On June 29, the Department of Education announced that it would delay the regulations that were set to take effect this month to address racial/ethnic disproportionality in the identification, placement, and discipline of students served by the Individuals with Disabilities Education Act (IDEA). The requirement for states and school districts to collect and report data on significant disproportionality, and take certain action if it is found, was added to the IDEA in 2004. However, since that time few states and school districts have reported any such significant disproportionality. In response to this problem, documented in a 2013 study by the Government Accountability Office (GAO), the Department of Education issued regulations in 2016 to require a standard methodology to calculate significant disproportionality. In February, the Department solicited public comment on a proposed delay of these regulations as part of President Trump’ Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” Nearly 400 comments were submitted in response with the vast majority opposing the delay, including comments from The Arc and from school districts already in the implementation process. The Department cited concerns about creating incentives for quotas and the need to study the issue further as justification for postponement. The Arc is very disappointed with the Department’s action and remains very concerned about the disproportionate numbers of minority students being over identified with certain types of disabilities, placed in segregated settings, and suspended and/or expelled.
Last week, the Department of Labor (DOL) announced that it has entered into a conciliation agreement to resolve allegations of disability discrimination by an American Job Center in Burnsville, Minnesota. As noted in the press release, the DOL Civil Rights Center investigated a complaint claiming that the Dakota County Burnsville WorkForce Center required a customer who was perceived to have a disability to attend an orientation for a vocational rehabilitation program before it would permit her to receive services that were not limited to individuals with disabilities. While not acknowledging that it violated the law, the WorkForce Center has agreed, among other provisions, that it will not automatically refer all customers with disabilities to disability-specific services, will not require participation in such services as a condition of receiving any services that are not disability-specific, and will conduct individualized assessments to determine whether a particular customer may be qualified for referral to disability-specific services.
The Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor announced a fifth and final webinar on March 6, 2014, at 2 p.m., that will focus on what contractors and subcontractors must do to meet their obligations under the recently released Section 503 final rule. OFCCP also has posted new Section 503 resources for federal contractors on its website. Section 503 prohibits discrimination in employment on the basis of disability by federal contractors and subcontractors. It sets a utilization goal for federal contractors to ensure that 7% of employees be individuals with disabilities.
The Equal Employment Opportunity Commission (EEOC) released data for fiscal year 2013 with breakdowns by state and by resolution of complaint for the 93,727 charges (complaints) of workplace discrimination filed with the agency. In FY13, there were 25,957 complaints of disability discrimination in employment which represented 27.7% of all discrimination complaints filed with EEOC and a 1.2% increase over FY 2012.
The Departments of Justice (DOJ) and Education (ED) jointly released a school discipline guidance package for schools to ensure that discipline policies do not discriminate against racial or ethnic groups or students with disabilities and help school leaders find alternatives to excluding students from classrooms or schools. The guidance materials cite data from the Civil Rights Data Collection that shows students with disabilities are disproportionately impacted by suspensions and expulsions.
Some of the major findings included data showing that students served by IDEA [the Individuals with Disabilities Education Act] represent 12% of students in the country, they make up 19% of students suspended in school, 20% of students receiving out-of-school suspension once, 25% of students receiving multiple out-of-school suspensions, 19% of students expelled, 23% of students referred to law enforcement, and 23% of students receiving a school-related arrest. Additionally, students with disabilities (under the IDEA and Section 504 statutes) represent 14% of students, but nearly 76% of the students who are physically restrained by adults in their schools.
The guidance emphasizes positive environments, prevention efforts, clear, appropriate, and consistent expectations and consequences, and continuous efforts to ensure equity. It highlights schools’ obligations under civil rights laws and provides numerous resources for their use.
Last Friday, the House of Representatives voted 261-157 to allow health insurers to continue to sell policies that do not meet the standards established by the Affordable Care Act (ACA) for consumer protections and comprehensive benefits. While the House has voted numerous times to repeal all or part of the ACA, this vote received more bipartisan support than previous votes. The ACA’s consumer protections included numerous provisions to prevent discrimination against people with health conditions and disabilities and to ensure fair health insurance premiums for people with health conditions. The law required health plans to provide a minimal level of benefits. The intent of these reforms was to make insurance sold in the individual and small group market more like plans offered by employers. It is not likely that the Senate will take up the legislation at this time, but several Senators have introduced similar bills. The Administration has threatened a veto.
Before the vote, the Department of Health and Human Services announced that it would allow states and insurance companies to renew plans that did not meet the new consumer protections and essential health benefit provisions for a transition period of one year. Insurers would not be allowed, as they would in the House plan, to sell new polices that do not meet the standards. The Administration announced the policy in a letter to state insurance commissions sent on Thursday, November 14th. States and insurance companies will decide if they will use this flexibility to continue to sell plans that do not meet the ACA minimal consumer protection and essential health benefit standards.
Last month, The Department of Labor (DOL) released final updates to regulations implementing Section 503 of the Rehabilitation Act. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals.
For the first time in 40 years, federal contractors and subcontractors will be required to meet the goal of ensuring that 7 percent of each job group in their workforce be qualified individuals with disabilities. The rule sets out required activities that contractors and subcontractors will need to take in recruitment, training, record keeping, and policy dissemination. The new rules are similar to those that have long been required to protect women and minorities against discrimination in the workplace.
The unemployment rate among people with disabilities is unacceptably high. The Arc has long urged DOL to hold federal contractors and subcontractors to the same non-discrimination standards for hiring people with disabilities as it does concerning women and minorities. Federal contractors employ about 25% of the workforce in the US and employ millions of workers. The Arc is pleased to see these rules which open new doors to employment for people with disabilities. DOL is hosting a webinar about the new rules on September 18.
The Section 503 rules can be viewed on the Department of Labor website.
Last week, the 2013 edition of UNICEF’s The State of the World’s Children was released. This year’s publication is entitled Children with Disabilities, and examines the discrimination and deprivations that these children and their families confront. The report describes the progress that is being made, albeit unevenly, in ensuring that children with disabilities have the fair access to services and opportunities that is their right. The report also urges governments, their international partners, civil society, and employers to take concrete steps to advance the cause of inclusion – as a matter of equity and for the benefit of all. Download the PDF version of the report.
Due to a provision in federal law, the $240 million jury award for employment discrimination and harassment that the Equal Employment Opportunity Commission (EEOC) won for 32 men with intellectual disability may have to be reduced to $50,000 each. A jury in Iowa awarded the larger sum to the men based on the harm they suffered while employed at a turkey processing plant in Iowa. The jury’s verdict was the largest verdict ever obtained by the EEOC in an employment discrimination case under the Americans with Disabilities Act (ADA). The Iowa jury’s recognition of the inherent value of the lives of individuals with intellectual disability was historic. However, the Civil Rights Act of 1991 limits damages for discrimination to $50,000 for punitive and compensatory damages combined in cases where the employers have 15 to 100 employees. If the award is reduced by the court, it will not affect the $1.37 million award the men won previously due to wage discrimination. Despite the fact the Henry’s Turkey Service is believed to have no more than $4 million in assets, EEOC has pledged to pursue the men’s awards vigorously. Kenneth Henry, president of Henry’s, has said he will appeal the decision.
Over four decades, Henry’s sent hundreds of men who had disabilities from Texas to Iowa to work at a West Liberty meat-processing plant for wages far below minimum wage. The men lived in a 100-year-old former school building that had been converted to a bunkhouse. Federal law limited EEOC to the final two years of Henry’s operation which limited the number of workers who could claim compensation. Henry’s has been fined by the US Department of Labor and Iowa Workforce Development for labor law violations for a total of $2.96 million. To read The Arc’s statement, visit our website.
The U.S. Equal Employment Opportunity Commission (EEOC) has released four revised publications on protection against employment discrimination on the basis of a disability. The publications describe how the Americans with Disabilities Act (ADA) applies to job applicants and employees with cancer, diabetes, epilepsy, and intellectual disability. Visit the EEOC website to view the full question and answer series.