National Disability Policy: A Progress Report

Has the Promise Been Kept? Federal Enforcement 

of Disability Rights Laws

National Council on Disability

October 31, 2018
National Council on Disability (NCD)

1331 F Street NW, Suite 850

Washington, DC 20004

National Disability Policy: A Progress Report

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws

National Council on Disability, October 31, 2018

This report is also available in alternative formats. Please visit the National Council on Disability 

(NCD) website (www.ncd.gov) or contact NCD to request an alternative format using the following 

information:

ncd@ncd.gov Email

202-272-2004 Voice

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The views contained in this report do not necessarily represent those of the Administration, as this and 

all NCD documents are not subject to the A-19 Executive Branch review process.
Letter of Transmittal

October 31, 2018

President Donald J. Trump

The White House

1600 Pennsylvania Ave., NW

Washington, DC 20500

Dear Mr. President,

The National Council on Disability (NCD) is pleased to present the 2018 National Disability Policy: 

A Progress Report, this year titled Has the Promise Been Kept? Federal Enforcement of Disability 

Rights Laws. Each year, NCD submits a statutorily mandated report to the White House and 

Congress to offer recommendations on continuing, new, and emerging issues that affect the lives 

of people with disabilities.

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. NCD 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. NCD received the Department of Labor’s Civil 

Rights Center’s response to NCD’s research questions after completion of NCD’s examination of 

DOL, and thus it has not been analyzed. Therefore, we have appended their unedited response to 

ensure its inclusion in this report.

The federal agencies considered in this report play a key role to ensure that people with disabilities 

have the equal opportunity to work and access the community as all Americans. This report 

assesses how these agencies implement and enforce the Americans with Disabilities Act and other 

federal disability rights laws and programs.

NCD submits this report at a time of economic expansion, job growth, and technological 

advancements, which are expanding opportunities for people with disabilities. Enforcement and 

effective implementation of federal disability civil rights laws and employment programs are vital 

for people with disabilities to share fully in the American economy, to participate in the local and 

national community, and to interact with the Federal Government. Although some progress in 

reaching the goal of full equality and justice for Americans with disabilities has been made since 

the release of Promises to Keep, improvements are needed. NCD offers recommendations to 

enhance the investigative and compliance efforts of the EEOC, DOL, and the Access Board 

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 1
in order to respond to ongoing and emerging barriers faced by people with disabilities. NCD 

encourages these agencies to improve communications with people with all types of disabilities, and to 

better utilize existing resources in investigations and compliance efforts.

NCD looks forward to working with the Administration to ensure the ongoing protection of people with 

disabilities from discrimination in all aspects of their lives through oversight and enforcement of our 

nation’s disability rights laws.

Respectfully,

Neil Romano

Chairman

2 National Council on Disability
National Council on Disability Members and Staff

Members

Neil Romano Chairman

Benro Ogunyipe, Vice Chairperson

Billy Altom

Rabia Belt

James Brett

Daniel Gade

Andrés Gallegos

Wendy Harbour

Clyde Terry

Staff

Phoebe Ball, Legislative Affairs Specialist

Stacey S. Brown, Staff Assistant

Joan M. Durocher, General Counsel & Director of Policy

Lisa Grubb, Executive Director

Netterie Lewis, Administrative Support Specialist

Amy Nicholas, Attorney Advisor

Nicholas Sabula, Public Affairs Specialist

Amged Soliman, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Ana Torres-Davis, Attorney Advisor

Keith Woods, Financial Management Analyst

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 3
4 National Council on Disability
Contents

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Acronym Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Chapter 1: U.S. Equal Employment Opportunity Commission . . . . . . . . . . . . . . . . . . 

Overview of the EEOC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  2

Proactive and Reactive Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Competent and Credible Investigative Process 

and Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Timely Resolution of Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Communication with Complainants and the Community . . . . . . . . .  3

Strategic Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . .  4

Training and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Adequacy of Agency Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Chapter 2: U.S. Department of Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Employment and Training Administration (ETA)...

Overview of the ETA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  4

Proactive and Reactive Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Training and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . .  5

Office of Disability Employment Policy (ODEP) . . . . . . . . . . . . . . . . . . . . .  5

Overview of ODEP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  5

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 5
Proactive and Reactive Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . .  5

Communication with Complainants and the Community . . . . . . . . .  5

Training and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Adequacy of Agency Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Office of Federal Contract Compliance Programs (OFCCP) . . . . . . . . . . . .  5

Overview of OFCCP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  5

Competent and Credible Investigative Process 

and Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  5

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . .  6

Training and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Adequacy of Agency Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Office of the Solicitor (SOL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Wage and Hour Division (WHD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Overview of Section 14(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  6

Proactive and Reactive Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Competent and Credible Investigative Process 

and Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  6

Communication with Complainants and the Community . . . . . . . . .  7

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . . . 74

Technical Assistance and Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Adequacy of Agency Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Overview of the Family and Medical Leave Act (FMLA) . . . . . . . . . . .  7

Regulatory, Sub-Regulatory, and Policy Guidance . . . . . . . . . . . . . . .  7

Competent and Credible Investigative Process 

and Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

Technical Assistance and Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  7

6 National Council on Disability
Chapter 3: U.S. Access Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Overview of the Access Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Regulatory, Policy, and Sub-Regulatory Guidance . . . . . . . . . . . . . . .  8

Proactive and Reactive Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Competent and Credible Investigative Process 

and Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Timely Resolution of Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Communications with Complainants and the Community . . . . . . . .  8

Interagency Collaboration and Coordination . . . . . . . . . . . . . . . . . . .  8

Training and Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Adequacy of Agency Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  8

Conclusion: Has the Promise Been Kept? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Appendix A: Agency Budget and Staffing Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Appendix B: Federal Disability Civil Rights Laws Considered . . . . . . . . . . . . . . . . . . .  9

The Architectural Barriers Act of 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

The Rehabilitation Act of 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  9

Americans with Disabilities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  10

Fair Labor Standards Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Family and Medical Leave Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Genetic Information Nondiscrimination Act . . . . . . . . . . . . . . . . . . . . . . . . 102

Workforce Innovation and Opportunities Act . . . . . . . . . . . . . . . . . . . . . . . 103

Appendix C: Overview of Promises to Keep and Methodology 

Used for the 2018 Progress Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Overview of Promises to Keep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Methodology Used for the 2018 Progress Report . . . . . . . . . . . . . . . . 106

Focus Discussion Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Appendix D: Reply of the Department of Labor’s Civil Rights 

Center to Research Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 7
8 National Council on Disability
Acknowledgments

The National Council on Disability wishes to thank the National Disability Rights Network, particularly 

David Hutt, Esq., Ph.D., and his team—Janice Johnson Hunter, Esq., and Kenneth Shiotani, Esq., 

and their partners Eve Hill, Esq. and Regina Kline, Esq., of Inclusivity Strategic Consulting at Brown, 

Goldstein & Levy, for their work in developing this report. NCD also thanks those who shared their 

personal experiences and offered expert input to inform this report.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 9
10 National Council on Disability
F

or the past 45 years, as measured from 

the enactment of the Rehabilitation Act 

in September of 1973, the United States 

has through legislation gradually improved the 

ability of people with disabilities to live, work, and 

participate fully in the community. Passage of the 

Americans with Disabilities Act in 1990 (ADA), 

and later the ADA Amendments Act (ADAAA) 

in 2008, played major roles in the increased 

protection of the rights of people with disabilities. 

In between these landmark statutes, numerous 

other federal laws, regulations, and Executive 

Orders have sought to increase the opportunities 

for people with disabilities. In some cases, as 

with Section 511 of the Workforce Innovation 

and Opportunity Act (WIOA) of 2014, such laws 

attempt to temper the adverse effects of other 

federal laws which restrict the opportunities for 

people with disabilities. The creation of federal 

disability civil rights and programs through 

legislative action, however, is only one step 

to fully achieve equal opportunities for people 

with disabilities. Effective federal oversight and 

enforcement of federal law is critical to keep 

advancing justice and equality for people with 

disabilities.

This Progress Report, Has the Promise 

Been Kept? Federal Enforcement of Disability 

Rights Laws, undertakes a partial revisit of 

a 2000 National Council on Disability (NCD) 

report titled Promises to Keep: A Decade of 

Federal Enforcement of the Americans with 

Disabilities Act. Promises to Keep considered 

the ADA enforcement efforts of the Equal 

Employment Opportunity Commission 

(EEOC), the Department of Justice (DOJ), the 

Department of Transportation (DOT), and the 

Federal Communications Commission (FCC), 

with minor consideration of the Architectural 

and Transportation Barriers Compliance Board 

(Access Board). Using 11 guidepost elements 

created in Promises to Keep to assess disability 

civil rights enforcement, this 2018 report 

addresses the efforts of the EEOC, Department 

of Labor (DOL), and the Access Board to enforce 

and implement the ADA and other federal 

disability rights laws and programs.

Legal progress to ensure greater 

opportunities for people with disabilities 

has occurred since Promises to Keep, best 

exemplified by the bipartisan passage of 

the ADAAA. Federal enforcement agencies, 

however, still face, or themselves create, 

bureaucratic, communications, budgetary, 

regulatory, staffing, and in some cases 

technological hurdles that can negatively impact 

Executive Summary

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 11
the full realization of equal rights for people with 

disabilities. Among some of the key findings 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 

12 National Council on Disability
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.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 13
14 National Council on Disability
Acronym Glossary

ABA Architectural Barriers Act

ADA Americans with Disabilities Act of 1990

ADAAA ADA Amendments Act of 2008

AJC American Job Center

CRC Civil Rights Center

CRP Community Rehabilitation Program

DEI Disability Employment Initiative

DOJ Department of Justice

DOL Department of Labor

DOT Department of Transportation

EARN Employer Assistance and Resource Network on Disability Inclusion

EEOC Equal Employment Opportunity Commission

EO Executive Order

ETA Employment and Training Administration

FEPA Fair Employment Practice Agency

FLSA Fair Labor Standards Act

FMLA Family Medical Leave Act

FTE Full-Time Equivalent

FY Fiscal Year

GAO Government Accounting Office

GINA Genetic Information Nondiscrimination Act

JAN Job Accommodation Network

LEAD Leadership for the Employment and Advancement of People with Disabilities

MOU Memoranda of Understandings

NCD National Council on Disability

ODEP Office of Disability Employment Policy

OFCCP Office of Federal Contract Compliance Programs

OGC Office of General Council (EEOC)

OLC Office of Legal Council (EEOC)

PTSD Post-Traumatic Stress Disorder

RSA Rehabilitation Services Administration

SEED State Exchange on Employment and Disability

SOL Office of the Solicitor

National Disability Policy: A Progress Report 15
SWEPs School Work Experience Programs

TA Technical Assistance

VEVRA Vietnam Era Veterans’ Readjustment Assistance Act

WHD Wage and Hour Division

WIOA Workforce Innovation and Opportunity Act

16 National Council on Disability
“The ADA is an absolutely essential 

legal and educational tool to achieve 

equality and to achieve employment. 

But the ADA is not equality and it is 

not employment. ADA is a promise 

to be kept. . . . Keeping the Promise 

of the ADA is not going to be easy.”

—Justin Dart (1992)

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 17
18 National Council on Disability
T

he National Council on Disability (NCD) 

is congressionally mandated to advise 

the President, Congress, and other 

policymakers on disability policies and practices 

that enhance equal opportunity for people with 

disabilities to achieve economic self-sufficiency, 

independent living, and inclusion and integration 

into all aspects of society. This Progress Report 

titled Has the Promise Been Kept? fulfills NCD’s 

congressional mandate by advising policymakers 

on policies and practices that enable federal 

agencies to effectively enforce federal disability 

rights laws.

The United States has been at the forefront 

in the legal advancement of the rights of people 

with disabilities, led by people with disabilities 

who demanded equality and justice. Though 

the legislative recognition by the United States 

that disability rights are civil rights has not been 

swift, the disability rights movement was the 

impetus for a number of federal civil rights laws, 

most notably the Americans with Disabilities Act 

(ADA) of 19901 to ensure equal opportunity for 

people with disabilities. Several of these federal 

enactments are described in Appendix B.

Enforcement of the ADA is critical to 

provide equal opportunity across all aspects of 

community life for people with disabilities, and in 

2000 NCD issued Promises to Keep: A Decade 

of Federal Enforcement of the Americans with 

Disabilities Act, the third in a series of reports on 

the ADA.2 In Promises to Keep, NCD considered 

the ADA enforcement activities of the U.S. Equal 

Employment Opportunity Commission (EEOC), 

the U.S. Department of Justice (DOJ), the U.S. 

Department of Transportation (DOT), and the 

Federal Communications Commission (FCC), 

and addressed the technical assistance activities 

of the Architectural and Transportation Barriers 

Compliance Board (Access Board), the National 

Institute on Disability and Rehabilitation Research 

(NIDRR), and the then President’s Committee 

on the Employment of People with Disabilities 

(PCEPD).

In Promises to Keep, NCD recognized that 

“the placement of disability discrimination on 

par with race or gender discrimination exposed 

the common experiences of prejudice and 

segregation and provided clear rationale for 

the elimination of disability discrimination 

in this country.”3 NCD found that federal 

agencies charged with ADA enforcement and 

policy development were “overly cautious, 

reactive, and lacking a coherent and unifying 

national strategy.”4 Enforcement efforts largely 

followed “a case-by-case approach based on 

individual complaints rather than one based on 

compliance monitoring and a cohesive, proactive 

enforcement strategy.”5 NCD also found that the 

“five federal agencies tasked to enforce the ADA 

Introduction

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 19
were not working in collaboration to develop a 

national strategy on enforcement.”6

Much has happened since Promises to 

Keep. Technological advances, especially the 

rapid expansion of the Internet and social 

media, have revolutionized the workforce 

and social interaction. New technologies and 

digital platforms have increased opportunities 

for telework, created new employment 

arrangements, and expanded the range of 

assistance and accommodations available to 

people with disabilities. Personal digital devices 

have offered autistic persons new ways to 

interact and communicate with family, friends, 

and the larger community. Improvements in 

screen-reading, dictation, and similar software 

have increased the accommodations available 

for the Deaf or Hard of Hearing and the blind or 

visually impaired. In 2008, with overwhelming 

bipartisan support, Congress passed the ADA 

Amendments Act (ADAAA or Amendments 

Act) in response to the weakening of the ADA 

by the federal courts.7 In 2008, Congress 

prohibited discrimination based on genetic 

information through the Genetic Information 

Nondiscrimination Act (GINA),8 and in 2014 

reauthorized and amended the Rehabilitation 

Act through the Workforce Innovation and 

Opportunity Act (WIOA).9 Despite these 

advances, however, discrimination and outright 

exploitation of people with disabilities continues, 

perhaps best exemplified by the horrific abuse 

of dozens of men with intellectual disabilities 

working for decades at a turkey processing plant 

in Atalissa, Iowa, a situation that was brought to 

light in 2009.10

Justin Dart Jr., the “father of the ADA,” offered 

prophetic remarks in a February 6, 1992, speech:

[The ADA] . . . is a landmark breakthrough. 

People with disabilities have been granted 

full, legally enforceable equality by one of 

the world’s most influential nations. . . . 

The ADA is an absolutely essential legal 

and educational tool to achieve equality 

and to achieve employment. But the ADA 

is not equality and it is not employment. 

ADA is a promise to be kept. And what is 

that promise? For whatever the law says 

legally, the clear promise of the ADA is that 

all people with disabilities will be fully equal, 

fully productive, fully prosperous, and fully 

welcome participants in the mainstream. 

Keeping the Promise of the ADA is not 

going to be easy.11

As the 30th anniversary of the ADA 

approaches, the nation must ask, “Has the 

promise been kept?” In this report, NCD uses 

11 elements created in Promises to Keep

which assess the oversight and enforcement 

of federal disability rights and programs by the 

EEOC, the U.S. Department of Labor (DOL), 

and the Access Board. This report revisits some 

recommendations made in Promises to Keep

and to evaluate progress made by the EEOC, 

2000 Review of ADA Enforcement

[In 2000], NCD found that federal agencies 

charged with ADA enforcement and policy 

development were “overly cautious, reactive, 

and lacking a coherent and unifying national 

strategy.” . . . NCD also found that the five 

federal agencies tasked to enforce the ADA 

were not working in collaboration to develop 

a national strategy on enforcement.”

20 National Council on Disability
while for the first time using the Promises to 

Keep framework to consider the role of DOL 

in the enforcement of federal rights and the 

development of programs that affect people 

with disabilities. The following three chapters 

provide an analysis and recommendations for 

these agencies. Appendix C contains a further 

overview of Promises to Keep and the research 

methodology used in this report.

NCD appreciates and thanks the leadership 

and staff of the federal agencies considered 

in this report for their time and assistance in 

providing data and information and responding 

to many questions from our researchers. 

NCD understands that federal civil rights 

enforcement agencies are charged with a 

difficult task to protect the integrity of all civil 

rights laws within increasingly constrained 

resources. Nevertheless, improvement is 

always possible, and often necessary, to ensure 

the vigorous enforcement of disability rights 

and all civil rights.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 21
22 National Council on Disability
Passage of the ADAAA was the most 

important development to impact 

the enforcement of disability rights 

laws by the EEOC since Promises to Keep. 

The ADAAA resulted in an increase in the 

number of ADA charges of discrimination 

filed with the Commission, as well as in 

EEOC-initiated ADA litigation. While the 

EEOC has, either purposefully or because of 

other policy considerations, followed some 

recommendations in Promises to Keep, other 

areas remain unfilled.

Chapter 1: U.S. Equal Employmen

Opportunity Commission

Based upon the analysis contained in this chapter, NCD recommends 

that the EEOC:

■ Revise the ADA and GINA regulations that allow employees with disabilities to participate 

in any voluntary employer wellness program while fully protecting the right not to disclose 

protected medical information.

■ Track and analyze data from federal agencies on a quarterly basis to ensure the agencies 

meet targeted employment goals under Section 501 of the Rehabilitation Act regulations.

■ Make the District Complement Plans to the Strategic Enforcement Plan (SEP) available 

for public review, if necessary, by redacting law enforcement strategies, to allow for an 

assessment of the implementation of the SEP at the district level.

■ Publicly post data on how it has fulfilled the SEP objective to reduce the barriers faced by 

applicants with disabilities in the application and hiring processes.

■ Publish a detailed report of the impact of the ADAAA on the number, disability type, 

discrimination alleged, and final resolution of ADA charges since passage of the ADAAA.

■ Evaluate the impact of the priority charge classification process on people with disabilities 

to determine to what extent the disability may result in a low classification because of the 

disability.

(continued)

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 23
■ Clearly identify on the EEOC public portal how a person with a disability can request a 

reasonable accommodation to file a charge and the other available options for a person 

with a disability to begin the charge filing process.

■ Create and post on its website videos in American Sign Language (ASL) about the charge 

filing, mediation, and investigation processes, as well as important guidance on all laws 

enforced by the EEOC.

■ Improve the public understanding of the relationship between the EEOC and the Fair 

Employment Practice Agencies (FEPAs) by requiring appropriate explanations on both 

EEOC and FEPA webpages and fact sheets.

■ Track the training completed by FEPA staff on the ADA and other federal disability rights 

laws as part of oversight of the quality of the work of the FEPAs and take appropriate steps 

to address low participation.

■ Develop ADA fact sheets and guidance documents for the general public in more simple 

language that take into account persons with various disabilities and continue to create detailed 

guidance documents about the ADA that benefit employers, advocates, and the courts.

■ Create, with input from the disability community, a specific method to assess the quality 

of EEOC investigations of ADA charges as detailed in this chapter.

■ Develop investigators who are specialists in disability issues and devoted specifically to 

investigate ADA charges.

■ Improve communications with people who file a charge by requiring that investigators 

respond to inquiries for charging parties within 30 days of the inquiry.

■ Prioritize the reduction of the charge inventory and processing times through an increase in 

staff levels.

■ Increase the required frequency of the meetings of the EEOC and DOL Office of Federal 

Contract Compliance Program Compliance Coordination Committees.

Based upon the analysis contained in this chapter, NCD recommends 

that the EEOC: continued

Overview of the EEOC

Established in 1964 through Title VII of the Civil 

Rights Act of 1964,12 the EEOC is responsible 

for the enforcement of federal antidiscrimination 

laws, including Title I of the ADA and more 

recently Title II of GINA, as applicable to private 

and state and local government employers, 

employment agencies, and unions. The EEOC 

also is responsible for the enforcement of 

Sections 501 and 505 of the Rehabilitation Act 

applicable to federal employees.

The EEOC is headed by five Commissioners, 

appointed by the President and confirmed by 

the Senate for a five-year term. No more than 

24 National Council on Disability
three Commissioners may be from the same 

political party. The EEOC Chair is appointed by 

the President from among the Commissioners. 

The EEOC General Counsel, who brings litigation 

on behalf of the Commission, is also appointed 

by the President but confirmed by the Senate for 

a four-year term.13 Organizationally the EEOC is 

divided into the Offices of Field Programs, Legal 

Counsel, General Counsel, Federal Operations, 

and a number of other offices. Geographically, 

the Commission maintains 15 districts containing 

a total of 52 district, field, area, and local offices; 

a headquarters office in Washington, DC; and a 

separate Washington, DC, field office.

The Offices of Field Programs and General 

Counsel, and the individual EEOC field offices 

“ensure that EEOC effectively enforces the 

statutory, regulatory, policy, and program 

responsibilities of the Commission through a 

variety of resolution methods tailored to each” 

discrimination complaint, called the “charge of 

discrimination.”14 The Office of Legal Counsel 

(OLC) develops regulations and policy guidance, 

provides technical assistance to employers and 

employees, and coordinates with other agencies 

and interested parties regarding the statutes 

and regulations enforced by the EEOC. The OLC 

was critical in the development of the EEOC 

regulations following the ADAAA.

The Office of Federal Operations (OFO) 

is responsible for the development and 

implementation of affirmative action employment 

policies by the federal agencies, and compliance 

with the adjudication system for federal 

employees who file discrimination employments, 

which includes administration of the review of 

the appeals process for federal employment 

discrimination complaints. Given the nature of 

the federal enforcement system in comparison 

with other employers, the OFO was not analyzed 

for this report.

Regulatory, Sub-Regulatory, and Policy 

Guidance

After enactment of the ADAAA, the EEOC 

revised the ADA Title I regulations, which 

became effective on May 24, 2011.15 Key 

elements of the ADAAA regulations, consistent 

with the Act, included that (1) the definition 

of “disability” shall be interpreted broadly, 

and that (2) to meet the standard of the term 

“substantially limits,” the limitation need not 

“significantly” or “severely” restrict a major 

life activity.16 The EEOC further redefined the 

term “major life activities” through the creation 

of two nonexhaustive lists derived from the 

Amendments Act. The first list defines various 

activities as “major life activities,” while the 

second list defined “major life activities” to 

include “major bodily functions” and provided 

a list of such functions.17 A person who is 

substantially limited in one of the major bodily 

functions listed in the revised EEOC regulations 

now meets the ADA definition of “disability.”

Consistent with the ADAAA, the updated 

EEOC regulations provide that mitigating 

NCD recommends that Congress and the President:

■ Eliminate budget and hiring barriers, such as hiring freezes and unfunded mandatory pay 

increases, which prevent the EEOC from maintaining necessary staff levels.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 25
measures other than “ordinary eyeglasses or 

contact lenses,” shall not be considered in 

assessing whether an individual has a “disability.” 

As important, following the ADAAA the 

regulations provide that even if an impairment 

is episodic or in remission, it is still a disability 

under the ADA if it would substantially limit 

a major life activity when active.18 To comply 

with the Amendments Act, the EEOC changed 

the regulatory definition of being “regarded 

as” a person with a disability, to make it less 

burdensome to show an employer discriminated 

against a person on this basis.19 The regulations 

further set out a list of impairments that 

in almost all cases after an individualized 

assessment will substantially limit a major life 

activity.20

The EEOC revised an accompanying ADA 

interpretive guidance to the regulations,21 and 

issued various interpretative and enforcement 

related materials such as sub-regulatory guidance 

voted on by the Commissioners and which the 

EEOC voluntary opens for public input.22 The 

EEOC also issues resource documents such as 

Fact Sheets, Questions and Answers, Technical 

Assistance, Best Practices, or similarly titled 

material which are approved by the EEOC Chair 

without the need for a vote.23 When the ADAAA 

regulations were finalized, the EEOC issued a 

number of sub-regulatory guidance documents to 

help employers and employees better understand 

the new law. The EEOC also published a fact 

sheet, a general Question and Answer, and a 

Question and Answer specific to small businesses 

about the final regulations.24 These included 

two documents25 that explain that applicants 

and employees with HIV are protected from 

employment discrimination and harassment and 

have a right to reasonable accommodations, and 

which offer doctors instructions on how to provide 

medical documentation to support a patient with 

HIV who requests an accommodation at work.26

The Commission published a document titled 

“Employer-Provided Leave and the Americans with 

Disabilities Act,” which addresses the sometimescomplex issues of the rights of employees with 

disabilities who seek leave as a reasonable 

accommodation.27 Since Promises to Keep, the 

EEOC has released resource documents about 

ADA rights largely directed to members of the 

public. The Commission created Questions 

and Answers for persons with disabilities such 

as on cancer, diabetes, and epilepsy, and a 

Question and Answer on the legal rights in the 

workplace related to depression, post-traumatic 

stress disorder (PTSD), and other mental health 

conditions.28 The EEOC released a document 

to help medical professionals understand what 

information they should provide in support of 

employees with mental health disabilities in need 

of reasonable accommodations.29

GINA, which took effect in November 2009, 

prohibits the use of genetic information by an 

employer in making decisions such as hiring, 

firing, and job assignments or involving other 

aspects of employment such as pay, fringe 

benefits, or other terms and conditions of 

employment; restricts the ability to request and 

purchase genetic information; and strictly limits 

the disclosure of genetic information. The EEOC 

issued regulations for Title II of GINA effective 

as of January 2011.30 Consistent with GINA, 

the regulations define “genetic information” to 

include information about the results of genetic 

tests of the person or their family members, 

as well as information about the manifestation 

of a disease or disorder in a person’s family 

medical history.31 The use of genetic information 

to make employment decisions is prohibited 

because such information is not relevant to a 

26 National Council on Disability
person’s current ability to work.32 Harassment 

based on genetic information and retaliation 

against a person who asserts a protected right 

under GINA is also prohibited similar to other 

federal laws.33

Both the ADA and GINA place restrictions on 

when an employer may require a job applicant 

or an employee to disclose medical or genetic 

information. These Acts allow an employer to 

request the “voluntary” disclosure of medical 

or genetic information from an employee for 

the purpose of participation in an employersponsored wellness program. Prior to 2016, 

the EEOC took “the position that in order for a 

wellness program to be 

‘voluntary,’ employers 

could not condition the 

receipt of incentives 

on the employee’s 

disclosure of” medical or 

genetic information.34

The 2010 Patient 

Protection and 

Affordable Care Act 

made changes related to employer-sponsored 

wellness plans.35 In response, the EEOC 

amended the ADA and GINA regulations to 

allow an employer to entice an employee 

to voluntarily disclose medical information 

from the employee, or information about 

an employee’s spouse’s manifestation of 

disease or disorder, as part of a requirement 

to participate in a voluntary wellness plan.36

The revised voluntary wellness regulations 

permitted an employer to offer an “incentive” 

of up to 30 percent off the total cost of selfonly medical insurance coverage.37 The revised 

EEOC regulations thus imposed a very difficult 

choice for people with disabilities to either 

forgo a substantial savings on health care of up 

to 30 percent depending on the employer or 

exercise a right not to disclose a disability.

In October 2016, AARP challenged the 

regulations as coercive by forcing employees 

with disabilities to pay more for health insurance 

if they decided not to reveal confidential 

medical information to a voluntary wellness 

program. AARP in essence argued that the 

30 percent incentive rendered the wellness 

programs no longer truly “voluntary.”38 A U.S. 

district court agreed with AARP and ruled in 

August 2017 that the EEOC failed to provide a 

reasoned explanation for its interpretation of 

the “voluntary” requirement.39 The court later 

vacated a portion of 

the regulations related 

to incentives that will 

cease to be effective 

as of January 1, 2019. 

NCD recommends that 

any revised future ADA 

and GINA regulations 

by the EEOC allow 

employees with 

disabilities to participate in any voluntary 

employer wellness program while fully 

protecting the right not to disclose protected 

medical information for such participation

Section 501 of the Rehabilitation Act prohibits 

the Federal Government from discriminating 

against employees with disabilities and requires 

federal agencies to develop an affirmative 

action plan for the recruitment, placement, and 

advancement of people with disabilities.40 For 

decades, the Section 501 regulations simply 

stated that the Federal Government should be a 

“model employer” for people with disabilities. 

The EEOC had issued various Management 

Directives providing some guidance on how a 

federal agency’s plan should result in the Federal 

The revised EEOC regulations thus 

imposed a very difficult choice for 

people with disabilities to either 

forgo a substantial savings on health 

care of up to 30 percent depending 

on the employer or exercise a right 

not to disclose a disability

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 27
Government being a model employer. Over the 

years, Executive Orders have been issued that 

require federal agencies to develop reasonable 

accommodation policies and set governmentwide goals for federal hiring of people with 

disabilities. The more recent Executive Orders 

included sub-goals for hiring people with 

significant disabilities.41

In May 2014, the EEOC requested public 

comment on specific inquiries for ways to 

strengthen the Section 501 affirmative action 

regulations.42 In February 2016, the EEOC 

proposed specific revisions to the regulations,43

and issued final regulations in January 2017, 

which became applicable 

on January 3, 2018.44 The 

EEOC gathered into a 

single regulation those 

requirements previously 

found in a variety of 

documents and clarified 

that the regulations have 

the force of law. The new 

regulations require each federal agency to take 

steps reasonably designed to gradually increase 

the number of employees with disabilities and 

with targeted disabilities until the agency meets 

specific goals set by the EEOC. Significantly, the 

regulations also require each agency to provide 

employees with targeted disabilities Personal 

Assistance Services during work hours and workrelated travel, if necessary.45

It is too early to gauge any impact of the 

new Section 501 regulations on federal hiring. 

By setting specific steps that agencies must 

take, however, the rule has the potential to 

move the Federal Government forward in the 

hiring, placement, and advancement of people 

with disabilities and with a specific emphasis 

on people with significant disabilities. NCD 

recommends that the EEOC track and analyze 

data from federal agencies on a quarterly 

basis to ensure the agencies are meeting 

targeted employment goals under the Section 

501 regulations

Proactive and Reactive Strategies

Since Promises to Keep, the EEOC continues 

to revise the agency’s strategic planning in an 

effort to better utilize Commission resources. 

The EEOC no longer uses the National 

Enforcement Plan referred to in Promises 

to Keep.

46 As required by Congress, the 

Commission develops 

a five-year agency-wide 

Strategic Plan.47 The 

FY 2012–2016 EEOC 

Strategic Plan called for 

the development of a 

separate, more focused 

five-year Strategic 

Enforcement Plan (SEP), 

and the FY 2018–2022 Strategic Plan called for 

consistent implementation.

The FY 2018–2022 Strategic Plan also lays 

out two broad strategic objectives to “combat 

and prevent employment discrimination 

through the strategic application of EEOC’s law 

enforcement authorities,” “prevent employment 

discrimination and promote inclusive workplaces 

through education and outreach,” and a broad 

management objective to “achieve organizational 

excellence.”48 The FY 2012–2016 Strategic Plan 

contained similar objectives.49

The more specific SEP for FY 2017–2021 

includes six substantive enforcement priorities: 

(1) eliminating barriers in recruitment and 

hiring, (2) protecting vulnerable workers 

Significantly, the [EEOC] regulations 

also require each agency to provide 

employees with targeted disabilities 

Personal Assistance Services during 

work hours and work-related travel, 

if necessary

28 National Council on Disability
(which includes underserved communities) 

from discrimination, (3) addressing selected 

emerging and developing issues, (4) ensuring 

equal pay protections for all workers, (5) 

preserving access to the legal system, and 

(6) preventing systemic harassment.50 In the 

current SEP, the Commission reaffirmed, with 

some modification and additions, the priorities 

in the SEP for FY 2013–2016.51 The modifications 

include extending a priority on equal pay to 

reach all workers protected under federal law, 

and indicating that the EEOC will focus on 

qualifications standards and inflexible leave 

policies that discriminate against people with 

disabilities as part of 

addressing developing 

issues.

Finally, the SEP 

requires that the 

EEOC districts and the 

Washington, DC, Field 

Office establish District 

Complement Plans 

to identify how the 

districts will implement 

the SEP and areas of emphasis to address local 

situations.52 The Commissioners review the 

District Complement Plans, but the plans are 

considered confidential enforcement documents 

and not made public. Therefore, it is not possible 

to assess the degree to which local plans and 

the SEP are consistent as recommended in 

Promises to Keep.53 NCD recommends the 

EEOC make the District Complement Plans to 

the Strategic Enforcement Plan available for 

public review, if necessary by redacting law 

enforcement strategies to allow the public to 

assess the implementation of the SEP at the 

district level

The SEP priority to eliminate barriers to 

recruitment and hiring aligns, to an extent, with 

a Promises to Keep recommendation that the 

EEOC prioritize addressing the problems people 

with disabilities face in entering the workforce 

and removing barriers to the application and 

hiring process.54 Under the SEP, the EEOC 

prioritizes charges of discrimination that suggest 

an employer uses “exclusionary policies and 

practices, the channeling/steering of individuals 

into specific jobs due to their status in a particular 

group, job segregation, restrictive application 

processes (including online systems that are 

inaccessible to individuals with disabilities), and 

screening tools that 

disproportionately impact 

workers based on their 

protected status (e.g., . . . 

medical questionnaires 

impacting individuals 

with disabilities).”55 NCD 

recommends the EEOC 

publicly post data on 

how it has fulfilled 

the SEP objective to 

reduce the barriers faced by applicants with 

disabilities in the application and hiring 

process

The EEOC collects aggregate enforcement 

data, including on charges filed by people with 

disabilities and EEOC litigation under the ADA. In 

part, this is consistent with recommendations in 

Promises to Keep that the EEOC better collect 

and analyze enforcement data.56 The EEOC tracks 

ADA discrimination charges using 45 disability 

categories, as well as ADA charges based upon 

a person alleging to have been regarded as a 

person with a disability or for being associated 

with a person with a disability.

The Commissioners review the 

District Complement Plans, but the 

plans are considered confidential 

enforcement documents and not 

made public. Therefore, it is not

possible to assess the degree to 

which local plans and the SEP are 

consistent 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 29
The total number of charges filed under the 

ADA increased significantly following enactment 

of the ADAAA. Total ADA charges filed increased 

58 percent when comparing the period FY 

2000 to 2008, before the effective date of the 

ADAAA, with the period FY 2009 to 2017 after 

the ADAAA.57 Chart 1 provides a comparison of 

the total number of ADA 

charges received and 

resolved by the EEOC 

in the nine years before 

and the nine years after 

the effective date of 

the ADAAA.

The average annual 

number of ADA charges filed increased from 

about 16,000 charges a year between FY 2000 

and 2008, to 25,700 charges a year between FY 

2009 and 2017. During FY 2009 to 2017, 85,236 

more ADA charges were filed than for the FY 

2000 to 2008 period. The increase in ADA charges 

filed with the EEOC since 2009 exceeded the 

increase in charges for all other protected classes 

for which the EEOC has had authority since 2000 

(age, color, national origin, race, religion, and 

sex).58 Furthermore, monetary relief obtained 

through the EEOC process more than doubled for 

ADA charges since FY 2009, with an average of 

$50 million in relief per 

year from FY 2000 to 

2008 and jumping to an 

average of $105.6 million 

per year from FY 2009 

to 2017.

The number of 

charges filed by people 

with disabilities in most of the 45 disability 

categories used by the EEOC also increased after 

the ADAAA.59 Charges from people with certain 

disabilities—notably, anxiety disorders, autism, 

intellectual disabilities, PTSD, and gastrointestinal 

impairments—increased significantly after the 

The average annual number of ADA 

charges filed increased from about 

16,000 charges a year between FY 

2000 and 2008, to 25,700 charges a 

year between FY 2009 and 2017

CHART 1: ADA Charges Comparing Pre- and Post-ADA Amendment Act Periods

Data Source: EEOC; Calculations by the researchers.

30 National Council on Disability
Amendments Act. Charges filed based on PTSD 

jumped by 557 percent between the pre- and 

post-ADAAA periods, with charges based on 

autism increasing by 497 percent and charges 

based on anxiety disorders by 224 percent.60

The cause for these increases is not addressed 

in this research; however, the impact of U.S. 

military engagement in 

Iraq and Afghanistan and 

greater public awareness 

of PTSD may account 

for the increase in PTSD 

charges. As noted, 

the EEOC has issued 

guidance documents on 

disability-specific topics 

since 2000, including on PTSD.

While the number of ADA charges increased 

after the ADAAA, the outcomes of these charges 

under the EEOC administrative process for 

people with disabilities has not been as positive. 

The percentage of merit 

resolutions—which the 

EEOC defines as “charges 

with outcomes favorable 

to charging parties and/or 

charges with meritorious 

allegations”61—declined 

from 23.4 percent of 

all charges between FY 

2000 and 2008, to 20.6 

percent from FY 2009 to 

2017. Findings of cause, 

in which the EEOC 

determines an ADA violation occurred following 

an investigation, also declined, from 7.6 percent 

in the nine years before the Amendments Act to 

4.3 percent in the nine years after the ADAAA. 

It is notable that charges under the six other 

protected classes covered by the EEOC also 

experienced a decline in EEOC merit and cause 

resolutions in the post-ADAAA period. NCD 

recommends the EEOC publish a detailed 

report of the impact of the ADAAA on the 

number, disability type, discrimination 

alleged, and final resolution of ADA charges 

since passage of the ADAAA

The number of 

charges filed under GINA 

are the lowest of all the 

protected classes for 

which the EEOC has 

authority.62 Between FY 

2010 and 2017, only 2,093 

charges were filed under 

the statute, representing 

an average of 262 charges a year. By comparison, 

23,351 discrimination charges based on color 

and 260,802 charges based on race were filed 

during the same period. Merit resolution of 

GINA cases were similar to the ADA after the 

Amendments Act, with 

just short of 20 percent 

of GINA cases resulting 

in a merit resolution. As a 

percentage, more GINA 

charges were closed 

administratively than 

under the ADA between 

FY 2010 and FY 2017, 21.5 

percent under GINA on 

average compared with 

just over 16 percent under 

the ADA. Given the few 

GINA charges filed, monetary benefits totaled 

$6.28 million through FY 2017, or about $0.79 

million in GINA monetary damages on average 

per year. The next lowest total monetary benefits 

for discrimination was religious discrimination 

with $73.30 million followed by discrimination 

Charges filed based on PTSD 

jumped by 557 percent between the 

pre- and post-ADAAA periods, with 

charges based on autism increasing 

by 497 percent and charges based 

on anxiety disorders by 224 percent

The percentage of merit 

resolutions—which the EEOC 

defines as “charges with outcomes 

favorable to charging parties 

and/or charges with meritorious 

allegations”—declined from 

23.4 percent of all charges between

FY 2000 and 2008, to 20.6 percent

from FY 2009 to 2017

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 31
based on color with a total of $85.3 million in 

benefits for persons filing an EEOC charge.

Promises to Keep discussed the EEOC’s use 

of mediation and encouraged the Commission 

to adopt guidelines similar to the ADA Mediation 

Guidelines and to carefully evaluate the mediation 

program.63 The EEOC indicated that it uses the 

ADA Mediation Guidelines. The Commission 

evaluates each charge of discrimination to see 

whether it is appropriate for mediation. Charges 

determined to be without merit are not eligible 

for mediation. In most instances, charges that 

require additional investigation on the merits 

are eligible for mediation, but the EEOC will not 

refer to mediation cases that it may investigate 

as systemic cases or for possible litigation.64 A 

charging party may be offered mediation before 

the EEOC begins any investigation, and either 

party may request mediation even without an 

offer from the EEOC.65 If the charging party 

is interested in mediation, the EEOC offers 

mediation to the employer. Because mediation 

is voluntary, a significant number of employers 

decline to mediate. If mediation is unsuccessful, 

the charge is investigated. The Commission 

uses both internal and external unpaid and paid 

contract mediators.66 External mediators are 

more likely to be used in rural areas. The EEOC 

reports a high percentage of satisfaction with the 

EEOC mediation process.

As discussed in Appendix C, researchers 

for this report conducted three focus groups of 

people with disabilities in which 12 participants 

had interacted with the EEOC. The focus group 

participants, though limited in number, included 

several who agreed to EEOC mediation, but their 

employers did not. Based on interviews with 

three EEOC District Directors, there appears 

to be significant variation in the willingness of 

employers to take part in mediation across the 

districts.

Competent and Credible Investigative 

Process and Enforcement Action

In addition to the Strategic Plan and the SEP, 

since 1995 the EEOC has used the Priority 

Charge Handling Procedures (PCHP) to prioritize 

the Commission’s investigative efforts.67 Under 

the PCHP, investigators classify each charge 

received as either an A, B or C. Charges classified 

as an “A” are charges where it appears more 

likely than not that discrimination occurred and 

will receive priority treatment by the EEOC. 

Charges classified as a “B” include charges that 

initially appear to have some merit but require 

additional evidence to determine whether 

continued investigation is likely to find prohibited 

discrimination, or where it is not yet possible for 

the EEOC to make a judgement regarding the 

merits. Charges classified as “B” are investigated 

as resources permit, Charges classified as a “C” 

are those the EEOC has sufficient information 

to conclude further investigation is not likely 

to find prohibited discrimination and will be 

dismissed. Whether the investigator finds the 

existence of a “prima facie” case is an important 

factor in categorizing charges—in other words, 

based on the face of the information provided 

by the person making the charge, prohibited 

discrimination appears possible.

People with certain disabilities that affect 

communication, observation, or information 

processing could be at a disadvantage under 

the EEOC classification process. The EEOC 

investigator on intake uses the initial information 

received from the person making the charge 

to assign a charge as an A, B, or C. Such 

information includes facts the person tells the 

32 National Council on Disability
investigator, similar circumstances the person 

knows about at the worksite, and information 

about other employees or employer practices 

the person may be aware of or able to access.

A person with a disability that impacts 

communications or information processing, 

for example, could be disadvantaged if that 

person cannot relate essential information to the 

investigator. According 

to an EEOC District 

Director, investigators are 

instructed to be aware 

and take steps to assist 

if it appears the person’s 

disability might affect the 

ability to articulate the 

situation and the alleged discrimination involves 

the ADA. There has been no apparent public 

assessment, however, of whether the PCHP 

negatively impacts people with disabilities by 

resulting in a lower classification because of the 

disability. Charges from 

persons with intellectual, 

cognitive, or other 

disabilities may result in 

a C categorization, not 

based on the merits but 

because the charging 

party with a disability has 

difficulty in processing information or explaining 

the discriminatory situation. While EEOC staff are 

instructed to take steps to assist in ADA cases 

if assistance appears necessary, this may not 

occur in non-ADA cases or even recognized in 

ADA cases without appropriate disability-specific 

training. NCD recommends the EEOC evaluate 

the impact of the Priority Charge Handling 

Procedures classification process on people 

with disabilities to determine to what extent 

the disability may result in C classifications 

because of the disability and not on the initial 

merits

In 2017, the EEOC rolled out a “public portal” 

that allows a person to begin the process of filing 

a charge of discrimination online.68 Anyone who 

believes they have faced discrimination may use 

the portal to submit an “inquiry” to the EEOC 

and schedule an intake 

interview. The intake 

interview can occur 

by phone or in person. 

Following the intake 

interview, the person 

can decide whether to 

file a formal charge of 

discrimination. EEOC staff indicated that the portal 

allows for more efficient handling of complaints.

The EEOC website contains information 

on “How to File a Charge,” which includes the 

methods by which a person can find out from 

the EEOC how to 

begin the charge filing 

process.69 The webpage 

emphasizes that the 

person should use the 

electronic public portal. 

The EEOC also has 

a 1-800 number for 

persons to connect to general information, to 

get answers to basic questions about the EEOC 

charge process, and for some basic help in filing 

a charge through the online portal.

While the use of online technology to handle 

complaints is commendable, there are significant 

drawbacks for people with certain disabilities that 

the EEOC should address. The public portal, while 

Section 508 compliant, does not clearly state 

how a person may request an accommodation 

People with certain disabilities that 

affect communication, observation, 

or information processing could be 

at a disadvantage under the EEOC 

classification process

The [EEOC’s] public portal, while 

Section 508 compliant, does 

not clearly state how a person 

may request an accommodation 

necessary to complete an inquiry

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 33
necessary to complete an inquiry. People with 

disabilities who have difficulty in the use of 

technology may be deterred from contacting the 

EEOC to file a charge. Though the portal contains 

an email address to use to report technical 

problems and a link to a statement about the 

Rehabilitation Act, there is no clear indication 

of how a person with a disability may request 

other accommodations needed to file a charge. 

Likewise, a person with a disability whose 

symptoms may cause frustration, confusion, 

or attention difficulties may drop off before 

answering the questions on the portal given 

the lack of clear and simple information on how 

to request an accommodation or how to file a 

charge through other means. Similarly, though 

a captioned video describing the EEOC charge 

process is available, there is no comparable video 

that uses American Sign Language.

Between FY 2003 and 2017, according to 

EEOC provided data, half of all people who 

made an inquiry with the EEOC about potential 

employment discrimination did not file a charge. 

That number has dropped to between 42 and 

45 percent in more recent years. Data is not 

available about which act the person making the 

inquiry of the EEOC believed had been violated 

because a charge is not filed in inquiry-only 

situations.

Finally, during the small focus discussion 

groups, while one participant was pleased that 

an EEOC staff person filled out the form because 

the person’s disability made writing difficult, a 

more common complaint among participants 

was that the private sector charge filing process 

was difficult to understand and navigate. NCD 

recommends the EEOC revise the public 

portal to clearly identify how a person 

with a disability can request a reasonable 

accommodation to file a charge, and clearly 

state the other options available to begin the 

charge filing process. This should include a

clear explanation of the option to file a selfcreated charge of discrimination, especially 

in cases in which the time to file may soon 

expire

70

NCD recommends the EEOC create and 

post on its website videos in American Sign 

Language (ASL) about the EEOC charge filing, 

mediation, and investigation processes and 

important guidance on all laws enforced by 

the EEOC

71

The EEOC at present maintains working 

relationships with 92 state and local investigative 

agencies, which are known as Fair Employment 

Practice Agencies (FEPAs).72 Through worksharing agreements between the EEOC and 

the FEPAs, a charge filed by a person with a 

disability with one agency is normally dually filed 

with the other. Typically, the agency that receives 

the charge first, either the EEOC or the FEPA, 

will conduct the investigation. Following a FEPA 

investigation, the charging party may request the 

EEOC conduct a “substantial weight review” 

of the FEPA decision. In addition, the EEOC 

conducts random reviews of FEPA decisions. 

EEOC staff report approximately 23 percent of 

all FEPA charges are reviewed when considering 

both the individual party requests and the 

EEOC’s random reviews. A FEPA error rate 

greater than 5 percent would result in EEOC 

action to seek to improve the work of the 

FEPA.73 EEOC staff report that no FEPA has 

ever exceeded the 5 percent error rate. If a 

FEPA ever crossed the 5 percent error rate, the 

Commission would work to improve the FEPA 

performance and not terminate the work-sharing 

agreement.

34 National Council on Disability
Promises to Keep recommended the EEOC 

better explain the role of the FEPAs and offer 

more support, oversight, and training.74 The EEOC 

explains the role of the FEPAs and provides 

an explanation of dual filing.75 Researchers 

found that the language used to explain the 

role of the FEPA is at a 13.7 grade level under 

the Flesch-Kincaid Grade-Level scale.76 People 

with intellectual, cognitive, or certain learning 

disabilities might have difficulty understanding 

the role of the FEPA. The EEOC description 

does not clearly state that the FEPA will likely 

investigate the charge if filed first with the FEPA, 

using instead a more bureaucratic term that the 

FEPA will “process the charge.” An assessment 

of FEPA websites also 

suggests the EEOC/

FEPA relationship is not 

clearly explained, if at 

all. A random review of 

10 percent of the FEPA 

websites revealed little or 

no mention of the role of 

the EEOC.77 Only three of 

12 websites reviewed mention the work-sharing 

role between the EEOC and the FEPA. Two of the 

websites reviewed reference, but are not clear, 

about the exact role of the EEOC. The remaining 

six websites reviewed had no indication of any 

working interaction between the EEOC and the 

FEPA. NCD reiterates the recommendation 

from Promises to Keep that the EEOC improve 

the public understanding of the relationship 

between the EEOC and the FEPAs by requiring 

appropriate explanations on EEOC and the 

FEPA webpages and fact sheets. The EEOC

should improve and simplify its explanation 

of the role of the FEPAs by following the 

requirements of the Plain Writing Act

In regard to FEPA training and support, the 

EEOC explained that FEPA staff are invited 

to EEOC investigator training sessions and 

webinars, and larger FEPAs often participate in 

the EEOC’s multiday intermediate investigator 

training. The exact number of FEPA staff who 

attend these trainings is unknown. While training 

opportunities on the ADA for FEPA staff may have 

increased since 2000, there is no indication of 

the actual number of FEPA staff who participated 

in ADA training.

Finally, it should be noted that a federal jury 

found that a FEPA, in its capacity as an employer, 

had discriminated against an employee with a 

disability who requested an accommodation. 

The FEPA asserted, 

among other arguments 

rejected by the federal 

court, that Section 504 

of the Rehabilitation 

Act did not require 

the provision of an 

accommodation of a 

climate-controlled office 

because the employee’s condition would 

eventually require her to stop working.78 Though 

no broad conclusions may be drawn about all 

FEPAs based on a single case, it is disturbing 

that a state entity with a relationship with the 

EEOC to enforce disability civil rights would take 

such a position regarding its own employment 

of a person with a disability. NCD recommends 

the EEOC track the training completed by 

FEPA staff on the ADA and other disability 

civil rights laws as part of oversight of the 

quality of the work of a FEPA, and should low 

participation be found, develop methods to 

encourage FEPA staff participation in such 

trainings

A random review of 10 percent of 

the FEPA websites revealed little or 

no mention of the role of the EEOC

Only three of 12 websites reviewed 

mention the work-sharing role 

between the EEOC and the FEPA

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 35
Promises to Keep encouraged the EEOC 

to continue to enhance a team approach on 

appropriate ADA investigations and litigation.79

According to the EEOC, the Commission is 

making progress toward creating a “national law 

firm” model.80 Under this model, the Offices 

of General Counsel and Field Programs meet 

regularly to discuss pending investigations, lead 

systemic investigators exist in every district, 

and a national systemic investigations manager 

is located at EEOC headquarters.81 The EEOC 

told the researchers that the national database 

allows investigators to check on issues that 

might have arisen in charges filed in other 

districts, improving 

the chance to identify 

systemic issues.

The EEOC indicated 

that the quality of 

intake, investigations, 

and the conciliation 

process is overseen first 

by a supervisor who 

is responsible for six 

to eight investigators. 

EEOC headquarters 

staff also conduct a 

quality review of about 1,500 to 2,000 charges 

resolved each year from across the districts 

using a quality criterion and may conduct on-site 

technical assistance visits. Problems uncovered 

are discussed with the district director. The 

Commission issued a Quality Practices for 

Effective Investigations and Conciliation in 

September 2015.82 The four-page Quality 

Practices document is very brief and extremely 

general, stating that investigators should utilize 

“investigative tools,” attempt to interview the 

charging party, and may request statements 

from the charging party or the employer.83

According to the document, investigator analysis 

and conclusions should be supported by 

evidence and reflect a “reasonable application of 

the law and current Commission policy.”84

Unlike other federal agencies such as the 

DOL Wage and Hour Division’s Field Operations 

Handbook, the Office of Federal Contract 

Compliance Programs’ Compliance Manual, and 

the Social Security Administration’s Program 

Operations Manual, there is no current EEOC 

manual that covers the application of all laws 

enforced by the Commission or that provides 

investigative guidance 

to investigators. The 

EEOC has an older 

compliance manual that 

addresses procedural 

matters that may be 

referred to during an 

ADA investigation, but 

investigators mainly 

rely on EEOC facts 

sheets, Q&As, and other 

documents created by 

the OLC to determine 

ADA requirements. NCD recommends the 

EEOC create, with input from the disability 

community, a specific methodology to 

assess the quality of investigations of ADA 

charges, to include (1) intake interviews of 

persons with disabilities, (2) requests made 

for documentation of the discriminatory acts 

alleged, (3) whether overbroad or 

unnecessary requests were made for medical 

documentation based on the standards 

established through the ADAAA, (4) the 

[T]here is no current EEOC manual 

that covers the application of all 

laws enforced by the Commission 

or that provides investigative 

guidance to investigators

[I]nvestigators mainly rely on EEOC 

facts sheets, Q&As, and other 

documents created by the OLC to 

determine ADA requirements

36 National Council on Disability
reasonableness of time provided to respond 

to requests, (5) the quality of the review of 

the documentation and statements, and (6) 

the application of the facts to the current 

state of law under the ADA

Consistent with other federal enforcement 

agencies, EEOC investigators are cross trained 

on all laws enforced by the Commission. 

Disability discrimination cases, however, may 

contain nuances and complexities based 

on the charging person’s disability. This is 

especially the case in requests for reasonable 

accommodations. While NCD recognizes the 

cost efficiency of cross-trained staff, a specific 

understanding of 

disability issues, 

for example, 

understanding 

important differences 

between various 

mental health 

disabilities, 

intellectual disabilities, 

developmental 

disabilities, or communications issues for the 

Deaf and Hard of Hearing and the blind and 

visually impaired, can impact the outcome 

of an ADA investigation. NCD recommends 

the EEOC develop investigators who are 

specialists in disability issues and devoted 

specifically to investigate ADA charges

Timely Resolution of Complaints

The EEOC seeks to reduce what it terms the 

charge “inventory” as an ongoing goal. Before 

the PCHP was adopted in FY 1995, the policy of 

the Commission was to fully investigate every 

charge.85 Use of PCHP reduced the inventory 

from 112,000 charges in FY 1995 to 29,000 

charges by FY 2002.86 The EEOC inventory has 

also increased since the low point in FY 2002. 

The most recent peak occurred in FY 2010 when 

the end-of-year inventory was 86,000, dropping 

steadily to 61,621 charges at the end of FY 

2017. While at its lowest point in 10 years, the 

inventory is still more than double the low point 

in FY 2002.

The average time to resolve a complaint in 

FY 2002 was 160 days, but this has steadily 

increased.87 In FY 2016, with a reduced staff, the 

average time to resolve complaints increased to 

more than 300 days, slightly improving to 295 

days in FY 2017. Since 

FY 2000, on average 

it takes 241 days from 

receipt of a complaint 

to resolution.88 The 

increased average time 

to resolve a complaint 

reported is echoed 

in several comments 

by participants in the 

focus discussion groups about investigations 

that dragged on for several years, waiting one to 

two years before case closure. One participant 

believed the investigator re-started the 

investigation from the beginning over the course 

of several years, and several participants were 

told by investigators they had too many cases. 

One focus group participant reported, however, 

that the EEOC issued a reasonable cause finding 

within about six months. NCD recommends 

the EEOC prioritize the reduction of the 

charge inventory and processing times to 

FY 2002 levels through an increase in staff 

levels

In FY 2016, with a reduced staff, the 

average time to resolve complaints 

increased to more than 300 days, 

slightly improving to 295 days in 

FY 2017. Since FY 2000, on average

it takes 241 days from receipt of a 

complaint to resolution

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 37
Communication with Complainants 

and the Community

Independently assessing the communications 

of the EEOC with people with disabilities and 

complainants on a generalized national basis is 

difficult given the lack of data and measurable 

outcomes. EEOC staff reported that each district 

seeks out substantial partners, which include at 

least one disability organization.

A number of participants from the three 

focus groups complained about the lack of 

communication after contacting the EEOC. 

The complaints ranged from a participant who 

said she initially went to her local EEOC office 

in March 2015, but her charge was not actually 

filed until the fall of that 

year, to others who 

reported long time gaps 

in communication with 

the investigator. One 

participant did appreciate 

the new online portal, 

which allowed her to 

learn that an investigator had been assigned to 

her complaint. NCD recommends the EEOC 

improve communications with people who 

file a charge by requiring that investigators 

respond to inquiries made by charging parties 

within 30 days of the inquiry

Strategic Litigation

The number of EEOC cases litigated under the 

ADA has significantly increased since Promises 

to Keep, primarily due to the ADAAA. Under the 

ADAAA, Congress clarified the ADA definition of 

“disability” to reverse restrictive interpretations 

by the U.S. Supreme Court and other federal 

courts of “who is a qualified person with a 

disability covered under the ADA.”89 As noted in 

Promises to Keep,

90 prior to the Amendments 

Act the General Counsel would request approval 

of the Commissioners before filing an ADA case 

given the difficulties under the ADA definition of 

“disability.” Approval by the Commissioners is no 

longer necessary except as required according 

to general EEOC policy.91 Though some disability 

“coverage” issues remain, the legal issues 

have shifted more toward what constitutes 

employment discrimination under the ADA.

Between FY 2002 and 2008, ADA cases 

represented on average 12.6 percent of all merit 

cases the EEOC filed in federal court, with an 

average of 44 ADA cases per year.92 ADA federal 

cases filed by the EEOC 

increased to 33 percent 

of all merit cases per 

year from FY 2009 to 

2016, with an average of 

54 ADA cases per year. 

Court monetary awards 

for EEOC-litigated ADA 

cases, as would be expected, rose as well from 

an average of $4.58 million per year between FY 

2002 and 2008, to $10.14 million between FY 

2009 and 2016.

EEOC litigation since the ADAAA has 

included different substantive legal issues. 

Under the SEP, the EEOC increased its focus on 

litigating cases that involve systemic issues.93

Major areas of litigation focus have been 

employer policies on leave or that require return 

to work with no restrictions and the right of 

assignment to a vacant position as a reasonable 

accommodation. The EEOC also brought several 

cases on what are the “essential functions” 

of a job.

ADA federal cases filed by the EEOC 

increased to 33 percent of all merit 

cases per year from FY 2009 to 

2016, with an average of 54 ADA 

cases per year

38 National Council on Disability
The EEOC was highly successful in EEOC 

v. Hill Country Farms d/b/a as Henry’s Turkey 

Service for ADA violations of discriminatory pay 

and hostile working conditions experienced by 

the men with intellectual disabilities exploited in 

Iowa.94 The EEOC obtained a back-pay award of 

$1.3 million for work the men performed from 

2007 to 2009, and prevailed in a discriminatory 

treatment allegation when a jury returned 

a verdict of $240 million in punitive and 

compensatory damages for the workers—the 

highest ever achieved by the EEOC in a jury trial.95

The award was significantly reduced by the court 

because of a statutory cap on such damages.96

The Commission achieved a significant victory 

on the issue of reassignment to a vacant position 

in EEOC v. United Airlines97 when the U.S. 

Seventh Circuit Court of Appeals overruled a prior 

decision that had taken a more restrictive view 

of reassignment.98 In the United Airlines case, 

the Seventh Circuit found that the ADA mandates 

the assignment of an employee with a disability 

to a vacant position for which the employee 

is qualified as a reasonable accommodation, 

provided the assignment is ordinarily reasonable 

in most cases and would not present an undue 

hardship in the particular case at hand. Other 

EEOC litigation outcomes on reassignment 

cases have not been successful. In EEOC v. St. 

Joseph’s Hospital, the U.S. Eleventh Circuit Court 

of Appeals concluded that “the ADA does not 

require reassignment without competition for, or 

preferential treatment of, the disabled.”99

The outcomes in “essential job function” 

litigation by the EEOC in the U.S. Courts of 

Appeal has been similarly mixed. The EEOC 

failed in EEOC v. The Picture People, Inc., 

which involved deciding whether the Deaf and 

Hard of Hearing could perform the essential 

functions of a job as a “performer” at a store.100

The EEOC succeeded in EEOC v. AutoZone, 

Inc., in which an employer unsuccessfully 

contended that mopping up the store at the 

end of the day was an essential function of the 

job at issue.101 In EEOC v. LHC Group, Inc., the 

Commission proved that driving was not an 

essential job function for a nurse team leader for 

a home health agency because, despite the job 

description and the assertion of the employer, 

the appropriate test was whether the position 

actually required driving, and the evidence 

showed a team leader rarely needed to drive.102

The EEOC was unsuccessful, however, in 

two cases on whether heavy lifting was an 

essential job function. In EEOC v. Womble 

Carlyle, Sandridge & Rice, LLP, the court ruled 

against the EEOC and found that heavy lifting 

was an essential function for an office support 

worker with a disability assigned many tasks in 

a large law firm office who could be assigned 

to work alone on weekends.103 In another case 

against AutoZone, the U.S. Seventh Circuit Court 

of Appeals refused to reverse a verdict against 

the EEOC, finding that the district court did not 

commit an error when it failed to instruct the jury 

about the use of the “team concept”—wherein 

team members perform tasks according to their 

capacities and abilities.104

Telework as a reasonable accommodation 

suffered a legal setback for people with 

disabilities in a decision by the U.S. Sixth 

Circuit Court of Appeals in EEOC v. Ford Motor 

Company.

105 The Commission argued that a 

terminated employee with a disability could have 

performed her job effectively through telework 

for up to four days a week as an accommodation. 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 39
The majority of the entire Sixth Circuit, however, 

held that regular and predictable on-site 

attendance was essential to what the court 

termed the employee’s “highly interactive job.”106

The EEOC litigated individual cases involving 

blanket exclusionary policies. For example, in 

EEOC v. Old Dominion Freight Line, Inc., the 

EEOC prevailed on the issue of an employer’s 

refusal to reinstate or rehire truck drivers who 

were diagnosed with alcoholism but who had 

completed an alcohol treatment program.107

In a case dealing with the ADA and the U.S. 

Constitution, in Hosanna-Tabor Evangelical 

Lutheran Church v. EEOC, the U.S. Supreme 

Court ruled against the EEOC and recognized the 

existence of a “ministerial 

exception” under the 

ADA, grounded in the 

First Amendment that 

precludes application of 

nondiscrimination laws 

to claims concerning the 

employment relationship 

between a religious 

institution and its ministers.108

The majority of EEOC litigation settles, and the 

Commission stresses targeted equitable relief in 

addition to monetary relief in its ADA settlement 

agreements. Two examples of targeted equitable 

relief from FY 2016 highlight this effort. In one 

case, the EEOC alleged that an employer failed 

to accommodate employees who requested 

to sit during their shifts. Through a conciliation 

agreement, the employer agreed to pay $5.05 

million to nine parties, 77 known class members 

and additional unidentified class members, to 

restructure its accommodation process and 

provide training that would benefit more than 

40,000 employees.109 In the second 2016 case, 

the EEOC resolved a Commissioner’s charge 

alleging disability discrimination against a large 

assessment test provider when the company 

agreed to make all of its online applicant 

assessment tests accessible to vision-impaired 

applicants via screen reading software, impacting 

thousands of assessments.110

The EEOC’s first GINA suit was filed in 2013 

against Fabricut, Inc. for violations of GINA—

when it asked a woman for her family medical 

history in a post-offer medical exam—and the 

ADA—when it refused to hire her because it 

regarded her as having carpal tunnel syndrome. 

The company settled for $50,000, modified its 

policies, and provided antidiscrimination training 

to its employees. The 

EEOC has filed only a 

handful of additional 

GINA cases since, 

given the small number 

of GINA charges filed 

with the Commission.

As part of the effort 

of the EEOC to guide 

interpretation of the ADA, the Commission submits 

friend of the court (amici) briefs in many individual 

ADA cases in which the EEOC is not the plaintiff. 

These briefs can assist a court in interpreting the 

ADA or the EEOC regulations. According to the 

OGC, the EEOC monitors federal cases that are 

appealed by either the plaintiff or the defendant 

to a U.S. Court of Appeals. This includes plaintiffs 

who are not represented by an attorney. OGC 

noted there are still a number of cases in which the 

district court wrongly applies pre-ADAAA case law, 

especially when the plaintiff is not represented by 

an attorney.

The EEOC can submit a friend of the court 

brief in a case being considered by a U.S. Court 

As part of the effort of the EEOC 

to guide interpretation of the ADA, 

the Commission submits friend 

of the court (amici) briefs in many 

individual ADA cases in which the 

EEOC is not the plaintiff

40 National Council on Disability
of Appeals without court approval. In determining 

whether to file a friend of the court brief, the 

EEOC looks for clear legal error by the lower 

district court and in which the EEOC can be of 

assistance to the court. The Commissioners 

must approve the filing of friend of the court 

briefs. The EEOC’s friend of the court activity 

has been successful in some cases with U.S. 

Circuit Courts agreeing to a broad interpretation 

of the definition of “disability” as intended by the 

ADAAA. In Barlia v. MWI Veterinary Supply,111 the 

Sixth Circuit, for example, agreed with the EEOC 

and reversed the lower district court on the 

definition of “disability” (though agreeing on the 

merits against the plaintiff).

Interagency 

Collaboration 

and Coordination

Promises to Keep

identified interagency 

collaboration and 

coordination as a critical 

factor for enforcement.112

In 2015, the EEOC 

entered into memoranda 

of understandings (MOU) with DOJ’s Civil Rights 

Division, in 2017 with DOL’s Wage and Hour 

Division (WHD), and in 2011 updated an MOU 

with DOL’s Office of Federal Contract Compliance 

Programs (OFCCP).

EEOC and DOJ share enforcement authority 

for public sector employers under the ADA and 

GINA.113 EEOC has authority to investigate and 

mediate discrimination charges against public 

sector employers, and as with private employers, 

the EEOC seeks to remedy violations by public 

employers through conciliation. If the EEOC 

conciliation fails, the matter is referred to DOJ, 

which has sole authority, and discretion, on 

whether to file suit against a public employer.

The EEOC and the DOJ Civil Rights Division 

MOU authorizes collaboration between the 

agencies on “the investigation, resolution, and 

litigation of charges; development of policy 

guidance; engaging in outreach and public 

education; training of each agency’s staff; and 

sharing of resources, as may be appropriate.”114

The MOU also addresses information sharing, 

points of contact, disclosure of information to 

third parties, and confidentiality; notification 

and consultation procedures at various stages; 

and establishing field cooperation procedures. 

The EEOC reports that the district offices 

and the DOJ now 

have local liaisons, 

and DOJ attorneys 

are involved earlier in 

EEOC investigations 

and conciliations to 

determine whether it 

may be interested in 

litigating the case. This 

early involvement has 

helped reduce the time 

for DOJ to decide whether to litigate, because 

both agencies understand the charge and the 

investigative file. The MOU has provided a formal 

mechanism to achieve tighter coordination and 

interagency cooperation in enforcement of 

employment laws. The EEOC also partners with 

DOJ in submitting briefs such as in Dagher v. 

Washington Metropolitan Area Transportation 

Administration involving the definition of 

“disability.”115

The MOU between EEOC and WHD covers a 

number of federal labor laws enforced by WHD. 

With the convergence of employment rights 

The EEOC reports that the district 

offices and DOJ now have local 

liaisons, and DOJ attorneys 

are involved earlier in EEOC 

investigations and conciliations 

to determine whether it may be 

interested in litigating the case

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 41
protections and enforcement by EEOC and 

WHD, the MOU is intended to “maximize and 

improve the enforcement of the federal laws 

administered [by the agencies].”116 The MOU 

contains agreements between the agencies 

similar to the MOU with DOJ such as information 

sharing, agency points of contact, confidentiality, 

and disclosure of information to third parties.

The MOU between WHD and EEOC 

emphasizes development 

of ways to efficiently 

systematize information 

and data sharing, 

particularly regarding 

unlawful compensation 

practices, especially 

unlawful denial of minimum wages or overtime 

pay; discrimination in compensation; working 

and living conditions of employees; unlawful 

denial of family and medical leave and leaverelated discrimination based on disability and 

other grounds; employment opportunities for 

people with disabilities; 

and the identification and 

investigation of complex 

employment structures. 

Other areas of emphasis 

include conducting 

coordinated investigations 

and training and outreach 

to each agency’s staff; 

increasing public education and sharing or codeveloping training materials and programs for 

a greater understanding of the laws enforced 

by each agency; and holding periodic meetings 

and establishing routine communication to share 

information about enforcement priorities and 

other employment trends. The MOU between 

EEOC and WHD has been in place for under two 

years, and there is little information about the 

impact of the agreement.

In 1992, OFCCP and the EEOC developed 

parallel regulations for handling individual 

complaints that allege violations of both Section 

503 of the Rehabilitation Act and the ADA.117

The regulations address exchange of information 

between the agencies and confidentiality 

requirements, but also go into detail about 

the processing and 

investigation of individual 

ADA and Section 

503 complaints. The 

procedures are helpful to 

people with disabilities, 

as they ensure timely 

filing of a complaint or charge regardless of 

whether the person files first with the EEOC 

or OFCCP.

In addition, since 1970, the EEOC and OFCCP 

have maintained an MOU, last updated in 2011 to 

promote interagency coordination and efficiency 

and to eliminate conflict 

and duplication.118 Similar 

to the other MOUs, the 

EEOC and OFCCP address 

procedures to share 

information to support their 

enforcement mandates; 

the disclosure of 

information to third parties; 

confidentiality, notification, and consultation 

during compliance activities; and the processing 

and investigation of dually filed complaints.

Staff report some jurisdictional competition 

between OFCCP and EEOC, as well as different 

procedures, such as those concerning the 

confidentiality of settlement agreements, which 

in the past required negotiations on how to 

The MOU between EEOC and WHD 

has been in place for under two 

years, and there is little information 

about the impact of the agreement

Staff report some jurisdictional 

competition between OFCCP 

and EEOC, as well as different 

procedures, such as those 

concerning the confidentiality of 

settlement agreements 

42 National Council on Disability
proceed in cases of joint investigations. The 

agencies seek to deal with specific issues of 

joint responsibility and investigations of federal 

contractors through biannual meetings at the 

field and headquarters levels of the MOUdeveloped Compliance Coordination Committees. 

NCD recommends that the EEOC and OFCCP 

increase the required frequency of the 

meetings of the Compliance Coordination 

Committees to ensure early resolution of 

jurisdictional issues and the identification of 

systemic problems by federal contractors

Training and Technical Assistance

Promises to Keep made several 

recommendations 

concerning EEOC training 

and technical assistance, 

including more training to 

the federal judiciary and 

to consumers, as well 

as additional training and 

guidance to investigators 

on U.S. Supreme Court 

decisions.119 EEOC training 

on the ADA and the Rehabilitation Act is provided 

by the OLC, outreach and education coordinators 

in the EEOC field offices, and through outreach 

and education staff at the Office of Federal 

Operations. There was no information available to 

assess the quality of such trainings.

The Commission offers a no-cost outreach 

program in which “EEOC representatives 

are available on a limited basis . . . to make 

presentations and participate in meetings, 

conferences and seminars with employee and 

employer groups, professional associations, 

students, non-profit entities, community 

organizations and other members of the 

general public.”120 The EEOC conducts about 30 

Technical Assistance Program Seminars a year 

under a provision that allows the agency to 

provide fee-based trainings through the EEOC 

Training Institute.121 The EEOC also holds an 

annual Examining Conflicts in Employment 

Laws national conference for equal employment 

opportunity managers and professionals. The 

EEOC reported staff are encouraged to add 

visits to partners affiliated with employees when 

traveling to conduct fee-based trainings.

The OGC interacts more with the federal 

courts, but stated it has little ability to control 

what trainings the federal judiciary, as a separate 

branch of government, will provide to judges. 

While the General 

Counsel, and on a few 

occasions attorneys from 

OLC, have presented 

to various U.S. Court of 

Appeal Circuit trainings, 

the judges decide whom 

to invite to such trainings. 

The EEOC believes the 

filing of friend of the court 

briefs are a very good way to inform federal 

judges about the ADA.

The Commission’s FY 2012 and the current 

Strategic Plan have sought to ensure that “subregulatory guidance and documents are reviewed 

and that, where necessary they are updated 

and accompanied by plain language texts.”122

Based on a test of several EEOC facts sheets 

and Q&As using the Flesch-Kincaid Grade-Level 

scale, the agency resource documents are still 

written at a post–high school reading level. A few 

participants in the focus discussion groups had, 

however, used EEOC materials from the website 

and in general found the materials helpful. 

The EEOC conducts about 30 

Technical Assistance Program 

Seminars a year under a provision 

that allows the agency to provide 

fee-based trainings through the 

EEOC Training Institute

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 43
NCD recommends the EEOC develop ADA 

fact sheets and guidance documents for the 

general public in simpler language that takes 

into account persons with various disabilities 

as stated in the Commission’s Strategic Plan 

and in accordance with the Plain Writing Act

The EEOC should continue to routinely create 

detailed guidance documents about the ADA 

that benefit employers, advocates, and the 

courts

Adequacy of Agency Resources

Adequate funding and staffing of enforcement 

agencies is a key requirement for enforcement 

of disability civil rights laws. Since Promises 

to Keep, the EEOC budget in constant dollars 

dropped by 8.85 percent (see Table A in Appendix 

A). Of greater concern, EEOC staff levels have 

declined rapidly since 2000, dropping 27 percent 

from 2,852 actual full-time equivalent (FTE) staff 

in FY 2000, to 2,082 actual FTEs in FY 2017. 

The number of actual FTEs was also below 

the approved FTE ceiling in 17 out of the past 

18 fiscal years (see Table B in Appendix A). 

According to EEOC data, about 71 percent of the 

EEOC budget on average is for compensation 

and benefits.

Staffing within the OGC similarly declined, 

with field attorneys dropping from 226 in 

FY 2000 to 173 in FY 2016, a decline of 23 

percent. OGC headquarters staff also declined, 

from 89 FTEs in FY 2000 to 48 in FY 2015, 

a decline of 46 percent. The OGC litigation 

budget has generally made up only about 1 

percent of the entire EEOC budget, or from 

$4.9 million in FY 2010 to a total of $3.77 

million in FY 2016.123

The EEOC indicated that a number of factors 

impact the ability to hire and achieve staffing 

levels. In addition to differences between the 

requested and enacted appropriations, the EEOC 

noted external factors that have impacted hiring 

to include FTE targets not being reduced when 

congressional appropriations are lower than 

requested, federal hiring freezes, mandated 

and unfunded pay increases during the first 

part of the century, rescissions, and the FY 

2013 sequestration. NCD recommends that 

Congress and the President eliminate budget 

and hiring barriers, such as hiring freezes and 

unfunded mandatory pay increases, which 

prevent the EEOC from maintaining necessary 

staff levels

Declining Staffing at the EEOC

EEOC staff levels have declined rapidly since 

2000, dropping 27 percent from 2,852 actual 

full-time equivalent (FTE) staff in FY 2000, to 

2,082 actual FTEs in FY 2017.

Staffing within the OGC similarly declined, 

with field attorneys dropping from 226 in 

FY 2000 to 173 in FY 2016, a decline of 23 

percent.

44 National Council on Disability
T

he Department of Labor (DOL) is 

responsible for the enforcement and 

oversight of a number of programs that 

impact the employment and rights of people 

with disabilities. This chapter considers the 

efforts of DOL’s Employment and Training 

Administration (ETA), Office of Disability 

Employment Policy (ODEP), Office of Federal 

Contract Compliance Programs (OFCCP), Office 

of the Solicitor (SOL), and the Wage and Hour 

Division (WHD).

Chapter 2: U.S. Department of Lab

Based upon the analysis contained in this chapter, NCD 

recommends that:

■ ETA expand the Disability Employment Initiative (DEI) program to include a greater number 

of DEI projects for people with significant disabilities.

■ ETA develop an accessibility grants program to plan, fund, and administer better 

programmatic, physical, and electronic accessibility of American Job Centers in accordance 

of Section 188 of the Workforce Innovation and Opportunity Act (WIOA).

■ ETA provide guidance and technical assistance to assist American Job Centers achieve 

better accessibility, including guidance on serving people with communication disabilities 

(sign language interpreters, etc.).

■ ETA create a strategic plan to develop and implement evidence-based policies, practices, 

and tools to foster the inclusion of people with disabilities in 21st-century jobs with 

specific timelines and benchmarks.

■ ODEP create and oversee a working group of federal agencies to infuse promising 

practices into all federal employment programs in order to increase disability employment.

■ ODEP revisit prior recommendations made to other entities to evaluate the extent to 

which ODEP recommendations were adopted and follow up to discuss nonimplemented 

recommendations and to provide assistance.

(continued)

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 45
■ ODEP continue to focus on strategies that support changing workplaces to allow all people 

with disabilities, including those with significant long-term disabilities, to enter or remain in 

the workforce, which includes the improvement of return-to-work/stay-at-work programs.

■ OFCCP better ensure materials and documents are written in simple language.

■ OFCCP ensure its primary focus in the development of all regulations, sub- regulatory 

guidance, and other policy materials pertaining to Section 503 and the Vietnam 

Era Veterans Readjustment Assistance Act is on the advancement of employment 

opportunities for people with disabilities.

■ OFCCP modify its compliance review procedures for Section 503 of the Rehabilitation Act 

as specifically detailed in this chapter.

■ OFCCP develop new procedures outside of the compliance review process, such as a 

random request for the establishment of written contractor affirmative action programs, to 

better ensure compliance with the Section 503 written affirmative action requirements.

■ OFCCP hire and train a sufficient number of compliance officers in areas where federal 

contractors are concentrated in order to increase the number of compliance reviews.

■ WHD amend the Fair Labor Standards Act Section 14(c) certificate application form to 

collect information on the total number of employees who earn a subminimum wage and 

state that 14(c) employees have rights under the ADA.

■ WHD create technical guidance for 14(c) certificate holders that being “disabled for the 

work” on one task does not establish a person is “disabled for the work” on other tasks.

■ WHD systematically track how many 14(c) certificates have expired and the reasons for the 

expiration.

■ WHD use enforcement authority to determine the extent to which employers who do not 

renew a 14(c) certificate continue to pay a subminimum wage.

■ WHD produce additional training materials targeted for use by community rehabilitation 

program staff.

■ WHD undertake a focused strategic enforcement effort to determine the extent school 

work experience programs comply with Section 511 of WIOA.

■ WHD track the extent to which community rehabilitation programs participate in the 

AbilityOne program, the number of legal violations, and the number of referrals made by 

WHD to the AbilityOne program for enforcement.

Based upon the analysis contained in this chapter, NCD 

recommends that: continued

(continued)

46 National Council on Disability
■ WHD prioritize the use of directed enforcement investigations to ensure effective 

enforcement and deterrence.

■ WHD reallocate its resources to expand Section 14(c) oversight through random sampling 

of 14(c) certificate holders to determine the prevalence of violations of federal wage and 

hour laws and to determine factors likely to lead to violations.

■ WHD create an online form to better enable an employee with a disability to request a 

hearing by an Administrative Law Judge to review the payment of subminimum wages.

■ WHD conduct outreach to employees with disabilities paid a Section 14(c) subminimum 

wage about their rights and the process to petition for review of their wages and modify all 

relevant outreach materials and posters to clearly state those rights.

■ WHD take steps to increase the percentage of investigators trained for, and solely 

dedicated to, the enforcement of Section 14(c).

■ WHD undertake a systemic look at the reasons for the increase in Family and Medical 

Leave Act violations, with an emphasis on whether an increase in agency-initiated 

investigations is warranted.

Based upon the analysis contained in this chapter, NCD 

recommends that: continued

NCD recommends that Congress and the President:

■ Require federal agencies responsible for oversight of federal employment programs to 

consult with ODEP to incorporate promising disability practices and by doing so break 

down silos that exist between federal agencies.

■ Ensure ODEP funding is flexible and focused on contracts with, and grants to, experts in 

the various fields affecting disability employment.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 47
The remainder of this chapter considers each 

of the DOL agencies.

Employment and Training 

Administration (ETA)

Overview of the ETA

DOL’s Employment and Training Administration 

seeks to contribute to a more efficient functioning 

of the U.S. labor market by providing job 

training, employment, labor market information, 

and income maintenance services primarily 

through state and local workforce development 

systems.124 Much of ETA’s work is carried out 

through grants and contracts.

The broad mission of ETA is inclusive of 

people with disabilities. 

According to ETA, 

approximately 290,000 

individuals identified 

themselves as having a 

disability in 2016 when they 

received services under 

ETA-administered WIOA 

Title I programs for adults, 

dislocated workers, and 

youth. ETA also administers Title III of WIOA, the 

Wagner-Peyser Act Employment Service program, 

and has direct oversight of approximately 2,400 

American Job Centers (AJCs), which provide 

workforce services to job seekers, including 

persons with disabilities. ETA further administers 

the Work Opportunity Tax Credit, not assessed 

in this report, which provides tax credits for 

employers to hire Supplemental Security Income 

recipients, among several other targeted groups.

Regulatory, Sub-Regulatory, and Policy 

Guidance

ETA publishes regulations and monitors AJCs 

for compliance with laws that require that AJCs 

be accessible both physically and pragmatically. 

While State Workforce Development Boards—

which develop AJC certification criteria—have 

some flexibility in establishing the criteria, 

ETA emphasizes that AJC accessibility, at 

a minimum, must comply with the equal 

opportunity provisions of Section 188 of 

WIOA.125

ETA reports that it maximizes compliance 

with Section 188 through grant monitoring by 

its six regional offices. Monitoring can include 

on-site visits and desk reviews, and ETA checks 

that grantees have appropriate policies and 

procedures necessary to comply with federal 

disability rights laws. ETA has developed several 

technical assistance 

resources and 

webpages for AJC and 

other WIOA covered 

entities; however, it is 

not clear if ETA has a 

strategy to disseminate 

and target such 

information to all AJCs. 

NCD recommends 

that ETA develop an accessibility grants 

programs to plan, fund, and strategically 

focus upon better programmatic, physical, 

and electronic accessibility of AJCs, pursuant 

to the requirements of Section 188 of WIOA

Proactive and Reactive Strategies

While ETA recognizes the importance of being 

innovative to meet the principles of WIOA, as 

well as evolve to meet new technologies and 

emerging markets, ETA is not clear about its 

strategic plan for the employment of people 

with disabilities in 21st-century jobs. ETA has 

yet to report concrete progress in implementing 

WIOA in response to new and rapidly emerging 

According to ETA, approximately 

290,000 individuals identified 

themselves as having a disability 

in 2016 when they received 

services under ETA-administered 

WIOA Title I programs for adults, 

dislocated workers, and youth

48 National Council on Disability
technologies and labor market sectors, although 

the ETA has stated its commitment to exploring 

the dynamics of this area and to make its 

resources available. NCD recommends ETA 

develop a strategic plan for developing and 

implementing evidence-based policies, 

practices, and tools to foster the inclusion of 

people with disabilities 

in 21st-century jobs with 

specific timelines and 

benchmarks

Training and Technical 

Assistance

ETA provided training 

on WIOA and its regulations, including on AJC 

accessibility and the Section 188 regulations 

during in-person WIOA training sessions in 

2016 and 2017 and through guidance and online 

technical assistance. Materials from these 

training sessions, as 

well as a calendar of 

upcoming events relevant 

to WIOA, are available 

online.

ETA’s State 

Apprenticeship 

Expansion grants and 

extensive technical 

assistance efforts are designed to allow states 

to expand the use and reach of apprenticeship.126

ETA has not provided quantitative data reflecting 

the number of people with disabilities who 

currently participate in such apprenticeship 

programs. ETA is updating its parameters for data 

collection and anticipates disability status will be 

a part of the data collection beginning January 

2019.

According to the agency, over the past 

several years, ETA has worked to improve and 

align services in AJCs, including for persons 

with disabilities. DOL awarded total grants of 

approximately $139 million to 55 projects in 30 

states over eight years through the Disability 

Employment Initiative (DEI), which aims to 

strengthen the capacity of the workforce 

investment system to improve employment 

outcomes for people 

with disabilities. ETA 

administers DEI through 

joint funding with ODEP.

More recent DEI grants 

incorporated a careerpathways focus, including 

apprenticeship, to align 

with the goals and objectives of WIOA and to 

close the skills gap. There are currently 18 active 

DEI projects in 15 states and one tribal nation, 

of which eight are focused on adults, seven are 

focused on youth, and three are focused on 

persons with significant 

disabilities. NCD 

recommends that ETA 

expand the DEI grants 

program to include a 

greater number of DEI 

projects for individuals 

with significant 

disabilities nationwide

ETA reports it seeks to improve AJC services 

by encouraging states and local areas to provide 

such services through customer-centered design. 

To date, ETA has sponsored four rounds of a free 

online, seven-week-long, customer-centered 

design class in which ETA challenges teams 

to design new ways to be customer focused. 

More recent design challenges, according to 

ETA, that concerned customers with disabilities 

focused on examining universal design principles 

to maximize inclusive service delivery by the 

ETA has yet to report concrete 

progress in implementing WIOA 

in response to new and rapidly 

emerging technologies and labor 

market sectors 

There are currently 18 active DEI 

projects in 15 states and one tribal 

nation, of which eight are focused 

on adults, seven are focused on 

youth, and three are focused on 

persons with significant disabilities

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 49
AJCs. ETA, however, did not report the number 

of AJCs that have participated in these design 

challenges, and as recently as January 2017 DOL 

found that “[a]lmost two-thirds (63 percent) of 

AJCs were ‘not fully accessible’ to people with 

disabilities.”127 NCD recommends that ETA 

provide guidance and technical assistance to 

help American Job Centers in achieving better 

accessibility, including guidance on serving 

individuals with communication disabilities 

(sign language interpreters, etc.

Interagency Collaboration 

and Coordination

ETA partners with the Civil Rights Center (CRC) 

to develop, administer, 

and enforce DOL civil 

rights requirements. 

ETA, CRC, and ODEP 

have jointly developed a 

set of best practices to 

implement Section 188 

of WIOA, which prohibits 

discrimination in the provision of services to 

people with disabilities.

ETA uses a common set of performance 

measures for all employment and training 

programs focused on employment outcomes, 

also used by the Department of Education.128

ETA requires that grantees report on individual 

characteristics of program participants, including 

eight disability categories to be used by all 

program partners.129 States are still transitioning to 

the new reporting requirement, so results for the 

disability categories are not yet available. Common 

disability categories across the program partners, 

however, will enable DOL agencies to evaluate the 

impact of employment and training programs on 

different populations of people with disabilities.

Office of Disability Employment 

Policy (ODEP)

Overview of ODEP

The Office of Disability Employment Policy is 

the successor to the President’s Committee 

on the Employment of People with Disabilities 

(PCEPD) and the Presidential Task Force on 

the Employment of Adults with Disabilities 

(PTFEAD).130 PCEPD educated small businesses 

about ADA requirements, the benefits of hiring 

people with disabilities, and resources to help 

them employ workers with disabilities and 

included an initiative to improve employment 

opportunities for people with disabilities from 

diverse cultural backgrounds. PCEPD established 

the Job Accommodation 

Network (JAN) to provide 

technical assistance to 

employers. Promises to 

Keep found JAN was “an 

especially important source 

of technical assistance 

for implementation of 

Title I of the ADA.”131 PTFEAD was established 

by Executive Order in 1998. PTFEAD, which 

met and worked over the course of several 

years, produced a number of recommendations, 

including the creation of a new Office of Disability 

Employment Policy led by an Assistant Secretary. 

ODEP was established in 2001.

ODEP is the only nonregulatory federal 

agency that promotes policies and coordinates 

with employers and all levels of government 

to increase the workplace success for people 

with disabilities.132 ODEP is a sub-cabinet–level 

agency,133 and works to develop and influence 

policies and practices to increase the number and 

quality of employment opportunities for people 

with disabilities. To fulfill this mission, ODEP 

[A]s recently as January 2017 

DOL found that “[a]lmost 

two-thirds (63 percent) of AJCs 

were ‘not fully accessible’ to 

people with disabilities.

50 National Council on Disability
promotes the adoption and implementation of 

policy strategies and effective practices to impact 

employment of people with all disabilities. ODEP 

disseminates policy strategies and effective 

practices, shares information, and provides 

technical assistance to government agencies, 

service providers, nongovernmental entities, and 

employers.134

ODEP has four Divisions: Policy Development 

with the four focus areas of Workforce Systems, 

Youth, Employment-Related Supports, and 

Employers; Policy Communication and Outreach; 

Administrative Systems and Financial Services, 

which includes Program Management; and Policy 

Planning and Research, with the focus areas 

of Program Management and Research and 

Evaluation.135

Regulatory, Sub-Regulatory, 

and Policy Guidance

ODEP provides important practical and policy 

support for the implementation of other federal 

laws that support the employment of people 

with disabilities. ODEP’s strategic plan includes 

an objective to develop evidence-based policies, 

practices, and tools to foster a more inclusive 

workforce to increase quality employment 

opportunities for people with disabilities.136

Pursuant to this objective, ODEP will (1) conduct 

analyses, research, and evaluation of the most 

successful disability employment policies and 

practices, and (2) leverage partnerships to 

drive policy change.137 Since the passage of 

the ADAAA, ODEP has instituted a number of 

programs, initiatives, and research. The following 

paragraphs discuss some of ODEP’s programs, 

initiatives, and research. For a complete list, 

visit the ODEP website at https://www.dol.gov/

odep/.

In 2009, ODEP launched the Disability.gov

website to provide a clearinghouse for disability 

employment information and instituted the 

Emerging Technologies Initiative to analyze 

employment practices using accessible 

technology.138 Other 2009 ODEP efforts included 

the ePolicy Works collaborative platform 

to help agencies and stakeholders explore 

disability employment policy, the examination 

of mechanisms to support Personal Assistance 

Services for employees, and research on 

customized employment and telework.139 In 

2010, ODEP launched the Disability Employment 

Initiative (DEI), mentioned under the ETA 

discussed previously, and piloted a model 

of Project SEARCH to help individuals with 

intellectual and developmental disabilities 

transition from school to work.140 This was 

followed in 2011 by the launch of the Integrated 

Employment Initiative to promote competitive 

integrated employment for people with 

significant disabilities.141

ODEP funded the Partnership on Employment 

and Accessible Technology in 2012 (originally 

launched as the Accessible Technology Action 

Center).142 ODEP also established the National 

Center on Leadership for the Employment and 

Advancement of People with Disabilities (LEAD), 

and funded the National Technical Assistance and 

Demonstration Center on Preparing Youth with 

Disabilities for Employment (NCWD/Youth).143

In 2013, ODEP hosted national dialogues on 

employment, assistive technology, and youth in 

transition.144

In 2014, ODEP launched the National 

Employer Policy, Research and Technical 

Assistance Center on the Employment of People 

with Disabilities, and PEATworks.org, a portal 

to help employers and the technology industry 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 51
adopt accessible technology, and expanded 

the Workforce Recruitment Program (WRP) to 

private employers.145 In 2015, ODEP rebranded 

and continued to fund the Employer Assistance 

and Resource Network on Disability Inclusion 

(EARN) to help employers foster disabilityinclusive workplaces, and provided funding to the 

National Collaborative on Workforce and Disability 

for Youth to promote 

positive transition 

outcomes for youth 

with disabilities.146 In 

addition, ODEP launched 

the State Exchange 

on Employment and Disability (SEED) in 2015, 

and led the Advisory Committee on Increasing 

Competitive Integrated Employment for 

Individuals with Disabilities.147

Throughout this period, ODEP supported 

the U.S. Business 

Leadership Network, 

providing businessto-business support 

for the employment of people with disabilities, 

worked with employers to develop alliances and 

replicable model programs to employ people with 

disabilities, and conducted research on assistive 

workplace technology. ODEP continues to fund 

JAN and EARN to provide practical technical 

assistance to employers to help them employ 

workers with disabilities, and the LEAD Center 

to promote systems-level change to increase 

disability employment.148

Proactive and Reactive Strategies

ODEP’s strategies are primarily proactive, and 

its most proactive effort is its research work. 

ODEP’s research 

tests and develops 

policies to improve 

access to training, 

transition services, and 

employment support and accommodations for 

job seekers and workers with disabilities to 

ensure they have the skills businesses demand. 

ODEP’s research also identifies and validates 

promising practices to help shape employment 

services for people with 

disabilities.149

Current ODEP research 

projects focus on youth 

Supplemental Security Income recipients 

transitioning to employment, community college 

interventions for youth with disabilities, and 

employer policies on disability employment and 

return-to-work strategies. ODEP has sponsored 

other research projects to evaluate AJC 

accessibility, assess employer perspectives on 

employment of people with disabilities, increase 

knowledge of customized employment, explore 

funding for Personal Assistance Services at 

work, evaluate the effectiveness of Individualized 

Learning Plans, examine the effects of corporate 

wellness programs for people with disabilities, 

and analyze financial education for youth with 

disabilities.

ODEP now plans to shift its focus to return-towork strategies. Previously, ODEP has focused 

ODEP’s strategies are primarily 

proactive, and its most proactive 

effort is its research work

ODEP now plans to shift its focus to 

return-to-work strategies

Current ODEP Research Projects

■ Youth Supplemental Security Income 

recipients transitioning to employment

■ Community college interventions for youth 

with disabilities

■ Employer policies on disability employment 

and return-to-work strategies

52 National Council on Disability
on employment of people with long-standing, 

often visible disabilities who mainly consider 

themselves as members of the disability 

community. People who develop a disability or 

health condition as they age frequently do not 

view themselves as having a disability or facing 

discrimination based on disability. Employment 

strategies aimed at people who develop a 

disability later in life tend to depend less on 

disability rights laws that address employer 

bias, stigma, and discriminatory practices, 

and more on treatment, retraining, and finding 

jobs. Specifically, the ODEP-funded Retaining 

Employment and Talent after Injury/Illness 

Network (RETAIN) focuses on “a strategy to 

return recently ill, injured, or disabled employees 

to work” by implementing early interventions for 

workers who “recently 

began experiencing 

difficulties at work due to 

injury or illness.”150

Serving people who 

acquire a disability or 

health condition during 

their working years and are at risk of exiting 

the workforce is important. People born with 

a disability or develop a disability as a youth, 

however, have long been denied entry to the 

workforce and are not traditionally served by 

programs designed for people who seek to return 

to work after acquiring a disability. Serving these 

populations is of fundamental importance to the 

effectiveness of the ADA, which was intended to 

address the discrimination that has traditionally 

kept people with disabilities from entering 

the workforce. NCD recommends ODEP 

continue its focus on strategies that support 

changing workplaces to allow people with 

disabilities, including those with significant 

long-term disabilities to enter or remain in the 

workforce, which includes the improvement 

of return-to-work/stay-at-work programs

Interagency Collaboration and 

Coordination

ODEP plays an educational and advisory role for 

federal regulatory and enforcement agencies 

by informing efforts and the solutions these 

agencies incorporate into resolution agreements, 

regulations, and guidance on the employment 

of people with disabilities. ODEP works to 

increase employment opportunities for people 

with disabilities by collaborating with agencies 

within151 and outside DOL.152

ODEP’s greatest impact occurs when it 

infuses disability principles and practices into 

the programs of other federal agency programs. 

ODEP provided the 

foundations for WIOA 

and the implementing 

regulations and has 

given a roadmap for the 

transformation of state 

workforce development 

systems. Because ODEP’s expertise and 

responsibility is not limited to a single disability 

rights law or program, it assists enforcement 

agencies understand the overlapping laws, 

policies, and practices in the disability area. Such 

cross-program insight can be particularly helpful 

to policymaking and enforcement agencies in the 

recognition of gaps and to avoid re-inventing the 

wheel. Some of ODEP’s greatest impact is on 

programs overseen, funded, or operated by other 

federal or state agencies.

ODEP has limited official authority, so it must 

obtain the cooperation of other federal agencies 

and interested partners in order to infuse its tools 

and insights into programs controlled by others. 

ODEP currently relies on informal means to 

ODEP’s greatest impact occurs 

when it infuses disability principles 

and practices into the programs of 

other federal agency programs

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 53
establish relationships to gain that cooperation. 

NCD recommends that ODEP create and 

oversee a working group of federal agencies 

to infuse promising practices into all federal 

employment programs in order to increase 

disability employment

153

NCD recommends that Congress and the 

President require federal agencies responsible 

for oversight of federal employment programs 

to consult with ODEP to incorporate 

promising disability practices and, by doing 

so, break down silos that exist between 

federal agencies.

Communication with Complainants 

and the Community

ODEP manages the Campaign for Disability 

Employment, a nationwide media campaign to 

increase disability employment by promoting 

positive perceptions and high expectations 

of people with disabilities. National Disability 

Employment Awareness Month (NDEAM) each 

October celebrates the contributions of workers 

with disabilities and educates about the value 

of a diverse workforce. To support NDEAM 

activities, ODEP provides resources, including 

an online toolkit and posters. In 2017, according 

to ODEP, more than 16,000 NDEAM posters in 

English and Spanish were distributed and more 

than 40,000 people visited the NDEAM website.

While ODEP considers its customer base to 

be the general public, it often tailors messages 

and information to specific audiences, including 

public policymakers, public and private sector 

employers, disability service providers and 

students, job seekers, and workers with 

disabilities. Engagement activities include national 

outreach and awareness campaigns, the use 

of social media, online and in-person technical 

assistance, national and local conferences, 

electronic customer service, and online dialogues. 

ODEP’s status as a trusted source of information 

for employers and government agencies gives 

it an important role in disseminating information 

about enforcement activities, the meaning and 

purpose of disability rights policies, and practical 

means to implement disability employment rights.

Much of the impactful work ODEP 

accomplishes is not obvious to the public. In 

part, this is a virtue of ODEP’s role as an expert 

advisor, researcher, and trusted messenger. 

ODEP does not have the resources to 

systemically collect and report information on the 

impact of its recommendations. ODEP evaluates 

its policy performance by measuring the number 

of Policy Outputs and Implementation Tools it 

produces. Policy Outputs include adoptions at 

the federal, state, or local level of legislative 

proposals, model legislation, or amendments 

recommended by ODEP; adoption of rules 

recommended by ODEP; formal policy guidance 

by federal agencies; and executive orders at the 

federal, state, or local level. Implementation Tools 

provide educational or explanatory information 

to support adoption and implementation of 

ODEP developed or recommended practices, 

policies, strategies, models, or theories, including 

toolkits, curricula, learning guides, model practice 

plans, primers, briefs, implementation guides, 

and policy templates. The FY 2017 Budget 

Justification and 2018–22 Strategic Plan154

performance measures predict a significant 

(50 percent) reduction in the development 

and dissemination of implementation tools 

by ODEP over the next five years. DOL’s FY18 

Congressional Budget Justification forecasts 

only eight Policy Outputs in 2018 and only 41 

Implementation Tools.155

54 National Council on Disability
Training and Technical Assistance

In part because ODEP lacks an enforcement 

role, employers and federal, state, and local 

government agencies seek solutions from 

ODEP and share strategies and lessons learned 

with ODEP. ODEP partners with employers to 

implement inclusive practices and policies that 

align with their business 

needs. Consequently, 

ODEP has been able 

to provide significant 

support to Federal 

Government efforts to 

implement Section 501 

of the Rehabilitation 

Act and to develop and 

implement regulations 

under Section 503 that 

impact federal contractors. ODEP has developed 

a number of resources and toolkits that identify 

promising employment practices and strategies 

for recruiting, hiring, 

advancing, and retaining 

people with disabilities.

ODEP has supported 

state efforts to increase 

disability employment. 

ODEP conducted 

a self-employment 

demonstration project 

with three states and 

a national technical 

assistance (TA) center to highlight innovative 

models of self-employment service delivery. 

In addition, since 2012, ODEP has provided TA 

to states through its Employment First State 

Leadership Mentoring Program to help align 

state policies to support competitive integrated 

employment for people with significant disabilities.

ODEP’s EARN Network helps employers tap 

the benefits of disability diversity and inclusion. 

JAN offers free, expert, and confidential 

guidance on workplace accommodations and 

disability employment issues and facilitates 

employment and retention of workers with 

disabilities by providing TA, training, and 

other resources on 

job accommodations 

and by disseminating 

information and 

promoting best 

practices.156

ODEP’s LEAD Center 

educates employers 

on best practices for 

hiring people with 

significant disabilities 

through job customization and discovery. The 

LEAD Center also implements an initiative to 

educate state Equal Opportunity Officers about 

WIOA nondiscrimination 

provisions. Through 

its Partnership on 

Employment and 

Accessible Technology 

(PEAT), ODEP 

established the Policy 

Matters webpage157

to help employers, 

technology users, and 

technology providers 

understand federal regulatory developments. 

To increase the participation of people with 

disabilities in the labor force, ODEP administers 

the Workforce Recruitment Program (WRP), 

which connects employers with prescreened 

college students and recent graduates with 

disabilities. Since 1995, the WRP has placed 

The FY 2017 Budget Justification 

and 2018–22 Strategic Plan 

performance measures predict a 

significant (50 percent) reduction in 

the development and dissemination 

of implementation tools by ODEP 

over the next five years

ODEP has been able to provide 

significant support to Federal 

Government efforts to implement 

Section 501 of the Rehabilitation 

Act and to develop and implement 

regulations under Section 503 that 

impact federal contractors

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 55
thousands of persons with disabilities into federal 

and private employment.

ODEP measures the effectiveness of its 

TA through several means. The “pulse” survey 

measures the immediate impact of TA. ODEP 

generally receives scores of 85 percent or 

higher on these surveys. ODEP also measures 

effectiveness through requests for additional 

TA after an event. ODEP typically doubles the 

number of planned TA requests each year through 

such “demand-driven” events. This data almost 

certainly underestimates the impact of ODEP’s 

work. An important measure of ODEP’s work 

would be to count the number of entities that 

adopt policies and practices as a result of 

ODEP’s TA.

ODEP has taken a 

proactive approach to 

attempt to measure its 

impact. For example, 

ODEP’s Guideposts for 

Transition Success have 

been adopted by several 

states, including Alaska, 

California, Connecticut, Georgia, Minnesota, 

Missouri, and South Carolina. The SEED Initiative 

carefully tracks its policy and practice reach using 

a “policy tracker.” In FY17, SEED helped produce 

36 policy outputs. Enacted legislation has ranged 

from the development of new state hiring 

programs to the creation of employer tax credits 

for hiring people with disabilities and improving 

access to transportation.

The impact of the work of ODEP on policies 

and practices for disability employment tends 

to be over the long term, and as a result 

ODEP is hindered in the ability to assess and 

communicate the impact of its work to the 

public. NCD recommends that ODEP revisit 

its prior recommendations to governments, 

enforcement agencies, employers, and 

service providers to evaluate the extent to 

which the recommendations were adopted

ODEP should follow up with the respective 

entities to discuss nonimplemented 

recommendations and provide assistance for 

implementation

ODEP conducted 1,066 outreach events in 

FY16, planned to conduct 521 in FY17, and plans 

250 in 2018, a 50 percent reduction each year.158

Similarly, ODEP conducted 1,185 TA events in 

2016, 803 in 2017, and proposed 500 in 2018, 

substantial reductions each year.159 ODEP reports 

that it actually conducted 1,730 TA events in FY17, 

plus 604 events conducted by EARN and JAN.160

In FY18 Quarter 1, 

according to staff, ODEP 

completed 42 planned 

and 146 additional 

“demand-driven” events. 

Collaborations were 

proposed to decrease 

from 35 to 30 from 

2017 to 2018, and research projects to decrease 

from 38 to 30.161 In 2017, JAN provided 94,093 

TA responses through phone, email, chat, and 

Skype, and its website received nearly 15 million 

requests from nearly 2 million visitors.

Adequacy of Agency Resources

ODEP’s FY18 budget is $38.2 million,162 which 

is consistent with its budgets since FY 2010. 

ODEP’s annual budget averaged around $33.7 

million in constant dollars since 2008 (see Table 

C in Appendix A). Budget requests for FY 2018163

and FY 2019164 were $27 million, maintaining 49 

FTEs and reducing ODEP contracts and grants 

by approximately $11 million.165 In recent years, 

In 2017, JAN provided 94,093 TA 

responses through phone, email, 

chat, and Skype, and its website 

received nearly 15 million requests 

from nearly 2 million visitors

56 National Council on Disability
ODEP allocated $26–$27 million (approximately 

70 percent of its total budget) to advisory 

assistance services and grants.166 The FY19 

budget proposal reduces those expenditures 

by 42 percent,167 and if adopted, ODEP would 

spend $4.7 million on contracts (down from $13.3 

million) and $10.8 million on grants (down from 

$13 million).168

ODEP has traditionally performed much of 

its work through contracts with, or grants to, 

experts in the wide variety of areas that impact 

the employment of people with disabilities. 

The continual delays in the budget process and 

repeated short-term continuing resolutions, 

combined with substantially reduced budget 

requests, creates uncertainty that hinders 

ODEP’s progress. ODEP is effective by having a 

small staff with a deep interest, expertise, and 

understanding of cross-disability issues, rights, 

and principles, while using an array of experts, 

researchers, and practitioners in subject matters 

affecting disability employment. Contracts and 

grants with subject matter experts, researchers, 

and practitioners allows access to particular 

expertise needed for a project, without the need 

for ODEP to hire permanent staff or develop 

infrastructure. A staff of 49 cannot have the 

necessary expertise in all the areas that ODEP 

needs to understand, influence, and educate. 

NCD recommends that Congress and the 

President ensure ODEP funding is flexible 

and focused on contracts with, and grants to, 

experts in the various fields affecting disability 

employment

Office of Federal Contract 

Compliance Programs (OFCCP)

The Office of Federal Contract Compliance 

Programs was not evaluated in Promises to 

Keep, but the report recommended that OFCCP 

strengthen collaboration with the EEOC.169

Overview of OFCCP

OFCCP administers and enforces federal 

laws applicable to federal contractors and 

subcontractors that prohibit discrimination and 

promote equal employment opportunity of 

people with disabilities under Section 503 of 

the Rehabilitation Act and qualified veterans 

under the Vietnam Era Veterans’ Readjustment 

Assistance Act (VEVRAA).170 Section 503 also 

authorizes OFCCP to investigate complaints of 

disability discrimination.171 OFCCP is led by a 

director and is geographically composed of six 

regions with 48 area and district offices.172

Section 503 is currently applicable to any 

entity with a federal contract or subcontract of 

more than $15,000.173 The threshold to create 

an affirmative action program (AAP) under the 

Section 503 regulations is higher, applying to 

contractors with 50 or more employees and at 

least one single federal contract or subcontract 

of $50,000 or more.174 In September 2016, 

the Government Accountability Office (GAO) 

estimated that approximately 200,000 contractor 

establishments are subject to OFCCP oversight 

every year.175

Regulatory, Sub-Regulatory, 

and Policy Guidance

In July 2010, OFCCP requested public comment 

on potential ways to strengthen the Section 

503 regulations.176 In 2010 and 2011, the OFCCP 

conducted multiple town hall meetings, webinars, 

and listening sessions with the contractor 

community, disability advocates, and other 

interested parties.177 In December 2011, OFCCP 

published a proposed regulation seeking comment 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 57
on specific actions contractors and subcontractors 

would have to take to meet the affirmative 

action obligations.178 The proposed regulations 

included increased data collection requirements 

and the establishment of a utilization goal for 

the employment of people with disabilities. The 

final regulations became effective as of March 

24, 2014, with full compliance by contractor 

establishments required over a phase-in period.179

In response to comments from the contractor 

community citing increased costs and burdens, 

the final regulations eliminated or made flexible 

many of the data collection requirements in the 

proposed regulation. OFCCP also did not adopt a 

number of regulations, including those requiring 

contractors to develop written reasonable 

accommodation policies, annually evaluate 

job descriptions and qualification standards, 

and ensure that online job application portals 

are accessible to blind and visually impaired 

applicants.180

The final Section 503 regulations did establish, 

for the first time, a 7 percent workforce utilization 

goal for people with disabilities by federal 

contractors.181 OFCCP made it clear this goal 

was not a quota or ceiling, but a management 

tool to inform decision making and provide 

accountability.182 OFCCP also stated the 

7 percent utilization standard was an aspirational 

target.183 The final regulations require contractors 

to invite applicants to voluntarily self-identify 

as a person with a disability at the pre-offer 

stage of the hiring process. The regulations also 

require contractors to invite current employees 

to voluntarily self-disclose on a regular basis, but 

OFCCP did not adopt a proposal that contractors 

annually offer the invitation to self-disclose. 

OFCCP views the new regulations as a basic 

requirement for contractors to collect data in 

order to assess the impact of the affirmative 

action plan for people with disabilities.

Under the new regulations, contractors 

need to maintain quantitative measurements 

and comparisons of the number of people with 

disabilities who apply for jobs and the number 

of people with disabilities hired (acknowledging 

the limits of voluntary self-identification) in order 

to create greater accountability for employment 

decisions and practices.184 The final regulations 

further require prime contractors to include 

specific language in subcontracts in order to 

inform subcontractors about their responsibilities 

in an effort to increase compliance.185 The new 

regulations seek to enhance information about 

the recruitment and employment of people with 

disabilities to enable contractors to improve their 

affirmative action hiring practices.

Though OFCCP is obligated to consider the 

burden imposed by a federal regulation on the 

contractors and subcontractors, several decisions 

made for the final regulations to reduce asserted 

burdens weakened attempts to improve the 

affirmative action provisions. For example, the 

proposed rule included a requirement that each 

contractor annually invite employees to selfdisclose a disability, which the OFCCP revised in 

the final regulation to every five years and one 

additional reminder within the five years.186

Given the rapid turnover in employment, 

especially among younger workers, OFCCP’s 

decision to reduce the voluntary disclosure 

opportunity required will produce less reliable 

data about the impact of affirmative action plans. 

Similarly, OFCCP did not adopt the requirement 

to maintain a written reasonable accommodation 

plan or the proposed changes that would have 

required federal contractors to review personnel 

policies on an annual basis as opposed to an 

58 National Council on Disability
undefined “periodic” review requirement.187

In rejecting several of the proposed changes, 

OFCCP noted the “general affirmative action 

obligations” of the contractors and stated the 

general obligations could be maintained through 

the flexible and less burdensome requirement 

of the already existing regulations.188 With the 

understanding that OFCCP 

is constrained by the 

requirements of Executive 

Orders 12866 and 13563 

and subsequent guidance 

issued by the Office of 

Management and Budget, 

which generally require 

agencies to consider the 

cost of regulations and 

impose as little burden as 

is necessary and assess the costs and benefits 

of alternatives, NCD recommends that OFCCP 

ensure the primary focus in the development 

of all regulations, sub-regulatory guidance, 

and other policy materials pertaining to 

Section 503, and 

the portions of 

VEVRA that address 

disabled veterans, 

is the advancement 

of the employment 

opportunities for 

people with disabilities 

and not the federal contractor

Competent and Credible Investigative 

Process and Enforcement Action

To enforce Section 503, OFCCP conducts 

(1) compliance evaluations of selected 

establishments and (2) investigations of individual 

complaints of disability discrimination. Every 

year OFCCP generates a scheduling list of 

contractor establishments that will be subject to 

a review using data maintained by various federal 

agencies and neutral selection criteria. Mini-pools 

of selected establishments are then created 

for each of the OFCCP offices to review. A 

compliance review will typically begin with a desk 

audit and may proceed 

to an onsite review and 

offsite analysis.189 As part 

of the review, OFCCP asks 

for a comprehensive list 

of information from the 

contractor establishment 

that covers all the laws 

enforced by the OFCCP.

OFCCP complaint 

investigations are 

conducted upon receipt of a complaint by an 

individual, group, or third party.190 Outside 

of compliance reviews and complaint 

investigations, there is no additional oversight 

of Section 503 compliance efforts by a federal 

contractor. OFCCP 

emphasizes training and 

technical assistance 

for entities not 

subject to a review or 

investigation. As OFCCP 

is responsible for other 

affirmative action and 

equal employment opportunity laws, OFCCP 

compliance officers are cross trained on all laws 

covered by the office.

The number of OFCCP compliance evaluations 

have declined significantly in the past four fiscal 

years. OFCCP completed 3,839 compliance 

evaluations in FY 2014 but only 1,142 in FY 

2017.191 Based on the GAO estimate that 200,000 

Given the rapid turnover in 

employment, especially among 

younger workers, OFCCP’s 

decision to reduce the voluntary 

disclosure opportunity required 

will produce less reliable data 

about the impact of affirmative 

action plans

OFCCP completed 3,839 compliance 

evaluations in FY 2014 but only 

1,142 in FY 2017 .. abo

0.6 percent of the total number

of contractor establishments

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 59
contractor establishments are required to comply 

with Section 503, the number of compliance 

reviews completed in FY 2017 represented about 

0.6 percent of the total number of contractor 

establishments. In FY 2014, OFCCP discovered 

Section 503 violations in about 13 percent of the 

reviews. Between FY 2015 and 2017 the violation 

rate declined to about 5 percent of the reviews.

OFCCP data on closed Section 503 

compliance reviews during FY 2008 to 2017 

indicate that 188 establishments were found 

to have violated Section 503.192 Of these 

establishments, OFCCP found 45 establishments 

violated the requirement to provide a reasonable 

accommodation, 

34 establishments 

violated the recruitment 

requirements, and 29 

establishments violated 

the affirmative action 

program requirements. 

OFCCP conducted such 

a small percentage of compliance reviews that 

it is difficult to assess any systemic patterns in 

Section 503 violations based on the data.

According to the 2016 GAO report, the 

manner in which OFCCP selects contractors 

for compliance reviews fails to ensure those at 

highest risk of violations are reviewed.193 While 

noting OFCCP’s position that a neutral selection 

process required under the Fourth Amendment of 

the U.S. Constitution is not necessarily random, 

the GAO reported the sample of contractor 

establishments drawn for selection for reviews 

is not generalizable, so no conclusions about 

noncompliance can be drawn from the sample.194

In addition, the GAO expressed concern with 

imbalances in how compliance reviews were 

allocated across the OFCCP offices, noting that 

OFCCP staffing levels in the district offices do 

not geographically correspond to the distribution 

of federal contractors.195 OFCCP indicated the 

selection process is not randomized, in part to 

ensure contractor establishments of sufficient 

size are selected to identify systemic problems. 

OFCCP also seeks to complete a smaller number 

of quality reviews rather than a larger number of 

more superficial reviews. OFCCP is seeking ways 

to increase the number of compliance reviews 

through reassignment of establishments selected 

for a review in response to the GAO report.

OFCCP only reviews contractor written 

affirmative action plans and voluntary selfdisclosure procedures 

required under Section 

503 upon conducting a 

compliance review or 

an investigation. Federal 

contractors who meet the 

50 employee and $50,000 

amount thresholds, 

however, are required to develop such plans 

within 120 days of receipt of a federal contract. 

NCD recommends that OFCCP develop 

new procedures outside of the compliance 

review process, such as a random request 

for affirmative action plans of contractor 

establishments, to better ensure compliance 

with the Section 503 written affirmative 

action requirements

According to OFCCP investigations data, 

between FY 2008 and 2017 the agency 

completed 1,428 investigations of complaints 

filed against federal contractors. Of these 

investigations, 44 percent, or 627 investigations, 

involved a disability complaint with 24 of 

these investigations classified as class action. 

OFCCP found a violation in 72 of these disability 

OFCCP conducted such a small 

percentage of compliance reviews 

that it is difficult to assess any 

systemic patterns in Section 503 

violations based on the data

60 National Council on Disability
investigations, four of which involved class action 

investigations.

OFCCP resolves almost all violations 

discovered through conciliation agreements.196

A very small number of cases not resolved 

through conciliation are referred to the Office of 

the Solicitor. According the 2016 GAO report,197

and confirmed by OFCCP, debarments are rarely, 

if ever used. The GAO reported “OFCCP officials 

told [the GAO] they prefer to obtain compliance 

through conciliation agreements over debarment 

because contractors who are debarred are 

no longer under OFCCP’s jurisdiction and not 

subject to the worker protection requirements 

the agency oversees.”198

Despite the preference 

against debarment 

reported by the GAO, 

the Office of the 

Solicitor indicates that 

debarment is used as 

a strategic incentive to 

move contractors to 

compliance. OFCCP 

cannot impose monetary 

penalties. Relief is 

limited to “make whole relief,” which returns the 

employee to the position they would be in had 

they not been a victim of discrimination, such 

as reinstatement and award of back pay. At the 

conclusion of litigation, if the contractor does not 

prevail, the final decision gives the contractor the 

choice either to remedy the violation within 60 

days of the decision or be debarred. Facing this 

choice, debarment is rarely necessary because 

the contractor makes the decision to comply.

Even with a small number of compliance 

reviews conducted each year, OFCCP gives 

the contractor 45 days prior notice to the 

commencement of a compliance review and 

additionally gives the contractor 30 days to 

provide its Affirmative Action Program to OFCCP 

for review. Since there is a minimal chance 

OFCCP will select an individual establishment for 

a review in a given year, and the advance notice 

enables the contractor to correct deficiencies, a 

federal contractor has little incentive to rigorously 

comply based on OFCCP current enforcement 

policies. Given the small number of OFCCP 

compliance reviews, this practice dilutes 

the overall impact of the OFCCP compliance 

evaluations on all covered federal contractors. 

NCD recommends that OFCCP modify its 

procedures pertaining to 

compliance reviews by 

(1) eliminating advance 

notice to contractors 

that have been chosen 

for compliance reviews 

to increase the deterrent 

impact of reviews; 

(2) conducting a larger 

number of compliance 

reviews that are less 

in depth and focused 

on common infractions, and if an infraction 

is found, expanding the scope of the review; 

(3) choosing contractor establishments for a 

review that possess risk factors for Section 

503 noncompliance; and (4) considering 

all legal mechanism, up to and including 

debarment, when action is necessary against 

noncompliant contractors

Interagency Collaboration 

and Coordination

Under Section 503, OFCCP conducts compliance 

evaluations of federal contractor establishments, 

Since there is a minimal chance 

OFCCP will select an individual 

establishment for a review in a 

given year, and the advance notice 

enables the contractor to correct 

deficiencies, a federal contractor 

has little incentive to rigorously 

comply 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 61
and upon receipt of a complaint of discrimination 

in employment based on disability, either directly 

investigates or refers the compliant to the EEOC. 

The collaboration between OFCCP and EEOC is 

discussed in Chapter 1.

Training and Technical Assistance

OFCCP seeks to achieve compliance with 

Section 503 in large part through the provision of 

training and technical assistance to all contractor 

establishments. According to the GAO report, 

beginning in 2012 OFCCP began to decrease 

the number of outreach events in order to 

refocus its outreach program to support the 

enforcement role of the agency.199 Outreach 

events declined 80 percent between 2012 and 

2014.200 The GAO reported that in addition to 

outreach events, OFCCP 

conducts “compliance 

assistance events” 

with contractors.201 As 

with outreach events, 

the number of contractor assistance events 

has declined 30 percent since 2012, and 20 

out of the 24 contractors the GAO interviewed 

stated they use third-party support to assist with 

compliance.202

OFCCP indicated that the agency is making 

improvements to training materials available 

to contractors. The OFCCP website offers a 

comprehensive list of webcasts, fact sheets, 

and approved and recommended forms to 

assist contractors and subcontractors comply 

with the regulations. The OFCCP trainings 

and guidance documents generally appear 

complete and well thought out. OFCCP also 

reported employing adult education techniques 

to create more quality trainings for contractor 

staff. OFCCP is further improving and creating a 

more rigorous training for compliance officers. 

The GAO reported that OFCCP compliance 

materials varied in the degree to which simple 

language is used, ranging from a 12th grade to 

postgraduate reading level.203 A test of several 

OFCCP materials for language simplicity for 

this study confirmed the GAO’s analysis. NCD 

recommends that OFCCP better ensure 

that materials and documents are written 

in simple language according to the Plain 

Writing Act

Adequacy of Agency Resources

Adjusted for inflation, OFCCP’s budget 

increased by 1.35 percent since FY 2004, with 

a significant increase in FY 2010, but budget 

decreases occurred during the past two fiscal 

years both in actual and 

inflation-adjusted dollars (see 

Table D in Appendix A). As 

with the EEOC, however, 

of greater concern is the 

decline in staff. Despite budget increases in FY 

2010 and a relatively flat budget since FY 2004 

accounting for inflation, the number of OFCCP 

staff has declined at a steady pace. Since FY 

2004, OFCCP shed a quarter of its FTEs (see 

Table E in Appendix A). OFCCP reports that it 

seeks to better balance enforcement methods 

in part through staff attrition in response to 

the GAO’s concern of the lack of congruence 

between office staffing and contractor 

locations. In FY 2014 and 2015, OFCCP 

sought to reduce staff levels through various 

incentives in response to budget pressures.204

When OFCCP will bottom out in staffing 

numbers and again experience staff increases 

is an open question. NCD recommends that 

OFCCP hire and train a sufficient number of 

Since FY 2004, OFCCP shed a 

quarter of its FTEs

62 National Council on Disability
compliance officers in areas where federal 

contractors are concentrated in order to 

increase the number of compliance reviews

Office of the Solicitor (SOL)

The Office of the Solicitor (SOL) provides 

legal counsel to, and representation of, the 

various DOL divisions. The SOL also assists 

with compliance review, enforcement, and 

policy development activities. Solicitor staff 

described during interviews the multifaceted 

role of the SOL in working closely with DOL 

entities to develop and roll-out regulations, train 

DOL staff, respond to questions, and develop 

frequently asked questions (FAQ). For example, 

SOL worked with OFCCP in 2014 to revise the 

Section 503 regulations. On matters requiring a 

centralized perspective the SOL Civil Rights and 

Labor Management Division serves as a liaison 

between the regional SOL offices and the OFCCP 

headquarters office in Washington, DC.

OFCCP places an emphasis on voluntary 

compliance and litigates very few cases, and 

the SOL’s primary enforcement role with 

OFCCP occurs when conciliation fails, and a 

federal contractor seeks a hearing before a 

DOL Administrative Law Judge. The contractor 

can also appeal to the DOL Administrative 

Review Board and, if still dissatisfied, to a U.S. 

district court. The SOL represents OFCCP in the 

administrative process and in the rare case the 

contractor appeals to a U.S. district court. In May 

2018, there were approximately 11 cases pending 

at the administrative level (including one at the 

Administrative Review Board) and one case in 

federal court.

As legal counsel for WHD, the SOL has a 

critical role in enforcing all provisions of the Fair 

Labor Standards Act (FLSA) and the Family and 

Medical Leave Act (FMLA). The Solicitor has 

been involved in defending a DOL decision in 

the case of three employees with disabilities 

who petitioned for an administrative review 

of the payment of a subminimum wage under 

Section 14(c). As discussed in more detail in 

the next section, a DOL Administrative Law 

Judge and the DOL Administrative Review 

Board found in favor of the three employees. 

The SOL submitted a brief in support of most 

of the positions of the employees during the 

Administrative Review Board process, and after 

the employer appealed, SOL has defended the 

Board’s ruling in U.S. district court, agreeing 

with the employees’ interpretation of Section 

14(c). The SOL anticipates that it will be 

involved as other employees request a hearing 

on the payment of subminimum wages under 

Section 14(c).

Wage and Hour Division (WHD)

Overview

The Wage and Hour Division,205 created 

through the FLSA in 1938, is responsible for 

the administration and enforcement of a wide 

range of laws that cover virtually all private, 

state, and local government employment. The 

mission of WHD “is to promote and achieve 

compliance with labor standards to protect and 

enhance the welfare of the Nation’s workforce” 

through the enforcement of federal minimum 

wage, overtime pay, recordkeeping, and child 

labor requirements of the FLSA.206 Among 

the other laws enforced by WHD are the 

FMLA, the prevailing wage requirements of 

the Davis Bacon Act and the Service Contract 

Act, and the subminimum wage provision of 

Section 14(c) of the FLSA. WHD is currently 

led by an administrator and contains Offices 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 63
for Government Contracts; Policy; Planning; 

and Performance, Evaluation, and Training. 

WHD also works through five geographic 

administrative regions.

This section focuses upon WHD’s 

enforcement of Section 14(c) along with some 

consideration of WHD’s enforcements of the 

FLMA.

Overview of Section 14(c)

Section 14(c), known as the special or 

subminimum wage program, allows WHD to issue 

certificates “to the extent necessary to prevent 

the curtailment of opportunities for employment,” 

to permit employers to pay a subminimum 

wage to people with disabilities whose earning 

or productive capacities are impaired by their 

disability.207 An employer 

must apply for, and 

receive, a 14(c) certificate 

from WHD before it 

may pay a subminimum 

wage.208 Most certificate 

holders are required to renew the certificate every 

two years.

WHD classifies a 14(c) certificate as either a 

business establishment, work center, known also 

as community rehabilitation programs (CRPs), 

or a hospital or institution.209 School officials 

may also request authorization for students 

with disabilities to participate in school work 

experience programs (SWEPs) in exchange 

for subminimum wages, and State vocational 

rehabilitation counselors and Department of 

Veterans Affairs officials may seek permission 

to grant or extend temporary authorization to 

employ workers with disabilities at subminimum 

wage rates.

WHD has broad authority to administer and 

enforce Section 14(c).210 WHD’s responsibilities 

have expanded since 2008 to include Section 511 

of WIOA and the minimum wage provisions for 

certain federal contractors under Executive Order 

13658, which impacts employees paid under 

Section 14(c). Table 1 lists the requirements 

of Section 511 and EO 13658, along with the 

responsibilities of WHD.

Regulatory, Sub-Regulatory, and Policy 

Guidance

While WHD has not issued new regulations 

for the 14(c) program, it has sought to increase 

communications with certificate holders and 

has worked with the Department of Education 

to issue guidance related to the requirements of 

Section 511.211

Proactive and 

Reactive Strategies

WHD is responsible for 

the entire Section 14(c) 

certificate application 

process, which includes 

both new and renewal certificate applications. 

The application review process is conducted 

almost entirely by WHD’s Mid-West Regional 

Office through paper applications. During the 

application review, WHD staff, among other 

things, ensure that the employer has provided 

appropriate documentation and certified that 

wages are and will be calculated correctly. 

Applications are typically rejected only if 

documentation is missing, though an employer 

is given the opportunity to submit required 

information. In almost all cases, the application is 

approved. The 14(c) application process functions 

essentially as a voluntary compliance system.

Few WHD staff are dedicated to providing 

adequate oversight of the thousands of 14(c) 

paper applications received each year. In 

The 14(c) application process 

functions essentially as a voluntary 

compliance system

64 National Council on Disability
2001, the GAO raised concerns about WHD 

mismanagement of the program because 

of, among other issues, an apparent lack of 

strategic enforcement, training, guidance, and 

data collection.215 In response to some of these 

problems, in January 2018 WHD submitted 

a request to the Office of Management 

and Budget (OMB) to transition the 14(c) 

certificate application process to an electronic 

platform. WHD justified the request in part to 

its expanded responsibility for enforcement, 

including under Section 511, and that with 

electronic capabilities WHD could better target 

compliance efforts.

The development of a 14(c) certificate 

electronic information system is important for 

WHD to meet its statutory obligations. For 

example, to comply with Section 511, a revised 

WHD certificate application form now requires 

employers to list every youth worker who is 

age 24 or younger and affirm that the worker 

has received required counseling, information, 

and referrals. The current system of paper 

applications, lack of a centralized electronic 

database, the design of the 14(c) application, 

and the number of applications received have 

made data-driven oversight by WHD exceedingly 

difficult. According to WHD, they are developing 

Table 1: WHD Expansion of Enforcement Authority

Law Requirements WHD Responsibilities

Section 511 of 

WIOA212

Prohibits an employer from hiring a person 

with a disability who is age 24 or younger at a 

subminimum wage unless certain conditions 

are met (including applying for vocational 

rehabilitation services and receiving access to 

pre-employment transition services)

Under WIOA, employers 

with 14(c) certificates who 

have failed to meet the 

requirements of Section 

511 are required to pay 

the minimum wage for 

each employee who would 

otherwise be eligible 

for the payment of a 

subminimum wage under 

the 14(c) program. WHD is

authorized “to seek back 

pay at the full minimum 

wage rate for each 

individual for whom the 

mandatory services and/

or documentation is not 

provided or does not meet 

the established criteria.”21

Prohibits an employer from paying or 

continuing to pay a person with a disability, 

regardless of age, a subminimum wage unless 

he or she is provided with career counseling 

services and information about opportunities 

for competitive integrated employment every 

six months in the first year of employment 

and annually thereafter

Prohibits state and local educational agencies 

from contracting with Section 14(c) certificate 

holders to operate a program for individuals 

age 24 or younger under which work is 

compensated at a subminimum wage

EO 13658 Imposes a minimum wage rate requirement 

(e.g., originally $10.10 per hour) on Secti

14(c) certificate holders that enter into new 

covered service and concessions contracts 

with the Federal Government

WHD is charged with 

enforcing the Executive 

Order’s minimum wage 

requirements

214

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 65
an online application system with an expected 

launch date of late 2018. Time will tell if the 

electronic application system will alleviate the 

current issues.

WHD tracks the total number of employers 

holding a 14(c) certificate, but there is no 

accurate count of the 

total number of workers 

with disabilities paid 

subminimum wages. 

Outside an estimate 

as part of the 14(c) 

certificate application, 

employers are not 

required to submit such 

information to WHD. The 

Division, however, cited 

in the same month wildly varied estimates of the 

number of workers employed by 14(c) certificate 

holders to the Council and Congress ranging from 

approximately 141,081 to 321,131 employees. 

WHD has clarified that 

the 141,081 estimate 

represents only those 

workers employed at the 

certificate holder’s main 

establishment, whereas 

321,131 represents 

the estimated total 

of workers employed 

at all establishments 

associated with the certificate holder. Lacking 

concrete information about the number 

employees paid under 14(c) certificates, WHD 

has historically been hamstrung in its ability to 

justify additional funding, oversight, or other 

resources. WHD did not include a request to 

count the total numbers of employees paid 

a 14(c) wage as part of the effort to obtain 

OMB approval for a new electronic information 

platform.

NCD recommends WHD amend the 

14(c) certificate application form to collect 

information sufficient to determine the total 

number of employees paid a subminimum 

wage under 

Section 14(c)

According to WHD, the 

number of certificate 

applications per year has 

dropped considerably, 

decreasing by more 

than half from 2,540 in 

FY 2008 to 1,089 in FY 

2017. Table 2 contains 

the number of 14(c) 

certificate applications received by WHD, the 

number of those applications received that 

seek to renew a certificate, and the number of 

certificates issued by WHD from FY 2008 to FY 

2017. WHD staff do not 

follow up with employers 

who fail to renew a 14(c) 

certificate and thus WHD 

lacks an understanding 

of why certificates are 

not renewed. Given the 

outcome of a recent 

WHD investigation 

discussed below, 

there is a significant risk that employers may 

continue to pay subminimum wages without a 

certificate. Seventeen years ago, the GAO noted 

that WHD “did little to ensure that employers 

whose 14(c) certificates have expired do not 

continue to pay workers special minimum 

wages.”216 NCD recommends that WHD collect 

and systematically track how many 14(c) 

The current system of paper 

applications, lack of a centralized 

electronic database, the design 

of the 14(c) application, and the 

number of applications received 

have made data-driven oversight by 

WHD exceedingly difficult

WHD tracks the total number 

of employers holding a 14(c) 

certificate, but there is no accurate 

count of the total number of 

workers with disabilities paid 

subminimum wages

66 National Council on Disability
certificates have expired, and the reasons 

for the expiration and the nonrenewal of the 

certificate

NCD recommends that WHD use 

enforcement and regulatory authority 

available under the FLSA to determine the 

extent to which employers who do not 

renew a 14(c) certificate continue to pay 

employees with disabilities a subminimum 

wage

In December 2015, three employees at a 

sheltered workshop in Ohio filed a petition under 

a rarely, if ever used, provision under Section 

14(c), which allows for a DOL Administrative 

Law Judge (ALJ) to review the payment a 

subminimum wage.217 In a precedent-setting 

opinion, the ALJ found, among other things, that 

the workshop failed to establish that the three 

employees were “disabled for the work they 

performed,” a requirement that must be met 

before an employer can pay 14(c) subminimum 

wages.218 The ALJ awarded the employees the 

regular minimum wage going forward, as well 

as back pay.219 The DOL Administrative Review 

Board (ARB) upheld the ALJ’s decision and 

the employer appealed to a U.S. district court, 

where the matter remains at the time of this 

report.220

WHD took steps to include the ALJ and 

ARB decisions into the Division’s enforcement 

practices. WHD revised the 14(c) certificate 

application form to require that an employer 

submit a signed representation that “[w]orkers 

employed under the [14(c) program] have 

disabilities for the work to be performed.”221 WHD 

staff report that they have also incorporated the 

“disabled for the work” standard into existing 

directed investigations.

Table 2: Number of 14(c) Certificate Applications per Year; Renewal Applications 

per Year; and 14(c) Certificates per Year

Fiscal Year Certificate 

Applications Renewal Applications Certificates Issued

2008 2,540 2,354 2,534

2009 2,506 2,299 2,496

2010 2,295 2,164 2,281

2011 2,221 2,074 2,214

2012 2,235 2,076 2,196

2013 2,190 1,918 2,154

2014 1,919 1,700 1,867

2015 1,529 1,453 1,493

2016 1,360 1,285 1,303

2017 1,089 1,051 866

Data Source: WHD

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 67
The 14(c) certificate application forms, 

however, do little to advise employers that 

employees with disabilities, even those 

paid a subminimum wage, are entitled to an 

individualized assessment and the provision of 

reasonable accommodations under the ADA. 

This includes providing accommodations during 

required time studies to assess productivity 

and when employers 

consider whether an 

employee is disabled 

for the work performed. 

NCD recommends 

that WHD, working 

with the EEOC as 

appropriate, create 

technical guidance for 

14(c) certificate holders, 

which explains that an 

employee “disabled 

for the work” on one task does not establish 

that the employee is “disabled for the work” 

on other tasks, and 

state clearly on the 

14(c) application form, 

certificates, and on 

other documents that 

an employee paid a 

14(c) subminimum 

wage has rights under 

Title I of the ADA, 

including reasonable 

accommodations

Competent and Credible Investigative 

Process and Enforcement Action

WHD enforces 14(c) requirements predominately 

through (1) a review of materials submitted 

during the application process, and (2) agencyinitiated targeted investigations. WHD has 

historically placed a low priority on the 14(c) 

program given its expansive enforcement 

mandate and proportionally limited resources.

WHD had refocused its overall enforcement 

efforts to areas where issues can be addressed 

systemically and “where large numbers of 

vulnerable workers are found.”222 The DOL 2018-

2022 Strategic Plan states that WHD identifies 

“where the data and the 

evidence indicate the 

problems are largest, 

emerging business 

models are more likely 

to lead to violations, and 

workers are least likely to 

exercise their rights.”223 In 

2017 and 2018, however, 

there appears to have 

been a reprioritization 

of WHD resources from targeted strategic 

enforcement toward compliance assistance to 

employers. The FY 2018 budget request includes 

programmatic increases 

totaling $3 million and 

an additional 15 FTEs, to 

be used “to position the 

agency with staff and 

resources to modernize 

its approach to delivering 

useful and effective 

compliance tools that 

support the employer 

community.”224 By contrast, the agency’s FY 

2017 budget request sought additional resources 

to conduct “directed investigations that are 

strategically selected and executed to solve 

the most important compliance challenges that 

include protecting workers in industries that 

employ business models that are at high risk 

of wage and hour violations.” It is unclear what 

The 14(c) certificate application 

forms .. do little to advi

employers that employees with 

disabilities, even those paid a 

subminimum wage, are entitled 

to an individualized assessment 

and the provision of reasonable 

accommodations under the ADA

In 2017 and 2018, however, 

there appears to have been a 

reprioritization of WHD resources 

from targeted strategic enforcement 

toward compliance assistance to 

employers

68 National Council on Disability
impact this apparent reprioritization will have 

on enforcement of Section 14(c), or if WHD can 

continue to reverse the problems identified in the 

2001 GAO report.

Since FY 2009, WHD maintains that it had 

“undergone a significant change in how [it] 

carries out [its overall] mission,” namely, by 

adopting a strategic enforcement approach 

with three priorities.225 As 

a result of these efforts, 

WHD issued a 2010 report 

on Improving Workplace 

Conditions Through 

Strategic Enforcement,

226

showcasing evidence that 

proactive, agency-initiated, and strategically 

targeted investigations, known as “directed 

investigations,” had a deterrent effect upon 

violators not seen following complaint-based 

investigations. After the report, WHD took 

steps to refocus Section 14(c) oversight through 

strategically targeted enforcement. These efforts 

resulted in an increase in directed investigations, 

internal analysis, and evaluation of the program; 

formal resolution of agency investigations 

through settlement agreements; and revocations 

of Section 14(c) certificates.

WHD has not publicly released data from 

the internal analysis of 

strategically targeted 

enforcement but has 

noted that the analysis 

was not a randomized 

sample. WHD staff 

report, however, learning 

several important lessons. First, the agency 

documented “a high prevalence” of FLSA and 

other violations among the 14(c) certificate 

holders investigated. In many instances, 

employers were unaware of the requirements 

[WHD] documented “a high 

prevalence” of FLSA and other 

violations among the 14(c) 

certificate holders investigated

Table 3: Number of 14(c) Investigations and Overall Violations

Fiscal Year FLSA 14(c) 

Investigations FLSA 14(c) Investigations with Violations (Any Act)

Cases Cases Back Wages Employees 

Impacted

2008 186 129 $ 1,088,509.94 4,07

2009 133 97 $ 354,233.45 3,36

2010 153 94 $ 678,676.81 4,19

2011 360 299 $ 1,506,792.28 11,57

2012 258 218 $ 1,518,922.89 9,55

2013 238 196 $ 1,392,715.55 7,44

2014 284 232 $1,288,503.91 8,98

2015 189 152 $ 1,530,463.63 7,84

2016 201 167 $ 2,573,799.05 9,13

2017 217 195 $ 2,474,476.61 7,30

Data Source: WHD

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 69
of Section 14(c) or did not implement the 

requirements appropriately. A significant 

portion of employers with 14(c) violations 

did not conduct appropriate prevailing wage 

surveys. WHD staff signaled a need for 

technical assistance materials and outreach to 

staff at community rehabilitation program 14(c) 

certificate holders. NCD recommends that 

WHD produce additional training materials, 

such as a desktop guide, targeted for use by 

community rehabilitation program staff

Tables 3 and 4 provide data on WHD 

14(c) investigations, the number of violations 

uncovered, and back wages obtained. The 

data indicates that WHD has maintained 

a somewhat consistent level of 14(c) 

investigative enforcement over time—averaging 

approximately 200 investigations per year 

between FY 2007 and 2017, with a high of 360 

investigations during FY 2011. The substantial 

limitation of WHD’s data collection prevents an 

accurate estimate of the proportion of WHDdirected versus complaint-initiated investigations 

each year. WHD reports that the substantial 

increase in 14(c) investigations in FY 2011 

reflects an uptick in WHD-directed investigations, 

and that it increased directed investigations in 

2011 for the purpose of conducting a statistical 

analysis of the 14(c) program.

WHD enforcement efforts over the past 

five years have resulted in first-of-its-kind 

settlement agreements and significant relief 

to employees paid a 14(c) wage, serving 

as models of success for WHD-initiated 

Table 4: Specific Violations Identified After Investigations Related to 14(c)227

Fiscal Year FLSA 14(c) Investigations 

with 14(c) Violations

FLSA 14(c) Investigations 

with SCA, PCA, or 

EO 13658 Violations

Cases Back Wages Employees Cases Back Wages Employees

2008 116 $ 970,069.18 3,688 4 $ 38,048.63 

2009 84 $ 277,548.68 3,236 3 $ 10,509.13 

2010 81 $ 603,819.33 3,878 4 $ 2,836.34 

2011 278 $1,171,895.21 10,929 18 $131,775.24 3

2012 194 $ 952,796.12 8,756 7 $ 375,473.05 1

2013 171 $ 1,035,890.90 7,035 6 $ 41,765.07 

2014 189 $ 869,308.99 8,370 10 $ 69,643.12 

2015 123 $ 1,366,211.18 7,424 7 $ 60,315.52 2

2016 127 $ 1,853,744.25 8,086 3 $ 26,499.64 

2017 151 $ 1,959,447.81 6,405 8 $ 96,265.52 1

Data Source: WHD

Note: SCA refers to the McNamara O’Hara Service Contract Act Service Contract Act, PCA to the Walsh-Healey 

Public Contracts Act, and EO 13658 to Executive Order 13658.

70 National Council on Disability
investigations and interagency enforcement. 

In June 2013, following a directed investigation 

of Training Thru Placement, Inc. (TTP), a 

sheltered workshop in Rhode Island, for the 

first time in its history WHD revoked a CRP’s 

14(c) certificate.228 WHD found that TTP failed 

to (1) determine the appropriate subminimum 

wage, (2) properly record and pay employees 

for all hours worked, and (3) determine the 

prevailing wage rates for workers performing 

similar work in the area. The workshop also 

falsified documents in order to mislead 

investigators. TTP agreed to pay back wages to 

nearly 100 workers with disabilities and connect 

the workers with benefits planning counselors 

and other resources.229

WHD’s strategic 

enforcement efforts 

resulted in four other 

noteworthy actions. In 

October 2015, WHD 

found that a workshop 

in Kentucky failed to 

conduct timely and 

accurate time studies to determine the correct 

subminimum wages for more than 100 workers 

with disabilities. WHD then revoked another 

certificate in August 2016, this time at a center in 

West Virginia, after an investigation found that the 

employer failed to pay 12 workers with disabilities 

appropriate wages and for violations of the 

McNamara O’Hara Service Contract Act (SCA).230

The sheltered workshop received significant 

revenue from janitorial contracts through the 

federal SourceAmerica program and the West 

Virginia State Use program.231 WHD does not 

track how many of its enforcement actions 

involve entities that have 14(c) certificates and 

also participate in the AbilityOne, SourceAmerica, 

or National Industries for the Blind programs. 

NCD recommends that WHD track the extent 

to which community rehabilitation programs 

participate in the AbilityOne program, the 

number of legal violations, and the number 

of referrals made by WHD to the AbilityOne 

program for enforcement

In March 2018, a WHD investigation and 

litigation resulted in a federal jury verdict against 

the Randolph County Sheltered Workshop, 

Inc., also in West Virginia. The court ordered the 

workshop to pay back wages to 34 employees 

for operating without a 14(c) certificate and failing 

to post required information about the rights of 

people paid subminimum wages. A month later, 

in April 2018, WHD revoked yet another 14(c) 

certificate and denied 

a renewal application 

after an investigation of 

a sheltered workshop 

in Illinois. WHD found 

nearly 250 workers 

with disabilities being 

exploited, and specifically 

that the employer (1) failed to timely perform 

appropriate wage surveys and to conduct proper 

time studies on all jobs performed by workers 

with disabilities, (2) illegally paid workers with 

gift cards instead of wages, and (3) concealed 

relevant and material information. 232 The 

workshop was ordered to pay all current workers 

the regular federal minimum wage and pay back 

wages to all workers who had performed work 

at a subminimum wage over the preceding two 

years.

WHD’s enforcement actions also showcase 

a need for diligent oversight of 14(c) certificates 

issued to schools and the relationship between 

schools and 14(c) employers. WIOA prohibits 

WHD enforcement efforts over 

the past five years have resulted 

in first-of-its-kind settlement 

agreements and significant relief 

to employees paid a 14(c) wage

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 71
contracts between schools and 14(c) entities.233

While WHD provides 14(c) certificates to more 

than 100 SWEPs,234 it does not track the number 

of complaints filed for violations of Section 511 

or the amount of back wages obtained. WHD 

staff could not identify any complaint filed with 

the Division since the enactment of WIOA in 

2014. WHD reports that such data is combined 

by the Division into its 

overall enforcement data 

and not tracked as a 

disaggregated number.

While Section 511 

does not expressly 

prohibit school districts 

from holding 14(c) certificates, continuing to 

pay subminimum wages instead of providing 

integrated employment-related transition 

services to students with disabilities is counter 

to the essential purpose of Section 511: to 

provide students with disabilities a meaningful 

opportunity to work in 

competitive integrated 

employment. School 

systems that use SWEPs 

as part of transition, to the 

exclusion of integrated 

transition services, may 

violate the ADA under 

the U.S. Supreme Court’s 

Olmstead v. L.C. decision.235 WIOA states that 

“work-based learning experiences” provided 

as part of pre-employment transition services 

to students with disabilities must be “provided 

in an integrated environment to the maximum 

extent possible.”236 Vigorous enforcement by 

WHD, in collaboration with the U.S. Department 

of Education, should significantly reduce, 

if not eliminate, SWEPs because of WIOA 

requirements. NCD recommends WHD 

undertake a focused strategic enforcement 

effort to determine the extent of SWEP 

compliance with Section 511 of the WIOA

Such effort could begin with a survey of all 

SWEPs to determine those more likely to 

violate Section 511

WHD actions signal that continued support 

for WHD initiated 14(c) 

enforcement is vital 

to protect the rights 

of employees with 

disabilities paid under 

Section 14(c). Without 

a randomized sample 

of 14(c) programs from which to conduct 

enforcement activities, WHD remains unaware 

of the statistical prevalence of FLSA violations in 

the 14(c) program and what kind of entities are 

most likely to violate program rules. Randomized 

samples, used periodically in addition to other 

14(c) investigations, 

can provide a much 

richer understanding of 

potential violators enabling 

WHD to better direct 

14(c) investigation given 

limited resources. The 

recent DOL enforcement 

actions, however, should 

alert policymakers to the high gravity of harm 

that results to workers with disabilities when 

violations occur and the importance for WHD to 

continue directed investigations to undercover 

violations.

Based on WHD data, when 14(c) 

investigations are conducted, even if not as 

part of randomized surveys, they yield a high 

incidence of FLSA violations and other laws. In 

WHD staff could not identify any 

complaint filed with the Division 

since the enactment of WIOA 

in 2014

Vigorous enforcement by 

WHD, in collaboration with the 

U.S. Department of Education

should significantly reduce, if 

not eliminate, SWEPs because 

of WIOA requirements

72 National Council on Disability
many instances, WHD obtains back wages after 

uncovering violations. In FY 2017, WHD obtained 

approximately $2.5 million in back wages for 

approximately 7,300 workers with disabilities as a 

result of 217 Section 14(c) investigations. The per 

capita recoupment of back wages is exceedingly 

modest—in FY 2017, an average of $338.87 per 

person. The low per capita recoupment may be 

because WHD resources 

are not strategically 

directed either at the 

larger CRPs that hold 

14(c) certificates or those 

certificate holders with 

risk factors for violations. 

NCD recommends WHD 

continue to prioritize the 

use of directed enforcement investigations 

as it did in FY 2011 to ensure effective 

enforcement and deterrence

Communication 

with Complainants 

and the Community

WHD has added online 

compliance assistance 

tools for CRPs as part of 

its outreach efforts. In 

particular, WHD created 13 online subminimum 

wage calculators to assist entities in calculating 

prevailing wages, commensurate hourly wages, 

and piece rates as required to meet the Section 

14(c) requirements. WHD also published a user 

guide on the use and functions of the 14(c) online 

calculators.

In contrast, there is exceedingly little 

instruction on WHD website about how and 

where an employee may file a petition for an 

ALJ review of the payment of 14(c) subminimum 

wages as used by the three employees in 

Ohio. A Frequently Asked Questions section 

about WHD complaint-filing process does not 

mention the 14(c) petition process at all.237 WHD 

further does not provide outreach and technical 

assistance to workers with disabilities about 

their right to petition a review of their wages or 

offer an electronic platform for 14(c) employees 

with disabilities to 

submit a complaint. 

NCD recommends 

that WHD create an 

online form by which 

an employee with a 

disability may request 

a hearing to review 

the payment of a 

subminimum wage through the process 

contained in Section 14(c)

NCD recommends WHD conduct outreach 

to 14(c) employees with disabilities about 

their rights and the 

process to petition for 

review of their wages 

and modify all relevant 

outreach materials and 

posters to describe this 

right

Over the past three years, the number of WHD 

14(c) outreach events has declined from a peak of 

32 in FY 2014.238 Since FY 2008 WHD conducted 

on average 22 outreach events in 14(c) a year, 

but in 2017 WHD made nearly 3,000 contacts 

or presentations to the community about the 

laws that it enforces, with just 16 presentations 

exclusively about the 14(c) program, the same as 

in FY 2016.239 Since 2010, WHD has a dedicated 

staff person who organizes outreach contacts, 

however it is unclear how much of this staff 

In FY 2017, WHD obtained 

approximately $2.5 million in

back wages for approximately 

7,300 workers with disabilities 

as a result of 217 Section 14(c) 

investigations

A Frequently Asked Questions 

section about WHD complaint-filing 

process does not mention the 14(c) 

petition process at all

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 73
person’s time is dedicated to outreach concerning 

the 14(c) program.

Interagency Collaboration 

and Coordination

In the investigation of TTP in Rhode Island, 

discussed previously, WHD also referred the 

situation to the DOJ’s Civil Rights Division. DOJ 

investigated TTP and expanded its investigation 

to a nearby school-based sheltered workshop—

the Harold Birch Vocational program. DOJ found 

that while employed by the school, students 

in the Birch program performed many of the 

same manual tasks during the school day that 

adults performed at TTP. Students were also 

referred to TTP without the opportunity for 

a meaningful or informed choice to work in 

integrated employment settings. DOJ found 

unnecessary segregation of adults and serious 

risks of unnecessary segregation of students in 

violation of the ADA and the U.S. Supreme Court 

Olmstead decision. As a result, DOJ obtained 

a court ordered settlement agreement with the 

State of Rhode Island and City of Providence.240

After a referral back from the DOJ, WHD 

investigated the Birch program, a 14(c) 

certificate holder, and found wage violations. 

WHD settled with the City of Providence, the 

Providence School Board, and Birch, which 

agreed to pay back wages to 60 student workers 

with disabilities.241 WHD revoked Birch’s 14(c) 

certificate, the second revocation following 

a WHD investigation and the first time for a 

school-based program.

In January 2017, WHD and the EEOC 

entered into a Memorandum of Understanding, 

discussed in Chapter 1. WHD does not track 

the number of referrals made to the EEOC for 

enforcement of employment discrimination 

complaints. WHD staff report a close working 

relationship with the Rehabilitation Services 

Administration (RSA) of the U.S. Department of 

Education to implement and enforce Section 511 

requirements. RSA maintains exclusive authority 

over provisions in Section 511 that proscribe 

contracts between schools and 14(c) certificate 

holders.242 WHD also does not track the number 

of referrals made to RSA related to Section 511.

Technical Assistance 

and Training

Since 2011, WHD has annually offered five 

day-long seminars across the country open to 

the public about the requirements of the 14(c) 

program. Participants are trained on the 14(c) 

certificate process, how to perform prevailing 

wage surveys and time studies, and about 

common compliance problems.

WHD trains its staff about section 14(c), 

including Division investigators, through a 

module that is a piece of the basic training 

curriculum given to new investigators on all 

laws the Division enforces. Portions of the 

14(c) training module have been updated 

to include information about Section 511 

and other legal changes and the interplay 

between the ADA and the 14(c) program. 

WHD also conducts a three-day specialized 

training program on 14(c) enforcement 

available to all investigators, but it is not a 

mandatory requirement. WHD leverages 

regional specialists who have experience in 

14(c) enforcement to provide assistance to 

less experienced investigators in their region 

conducting a 14(c) investigation.

Adequacy of Agency Resources

WHD’s budget has not kept pace with the 

rapid developments over the past eight years 

in law and policy directly impacting the 14(c) 

74 National Council on Disability
program. In a span of only two years, WHD’s 

responsibilities for enforcement of the 14(c) 

program expanded with the added responsibility 

under WIOA and revisions to the Rehabilitation 

Act of 1973 and Executive Order 13658. WHD 

did not receive any significant expansion of its 

budget or resources necessary for additional 

staff or training on the new requirements (see 

Table F in Appendix A). Appropriations cover 

all laws enforced by WHD and are not broken 

down by individual areas of responsibility, 

precluding the ability to report with any 

accuracy funds dedicated to Section 14(c) 

enforcement.

WHD does not have staff specifically 

dedicated to 14(c) enforcement. Rather, as 

of December 2017, 

it maintained 880 

investigators who serve 

as generalists—trained 

to enforce numerous 

laws and regulations 

and who, depending 

on the circumstances, 

may become involved in 14(c) investigations.243

Nevertheless, the amount of staff time spent 

on 14(c) investigations is not publicly available, 

while the total number of 14(c) investigations 

is fairly consistent and the process by which 

investigators receive training about 14(c) is not 

effective to build expertise. NCD recommends 

WHD take steps to increase the percentage of 

investigators trained for, and solely dedicated 

to, the enforcement of Section 14(c)

Overview of the Family and Medical 

Leave Act (FMLA)

FMLA allows eligible employees to take up to 

12 workweeks of leave in a 12-month period for, 

among other things, “a serious health condition 

that makes the employee unable to perform 

the essential functions of his or her job.”244 For 

some workers with disabilities, the right to FMLA 

leave and the possibility of leave as a reasonable 

accommodation under the ADA are significant 

factors in expanding employment opportunities. 

An employee may file a complaint with WHD to 

investigate an alleged FMLA violation or file suit 

directly in federal court without first seeking a 

WHD investigation.245

Regulatory, Sub-Regulatory, 

and Policy Guidance

WHD published final updated FMLA regulations 

in recent years including in 2008, 2013, and 

2015. In particular, in 2008, WHD implemented 

military family leave 

provisions pursuant to 

the FY 2008 National 

Defense Authorization 

Act (NDAA), and 

made substantive 

regulatory changes 

based on feedback 

from employees, employers, other interested 

parties, and WHD enforcement experience 

and in response to litigation since 1993.246 In 

2013, WHD implemented further amendments 

to military family leave provisions and 

revised the calculation of eligibility and leave 

requirements for airline flight crews in response 

to congressional action. In 2015, WHD revised 

the regulatory definition of “spouse” under 

the FMLA following the U.S. Supreme Court’s 

decision in United States v. Windsor.

Competent and Credible Investigative 

Process and Enforcement Action

WHD accepts and investigates complaints 

and allegations of FMLA violations by both 

WHD does not have staff specifically 

dedicated to 14(c) enforcement

Rather, as of December 2017, it 

maintained 880 investigators who 

serve as generalists 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 75
employees and third parties with creditable 

information. In addition to complaints, 

WHD selects certain types of businesses or 

industries for directed investigations under 

FMLA. It appears that the percentage of 

complaint-initiated FMLA investigations has 

remained somewhat consistent over time, with 

approximately half of 

investigations being 

complaint initiated, and, 

by implication, half WHD 

directed.247

When an investigation 

uncovers an FMLA 

violation, WHD staff state 

that the DOL makes every effort to resolve most 

compliance issues administratively. If appropriate, 

DOL may litigate and/or recommend criminal 

prosecution. WHD may supervise the payment 

of unpaid compensation owed to any employee 

and to oversee the steps needed to remedy harm 

to individuals. Instead of litigation, WHD may 

seek back wages, liquidated damages, and other 

remedies through settlements with employers. 

Civil money penalties may be assessed for failure 

to post the required FMLA notice.248

WHD uses a variety of performance 

measures to gauge the effectiveness (and 

timeliness) of its FMLA 

enforcement efforts. 

Over the past decade, 

the total number of 

FMLA cases investigated 

by WHD has declined 

by more than a third, 

dropping from 2,157 

FMLA cases in 2008 to 1,353 cases in 2017. 

Overall, more than half of all FMLA cases 

investigated have resulted in a DOL finding that 

the law has been violated. Moreover, in the past 

five years, this rate has increased, as WHD has 

found violations in an average of 65 percent of 

Over the past decade, the total 

number of FMLA cases investigated 

by WHD has declined by more than 

a third, dropping from 2,157 FMLA 

cases in 2008 to 1,353 cases in 2017

Table 5: FMLA Cases Filed with WHD

Fiscal Year Number of FMLA Cases Number of FMLA Cases 

with Violations

2008 2,157 1,106

2009 1,913 1,054

2010 2,189 1,069

2011 2,294 1,174

2012 1,915 1,083

2013 1,817 1,097

2014 1,703 1,055

2015 1,680 1,118

2016 1,448 980

2017 1,353 931

Data Source: WHD

76 National Council on Disability
cases. Table 5 contains the number of cases 

initiated under the FMLA and the number of 

cases with violations. NCD recommends WHD 

undertake a systemic look at the reasons 

for the increase in FMLA violations, with an 

emphasis on whether an increase in agencyinitiated investigations is warranted

DOL may file a 

lawsuit in U.S. district 

court on behalf of 

employees for back 

wages and an equal 

amount in liquidated damages. DOL may seek 

a court injunction to stop FMLA violations, 

including unlawful retaliation against employees 

who file complaints or cooperate with DOL. 

If an employee files a private suit in court 

seeking back pay, an equal amount in liquidated 

damages, and/or other appropriate remedies, 

DOL will not seek the same remedies on that 

employee’s behalf.

Technical Assistance and Training

WHD has published more than 30 materials 

or pieces of guidance relating to FMLA since 

2008. These include nearly 20 fact sheets, a 

plain-language Employee Guide for workers and 

their families, a comprehensive Employer Guide 

for leave administrators, and updated FAQs. 

WHD receives significant inquiries for technical 

assistance and outreach about the FMLA, and 

local offices receive and respond to numerous 

telephone inquiries daily on the law. According 

to agency staff, WHD’s 

FMLA webpages, 

which contain many 

compliance-assistance 

materials, are often the 

most visited on WHD website, and the FMLA 

webpages are consistently listed among the 

most visited pages on the DOL website as a 

whole. Over a six-month period in FY 2017, the 

FMLA main page was visited more than half a 

million times.

WHD conducts outreach at events across 

the country on the FMLA. In addition, FMLA 

information is provided in almost all outreach 

events with the public. WHD partners with the 

Employment Benefits Standards Administration 

to address the FMLA at their health benefits 

education campaign events (approximately 5–10 

held annually).

Over a six-month period in FY 2017, 

the FMLA main page was visited 

more than half a million times

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 77
78 National Council on Disability
T

he Access Board is a leading source of 

accessible design information with an 

oversight role in the Architectural Barriers 

Act (ABA). The work of the Access Board, 

however, is hampered by slow and restrictive 

rulemaking processes, untimely resolution of 

complaints, failure to exercise its authority to 

initiate investigations based on noncompliance 

information, and limited resources to pursue 

critical goals and objectives.

Chapter 3: U.S. Access Boa

Based upon the analysis in this chapter, NCD recommends that 

the Access Board:

■ Explore methods to expedite development of guidelines and standards, particularly on 

subjects that involve technology, so regulations are timely.

■ Use its citation process to ensure that investigations are completed within 180 days and 

extend beyond the 180-day time limit only in the rarest circumstances.

■ Publicize select investigation and compliance results.

■ Ensure that the Frontiers Committee is maintained and empowered to keep abreast of 

emerging disability issues and accessibility developments and to shape the Access Board’s 

regulatory and research agendas.

■ Use data on types of facilities or geographic areas that give rise to the most complaints 

as a basis to identify types of facilities or geographic areas for self-initiated investigations 

under the ABA.

■ Partner with other federal agencies that conduct nationwide enforcement of standards that 

are based on the ABA standards as detailed further in this chapter.

■ After receipt of a complaint about a particular area of a covered facility, investigate the 

entire facility to avoid the need for follow-up complaints.

■ Inform complainants of their right to demand a citation, or written reason for not issuing a 

citation, after 190 days from submission of the complaint if a corrective action plan is not 

completed.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 79
NCD recommendations for Congress, the 

President, the Office of Management and 

Budget, and the Government Accountability 

Office related to the Access Board are contained 

in the text that follows.

Overview of the Access Board

The Access Board is an independent federal 

agency that promotes equality for people with 

disabilities through leadership in accessible 

design and development of accessibility 

standards. Its mission is to promote 

accessibility through standards and guidelines, 

education, enforcement, and outreach. The 

Access Board develops design criteria for the 

built environment, transportation vehicles, 

telecommunications equipment, medical 

equipment, and information technology. The 

agency also provides technical assistance and 

training on these requirements.249

The Access Board’s oversight role under 

the ABA was established after Congress found 

inadequate ABA compliance.250 The ABA was 

the first federal law to address accessibility 

and requires federal facilities designed, built, 

or altered by the Federal Government or with 

federal dollars, or leased by federal agencies, 

to be accessible.251 As originally written 50 

years ago, federal agencies subject to the 

ABA were to self-monitor and self-enforce the 

requirements. In 1975, the U.S. Government 

Accounting Office, now the Government 

Accountability Office (GAO), found that the 

ABA “had only a minor effect on making public 

buildings barrier free.”252 The GAO determined 

that a significant deficiency in the ABA was 

that it left implementation to the discretion 

of the regulated agencies,253 and concluded 

that Access Board oversight was needed.254

The Access Board began work in 1975, was 

authorized by Congress to establish ABA 

accessibility guidelines in 1978, and issued the 

first guidelines in 1982.

Regulatory, Policy, and Sub-Regulatory 

Guidance

The Access Board establishes regulatory 

priorities based on legislative mandates and 

public input. The Access Board identifies 

issues for policy and sub-regulatory guidance 

primarily through public engagement; town hall 

meetings and other forums; technical assistance 

(TA) questions; and comments received in 

rulemaking. To further public involvement, the 

Access Board convenes advisory committees 

to assist in establishing regulatory priorities and 

to make technical recommendations for new or 

updated rules.255

When the ADA was enacted, the Access 

Board was further charged with developing 

accessibility guidelines. The ADA Accessibility 

Guidelines (ADAAG) were issued in 1991 

and adopted by DOJ and DOT. The guidelines 

have been updated over the years to cover 

automated teller machines, judicial and 

correctional facilities, over-the-road buses, 

play areas, and recreational facilities. In 1996, 

the Access Board was given responsibility to 

address the accessibility of telecommunications 

equipment under the Telecommunications 

Act and issued guidelines in 1998. In 2010, 

the Affordable Care Act authorized the Board 

to develop standards for medical diagnostic 

equipment.256

The Access Board has moved two major 

actions—Accessibility Guidelines for Passenger 

Vessels and Accessibility Guidelines for 

Pedestrian Facilities in the Public Right-of-Way—to 

80 National Council on Disability
the Long Term Agenda.258

The Passenger Vessels rule 

has been on the Access 

Board’s agenda since 1998 

and been the subject of 

an advanced notice and a notice of proposed 

rulemaking.259 The Pedestrian Facilities rulemaking 

has been on the Access Board’s agenda since 

1999 and been the subject 

of two notices of proposed 

rulemaking.260 In its Fall 

2016 agenda, the Board 

expected to issue final 

rules in 2018 and 2019. The 

indefinite delay is likely a 

result of Executive Order 

(EO) 13771, which requires 

that a federal department 

or agency identify at least two regulations to 

rescind for every new regulation.261

Since 2008, the Access Board has had an 

extensive research agenda, completing research 

on Accessible Pedestrian Signals; Dimensional 

Tolerances; Exhibit Design; Anthropometry of 

Wheeled Mobility; Independent Transfers from 

Wheelchairs; Playground Surfaces; Surface 

Roughness Standards; and Trail Surfaces. The 

Access Board has two ongoing research projects: 

(1) Medical Diagnostic Equipment Minimum 

Transfer Height Phase II, and (2) WCAG 2.0 

Expanded Online Technical Assistance.262 The 

Access Board has limited its research agenda to 

upcoming regulations on accessibility of selfservice transaction machines and accessibility of 

information technology to people with low vision 

and cognitive disabilities because of budget 

constraints.

The Access Board’s limited resources, 

together with its collaborative and consensusbased rulemaking 

process, has resulted in 

a nearly 20-year process 

for the development of 

important regulations that 

industries and people with disabilities need to 

implement consistent, effective, and efficient 

access. The rules are now delayed further by 

EO 13771. The Access 

Board’s rulemaking 

efforts are essential 

to the development of 

enforceable standards 

under the ADA and ABA, 

as well as Section 508. 

Particularly in an era of 

exponential developments 

in technology and 

accessibility, the Access Board needs to be able 

to complete its research, gather information and 

Access Board’s Planned 2018–2019 

Regulatory Agenda

For 2018–2019, the Access Board plans to 

issue one final regulation and one advance 

notice of proposed rulemaking:257

■ A final rule to make a technical correction 

to its information and communication 

technology regulation under Section 508 

of the Rehabilitation Act (completed in 

January 2018); and

■ Advance notice of proposed rulemaking to 

revise and update rail transportation vehicle 

guidelines—e.g., rapid, light, commuter, 

and intercity rail systems.

The Access Board has limited its 

research .. because of budg

constraints

The Access Board’s limited 

resources, together with its 

collaborative and consensusbased rulemaking process, has 

resulted in a nearly 20-year 

process for the development of 

important regulations 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 81
input from stakeholders, and issue guidelines or 

standards in a timely manner. NCD recommends 

the Access Board explore methods to expedite 

the development of guidelines and standards, 

particularly on subjects that involve 

technology, so that regulations are timely

NCD recommends that the Director of the 

Office of Management and Budget exempt 

the Access Board from 

Executive Order 13771, 

pursuant to section 

4(c) of the Executive 

Order, to allow the 

Access Board to 

proceed expeditiously 

with long-awaited 

rulemaking processes 

that are nearing 

completion

Section 508 of the Rehabilitation Act requires 

information and communication technology 

purchased, developed, or used by federal 

agencies to be 

accessible. In 1998, 

Congress assigned 

the Access Board 

responsibility to 

develop accessibility 

compliance standards 

for electronic and 

information technology, 

which the Board issued 

in 2000 and updated in 2017. Unlike the ABA, 

however, Section 508 does not explicitly provide 

an enforcement role for the Access Board. As a 

result, implementation of Section 508, like the 

original ABA, relies primarily on self-enforcement 

by the federal agencies and lawsuits by 

individuals with disabilities.

There is virtually no transparency into the level 

of Section 508 compliance of federal electronic 

and information technology, or the number of 

complaints received or resolved. Agencies submit 

biannual reports to the Chief Information Officer 

Council’s Accessibility Community of Practice.263

Those reports are used for interagency analysis, 

trending, and planning to improve collaboration, 

reduce redundancies, 

and develop solutions 

and recommendations 

for improving Section 

508 management across 

the Federal Government. 

Those reports, however, 

are not publicly available. 

Section 508 also directs 

DOJ to conduct a biennial 

survey and issue a report 

on federal compliance,264 which were published 

in 2000, 2004, and 2012.265 Those reports do not 

provide agency-specific information, the types 

of technologies that 

are inaccessible, or an 

independent assessment 

of the accessibility 

of federal agencies’ 

technology. Rather, 

the surveys focus on 

the levels of policies, 

training, spending, 

and infrastructure 

dedicated to technology accessibility. The lack 

of transparency, along with no federal agency 

authorized to require Section 508 compliance, 

makes it difficult to determine the impact or 

effectiveness of Section 508. NCD recommends 

that the Government Accountability Office 

conduct accessibility audits of websites, 

... Section 508 does not explicit

provide an enforcement role for 

the Access Board. As a result,

implementation of Section 508 

relies primarily on self-enforcement 

by the federal agencies and lawsuits 

by individuals with disabilities

The lack of transparency, along 

with no federal agency authorized 

to require Section 508 compliance, 

makes it difficult to determine 

the impact or effectiveness of 

Section 508

82 National Council on Disability
online technologies, and other electronic 

and information technologies developed, 

procured, maintained, or used by federal 

agencies and make recommendations 

regarding implementation, oversight, and 

enforcement of Section 508

Under Section 508, the Federal Acquisition 

Regulatory Council (FAR Council) is required to 

incorporate the revised 

508 Standards into the 

Federal Acquisition 

Regulations (FAR) “not 

later than 6 months 

after the Access 

Board publishes the 

standards.”266 Although the updated Section 508 

standards were issued by the Access Board 

in 2017, the FAR has not been updated, and 

federal agencies’ procurements are still using 

the out-of-date standards. NCD recommends 

that Congress and the President require the 

Federal Acquisition Regulatory Council (FAR 

Council) to immediately 

incorporate the revised 

Section 508 standards 

into the FAR

Proactive and 

Reactive Strategies

The Access Board’s 

proactive research and 

regulatory work is guided by several committees. 

The Access Board’s Planning and Evaluation 

Committee establishes goals and objectives 

to ensure overall program responsiveness 

and effectiveness, the Technical Programs 

Committee establishes research priorities to 

support current and future rulemaking efforts, 

and the Frontiers Ad Hoc Committee monitors 

and evaluates advances in technology to shape 

priorities so that guidelines and TA continue to 

address relevant issues. These committees keep 

abreast of emerging issues and accessibility 

developments and shape the Access Board’s 

research and regulatory agendas accordingly. 

NCD recommends the Access Board ensure 

that the Frontiers Committee, which is 

currently an ad hoc 

committee, is maintained 

and empowered to keep 

abreast of emerging 

disability issues and 

accessibility developments 

and to shape the Board’s 

regulatory and research agendas

The enforcement efforts of the Access Board, 

however, is largely reactive. The Access Board 

has limited resources and only two full-time staff 

assigned to handle ABA complaints. Enforcement 

priorities and strategies are not established 

beforehand. Although the Access Board has 

authority to survey 

facilities and initiate 

investigations in the 

absence of a complaint,267

investigations are initiated 

solely in response 

to complaints. With 

limited travel funds 

and staff located only 

in Washington, DC, the Access Board relies 

primarily on written correspondence and photos 

to collect necessary information and does not 

generally conduct compliance reviews. As a 

result, the Access Board’s ability to address 

additional violations at a facility beyond the 

particular element complained of is limited. 

Interested parties have noted that sometimes 

The Access Board has limited 

resources and only two full-time 

staff assigned to handle ABA 

complaints

[T]he Access Board relies primarily 

on written correspondence and 

photos to collect necessary 

information and does not generally 

conduct compliance reviews

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 83
they must file multiple complaints and await the 

outcomes of multiple investigations regarding 

a single facility, because as one barrier is 

removed, the complainant discovers more 

barriers requiring additional complaints. This is an 

inefficient process and leads to multiple barriers 

at a single facility having to be investigated and 

remediated separately. NCD recommends that 

when the Access Board receives a complaint 

about a particular area of a covered facility, 

it investigates the entire facility to avoid the 

need for follow-up 

complaints

NCD recommends 

the Access Board 

use data on types of 

facilities or geographic 

areas that give rise to 

the most complaints 

as a basis to identify types of facilities or 

geographic areas for self-initiated ABA 

investigations

Competent and Credible Investigative 

Process and Enforcement Action

The Access Board receives ABA complaints 

through its online complaint form (95 percent of 

complaints are received in this manner), emails 

to an enforcement email address, fax, and mail. 

Complaints to the Access Board concern post 

offices, national parks, military facilities, veterans’ 

hospitals, courthouses, and other facilities. 

According to the General Services Administration, 

in 2016 there were approximately 267,000 

federally owned or leased buildings in the United 

States, plus 496,000 other federal property and 

structures (e.g., parking lots).268 From FY 2008 

through FY 2017, the Access Board received a 

total of 1,309 ABA complaints (0.1 percent of 

GSA properties) and opened 532 investigations. 

Table 6 contains the number of complaints 

received per year by the 

Access Board from FY 

2008 to FY 2017 and the 

number of investigations 

opened by the Board.

Approximately 

64 percent, or 345 out 

of 535, of the Access 

Board’s closed complaints involved completed 

corrective action by agencies, while the other 

36 percent were closed based on a determination 

that the buildings were not covered or that the 

allegations did not amount to a violation of the 

standards. The Access Board’s ABA enforcement 

regulations incorporate a policy of amicable 

resolution and explicitly “encourage voluntary 

and informal resolution of all complaints.”269

The regulations permit the Access Board to 

investigate both complaints and violations coming 

Table 6: Access Board Investigations

Fiscal Year 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Complaints 

received

210 111 89 161 120 92 104 131 134 157

Investigations 

opened

53 51 52 76 60 37 38 48 42 75

Date Source: Access Board

From FY 2008 through FY 2017, the 

Access Board received a total of 

1,309 ABA complaints (0.1 percent

of GSA properties) and opened 532 

investigations

84 National Council on Disability
to its attention through other means.270 The 

Access Board is required to hold the identities of 

complainants in confidence.271

If a complaint deals with accessibility of 

federal facilities, the Access Board’s staff 

determine whether the facility is covered by 

the ABA by informing the respondent agency 

about the complaint, and asking about when 

the facility was constructed, altered, or leased, 

and if and how federal funds were used. If the 

facility is not covered by the ABA, the matter is 

closed. If the facility is 

covered, staff determine 

the applicable standard 

and verify whether 

the facility meets the 

standard. If the facility 

does not meet the 

applicable standard, the 

Access Board works with 

the agency to develop 

a plan to bring the 

facility into compliance 

and continues its 

investigation until the corrective action is 

completed.272

The Access Board has a 100 percent 

compliance rate where corrective action 

is required. If an agency were to refuse to 

comply, the Access Board would use informal 

mechanisms to reach out to the appropriate 

federal Access Board member and/or to the 

agency head to enlist their assistance in 

obtaining full compliance.273 Despite these 

good results, there is an apparent lack of 

awareness within the disability community of the 

outcomes of the Access Board’s investigations 

and compliance efforts, which may explain the 

relatively small number of complaints the Access 

Board receives each year. One focus group 

participant discussed how she found that the 

local EEOC office bathroom was inaccessible, 

had complained to the EEOC, and was not aware 

of the enforcement role of the Access Board. 

NCD recommends the Access Board publicize 

select investigations and compliance results 

to draw attention to the effectiveness of the 

Board’s processes and encourage the public 

to bring accessibility barriers to the Board’s 

attention

The Access Board’s 

administrative process 

stresses voluntary 

compliance. The Access 

Board’s enforcement 

regulations authorize 

it to issue a written 

citation in the event 

of noncompliance that 

cannot be corrected 

by informal means, 

“requesting or ordering 

the relief necessary 

to ensure compliance.”274 The citation must be 

filed with an Administrative Law Judge (ALJ) 

and served on all interested parties, including 

the complainant, and provide the basis for 

the imposition of the requested sanctions.275

A respondent must answer within 15 days.276

Complainants are not parties to proceedings 

by the Access Board, but may petition to 

participate in the proceeding.277 An order of 

compliance issued by the ALJ is a final order 

for purposes of judicial review, is binding on the 

respondent agency, and may require withholding 

or suspension of federal funds for any facility 

found noncompliant with ABA standards.278

A complainant who is dissatisfied with an order 

The Access Board has a 100 percent 

compliance rate where corrective 

action is required.... Desp

these good results, there is an 

apparent lack of awareness within 

the disability community of the 

outcomes of the Access Board’s 

investigations and compliance 

efforts

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 85
may obtain review in a U.S. district court.279 The 

Access Board is also authorized to bring a civil 

action to enforce a final order, to intervene, or to 

appear through a friend of the court (amicus) brief 

in any civil actions that relates to the ABA.280

Timely Resolution of Complaints

The Access Board’s regulations call for matters 

to be resolved within 180 days.281 For complaints 

resulting in referrals or determinations where the 

Board lacks jurisdiction or where no violations 

exist, according to the Board matters are usually 

handled within 14 days.

The Access Board’s regulations require the 

Executive Director, within 10 days after the 

passage of 180 days, to either issue a citation 

or determine in writing that a citation will not 

be issued and provide the reasons.282 Any time 

after the expiration of 190 days, a complainant 

or respondent agency may demand that the 

Access Board issue a citation and the Board 

must respond in writing within 30 days.283 The 

letters the Access Board sends to complainants, 

however, do not advise them of their right to 

demand a citation after 190 days.284

For matters that the Access Board opens and 

investigates, based on its data, the percentage 

of investigations taking longer than 180 days 

steadily declined from 68 percent in FY 2012 

to 44 percent in FY 2017. Nearly half of all 

investigations the Access Board conducts, 

however, take longer than 180 days. The Access 

Board’s small budget is insufficient to allow 

investigators to travel to facilities outside the 

Washington, DC, metropolitan area, forcing the 

Board to rely on the investigated agencies to 

provide information, which has resulted in many 

investigations exceeding the 180-day deadline 

for completion.285 One focus group participant 

who filed several complaints with the Access 

Board reported that the investigations take a 

very long time to resolve. NCD recommends 

the Access Board use its citation process to 

ensure that investigations are completed 

within 180 days and extend only in the rarest 

circumstances beyond the mandatory 180-

day time limit

Communications with Complainants 

and the Community

After filing a complaint, within three business 

days a complainant will receive an email or letter 

with a complaint number, links to information 

about how the Access Board will handle the 

complaint, and the Board’s compliance and 

enforcement regulations. If the Access Board 

opens an investigation but determines it lacks 

jurisdiction or that the allegations do not violate 

applicable accessibility standards, complainants 

are informed via email or letter. A complainant 

is given 15 days to provide information 

challenging the Access Board’s determination. 

These determinations are usually made within 

the first two months after a complaint filing. 

If the Access Board has jurisdiction and a 

violation exists, the Board requires corrective 

action. Complainants are informed once a 

corrective action plan is put in place and are 

given periodic updates on the plan until its 

completion. Once the Access Board receives 

evidence of completion of the corrective 

action, complainants are informed and given 

15 days to provide information challenging the 

Board’s determination that the work has been 

completed.286 NCD recommends the Access 

Board inform complainants of their right 

to demand a citation, or written reason for 

not issuing a citation, after 190 days from 

86 National Council on Disability
submission of the complaint if a corrective 

action plan is not completed

Interagency Collaboration 

and Coordination

The Access Board functions as a coordinating 

body among federal agencies and to directly 

represents the public, particularly people with 

disabilities. Twelve Access Board members are 

representatives from federal agencies (five are 

currently vacant).287 Thirteen others are public 

members appointed by the President, a majority 

of whom must have a disability. The Access 

Board meets six times a year, which provides 

multiple opportunities for close collaboration. 

Additionally, Access Board staff host a monthly 

informal meeting of 

federal agency staff 

who work on disabilityrelated issues to 

share information and 

collaborate on crosscutting topics.

By regulation and 

design, the Access Board’s enforcement process 

is intended to be an amicable, nonadversarial 

process based on cooperation. In order to 

make this process effective, the Access Board 

maintains strong relationships and open 

channels of communication with ABA standardsetting agencies and other federal agencies288

and works to create a climate in which federal 

agencies know that voluntary compliance is 

beneficial.289 In addition, the Access Board’s 

Office of Technical and Information Services 

has accessibility specialists on staff who 

can provide technical assistance to agencies 

seeking to remediate accessibility barriers.290

NCD recommends the Access Board partner 

with other federal agencies that conduct 

nationwide enforcement of standards 

based on the ABA standards, such as the 

Departments of Justice, Transportation, and 

Housing and Urban Development. These

agencies’ regional or traveling staff may be 

able to visit facilities that are subjects of 

investigations to leverage the Access Board’s 

limited resources

Training and Technical Assistance

The Access Board maintains a vigorous TA 

program. Federal agencies and members 

of the public can pose technical questions 

directly to Access Board staff using email, 

fax, or telephone. Because the same staff 

that responds to such 

questions also develops 

guidelines, standards, 

and TA and training 

materials, customers 

receive reliable 

responses. Board staff 

use the questions to 

develop TA materials and, when possible, to 

update its guidelines.291

On request, the Access Board provides 

in-person accessibility training nationwide 

to federal and state agencies, professional 

organizations, disability rights organizations, 

manufacturers, and others. The Access Board 

also conducts two webinar series—one focused 

on accessible buildings and facilities (12 per 

year) and the other on accessible information 

and communication technology (6 per year). 

Inquiries received during training sessions 

also inform the Access Board’s TA efforts.292

The Access Board provides training and TA on 

the ABA and has offered four webinars on the 

By regulation and design, the 

Access Board’s enforcement process 

is intended to be an amicable, 

nonadversarial process based on 

cooperation

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 87
ABA and will be offering another in 2018.293

The Access Board also informs the public 

about ABA enforcement and sub-regulatory 

guidance through its website, which logged 

more than 1.35 million unique visitors in FY 

2017,294 an email newsletter with almost 30,000 

subscribers, Twitter, 

a recently created 

YouTube channel, and 

public events such as 

town hall meetings and 

targeted outreach. The 

Access Board assesses 

the effectiveness of 

its guidance through 

analysis of website traffic; email distributionsystem reporting on sent messages; and 

feedback from the public and stakeholders at 

meetings, training sessions, targeted outreach, 

and other venues.

Adequacy of Agency Resources

The Access Board’s FY 2018 budget is 

approximately $8 million and has grown by 

about $100,000 per budget year. Access 

Board personnel expenses are approximately 

$5.15 million, or 62 

percent of its budget, 

and historically, the 

Board has requested 

a research budget 

of approximately 

$400,000. In FY 2018, 

only $100,000, or 

approximately 1 percent 

of the budget, is 

allocated to research despite the fact that the 

Access Board’s research relates to rulemaking. 

Mandatory expenses, such as personnel and 

required information technology, account 

The Access Board also informs the 

public about ABA enforcement and 

sub-regulatory guidance through 

its website, which logged more 

than 1.35 million unique visitors in

FY 2017

88 National Council on Disability
for the low research allocation and negative 

impact funds available for critical programs.295

In particular, required 

information technology 

expenses have grown 

tremendously, rising from 

$695,700 (8.6 percent of 

budget) in FY 2017 to $1.15 

million (14 percent) in FY 

2018.296 NCD recommends 

that Congress and the President approve 

an increase to the Access Board’s budget, 

particularly its budget for contracts, 

to address its added responsibilities, 

to support a robust 

and timely research 

program to support 

its rulemaking, and to 

allow staff to travel 

to inspect facilities 

beyond the metropolitan 

Washington, DC, area 

when those facilities are the subjects of 

ABA investigations

In FY 2018, only $100,000, or 

approximately 1 percent of the 

budget, is allocated to research 

despite the fact that the Access 

Board’s research relates to 

rulemaking

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 89
90 National Council on Disability
T

his report asked the question, Has the 

promise of federal disability rights laws 

been kept? As with other civil rights laws, 

the attempt to achieve the promise is a difficult 

and ongoing process. New and sometimes 

unforeseen social, technological, physical, and 

legal barriers arise that must be addressed 

through education, policy changes, legislation, 

administrative enforcement, and litigation.

Since Promises to Keep was released in 

2000, progress in disability rights compliance 

has occurred for people with disabilities, but the 

overall results are mixed.

Similar to the findings in Promises to Keep, 

“underfunding” and, more critically, understaffing 

are significant concerns to the rigorous 

enforcement of federal disability civil rights 

laws.297 In many years, the EEOC failed to achieve 

targeted employment levels, which the agency 

suggested was the result of a number of external 

factors. The OFCCP is in the midst of a staffing 

decline as it seeks to rebalance its compliance 

reviews in response to recommendations from 

the GAO. While the agencies themselves have 

certain control over staffing and the internal 

allocation of resources, and need to make direct 

enforcement activities a priority, Congress and 

the President have an important role in assisting 

the agencies with this process. Elimination of 

barriers to hiring and ensuring adequate funding 

for staffing and personnel requirements are 

central to maintaining and improving disability 

rights enforcement. NCD recommends that 

Congress and the President provide sufficient 

resources, and remove personnel barriers, 

which hamper the disability civil rights 

enforcement activities of the federal agencies

This report has pointed to the positive 

impact of the ADAAA upon the enforcement 

efforts of the EEOC. The EEOC took advantage 

of the ADAAA to significantly increase ADA 

enforcement litigation in the federal courts, and 

to strengthen the ADA Title I regulations. The 

now judicially overturned voluntary wellness 

program rule, however, is an important exception 

to the improved EEOC leadership. The EEOC’s 

re-interpretation of the ADA confidentiality 

provisions to the detriment of people with 

disabilities harkens back to NCD’s finding 

in Promises to Keep that the EEOC fails to 

always interpret the ADA to the maximum 

extent possible to ensure inclusion of people 

with disabilities.298 Further protections are also 

necessary to ensure that the EEOC’s charge filing 

and investigative procedures account for disability 

issues, as well as to improve communications 

with people of all types of disabilities.

As for the Department of Labor, ODEP 

supports numerous programs to encourage and 

support the recruitment, hiring, advancement, 

Conclusion: Has the Promise Been Kept?

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 91
and retention of workers with disabilities. 

ODEP, however, has little authority to insist on 

cooperation from other federal agencies and has 

difficulty in measuring the outcome of its efforts. 

OFCCP updated the Section 503 regulations to, 

for the first time, set aspirational goals for hiring 

people with disabilities by federal contractors 

and to improve the collection of data on the 

effectiveness of affirmative action efforts. OFCCP, 

however, failed to adopt a number of regulatory 

provisions that would have advanced the impact 

of affirmative action and antidiscrimination 

policies for people with disabilities after concerns 

were raised by contractors over potential 

burdens. WHD has slowly, but gradually, engaged 

in more aggressive enforcement activities, 

revoking at least four 

14(c) certificates in the 

past several years, after 

having never revoked a 

certificate as part of an 

enforcement action in the 

history of the program. 

In 2011, WHD used targeted enforcement 

to improve and better assess Section 14(c) 

enforcement efforts, but WHD still maintains 

a very outdated application and data-tracking 

system for the 14(c) program.

The federal enforcement agencies still rely 

largely on complaint-driven enforcement rather 

than a comprehensive strategy in the selection 

of compliance reviews. This is especially the 

case for OFCCP, WHD, and the Access Board, 

which have the ability to initiate reviews without 

the need for a complaint. The Access Board has 

a long history of solid regulatory and research 

work, including the identification of emerging 

issues, but does not undertake Board-initiated 

investigations that could broaden the impact of 

its work. With the exception of the EEOC Office 

of Legal Counsel, none of the agencies considers 

enforcement staff specially trained in disability 

issues as a proper use of resources. NCD 

believes this should be addressed.

In Promises to Keep, NCD found that 

“[t]he record so far shows variation in the degree 

to which the federal agencies have shown 

leadership, engaged in policy development, and 

sought to clarify ‘frontier issues.’ Some of these 

differences appear to be related to the culture 

of the agency itself and how it has traditionally 

framed its mission and defined its constituency.”299

This situation seems still to exist. OFCCP does 

not seem to clearly define its mission as rigorous 

enforcement to achieve affirmative action 

outcomes for persons 

with disabilities but 

rather on encouraging 

voluntary compliance by 

federal contractors. NCD 

has concerns with how 

WHD allocates program 

resources to oversee the implementation of the 

requirements of Section 511 of the WIOA, and the 

lack of information about, and risk to employees 

with disabilities, when a 14(c) certificate holder 

does not renew a certificate.

The nation cannot be content for full 

integration and equal rights for all people 

with disabilities to remain simply aspirational. 

Constant vigilance and diligent enforcement by 

the Federal Government is required for all people 

with disabilities to achieve equality, justice, and 

full community participation. Taking the proactive 

steps included in this Progress Report to improve 

the enforcement of federal disability rights laws 

will bring the nation closer to the full promise for 

people with disabilities.

The nation cannot be content for full 

integration and equal rights for all 

people with disabilities to remain 

simply aspirational

92 National Council on Disability
Appendix A: Agency Budget and Staffing Charts

Table A: EEOC Annual Budget 2000 to 2017

Fiscal Year Enacted Constant 2000 

Dollars

Yearly % Change 

(Constant $)

2000 $280,928 $280,928.0

2001 $303,195 $294,806.21 4.9

2002 $310,406 $297,120.14 0.7

2003 $321,815 $301,176.86 1.3

2004 $324,944 $296,216.82 −1.6

2005 $326,804 $288,149.76 −2.7

2006 $326,883 $279,212.56 −3.1

2007 $328,745 $273,026.64 −2.2

2008 $329,300 $263,375.15 −3.5

2009 $343,925 $276,054.41 4.8

2010 $367,303 $290,061.16 5.0

2011 $366,568 $280,622.79 −3.2

2012 $360,000 $270,007.06 −3.7

2013 $370,000 $273,501.12 1.2

2014 $364,000 $264,770.88 −3.1

2015 $364,500 $264,820.24 0.0

2016 $364,500 $261,521.12 −1.2

2017 $364,500 $256,066.01 −2.0

Annual Average $339,906.44 $278,413.16 1.

% Change Between 

2000 & 2017

−8.85

Enacted Budget Data Source: EEOC;300 Constant dollar and year % changes are calculations of the researchers 

based on the Consumer Price Index (CPI) for each year utilizing 2000 as the base year.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 93
Table B: EEOC Staffing 2000 to 2017

Fiscal Year Approved FTE 

Ceiling

Actual End of 

Fiscal Year FTE

Yearly FTE 

Change Yearly % Change

2000 2,946 2,852 N/A N/A

2001 3,055 2,704 −148 −5.19

2002 3,055 2,783 79 2.92

2003 2,800 2,617 −166 −5.96

2004 2,765 2,462 −155 −5.92

2005 2,640 2,441 −21 −0.85

2006 2,381 2,246 −195 −7.99

2007 2,381 2,158 −88 −3.92

2008 2,381 2,176 18 0.83

2009 2,556 2,192 16 0.74

2010 2,556 2,385 193 8.80

2011 2,470 2,505 120 5.03

2012 2,571 2,346 −159 −6.35

2013 2,354 2,147 −199 −8.48

2014 2,347 2,098 −49 −2.28

2015 2,347 2,191 93 4.43

2016 2,250* 2,202 11 0.50

2017 2,347 2,082 −120 −5.45

Annual Average 2,366

Change Between 

2000 & 2017

−770 −27.00

Data Source: EEOC;301 Yearly change calculations by the researchers.

*2,250 represents the revised actual within the FY 2016 Enacted Budget; 2,347 was the Commission’s approved 

FTE Ceiling.

94 National Council on Disability
Table C: ODEP Budget 2008 to 2016

Fiscal Year Enacted 

($ in thousands)

Constant 2000 

Dollars

Yearly % Change 

(Constant $)

2008 $27,288.00 $27,288.

2009 $26,697.00 $26,792.32 −1.

2010 $39,031.00 $38,538.23 43.

2011 $38,953.00 $37,284.32 −3.

2012 $38,879.00 $36,458.99 −2.

2013 $36,846.00 $34,053.73 −6.

2014 $37,745.00 $34,327.74 0.

2015 $38,500.00 $34,972.87 1.

2016 $38,203.00 $34,270.75 −2.

Annual Average $35,793.56 $33,776.33 3.

Change Between 2008 

& 2016

25.59

Data Source: ODEP FY 2018 Budget Justification.302 Constant dollar and yearly % changes are calculations by the 

researchers based on the Consumer Price Index (CPI) for each year utilizing 2008 as the base year.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 95
Table D: OFCCP Budget 2004 to 2017

Fiscal Year Enacted 

(in Thousands)

Constant 2000 

Dollars

Yearly % Change 

(Constant $)

2004 $79,442 $79,442

2005 $80,060 $77,436 −2.52

2006 $81,285 $76,164 −1.64

2007 $82,441 $75,108 −1.39

2008 $81,001 $71,068 −5.38

2009 $82,107 $72,295 1.73

2010 $105,386 $91,295 26.28

2011 $105,386 $88,501 −3.06

2012 $105,187 $86,543 −2.21

2013 $99,685 $80,832 −6.60

2014 $104,976 $83,764 3.63

2015 $106,476 $84,860 1.31

2016 $105,476 $83,016 −2.17

2017 $104,476 $80,514 −3.01

Annual Average $94,527.43 $80,774.30 0.

Change Between 2004 

& 2017

1.35

Enacted Budget Data Source: OFCCP.303 Constant dollar and yearly % changes are calculations by the researchers 

based on the Consumer Price Index (CPI) for each year utilizing 2004 as the base year.

96 National Council on Disability
Table E: OFCCP Staffing Levels 2004 to 2017

Fiscal Year Actual End of Fiscal 

Year

Yearly FTE Change 

(Actual) Yearly % Change

2004 749

2005 691 −58 −7.74

2006 670 −21 −3.04

2007 625 −45 −6.72

2008 585 −40 −6.40

2009 622 37 6.32

2010 838 216 34.73

2011 788 −50 −5.97

2012 755 −33 −4.19

2013 729 −26 −3.44

2014 683 −46 −6.31

2015 621 −62 −9.08

2016 615 −6 −0.97

2017 556 −59 −9.59

Annual Average 529

Change Between 2004 

& 2017

−193 −25.77

Data Source: OFCCP;304 Yearly change calculations by the researchers.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 97
Table F: WHD Budget 2008 to 2016

Fiscal Year Enacted 

($ in Thousands)

Constant 2000 

Dollars

Yearly % Change 

(Constant $)

2008 $175,658.00 $175,658.

2009 $193,092.00 $193,781.43 10.

2010 $227,262.00 $224,392.77 15.

2011 $227,491.00 $217,745.68 −2.

2012 $227,061.00 $212,927.67 −2.

2013 $215,184.00 $198,876.88 −6.

2014 $224,330.00 $204,020.18 2.

2015 $227,500.00 $206,657.89 1.

2016 $227,500.00 $204,083.35 −1.

Annual Average $216,119.78 $204,238.20 2.

% Change Between 

2008 & 2016

16.18

Data Source: WHD FY 2017 Budget Justification.305 Constant dollar and yearly % changes are calculations of the 

researchers based on the Consumer Price Index (CPI) for each year utilizing 2008 as the base year.

98 National Council on Disability
Appendix B: Federal Disability Civil Rights 

Laws Considered

The Architectural Barriers Act of 1968

The Architectural Barriers Act (ABA)306 requires that buildings or facilities that were designed, built, or 

altered with federal dollars or leased by federal agencies after August 12, 1968, be accessible. Covering 

a wide range of government facilities, including U.S. post offices, Veterans Affairs medical facilities, 

national parks, Social Security Administration offices, federal office buildings, U.S. courthouses, and 

federal prisons, it also applies to nongovernment facilities that have received federal funding, such as 

schools, public housing, and mass transit systems. The ABA is enforced by the U.S. Architectural and 

Transportation Barriers Compliance Board (Access Board) through the investigation of complaints.

The Rehabilitation Act of 1973

The Rehabilitation Act of 1973,307 as amended, prohibits discrimination on the basis of disability in 

federal agencies, in programs receiving federal financial assistance, in federal employment, and in 

the employment practices of federal contractors. Several important sections of the Act include the 

following:

Section 501 prohibits federal agencies from discriminating in the hiring and employment of people 

with disabilities and requires the agencies to take affirmative action to hire, place, and advance 

employees with disabilities.308

Section 503 prohibits federal contractors and subcontractors from discriminating in employment 

against people with disabilities and requires these employers to take affirmative action to recruit, hire, 

promote, and retain employees with disabilities.

Section 504 mandates that no qualified individual with a disability shall be “excluded from the 

participation in, be denied the benefits of, or be subjected to discrimination under any program or 

activity” receiving federal financial assistance or conducted by a federal agency. Each federal agency 

establishes its own 504 regulations that apply to its programs and each federal agency is responsible 

for enforcing its own regulations. Requirements common to these regulations include reasonable 

accommodation for employees with disabilities; program accessibility; effective communication with 

people who have hearing or vision disabilities; and accessible new construction and alterations.

Section 508 establishes requirements for electronic and information technology developed, 

maintained, procured, or used by the Federal Government. Section 508 requires federal electronic and 

information technology to be accessible to people with disabilities, including employees and members 

of the public. “Section 508 was enacted to eliminate barriers in information technology, to make 

available new opportunities for people with disabilities and to encourage development of technologies 

that will help achieve these goals. Section 508 requires that when federal agencies develop, procure, 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 99
maintain, or use electronic and information technology, federal employees with disabilities have access 

to and use of information and data that is comparable to the access and use by federal employees who 

are not individuals with disabilities, unless an undue burden would be imposed on the agency. Section 

508 also requires that individuals with disabilities, who are members of the public seeking information 

or services from a federal agency, have access to and use of information and data that is comparable 

to that provided to the public who are not individuals with disabilities, unless an undue burden would 

be imposed on the agency.”309 Similar to Section 504, each federal agency is charged with establishing 

and enforcing its 508 criteria.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA)310 of 1990 is heralded as the nation’s first comprehensive civil 

rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, 

public services, public accommodations, and telecommunications. Modeled on the Civil Rights Act 

of 1964, the ADA gives recognition that discrimination based on disability is a violation of civil rights. 

The ADA affords protections to people with disabilities similar to those provided to people on the basis 

of race, color, sex, national origin, age, and religion, guaranteeing nondiscrimination on the basis of 

disability and equal opportunity in employment, state and local government services, transportation, 

public accommodations, and telecommunications.

Title I of the ADA prohibits private employers, state and local governments, employment agencies, 

and labor unions from discriminating against qualified individuals with disabilities in job application 

procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and 

privileges of employment. The ADA covers employers with 15 or more employees, including state and 

local governments. The EEOC is charged with enforcement of Title I of the ADA.

Title II of the ADA protects qualified individuals with disabilities from discrimination on the basis of 

disability in services, programs, and activities provided by state and local government entities. Title II 

extends the prohibition on discrimination established by Section 504 of the Rehabilitation Act of 1973, 

as amended311 to all activities of state and local governments regardless of whether these entities 

receive federal financial assistance. Except for matters involving public transportation services, the 

DOJ is responsible for enforcement activities related to Title II, generally through DOJ’s Civil Rights 

Division, Disability Rights Section. Compliance and enforcement of Title II provisions covering public 

transportation services, such as city buses and public rail transit (e.g., subways, and commuter rail), are 

directed to the Federal Transit Administration, Department of Transportation, Office of Civil Rights.

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of 

public accommodations, defined as businesses that are generally open to the public and that fall 

into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care 

facilities, recreation facilities, and doctors’ offices. Public accommodations must comply with basic 

nondiscrimination requirements that prohibit exclusion, segregation, and unequal treatment. Places of 

public accommodation also must comply with specific requirements related to architectural standards 

for new and altered buildings; reasonable modifications to policies, practices, and procedures; effective 

100 National Council on Disability
communication with people with hearing, vision, or speech disabilities; and other access requirements. 

Additionally, public accommodations must remove barriers in existing buildings where it is easy to do 

so without much difficulty or expense, given the public accommodation’s resources. The Department of 

Justice is charged with enforcement of Title III.

The ADA Amendments Act of 2008312 (ADAAA), removed a number of unintended barriers and 

roadblocks to coverage under the original ADA and nullified judicial misinterpretations of congressional 

intent. As described by the EEOC, the ADAAA:

emphasizes that the definition of disability should be construed in favor of broad coverage 

of individuals to the maximum extent permitted by the terms of the ADA and generally shall 

not require extensive analysis. The Act makes important changes to the definition of the term 

“disability” by rejecting the holdings in several U.S. Supreme Court decisions and portions of 

EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking 

protection under the ADA to establish that he or she has a disability within the meaning of the 

ADA.313

The Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits 

one or more major life activities, a record of such an impairment, or being regarded as having such an 

impairment. However, it changes the way that these statutory terms should be interpreted and most 

significantly directs EEOC to revise that portion of its regulations defining the term “substantially 

limits”; expands the definition of “major life activities” by including two nonexhaustive lists; clarifies 

that an impairment that is episodic or in remission is a disability if it would substantially limit a major 

life activity when active; changes the definition of “regarded as” so that it no longer requires a showing 

that the employer perceived the individual to be substantially limited in a major life activity, and instead 

says that an applicant or employee is “regarded as” disabled if he or she is subject to an action 

prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory 

and minor).

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA),314 enacted in 1938, establishes minimum wage, overtime pay, 

recordkeeping, and child labor standards affecting full-time and part-time workers in both the private 

sector and in federal, state, and local governments. The purpose of the FLSA was to eliminate “labor 

conditions detrimental to the maintenance of the minimum standard of living necessary for health, 

efficiency, and general well-being of workers.”315

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA)316 of 1993, as amended, entitles eligible employees of 

covered employers to take unpaid, job-protected leave for specified family and medical reasons 

with continuation of group health insurance coverage under the same terms and conditions as if 

the employee had not taken leave. Eligible employees are entitled to 12 workweeks of leave in a 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 101
12-month period for (1) the birth of a child and to care for the newborn within a year of birth; (2) after 

placement of a child for adoption or foster care and to care for the newly placed child for one year 

from the placement; (3) to care for a spouse, child, or parent who has a serious health condition; (4) 

a serious health condition that makes the employee unable to perform the essential functions of his 

or her job; or (5) any “qualifying exigency” arising out of the fact that the employee’s spouse, son, 

daughter, or parent is a covered military member on “covered active duty.” The FMLA also provides for 

26 workweeks of leave during a single 12-month period to care for a covered service member with a 

serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, 

or next of kin.

Section 105 of the FMLA expressly prohibits (1) an employer from interfering with, restraining, or 

denying the exercise of, or the attempt to exercise, any FMLA right; (2) an employer from discriminating 

or retaliating against an employee or prospective employee for having exercised or attempted to 

exercise any FMLA right; (3) an employer from discharging or in any other way discriminating against 

any person, whether or not an employee, for opposing or complaining about any unlawful practice 

under the FMLA, or providing information or testifying in connection with an inquiry or proceeding 

related to a rights under the FMLA. The Act also prohibits all persons, whether or not employers, 

from discharging or in any other way discriminating against any person, whether or not an employee, 

because that person has filed any charge or has instituted, or caused to be instituted, any proceeding 

under or related to the FMLA.

Examples of prohibited conduct include refusing to authorize FMLA leave for an eligible employee; 

discouraging an employee from using FMLA leave; manipulating an employee’s work hours to avoid 

responsibilities under the FMLA; using an employee’s request for, or use of, FMLA leave as a negative 

factor in employment actions, such as hiring, promotions, or disciplinary actions; or counting FMLA 

leave under “no fault” attendance policies.

Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (GINA)317 was signed into law on May 21, 2008, to 

protect people against discrimination based on their genetic information in health coverage and in 

employment. GINA is divided into two titles. Title I of GINA prohibits discrimination based on genetic 

information in health coverage, while Title II prohibits discrimination based on genetic information in 

employment. The Department of Health and Human Services’ Office of Civil Rights and Centers for 

Medicare and Medicaid Services, the Department of Labor, and the Department of the Treasury all have 

responsibility for issuing regulations under Title I of GINA to prohibit discrimination based on genetic 

information by group health plans and health insurance issuers. Health and Human Services also 

coordinated with the EEOC—which has responsibility for issuing regulations under Title II of GINA—to 

prohibit discrimination based on genetic information by employers.

102 National Council on Disability
Workforce Innovation and Opportunities Act

Passage of the bipartisan Workforce Innovation and Opportunity Act (WIOA)318 of 2014 has firmly 

established employment of people with disabilities as a national priority. Of significant importance 

to this report, section 511 of WIOA included specific new requirements prior to the payment of a 

subminimum wage under Section 14(c) of the FLSA. As the DOL states:

WIOA is a comprehensive federal law, enacted on July 22, 2014, which is intended to streamline, 

consolidate, and improve workforce development and training services for various groups, 

including youth and workers with disabilities. Among other things, WIOA prohibits workers with 

disabilities who are age 24 or younger (youth) from being paid subminimum wages without 

completing various requirements designed to improve their access to competitive integrated 

employment, including transition services, vocational rehabilitation and career counseling 

services, before they are employed at a subminimum wage. WIOA also requires that all workers 

with disabilities, regardless of their age, who are paid a subminimum wage, receive regular career 

counseling and information about self-advocacy, self-determination, and peer mentoring training 

opportunities in their local area, every six months during the first year of employment and annually 

thereafter. These requirements . . . are in addition to, and do not replace, requirements of Section 

14(c) . . . .319

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 103
104 National Council on Disability
Appendix C: Overview of Promises to Keep and 

Methodology Used for the 2018 Progress Report

Overview of Promises to Keep

Promises to Keep took an in-depth look at the EEOC, DOJ, DOT, FCC, and to a degree the Access 

Board, all of which have a role in the enforcement or implementation of the ADA. For that report, NCD 

researchers developed and used the following 11 elements to assess the ADA enforcement by those 

agencies:320

Element 1: Proactive and reactive strategies. Proactive measures address compliance through 

efforts to educate, monitor, and prevent civil rights violations, and reactive measures aim to 

resolve and remedy complaints of civil rights violations after the fact.

Element 2: Communication with consumers and complainants. Communication must ensure that 

persons protected by the statute know where and how to file complaints of discrimination, how 

the enforcement agency operates, what to expect as possible outcomes, and the aims and limits 

of the enforcement mandate. Complainants should hear promptly from the agency following the 

initial filing and be regularly updated on the status of the complaint.

Element 3: Policy and sub-regulatory guidance. Enforcement is advanced where agencies 

issue policy and sub-regulatory guidance on issues of confusion or controversy as a means of 

providing advice to covered entities about actions for compliance and to assist the courts in the 

interpretation of the statute.

Element 4: Enforcement actions. Where violations of the statute are present, effective 

enforcement involves measures to obtain corrective action or mediated settlement, followed by 

more punitive measures such as fines or litigation where violations are not easily or promptly 

resolved.

Element 5: Strategic litigation. Agency-initiated strategic litigation or amicus participation in 

litigation to implement enforcement is used where other measures have failed or to develop case 

law.

Element 6: Timely resolution of complaints. Effective resolution of complaints involves their 

timely processing. There should be expeditious internal processing where complaints must be 

referred to other agencies for investigation.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 105
Element 7: Competent and credible investigative processes. Effective enforcement includes 

investigative processes and outcomes that are thorough, well documented, and competent and 

thus credible to complainants and covered entities alike.

Element 8: Technical assistance for protected persons and covered entities. Technical assistance, 

offered in a variety of modes and formats, helps covered entities and informs those protected by 

the statute of their rights.

Element 9: Adequate agency resources. Resources include agency staff (investigators, attorneys, 

and others) adequate in number to the size of the compliance and complaint caseload; ongoing 

staff training provided on a regular basis; and data management systems and other support 

systems to enable efficient implementation of enforcement activities.

Element 10: Interagency collaboration and coordination. Appropriate collaboration and 

coordination affect enforcement where responsibilities are spread across different agencies or 

organizations, or where there are related activities or areas of jurisdiction.

Element 11: Outreach and consultation with the community. Regular outreach and consultation 

with the communities of persons protected by the statutes provide information about the key 

issues and problem areas of enforcement, how effectiveness is judged by consumers, and 

potential methods for improvement.

Promises to Keep concluded that “the federal agencies charged with enforcement and policy 

development under the ADA, to varying degrees, have been overly cautious, reactive, and lacking any 

coherent and unifying national strategy,”321 and that there existed “variation in the degree to which the 

federal agencies [had] shown leadership, engaged in policy development, and sought to clarify ‘frontier 

issues.’”322 Promises to Keep went on to state that in some cases differences in agency leadership 

“appear to be related to the culture of the agency itself and how it has traditionally framed its mission 

and defined its constituency. In other cases, resource and administrative constraints, turf conflicts, and 

other forces within the agency appear to suppress or mute the rigor of civil rights enforcement.”323

Promises to Keep included 23 recommendations related to the EEOC324 and three recommendations 

related to the Access Board.325

Methodology Used for the 2018 Progress Report

Looking back at Promises to Keep, while broadening the scope of the analysis, the primary question 

for the 2018 Progress Report was, How effective has the EEOC, DOL, and the Access Board been in 

the enforcement and implementation of federal laws that impact people with disabilities? To focus the 

analysis, the 11 elements developed in Promises to Keep were rephrased into 11 questions to guide 

the research. Researchers reviewed agency reports, strategic plans, regulations, and sub-regulatory 

guidance; evaluated agency budget and staffing data; analyzed enforcement statistics when available 

106 National Council on Disability
and relevant; and examined agency involvement in administrative hearings and federal litigation, as 

relevant.

Agency budgets were analyzed to determine changes and the potential impact on the enforcement 

of disability rights and programs. Data on full-time equivalent (FTE) staff, when available, was assessed 

for significant changes.

For the EEOC, OFCCP, and WHD, data on complaints, investigations, and other enforcement 

information was analyzed. The EEOC provides significant data online and in agency reports 

charges, resolution, and EEOC litigation. OFCCP also publishes some data online,326 and provided 

supplementary data to the researchers on violations found during compliance reviews and complaint 

investigations back to FY 2008. WHD provided information related to Section 14(c) applications and 

approval rates and investigations related to Section 14(c) and the FMLA.

Researchers interviewed and/or submitted written questions to agency leadership and staff. Specific 

interview questions, covering a range of issues, were developed based on the broader 11 research 

questions. A number of the interview questions for the EEOC were related to the recommendations 

contained in Promises to Keep. Relevant GAO reports were analyzed. Memoranda of Understanding 

between federal enforcement agencies, such as between the EEOC and DOJ, were also reviewed. 

Researchers reviewed major cases brought in the U.S. Circuit Courts of Appeal and the U.S. Supreme 

Court. Lower federal court cases were also considered when relevant. The analysis of amici curiae 

briefs submitted by the EEOC were further considered.

Though data and information were considered back to 2000, especially for the EEOC, the analyses 

for several other federal agencies focused on more recent efforts. To guide the research, a project 

advisory group of 10 experts in disability rights, disability research, and disability and self-advocacy 

was established that provided advice on specific research questions, research methods, assistance to 

conduct the focus groups, and ideas for the organization of the report and the recommendations.

Focus Discussion Groups

Four focus discussion groups of people with disabilities with prior interaction with the agencies 

under study were conducted in February and March 2018. Three of the focus groups were conducted 

remotely through phone and online video. Persons without video capability could participate solely by 

phone. A fourth focus discussion group occurred in Decatur, GA. Announcements and solicitations 

seeking participants were sent out repeatedly to numerous networks, including social media, used by, 

or associated with, the disability community and disability advocates.

A total of 23 people with disabilities participated, with 12 having engaged at some level in the 

EEOC charge process. Eleven participants had some engagement with the Access Board or ODEP. 

Of the 23 total participants, three had interacted with two of the agencies considered. Given the 

small number of focus group participants, generalizations, conclusions, or categorization of issues 

with broad applicability is not possible about enforcement or implementation efforts based on the 

responses.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 107
108 National Council on Disability
Appendix D: Reply of the Department of Labor’s Civil 

Rights Center to Research Questions

1. What is CRC’s mission?

The mission of the Civil Rights Center (CRC) is to promote justice and equal opportunity by acting 

with impartiality and integrity in administering and enforcing various civil rights laws. These laws 

protect:

■ Department of Labor (DOL) employees and applicants for DOL employment. These issues are 

handled by CRC’s internal program.

■ Individuals who apply to, participate in, work for, or come into contact with programs and 

activities that are conducted by or receive financial assistance from DOL, or, under certain 

circumstances, from other Federal agencies. With regard to disability, CRC also has jurisdiction 

over complaints regarding programs, services, and regulatory activities relating to labor and 

the workforce that are operated by public entities. These issues are handled by CRC’s external 

program.

CRC carries out its mission by investigating and adjudicating discrimination complaints, conducting 

compliance reviews, providing technical assistance and training, and developing and publishing 

civil rights regulations, policies, and guidance.

The responses below relate to CRC’s external program unless indicated otherwise.

2. What is CRC’s process for compliance with section 508 of the Rehabilitation Act, especially in 

regard to agency websites?

CRC’s Office of External Enforcement (OEE) accepts complaints regarding compliance by 

DOL agencies with Section 508 of the Rehabilitation Act and handles them through its regular 

complaint process. Additionally, CRC representatives provide guidance, when requested, to other 

Departmental agencies on compliance with section 508, particularly as it relates to websites and 

other technology.

3. How is information provided in an accessible manner for charging parties or complainants with 

disabilities? How is information provided to the general public in an accessible manner, including 

when conducting training?

Under 29 CFR 38.35, recipients of Title I federal financial assistance are required to provide initial 

and continuing notice about equal opportunity requirements (“Equal Opportunity is the Law”) 

including providing effective communication (auxiliary aids and services) to registrants, applicants, 

and eligible applications/registrants, applicants for employment and employees and participants 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 109
with disabilities. CRC’s website provides information to the general public about the agency’s 

internal and external jurisdiction, including how to file a complaint directly with CRC by mail 

or electronically. CRC is working to improve the full accessibility of the website. CRC staff are 

required to include the number for the Federal Relay Service in their e-mail signatures and on all 

correspondence that includes a voice telephone number. CRC provides auxiliary aids and services 

upon request. CRC recently changed its website and intake letter to ensure that individuals with 

disabilities are aware of this availability and how to request it. CRC also provides training and 

technical assistance for stakeholders (see response to Q. #27 below).

4. What disability-related laws does CRC investigate?

CRC’s external program investigates / implements the following laws:

■ Title II of the Americans with Disabilities Act (ADA Title II), and its implementing regulations at 

28 CFR Part 35.

■ Section 504 of the Rehabilitation Act of 1973 (Section 504), and DOL’s implementing 

regulations at 29 CFR Parts 32 and 33.

■ Section 508 of the Rehabilitation Act of 1973 (Section 508).

■ Section 188 of the Workforce Innovation and Opportunity Act (WIOA Section 188); its 

implementing regulations at 29 CFR Part 38; its predecessor, Section 188 of the Workforce 

Investment Act (WIA Section 188); and the regulations implementing WIA Section 188, at 29 

CFR Part 37.

■ Executive Order 13160, which prohibits discrimination on the basis of disability, among others, 

in federally-conducted education and training programs and activities.

5. What are the overall enforcement and investigatory outcomes of the CRC in regard to disability 

since 2008?

CRC maintains case records pursuant to DOL’s record retention schedule; thus, we are able to 

highlight cases since FY 2013.

Specific examples of notable investigatory and enforcement outcomes for disability-related cases 

in recent fiscal years include:

■ FY 2014: CRC entered into a Conciliation Agreement327 with a workforce development center, 

pursuant to which the center agreed that it would not require persons who have, or are 

perceived to have, disabilities to be assessed for or participate in disability-specific services 

before, or as a condition of, receiving any services that are not disability-specific.

■ FY 2015: CRC entered into a Conciliation Agreement, consolidating five separate complaints, 

with a residential job training program. The program agreed that it would conduct appropriate 

assessments before rejecting applicants or dismissing participants on the basis that they 

posed a direct threat as the result of a disability or medical condition, and that it would revise 

its policies and procedures related to direct threats.

110 National Council on Disability
■ FY 2016: CRC issued an Initial Determination finding that a county had engaged in disparate 

treatment of customers with disabilities, by denying them training funds (to avoid what the 

county believed would be negative performance results), and by steering them to other entities 

for separate services. The Determination also found that the county had retaliated against 

employees for protesting this treatment of customers with disabilities.328

■ FY 2017: CRC issued an Initial Determination finding that a service provider had discriminated 

against a participant in a job training program by putting her on leave without pay and 

attempting to transfer her to a new host agency. CRC eventually entered into a Conciliation 

Agreement under which the service provider was required to retain experts to evaluate the 

participation of people with disabilities in its programs, as well as to provide back pay and 

interest to the Complainant.

■ FY 2018: CRC entered into Settlement Agreements with two related State agencies in a 

case involving a deaf worker’s compensation claimant. As with the FY 2017 Agreement 

discussed previously, these Agreements required the agencies to retain experts to evaluate 

their disability-related policies, practices, and procedures—in this case, those related to the 

Other Resolutions of Disability-Related Cases from FY 2013 Through FY 2018, Q.2

FY

Initial 

Determinations/

Letters of 

Finding Finding 

Violation(s)

Final 

Determinations 

Finding No 

Reasonable 

Cause to Believe 

a Violation Took 

Place

Conciliation/

Settlement 

Agreements—

Disability-Related 

Relief

Conciliation/

Settlement 

Agreements—No 

Disability-Related 

Relief*

2013 1 1

2014 5 2 (1 discussed 

previously under 

FY 2014)

1

2015 4 8** 2

2016 2 1 2 2

2017 1 (discussed 

previously)

12 3 (1 discussed 

previously)

2

2018 (Qs. 1 and 2) 8 2 (discussed

previously)

*Although these cases originally raised disability-related allegations, CRC did not find any substantive violations 

of disability nondiscrimination law. Rather, the agreements were based on CRC’s findings that the relevant 

respondents had violated technical requirements, such as those requiring them to retain demographic data for a 

particular period of time.

**This number includes the five consolidated cases discussed previously, as well as three agreements resolving 

three additional cases.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 111
workers’ compensation claims filing process and the processes for providing equally effective 

communications with persons with disabilities. The Agreements also required the agencies 

to submit to CRC for approval proposed changes to their policies, practices, and procedures, 

to train their employees, and to conduct outreach to local organizations, including advocacy 

organizations representing people who are deaf and hard of hearing. Finally, one of the 

agencies was required to pay compensatory damages to the claimant.

6. How does the CRC assess, investigate, and adjudicate complaints of discrimination of a person 

with a disability?

CRC receives complaints, including disability-related complaints, either directly from complainants / 

their representatives, or through referral from other Federal departments and agencies.

Each complaint is initially assessed by a CRC Intake Equal Opportunity Specialist (EOS) 

to determine appropriate action, including whether the complaint should be accepted for 

investigation. This assessment considers four main criteria: (1) whether the complaint is complete; 

(2) whether it was filed timely; (3) whether it alleges discrimination on a basis prohibited by a law 

enforced by CRC (or retaliation for activity protected by one or more of such laws); and (4) whether 

CRC has jurisdiction over the entity alleged to have discriminated / retaliated.

With regard to completeness and timeliness, where a complaint is not complete, the Section 504 

and WIOA Section 188 regulations require CRC to make reasonable efforts to obtain the missing 

information. Therefore, before closing a complaint under these circumstances, CRC will contact 

the Complainant to seek whatever information has not been provided, such as by asking the 

Complainant to complete CRC’s Complaint Information Form (CIF) or to respond to an individuallydrafted Intake Questionnaire. Similarly, if a complaint is untimely filed, CRC will invite the 

Complainant to explain the late filing; the Director has authority to extend the filing period for good 

cause. However, if it does not receive the necessary information, CRC will close the complaint 

with an explanatory letter.

With regard to jurisdiction, the statutory jurisdiction of CRC’s external program that most directly 

impacts individuals with disabilities is described in our response to Question 4. A large majority 

of the complaints CRC receives, including those alleging disability discrimination, fall outside 

of its jurisdiction. Where possible, those complaints are transferred to an appropriate Federal, 

State, or local authority. CRC also has joint or dual jurisdiction with other Federal agencies (such 

as the Equal Employment Opportunity Commission) over certain complaints and will refer such 

complaints to such other agencies under circumstances specified by regulation and send a letter 

to the complainant indicating why CRC made the referral. See, e.g., 29 CFR 38.80-81.

Complaints that satisfy the four criteria listed previously in this response, and that are not required 

to be transferred to another Federal agency, are accepted for investigation / attempted resolution 

except in rare cases, such as those in which CRC has already issued a decision regarding the 

same facts or those in which the facts alleged by the Complainant, even if true, would not 

112 National Council on Disability
constitute a violation of the laws enforced by CRC. CRC sends letters to Complainants in these 

cases, or otherwise communicates in the method requested by a Complainant with a disability, 

explaining why their complaints will not be accepted for investigation.

Once accepted, individual complaints are usually investigated through written questions and/or 

telephone interviews. For Complainants with disabilities, CRC gives primary consideration to the 

communication method requested by the individual with a disability. For example, in one individual 

disability case, CRC conducted calls via videophone, providing both American Sign Language 

interpreters and Certified Deaf Interpreters at the Complainant’s request.

CRC makes every effort to conduct on-site investigations of complaints alleging systemic 

discrimination. In recent years, the vast majority of such allegations that related to disability 

have involved statewide systems for filing benefits-related claims and appeals, such as those for 

unemployment insurance (UI) or workers’ compensation. However, these cases are comparatively 

rare. Most disability complaints that CRC receives contain individual allegations.

When CRC has investigated a complaint and, based on the evidence, finds no reasonable cause 

to believe that a violation has taken place, CRC will close a case by issuing a Final Determination 

explaining the agency’s reasoning. For a discussion of adjudication and resolution where a violation 

has been found, see our response to Question 9.

7. Does CRC’s process for enforcing Section 188 of the Workforce Innovation and Opportunity Act 

differ from the general investigation and enforcement processes?

No, it does not. CRC uses the same process for enforcing WIOA Section 188 (specified in the 

regulations at 29 CFR Part 38) as it uses to enforce other statutes, including Section 504 and ADA 

Title II.

8. How are investigations prioritized? How are investigators assigned to a charge?

Since at least 2013 to the present, the highest priority for investigation has been given to 

complaints alleging systemic discrimination, particularly those involving disability. The more 

complex cases are assigned to the more experienced investigators to the extent possible; 

otherwise, cases are assigned to investigators on a rotating basis in the order in which the cases 

are identified as suitable for investigation.

9. When a CRC investigation identifies a violation, what is the procedure for resolving the violation?

Generally, where CRC’s interactions with the Respondent during the investigation have indicated 

that the Respondent may be open to a voluntary resolution, then CRC will contact the Respondent 

and offer the opportunity to enter into a settlement agreement before the issuance of a formal 

decision finding a violation. Such an agreement will require the Respondent to make changes 

in order to prevent future discrimination, as well as providing appropriate individual relief to the 

Complainant(s). If the Respondent is not interested in voluntary resolution, or if negotiations 

are unsuccessful, CRC has the option of issuing a formal Initial Determination or Letter of 

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 113
Findings discussing its reasons for concluding that the Respondent has violated the law. Both 

the Complainant(s) and the Respondent will receive copies of such formal documents. At that 

point, the Respondent has another opportunity for voluntary compliance through the signing of a 

Conciliation Agreement.

10. When a CRC investigation identifies a violation and a resolution is not achieved, what is the 

process for enforcement, including DOL enforcement or referral to another agency (e.g., DOJ)? 

What remedies are available?

a. With respect to ADA Title II cases, if the public entity declines to enter into voluntary 

compliance negotiations or if negotiations are unsuccessful, the matter is referred to the 

Attorney General with a recommendation for appropriate action.

b. With respect to cases under WIOA Section 188, if the CRC Director concludes that compliance 

cannot be secured by voluntary means, the Director must either:

i. Issue a final determination of a violation pursuant to 29 CFR §38.96;

ii. Refer the matter to the Attorney General with a recommendation that an appropriate civil 

action be instituted; or

iii. Take such other action as may be provided by law. 29 CFR §38.95.

If compliance is not achieved after issuance of a final determination of a violation, or if a 

conciliation agreement is breached, the Secretary of Labor may:

■ Suspend, terminate, deny, or discontinue WIOA Title I financial assistance, in whole or in part 

(after the opportunity for a hearing) or

■ Take the same actions described in (b)(ii) and (b)(iii) previously.

c. With respect to cases under Section 504, where a recipient of federal financial assistance is 

found to have discriminated against individuals on the basis of disability, the recipient may be 

required to take such remedial action as CRC329 deems necessary to overcome the effects of 

the discrimination. Additionally, where another recipient exercises control over the recipient 

that has discriminated, either or both recipients may be required to take remedial action. 29 

CFR §32.6. If the relevant recipients fail or refuse to do so, the options available to CRC and 

DOL are similar to those under WIOA Section 188. See 29 CFR §32.46.

11. What is the role of mediation in the CRC complaint handling process related to disability 

discrimination? How does the CRC encourage the use of mediation by both the charging party and 

the covered entity? Under what circumstances are professional or private mediators or DOL staff 

mediators used?

In cases deemed appropriate by the CRC Director, CRC may offer Complainants and Respondents 

the option of alternative dispute resolution (ADR). In such circumstances:

a. ADR is voluntary; consent must be given by the Complainant and Respondent before the ADR 

process will proceed.

114 National Council on Disability
b. The ADR will be conducted under the guidance of the Director.

c. ADR may take place at any time after a complaint has been filed, as deemed appropriate by the 

Director.

d. CRC will not suspend its investigation and complaint processes during ADR. [29 CFR §38.85]

In its letters notifying Complainants and Respondents that a particular complaint is being accepted 

for investigation, CRC includes the following statement:

CRC encourages early settlement of complaints. If you wish to settle this complaint, either 

now or at any point before CRC issues a written decision, please inform CRC. CRC will 

conduct discussions, or take other appropriate steps, to ensure that all necessary issues are 

addressed effectively in any conciliation/settlement agreement.

If both the Complainant and the Respondent indicate an interest in settlement at the acceptance 

phase, CRC will conduct ADR or use another appropriate resolution method.

CRC does not use formal mediation for its external cases, through either professional or private 

mediators or DOL staff mediators.

The aforementioned does not preclude CRC from handling negotiations with Respondents where 

it believes a violation of the law may have taken place, in order to ensure that all necessary 

actions are taken to prevent future discrimination. CRC does consult with Complainants to clarify 

what their desired resolution would be in a particular case before entering into such negotiations. 

However, as the CRC represents the interests of the United States, the Complainants are not 

signatories to such agreements, and the final decision re: the terms of the agreements lies 

with CRC.

12. To what extent does CRC pursue agency-initiated compliance reviews or investigations or 

Secretary’s charges in the absence of a complaint of disability discrimination? What is the process 

for such agency-initiated investigations?

CRC’s Office of Compliance Assistance and Policy (OCAP) is generally responsible for conducting 

compliance reviews of entities that are within the jurisdiction of CRC’s external program. 

However, the enactment of WIOA in FY 2014 required OCAP not only to promulgate new 

implementing regulations for the statute’s nondiscrimination provisions, but also to provide 

considerable amounts of training and compliance assistance to State and local Equal Opportunity 

(EO) Officers330 regarding these new regulations. These efforts consumed significant OCAP 

resources during the relevant period, limiting OCAP’s (and CRC’s) ability to conduct compliance 

reviews over the past several years. The procedures for conducting compliance reviews are 

set forth in 29 CFR §§ 38.62-38.64. The procedures include such steps as notification letters; 

submission of information, records, and/or data; desk audits and/or on-site visits, depending upon 

the subject of the review; and issuance of a written document summarizing the findings of the 

review.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 115
13. To what extent does CRC use “testing” or other methods to identify disability discrimination?

To date, CRC has not used unidentified “testers” for on-site visits in disability cases. To the extent 

that OEE has investigated disability cases on site, its investigators have identified themselves 

when arriving at Respondents’ facilities.

In past cases involving respondents’ on-line systems for benefits claims and appeals processing 

(e.g., for state UI benefits), CRC has sought and obtained access to respondents’ systems and 

reviewed them from the perspective of a customer, using screen reader software such as Job 

Access With Speech (JAWS).

14. Are there methods by which more urgent or significant complaints are “triaged” or prioritized for 

different handling?

The CRC Director and the Chief of OEE have the authority to triage or prioritize incoming 

complaints, including those related to disability. Since at least 2013 to the present, the highest 

priority has been given to complaints alleging systemic discrimination, particularly those based on 

disability. As noted previously in our response to Question 6, CRC generally prefers to investigate 

such complaints on site.

15. What is the process by which the CRC engages in conciliation after a “cause” finding?

See response to Question 9.

16. What is the process by which the CRC interacts with other federal agencies to enforce disability 

civil rights laws, especially with Department of Labor’s OFCCP and WHD, the Department of 

Education, and the Department of Justice? What is the process by which the CRC engages with 

the Department of Justice over potential litigation of disability rights complaints?

CRC receives complaint referrals from other federal agencies, particularly the U.S. Department of 

Justice (DOJ). It also refers or transfers complaints, including disability complaints, to other federal 

agencies (including within DOL) where CRC does not have jurisdiction, or where CRC and the 

other agency have dual jurisdiction over the complaint. See 29 CFR 38.81(c); see also response to 

Question 6. With regard to individual employment complaints alleging disability discrimination over 

which CRC would otherwise have jurisdiction, CRC is required to notify the Complainant that the 

complaint will be forwarded to the EEOC for investigation and processing unless the Complainant 

specifies a preference for CRC to handle. See 29 CFR §1640.6. CRC occasionally has informal 

discussions with other agencies, such as the Department of Education, regarding the agencies’ 

respective handling of particular types of complaints, including disability-related complaints.

With regard to potential litigation by DOJ of disability rights complaints under the laws enforced by 

CRC: over the past several years, the process has consisted of informal discussion by staff-level 

employees and managers of each agency of the relative strengths and weaknesses of a particular 

case, along with review by DOJ of relevant documentation. As of the date of these responses, the 

116 National Council on Disability
referral process in disability rights cases has not progressed beyond this point. If DOJ expresses 

an interest in litigation of a particular case, the case will go through a formal referral process, 

pursuant to the regulations implementing the statute(s) at issue.

17. What is CRC’s policy for providing reasonable accommodations during the investigations 

process (e.g. to assist a charging party with a disability? During mediation or settlement 

discussions?)

CRC conducts most of its investigations of individual complaints on a long-distance basis (i.e., 

not on site). Therefore, its focus during the investigation is largely related to providing equally 

effective communications for Complainants with disabilities. See discussion in our response 

to Question 6. To the extent that a Complainant (or a representative of a Respondent) who has 

a disability requests reasonable accommodations, CRC will make every effort to provide such 

accommodations.

18. How does CRC provide training on investigations, negotiations, and enforcement action for CRC 

staff on disability-based discrimination?

During FY 2015, CRC developed and presented an intensive four-day Training Academy for OEE 

staff, and followed up with several stand-alone training sessions. This training was designed 

to bolster staff knowledge of rigorous methods of conducting effective investigations, as well 

as substantive knowledge; it was taught by experts from DOJ’s Civil Rights Division, DOL’s 

own Office of the Solicitor, and other Federal agencies. Subjects covered included disabilitybased discrimination. Since that time, CRC has provided substantive training, and training on 

investigative and enforcement methods, to OEE staff on an ongoing basis. For example, CRC 

takes advantage of periodic training sessions offered by DOJ.

In December 2017, OEE staff attended CRC’s State Level Equal Opportunity Officer Conference 

(training) which included a session by the U.S. Access Board and a disability roundtable (in 

conjunction with ODEP) about the disability-related nondiscrimination provisions in the Section 

188 regulations. The Acting Chief of OEE also held a mandatory training for OEE staff in November 

2017 about the requirements in the Section 188 regulations as they relate to individuals with 

disabilities.

19. What information does CRC provide to the public on its investigation and enforcement process 

and procedures for disability-based complaints?

See CRC website at www.dol.gov/crc, “External Enforcement.” The investigation and enforcement 

processes are described in the WIOA nondiscrimination regulations at 29 CFR §38.69 et seq.

20. What are the overall enforcement and investigatory outcomes of the CRC in regards to disability 

since 2008?

See response to Question 5.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 117
21. How long do complaint investigations, resolutions, and enforcement actions take?

OEE’s focus during the past several fiscal years has been on clearing a backlog of cases. In 

addition, the complexity of each complaint, and hence of the relevant complaint investigation and 

resolution process, varies widely. However, CRC does have standard performance expectations for 

its investigators, including expectations regarding how long each step in the investigative process 

should take, time frames for submission of drafts of Initial and Final Determinations, and target 

dates for achieving resolution following the issuance of an Initial Determination.

22. How timely, at what stages, and by what methods are complainants informed of progress and 

outcomes of their complaints?

Under CRC’s intake procedures and the Section 188 regulations, Complainants are to be notified 

about the status of their complaints, including whether or not the complaint will be accepted 

and investigated by CRC. Notifications are customarily accomplished by either postal mail or 

email, depending on how the complainant has contacted CRC. If a Complainant with a disability 

has requested a particular communication method, CRC will give primary consideration to that 

method. When a complaint has been accepted for investigation, the Complainant is usually 

contacted during the investigation to answer questions and provide documentary evidence, 

as described in our response to Question 6. They are also contacted to the extent appropriate 

during any attempted resolution of a case. See our response to Question 11. If CRC issues a 

written Determination or Letter of Findings on a case, the Complainant will receive a copy. The 

Complainant will also be notified if voluntary resolution has been reached in a case.

23. How has the CRC adjusted its enforcement strategies to address new and emerging employment 

models, such as online job advertising, telecommuting/work-at-home jobs, and the “gig” 

economy?

CRC’s jurisdiction is focused largely on the workforce development system and similar State 

and local entitles that provide employment-related services to individual customers. Therefore, 

subjects such as telecommuting/work-at-home jobs and the “gig” economy usually do not arise 

as issues related to potential discrimination in CRC cases. CRC addresses online job advertising to 

the extent that State and local entities under its jurisdiction provide such advertising through the 

workforce development system. For example, in collaboration with DOL’s Employment and Training 

Administration (ETA), CRC issued several guidance documents to covered entities, cautioning 

them that excluding unemployed individuals (especially the long-term unemployed) and those with 

negative credit histories from employment opportunities, including through electronic job banks/

screening processes, may have a disparate impact on members of particular protected groups, 

including those with disabilities.

Similarly, as discussed in our answers to other questions, CRC has adjusted its enforcement 

strategy to prioritize systemic cases, particularly those alleging discrimination against 

individuals with disabilities. The majority of those cases have involved online systems for filing 

118 National Council on Disability
employment-related benefits claims and appeals, particularly with regard to UI. As with the two 

topics mentioned previously in this response, CRC has partnered with ETA to issue a guidance 

document emphasizing the need to ensure that such systems are accessible to those with 

disabilities, as well as members of other groups.

24. To what extent are enforcement priorities and strategies established by CRC? What are the 

specific enforcement priorities related to people with disabilities?

See responses to Questions 8 and 14.

25. Has the CRC developed a strategic plan? If so, how has the plan been implemented?

CRC is a component agency of DOL’s Office of the Assistant Secretary for Administration and 

Management (OASAM). As such, CRC provides direct support and contributes to DOL’s strategic 

goals and objectives. CRC has an Operating Plan for each fiscal year that contains performance 

measures and milestones. Since FY 2016, for its external enforcement program, CRC has 

prioritized case processing efficiency, and implementation of WIOA Section 188. Both the 

milestones/benchmarks that were established and the targets that were set for key performance 

indicators reflect this prioritization in the Operating Plans for FYs 16, 17 and 18.

26. What is the process by which the CRC identifies issues for, and develops and publicizes, policy 

and sub-regulatory guidance?

CRC’s OCAP is responsible for developing, and working with other DOL agencies to develop, 

policy documents and sub-regulatory guidance for the external program. As discussed in our 

answer to Question 12, OCAP has been primarily focused for the past few fiscal years on 

promulgating regulations implementing WIOA Section 188, as well as on providing training and 

compliance assistance regarding those new regulations. CRC has partnered with other DOL 

agencies to develop and issue such documents as the guidance documents discussed in our 

response to Question 23. CRC has also partnered with DOL’s Office of Disability Employment 

Policy (ODEP) and other DOL agencies to issue a Section 188 Disability Reference Guide for 

entities within the nation’s workforce development system. The Reference Guide is a document 

established through the collaborative efforts of multiple agencies within DOL as well as the 

National Disability Institute’s Lead Center. The Guide is designed to assist American Job Centers 

(AJCs) by providing promising practices (as collected through state memorandum of agreement 

plans, the National Association of State Workforce Agencies, and Disability Employment Initiative 

grantees) that correlate with specific nondiscrimination and equal opportunity requirements of 

WIOA Section 188 and its implementing regulations. While the Guide is focused on AJC programs, 

it is also a useful tool for any entity that desires to ensure nondiscrimination and equal opportunity 

for individuals with disabilities in the workforce development system. CRC and its partner 

agencies are in the process of revising and updating the Guide. These guidance documents are 

issued to appropriate stakeholders within the workforce development system, and are also posted 

on DOL’s website.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 119
CRC intends to identify topics for future policy and guidance documents by tracking emerging 

issues that are raised in requests for compliance assistance and training, as well as those 

identified in complaints or complaint investigations. CRC will also continue to partner with 

other DOL agencies to pinpoint appropriate issues for sub-regulatory guidance and other policy 

documents.

27. What training does the CRC offer or conduct for people with disabilities, their family and friends, 

and service providers about disability rights laws it enforces?

CRC has provided webinars specifically for, or that include, people with disabilities, their 

advocates, and service providers about the Section 188 regulations. CRC has also presented inperson training about other disability-related topics at conferences for those service providers and 

others within the workforce development system.

28. What training does the CRC offer or conduct for covered entities about the disability rights laws it 

enforces?

CRC provides webinars and in person trainings at conferences about the disability rights laws it 

enforces upon request, and as resources permit.

29. How does the CRC publicize the outcomes of its investigations and cases?

CRC publicizes appropriate cases in which conciliation or settlement agreements have been 

reached, through posting on its website and issuance of press releases. CRC does not publicize 

the completion of investigations, or the issuance of Initial Determinations or Letters of Finding, 

because those cases have not yet reached resolution.

30. How does the CRC assess the effectiveness of its dissemination methods?

A comparison of the number of comments received after publication of the Notice of Proposed 

Rulemaking (NPRM) to implement WIOA Section 188 and the number of comments received 

after publication of the Interim Final Rule to implement WIA Section 188 (the predecessor to 

WIOA Section 188) reflects the vast increase in CRC’s public profile over a period of approximately 

twenty years. After the WIA Section 188 Interim Final Rule was published in November 

1999,331 CRC received about 15 comments on the rule, largely from State and local workforce 

agencies. By contrast, CRC received 360 comments on the WIOA Section 188 NPRM.332 These 

comments came from a wide variety of stakeholders, including State and local agencies; religious 

organizations; labor organizations; and civil rights and advocacy groups, such as language access 

organizations and disability rights organizations.

31. What barriers exist that hinder the ability of the CRC to fulfill its mission?

As noted in the preamble to the final rule implementing WIOA Section 188, CRC is particularly 

concerned about the increased integration of, and in some instances complete shift to, 

120 National Council on Disability
online service delivery models in the workforce development system. See 81 FR 87130, 

“Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce 

Innovation and Opportunity Act,” at 87136, “Increased Provision of Services Using Technology, 

Including the Internet.” A 2012 Pew Research Center study cited in that preamble concluded 

that adults with disabilities were significantly less likely to use the Internet than adults 

without disabilities. In addition, complaint investigations conducted by CRC have indicated 

that implementation of such online service delivery models does not always adequately take 

into consideration the needs of individuals with disabilities. At its current resource levels, 

CRC cannot initiate many compliance reviews of the online systems of covered entities to 

determine whether those systems provide sufficient / meaningful access. We are therefore 

reliant on individuals and advocacy organizations to file complaints bringing to our attention 

allegations of potential discrimination in such systems, prompting us to conduct appropriate 

investigations.

32. What changes have occurred in staffing levels since 2008?

As of 9/30/2010, CRC’s OEE had a total of 11 staff members, including eight (8) Equal Opportunity 

Specialists, two (2) Equal Opportunity Assistants, and one (1) Supervisory Equal Opportunity 

Specialist. OCAP had two (2) Equal Opportunity Specialists, one (1) Equal Opportunity Assistant, 

one (1) Special Assistant, one (1) Senior Policy Advisor, and one (1) Supervisory Equal Opportunity 

Specialist.

As of the beginning of Q3, FY 2018, the nine (9) full-time staff members that comprise OEE 

include seven (7) Equal Opportunity Specialists, and two (2) Equal Opportunity Assistants. The 

OEE Supervisory Equal Opportunity Specialist position is currently vacant but the position is 

expected to be filled prior to the end of the fiscal year. In OCAP, there are a total of 6 full-time 

staff, including one (1) Bilingual Administrative Support Specialist, two (2) Equal Opportunity 

Specialists, two (2) Senior Policy Advisors, and one (1) Supervisory Equal Opportunity 

Specialist.

33. What additional steps, not covered previously, has CRC taken in response to the 

recommendations in the 2000 NCD Report, Promises to Keep?

Recommendation 18 in the 2000 NCD Report, Promises to Keep, suggested that the seven 

designated agencies under Title II of the ADA (which includes DOL) should refer Title II cases 

suitable for litigation to the Department of Justice. This issue is discussed in our response to 

question 16.

34. How does CRC identify issues for, and develop and publicize, policy and sub-regulatory guidance 

and case outcomes? How does CRC assess the effectiveness of its dissemination efforts?

See responses to questions 26, 29 and 30.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 121
35. What are the regulatory goals of the CRC for the next two years? What are the sub-regulatory 

guidance goals of CRC for the next two years?

Promulgation of the regulations implementing WIOA Section 188 has been CRC’s primary 

regulatory goal and activity for the past several fiscal years. Now that the WIOA Section 188 final 

rule has been published, CRC’s next regulatory goal is the rescission of the outdated regulations 

implementing the nondiscrimination and equal opportunity provisions of the Job Training 

Partnership Act (the predecessor to WIA). This Act sunsetted on July 1, 2000; therefore, its 

implementing regulations (published at 29 CFR Part 34) are appropriate for rescission.

With regard to sub-regulatory guidance, CRC’s goals for the next two years are not yet defined. 

However, an enforcement strategy for OCAP is to be developed by the end of FY 2018, per CRC’s 

Operating Plan. This strategy may include the development of such guidance.

122 National Council on Disability
Endnotes

1 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990); 42 U.S.C. § 12101, et seq.

(2008).

2 National Council on Disability. 2000. Promises to Keep: A Decade of Federal Enforcement of the Americans 

with Disabilities Act. Washington, DC: National Council on Disability, 20. https://ncd.gov/rawmedia_

repository/497e788f_1ab2_4ae2_b240_4aefa363230c.pdf.

3 Ibid., 1.

4 Ibid., 2.

5 Ibid.

6 Ibid., 5–6.

7 ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553; 154 Cong. Rec. H8,286–8,398 (2008), 

Cong. Rec., S8,342–8,356 (2008).

8 Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (2008).

9 Workforce Innovation and Opportunity Act, Pub. L. No. 113-128, 128 Stat. 1425 (2014).

10 Barry, Dan. 2016. The Boys in the Bunkhouse. New York: HarperCollins.

11 Dart, Justin. Feb. 6, 1992. “Related Quotes by Justin Dart.” Speech given in Toronto, Canada. http://mn.gov/

mnddc/ada-legacy/pdf/related-quotes-by-justin-dart.pdf. (Accessed June 24, 2018).

12 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964).

13 U.S. Equal Employment Opportunity Commission. Strategic Plan for Fiscal Year 2012–2016, 6. https://

www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16.pdf.

14 U.S. Equal Employment Opportunity Commission. 2017 Performance and Accountability Report, Appendix A, 

87–88. https://www.eeoc.gov/eeoc/plan/2017par.cfm.

15 Fed. Reg. 16,978 (March 25, 2011).

16 Ibid.

17 Ibid.

18 Ibid.

19 Ibid.

20 Examples included by the EEOC in the list include the following: “Deafness substantially limits hearing; 

blindness substantially limits seeing; an intellectual disability (formerly termed mental retardation) 

substantially limits brain function; partially or completely missing limbs or mobility impairments requiring 

the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain 

function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; 

diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human 

Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially 

limits neurological function; muscular dystrophy substantially limits neurological function; and major 

depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and 

schizophrenia substantially limit brain function.” 29 C.F.R. § 1630.2.

21 29 C.F.R. Part 1630, App.

22 U.S. Equal Employment Opportunity Commission. “What You Should Know About EEOC Regulations, 

Sub-regulatory Guidance and Other Resource Documents.” https://www1.eeoc.gov//eeoc/newsroom/wysk/

regulations_guidance_resources.cfm?renderforprint=1. (Accessed June 23, 2018).

23 Ibid.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 123
24 U.S. Equal Employment Opportunity Commission. “General Fact Sheet on ADAAA Regulations.” https://

www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm. (Accessed June 23, 2018). U.S. Equal Employment 

Opportunity Commission. “General Q&As on ADAAA.” https://www.eeoc.gov/laws/regulations/ada_qa_final_

rule.cfm. (Accessed June 23, 2018). U.S. Equal Employment Opportunity Commission. Small Business Q&As 

on ADAAA. https://www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm. (Accessed June 23, 2018).

25 U.S. Equal Employment Opportunity Commission. “Living with HIV.” https://www.eeoc.gov/eeoc/publications/

hiv_individual.cfm. (Accessed June 23, 2018).

26 U.S. Equal Employment Opportunity Commission. “Helping Patients Living with HIV at Work.” https://www

.eeoc.gov/eeoc/publications/hiv_doctors.cfm. (Accessed June 23, 2018).

27 U.S. Equal Employment Opportunity Commission. May 9, 2016. “Employer Provided Leave and the Americans 

with Disabilities Act.” https://www.eeoc.gov/eeoc/publications/ada-leave.cfm.

28 U.S. Equal Employment Opportunity Commission. (All of the following accessed June 23, 2018). “EEO 

Laws for Employees Affected by the Zika Virus,” https://www.eeoc.gov/eeoc/publications/zika-eeo-laws.cfm; 

“Questions and Answers About Deafness and Hearing Impairments in the Workplace and the Americans with 

Disabilities Act,” https://www.eeoc.gov/eeoc/publications/qa_deafness.cfm; “Questions & Answers About 

Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act (ADA),” https://

www.eeoc.gov/eeoc/publications/qa_vision.cfm; “Questions & Answers About Diabetes in the Workplace 

and the Americans with Disabilities Act (ADA),” https://www.eeoc.gov/laws/types/diabetes.cfm; “Questions 

& Answers About Epilepsy in the Workplace and the Americans with Disabilities Act (ADA),” https://www

.eeoc.gov/laws/types/epilepsy.cfm; “Questions & Answers About Persons with Intellectual Disabilities in the 

Workplace and the Americans with Disabilities Act (ADA),” https://www.eeoc.gov/laws/types/intellectual_

disabilities.cfm; “Questions & Answers About Cancer in the Workplace and the Americans with Disabilities 

Act (ADA),” https://www.eeoc.gov/laws/types/cancer.cfm; ““Depression, PTSD, & Other Mental Health 

Conditions in the Workplace: Your Legal Rights,” https://www.eeoc.gov/eeoc/publications/mental_health.cfm.

29 U.S. Equal Employment Opportunity Commission. “The Mental Health Provider’s Role in a Client’s Request 

for a Reasonable Accommodation at Work.” https://www.eeoc.gov/eeoc/publications/ada_mental_health_

provider.cfm. (Accessed June 25, 2018).

30 75 Fed. Reg. 68,912 (Nov. 9, 2010).

31 Ibid.

32 Ibid.

33 Ibid.

34 AARP v. EEOC, 267 F.Supp.3d 14, 20 (D.D.C. 2017).

35 Ibid. Specifically, the Affordable Care Act amended the Health Insurance Portability and Accountability Act 

(HIPAA).

36 81 Fed. Reg. 31,143 & 31,126 (May 17, 2016).

37 Ibid.

38 AARP, 267 F.Supp.3d at 21.

39 Ibid.

40 29 U.S.C. § 791.

41 Executive Order 13548 (July 26, 2010).

42 79 Fed. Reg. 27,824 (May 15, 2014).

43 81 Fed. Reg. 9,126 (Feb. 24, 2016).

44 82 Fed. Reg. 654 (Jan 3, 2017).

45 Ibid. Personal assistance services are services that help someone perform basic activities such as eating and 

using the restroom. They are not the same as services that help the person perform job-related tasks, such as 

sign language interpreters or readers for persons who are blind or have learning disabilities.

46 National Council on Disability. Promises to Keep, 163.

47 U.S. Equal Employment Opportunity. Strategic Plan: FY 2018–2022, 2. https://www.eeoc.gov/eeoc/plan/

strategic_plan_18-22.cfm. (Accessed June 25, 2018).

124 National Council on Disability
48 Ibid.

49 U.S. Equal Employment Opportunity. Strategic Plan: FY 2012–2016, 11. https://www.eeoc.gov/eeoc/plan/

strategic_plan_12to16.cfm. (Accessed June 25, 2018).

50 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan: FY 2017–2021, 6. https://

www.eeoc.gov/eeoc/plan/sep-2017.cfm. (Accessed June 25, 2018).

51 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan: FY 2013–2016. https://www

.eeoc.gov/eeoc/plan/sep.cfm. (Accessed June 25, 2018).

52 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan: FY 2017, 9. (Accessed 

June 25, 2018).

53 National Council on Disability. Promises to Keep, 163.

54 Ibid., 241.

55 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan: FY 2017, 6.

56 National Council on Disability. Promises to Keep, A-12.

57 Calculations based on EEOC enforcement data. https://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

58 Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination in employment based on 

race, sex, religion, color, and national origin, while the Age Discrimination and Employment Act prohibits 

discrimination for individuals age 40 or older. Charges based on color increased by 102 percent comparing the 

2000–2008 and 2009–2017 periods, but the increase in the number of charges based on color was 13,265 

compared with an 85,236 increase in charges based on disability. Because GINA did not go into effect until 

2009, comparing those increases against the ADA would not yield a meaningful comparison.

59 The largest disability category for which charges are filed with the EEOC is “other disabilities,” identified in 31 

percent of all ADA charges received by the EEOC since 2000.

60 The EEOC reports zero PTSD cases in FY 2000–2003.

61 U.S. Equal Employment Opportunity Commission. “Definitions of Terms.” https://www.eeoc.gov/eeoc/

statistics/enforcement/definitions.cfm. “Merit resolutions” include “negotiated settlements, withdrawals with 

benefits, successful conciliations, and unsuccessful conciliations.”

62 Calculations based on EEOC enforcement data. https://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

63 National Council on Disability. Promises to Keep, 182–188.

64 U.S. Equal Employment Opportunity Commission. “Questions and Answers About Mediation.” https://www

.eeoc.gov/eeoc/mediation/qanda.cfm. (Accessed June 25, 2018). Researchers interviews with EEOC staff.

65 Ibid.

66 Researchers did not look into whether any variation exists between the quality of the EEOC and contract 

mediators.

67 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan: FY 2017, 9–10.

68 U.S. Equal Employment Opportunity Commission. Public Portal. https://publicportal.eeoc.gov/portal/Login.

aspx?ReturnUrl=%2fportal%2f. (Accessed April 3, 2018).

69 U.S. Equal Employment Opportunity Commission. “How to File a Charge of Employment Discrimination.” 

https://www.eeoc.gov/employees/howtofile.cfm. (Accessed June 25, 2018).

70 The webpage of the California Department of Fair Employment and Housing provides a good example. https://

www.dfeh.ca.gov/complaint-process/file-a-complaint/. (Accessed June 25, 2018).

71 Internal Revenue Service provides such videos. https://www.irs.gov/newsroom/videos-american-signlanguage-asl. (Accessed June 25, 2018).

72 29 C.F.R. § 1601.74. The regulations list 122 FEPAs, but note changes to agencies may occur. The EEOC 

reported to NCD that there are currently 92 FEPAs.

73 EEOC regulations on certification require that the EEOC accept at least 95 percent of the “findings and 

resolutions” of the FEPA. 29 C.F.R. § 1601.75(c). The EEOC is required to evaluate the FEPA at least once 

every three years and to conduct an inquiry if the EEOC rejects more than 5 percent of the FEPA findings 

at the end of the year, or 20 percent or more of the findings within two consecutive quarters. 29 C.F.R. 

§ 1601.78.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 125
74 National Council on Disability. Promises to Keep, 188.

75 U.S. Equal Employment Opportunity Commission. “Fair Employment Practices Agencies (FEPAs) and Dual 

Filing.” https://www.eeoc.gov/employees/fepa.cfm. (Accessed June 25, 2018).

76 The Flesch-Kincaid Grade-Level (FKGL) is “one of the most widely used” automated readability tools.” 

U.S. Government Accountability Office. 2016. Equal Employment Opportunity: Strengthening Oversight 

Could Improve Federal Contractor Nondiscrimination Compliance.” Washington, DC: U.S. Government 

Accountability Office, 4, n. 9.

77 Twelve FEPAs were randomly selected, and their websites were reviewed. The following FEPA websites had 

no clear indication of any workshare arrangement with the EEOC: Alaska Commission for Human Rights, 

Kansas Human Rights Commission, New Hampshire Commission for Human Rights, New Mexico Human 

Rights Commission, Ohio Civil Rights Commission, St. Louis (MO) Civil Rights Enforcement Agency, Utah 

Industrial Commission, Anti–Discrimination Division. The following FEPA websites had minimum mention 

of a role for the EEOC: Dade County (FL) Fair Housing and Employment Commission, Fort Dodge–Webster 

County (IA) Human Rights Commission. The following FEPA websites did mention the workshare agreement 

with the EEOC: Anchorage (AK) Equal Rights Commission, California Department of Fair Employment and 

Housing, and the Idaho Human Rights Commission. The Anchorage Equal Rights Commission was the most 

clear and succinct, informing the public that “the AERC also enforces the Americans with Disabilities Act of 

1990 (ADA–Title I) and Title VII of the Civil Rights Act of 1964 through a work-share agreement with the federal 

Equal Employment Opportunity Commission (EEOC).” https://www.muni.org/Departments/AERC/Pages/

aboutus.aspx.

78 Benaugh v. Ohio Civil Rights ’Comm’n, 278 F. App’x 501, 509–510 (6th Cir. 2008).

79 National Council on Disability. Promises to Keep, 199.

80 U.S. Equal Employment Opportunity Commission. July 7, 2016. Advancing Opportunity, A Review of Systemic 

Programs, 10–11. https://www.eeoc.gov/eeoc/systemic/review/.

81 Ibid.

82 U.S. Equal Employment Opportunity Commission. September 30, 2015. Quality Practices for Effective 

Investigations and Conciliations. https://www.eeoc.gov/eeoc/plan/quality_enforcement_practices.cfm.

83 Ibid.

84 Ibid.

85 U.S. Equal Employment Opportunity Commission, Strategic Enforcement Plan: FY 2017, 10.

86 Ibid.

87 Ibid.

88 Ibid., and data provided by the EEOC.

89 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2, 122 Stat. 3553.

90 National Council on Disability. Promises to Keep, 193.

91 According to the EEOC, approval of the Commissions is required when (1) a case may involve a major 

expenditure of EEOC resources, including staffing and staff time, and/or expenses associated with 

extensive discovery or expert witnesses; (2) a case presents an issue in a developing area of law where 

the Commission has not adopted a position through regulation, policy guidance, Commission decision, or 

compliance manuals, or where the Commission has only recently adopted a position; (3) a case where the 

General Counsel reasonably believes to be appropriate for submission for Commission consideration, for 

example, because of a likelihood for public controversy; and 4) participation as a friend of the court (amicus 

curiae).

92 The EEOC Office of General Counsel publishes an annual report on litigation activity, https://www.eeoc

.gov/eeoc/litigation/reports/index.cfm. The last publicly available report at the time of research for this 

report covered FY 2016. A subsequent report was published for FY 2017. The statistical analysis is based on 

information provided in these annual reports.

93 U.S. Equal Employment Opportunity Commission. Strategic Enforcement Plan FY 2017, 4–5.

126 National Council on Disability
94 EEOC v. Hill Country Farms d/b/a as Henry’s Turkey Service, 899 F. Supp. 2d 827 (S.D. Iowa 2012), aff’d, 564 F. 

’App’x 868 (8th Cir. 2014).

95 U.S. Equal Employment Opportunity Commission. September 17, 2015. “Press Release, Henry’s Turkey 

Service, Heirs Must Turn over Almost $600,000 Owed to Disabled Workers.” https://www.eeoc.gov/eeoc/

newsroom/release/9-17-15b.cfm.

96 Ibid.

97 EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012).

98 EEOC v. Humiston-Kelling, 227 F.3d 1024 (7th Cir. 2000).

99 EEOC v. St. Joseph’s Hospital, 842 F.3d 1333, 1345 (11th Cir. 2016).

100 EEOC v. The Picture People, Inc., 684 F.3d 981 (10th Cir. 2012).

101 EEOC v. AutoZone, Inc., 707 F.3d 824 (7th Cir. 2013).

102 EEOC v. LHC Group, Inc., 773 F.3d 688 (5th Cir. 2014).

103 EEOC v. Womble Carlyle, Sandridge & Rice, LLP, 616 F. App’x. 588 (4th Cir. 2015).

104 EEOC v. AutoZone, Inc., 809 F.3d 916 (7th Cir. 2016).

105 EEOC v. Ford Motor Company, 782 F.3d 753 (6th Cir. 2015).

106 Ibid., 782 F.3d at 757–58.

107 EEOC v. Old Dominion Freight Line, Inc., No. 2:11–CV–02153, 2015 WL 3895095, (W.D. Ark. June 24, 2015).

108 Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012).

109 U.S. Equal Employment Opportunity Commission. November 15, 2016. FY 2016 Performance Accountability 

Report, 38. https://www.eeoc.gov/eeoc/plan/upload/2016par.pdf.

110 Ibid.

111 Barlia v. MWI Veterinary Supply, 479 F.Appx. 439 (6th Cir. 2018).

112 National Council on Disability. Promises to Keep, 391–392.

113 42 U.S.C. § 2000e-5, incorporated by reference in 42 U.S.C. § 12117(a).

114 Memorandum of Understanding Between the U.S. Equal Employment Opportunity Commission and the 

U.S. Department of Justice–Civil Rights Division Regarding ADA and GINA Employment Discrimination 

Charges Against State and Local Governments. July 23, 2015. https://www.eeoc.gov/laws/mous/

eeoc-doj-ada-gina.cfm.

115 U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission, Brief for the United 

States as Amicus Curiae Supporting Neither Party in Dagher v. Washington Metropolitan Area Transit 

Authority, No. 17-2005 (4th Cir.), brief filed Feb. 8, 2018. https://www.justice.gov/crt/case-document/

dagher-v-washington-metropolitan-area-transit-authority-brief-amicus.

116 Memorandum of Understanding Between the U.S. Department of Labor, Wage and Hour Division and The 

U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/laws/mous/dol_wagediv_eeoc.cfm. 

(Accessed June 23, 2018).

117 41 C.F.R. Part 60-742; 29 C.F.R. Part 1641.

118 Memorandum of Understanding Between the U.S. Department of Labor, Office of Federal Contract 

Compliance Programs and the U.S. Equal Employment Opportunity Commission. November 9, 2011. https://

www.eeoc.gov/laws/mous/eeoc_ofccp.cfm.

119 National Council on Disability. Promises to Keep, A-12–A-13.

120 U.S. Equal Employment Opportunity Commission. “No-Cost Outreach Programs.” https://www.eeoc.gov/

eeoc/outreach/nocost.cfm. (Accessed June 25, 2018).

121 U.S. Equal Employment Opportunity Commission. “Training Institute.” https://eeotraining.eeoc.gov/profile/

web/index.cfm?PKwebID=0x2547cce5&varPage=speakers. (Accessed June 25, 2018).

122 U.S. Equal Employment Opportunity Commission. Strategic Plan FY 2012, 27. U.S. Equal Employment 

Opportunity Commission. Strategic Plan for FY 2018, 10.

123 U.S. Equal Employment Opportunity Commission, Office of General Counsel. Fiscal Year 2015 Annual Report. 

Prior Office of General Counsel Annual Reports were used to obtain budget and staffing data.

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 127
124 Employment and Training Administration. “Mission Statement.” https://www.doleta.gov/etainfo/mission.cfm. 

(Accessed June 24, 2018).

125 Workforce Innovation Opportunity Act, Pub. L. 113-128, § 188, 128 Stat. 1425, 1597–98 (2014).

126 Employment and Training Administration. “Expanding Apprenticeship for Individuals with Disabilities.” https://

apprenticeshipusa.workforcegps.org/resources/2017/03/10/16/09/Expanding-Apprenticeship-for-Individualswith-Disabilities. (Accessed June 24, 2018). Office of Disability Employment Policy. “Apprenticeship.” https://

www.dol.gov/odep/topics/youth/Apprenticeship.htm. (Accessed June 24, 2018).

127 Chamberlain, Anne, et al. 2017. Evaluating the Accessibility of American Job Centers for People with 

Disabilities, Final Report. Washington, DC: U.S. Department of Labor. http://www.impaqint.com/sites/default/

files/files/AJC-Accessibility-Study.pdf.

128 Extensive information on the WIOA performance measures is available at Department of Labor Performance 

and Results. www.doleta.gov/performance. (Accessed June 25, 2018).

129 The reporting categories are Physical/Chronic Health Condition; Physical/Mobility Impairment; Mental 

or Psychiatric disability; Vision-related disability; Hearing-related disability; Learning disability; Cognitive/

Intellectual disability; Participant did not disclose type of disability.

130 Office of Disability Employment Policy. “ODEP Year by Year: 2001.” https://www.dol.gov/odep/history/2001.htm. 

(Accessed June 25, 2018).

131 National Council on Disability, Promises to Keep, 2000, 363.

132 Office of Disability Employment Policy, “About ODEP.” https://www.dol.gov/odep/about/. (Accessed June 23, 

2018).

133 Ibid.

134 Ibid.

135 Ibid.

136 U.S. Department of Labor, FY 2018–22 Strategic Plan, 14. https://www.dol.gov/sites/default/files/budget/2019/

FY2018-2022StrategicPlan.pdf. (Accessed June 25, 2018).

137 Ibid., 14–15.

138 Office of Disability Employment Policy, “ODEP Year by Year: 2009.” https://www.dol.gov/odep/history/2009.htm. 

(Accessed June 25, 2018).

139 Ibid.

140 Office of Disability Employment Policy, “ODEP Year by Year: 2010.” https://www.dol.gov/odep/history/2010.htm. 

(Accessed June 25, 2018).

141 Office of Disability Employment Policy, “ODEP Year by Year: 2011.” https://www.dol.gov/odep/history/2011.htm. 

(Accessed June 25, 2018).

142 Office of Disability Employment Policy, “ODEP Year by Year: 2012.” https://www.dol.gov/odep/history/2012.htm. 

(Accessed June 25, 2018).

143 Ibid.

144 Office of Disability Employment Policy. “ODEP Year by Year: 2013.” https://www.dol.gov/odep/history/2013.htm. 

(Accessed June 25, 2018).

145 Office of Disability Employment Policy. “ODEP Year by Year: 2014.” https://www.dol.gov/odep/history/2014.htm. 

(Accessed June 25, 2018).

146 Office of Disability Employment Policy. “ODEP Year by Year: 2015.” https://www.dol.gov/odep/history/2015.htm. 

(Accessed June 25, 2018).

147 Ibid.

148 ODEP Year by Year. https://www.dol.gov/odep/history/.

149 U.S. Department of Labor. “FY 2019 Congressional Budget Justification,”ODEP-9. https://www.dol.gov/sites/

default/files/budget/2019/CBJ-2019-V3-03.pdf. (Accessed June 25, 2018).

150 U.S. Department of Labor. “FY 2018 Budget in Brief,” 35. https://www.dol.gov/sites/default/files/FY2018BIB

.pdf. (Accessed June 15, 2018).

128 National Council on Disability
151 ODEP and WHD worked closely to manage the Advisory Committee on Increasing Competitive Integrated 

Employment for Individuals with Disabilities. ODEP worked with the OFCCP to develop regulations under 

Section 503 and to provide technical assistance.

152 For example, ODEP works with the Department of Education’s Office of Special Education and 

Rehabilitation Services and Rehabilitation Services Administration on youth transition issues. ODEP works 

with RSA on enhancing career pathway opportunities and on WIOA issues, customized employment, and 

discovery.

153 Participating agencies should include the Rehabilitation Services Administration and the Office of Special 

Education Programs at the Department of Education; the Vocational Rehabilitation and Employment program 

at the Department of Veterans Affairs; the EEOC; DOJ’s Civil Rights Division; Centers for Medicare and 

Medicaid Services, Substance Abuse and Mental Health Services Administration, and Administration on 

Community Living at the Department of Health and Human Services; Social Security Administration; Office of 

Personnel Management; along with ETA, OFCCP, and WHD.

154 U.S. Department of Labor. “FY 2017 Congressional Budget Justification: Office of Disability Employment 

Policy.” https://www.dol.gov/sites/default/files/documents/general/budget/CBJ-2017-V3-03.pdf. (Accessed 

June 25, 2018).

155 U.S. Department of Labor. “FY 2018 Congressional Budget Justification: Office of Disability Employment 

Policy,” ODEP-17. https://www.dol.gov/sites/default/files/CBJ-2018-V3-03.pdf.

156 Job Accommodation Network. “About JAN.” https://askjan.org/links/about.htm. (Accessed June 24, 

2018).

157 Partnership on Employment and Accessible Technology. “Policy Matters.” http://www.peatworks.org/policymatters. (Accessed June 24, 2018).

158 U.S. Department of Labor. “FY 2018 Budget Justification,” ODEP-17.

159 Ibid.

160 Outreach and technical assistance statistics were provided by ODEP.

161 U.S. Department of Labor. “FY 2018 Budget Justification.”

162 Consolidated Appropriations Act, 2018, Division H, Title I, Pub. L. No. 115-141, 132 Stat. 348, 706. https://

www.gpo.gov/fdsys/pkg/BILLS-115hr1625enr/html/BILLS-115hr1625enr.htm.

163 U.S. Department of Labor. “FY 2018 Budget Justification,” ODEP-2.

164 U.S. Department of Labor. “FY 2019 Congressional Budget Justification,” ODEP-2. https://www.dol.gov/sites/

default/files/budget/2019/CBJ-2019-V3-03.pdf.

165 Ibid., ODEP-4.

166 Ibid., ODEP-8.

167 Ibid., ODEP-6.

168 Ibid.

169 National Council on Disability. Promises to Keep, 190–192.

170 Vietnam Era Veterans’ Readjustment Assistance Act, Pub. L. No. 93-508, 88 Stat. 1578 (1974); 38 U.S.C. 

§§ 4211–4212.

171 29 U.S.C. § 793.

172 U.S. Department of Labor, Office of Federal Contract Compliance Programs, Regional Offices. https://www

.dol.gov/ofccp/contacts/regkeyp.htm. District and Area Offices. https://www.dol.gov/ofccp/contacts/ofnation2

.htm.

173 Section 503 was originally applicable to contracts of more than $10,000. In 2010, the dollar threshold was 

raised by the Federal Acquisition Regulatory Council. U.S. Government Accountability Office. 2016. Equal 

Employment Opportunity: Strengthening Oversight Could Improve Federal Contractor Nondiscrimination 

Compliance. Washington, DC: U.S. Government Accountability Office, 40, n. 3. https://www.gao.gov/products/

GAO-16-750.

174 41 C.F.R. § 60-741.40(b).

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 129
175 U.S. Government Accountability Office. Strengthening Oversight Could Improve Federal Contractor 

Nondiscrimination Compliance, 1. OFCCP calculated a higher end estimate of 251,300 contractor 

establishments covered under Section 503. 78 Fed. Reg. 58,714 (Sept. 24, 2013).

176 75 Fed. Reg. 43, 116 (July 23, 2010).

177 78 Fed. Reg. 58, 685. (Sept. 24, 2013).

178 76 Fed. Reg. 77, 056 (Feb. 12, 2013), 77 Fed. Reg. 7, 108 (Feb. 10, 2012).

179 78 Fed. Reg. 58, 681–58, 752 (Sept. 24, 2013).

180 Ibid., 58, 696–58, 697; 58, 702–58, 703.

181 Ibid., 58, 681.

182 Ibid., 58, 703–58, 710.

183 Ibid., 58, 686.

184 Ibid., 58, 691–92.

185 Ibid., 58, 688.

186 Ibid., 58, 694.

187 Ibid., 58, 686.

188 Ibid.

189 U.S. Department of Labor, Office of Federal Contract Compliance Programs. October 2014. Federal Contract 

Compliance Manual, 3–4. https://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf. 

(Accessed June 25, 2018).

190 Ibid.

191 Statistical analysis and calculations conducted by the researchers based on data provided by OFCCP, and 

data available at U.S. Department of Labor, Data Enforcement, OFCCP Compliance Evaluation and Complaint 

Investigations Data. https://enforcedata.dol.gov/views/data_summary.php.

192 Ibid.

193 U.S. Government Accountability Office. Strengthening Oversight Could Improve Federal Contractor 

Nondiscrimination Compliance, 17.

194 Ibid., 17.

195 Ibid., 19–20.

196 Ibid., 24.

197 Ibid., 26.

198 Ibid.

199 Ibid., 29.

200 Ibid., 28–29.

201 Ibid.

202 Ibid.

203 Ibid., 35.

204 Ibid., 10, n. 26.

205 U.S. Department of Labor. “Wage and Hour Division website.” https://www.dol.gov/WHD/. (Accessed June 

25, 2018).

206 U.S. Department of Labor. “Wage and Hour Division Mission Statement.” https://www.dol.gov/whd/about/

mission/whdmiss.htm. (Accessed June 25, 2018).

207 29 U.S.C. § 214(c).

208 29 C.F.R. §§ 525.7, 525.8, 525.9, 525.11, 525.12, and 525.13.

209 U.S. Department of Labor, Wage and Hour Division. October 17, 2017. Field Operations Handbook, Chapter 64, 

§§ 64b00 and 64d00. https://www.dol.gov/whd/FOH/FOH_Ch64.pdf.

210 29 C.F.R. Part 525.

211 U.S. Department of Labor, Wage and Hour Division. July 27, 2016. “Field Assistance Bulletin 2016–2.” https://

www.dol.gov/whd/FieldBulletins/fab2016_2.htm.

130 National Council on Disability
212 29 U.S.C. § 794g.

213 34 C.F.R. § 397.3.

214 79 Fed. Reg. 9851-54 (Feb. 12, 2014); 29 C.F.R. Part 10.

215 U.S. Government Accountability Office. 2001. Special Minimum Wage Program: Centers Offer Employment 

and Support Services to Workers with Disabilities, But Labor Should Improve Oversight. Washington DC: U.S. 

Government Accountability Office. https://www.gao.gov/products/GAO-01-886.

216 Ibid.

217 29 U.S.C. § 214(c)(5).

218 Magers, Steward and Felton v. Seneca Re-Ad Industries, No. 2016-FLS-2 (Dept. of Labor Feb. 2, 2016).

219 Ibid.

220 Magers et al., v. Seneca Re-Ad, ARB Case Nos. 16-038, 16-054 (Dept. of Labor Administrative Review Board, 

Jan. 12, 2017). https://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/FLS/16_038.FLSP.PDF. 

(Accessed June 24, 2018). Seneca Re-Ad v. Hughler, No. 3:17-CV-00281 (N.D. Ohio, filed Feb. 10, 2017).

221 Wage and Hour Division Form 226. https://www.dol.gov/whd/forms/wh226.pdf. Ibid. See first representation 

and assurance on form.

222 U.S. Department of Labor. “FY 2017 Congressional Budget Justification,” WHD-11. https://www.dol.gov/sites/

default/files/documents/general/budget/CBJ-2017-V2-09.pdf. (Accessed June 24, 2018).

223 U.S. Department of Labor. FY 2018-2022 Strategic Plan, 22–23. https://www.dol.gov/sites/dolgov/files/legacyfiles/budget/2019/FY2018-2022StrategicPlan.pdf. (Accessed August 2, 2018).

224 U.S. Department of Labor. “FY 2018 Budget in Brief,” 25. https://www.dol.gov/sites/default/files/FY2018BIB.

pdf. (Accessed June 25, 2018).

225 U.S. Department of Labor. “FY 2017 Budget Justification,” WHD-13.

226 David Weil, David. 2010. Improving Workplace Conditions Through Strategic Enforcement. A Report 

to the Wage and Hour Division. Boston MA: Boston University. http://www.dol.gov/whd/resources/

strategicEnforcement.pdf.

227 Wage and Hour investigations often involve the concurrent enforcement of multiple statutes. For example, if 

a case is initiated under Section 14(c) of the FLSA, the investigation may also uncover violations under other 

statutes such as the Service Contract Act, the Public Contracts Act, etc. Therefore, duplication may exist in 

WHD’s data (case counts by violation of one or several laws).

228 U.S. Department of Labor. July 13, 2013. “Press Release: US Labor Department Moves to Protect Workers 

with Disabilities in Crackdown on Rhode Island Employer.” https://www.dol.gov/newsroom/releases/whd/

whd20130613.

229 Ibid.

230 The SCA requires federal contractors to pay workers, including contractors and subcontractors, performing 

services on federal contracts specified prevailing wage rates and fringe benefits.

231 SourceAmerica is a subsidiary organization, along with the National Industries for the Blind, of the U.S. 

AbilityOne program, the nation’s mandatory sole-source set aside program for goods and services supplied to 

the Federal Government by community rehabilitation programs including workers with disabilities. Likewise, 

the West Virginia State Use program is the state’s mandatory set aside contracting program wherein nonprofit 

community rehabilitation programs make goods or perform services for the state government.

232 U.S. Department of Labor. April 23, 2018. “Press Release, U.S. Department of Labor Acts to Protect 

Individuals with Disabilities from Workplace Exploitation.” https://www.dol.gov/newsroom/releases/whd/

whd20180423.

233 Workforce Innovation and Opportunity Act, Pub. L. 113-128, § 458, 128 Stat. 1425, 1676 (2014), adding § 511 

to the Rehabilitation Act of 1973; 29 U.S.C. § 794g.

234 U.S. Department of Labor, Wage and Hour Division, School Work Experience Programs (SWEPs) List. 

January 1, 2018. https://www.dol.gov/whd/specialemployment/SWEPlist.htm.

235 Olmstead v. L.C., 527 U.S. 581 (1999).

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 131
236 Workforce Innovation and Opportunity Act, Pub. L. 113-128, § 422, 128 Stat. 1425, 1657 (2014).

237 U.S. Department of Labor, Wage and Hour Division. “Frequently Asked Questions: How to File a Complaint.” 

https://www.dol.gov/whd/faq.htm. (Accessed June 24, 2018).

238 Data provided by WHD. Section 14(c) outreach data shows the number of outreach events per year that were 

specifically geared toward the program. The Division may mention Section 14(c) as part of its overall FLSA 

outreach events but does not go into detail about the provision.

239 Ibid.

240 United States v. Rhode Island and City of Providence, Case No. 13-442 (D.R.I., filed June 13, 2013), https://

www.ada.gov/olmstead/olmstead_cases_list2.htm#ri.

241 U.S. Department of Labor. January 30, 2017. “Press Release: US Department of Labor Secures More Than 

$250,000 in Back Wages for Student Workers with Disabilities in Providence, R.I.” https://www.dol.gov/

newsroom/releases/whd/whd20140130.

242 U.S. Department of Labor, Wage and Hour Division. August 26, 2016. “Letter to Certificate Holders.” https://

www.dol.gov/whd/specialemployment/14cLetter_July2016.htm. 34 C.F.R. § 397.2(a)(3).

243 Ibid.

244 Family and Medical Leave Act of 1993, Pub. L. 103-3, 107 Stat. 6. 29 U.S.C. § 2601.

245 Ibid.

246 73 Fed. Reg. 67,934 (Nov. 17, 2008).

247 U.S. Department of Labor, Wage and Hour Division. FMLA Data. https://www.dol.gov/whd/data/datatables.

htm#panel5.

248 29 C.F.R. § 825.300.

249 U.S. Access Board. “About the U.S. Access Board.” https://www.access-board.gov/the-board. (Accessed June 

24, 2018).

250 29 U.S.C. § 792.

251 42 U.S.C. §§ 4151, et seq.

252 U.S. General Accounting Office. 1975 Report to Congress: Further Action Needed to Make All Public Buildings 

Accessible to The Physically Handicapped. Washington, DC: Government Accounting Office, 6. https://www

.gao.gov/assets/120/115137.pdf.

253 Ibid., 35.

254 Ibid.

255 In the period 2008–2018, it has convened committees on telecommunications and electronic and information 

technology (2006–2008); emergency transportable housing (2007–2008); passenger vessels emergency 

alarms (2007-2008); medical diagnostic equipment accessibility standards (2012–2013); and rail vehicles 

access (2013–2015).

256 U.S. Access Board. “Fiscal Year 2019 Budget Justification.” https://www.access-board.gov/the-board/

budget-and-performance/budget-justification. (Accessed June 25, 2018).

257 Ibid., 12. A prior advanced notice of a proposed rule on self-service transaction machines (e.g., kiosks, pointof-sale machines, self-checkout machines) is no longer on the Board’s agenda.

258 Architectural and Transportation Barriers Compliance Board. ADA Accessibility 

Guidelines for Passenger Vessels, RIN 3014-AA11. https://www.reginfo.gov/public/do/

eAgendaViewRule?pubId=201710&RIN=3014-AA11. (Accessed June 25, 2018). Accessibility Guidelines 

for Pedestrian Facilities in the Public Right-of-Way, RIN 3014-AA26. https://www.reginfo.gov/public/do/

eAgendaViewRule?pubId=201710&RIN=3014-AA26. (Accessed June 25, 2018).

259 Architectural and Transportation Barriers Compliance Board. “Historical Unified Regulatory Agenda,” 

RIN 3014-AA11. https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201610&RIN=3014-AA11. 

(Accessed June 25, 2018).

260 Architectural and Transportation Barriers Compliance Board, Historical Unified Regulatory Agenda, 

RIN 3014-AA26. https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201610&RIN=3014-AA26. 

(Accessed June 25, 2018).

132 National Council on Disability
261 Executive Order 13771. January 30, 2017. https://www.federalregister.gov/documents/2017/02/03/2017-02451/

reducing-regulation-and-controlling-regulatory-costs.

262 Access Board. “Completed Research.” https://www.access-board.gov/research/completed-research. 

(Accessed June 25, 2018).

263 GSA Government-wide IT Accessibility Program. “Monitoring and Report.” https://section508.gov/manage/

reporting. (Accessed June 25, 2018).

264 29 U.S.C. § 794d(d).

265 Department of Justice. “Section 508 Home Page.” https://www.justice.gov/crt/section-508-home-page-0. 

(Accessed June 25, 2018).

266 29 U.S.C. § 794d(a)(3).

267 36 C.F.R. §1150.41(e).

268 Summary of FY 2016 Federal Real Property Profile (FRPP) Open Data Set, 1. https://www.gsa.gov/cdnstatic/

FY2016_FRPP_Summary_of_Findings_Real_Property_Data_Set.pdf. (Accessed June 25, 2018).

269 36 C.F.R. § 1150.3; 36 C.F.R. § 1150.41.

270 36 C.F.R. § 1150.11.

271 36 C.F.R. § 1150.12.

272 36 C.F.R. § 1150.41.

273 Ibid.

274 36 C.F.R. § 1150.42(a).

275 Ibid. at § 1150.42(c).

276 36 C.F.R. § 1150.43.

277 36 C.F.R. §§ 1150.12; 1150.13.

278 29 U.S.C. § 792(e)(1).

279 Ibid.

280 29 U.S.C. § 792(e)(2).

281 36 C.F.R. § 1150.41(f).

282 36 C.F.R. § 1150.41(f).

283 36 C.F.R. § 1150.41(h)(2)(i).

284 Access Board Sample Corrective Action Letter to Complainant and Sample Complaint Closing Letter, available 

from the researchers.

285 Matters resolved later than 180 days are usually within 360 days, owing to bureaucratic processes related to 

approvals, contracting, procurement, design, and construction at the relevant agencies.

286 Ibid., 5.

287 Federal members are from the Department of Health and Human Services, Department of Defense, 

Department of Housing and Urban Development, Department of Commerce, Department of Justice, United 

States Postal Service, Department of Labor, Department of Education (currently vacant), Department of the 

Interior (currently vacant), Department of Transportation (currently vacant), Department of Veterans Affairs 

(currently vacant), and General Services Administration (currently vacant).

288 Ibid., 3–4. The standard setting agencies are the Department of Defense, Government Services 

Administration, Department of Housing and Urban Development, and the United States Postal Services).

289 Ibid., 4.

290 Ibid.

291 Ibid.

292 Ibid., 5.

293 Ibid.,16. https://www.accessibilityonline.org/ao/archives/.

294 U.S. Access Board. November 10, 2017. Performance and Accountability Report 2017. https://www.accessboard.gov/the-board/budget-and-performance/performance-and-accountability-report.

295 U.S. Access Board. “Fiscal Year 2019 Budget Justification,” Appendix A. https://www.access-board.gov/theboard/budget-and-performance/budget-justification#A. (Accessed June 23, 2018).

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 133
296 Ibid.

297 National Council on Disability. Promises to Keep, 2.

298 Ibid., 236.

299 Ibid., 389.

300 U.S. Equal Employment Opportunity Commission. “Budget and Staffing History 1980 to Present.” https://

www.eeoc.gov/eeoc/plan/budgetandstaffing.cfm. (Accessed June 23, 2018).

301 Ibid.

302 U.S. Department of Labor. “FY 2018 Congressional Budget Justification Office of Disability Employment 

Policy,” ODEP-2. https://www.dol.gov/sites/default/files/documents/general/budget/CBJ-2018-V2-09.pdf.

303 U.S. Department of Labor, Office of Federal Contract Compliance Programs. “Congressional Budget 

Justification FY 2014,” 10.

304 Ibid.

305 U.S. Department of Labor. “FY 2017 Congressional Budget Justification,” WHD-11. https://www.dol.gov/sites/

default/files/documents/general/budget/CBJ-2017-V2-09.pdf

306 42 U.S.C. § 4151, et seq.

307 29 U.S.C. §§ 701–796.

308 U.S. Equal Employment Opportunity Commission. “Questions and Answers: The EEOC’s Final Rule 

on Affirmative Action for People with Disabilities in Federal Employment.” https://www.eeoc.gov/laws/

regulations/qanda-ada-disabilities-final-rule.cfm. (Accessed June 25, 2018).

309 Government Services Administration. GSA Section 508 and Accessibility. https://www.gsa.gov/about-us/

organization/office-of-the-chief-information-officer/office-of-enterprise-planning-and-governance/

gsa-section-508-and-accessibility.

310 42 U.S.C. § 12101 (July 26, 1990).

311 29 U.S.C. § 794.

312 Pub. L. No. 110-325, 42 U.S.C. § 12101, as amended.

313 U.S. Equal Employment Opportunity Commission. “The Americans with Disabilities Amendments Act of 

2008.” https://www.eeoc.gov/laws/statutes/adaaa_info.cfm. (Accessed June 23, 2018).

314 29 U.S.C. § 201, et seq.

315 Ibid.

316 42 U.S.C. § 2601, et seq.

317 42 U.S.C. § 2000ff.

318 29 U.S.C. § 3101, et seq.

319 U.S. Department of Labor, Wage and Hour Division. July 2016. “Fact Sheet #39H: The Workforce Innovation 

and Opportunity Act and Limitations on Payment of Subminimum Wages under Section 14(c) of the Fair Labor 

Standards Act.” https://www.dol.gov/whd/regs/compliance/whdfs39h.pdf.

320 National Council on Disability. Promises to Keep, 29–30.

321 Ibid., 2.

322 Ibid., 389.

323 Ibid.

324 Ibid., A-11–A-19.

325 Ibid., A-29–A-32.

326 U.S. Department of Labor, Data Enforcement, OFCCP Compliance Evaluation and Complaint Investigations 

Data. https://enforcedata.dol.gov/views/data_summary.php. (Accessed June 25, 2018).

327 Generally, a Conciliation Agreement is the document that CRC will use to achieve voluntary compliance after 

it has issued a Letter of Findings, Initial Determination, or similar document finding that a respondent has 

violated the law, e.g., 29 CFR 38.91, 38.93. A Settlement Agreement is used to achieve voluntary compliance 

in cases in which no formal finding of violation has been issued. All of CRC’s Conciliation Agreements and 

Settlement Agreements require the entities involved to take appropriate remedial actions.

134 National Council on Disability
328 This case has not yet been resolved. CRC is working with DOL’s Office of the Solicitor, and previously 

consulted with the U.S. Department of Justice Civil Rights Division’s Disability Rights Section, to determine 

appropriate next steps.

329 Although the regulatory language refers to “the Assistant Secretary,” this authority has been delegated to 

CRC by Secretary’s Order.

330 See 29 CFR §§38.28 through 38.33.

331 See 64 FR 61692 (Nov. 12, 1999).

332 See 81 FR 87130 (Dec. 2, 2016).

Has the Promise Been Kept? Federal Enforcement of Disability Rights Laws 135
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