I. Introduction
This essay addresses an important social justice goal: how to reduce the disparity between the rate of employment between people with significant disabilities and people without disabilities.
I am going to focus on how we can leverage federal procurement to achieve that social justice goal. The power of the federal government to buy goods and services is a mechanism I believe has not been sufficiently exercised to advance employment for people with significant disabilities. There is a federal procurement program designed to achieve that goal and that program was significantly modernized during the Biden Administration.Footnote 1 However, the program needs to be further modernized to align it with current disability policy and to achieve its full potential.
To provide some context: in 2023, the federal government spent $759 billion buying goods and services.Footnote 2 These purchases ranged from buying aircraft, to purchasing IT, health care and engineering services, to contracting for landscaping and customer support.Footnote 3 There are thousands and thousands of federal contracts.Footnote 4 This universe is so large that approximately nine million people work on federal contracts, significantly more than the two million employees who were working for the federal government in 2023.Footnote 5
My goal is to present the data on the disparity between the employment rate for people with significant disabilities as compared to the employment rate of people without disabilities; describe traditional legal approaches for enhancing employment for people with disabilities, including limitations with those approaches; and finally, to describe the potential in leveraging federal procurement to enhance employment for people with significant disabilities.
Law, of course, is only one variable in the achievement of any social justice goal. Practices on the ground, and social norms, are two other essential variables. These three variables operate in a synergistic fashion. For example, an employment law can result in employers adopting practices to implement the law; law and practices can subsequently modify social norms in a positive manner.Footnote 6
All three of these variables have come into play over the past decades in the effort to increase employment for people with disabilities, including people with significant disabilities. They will need to be further deployed in the coming decades as well.Footnote 7
II. Terminology and Data
First, a comment about terminology.
I intentionally use the qualifier “individuals with significant disabilities” rather than “individuals with disabilities.”
The definition of disability under the Americans with Disabilities Act (“ADA”) is very broad.Footnote 8 A wide range of medical conditions are covered under the ADA — including heart disease, respiratory diseases, gastrointestinal disorders, immune disorders, cancer, and psychiatric conditions.Footnote 9 Indeed, the ADA Amendments Act of 2008 was designed to codify this broad definition of disability in the ADA.Footnote 10
Many people with these types of impairments may not self-identify as people with disabilities. But if they were discriminated against at work because of their physical or mental condition — and they found a good lawyer who got medical documentation that their condition affected one of their major bodily functions — they would soon learn they have a disability under the law and they have the right to contest the discrimination they experienced.
It is helpful, for many reasons, to emphasize the wide community of people with disabilities. When people with a wide range of common medical conditions acknowledge they have a disability, it helps reduce the concept that there is an “us” (people without disabilities) and a “them” (people with disabilities). It also reduces the stigma of disability if people with non-visible disabilities, such as mental health conditions, disclose their disability.Footnote 11
But for some purposes, it is important to distinguish between people with the broad range of disabilities covered under the ADA and people with visible disabilities and/or significant psychiatric disabilities, such as bi-polar disorder or schizophrenia.
Here is a quick way to demonstrate that point. Chris Stewart, who is blind and one of the staff lawyers for the AbilityOne Commission — a Commission that I served on for several years — once said to an audience: “[i]f I did a Venn diagram of all my friends who are blind and all my friends who have experienced discrimination in employment at some point, I would have a perfect circle.”Footnote 12
People with the broad range of disabilities covered under the ADA would not have that perfect circle in terms of discrimination. There would certainly be an overlap. But it would not be a perfect circle.
That should come as no surprise. If people with non-visible disabilities never need an accommodation at work, their employer might never know they have a disability. In fact, the ADA makes it illegal for an employer to ask applicants about their health conditions prior to giving them a conditional job offer.Footnote 13
As a matter of common sense, reality is different for people with visible disabilities. An employer will see right away if an individual is blind, deaf, has a significant mobility impairment, has an intellectual disability, has a developmental disability such as cerebral palsy or autism, has a significant communication barrier, or is a little person. For these individuals, the Venn diagram is more likely to be a perfect circle.
People with visible disabilities are the ones most likely to experience discrimination at the very door of employment.Footnote 14 Of course, it will not be easy to prove such discrimination. Hiring managers do not usually say, “you seem great, but I’m not going to hire you because you are — fill in the blank — blind, or deaf, or use a wheelchair, or can’t speak well.”
That is not what happens. There is rarely a smoking gun. There is rarely an opportunity to bring a successful claim of discrimination, even if the person with a disability wants to take that route.
The employment data bears out the difficulty that people with visible and/or significant disabilities have in accessing employment.
The U.S. Census Bureau collects data through an annual American Community Survey (“ACS”).Footnote 15 This survey reaches approximately 3.5 million households a year.Footnote 16 Among its many questions are several regarding employment. The survey separates out answers by age group, so researchers can focus on the employment data for people between the ages of eighteen and sixty-four.Footnote 17
The ACS does not define disability in the broad manner of the ADA. Nor does the ACS provide a list of visible and/or significant disabilities that a respondent can check.
Rather, the ACS asks respondents whether they have serious difficulty in one of six functional categories: vision, hearing, ambulatory, cognitive, self-care, and independent living.Footnote 18
The group of individuals captured under these categories is logically a much smaller group than people with disabilities under the ADA. For example, many people with heart conditions, respiratory conditions, gastrointestinal disorders, or cancer will not have any of the functional limitations listed in the ACS survey.
The more limited definition of disability in the ACS is appropriate in terms of collecting employment data. But consider the number of people with visible and/or significant disabilities who would not be counted in this data. For example, some people with autism will not have any of the physical or cognitive limitations listed in the questions but may still experience employment discrimination. A little person or a person with a significant physical disfigurement is not going to experience any of the functional limitations but may well experience employment discrimination. The same is true for a person with a significant psychiatric diagnosis, such as bi-polar disorder or schizophrenia. Many such individuals might experience discrimination but might not respond that they have any of the listed functional limitations.
Nevertheless, this is the national data we must work with — and so we will.Footnote 19
The Census data demonstrates a disturbing employment disparity between people with and without disabilities. In 2022, forty-five percent of people with disabilities were working as compared to eighty-one percent of people without disabilities.Footnote 20 That translated into approximately 9.4 million people with disabilities working and 135 million people without disabilities working.Footnote 21
Although some people with cognitive, self-care, or independent living limitations may not be able to work, many others can. And people with vision, hearing or ambulatory limitations certainly can work. Hence, while we may not expect the employment rate to be the same between people with and without disabilities in this survey data, the significant disparity is much higher than it should be.Footnote 22
Another way of looking at this data is to look at the percentage of people with disabilities who were actively seeking work in 2022 but were not employed. In 2022, 7.9% of people with disabilities were not employed but were actively seeking work.Footnote 23 That translates into 909,600 people with disabilities who were actively seeking work in 2022.Footnote 24
That number is likely a significant undercount. Many people with disabilities “choose” not to be in the “looking for work” category for several reasons. They may think it is no longer worth looking for a job because of discrimination they have faced in the past or that they presume they will face.Footnote 25 They may think they cannot do a job because of the social messages they have received about their capabilities.Footnote 26 Or they may believe they would lose medical benefits they currently receive through a disability program if they took a job, even though there are ways to mitigate that risk.Footnote 27
We return, therefore, to the social justice goal I articulated: can we make a dent in the persistent disparity in the employment rate between people with significant disabilities and those without disabilities (or those without significant disabilities)?
Let us start with the usual legal approaches for achieving such a goal.
III. Laws Addressing Employment of People with Disabilities
A. Anti-Discrimination Laws
Congress enacted the first non-discrimination law protecting people with disabilities in the private sector in 1973.Footnote 28 Section 504 of the Rehabilitation Act of 1973 prohibited a private entity that received “federal financial assistance” from discriminating against a “qualified handicapped individual” in any aspect of their operations, including employment.Footnote 29
Passage of Section 504 was a watershed moment for the disability community. Activism by people with disabilities seeking rights and full inclusion in society took off significantly in the late 1960s and early 1970s.Footnote 30 That activism began to change social norms and expectations regarding the right of people with disabilities to be integrated into society, including the right to employment.Footnote 31 The implementing regulations for Section 504 were directly attributable to disability rights activism.Footnote 32
The ADAFootnote 33 built directly on the Section 504 law and its regulations.Footnote 34 Title I of the ADA prohibits private employers with fifteen or more employees from discriminating against people with disabilities in hiring, termination and terms and conditions of employment.Footnote 35 It requires employers to prevent harassment of people with disabilities in the workplace.Footnote 36 It requires employers to provide reasonable accommodations for applicants and employees with disabilities if needed to apply for or perform a job, if those accommodations will not impose an undue hardship on the employer.Footnote 37
Based on my experience over the past three decades, I believe the ADA has often been effective in protecting people with disabilities who are already employed. Particularly after the ADA Amendments Act of 2008 restored the broad definition of disability intended by Congress in 1990,Footnote 38 people with disabilities began prevailing more often in charges brought to the Equal Employment Opportunity Commission regarding accommodations, harassment, and sometimes terminations if evidence existed that the employee’s disability was a motivating factor for the discharge.Footnote 39
The ADA was also a catalyst for new practices on the part of many employers. Hiring managers were trained on how to conduct interviews; supervisors were trained on how to recognize the need for and provide accommodations; and employees with disabilities who experienced harassment were able to access established employer procedures for reporting such harassment.Footnote 40
The ADA also began to shift societal expectations about people with disabilities, including their capacity to perform a full range of jobs. As more people with disabilities were employed, co-workers directly experienced the capabilities of their colleagues with disabilities.
Perhaps most importantly, the ADA shaped the expectations of individuals with disabilities who grew up with the law. Calling themselves the “ADA Generation,” they assumed they deserved equal access to all jobs for which they were qualified.Footnote 41
But even the combination of a new law, changed employer practices, and some modified social norms has not been sufficient to move the needle in increasing employment for people with significant disabilities over the past thirty-five years.Footnote 42 The bottom line is that the ADA is a necessary, but not sufficient, condition to getting people with significant disabilities through the employment door.
B. Affirmative Action Laws
A legal approach beyond an anti-discrimination prohibition would be a requirement that employers engage in affirmative action for people with disabilities when they hire applicants and promote employees. An affirmative action law could require that an employer articulate goals for hiring a certain percentage of people with significant disabilities.
Having such a goal might change the dynamics of the hiring process. Instead of a person with a disability being at a disadvantage when trying to get hired, that person might have an advantage if the employer was trying to increase the number of employees with significant disabilities in its workforce. The person with the disability would obviously need to be fully qualified to do the job. But if a hiring manager was evaluating two equally qualified applicants, the applicant with the disability might get a boost under an affirmative action approach.
Because the legal framework for affirmative action based on disability is different than the framework based on race or sex, a hiring manager is legally permitted to take an applicant’s disability into account as a positive factor in hiring.Footnote 43 The ADA includes a provision that a person without a disability may not bring a claim of discrimination because the person does not have a disability.Footnote 44 That was included to ensure that people without disabilities could not bring claims of discrimination if they did not receive the same accommodations as people with disabilities.Footnote 45 It also, however, ensures that affirmative action for people with disabilities is permissible under the ADA.Footnote 46
In terms of the federal constitution, governmental distinctions based on disability receive a low level of scrutiny — “rational basis” review.Footnote 47 Thus, if the government creates a distinction between people with and without disabilities (either a positive or a negative distinction), the government simply needs a rational basis for making that distinction.Footnote 48 Given the disparity in employment rates between people with and without disabilities,Footnote 49 I believe courts would find a rational basis for the government to establish affirmative action goals for people with disabilities in employment.
There are currently two affirmative action provisions for people with disabilities in this country. One applies to entities that hold contracts with the federal governmentFootnote 50 and the other applies to the federal government as an employer.Footnote 51
1. Affirmative Action Requirements for Federal Contractors
Section 503 of the Rehabilitation Act of 1973 requires that any entity that has a contract with the federal government for more than $15,000 must “take affirmative action to employ and advance in employment qualified individuals with disabilities.”Footnote 52
There is a large universe of employers governed by this provision. There are approximately 100,000 entities that hold contracts with the federal government.Footnote 53 Some of these contracts make up only a small part of the entity’s operations. But once an entity receives a federal contract, it must follow the requirements of Section 503 for all its applicants and employees.Footnote 54
The Office of Federal Contract Compliance Programs (“OFCCP”) in the Department of Labor enforces Section 503.Footnote 55 While Section 503 has been in force since 1973, it was only during the Obama Administration in 2013 that OFCCP issued regulations to enforce the law.Footnote 56
The regulations provide substance to Section 503’s requirements. The regulations direct federal contractors to collect data on the number of applicants and employees who have a disability.Footnote 57 They require federal contractors to set an aspirational goal of seven percent of people with disabilities in their workforces.Footnote 58 They direct federal contractors to seek out partnerships with organizations that would help identify individuals with disabilities for different jobs.Footnote 59 And they require federal contractors to have an affirmative action plan in place for people with disabilities.Footnote 60
Unfortunately, the DOL regulations have a significant flaw. The aspirational goal of seven percent of people with disabilities in the workplace are for individuals who have disabilities as defined under the ADA.Footnote 61 That is a very large group that extends far beyond people with the type of manifest and/or significant disabilities that are most in need of affirmative action during the hiring process.Footnote 62
What has happened in practice, therefore, is that the Section 503 regulations have not created a strong incentive for federal contractors to hire people with manifest and/or significant disabilities. OFCCP has never published data on the number of federal contractors who achieved or surpassed the seven percent utilization goal. Moreover, as of the publication of this essay, OFCCP itself has been effectively diminished because of the rescission of Executive Order 11246.Footnote 63 But even if we had data on the number of federal contractors who achieved OFCCP’s aspirational seven percent goal, there would be no way of knowing how many of those employees had manifest and/or significant disabilities given the definition of disability in the regulations.
In addition, enforcement of Section 503 has inherent limitations. A federal contractor will not lose a contract simply because it has not reached the aspirational goal set out in the regulations.Footnote 64 The contractor’s data on the percentage of people with disabilities they have in their workforce is not submitted to OFCCP on an annual basis.Footnote 65 Rather, the contractor’s data is reviewed only if OFCCP schedules an audit of that federal contractor that year.Footnote 66 And if a contractor has been particularly successful in hiring and retaining people with disabilities, there is no avenue for the contractor to inform government contracting officers of that fact and receive some credit when seeking a new contract.
The bottom line is that the substance of the Section 503 regulation’s aspirational goal is flawed because it does not include a subgoal for people with manifest and/or significant disabilities; the stick of Section 503 is limited; and the carrot of Section 503 is non-existent.
2. Affirmative Action Requirements for the Federal Government
Section 501 of the Rehabilitation Act directs every federal agency to have “an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities.”Footnote 67
The EEOC issued regulations during the Obama Administration to enforce Section 501.Footnote 68 Those regulation require federal agencies to have an aspirational goal of twelve percent of their workforce made up of people with disabilities as defined under the ADA, and a subgoal of two percent of their workforce made up of people with targeted disabilities.Footnote 69 People with targeted disabilities are those with visible and/or significant disabilities.Footnote 70
Federal agencies are therefore required to collect data for employees who have a broad range of disabilities, as defined under the ADA, and separately to collect data for employees with visible and/or significant disabilities (“targeted disabilities”).Footnote 71 For that reason, federal agencies are forced to focus on how well they are doing in hiring and retaining people with the type of visible and/or significant disabilities that are most likely to face barriers in employment, as described above.
The annual data reported to the EEOC by federal agencies has shown an uptick in the hiring of people with significant disabilities since the issuance of the Section 501 regulations.Footnote 72 In fiscal 2023, twenty-one percent of the federal workforce identified as having a disability or serious health condition.Footnote 73 Of those employees, 2.7 percent self-identified as having a targeted disability.Footnote 74 At the same time, there is sobering data regarding the retention of employees with disabilities in the federal government.Footnote 75 Moreover, the massive reduction in the federal workforce as a result of reorganizations, firings and resignations during the second Trump Administration has also resulted in a reduction of people with disabilities in the federal workforce.Footnote 76
Ultimately, however, there is not much of a hammer to the Section 501 regulations. A federal agency does not suffer consequences if it does not meet its aspirational goals.Footnote 77 EEOC staff are simply available to provide technical assistance to a federal agency that wants to increase its hiring and retention of people with targeted disabilities. There are also no incentives for federal agencies to reach or exceed the subgoal of hiring people with targeted disabilities.
C. Vocational Rehabilitation Laws
A third law that plays a role in employment for people with significant disabilities is the federal vocational rehabilitation law.Footnote 78 Congress appropriates money for vocational rehabilitation services; the money is funneled to state vocational rehabilitation agencies; vocational rehabilitation counselors prepare people with significant disabilities for employment; counselors identify and often provide job supports needed by the individual; and finally, counselors seek out employment opportunities for their clients and assist them in obtaining jobs.Footnote 79 In fiscal year 2024, the federal government appropriated $3.7 billion for the vocational rehabilitation program.Footnote 80
The most recent important amendment to the Rehabilitation Act was made through the Workforce Innovation and Opportunity Act (“WIOA”).Footnote 81 That law established that the program of vocational rehabilitation services must be carried out in a manner consistent with the principles that “individuals with disabilities, including individuals with the most significant disabilities, are generally presumed to be capable of engaging in gainful employment” and that “individuals with disabilities must be provided the opportunities to obtain competitive integrated employment.”Footnote 82
Today, anti-discrimination laws are an essential foundation for ensuring employment for people with significant disabilities. Affirmative action laws can create an incentive and an infrastructure for hiring people with significant disabilities. Vocational rehabilitation services can help prepare people with significant disabilities for work and assist them in finding jobs.
But the disparity between the employment rate of people with significant disabilities and those without disabilities or without significant disabilities is still stark and disturbing.Footnote 83
IV. Federal Procurement Law
That brings me to a fourth legal approach. What if we just cut to the chase? What if we had a law that provided that certain federal contracts would go solely to employers that hired a certain percentage of people with significant disabilities? This would leverage federal procurement in a much more direct manner than creating an aspirational goal for all federal contractors to meet in terms of hiring people with significant disabilities.
Such a law exists. But the origin story of the law, and the way the program has operated for many decades, is problematic. The challenge before us is whether we can continue to modernize the program so it can play an even more significant role in creating good jobs for people with manifest and/or significant disabilities. I believe we can.
This program is called the AbilityOne Program and the governing body is called the AbilityOne Commission.Footnote 84
A. The Origin Story of the AbilityOne Program
On June 25, 1938, President Franklin Delano Roosevelt signed 121 laws.Footnote 85
One of the laws President Roosevelt signed was the “Committee on Purchases of Blind-made Products.”Footnote 86 The law became known as the Wagner-O’Day Act, named after its two primary Congressional sponsors, Robert F. Wagner and Caroline O’Day, both Members of Congress from New York.Footnote 87
The Wagner-O’Day Act was a law designed to leverage federal contracts to create jobs for blind people. The law created a Committee that was made up of officials from various federal agencies.Footnote 88 The Committee was given the power to decide what products the federal government would be required to buy from nonprofit organizations that primarily hired blind people.Footnote 89 The Committee was given the authority to remove contracts for that particular product from the ordinary federal competitive bidding process and put the requirement for that product on a “sole-source procurement list.”Footnote 90 All federal agencies then had to buy that product from a select group of nonprofit agencies that were deemed qualified by the Committee.Footnote 91 The Committee also set the fair market price for the contract.Footnote 92
To be qualified to participate in the sole-source procurement program, a nonprofit agency had to commit to employing blind people to do at least seventy-five percent of the “direct labor hours” (“DLH”) necessary to produce the product.Footnote 93 Direct labor was defined as the work required for preparation of a product, but not the supervision or administration connected with the contract.Footnote 94
Supervisors and administrators were described as doing “indirect labor” on the contract and the minimum seventy-five percent DLH ratio did not apply to them.Footnote 95 This ensured that non-profit agencies would not be required to find blind individuals to be supervisors and administrators. It also meant that if a blind person who had been doing “direct labor” and counted towards the minimum seventy-five percent DLH ratio was promoted to be a supervisor, that person would no longer be counted towards the required DLH ratio.Footnote 96
The agency could also hire blind people to do 100% of the direct work to produce the product. The seventy-five percent DLH requirement was simply a minimum required hiring ratio.Footnote 97
This was the sole-source procurement program established by the Wagner-O’Day Act of 1938. The law listed brooms and mops as examples of the type of commodities that could be put on this sole source procurement list: “[a]ll brooms and mops and other suitable commodities … procured by any federal agency shall be procured from such nonprofit-making agencies for the blind in all cases where such articles are available within the period specified at the price determined by the Committee.”Footnote 98
When the Wagner-O’Day Act was enacted in 1938, what did the employment landscape look like for blind people? One aspect of that landscape were hundreds of “sheltered workshops” across the country.Footnote 99 While many of these workshops employed people with intellectual disabilities, or other significant disabilities, some employed only blind people.Footnote 100
The backstory to the establishment of some of the workshops for the blind is illuminating.
Special schools for the blind had been set up across the country starting in the mid-1800s.Footnote 101 The schools provided training to students in skills such as weaving, knitting, chair caning, as well as music and similar arts.Footnote 102 The schools expected their graduates to be employed in the general marketplace once they graduated.Footnote 103
That did not happen.Footnote 104 The schools trained the students, the students graduated, and the graduates tried to get jobs, but most of them did not get hired.Footnote 105
This was not surprising given that the schools had done nothing to develop robust placement services or try to change societal views about hiring blind people.Footnote 106 When graduates came back and “solicited employment at our hands” (as one school report noted), the schools simply changed their philosophy.Footnote 107 They decided that blind people could not work competitively and, indeed, it was better for blind people to work only with each other.Footnote 108 The answer, therefore, was for the schools to set up their own work settings and employ their graduates.Footnote 109
My belief is that this philosophy was part of the catalyst for the Wagner-O’Day Act.
Peter Salmon, a blind individual, wrote to the president of the American Foundation for the Blind (“AFB”) in 1937 urging AFB to support the Wagner-O’Day Act. Salmon’s argument for the need for the law was: “I don’t think that AFB could possibly do anything that would result in more jobs [for people who are blind] in a shorter period of time than getting federal and state governments to purchase the brooms and mops they make.”Footnote 110
This was certainly not the only way to respond to the discrimination faced by blind people. Indeed, two years later, in 1940, Jacobus tenBroek and others founded the National Federation of the Blind (“NFB”) — an organization that took a very different tack to fighting discrimination against blind people. and ensuring they could find jobs.Footnote 111 NFB worked vigorously for years to close sheltered workshops for blind individuals and to prohibit vocational rehabilitation counselors from placing blind clients in such work settings.Footnote 112
The Wagner-O’Day Act was substantively amended only once.Footnote 113 In 1971, Senator Jacob Javits led an effort to add contracts for services (not just products) to the program and to expand the program to include nonprofit agencies that hired individuals with “severe disabilities.”Footnote 114
A person with a “severe disability” was defined as a person who had a “physical or mental disability” that would pose a hurdle to employment and would prevent the individual from “currently engaging in normal competitive employment.”Footnote 115
The amended law maintained the minimum seventy-five percent DLH ratio for employees with severe disabilities.Footnote 116 It also maintained the rule that an employee with a severe disability who was promoted to a supervisory or administrative role, or hired to be a supervisor or administrator, could not be counted toward the minimum DLH ratio.Footnote 117
The law defined people with “severe disabilities” as those who could not currently engage “in normal competitive employment.”Footnote 118 The most effective way to provide such individuals with employment, therefore, was to set aside government contracts for the making of products and for the delivery of services that such individuals could provide at a fair market price.
Two years after Senator Javits helped expand the Wagner-O’Day Act (which was now called the Javits-Wagner-O’Day Act, or “JWOD”), he was one of the Members of Congress working on the Rehabilitation Act of 1973 which included Section 504.Footnote 119 As noted above, Section 504 was the first broad non-discrimination law protecting people with disabilities in employment in the private sector and was a watershed moment for the disability community.Footnote 120
It is worth considering why Senator Javits championed both the creation of Section 504 and an expansion of the Wagner-O’Day Act. My best guess is that Senator Javits (and many others at the time) believed there were two categories of people with disabilities. One category consisted of a group of people with disabilities who could not “currently engage in normal competitive employment.” For those individuals, having set-aside federal contract jobs was an excellent employment approach. The second category consisted of a group of people with disabilities who could work in regular competitive employment and simply needed vocational rehabilitation services and protection against employment discrimination to be productively employed.
There is no way to know what Senator Javits actually thought. But Richard Scotch points out that during the enactment of the Rehabilitation Act, “[t]here was a shift from an almost exclusive emphasis on preparing clients for work to a more general rehabilitation program that would promote independent living for those not capable of regular or perhaps any employment.”Footnote 121 For that reason, according to Scotch, the word “vocational” was dropped from the title and the law became known as the Rehabilitation Act of 1973, rather than the Vocational Rehabilitation Act.Footnote 122
There is another important piece of the origin story. Among the 121 bills that President Roosevelt signed on June 25, 1938, was the Fair Labor Standards Act (the “FLSA”).Footnote 123 That was clearly one of the more consequential laws the President signed that day.
The FLSA established a federal minimum wage and a maximum hour workweek.Footnote 124 It was a long, hard-fought journey to the enactment of that law.Footnote 125
But embedded in the law was a provision that reflected the assumption that some people with disabilities could not be fully productive in a job, and therefore, the federal minimum wage should not apply to them.Footnote 126 The analysis was that if employers were forced to pay employees with disabilities who were less productive than other employees the federal minimum wage, the employers would not hire people with disabilities in the first place.Footnote 127
To address that problem, the law included a provision, section 14(c), that “to prevent curtailment of opportunities for employment” for people with disabilities, if an employer could show that it had an employee whose “earning capacity [was] impaired by physical or mental deficiency,” the employer could pay that employee less than the federal minimum wage.Footnote 128 The FLSA currently pegs the subminimum wage to the productivity of the employee, as determined by the employer through a productivity study of the employee.Footnote 129 Hence, over time, some employees with disabilities were literally being paid just cents on the dollar for each hour of their work.Footnote 130
B. Critiques of the JWOD/AbilityOne Procurement Program
The belief in the capability of people with disabilities to work is the one that has appropriately taken hold over the past fifty years since passage of the Rehabilitation Act of 1973.
This belief is the basis for the ADA. It is the basis for the litigation that has moved the ball forward in enforcing the ADA.
It is the basis for the WIOA of 2014, that declared that all people with disabilities have the capacity to work and deserve to participate in competitive, integrated employment.Footnote 131
Social norms and expectations regarding people with significant disabilities have changed from where they were in 1938, and even from where they were in 1973.Footnote 132
These changes in social norms also became the basis for legitimate critiques of the federal procurement program that had been established by the JWOD Act. Many of the nonprofit agencies that received contracts through the program ran sheltered workshops where employees with disabilities worked only with other people with disabilities and often were paid subminimum wages.Footnote 133 Moreover, since the purpose of the program was to give a blind person or a person with a significant disability a job that the person could otherwise not obtain in “normal competitive employment,”Footnote 134 if a worker stayed in the same job throughout their working career, that outcome did not seem particularly problematic.
Nonprofit agencies in the program also often referred to those working on their contracts as “clients” of rehabilitation services offered by the agency, rather than as full-fledged employees with all the rights guaranteed by labor and employment laws, including the right to unionize.Footnote 135 Indeed, many of the nonprofit agencies ran both a vocational rehabilitation program and delivered products or services under contracts obtained through the federal procurement program.Footnote 136 Thus, the lines between the two parts of the agency were often blurred.Footnote 137
In 2016, an Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities issued a report to Labor Secretary Tom Perez in 2016, known as the “WIOA Report.”Footnote 138 The report’s assessment of the AbilityOne program was that the program had “the potential to create employment opportunities on a broad scale for individuals who are blind or have significant disabilities,” but only if it was “reformed as recommended.”Footnote 139
The WIOA report explained that the AbilityOne program needed to change significantly to align it with modern disability policy that “embraces high expectations [for people with disabilities], including that of full inclusion of people with disabilities in all aspects of life including the workplace.”Footnote 140 These reforms included alternative approaches for determining the eligibility of people with disabilities for the program, reducing the mandated ratio of people with disabilities working on a contract, and updating business models of program contractors.Footnote 141
Most of the reforms recommended in the WIOA Report require congressional changes to the authorizing statute.Footnote 142 Some of the changes, however, can be made internally by the AbilityOne Commission.
In contrast to the 2016 WIOA Report, the National Council on Disability (“NCD”) issued a report in 2020 calling for the complete phase-out of the AbilityOne program.Footnote 143
The NCD report included a list of critiques regarding internal Commission governance, transparency in the program, oversight of the central nonprofit agencies and the nonprofit agencies, and static employment growth in the program despite an increase in revenues.Footnote 144 But ultimately, as the NCD report made clear, even if the governance, transparency, oversight, and growth issues were all remedied, the flawed philosophical underpinnings of the program, the statutory requirement of a seventy-five percent minimum DLH ratio that ran counter to competitive, integrated employment, the disincentives to promoting people with disabilities to supervisory positions because they would not be counted in the mandatory seventy-five percent DLH ratio, and the payment of subminimum wages to employees working on the contracts, meant that the program should be dismantled rather than reformed.Footnote 145
The NCD report recognized that federal procurement can be a powerful tool in increasing employment of people with significant disabilities. But rather than leveraging federal procurement through a set-aside sole-source program such as AbilityOne, NCD’s recommendation was that Congress pass a law requiring all federal contractors and subcontractors with at least $200,000 in contracts and fifty or more employees to hire a certain percentage of people who are blind or have significant disabilities.Footnote 146 Under this recommendation, the AbilityOne program would be phased out over eight years and the 45,000 employees with disabilities currently employed in the program would be assisted in finding jobs with employers in the general marketplace.Footnote 147
The 2016 WIOA Report saw potential in the AbilityOne program, assuming significant reforms were made in the program.Footnote 148 In contrast, the 2020 NCD Report concluded that the AbilityOne program could not be realistically reformed and should be phased out.Footnote 149
I come down on the side of maintaining the program and continuing to modernize it.
I am skeptical that Congress would pass a law mandating that every federal contractor hire a certain percentage of people with disabilities. Moreover, even if Congress did pass such a law, it would be difficult to rigorously enforce the law. It is hard to imagine that the government would rescind a large contract simply because the contractor failed to reach the minimum ratio of hiring people with significant disabilities. Hence, NCD’s recommendation does not seem to be a feasible alternative for leveraging federal procurement to increase the employment of people with significant disabilities.
But my analysis also draws from what I learned while serving on the AbilityOne Commission for three and a half years. Together with three other citizen members, Christina Brandt, Bryan Bashin, and Gabe Cazares, I was appointed by President Biden to the AbilityOne Commission in 2021.Footnote 150 I served as the Vice Chair of the Commission until I was removed from my position by President Trump on January 23, 2025.Footnote 151 During my time on the Commission, I learned much about the program that does not align with the picture of the program painted in NCD’s 2020 report. Moreover, during the time the citizen members served on the Commission, significant modernization efforts were made in the program.Footnote 152 Those modernization efforts have been continuing as of the time of publication of this essay.Footnote 153
This is not to say that the AbilityOne program does not need to be further modernized. To the contrary. The advancements that exist in parts of the program are not necessarily present in other parts of the program. That needs to change. Moreover, some aspects of modernization require congressional action and the Commission is not able to bring about those changes on its own.
Disability advocates should know the history of the program does not have to be its future. In fact, it is not even its present.
C. Current State of the AbilityOne Program
In fiscal year 2024, $4.4 billion in contracts went through the AbilityOne program.Footnote 154 The average wage of a “participating employee” — a person who is blind or has a significant disability, works on a contract procured through the AbilityOne program, and is counted toward the seventy-five percent DLH ratio — was $18.58 in fiscal year 2024.Footnote 155 In fiscal year 2024, 2,398 participating employees were promoted to supervisory positions and 1,425 left for other competitive jobs.Footnote 156 Non-profit agencies such as ServiceSource,Footnote 157 Melwood,Footnote 158 and TesseraFootnote 159 all hold contracts for sophisticated services.
These data paint a picture of a program that is different from the historical reality of the program and, indeed, different from the picture painted by NCD in its 2020 report.Footnote 160 It is only by acknowledging the reality of the AbilityOne program as it exists today that we can hope to further modernize the program.
D. Modernization of the AbilityOne Program
1. Congress
The most important modernization aspects of the AbilityOne program lie in the hands of Congress. Congress needs to move the authorizing legislation for the program out of 1938 and 1971 into 2026.
The feasibility of any legislative changes will depend on the political environment. At the time of publication of this article, the Trump Administration has focused on the removal of diversity initiatives by employers.Footnote 161 While I expect that the legislative changes described below will be supported by the AbilityOne Commission, the nonprofit agencies in the program, and the disability community, a strategic decision will have to be made as to when such legislation should be introduced.
a. The Mandatory DLH Ratio
The mandatory DLH ratio of people with significant disabilitiesFootnote 162 working on each contract must be lowered. The goal of the program should remain the same — create as many good jobs as possible for people with significant disabilities. But a desire for many jobs should not be achieved by creating work settings in which people with disabilities work only with other people with disabilities. That runs counter to the principle of integrated employment for people with disabilities.
Many jobs for people with significant disabilities can be achieved even with a reduction in the mandatory DLH ratio. It simply requires an expansion of the program. In fiscal year 2024, $4.4 billion in federal contracts flowed through the AbilityOne program, resulting in approximately 39,247 jobs for people with significant disabilities.Footnote 163 If $10 billion in federal contracts came through the program, the number of jobs could probably double.Footnote 164
There would still need to be a mandatory ratio in the program. The goal of a sole-source procurement program of this kind is to create incentives for employers to hire people with significant disabilities and a program cannot do that without requiring the contractor to hire some minimum percentage of people with such disabilities to perform the contract.
My recommendation is that the program include a mandatory minimum employment ratio of fifty-one percent. Because the constitutional and statutory standards for affirmatively hiring people with disabilities are different from the standards that apply to race and sex, including a requirement to hire a certain percentage of people with disabilities should be sustained as legitimate.Footnote 165 Moreover, a high ratio of this kind will ensure a significant number of jobs for people who are blind or have significant disabilities.
I would not recommend placing a cap on the percentage of people with disabilities who may be hired to work on a federal contract. That would require an employer to turn away an applicant with a significant disability solely because of that person’s disability, if hiring the person would breach the cap. Setting a cap would also require an amendment to the ADA to ensure that a failure to hire an applicant because of the applicant’s disability would not violate the ADA.Footnote 166
I recognize that some disability advocates would view a minimum ratio of 51% as too high and having no cap on the ratio as significantly problematic. Integration is an essential principle in disability law. Having people with disabilities always being above 50% of a workforce, and potentially even higher, would not be seen as integration by many disability advocates.Footnote 167
However, as a practical matter, leaders in federal procurement must support any new ratio for the change to have a chance of success. Based on my observations while serving on the AbilityOne Commission, I believe procurement officials would require that a sole-source procurement program include at least a fifty-one percent mandatory hiring ratio of people with significant disabilities. That is because a sole-source procurement program removes the ability of procurement officials to use the ordinary competitive process, and they must feel assured that a significant number of people with disabilities would benefit from the sole-source program.
It is also necessary to change the rule that individuals with significant disabilities who are promoted to supervisory or administrative roles, or who are hired as supervisors or administrators, cannot be counted toward the minimum DLH ratio. One way to change that would be to apply a new fifty-one percent mandated DLH ratio to all jobs performed on a contract, including supervisory and administrative roles. An alternative approach would be to allow supervisors and administrators with significant disabilities to count toward the mandatory DLH ratio, but without applying the ratio across the board for supervisors and administrators.
An additional necessary statutory change is that the nonprofit organization should not be required to meet the mandated ratio in every contract that it holds. That change requires the deletion of a parenthetical in the law. Under the current statute, a qualified nonprofit agency must meet the mandated DLH ratio “in the production of products and in the provision of services (whether or not the products or services are procured under this chapter)” (emphasis added).Footnote 168 Deleting the parenthetical in this provision would remove this requirement.
b. Qualifying Disabilities
Under the JWOD Act, blind individuals are automatically eligible to be counted toward the mandated DLH ratio.Footnote 169 There is no additional requirement that the blind individual be unable to work in the ordinary competitive marketplace. That is because when the program was launched in 1938, it was assumed that the best way to provide jobs for blind people was to provide them with set-aside government contract jobs.Footnote 170
In contrast, individuals with “severe disabilities” are defined as individuals who have “a physical or mental disability, other than blindness … which constitutes a substantial handicap to employment and is of a nature that prevents the individual from currently engaging in normal competitive employment.”Footnote 171
A procurement program of this kind should certainly focus on increasing employment of people with “significant” disabilities, rather than people with all disabilities as defined under the ADA. But Congress should develop a more appropriate definition to describe this group. There are precedents that Congress can use. It can adopt the list of targeted disabilities developed by the EEOC for enforcement of the Section 501 regulations.Footnote 172 It could supplement that with other governmental determinations of disability, as the Commission did through the promulgation of a new compliance policy in 2024 regarding qualifying disabilities.Footnote 173 However, Congress should not require that a person with a qualifying disability be unable to currently engage in normal, competitive employment. That is an outdated view of the lack of capacity of people with significant disabilities to work in the general marketplace.
c. Restriction to Nonprofit Organizations
The last component of the procurement program that only Congress can change is the restriction of participation in the program to nonprofit organizations.
There is good reason to prefer nonprofit organizations in this preferential procurement program because a requirement to qualify for this program should be that the employer provide employee career development for its employees with disabilities.Footnote 174 Applying financial resources to that effort may be easier for a nonprofit organization that can use the margin it makes on a contract (its “profit”) than it would be for a for-profit business that is accountable to their shareholders.
However, consideration should be given to allowing for-profit businesses that have been started by, and are owned by, people with disabilities to participate in the procurement program. Such businesses would be required to meet the same mandated hiring ratio and to provide employees with career development. Allowing these limited types of for-profit businesses to participate in the program would support the entrepreneurship of people who are blind or have other significant disabilities.Footnote 175
2. The AbilityOne Commission
Even without the legislative actions noted above, the Commission has been changing various aspects of the program to align it with current disability policy, as described below. These changes have begun an important modernization of the program.
a. Identifying and supporting “good jobs” and “optimal” jobs
Success in the program is no longer that a person with a significant disability has obtained “a job.” Success in the program is that a person with a significant disability has obtained “a good job.”
The Commission made this clear in its Strategic Plan for FY2022-2026.Footnote 176 The second strategic objective of the plan was to: “Identify, Publicize, and Support the Increase of Good Jobs and Optimal Jobs Within the AbilityOne Program.”Footnote 177
The plan defined a “good job” as having four attributes:
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1) Individuals with disabilities are paid competitive wages and benefits;
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2) The job matches the individual’s interests and skills (“job customization”);
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3) Individuals with disabilities are provided with opportunities for employment advancement comparable to those provided to individuals without disabilities; and
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4) Individuals are covered under employment laws.Footnote 178
The plan identified an “optimal job” as “one that includes the four attributes of a ‘good job,’ but also allows AbilityOne employees to work side-by-side with employees without disabilities doing the same or similar work.”Footnote 179
Two of the attributes of a “good job” were taken from the definition of competitive, integrated employment set out in the WIOA Act: the provision of competitive wages and benefits, and opportunities for employment advancement comparable to those provided to individuals without disabilities.Footnote 180 Two of the other attributes were specific to jobs in the AbilityOne Program: that the job must match the individual’s interests and skills (“job customization”) and that individuals in the job must be covered under employment laws.Footnote 181
The Commission subsequently combined the elements of job customization and job advancement into the concept of “employee career development,” which is discussed below.
The guiding principle of this objective was to gather information on what good jobs, and what optimal jobs, were available to participating employees on federal contracts obtained through the AbilityOne system, to highlight those jobs, and to support the creation of additional good and optimal jobs.
The Commission’s Strategic Plan for FY2022-2026 was a turning point for the Commission. Unlike previous strategic plans that had focused primarily on increasing the quantity of jobs obtained through the program, this plan focused on identifying the quality of the jobs currently in the program and ensuring that every participating employee had a “good job.”
b. Elimination of Subminimum Wages
An absolute minimum requirement of a “good job” is that the person doing the job is not paid a subminimum wage.
Nonprofit agencies that hired blind individuals on their contracts and were affiliated with the National Industries for the Blind (“NIB”), one of the central nonprofit agencies in the procurement program, had already stopped paying subminimum wages to their employees.Footnote 182 However, a number of nonprofit agencies that hired people with significant disabilities and were affiliated with SourceAmerica, the other central nonprofit agency, still paid some participating employees subminimum wages.Footnote 183 The number of such participating employees had decreased over time, partly in response to pressure from the Commission.Footnote 184 But the Strategic Plan set the goal of stopping payment of subminimum wage to any participating employee.
The Commission followed through on that goal. On July 21, 2022, the Commission issued a regulation prohibiting any nonprofit agency from using a 14(c) certificate under the FLSA to pay a participating employee less than the federal or state minimum wage, or less than the prevailing wage (if the contract would ordinarily require such a wage).Footnote 185
The Commission gave nonprofit agencies three months to come into compliance with the regulation.Footnote 186 It also allowed a nonprofit agency to ask for an extension of up to one year if it needed time to come into compliance with the regulation without harming existing employees.Footnote 187 Based on my experience on the Commission, only a handful of agencies asked for an extension.
By October 1, 2023, every participating employee was getting at least the federal or state minimum wage or, where applicable, the prevailing wage required on the contract.Footnote 188
c. Evaluation of a Qualifying Disability
For decades, nonprofit agencies had devoted a significant amount of time and documentation to establish that an employee had a qualifying disability under the statute. Indeed, a primary component of oversight by the central nonprofit agencies and the Commission focused on these determinations by the nonprofit agencies.Footnote 189
In 2024, the Commission issued a policy that simplified and strengthened documentation of a qualifying disability.Footnote 190 Under this new policy, nonprofit agencies can use independent determinations from the Social Security Administration that an individual was receiving, or was eligible to receive, disability benefits, such as Social Security Insurance (“SSI”) or Social Security Disability Insurance (“SSDI”), and independent determinations from a state Medicaid office that an individual was receiving, or was eligible to receive, Medicaid based on disability.Footnote 191 These determinations serve as automatic determinations of eligibility for the AbilityOne program.Footnote 192
The new policy also permits nonprofit agencies to use other independent government evaluations, such as determinations from a vocational rehabilitation agency or the Veterans Administration, of the individual’s eligibility for that government agency’s services or benefits.Footnote 193 To comply with the statutory requirements, these determinations can be used as documentation of the individual’s disability, but the nonprofit agency still needs to determine that the individual needed job supports to perform the job position.Footnote 194
A change by Congress to the definition of a significant disability would provide an even stronger method for simplifying the qualification process and ensuring that jobs are being made available only to individuals with significant disabilities.
d. Employment Rights of Participating Employees
The days are over for when a nonprofit agency can say that a participating employee is a “client” of rehabilitation services rather than a full-fledged employee.
A new Commission policy, Policy 51.406, requires that nonprofit agencies treat participating employees as full employees, with all the same employment rights, standards and protections guaranteed to other employees under federal, state, and local laws.Footnote 195
It is as simple and straightforward as that.
e. Employee Career Development
Over the course of two years, the Commission worked on a new policy, Policy 51.405, entitled Employee Career Development.Footnote 196 This policy, when finalized, will be one of the most consequential, and potentially transformative, policies issued by the Commission.Footnote 197
When enacted, Policy 51.405 will require nonprofit agencies to provide employee career development for their participating employees.Footnote 198 Employee career development is defined as a three-part system consisting of: (1) a job assessment, (2) employee career planning, and (3) if desired by the employee, job development and advancement that align with actions identified in the employee’s career plan.Footnote 199
Informed consent and active involvement by the participating employee are essential to the employee career development process. The participating employee must be fully informed by a qualified professional of the purpose of the career planning and be given the choice whether to participate in the career planning.Footnote 200
The proposed policy makes clear that employee career development is not synonymous with vocational rehabilitation services. As the proposed policy states:
Employee career development is not vocational rehabilitation. Participating employees are employees in all aspects (see Policy 51.406), while NPAs [nonprofit agencies] are employers and should not be considered providers of vocational rehabilitation services with respect to their employment of participating employees. Jobs on an AbilityOne contract are not rehabilitative in nature, even if some services for employees are paid for by vocational rehabilitation programs or other government services.Footnote 201
Employee career development can result in several outcomes. The person with the significant disability may choose to remain on the contract, but receive skills training that will allow the employee to move to a job that utilizes a different set of skills (“lateral mobility”).Footnote 202 The employee may choose to remain on the same contract (or another contract held by a nonprofit agency) but move up in terms of supervisory responsibilities and increased pay (“upward mobility”).Footnote 203 Or the employee may choose to obtain a job outside the nonprofit agency contract world (outward mobility”).Footnote 204
Any of these outcomes may be the right one for the individual participating employee based on the individual’s skills, desires, and goals.
Because the nonprofit agency is an employer, and not a rehabilitation program, the agency is not expected to carry out every aspect of a participating employee’s career plan. A qualified professional will develop the career plan with the participating employee and will set out action steps in the plan.Footnote 205 The obligation on the nonprofit agency will be to have procedures to facilitate those action steps. The nonprofit agency will be a partner with the participating employee, but not responsible for any specific outcome.Footnote 206
Even prior to finalization of Policy 51.405, changes will be occurring in the program over the next few years to advance employee career development.
First, the Cooperative Agreements signed between the Commission and SourceAmerica or NIB require each central nonprofit agency to conduct a review of the employee career development currently offered by each of its affiliated nonprofit agencies.Footnote 207 This review will assist the nonprofit agencies in understanding what employee career development consists of and how to implement it.
Second, a new policy finalized in 2025 requires that the central nonprofit agency consider how a nonprofit agency “facilitates career development opportunities for participating employees” in making a recommendation as to which nonprofit agency should receive a new or renewed contract.Footnote 208 This creates a financial incentive for a nonprofit agency to enhance its employee career development.
Third, a new data form has been deployed in 2025 that will collect information on a nonprofit agency’s employee career development.Footnote 209 That data will be used by nonprofit agencies as a self-assessment of how well they are doing, as well as by the central nonprofit agencies in recommending nonprofit agencies for new or renewed contracts.
Based on anecdotal evidence, some nonprofit agencies are already engaging in employee career development with their participating employees and devoting significant financial resources to those efforts. But because the Commission does not know where each nonprofit agency currently stands in terms of its capability to provide employee career development, the reviews conducted by the central nonprofit agencies through the course of 2025 will provide data as to whether a nonprofit agency will need an extension to comply with any mandate to provide employee career development.
The provision of employee career development by nonprofit agencies to their participating employees upends the perception that jobs on federal contracts procured through the AbilityOne program will be dead-end jobs. Unlike any other private employer, which may or may not focus on their employees’ career development, a nonprofit agency will be incentivized, and ultimately required, to do so for its participating employees.
The optimal career goal for each participating employee may be different. Some may wish lateral mobility, some upward mobility, some outward mobility, and some to remain in the job they have. The principle is that every participating employee must be able to make an informed choice about their career goals.
f. Subcontracting
One of the most difficult aspects of ensuring that the procurement program governed by AbilityOne comes into alignment with modern disability policy is the mandated minimum seventy-five percent DLH ratio.
The optimal way to address this problem is for Congress to reduce the mandated DLH ratio to fifty-one percent.
There is, however, an innovative approach that can achieve integration in a work setting while still complying with the existing statutory ratio requirement. That approach uses subcontracting.Footnote 210
If a nonprofit agency subcontracts part of its contract obligations to a subcontractor, the employees of the subcontractor are not calculated in the mandated DLH ratio. Consider, for example, a contract that requires fifty employees to do a job. If the nonprofit agency is the prime contractor, it can employ twenty-five participating employees to work on the contract. It could then subcontract with a for-profit company to employ twenty-five employees — presumably without disabilities. All fifty employees would be working side-by-side, with the only difference being the name of the employer on the W-2 form received by the employee. The ratio of participating employees for the nonprofit agency would be 100 percent. But as a practical matter, the ratio would be fifty percent in that work setting.
This approach would have other benefits as well. If the for-profit company has a supervisor in the workplace, that individual could get valuable “on-the-job” training about reasonable accommodations and job supports for people with significant disabilities. In addition, the subcontracting agreement could include a requirement that the for-profit company consider participating employees as a potential talent pool for future hiring by that company.
Another form of subcontracting, which occurs now, is when a nonprofit agency subcontracts with a for-profit company to perform an aspect of the contract that the nonprofit agency does not have the experience or personnel to perform. For example, a nonprofit agency may have the prime contract for managing the total facilities of a government building. However, the nonprofit agency may not have sufficient employees with disabilities to perform the sophisticated monitoring and maintenance of electrical, heating, cooling and other systems in the building. In such cases, a nonprofit agency can subcontract with a for-profit company with experience in that area.
That subcontracting agreement could then require that the for-profit company accept a certain number of the nonprofit agency’s participating employees as apprentices so that those employees could gain new experience and skills. The agreement could also require that the for-profit company consider hiring those employees when job opportunities arise.
Finally, subcontracting can also go in the opposite direction. A for-profit company could be the prime contractor on a contract and subcontract with a nonprofit agency for some of the sophisticated work on the contract. This would result in employees with significant disabilities working side-by-side with employees of the for-profit company. The goal would be to create integrated workplaces, on-the-job experience for people with significant disabilities in a job not otherwise offered by the nonprofit agency, and a potential talent pool of hiring for the for-profit company.Footnote 211
For decades, the Commission viewed with disfavor if an NPA wished to subcontract part of its contract work because of the concern that doing so would take jobs away from participating employees.Footnote 212 The Commission will still ensure that a nonprofit agency does not become a “shell” company that simply subcontracts work to an employer that does not hire people with disabilities.Footnote 213 But a new Policy 51.400, issued in October 2024, communicates the Commission’s interest in approving subcontracting that increases workplace integration and career mobility for participating employees.Footnote 214
g. Data Collection
The only way to know if change occurs in the AbilityOne program is to establish a baseline of where the program stands now and then track whether and how that baseline changes over time.
It all comes down to good data collection.
The Commission has made good and relevant data collection a priority. Starting in late 2025, the Commission will be collecting a range of new data.Footnote 215
One new form, Disability Determination Qualification, will be used to establish that an employee has a qualifying disability and hence can be a “participating employee.”Footnote 216 The new form operationalizes the Commission’s new Policy 403.Footnote 217 This form will simplify the documentation process and encourage the use of independent government determinations, such as those from the Social Security Administration, Medicaid state offices and Vocational Rehabilitation agencies. Unless a participating employee has a temporary disability, this form will need to be filled out only when the employee onboards.Footnote 218
A second new form, Participating Employee Information, will include a range of information on each participating employee.Footnote 219 The nonprofit agency will be required to report the employee’s disability; the source of the employee’s disability qualification (e.g., if from an independent government determination, the specific government agency); the employee’s total wages and hourly wage; the accommodations or job supports provided to the employee, including whether a third party provided, or reimbursed the nonprofit agency for, the accommodations or job supports; any employee career development activities provided to the employee; and the employee’s career mobility if it occurred (e.g., lateral, upward, or outward mobility).Footnote 220
Finally, a third form, the Annual Representations and Certification Form, will be completed by each nonprofit agency with regard to all the contracts the agency holds.Footnote 221 This form will provide aggregate data from each nonprofit agency on the type of disabilities represented among that agency’s participating employees; the source of the disability qualification of those employees; all wages paid to participating employees (include the highest, lowest, and mean wage paid); all benefits provided to such employees; how many participating employees are members of a union; aggregate numbers on participating employees’ career mobility; the type of subcontracting engaged in by the nonprofit agency; and how many members of the nonprofit agency’s board self-identify as people with disabilities.Footnote 222
Much of this information has not previously been collected by the Commission. Once these forms are fully deployed, this information will provide an accurate picture of where the nonprofit agencies in the program stand right now and, over time, will indicate what changes have been made in response to the Commission’s and/or Congress’ modernization efforts.
V. Conclusion
A good job provides a person with economic security and financial independence. One hopes the job will also provide a sense of meaning and value to the worker.
A person with a significant disability deserves the same chance for a good job that a person without a disability, or a person without a significant disability, has. It is as simple as that.
Anti-discrimination laws, such as Section 504 and the ADA, affirmative action laws, such as Sections 501 and 503, and vocational rehabilitation services are all essential components in increasing employment for people with significant disabilities.
But here we are, in 2025, and the disparity between the rate of employment between people with significant disabilities and people without disabilities remains.Footnote 223
The question, therefore, is whether and how one can leverage the power of federal procurement to increase employment for people with significant disabilities.
There is more we can and should do to strengthen requirements and incentives in the federal contracting world generally. At a minimum, federal contractors should be required to have a subgoal to employ a certain percentage of employees with significant disabilities, as the EEOC requires of federal agencies. Federal contractors should be required to submit data on their employment of people with significant disabilities to a federal enforcement agency on an annual basis. Most importantly, contractors that meet or exceed the subgoal should receive extra credit when they seek new contracts with the federal government. That would create the most significant financial incentive for federal contractors to hire people with significant disabilities.
But even if all those changes were put into place, I believe there would still be an important role for a modernized sole-source procurement program to play.
Think about the 909,600 people with significant disabilities actively seeking work in 2022 that I describe at the outset of this essay.Footnote 224 We know that is probably an undercount but let us use that number for now.
We can hope that the federal government, federal contractors, and large and small businesses and organizations across the country who are not federal contractors will hire some of those individuals. But we also know that many of those individuals will face discrimination when they seek jobs; they will not receive the accommodations and job supports they need to do the job well; and many of them will be passed over for promotions because of misperceptions about their abilities.
A sole-source procurement program that advances employment for people with significant disabilities changes the rules of the game.
Instead of facing discrimination at the outset of seeking a job, a person with a significant disability would be interviewed by an employer actively looking to hire people with significant disabilities. Instead of facing hurdles in getting an accommodation, the person would work in a setting where accommodations are widely understood and routinely provided. Instead of dealing with a supervisor who has no understanding of disability, the person would work in a setting where supervisors are not only aware of disability issues but are perhaps more likely to be people with disabilities themselves. And instead of being passed over for promotions because of misperceptions about the person’s abilities, the employer would be incentivized to provide the employee with career development opportunities, including promotions.
Moreover, even with a fifty-one percent minimum ratio in the program, it would be possible to have a range of integrated work settings for those employed under these federal contracts. Many of the large service contracts in the program today already take place in integrated settings. More integration can be achieved through the creative use of subcontracting.
A sole-source procurement program is not a panacea. It is not a substitute for vigorous efforts to ensure that people with significant disabilities have an equal shot at all jobs in the marketplace. But jobs on federal contracts obtained through a sole-source procurement program can be good jobs, and indeed, optimal jobs for people with significant disabilities.
