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You already know that your center is required to be consumer controlled. This means that a majority of staff AND management staff must be persons with disabilities, and that a majority of board members must be persons with significant disabilities to represent the persons served. Sometimes when I offer these requirements in a training setting I get some pushback about whether this is reverse discrimination. It is NOT because the regulations themselves require this as a condition of receiving Title VII funds through the Rehabilitation Act.  It is grant criteria, and you must follow it if you want the money.
There is more to this, though. As a grantee receiving federal money, you have other requirements you must meet. For example, the purchasing regulations include this:

Title 45 Subtitle A Subchapter A Part 75.330   Contracting with small and minority businesses, women’s business enterprises, and labor surplus area firms.

(a) The non-Federal entity must take all necessary affirmative steps to assure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.

(b) Affirmative steps must include:

(1) Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;

(2) Assuring that small and minority businesses, and women’s business enterprises are solicited whenever they are potential sources;

(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;

(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises;

(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and

(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (b)(1) through (5) of this section.

Are you surprised this applies to you at your center? Sometimes we forget that, as contractors of federal funds, there are requirements that apply to us besides our basic regulations. These take consumer control a step further, and urge affirmative action to hire minorities, women and people with disabilities. Some of those references are below, but here is what I want you to think about.  A staff photo from a Center for Independent Living should look diverse. Not only should there be people with visible disabilities, but also women and people of color and people of all ages. Can you say that is true of your center? These same requirements apply to SILC staff, and the council is urged to be representative of the state’s demographics.
29 U.S.C. 793 – EMPLOYMENT UNDER FEDERAL CONTRACTS includes affirmative action around who you hire, and 29 U.S.C. 794 addresses non-discrimination in employment. Both apply to our Centers and SILCs as recipients of federal dollars. There are references to the ADA that make it clear this also applies to people with disabilities, as well as others who have traditionally been underemployed. Here are some excerpts:
The plan shall provide satisfactory assurances that all recipients of financial assistance under this part will— (1) notify all individuals seeking or receiving services under this part about the availability of the client assistance program under section 732 of this title, the purposes of the services provided under such program, and how to contact such program; (2) take affirmative action to employ and advance in employment qualified individuals with disabilities on the same terms and conditions required with respect to the employment of such individuals under the provisions of section 793 of this title; …
(a) Amount of contracts or subcontracts; provision for employment and advancement of qualified individuals with disabilities; regulations
Any contract in excess of $10,000 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified individuals with disabilities. The provisions of this section shall apply to any subcontract in excess of $10,000 entered into by a prime contractor in carrying out any contract for the procurement of personal property and nonpersonal services (including construction) for the United States. The President shall implement the provisions of this section by promulgating regulations within ninety days after September 26, 1973.
(d) Standards used in determining violation of section
The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510,1 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201–12204 and 12210), as such sections relate to employment.
(a) GENERAL RULE- No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b) CONSTRUCTION- As used in subsection (a), the term `discriminate’ includes–
… (6) using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and…
Affirmative Action — a twist on Consumer Control

4 thoughts on “Affirmative Action — a twist on Consumer Control

  • August 24, 2018 at 1:21 pm

    This is so interesting. In the Rehab Act Title VII, pre-dating the ADA, disability originally had two categories and the individual with a significant disability required supports for daily living (eating, dressing, bathing, etc) or accommodations in the workplace. CIL were created to promote the independence of people with those types of significant disabilities. As funding increased for IL services, there was a movement to “everyone has some kind of disability.” The ADA definition of disability is correct for civil rights legislation; equal rights should be defined as broadly as possible. The Rehab Act and WOIA define program benefits for a select group of people and if “everyone” is included the dedicated resources are watered down and spread out to the point of contradicting the legislative purpose. This development also killed IL consumer-control; everyone has a disability, everyone is a consumer and consequently people with the most significant disabilities were weeded out. Ableism and discriminatory hiring is how many CILs and SILCs operate. I am still told that the non-disabled person they hired for Advocacy and Outreach was the best and there were no qualified disabled applicants. !!!! The personal knowledge acquired through living with a significant disability is fundamental to driving the IL agenda and when you can’t articulate the importance of that experience you neutralize the law’s objective of consumer control.
    The people leading our federally funded Centers are different from the disabled who created and operated CILs in the 1990s. We as a movement must address how we define disability in order to realize the value of consumer control, and who will be evaluating contract compliance in complex issues like affirmative hiring. To ILRU I say, TALK IS CHEAP! What good has it done to write legislation that no one enforces? If the community questions the CIL or SILC’s compliance with these details of the law, who will do anything about it?

    • August 31, 2018 at 7:24 am

      The people to be served by CILs is still required to be individuals with a significant disability You are correct that this is not always adhered to by CILs, but it is a requirement that eligibility for services be determined and that the individuals served have a significant disability. It also is required that 51% of the individuals on a CIL’s board of directors must be individuals with a significant disability. There is a definition in the regulations of this term. Here it is:
      Individual with a significant disability means an individual with a severe physical or mental impairment whose ability to function independently in the family or community or whose ability to obtain, maintain, or advance in employment is substantially limited and for whom the delivery of independent living services will improve the ability to function, continue functioning, or move toward functioning independently in the family or community or to continue in employment, respectively.

      • August 31, 2018 at 10:44 am

        Sorry, Paula, if I am being obtuse, but what is the process for challenging hiring practices of a CIL or SILC if one believes they have violated the affirmative hiring requirement? There is an implied right to be served by, and lead by peers.
        Does the Client Assistance Program (CAP) still help consumers who disagree with the CIL/SILC compliance with regulations? If the governor’s office and the SILC conspire to get around consumer requirements for the council, how can a resident with a disability question the SILC’s composition?
        Using the word consumer has been controversial; I think the hope was to expand the number of people who self-identify and include a wider range of disabilities represented. The intention is positive but the result has been the exclusion of people with the most severe disabilities from employment and administration of consumer-run IL programs. (My observation only I can’t find any usable standards or supporting data.)
        How can we measure compliance with consumer requirements if we use the words consumer and disability in so many different ways? Who determines a CIL’s fidelity to IL philosophy?
        There was so much more clarity in 1992 when Title VII was funded and before IL staff became ’employees’ rather than being consumers and peers. I appreciate your essays but they usually stimulate more questions. 🙂

      • September 5, 2018 at 12:07 pm

        These posts do raise many questions, and we don’t have answers to all of them. The transition post WIOA still isn’t complete, although IL philosophy is still the purpose of Title VII of the Rehab Act and of the regulations. ACL/ILA is working on a monitoring process to assure important characteristics and compliance, with consumer control high on the list, but that process has not yet been implemented. The 704 report or Program Progress Report will be updated to provide more outcomes rather than statistics, but that, too, is a work in progress. The old CIL indicators which included some of the specifics around consumer control, weren’t carried forward in the new Rehabilitation Act. While we believe the intent is that they still apply, we can’t point to a specific regulation to confirm that. We all need to hold each other accountable, especially since other mechanisms are not in place. You can file a complaint related to affirmative action if you have applied for an been denied employment based on disability. https://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm

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