In my last article for the The OFCCP Digest, I wrote about the changing perceptions of race, ethnicity, and gender and how these changes may affect regulatory compliance. For federal contractors and subcontractors, there are two remaining classes that are protected under the federal affirmative action laws: certain classes of veterans and individuals with disabilities. While changes affecting these classes may not be as complex as those affecting race, ethnicity, and gender, there are definitional issues that organizations face as they attempt to meet their obligations towards protected veterans and individuals with disabilities.

Defining “Protected Veteran”

At several meetings associated with Industry Liaison Group national conferences, I’ve heard people ask “Why aren’t organizations required to provide affirmative action for all classes of veterans?” The answer we received from representatives of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is “The law only protects certain classes of veterans.” This was the obvious and logical answer to what seemed to be a closed question.

The classes of veterans protected by the federal affirmative action laws have changed over time. When the law requiring affirmative action for certain classes of veterans was passed in 1974, it protected only two classes of veterans: Vietnam era veterans and disabled veterans. The primary purpose of this law, the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), was to rectify the discrimination that Vietnam veterans were facing upon their return to the United States after fighting in the Vietnam War. The law was meant to recognize the service and contributions made by veterans who had been involved in the Vietnam conflict and other veterans who had been in harm’s way.

VEVRAA has been modified on a number of occasions and now covers the following classes of veterans:

The largest class of veterans covered by VEVRAA appears to be veterans who have been on active service in a war zone such as Korea, Vietnam, Afghanistan, or Iraq during the time U.S. troops were involved in combat activities in those areas.

It is interesting to note that after various modifications to VEVRAA and its accompanying regulations, Vietnam era veterans as a group are no longer covered as a specific protected class of veterans. However, even after modifications to VEVRAA, many of us continue to think of VEVRAA as a law that primarily protected veterans who had potentially been in harm’s way.

OFCCP Reinterprets the Definition of Protected Veteran

In August of 2015, OFCCP released an infographic that includes a number of questions meant to help veterans determine if they are protected by the federal affirmative action regulations. One of these questions is “Did you serve on active duty during one or more of the periods of war outlined in 38 U.S.C. Section 101?” The infographic includes a footnote regarding this question that mentions several specific periods of war, including the period from August 5, 1964 to May 7, 1975 (i.e. the Vietnam era), and the period from August 2, 1990 until the present (i.e. the Persian Gulf War era).

The phrase “periods of war” is different than the language in OFCCP’s regulations for protected veterans. OFCCP’s regulations use the phrase “served on active duty in the U.S. military, ground, naval or air service during a war” to define which veterans are covered as active duty wartime veterans. While the distinction between “served on active duty...during a war” and “served on active duty during one or more...periods of war” may seem trivial, it appears to have significantly expanded the interpretation of “active duty wartime or campaign badge veterans.” Like others in the contractor community, OFCCP previously seemed to interpret the classification active duty wartime or campaign badge veterans as including veterans who served in an active combat zone and thus were potentially in harm's way. OFCCP's infographic, on the other hand, suggests that someone who served during a time when a military conflict was occurring should also be considered an active duty wartime or campaign badge veteran regardless of whether the veteran was in harm's way during his or her service.

There are two groups of veterans who seem to be particularly affected by OFCCP's expanded interpretation of protected veteran. One group consists of the veterans who served during the Vietnam era. While the category “Veteran of the Vietnam Era” was removed from most of OFCCP's protected veterans regulations in 2007, veterans who were awarded a campaign badge for active service in Vietnam and surrounding countries were still covered as active duty wartime or campaign badge veterans. According to the infographic, however, it appears that all Vietnam era veterans are covered as protected veterans even if they did not serve in an area where they were in harm’s way. The other group of veterans who are particularly affected by the infographic are veterans who have served since August of 1990. Until the release of the infographic, it appeared that veterans who did not specifically serve in Iraq, Afghanistan, or another area where they were in harm's way were not covered as “active duty wartime or campaign badge veterans.” Now, all veterans who have served on active duty since August of 1990 appear to be covered.

While OFCCP may suggest that all veterans who served during a period of war were always covered as protected veterans, the infographic’s reinterpretation of who is an active duty wartime veteran was a surprise to many people working in the affirmative action field. OFCCP’s infographic turned VEVRAA into a law protecting all veterans who have served since August of 1990 and protecting many additional veterans who seemed to have lost or never received coverage under the law.

Defining “Individual with a Disability”

When the Rehabilitation Act was passed in 1973, Section 503 of the act required federal contractors and subcontractors to take affirmative action to “employ and advance in employment handicapped individuals.” The term “handicapped individual” was defined as “any individual who (a) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (b) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to...this act.”

Like VEVRAA, Section 503 and the regulations implementing Section 503 have undergone a number of modifications. One of the changes replaced the term “handicapped individual” with the term “individual with a disability.” Until the most recent revisions to the regulations under Section 503, the term “individual with a disability” was defined as any person who:

The revisions to the Section 503 regulations that became final in September of 2013 made many changes to the way in which federal contractors and subcontractors are required to implement Section 503. Among these changes are changes meant to conform the Section 503 regulations to the Americans with Disabilities Act (ADA) amendments that became effective in 2009. The revised Section 503 regulations included new language that recognized the broad definition of what might constitute a disability that became effective with the ADA amendments.

OFCCP’s primary objective in making changes to its Section 503 regulations was to “reduc[e] the employment disparity between those with and without disabilities.” OFCCP cited statistics in the preamble to the revised regulations that purported to show that individuals with disabilities have a much higher unemployment rate than other individuals. OFCCP also cited a study showing that having a disability is associated with lower earnings potential.

Outgrowths of the Current Definition of Disability

One of the things the federal government has understood about disability is that disability is not an unchanging characteristic of an individual. While sex and race have, until recently, typically been considered to be immutable characteristics, there has been a recognition that a person can easily become an individual with disability at any time.

What OFCCP did not consider when it adopted the ADA amendments definition of disability is that the new definition of disability means that a very significant percentage of every workforce might be considered individuals with disabilities. The form OFCCP has developed to allow applicants and employees to self-identify as an individual with a disability helps to show how encompassing the new definition of disability is. The form provides the following examples of disabilities:

This is not a complete list, and yet it potentially includes an extraordinary number of individuals and types of disabilities. In addition, an individual with a disability can be someone who previously had one or more of the conditions listed above or various other physical or mental impairments even if the individual is not currently dealing with the effects of the impairment. This further expands the number of persons who might qualify as an individual with a disability.

Even with such an expansive definition of disability, many federal contractors and subcontractors have been unable to meet OFCCP’s disability utilization goal that was adopted with the most recent revision to the Section 503 regulations. Applicant data for most federal contractors and subcontractors similarly tends to show a limited number of individuals with disabilities who are expressing interest in open positions. A major problem appears to involve the reluctance of applicants and employees to self-identify as individuals with disabilities rather than the failure by organizations to recruit and employ individuals with disabilities.

A separate issue regarding disability involves the failure to recognize the fact that not all disabilities are the same. In the proposed version of the revisions to the Section 503 regulations, OFCCP discussed an important issue that failed to appear in the final version of these regulations: that there is not a simple, binary distinction between who is and who is not an individual with a disability. In its proposed regulations, OFCCP had suggested the possibility of establishing a utilization goal for individuals with a “severe” disability. “Severe” disabilities would have potentially included impairments such as total deafness, blindness, missing extremities, complete paralysis, and epilepsy. By suggesting there could be severe disabilities, OFCCP realized that an individual with a disability could appear at various points on a spectrum regarding disability rather than falling into an either/or category of disabled or not disabled. The final version of OFCCP’s revised Section 503 regulations failed to include this idea that disability is not an either/or category. Instead, all disabilities are effectively treated in the same manner. There is no distinction made between the applicant or employee who has a mild form of diabetes that is well-controlled through use of medication and the employee who is totally blind. This means there is no incentive for employers to recruit and hire individuals whose more severe disabilities may make it difficult for them to find employment, partially defeating OFCCP’s purpose for revising its regulations.

Considerations Regarding Protected Veteran Status and Disability Status

With the expanded definitions discussed above, it is clear there are a significant number of protected veterans and individuals with disabilities in every workforce. A major issue most employers face is not that these classes are being excluded from applicant pools or employment opportunities, but that the members of these classes are not self-identifying as protected veterans or individuals with disabilities. There is no simple solution to this problem. However, efforts to make applicants and employees aware that protected veterans and individuals with disabilities are valued by an organization may help to increase the number of employees willing to self-identify. Assuring applicants and employees that disclosure of protected veteran and disability status is beneficial both to the individual and to the organization should also help efforts to increase self-identification. In addition, steps taken by employers to educate applicants and employees on the recent expansions to what constitutes a protected veteran or an individual with a disability may yield a higher rate of self-identification.

In regard to disability, it is important to recognize that disability is not an either/or condition. Disability has always been a classification that exists on a spectrum, and both the government and employers would be well-served by understanding that the distinction between “individual with a disability” and “not an individual with a disability” is an artificial one. Programs to assist individuals with disabilities are more likely to be successful if they recognize that not all disabilities are the same and that not all individuals with disabilities need or desire to be treated in the same manner.

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization's particular circumstances. All original materials copyright © HR Analytical Services Inc. 2017