¹ See infra Section VI.D.

² A Snapshot of Government-Wide Contracting for FY 2023, U.S. Gov’t Accountability Off.: Blog (June 25, 2024), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2023-interactive-dashboard#:~:text=In%20Fiscal%20Year%202023%2C%20the,2022%20after%20adjusting%20for%20inflation [https://perma.cc/9YSD-DXTG].

³ Id.

⁴ See, e.g., Justin Siken, Record $765B in Federal Contracts Awarded in 2023, HigherGov (Jan. 17, 2024), https://www.highergov.com/reports/765b-federal-gov-contract-awards-2023/#:~:text=The%20Growth%20of%20%22Subcontract%20Only,more%20challenging%20in%20certain%20markets [https://perma.cc/5LNC-DB6L] (noting 37,092 federal contractors in 2023 for defense supply base alone).

⁵ The latest data on people working on federal contracts comes from a study using 2015 data. See The True Size of Government, The Volcker Alliance (Oct. 2017), https://www.volckeralliance.org/resources/true-size-government#:~:text=His%202015%20tally%20measures%20the,and%20492%2C000%20postal%20service%20employees [https://perma.cc/A2TW-FYL7]. The data on the number of federal employees comes from the Partnership for Public Service. Profile of the 2023 Federal Workforce, P’ship for Pub. Serv., https://ourpublicservice.org/fed-figures/a-profile-of-the-2023-federal-workforce/ [https://perma.cc/J84Z-NHNU] (last visited Sep. 26, 2025). One can expect that this number will have decreased after the massive firings and incentivized retirements of federal employees by the Trump Administration, starting in January 2025. While it is difficult to know the exact number of individuals who have left the federal government, a conservative estimate was about 138,000 by May 12, 2025. Elena Shao & Ashley Wu, The Federal Work Force Cuts So Far: Agency by Agency, N.Y. Times (May 12, 2025), https://www.nytimes.com/interactive/2025/03/28/us/politics/trump-doge-federal-job-cuts.html [https://perma.cc/US74-KFGR].

⁶ See Chai Feldblum, Law, Policies in Practice and Social Norms: Coverage of Transgender Individuals under Sex Discrimination Law, 14 Wayne State L. Rev. 1, 1 (2013) (describing role of law, policies and social norms in achieving social justice goal).

⁷ One caveat: This essay is based on a lecture I delivered at Boston University School of Law in October 2024. Supra note 1. In November 2025, Donald Trump was elected President of the United States. In January 2025, the Trump Administration began an onslaught against “Diversity, Equity and Inclusion (DEI)” which the Administration characterized as anti-equality, anti-merit and anti-American. See, e.g., Ending Radical and Wasteful Government DEI Programs and Preferencing, Exec. Order No. 14,151, 90 Fed. Reg. 8339 (Jan. 20, 2025). The Trump Administration also cut back on affirmative action obligations on the part of federal contractors with regard to race and sex. See Ending Illegal Discrimination and Restoring Merit Based Opportunity, Exec. Order No. 14,173 (Jan. 31, 2025) (rescinding Executive Order 11246). The President cannot legally rescind Sections 501 or 503 of the Rehabilitation Act of 1973 by Executive Order. See infra Section III.B. Nevertheless, at the time of the publication of this essay, we do not know what the full impact these attacks on DEI will have on the employment of people with significant disabilities over the next few years. For more information, see statements issued by EEO Leaders on ongoing attacks by the Trump Administration on equal employment opportunity, EEO Leaders Share Official Statements, Letters, and Other Public Documents that Respond to the Current Administration’s Actions Adversely Impacting Equal Employment Opportunity, Equal Emp. Opportunity Leaders, https://www.eeoleaders.org/eeoleadersstatements [https://perma.cc/K3DV-MBJC] (last visited Sep. 10, 2025).

⁸ Under the ADA, a “disability” means, “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment … .” 42 U.S.C. § 12102(1).

⁹ As an example of the broad range of possible disabilities, it is useful to look at the form federal employees fill out when they start their job. U.S. Off. of Pers. Mgmt., Self-Identification of Disability, Form No. 256 (2016) https://www.opm.gov/forms/pdf_fill/sf256.pdf [https://perma.cc/JFV4-EX9M] [hereinafter SF-256]. The form asks the employee to self-identify, on a voluntary basis, whether they have a “targeted disability” or a non-targeted disability. Id. The long list of other disabilities are: speech impairment; spinal abnormalities, for example, spina bifida or scoliosis; non-paralytic orthopedic impairments, for example, chronic pain, stiffness, weakness in bones or joints, some loss of ability to use part or parts of the body; HIV positive/AIDS; morbid obesity; nervous system disorder for example, migraine headaches, Parkinson’s disease, or multiple sclerosis; cardiovascular or heart disease; depression, anxiety disorder, or other psychiatric disorder; blood diseases, for example, sickle cell anemia, hemophilia; diabetes; orthopedic impairments or osteo-arthritis; pulmonary or respiratory conditions, for example, tuberculosis, asthma, emphysema; kidney dysfunction; cancer (present or past history); learning disability or attention deficit/hyperactivity disorder (ADD/ADHD); gastrointestinal disorders, for example, Crohn’s disease, irritable bowel syndrome, colitis, celiac disease, dysphexia; autoimmune disorder, for example, lupus, fibromyalgia, rheumatoid arthritis; liver disease, for example, hepatitis or cirrhosis; history of alcoholism or history of drug addiction (but not currently using illegal drugs); endocrine disorder, for example, thyroid dysfunction. Id. There is then an option to select that you have a medical condition not listed on the form. Id. At the time of this essay’s publication, Form SF-256 was still on the website of the Office of Personnel Management (OPM) and was presumably being used by federal agencies. As a matter of law, the government must use the process laid out in the Paperwork Reduction Act to rescind use of the form. 44 U.S.C. §§ 3501–3521.

¹⁰ See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (Sep. 25, 2008). The ADA Amendments Act of 2008 made the definition of disability very broad through various means. First, it defined a “major life activity” as including “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(2)(B). Second, it directed that the term “substantially limits” be applied in a broad fashion, rejecting court decisions that had construed the term to set a high level of functional limitation. 42 U.S.C. § 12102(4)(B). Third, it directed that “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication …” 42 U.S.C. § 12102(4)(E)(i). The ADA Amendments Act of 2008 was necessary because the Supreme Court had severely restricted the definition of disability under the ADA, resulting in the exclusion of millions of people with medical conditions originally intended by Congress to be covered under the ADA. See generally Chai R. Feldblum, Kevin Barry & Emily A. Benfer, The ADA Amendments Act of 2008, 13 Tex. J. C.L. & C.R. 187 (2008) (describing passage of, need for, and elements of the bill); Chai R. Feldblum, The Definition of Disability Under the Americans with Disabilities Act: What Happened, Why, and What Can We Do About It?, 21 Berkeley J. on Lab. and Emp. L. 91 (2000) (describing the case law requiring an amendment to the definition of disability in the ADA).

¹¹ I always make a point of coming out as a person with the non-visible disability of anxiety disorder, see Chai Feldblum (@Chai Feldblum), LinkedIn, biography, https://www.linkedin.com/in/chai-feldblum-8882894/ [https://perma.cc/5A45-TQQU]. See generally, e.g., Anna-Kaisa Newheiser, Hidden Costs of Hiding Stigma: Ironic Interpersonal Consequences of Concealing a Stigmatized Identity in Social Interactions, 52 J. Experimental Psych. 58 (2014) (describing higher negative attitudes associated with invisible disabilities than visible disabilities and describing potential negative outcomes from concealing an invisible disability).

¹² Chris Stewart, U.S. AbilityOne Comm’n., statement at 2024 NIB/NAEPB Training Conference & Expo (Oct. 24, 2024).

¹³ 42 U.S.C. § 12112(d)(3).

¹⁴ See, e.g., Charles Bellemare et al., Physical Disability and Labor Market Discrimination: Evidence from a Video Résumé Field Experiment, 15 Am. Econ. J.: Applied Econ. 452, 452 (2023) (finding that revealing physical disabilities decreases callback rates by 25 percentage points).

¹⁵ About the American Community Survey, U.S. Census Bureau (Apr. 22, 2025), https://www.census.gov/programs-surveys/acs/about.html [https://perma.cc/AF5A-LMCL].

¹⁶ Top Questions About the Survey, U.S. Census Bureau (Apr. 17, 2025), https://www.census.gov/programs-surveys/acs/about/top-questions-about-the-survey.html [https://perma.cc/LAC4-YYM5].

¹⁷ This is the data that the Yang-Tan Institute on Employment and Disability at Cornell University uses for its analysis of the employment rates for people with disabilities. See Cornell Univ., 2022 Disability Status Report United States 32 (2024), https://production-disabilitystatistics-org.s3.amazonaws.com/reports/2022-PDF/2022-StatusReport_US.pdf [https://perma.cc/EV72-N6M9]. The group of people with disabilities who answer the ACS’s employment questions are not in institutions. See id. at 6. For the survey itself, see U.S. Census Bureau, American Community Survey 16-18 (2025), https://www2.census.gov/programs-surveys/acs/methodology/questionnaires/2025/quest25.pdf [https://perma.cc/6RZF-EDQP];

¹⁸ The ACS survey asks the questions in this fashion:

1. 1)

   1) visual disability — people who say they are blind or have serious difficulty seeing even when wearing glasses

2. 2)

   2) hearing disability — people who say they are deaf or have serious difficulty hearing

3. 3)

   3) ambulatory disability — people who say they have serious difficulty walking or climbing stairs

4. 4)

   4) cognitive disability — people who, because of a physical or mental condition, have serious difficulty concentrating, remembering, or making decisions

5. 5)

   5) self-care disability — people who have difficulty dressing or bathing on their own

6. 6)

   6) independent living disability — people who, because of a physical or mental condition, have difficulty doing errands alone, such as visiting a doctor’s office or shopping.

How Disability Data are Collected from The American Community Survey, U.S. Census Bureau (Nov. 21, 2021), https://www.census.gov/topics/health/disability/guidance/data-collection-acs.html [https://perma.cc/ZGX2-ZWR7].

¹⁹ Because the Census describes respondents who answer these questions as “people with disabilities,” rather than “people with significant disabilities,” I will use that terminology when reporting the Census data. Id. However, for purposes of the social justice goal I articulate at the outset of this essay, I will refer to employment of people with “significant disabilities” throughout this essay, with the understanding that the Census data is an undercount of that group. See id.

²⁰ See Cornell Univ., 2022 Disability Status Report United States 32 (2024), https://production-disabilitystatistics-org.s3.amazonaws.com/reports/2022-PDF/2022-StatusReport_US.pdf [https://perma.cc/EV72-N6M9].

²¹ Id. at 33. The Yang-Tan Institute on Employment and Disability at Cornell University runs sophisticated analyses of the ACS and publishes an annual disability status report. See Disability Statistics, https://www.disabilitystatistics.org/ [https://perma.cc/3EFP-HZ99] (last visited Sep. 10, 2025).

²² This disparity has been consistent and persistent for decades. See Kyle DeMaria & Christopher McLaren, Trends in Disability Employment, U.S. Dep’t of Lab.: Trendlines (Oct. 2024), https://www.dol.gov/sites/dolgov/files/ETA/opder/DASP/Trendlines/posts/2024_10/Trendlines_October_2024.html [https://perma.cc/RK84-VEYR].

²³ Cornell Univ., supra note 20, at 34.

²⁴ Id. at 35.

²⁵ See Bellemare, supra note 14.

²⁶ See, e.g., Newheiser, supra note 11, at 58.

²⁷ See Try Returning to Work Without Losing Disability, Social Security Admin., https://www.ssa.gov/disability/work [https://perma.cc/X9CA-BPQQ] (last visited Sep. 26, 2025). In addition, as noted supra notes 15-18, because of the relatively narrow manner in which the ACS defines disability, there may be many more people with disabilities who were looking for work in 2022 and did not have a job.

²⁸ Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355.

²⁹ 29 U.S.C. § 794.

³⁰ See Richard Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy 9 (1984) [hereinafter From Good Will to Civil Rights]; Judith Heumann, Being Heumann: An Unrepentant Memoir of a Disability Rights Activist (2020). The documentary Crip Camp provides a compelling picture of the disability rights activism of the time. Crip Camp: A Disability Revolution (Netflix, 2020), https://www.netflix.com/title/81001496 [https://perma.cc/9F6C-8XSB].

³¹ Although disability rights activism had risen during the late 1960s and early 1970s, see supra note 30, Section 504 was included in the Rehabilitation Act of 1973 due to action by a few congressional staffers rather than from direct lobbying by disability advocatess. According to Richard Scotch, who interviewed congressional staff involved in drafting the Rehabilitation Act of 1973, a group of staff had gathered in August 1972 to discuss the latest draft of the bill. “Staff members felt that the final goal of the VR [vocational rehabilitation] program, getting disabled people into the mainstream of society, was being blocked by negative attitudes and discrimination on the part of employers and others.” From Good Will to Civil Rights, supra note 30, at 51. Someone suggested using the approach of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, which prohibit entities that receive federal financial assistance from discriminating on the basis of race, color and national origin (Title VI) and prohibit educational institutions that receive federal financial assistance from discriminating on the basis of sex (Title IX). Id. at 51-52. “Roy Millenson of Senator Javits’ staff had been involved in the development of the Education Amendments, and he ran out to his office and brought back language from Title VI.” Id. at 52. The staffers adapted the language from Title VI to read: “No otherwise qualified handicapped individual, as defined in section (7)(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in any program or activity receiving federal financial assistance.” Id. A year later, the definition of “handicap” in the law needed to be amended for purposes of the new non-discrimination provisions in the law. The definition of a “handicapped individual” in the law was an individual who had a physical or mental disability that resulted in a substantial handicap to employment and could “reasonably be expected to benefit in terms of employability from vocational rehabilitation services.” Id. at 65. While that definition made sense for establishing eligibility for vocational rehabilitation services, it was not a helpful definition for non-discrimination purposes. Lawyers in the Office of Civil Rights in the Department of Health, Education and Welfare who were drafting regulations to implement Section 504, in particular Ann Beckman and John Wodatch, developed an alternative definition of handicap for purposes of the non-discrimination provision in the law: a “physical or mental impairment which substantially limits one or more major life activities, … has a record of such an impairment, or … is regarded as having such an impairment.” Id. at 66. That definition was added as a technical amendment to the Rehabilitation Act in 1974. Id.

³² Id. at 82-120.

³³ Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327.

³⁴ See Chai Feldblum, Medical Examinations and Inquiries Under the Americans with Disabilities Act: A View from the Inside, 64 Temp. L. Rev. 521, 523-25 (1991) (describing history of the development of the ADA).

³⁵ Americans with Disabilities Act of 1990, Pub. L. No. 101-336, tit. 1, 104 Stat. 327, 330-37.

³⁶ See id.

³⁷ 42 U.S.C. § 12112(a)-(b).

³⁸ See supra note 8.

³⁹ For example, in fiscal year 2024, EEOC was able to successfully resolve approximately 6,000 disability-related charges brought by complainants. See Enforcement and Litigation Statistics, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0 [https://perma.cc/4PL8-7Z5L]. (Scroll down to ADA Charge Receipts and Resolutions. In FY2024, there were 2,876 settlements, 2,867 withdrawals with benefits, and 302 successful conciliations) (last visited Oct. 17, 2025).

⁴⁰ See, e.g., The ADA: Your Responsibilities as an Employer, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/publications/ada-your-responsibilities-employer [https://perma.cc/YX5U-NMBR] (discussing how employees may be trained on ADA obligations) (last visited Sep. 26, 2025).

⁴¹ See, e.g., Joseph Shapiro, Disability Pride: The High Expectations of a New Generation , N.Y. Times (July 17, 2020), https://www.nytimes.com/2020/07/17/style/americans-with-disabilities-act.html [https://perma.cc/9GZP-E8WU] [hereinafter Disability Pride].

⁴² See DeMaria & McLaren, supra note 22.

⁴³ See EEOC Informal Discussion Letter, U.S. Equal Emp. Opportunity Comm’n (July 10, 2018), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-320#:~:text=Both%20the%20text%20of%20the,See%2042%20U.S.C [https://perma.cc/3VJ8-QB8H] [hereinafter EEOC Informal Discussion Letter].

⁴⁴ 42 U.S.C. § 12201(g) (”Nothing in this chapter shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.").

⁴⁵ See EEOC Informal Discussion Letter, supra note 43. The ADA of 1990 had prohibited discrimination against “a qualified individual with a disability.” Americans with Disabilities Act of 1990, Pub. L. No. 101-336 § 102(a), 104 Stat. 327, 331. The ADA Amendments Act of 2008 changed the statutory language to prohibit discrimination “on the basis of disability” to bring the text in line with other federal anti-discrimination laws. ADA Amendments Act of 2008, Pub. L. No. 110-325, § 5, 122 Stat. 3553, 3557. Once this was done, those of us drafting the bill realized that this language would permit people without disabilities to bring claims of discrimination if they did not receive the same accommodations as people with disabilities, or if people with disabilities received the benefit of affirmative action. We therefore added a provision disallowing a “reverse discrimination claim.” Id. § 6(g).

⁴⁶ The EEOC regulations reinforce this point. See 29 C.F.R. § 1630.4(b) (2025) ("Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability."). The EEOC Discussion Letter on July 10, 2018, further explicates the provision. EEOC Informal Discussion Letter, supra note 43.

⁴⁷ See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985).

⁴⁸ See id.

⁴⁹ See DeMaria & McLaren, supra note 22.

⁵⁰ See infra Section III.B.1.

⁵¹ See infra Section III.B.2.

⁵² 29 U.S.C. § 793(a).

⁵³ See Siken, supra note 4. The percentage and number of employees in this country who work for a federal contractor are not readily available.

⁵⁴ 29 U.S.C. § 793(a).

⁵⁵ Employment Law Guide: Federal Contracts-Equal Opportunity in Employment: Employment Nondiscrimination and Equal Opportunity for Qualified Individuals with Disabilities, U.S. Dep’t of Lab. (Mar. 2025), https://webapps.dol.gov/elaws/elg/503.htm#:~:text=Section%20503%20and%20its%20implementing,as%20having%20such%20an%20impairment [https://perma.cc/R6F3-GVN5] [hereinafter DOL, Federal Contracts].

⁵⁶ 41 C.F.R. § 60-741 (2025). OFCCP also issued a document. Section 503 Regulations Frequently Asked Questions, Off. of Fed. Cont. Compliance Programs (July 17, 2025), https://www.dol.gov/agencies/ofccp/faqs/section-503 [https://perma.cc/729N-HB7R]. Although President Trump rescinded Executive Order 11246 that required affirmative action on the basis of race and sex by federal contractors, see supra note 7, it is only Congress that can rescind the statutory affirmative action requirement on the basis of disability for federal contractors, Jared P. Cole & Daniel T. Shedd, Cong. Rsch. Serv., R48523, Organizing Executive Branch Agencies: Structure and Delegations of Authority 1 (2025) (“The President and the executive agencies created by Congress are bound by the laws creating the agencies and endowing them with authority to act.”). The Department of Labor can, however, modify or rescind the regulations implementing Section 503. See Kate R. Bowers & Daniel J. Sheffner, Cong. Rsch. Serv., R46673, Agency Rescissions of Legislative Rules 2 (2021) (“[A]gencies generally are able to rescind [regulations] … . [I]t generally must do so in compliance with the APA’s requirements … .”). On July 1, 2025, the Department of Labor issued a proposal to rescind the sections of the Section 503 regulations that required federal contractions to reach the 7% aspirational goal of people with disabilities, and to ask applicants and employees to self-identify their disability status. Modifications of the Regulations Implementing Section 503 of the Rehabilitation Act of 1973, as Amended, 90 Fed. Reg. 28494 (July 1, 2025) (to be codified at 41 C.F.R. Pts. 60-30, 60-741).

⁵⁷ 41 C.F.R. § 60-741.42.

⁵⁸ 41 C.F.R. § 60-741.45(a).

⁵⁹ 41 C.F.R. § 60-741.44(f).

⁶⁰ 41 C.F.R. §§ 60-741.40, -741.43, -741.44.

⁶¹ 41 C.F.R. § 60-741.2(g).

⁶² Indeed, disability advocacy groups communicated to OFCCP their concerns with the overbreadth of the definition of disability in the Section 503 affirmative action requirements. See Letter from ACCSES et al., to Tom Perez, Sec’y of Lab. & Patricia Shiu, Dir., Off. of Fed. Cont. Compliance Programs (Oct 15, 2013), https://www.chaifeldblum.com/wp-content/uploads/2025/03/Disability-Group-Letter-to-DOL-10.15.13.pdf [https://perma.cc/UL6J-TVS6].

⁶³ See supra note 7. The budget sent by the Department of Labor (DOL) to Congress in May 2025 included the Administration’s request to eliminate OFCCP and to transfer its responsibility for enforcing the affirmative action obligation of federal contractors for people with disabilities to the EEOC. See Dep’t of Lab., FY 2026 Budget in Brief 3 (2025), https://www.dol.gov/sites/dolgov/files/general/budget/2026/FY2026BIB.pdf [https://perma.cc/ZNW3-G39G]; T. Scott Kelly, Christopher J. Near & Zachary Zagger, Trump Administration Proposes Elimination of OFCCP, Ogletree Deakins (June 4, 2025), https://ogletree.com/insights-resources/blog-posts/trump-administration-proposes-elimination-of-ofccp-launches-new-opinion-letter-program-for-labor-guidance/ [https://perma.cc/GM65-YGAV].

⁶⁴ This answer could previously be found as the response to Q.5 of OFCCP’s FAQs on Section § 503. For the archived version showing this see Section 503 Regulations Frequently Asked Questions, Off. of Fed. Cont. Compliance Programs, https://web.archive.org/web/20200430203247/https://www.dol.gov/agencies/ofccp/faqs/section-503#Q6 (last visited Sep. 26, 2025).

⁶⁵ See DOL, Federal Contracts, supra note 55.

⁶⁶ See id. Prior to March 2025, the OFCCP had a document on its website describing how it scheduled audits and explaining the data a contractor was required to provide during the audit. For an archived version of the site, see Frequently Asked Questions Scheduling Letter and Itemized Listing, Off. of Fed. Cont. Compliance Programs, https://web.archive.org/web/20200513143248/https://www.dol.gov/agencies/ofccp/faqs/scheduling-letters (last visited Sep. 26, 2025). Most of OFCCP’s audits were done to enforce E.O. 11246, rescinded by President Trump on January 31, 2025. See supra note 7. However, OFCCP continues to have the responsibility to enforce Section 503 which cannot be revoked through an Executive Order. Lauren B. Hicks, T. Scott Kelly & Zachary V. Zagger, OFCCP Unveils Regulation Changes Winding Down Federal Contractor Affirmative Action Mandates, Ogletree Deakins (June 30, 2025), https://ogletree.com/insights-resources/blog-posts/ofccp-unveils-regulation-changes-winding-down-federal-contractor-affirmative-action-mandates/ [https://perma.cc/63HY-CX69] (“Currently, the OFCCP retains responsibility for enforcing federal contracting nondiscrimination and affirmative action obligations for … individuals with disabilities under Section 503 of the Rehabilitation Act of 1973.”). But see supra note 63 regarding proposal to transfer enforcement of Section 503 from OFCCP to the EEOC. If that occurs, the EEOC would have responsibility to enforce Section 503.

⁶⁷ Rehabilitation Act of 1973 § 501, 29 U.S.C. § 791.

⁶⁸ See 29 C.F.R. § 1614 (2025); Questions & Answers: The EEOC’s Final Rule on Affirmative Action for People with Disabilities in Federal Employment, U.S. Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/questions-answers-eeocs-final-rule-affirmative-action-people-disabilities-federal [https://perma.cc/DHR2-DDNR] (last visited Sep. 10, 2025) [hereinafter Section 501 Q&As].

⁶⁹ Id. The EEOC also required federal agencies to calculate these percentages in the lower category of what are called GS-levels, as well as the higher category of GS-levels, so that the agency could determine whether people with significant disabilities were employed at higher levels of authority. 29 C.F.R. § 1614.203(d)(6)(i).

⁷⁰ 29 C.F.R. § 1614.203(a)(9) (“The term targeted disability means a disability that is designated as a ‘targeted disability or health condition’ on the Office of Personnel Management’s Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the Equal Employment Opportunity Commission’s Demographic Information on Applicants form.”). The following are the targeted disabilities listed on those forms: deaf or serious difficulty hearing; blind or serious difficulty seeing even when wearing glasses; missing an arm, leg, hand, or foot; paralysis: partial or complete paralysis (any cause); significant disfigurement: for example, severe disfigurements caused by burns, wounds, accidents, or congenital disorders; significant mobility impairment: for example, uses a wheelchair, scooter, walker or uses a leg brace to walk; significant psychiatric disorder: for example, bipolar disorder, schizophrenia, PTSD, or major depression; intellectual disability; developmental disability: for example, cerebral palsy or autism spectrum disorder; traumatic brain injury; being a little person (called “dwarfism” on the list); and epilepsy or other seizure disorder. See U.S. Equal Emp. Opportunity Comm’n, OMB No. 3046-0046, Demographic Information on Applicants Form 2-3 (2020) https://www.eeoc.gov/sites/default/files/migrated_files/federal/2017-approved-Applicant-Form.pdf [https://perma.cc/4Q2Y-LMPY]; SF-256, supra note 9.

⁷¹ See supra notes 68-70 and accompanying text.

⁷² The latest published report from the EEOC provides data from FY 2021. See U.S. Equal Emp. Opportunity Comm’n, Annual Report on the Federal Workforce Part II: Workforce Statistics and EEO Commitment, Fiscal Year 2021 (2024), https://www.eeoc.gov/fy-2021-annual-report-federal-workforce-part-2-workforce-statistics-and-eeo-commitment [https://perma.cc/CF9T-HF3L]. That report states that participation rates by people with disabilities increased from 8.70% in fiscal year (FY) 2016 to 10.50% in FY 2021. Id. at 10. For people with targeted disabilities, the participation rates increased from 1.01% in FY 2016 to 2.12% in FY 2021. Id.

⁷³ A Profile of the 2023 Federal Workforce, P’ship for Public Serv., https://ourpublicservice.org/fed-figures/a-profile-of-the-2023-federal-workforce/ [https://perma.cc/EMU9-G6HV] (last visited Sep. 26, 2025).

⁷⁴ Id.

⁷⁵ See U.S. Equal Emp. Opportunity Comm’n, Retaining Persons with Disabilities in the Federal Workforce 15 (2024) (recommending response to address lower retention rate for people with disabilities in federal government compared to people without disabilities). In 2024, the EEOC issued a report on how agencies can use Schedule A hiring authority to appoint job applicants with certain disabilities to federal positions outside the competitive hiring process. That report has been removed from the EEOC’s website. For an archived version, see Promising Practices for Using Schedule A to Recruit, Hire, Advance, and Retain Persons with Disabilities, U.S. Equal Emp. Opportunity Comm’n, https://web.archive.org/web/20250119215345/https://www.eeoc.gov/federal-sector/reports/promising-practices-using-schedule-recruit-hire-advance-and-retain-persons (last visited Sep. 26, 2025).

⁷⁶ See, e.g., Katherine Gallagher Robbins & Areeba Haider, Trump’s Plan to Decimate the Federal Workforce Will Harm Disabled Workers, Veterans, Women of Color & the Economy, Nat’l P’ship for Women and Fams. (Jan. 2025), https://nationalpartnership.org/report/trump-decimate-federal-workforce-harm-disabled-workers-veterans-women-of-color-economy/ [https://perma.cc/8PBL-4XY6].

⁷⁷ See Section 501 Q&As, supra note 68 (“The EEOC will not disapprove an agency’s affirmative action plan solely because the agency has not reached the rule’s employment goals. The EEOC will work with agencies who do not meet the goals to develop steps to improve their hiring.”).

⁷⁸ Rehabilitation Act of 1973, 29 U.S.C. §§ 701-18. For a comprehensive history of the vocational rehabilitation program from 1917 to 1959, see Jacobus tenBroek & Floyd W. Matson, Hope Deferred: Public Welfare and the Blind 161-229 (1959) [hereinafter Hope Deferred].

⁷⁹ The Rehabilitation Services Administration of the Department of Education manages the vocational rehabilitation services program. See State Vocational Rehabilitation Services Program, Rehab. Servs. Admin., https://rsa.ed.gov/about/programs/vocational-rehabilitation-state-grants [https://perma.cc/53ZG-3SPY] (last visited Sep. 26, 2025).

⁸⁰ U.S. Dep’t. of Educ., Fiscal Year 2024 Budget Summary 33 (2023). The Department of Education’s FY2026 Budget Request asks for $3.7 billion for rehabilitation services, the same level appropriated for FY2024. U.S. Dep’t of Educ., Fiscal Year 2026 Budget Summary 26 (2025).

⁸¹ Workforce Innovation and Opportunity Act of 2014, Pub. L. No. 113-128, 128 Stat. 1425.

⁸² 29 U.S.C. § 720(a)(3)(A)-(B). “Competitive, integrated employment” is defined as consisting of:

1. 1)

   1) The employee is paid the minimum federal, state or local wage and is paid comparably to employees without disabilities doing the same or similar work as employees without disabilities;

2. 2)

   2) The employee is “at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons;” and

3. 3)

   3) The work presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.

29 U.S.C. § 705(5).

⁸³ See DeMaria & McLaren, supra note 22.

⁸⁴ For years, the program was called the JWOD program, named after the authorizing legislation, the Javits-Wagner-O’Day Act (“JWOD Act”). See, e.g., History, U.S. AbilityOne Comm’n, https://www.abilityone.gov/abilityone_program/history.html [https://perma.cc/G7B2-LTDP] (describing history of “JWOD Program”) (last visited Oct. 17, 2025). In 2006, the program rebranded itself as the AbilityOne Program and the governing body was renamed the AbilityOne Commission rather than the Committee for Purchase from People Who Are Blind or Severely Disabled. Id. The choice to use the term “ability” in the name of the program reflects the philosophy of some individuals that it is better to emphasize the “ability” of people with disabilities, rather than their disability. In contrast, many members of the disability advocacy community reject using terms like “ability” and “differently abled” and embrace the term “disability” as a matter of disability pride. While I fall into the latter category, for purposes of this essay, I use the current name of the program.

⁸⁵ Jonathan Grossman, Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage, U.S. Dep’t of Lab. [hereinafter Maximum Struggle for a Minimum Wage], https://www.dol.gov/general/aboutdol/history/flsa1938 [https://perma.cc/96U9-AYBG] (last visited Sep. 26, 2025). This is a short history of the FLSA written by Jonathan Grossman, the Historian for the U.S. Department of Labor in the 1970s. The article originally appeared in the Monthly Labor Review of June 1978. Id.

⁸⁶ Act to Create a Committee on Purchases of Blind-made Products, Pub. L. No. 75-739, 52 Stat. 1196 (1938).

⁸⁷ Javits-Wagner-O’Day Act, Yale L. Sch. Lillian Goldman L. Libr. Documents Collection Ctr., https://documents.law.yale.edu/javits-wagner-oday-act [https://perma.cc/6W6S-W4PM] (last visited Sep. 26, 2025).

⁸⁸ 41 U.S.C. § 8502(b). One officer or employee from each of the following agencies, nominated by the head of the department or agency, was represented on the Committee: The Department of Agriculture; the Department of Defense; the Department of the Army; the Department of the Navy; the Department of the Air Force; the Department of Health, Education and Welfare, the Department of Commerce; the Department of Veterans Affairs; the Department of Justice; the Department of Labor; and the General Services Administration. 41 U.S.C. § 8502(b)(1). In 1938, the Rehabilitation Services Administration (RSA) was located within the then- Department of Health, Education and Welfare. Congress subsequently transferred RSA to the Department of Education and hence the Department of Education was substituted on the list of agencies represented on the Committee. Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat 669 (1979). The Department of Health, Education and Welfare became the Department of Health and Human Services, which is not currently represented on the AbilityOne Commission. HHS Historical Highlights, U.S. Dep’t of Health & Hum. Servs., https://www.hhs.gov/about/historical-highlights/index.html [https://perma.cc/BY3H-RGCS] (last visited Sep. 26, 2025) (“The Department of Health, Education, and Welfare (HEW) became the Department of Health and Human Services (HHS) on May 4, 1980.”). See U.S.C. § 8502(b)(1). Because of the nature of the Committee, the representatives were government personnel involved in the procurement process.

⁸⁹ See 41 U.S.C. § 8503(a);

⁹⁰ See Procurement List, U.S. AbilityOne Comm’n, https://www.abilityone.gov/procurement_list [https://perma.cc/9BAK-ZWYZ] (last visited Sep. 10, 2025) (“Federal customers must buy Procurement List products or services from … an authorized AbilityOne distributor until: (1) the government no longer has requirements for that item, or (2) a nonprofit agency employing people who are blind or have significant disabilities can no longer furnish that item.”).

⁹¹ 41 U.S.C. § 8504.

⁹² 41 U.S.C. § 8503(b).

⁹³ 41 U.S.C. § 8501(7)(A) (“The term ‘qualified nonprofit agency for the blind’ means an agency … operated in the interest of blind individuals; and … that in the production of products (whether or not the products are procured under this chapter) during the fiscal year employs blind individuals for at least 75 percent of the hours of direct labor required for the production of the products.”).

⁹⁴ 41 U.S.C. § 8501(3) (“The term ‘direct labor’ — (A) includes all work required for preparation, processing, and packing of a product; but (B) does not include supervision, administration, inspection, or shipping.”).

⁹⁵ 41 U.S.C. § 8501(3)(B).

⁹⁶ Id.

⁹⁷ 41 U.S.C. § 8501(7)(C).

⁹⁸ Act to Create a Committee on Purchases of Blind-made Products, Pub. L. 75-739, § 3 52 Stat. 1196, 1196 (1938). The law also required the Committee to establish a central nonprofit agency that would facilitate allocation of the contracts to nonprofit agencies across the country. See 41 U.S.C. §8503(c) (“The Committee shall designate a central nonprofit agency or agencies to facilitate the distribution, by direct allocation, subcontract, or any other means, of orders of the Federal Government for products on the procurement list among qualified nonprofit agencies for the blind.”).

⁹⁹ See Hope Deferred, supra note 78, at 249-68 (providing historical background on sheltered workshops, including sheltered workshops for the blind).

¹⁰⁰ Id.

¹⁰¹ See id. at 250.

¹⁰² Id.

¹⁰³ Id. (“The schoolmasters were confident that blind students had only to demonstrate their mastery of these elementary trades in order to be accepted into competitive employment and to attain self support.”).

¹⁰⁴ Id. at 251.

¹⁰⁵ Id. at 251 (“The newly trained graduates of the schools were given no opportunity to prove their abilities, but instead found all doors closed against them.”).

¹⁰⁶ Id.

¹⁰⁷ Id. (“Instead of resulting (as today we might assume it should) in vigorous emphasis on programs of placement, personal demonstration and public education to prove the feasibility of the goal of integration, the disillusionment of the educators found expression in hasty abandonment of the goal itself. At the first signs of public resistance, the optimistic philosophy of the school men crumbled; they conceded in effect that they had been wrong in believing the blind capable of competition and self-support; they were prepared to accept as irremovable the prohibitive stereotypes against which they had formerly ranged themselves, and to assist in reinforcing the ancient walls of segregation and dependency.”).

¹⁰⁸ Id. at 251-52. As one school report put it: “The proper preventive … is the establishment of a Retreat where their bread can be earned, their morals protected, and a just estimate put upon their talents.” Id. at 251.

¹⁰⁹ Id. at 252. While the schools ultimately stopped their sponsorship of the workshops, other charitable organizations moved in to create the workshops. Id. “The concept of sheltered employment found wide favor among charitable and philanthropic interests as a convenient solution to the problem of what to do with the blind, consistent alike with poor-law principles of social responsibility and with Calvinist assumptions of the virtues of toil for its own sake.” Id.

¹¹⁰ See Mary Jane Surrago, Empowering People: The Story of National Industries for the Blind and its Associated Agencies 5 (2013).

¹¹¹ See Nat’l Fed’n of the Blind, https://nfb.org/ (last visited Sep. 10, 2025). For a short history of the NFB, see History and Governance, Nat’l Fed’n of the Blind, https://nfb.org/about-us/history-and-governance (last visited Sep. 10, 2025).

¹¹² See Hope Deferred, supra note 78, at 218.

¹¹³ See Act to Amend the Wagner-O’Day Act, Pub. L. No. 92-28, 85 Stat. 77 (1971).

¹¹⁴ See Act to Amend the Wagner-O’Day Act, Pub. L. No. 92-28, § 2, 85 Stat. 77, 79-80 (1971); 41 U.S.C. § 8503(a) (expanding sole-source procurement list to include services, as well as products); 41 U.S.C. § 8504(a) (requiring government agencies to procure products and services on the sole-source procurement list from qualified nonprofit agencies for blind people or people with “severe disabilities”).

¹¹⁵ 41 U.S.C. § 8501(8).

¹¹⁶ See 41 U.S.C. § 8501(7)(A)(ii), (C).

¹¹⁷ See 41 U.S.C. § 8501(3).

¹¹⁸ See 41 U.S.C. § 8501(8).

¹¹⁹ See From Good Will to Civil Rights, supra note 30, at 45-59 on the involvement of Senator Javits and his staff on the inclusion of Section 504 in the Rehabilitation Act of 1973.

¹²⁰ See supra Section III.A.

¹²¹ From Good Will to Civil Rights, supra note 30, at 49.

¹²² Id.

¹²³ See Maximum Struggle for a Minimum Wage, supra note 85.

¹²⁴ See id.

¹²⁵ See id. (describing development of the FLSA).

¹²⁶ See 29 U.S.C. § 214(c).

¹²⁷ Lillie Heigl, Kimberly Knackstedt & Elena Silva, Pennies on the Dollar: The Use of Subminimum Wage for Disabled Workers across the United States 9 (2024), https://d1y8sb8igg2f8e.cloudfront.net/documents/FINAL_Pennies_on_the_Dollar_The_Use_of_Subminimum_Wage_for_Disabled_Workers_ac_SAOCsV4.pdf [https://perma.cc/KE5R-TS4B].

¹²⁸ Fair Labor Standards Act of 1938, Pub. L. No. 75-718, § 14, 52 Stat. 1060, 1068 (codified as amended at 29 U.S.C. § 214(c)).

¹²⁹ See Fact Sheet #39: The Employment of Workers with Disabilities at Subminimum Wages, Dep’t of Lab., Wage and Hour Div., (July 2008), https://www.dol.gov/agencies/whd/fact-sheets/39-14c-subminimum-wage#:~:text=Section%2014(c)%20of%20the%20FLSA%20authorizes%20employers%2C%20after,and%20correctional%20parole%20or%20probation [https://perma.cc/7PNF-VQJY] (“Subminimum wages must be commensurate wage rates - based on the worker’s individual productivity, no matter how limited, in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn.”).

¹³⁰ Pennies on the Dollar provides a comprehensive review of the use of 14(c) certificates, problems with the subminimum wage, efforts by states to prohibit payment of subminimum wages to employees with disabilities and efforts to remove the provision of 14(c) from the FLSA. Heigl, Knackstedt & Silva, supra note 127. There is also an extensive academic literature on the problems with the subminimum wage for employees with disabilities. See, e.g., Michelle Maroto & David Pettinicchio, Worth Less? Exploring the Effects of Subminimum Wages on Poverty among U.S. Hourly Workers, 66 Socio. Persps. 455, 455-75 (2023); Carli Friedman, Ableism, Racism, and Subminimum Wage in the United States, Disability Stud. Q., Dec. 2019, at 15-17.

¹³¹ See 29 U.S.C. § 720(a)(1)(C) (“Individuals with disabilities, including individuals with the most significant disabilities, have demonstrated their ability to achieve gainful employment in competitive integrated employment settings if appropriate services and supports are provided.”).

¹³² See Disability Pride, supra note 41.

¹³³ Nat’l Council on Disability, Policies from the Past in a Modern Era: The Unintended Consequences of the AbilityOne Program & Section 14(c) 10(2020) [hereinafter NCD 2020 Report]. The contracts also often created mundane and low-skilled jobs. They were for products such as cleaning supplies, military uniforms, American flags, and pens, and for services such as custodial, landscaping and dining services. See AbilityOne Catalog, https://www.abilityonecatalog.com [https://perma.cc/5MDG-JJVP] (last visited Sep. 19, 2025).

¹³⁴ 41 U.S.C. § 8501(8).

¹³⁵ Based on their claim that people with disabilities working on the contracts were “clients,” rather than ordinary employees, some nonprofit agencies contested the right of their workers with disabilities to unionize under the National Labor Relations Act. See Laura Hannon, Employed, but not “Employees”: How the NLRB Has Failed Disabled Workers with the Primarily Rehabilitative Standard, 28 U. Pa. J.L. & Soc. Change 67, 73-75 (2024). For years, the National Labor Relations Board (NLRB) agreed with that argument, applying a case-by-case assessment to conclude that workers with disabilities were being treated differently than ordinary employees in terms of lighter discipline, lower productivity standards, the employer’s efforts to place those individuals in outside employment (following the provision of rehabilitation services), and the employer’s provision of counseling and services. See Goodwill Indus. of S. Cal., 231 N.L.R.B. 536, 537 (1977) (“The focus of Goodwill’s employment concern is upon rehabilitating its clients and preparing them for work in private competitive industry, not on producing a product for profit … . Goodwill might better be classified as a vocational clinic than as a viable entrepreneurial concern.”); Goodwill Indus. of Denver, 304 N.L.R.B. 764, 766 (1991) (“[Goodwill’s] disciplinary and production policy is clearly not typically industrial, and is guided not by business considerations but rather by a desire to continue to provide employment opportunities for its client/employees.”); Davis Mem’l Goodwill Indus. v. NLRB, 108 F.3d 406, 410 (D.C. Cir. 1997) (“Recognizing that in the rehabilitation setting the employer may very well safeguard employee interests more effectively than a union, the [NLRB] has a adopted a case by case approach in which it asks whether a program has such rehabilitative elements … .”); Balt. Goodwill Indus. v. NLRB, 134 F.3d 227, 231 (4th Cir. 1998) (finding Goodwill’s employment setting for its employees with disabilities is rehabilitative in nature rather than industrial in nature).

¹³⁶ See cases cited supra note 135.

¹³⁷ Id.

¹³⁸ See Advisory Comm. on Increasing Competitive Integrated Emp. for Individuals with Disabilities, Final Report ii (2016) [hereinafter WIOA Report].

¹³⁹ Id. at 56.

¹⁴⁰ Id. As the report noted: “The roots of JWOD go back 77 years to the Wagner-O’Day Act of 1938 … . Much has changed since that time in terms of federal policy regarding individuals with disabilities … . Modern disability policy—as reflected in the ADA and other federal laws—embraces high expectations, including that of full inclusion of people with disabilities in all aspects of life including the workplace … . However, AbilityOne has not evolved to fully reflect modern disability policy goals … .” Id.

¹⁴¹ Id. at 57-59. As the report noted: “The primary recommendations below address the need for program reform, the need to identify and test new methods of federal contract operation and oversight for the program, and the need to evaluate the implementation of these new methods. Taken together, these recommendations represent a comprehensive approach to modernizing the AbilityOne Program.” Id. at 57.

¹⁴² Id. at 57-61.

¹⁴³ NCD 2020 Report, supra note 133.

¹⁴⁴ Id. at. 9-10.

¹⁴⁵ Id. at 10-11.

¹⁴⁶ Id. at 11. The percentage was not set forth in the report. NCD recommended that the percentage be determined by a study. Id. at 71.

¹⁴⁷ Id. at 10-11.

¹⁴⁸ WIOA Report supra note 138, at 56.

¹⁴⁹ The NCD reaffirmed its conclusion in 2024. See Nat’l Council on Disability, National Disability Policy: A Progress Report, 2024 23-24 (2024). NCD’s 2024 progress report made a nod to various modernization efforts the AbilityOne Commission had made since 2020, including the Commission’s new strategic plan, its prohibition on the use of 14(c) certificates to pay employees working on AbilityOne contracts, a new policy strengthening oversight of the central nonprofit agencies, and a new policy strengthening eligibility requirements for a qualifying disability. Id. at 23-24. See infra Section IV.D for a description of these modernization efforts. NCD observed that many of these actions were consistent with the interim recommendations of the 2020 report. However, as NCD explained, these “interim recommendations were only contextually appropriate during the phaseout of the AbilityOne program, and implementation of any NCD interim recommendations does not negate our recommendation to phase out the AbilityOne program. Recent updates to the AbilityOne program do not address the underlying structural problems and incompatibility of the AbilityOne program with modern disability policy.” Id. at 24. The AbilityOne Commission subsequently published a statement responding to NCD’s recommendation. U.S. AbilityOne Comm’n, Statement on the Nat’l Council on Disability 2024 Progress Report (2024), https://www.abilityone.gov/documents/U.S.%20AbilityOne%20Commission%20Statement%20on%20NCD%202024%20Progress%20Report%2020241106-1606-a.pdf [https://perma.cc/692P-KJAE].

¹⁵⁰ See Chai Feldblum, Thoughts on Joining the AbilityOne Commission, Chai Feldblum: Disability (Aug. 26, 2021), https://www.chaifeldblum.com/thoughts-on-joining-the-abilityone-commission/ [https://perma.cc/EN34-GT74].

¹⁵¹ See U.S. AbilityOne Comm’n , Quarterly Public Meeting, at 02:21 (Zoom, Jan. 23, 2025), https://www.zoomgov.com/rec/play/225T3Ubqbx0_Yg1rhAqgG45amYZOanryTzN0thfGKwouEyujYHWBpAIOmZK4TwACTNb3QtqaEr7jRy-9.AN9Po4cl3Iq0_okn?canPlayFromShare=true&from=share_recording_detail&continueMode=true&componentName=rec-play&originRequestUrl=https://www.zoom for announcement of the firing of three citizen members. https://tinyurl.com/jpak2jrj. See also, Chai Feldblum, Stay Informed. Stay Angry. Stay Engaged, Medium (Mar. 13, 2025), https://medium.com/@chaifeldblum/stay-informed-stay-angry-stay-engaged-44c72bed265b [https://perma.cc/S66P-XGVT] (describing firing by the Trump Administration).

¹⁵² See discussion infra Section IV.D.

¹⁵³ See discussion infra Section IV.D.

¹⁵⁴ See U.S. AbilityOne Comm’n, U.S. AbilityOne Commission Quarterly Public Meeting 7 (2025), https://www.abilityone.gov/documents/Advance%20Slides%20for%20Jan%2023%202025%20AbilityOne%20Commission%20Public%20Meeting%2020250122--a.pdf [https://perma.cc/H5E5-NSST] [hereinafter U.S. AbilityOne Comm’n, Quarterly Public Meeting].

¹⁵⁵ Id. at 7.

¹⁵⁶ Id. at 8.

¹⁵⁷ ServiceSource, https://servicesource.org/total-facilities-management/ [https://perma.cc/Y99Y-LJJV] (last visited Oct. 17, 2025) (total facilities management contract).

¹⁵⁸ Melwood, https://melwood.org/business-services/ [https://perma.cc/A4M7-HK29] (last visited Oct. 17, 2025) (total facilities management contract and tech support contract).

¹⁵⁹ Tessera, https://tessera.org/ [https://perma.cc/NDJ3-J2JX] (last visited Oct. 17, 2025) (facility maintenance and manufacturing) (last visited Oct. 17, 2025).

¹⁶⁰ See NCD 2020 Report, supra note 133, at 40.

¹⁶¹ See supra note 7.

¹⁶² While the JWOD Act separates out blind people from people with other significant disabilities, for purposes of this section, my use of the term “people with significant disabilities” includes blind people.

¹⁶³ See U.S. AbilityOne Comm’n, Quarterly Public Meeting, supra note 154, at 7.

¹⁶⁴ Doubling the value amount of the contracts from $4 billion to $8 billion would not necessarily result in double the number of employees. As more sophisticated contracts that use automation flow through the program, the value of a contract may be high but the number of employees needed to carry out that contract may be low. It is important to have contracts that use sophisticated automation because the skills an employee learns in those work settings can be transferable to comparable jobs outside the contract, if the employee wishes to move to another job doing similar work.

¹⁶⁵ See supra text accompanying notes 42-48.

¹⁶⁶ See 42 U.S.C. § 12112(a).

¹⁶⁷ The importance of integration can be seen in the many cases applying Olmstead v. L.C., 527 U.S. 581 (1999) to eliminate the segregation of people with disabilities in institutions such as nursing homes. See Olmstead Cases by Circuit Courts of Appeal, Archive ADA, https://archive.ada.gov/olmstead/olmstead_cases_list.htm [https://perma.cc/4SXU-NX83] (last visited Oct. 17, 2025). In recent years, some cases have applied the Olmstead principle to employment. See United States v. Rhode Island, No. 1:14-cv-00175 (D.R.I. 2014) (statewide settlement agreement based on a finding by the Department of Justice that the State’s day activity service system over-relied on segregated settings, including sheltered workshops, to the exclusion of integrated alternatives, such as supported employment).

¹⁶⁸ 41 U.S.C. § 8501(6)(C) (emphasis added).

¹⁶⁹ See 41 U.S.C. § 8501(6)(C), (7)(C).

¹⁷⁰ See supra text accompanying notes 87-97.

¹⁷¹ 41 U.S.C. § 8501(8).

¹⁷² See supra, note 69.

¹⁷³ See infra text accompanying notes 189-192.

¹⁷⁴ See infra text accompanying notes 194-204 (describing an employee career development requirement).

¹⁷⁵ See WIOA Report, supra note 138, at 58 (recommending, in part, a study to evaluate whether vendor preferences should be given to small businesses owned by individuals with disabilities).

¹⁷⁶ See U.S. AbilityOne Comm’n, U.S. AbilityOne Commission Strategic Plan for Fiscal Years 2022-2026 14-16 (2022) [hereinafter Strategic Plan].

¹⁷⁷ Id. at 14. The first strategic objective of the Plan was to work with Congress to update the JWOD Act. Id. at 12-13.

¹⁷⁸ Id. at 14.

¹⁷⁹ Id. The Commission observed that this “is obviously harder, and frequently not possible, to achieve given the DLH [direct labor hour] ratio mandated by the JWOD Act. Id. Nevertheless, the Commission is aware of several examples in which such workplaces have been achieved in the AbilityOne Program.” Id.

¹⁸⁰ See 29 U.S.C. § 705(5).

¹⁸¹ See U.S. AbilityOne Comm’n, Strategic Plan, supra note 176, at 14.

¹⁸² See Anil Lewis, The Glass is Half Full: Investing in the Capacity of Workers with Disabilities, Nat’l Fed. for the Blind: Braile Monitor (Feb. 2014), https://nfb.org/sites/default/files/images/nfb/publications/bm/bm14/bm1402/bm140204.htm.

¹⁸³ See Letter from Thomas Robinson, Chairperson & Presidential Appointee, U.S. AbilityOne Comm’n, to Norman Lorentz, Chairman of the Bd., SourceAmerica (Feb. 19, 2019), https://www.abilityone.gov/media_room/documents/Commission%20Ltr%20to%20SourceAmerica%20-%20Subminimum%20Wage%20-%2020190219.pdf [https://perma.cc/H3BT-WJ5E].

¹⁸⁴ See id. (stating that the use of FLSA 14(c) certificates on AbilityOne contracts, which permitted payment of subminimum wages, was inappropriate). In response to the Commission’s letter, SourceAmerica initiated a “14(c) Transition Program” which provided nonprofit agencies with financial and technical assistance to eliminate their use of 14(c) certificates. See Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O’Day Act, 87 Fed. Reg. 43427, 43430 (Oct. 19, 2022). According to SourceAmerica, the number of employees paid under 14(c) certificates by its affiliated nonprofit agencies subsequently declined from 9,654 employees in mid-2018 to 2,900 employees as of the first quarter of FY 2022. Id.

¹⁸⁵ 41 C.F.R. § 51-4.2(a)(1)(iv) (2025) (requirement for establishing qualification as a nonprofit agency); 41 C.F.R. § 51-4.3(b)(10) (requirement for maintaining qualification as a nonprofit agency).

¹⁸⁶ See Prohibition on the Payment of Subminimum Wages Under 14(c) Certificates as a Qualification for Participation as a Nonprofit Agency Under the Javits Wagner O’Day Act, 87 Fed. Reg. at 43428.

¹⁸⁷ Id.

¹⁸⁸ See U.S. AbilityOne Comm’n, Minutes — Quarterly Public Meeting (2023), https://www.abilityone.gov/documents/Minutes%20for%20AbilityOne%20Commission%20Public%20Meeting%20Oct%2012%202023%20%E2%80%93%20a.pdf [https://perma.cc/2XQZ-RL57] U.S. AbilityOne Comm’n, Quarterly Public Meeting, at 16:00 (Zoom, Oct. 12, 2023), https://www.zoomgov.com/rec/share/xXLNdmfhWt1M1tewB4Eo0DwIjohzVXAowz5vJ00gCoALeoAO79hxPj0JUtpYFY0X.vpFyBgQpiPtJqF8z (statement of Chair Jeff Koses).

¹⁸⁹ See U.S. AbilityOne Comm’n, Determining Eligibility of Participating Employees, Policy 51.403 (2024), https://www.abilityone.gov/documents/Commission%20Policy%2051.403%20Determining%20Eligibility%20of%20Participating%20Employees%20signed-2Aug2024-a.pdf [https://perma.cc/2AXP-9U5P] [hereinafter Policy 51.403].

¹⁹⁰ See Policy 51.403, supra note 189 (requiring that nonprofit agencies would still need to certify the eligibility of individuals with disabilities who may not be receiving, or had not sought, government benefits).

¹⁹¹ See id.

¹⁹² Id. § 6(b).

¹⁹³ Id. § 6(c).

¹⁹⁴ Id.

¹⁹⁵ See U.S. AbilityOne Comm’n, Rights of Participating Employees, Policy 51.406 (2025), https://www.abilityone.gov/documents/Commission%20Policy%2051.406%20Rights%20of%20Participating%20Employees%2020240909_Final-a_signed.pdf [https://perma.cc/9KKW-BFB8] ("All participating employees are entitled to the same legal protections and subject to the same legal standards, and shall enjoy equal access to employment benefits, as non-disabled employees performing the same or similar work.”). The reality is that most nonprofit agencies were already treating their participating employees in that manner for purposes of labor and employment laws; the last appellate court to rule that participating employees were not “real” employees entitled to the protections of the NLRA was the Fourth Circuit Court of Appeals in 1998. See Baltimore Goodwill Indus. Inc. v. NLRB, 134 F.3d 227, 231 (4th Cir. 1998). Twenty-four years later, in 2022, the Fourth Circuit Court of Appeals rejected a similar argument from a nonprofit agency. See Sinai Hosp. of Baltimore, Inc. v. NLRB, 33 F.4th 715, 725-26 (4th Cir. 2022) (holding that the nonprofit agency treated its employees with disabilities working on the federal contract the same way it treated employees without disabilities working on the contract; and, therefore that they had the same right to unionize as did employees without disabilities).

¹⁹⁶ See U.S. AbilityOne Comm’n, U.S. AbilityOne Comm’n Issues Updated Draft Compliance Policy 51.405 “Employee Career Development” (2025), https://www.abilityone.gov/documents/Statement%20-%20U.S.%20AbilityOne%20Commission%20Issues%20Updated%20Draft%20Policy%2051.405-a.pdf [https://perma.cc/V5D3-MBYF].

¹⁹⁷ The most recent version of policy was issued for public comment in January 2025. See id. There was a long and deliberate process that resulted in Policy 51.405. A first draft of Policy 51.405 was posted for public comment in January 2023; the Commission received extensive feedback from stakeholders; the Commission subsequently contracted with the Association of People Supporting Employment First (APSE) to provide additional substance for Policy 405. U.S. AbilityOne Comm’n Awards Contract for Developing AbilityOne Program Career Planning Support Resources (2023), https://www.abilityone.gov/documents/U.S.%20AbilityOne%20Commission%20Statement%20-%20Career%20Planning%20Support%20Resources%20Contract%20Award%2020230927-1742%20508%20compliant.pdf [https://perma.cc/CU8M-BCGJ]; the Commission posted a revised draft of Policy 51-405 in January 2025; and the Commission received comments on the policy both via email and at its January 23, 2025 public meeting. The final policy will be published following approval by the Administration.

¹⁹⁸ See U.S. AbilityOne Comm’n, Employee Career Development § 5(c)(i), Policy 51.405 (2025), https://www.abilityone.gov/documents/UPDATED%20DRAFT%20Commission%20Policy%2051.405%20for%20Public%20Feedback%207Jan2025%201612-a.docx [https://perma.cc/TV87-TY4J].

¹⁹⁹ Id. § 4. As the draft policy explains: “[e]mployee career development prepares employees to explore diverse roles, strengthen current skills or acquire new skills, and familiarize themselves with necessary workplace accommodations.” See id. § 6(a)(iii).

²⁰⁰ Id. § 6(b)(ii)(a), (c). The qualified professional must be independent of the nonprofit agency, so there is no real or apparent conflict of interest while doing career planning with the employee. Id. § 6(c)(ii).

²⁰¹ Id. § 6(a)(iv).

²⁰² Id. § 4.

²⁰³ Id. § 4.

²⁰⁴ Id. § 4.

²⁰⁵ Id. § 6(b)(ii).

²⁰⁶ Id. § 6(b)(iii)(b). In addition, participating employees are not required to meet their career goals and a nonprofit agency is not responsible for the employee achieving their career goals. See id. § 6(b)(iii)(e), (f).

²⁰⁷ See Cooperative Agreement Between The Committee for Purchase From People Who Are Blind or Severely Disabled and SourceAmerica 13 (2024), https://www.abilityone.gov/documents/SourceAmerica%20Cooperative%20Agreement%20-%20signed%20Dec%2020%202024.pdf [https://perma.cc/7872-7PGQ]; Cooperative Agreement Between The Committee for Purchase From People Who Are Blind or Severely Disabled and National Industries for the Blind 15 (2024), https://www.abilityone.gov/documents/NIB%20Cooperative%20Agreement%20-%20signed%20Dec%2020%202024.pdf [https://perma.cc/C9Q6-NBMV].

²⁰⁸ See U.S. AbilityOne Comm’n, Publication, Evaluation, and the CNA Recommendations § 7(b)(v)(b), Policy 51.301-02 (2025), https://www.abilityone.gov/laws,_regulations_and_policy/documents/Commission%20Policy%2051.301-02%20Publication,%20Evaluation,%20and%20CNA%20Recommendations%2020250417_Final-a.pdf [https://perma.cc/G8F6-HSPS] ("When assessing an NPA’s overall qualifications and capability, the CNA must also consider the following criteria when evaluating NPA capabilities … The strength and adequacy of the NPA’s placement program or how the NPA facilitates career development opportunities for participating employees.”).

²⁰⁹ See U.S. AbilityOne Comm’n, Participating Employee Information, OMB No. 3037-0014 (2025), https://web.archive.org/web/20250531130109/https://www.abilityone.gov/commission/documents/Participating%20Employee%20Information%20(PEI)%20Form%2020250423%20.docx.

²¹⁰ U.S. AbilityOne Comm’n, Direct Labor Hour Ratio Requirements § 6b(ii), Policy 51.404 (2024), https://www.abilityone.gov/documents/Commission%20Policy%2051.404%20Direct%20Labor%20Hour%20Ratio%20Requirements%20signed-2Aug2024-a.pdf [https://perma.cc/B5L4-UENG].

²¹¹ For years, these subcontracts tended to be services such as custodial, landscaping, or dining. While employees with disabilities were working in the same location as employees without disabilities, they were not doing similar work to those employees. The goal of these subcontracts would be for more sophisticated work and be structured so that the employees with disabilities would work in an integrated fashion with employees without disabilities.

²¹² See generally Comm. for Purchase From People Who Are Blind or Severely Disabled, Guidance on Nonprofit Agency Establishment of Subcontract Relationships for Current or Potential Procurement List Projects, Operations Memo. No. 21 (2006), https://www.abilityone.gov/laws,_regulations_and_policy/documents/Ops_Memo_21_05.01.06.pdf [https://perma.cc/5HCM-LK7A] (noting that all subcontract relationships on JWOD Program contracts are subject to Committee oversight and describing relevant regulations and guidance on compliance). For that reason, the Commission always closely scrutinized requests for subcontracting and approved them only when the nonprofit agency could demonstrate that it did not have expertise in that area of the contract and/or could demonstrate that it could not hire sufficient employees with significant disabilities to perform the work. See id.

²¹³ See U.S. AbilityOne Comm’n, supra note 210.

²¹⁴ Policy 404(6)(b)(i) states that if the Commission determines that a subcontract “is consistent with the Program’s objectives to increase employment opportunities, ensure contract performance quality, increase workplace integration, and/or facilitate career mobility,” the Commission may approve that subcontract. Id.

²¹⁵ See U.S. AbilityOne Comm’n, Reference Documents: U.S. AbilityOne Commission Quarterly Public Meeting (2025), https://www.abilityone.gov/documents/AbilityOne%20Commission%20-%203%20Forms%20for%20Data%20Collection%203%20Policies%20for%20Central%20Nonprofit%20Agencies%2020250423a.pdf [https://perma.cc/7AV2-VWZQ].

²¹⁶ See U.S. AbilityOne Comm’n, Disability Qualification Determination, OMB No. 3037-0012 (2025), https://www.chaifeldblum.com/wp-content/uploads/2025/06/Disability-Qualification-Determination-DQD-Form-20250423.docx.

²¹⁷ See supra text accompanying notes 188-194 (describing new Policy 51.403).

²¹⁸ See U.S. AbilityOne Comm’n, supra note 216.

²¹⁹ See U.S. AbilityOne Comm’n, supra note 209.

²²⁰ Id. The nonprofit agency will be required to fill out this form on an annual basis for each participating employee, using a form reference number. Id. This permits aggregate data to be collected without violating the privacy of individual employees. Id. The nonprofit agency will be required to maintain the identifying information on each participating employee so the data can be reviewed during a compliance oversight visit by a central nonprofit agency. Id.

²²¹ U.S. AbilityOne Comm’n, Nonprofit Agency Annual AbilityOne Representations and Certifications, OMB No. 3037-0013 (2025).

²²² See id.

²²³ See Disability Employment Statistics, Dep’t of Lab.: Off. of Disability Emp. Pol’y, https://www.dol.gov/agencies/odep/research-evaluation/statistics [https://perma.cc/96DK-9APJ], (last visited Oct. 20, 2025).

²²⁴ See supra text accompanying note 24.