because we can enforce the actions that are taken or not taken with respect to getting to the goal. These are the sort of things that we’ve done to measure progress with regards to race and gender for many, many years.
We’re opening the doors for federal contractors who, up to this point, have really not taken advantage of all of the skills and experience and expertise that people with disabilities can bring to the workforce.
Hoskins: Are there any indications that some contractors are skirting the existing rules?
Shiu: Yes. There is some evidence of that. When there is fear, when there is ignorance, it makes it very difficult. I’ve represented a lot of people with disabilities, and quite frankly, there are some jobs that not all of us can do, but for the most part, people with disabilities can do the bulk of the jobs that are available, usually with some reasonable accommodation, or even without reasonable accommodation. So the days where people assume that somebody can’t climb a pole because they don’t have a limb, well that’s the Dark Ages.
There are contractors who are committed to doing this, including the Organization on Disability, which is a consortium of very big federal contractors, including Sam’s Club and others. When the regs came out, they actually wrote a press release talking about how supportive they were of the goal. So I think when you have contractors who understand the objectives, and who have a commitment to changing the culture, then things can happen.
Hoskins: What type of penalties are in store for contractors who don’t adhere to the rule?
Shiu: There are a number of specific steps that we’re requiring of contractors, including data collection, and recruitment efforts, as well as measuring those efforts, along with retention. And it’s all of those tasks, including the measurements, that are going to be subject to investigations and audits. So if contractors don’t undertake any of these specific, mandatory steps, they can be subject to violations.
It’s important to look at the goal as something that you want to reach. But even if you’ve reached the goal, that doesn’t mean there isn’t more that could be done. And it doesn’t mean that people who do everything and who don’t reach the goal aren’t successful. But you have got to make the effort to do it. You’ve got to be committed to it. You’ve got to measure what you’re doing, figure out where you’re falling down, and fix it. Our ultimate sanction is debarment.
But we’re here to provide technical assistance to contractors. They don’t have to pay an expensive consultant in order to figure out what they need to do; we have almost 800 employees who are ready to help them. They can call us. We don’t retaliate against people who call us and ask us for advice. We really are very receptive to people who need the guidance, particularly small businesses, small contractors and new businesses. We don’t want them to have to try and understand the regulation by themselves and navigate through it; we’re here to help them succeed.
Johnson: What is the process of a proposed rule being adopted?
Shiu: We actually gave advance notice of the proposed rule because the regulation was so old, and because I didn’t feel like OFCCP had really engaged enough with its stakeholders. We submitted an Advanced Notice of Proposed Rulemaking, asking a number of questions, and then we went around the country, literally, and spoke with stakeholders about their thoughts, their ideas about this regulation, including what’s worked in the past, what hasn’t worked and best practices.
Based on the feedback, we’ve come out with a Notice of Proposed Rule, and then we gave people a comment period, and now we’re looking at all of the comments, taking them all into consideration, before we put out a Final Rule, which then becomes the law.
Hoskins: When the rule is updated, do you expect to see an increase in the number of people with disabilities finding employment?
Shiu: From your lips to God’s ears. (laughter) Yes, I do. That’s the whole point of this.
Johnson: And how will you verify that companies are complying with the new rule?
Shiu: We have a three-part process: We schedule approximately 4,000 audits. It’s a neutral selection system. We go in and we tell people that we’re going to audit them. They have certain duties as a federal contractor. When they sign on the dotted line to make that widget or make that ship or provide pharmaceuticals, they agree to not discriminate and to engage in affirmative action, which means that they have to have an affirmative action plan.
You’re supposed to keep data, update it, and actually look at it. It should affect how people get hired and employed and paid. Very often the affirmative action plans are not used to the best extent that they could be. But it’s that sort of information that we unearth and analyze. We do onsite audits as well. We talk with witnesses, we talk with corporate people, workers, management, etc., to really try and unearth, as I said, the story at that particular workplace.
Johnson: Anecdotally speaking, as you went around the country looking at these various businesses, what challenges did they face in complying with the rule?
Shiu: One thing I can say is that there are a number of very large contractors that stood out in terms of taking this to the next level. Michael Reese Hospital in Chicago has a lot to be proud of. They had people there who took the time to share with other federal contractors what they do in their hospital so that people are included. And they had exuberance, great ideas, and commitment. They are now in the lead in terms of inculcating the notion that all people, including people with disabilities, can be productive workers in that particular environment.
I also see a whole range of people who have never worked with someone with a disability, who have no understanding of what that might mean, and who exhibit a certain amount of fear and ignorance. On one of my webinars, I got a call from a person who said that she runs a small construction company, and she asked, “How can somebody with a disability operate heavy machinery?” I said, “Well, actually, I worked on a case involving deaf individuals who worked with forklifts in big box stores.”
So it’s shattering some of those myths, those stereotypes, I think. That’s just a matter of education and exposure. If you’ve ever known or worked with a person with a disability, you will see that they’re just like anybody else.
Hoskins: Are you frustrated by the pace of change in regards to inclusion of people with disabilities?
Shiu: I am hopeful. It’s been a real pleasure and a privilege for me to work for this administration. I come to the office every day knowing that we’re going to make good on this. This is a game changer. Secretary Solis has said that she thinks this is the biggest change since the enactment of the ADA, and all I know is that I just want to play a small part in making sure that this becomes a reality.
Johnson: Senator Harkin has a goal to have six million people with disabilities employed by 2015. Does your office ever work with his office on these initiatives?
Shiu: We work with Senator Harkin’s office whenever we can. He’s a great advocate on all issues for workers, and he’s committed to getting as many people with disabilities as possible into the workforce.
Johnson: How do you broaden out what’s happening at the federal level in terms of contractors and subcontracts to other companies through America?
Shiu: The history of OFCCP started with President Roosevelt who issued an order that prohibited discrimination by federal defense contractors against African- American people. Think about all the various Republican and Democratic administrations that have built upon that principle.
The federal government is always the model employer, and it always should be the model employer, which is why the President has also challenged federal agencies to hire more people with disabilities.
When you talk about federal contractors, you’re talking about Boeing, about pharmaceutical companies, about poultry companies, meat companies, meat packers, furniture companies. It’s everybody. All you have to have is a contract for $50,000 and 50 employees and you’re subject to affirmative action. If you have a contract of $10,000 and 50 employees, then you’re subject to the executive order. So there are some differences in terms of some of the other regulatory jurisdictional limits, but essentially the idea is, if we can do this for one in four American workers, it’s going to have a ripple effect.
The Office of Disability Employment Policy (ODEP) recently celebrated its 10th anniversary with more than 200 beneficiaries, staff members and policy leaders joining in the events at the department’s Washington, DC, headquarters.
“The conversation has shifted away from whether people with disabilities can work, to what tools and supports are needed to assist them in doing so,” said Secretary of Labor Hilda Solis, reflecting upon the agency’s evolving mission.
ODEP is under the auspices of the United States Department of Labor (DOL), run by Solis, and supported by staff members Seth Harris, deputy secretary of labor, and Kathleen Martinez, assistant secretary of labor.
Senator Harkin (D-IA), Congressman Steny Hoyer (D-MD) and a number of other prominent disability rights advocates attended the event. Becky Ogle, the executive director of the former Presidential Task Force on Employment of Adults with Disabilities was there, as were former U.S. Congressman Tony Coelho, the primary sponsor of the Americans with Disabilities Act; Kareem Dale, the special assistant to the President for Disability Policy; and former assistant secretaries of labor for disability employment policy, W. Roy Grizzard and Neil Romano.
Solis reiterated her goal of “good jobs for everyone,” including people with disabilities. On the DOL’s official blog, Work in Progress, she noted, “In the decade since joining the DOL family, ODEP has been challenging outdated stereotypes and attitudes that keep people with disabilities out of the workplace, while aligning policy and practice to open the doors to employment opportunities.”
She cited efforts between the Bureau of Labor Statistics and ODEP to collect statistical data on the employment of people with disabilities, as well as the creation of the Job Accommodation Network, Workforce Recruitment Program, and the “Add Us In” initiatives, as examples of ODEP’s leadership in working to improve job opportunities for individuals with disabilities.
Most recently, Solis announced her hearty support of a proposal by DOL’s Office of Federal Contract Compliance Programs that would revise Section 503 of the Rehabilitation Act of 1973, which governs the affirmative action obligations of federal contractors and subcontractors.
Under the revised rules, contractors and subcontractors with 50 employees and $50,000 or more in government contracts would obligated to set a hiring goal for workers with disabilities with a target of 7 percent.
This is a significant, concrete step when federal contractors and subcontractors account for approximately 25 percent of the nation’s workforce. The proposal would also clarify what is expected of businesses in regards to employing people with disabilities and encourage businesses to comply with their legal responsibilities.
Hoyer applauded ODEP’s accomplishments, and said that its programs help individuals with disabilities find meaningful work: “Opening up work opportunities, including internships and training programs to those with disabilities, will not only serve the interests of justice and equality, but also enable businesses, nonprofits, and governments to tap into their talents, skills and energy.”
by Bodgdon Vitas