In one of Judge Richard Posner’s more celebrated opinions, he wrote that giving preferential hiring to individuals with disabilities would be “affirmative action with a vengeance.”  No matter what the Bible says, in this case, vengeance belongs to the Office of Federal Contract Compliance Programs (OFCCP).

In its Proposed Regulations under Section 503 of the Rehabilitation Act, OFCCP seeks to require federal contractors to reserve 7% all workers hired in all job groups for individuals with disabilities.  For OFCCP, “good faith efforts” are no longer sufficient to cure the “disparity” between the percentage of able and disabled workers in the workforce.  OFCCP readily admits that this disparity is NOT the product of discrimination.  OFCCP also confesses that there is no reliable data about how many disabled persons want to be in the workforce, how many disabled persons are available in any particular job group, how many disabled people are not working because of their disability, and so on.  None of this matters: the disparity must be cured and the means is a numerical quota; oops, sorry, “aspirational goal.”

 Most of us thought we had learned from the Supreme Court over the last two decades that this sort of numerical engineering of the workforce in the absence of proven discrimination was illegal.  OFCCP appears to disagree.  OFCCP insists there is no quota, but tells us that failure to achieve its aspiration will bring strict scrutiny of a contractor’s recruiting, out-reach, hiring, record-keeping, and other practices which may very well yield a Conciliation Agreement with hard and fast hiring quotas.  That form of coercion has also been reviewed by the courts and found wanting.

 Justice O’Connor, in striking down a federal contracting preference, wrote with great insight and feeling about what is sacrificed by erecting artificial distinctions among us.  Her words cannot be bettered:

 The dream of a Nation of equal citizens in a society where [membership in a protected group] is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. (Richmond v. J. A. Croson Co., 488 U.S. 469, 505-506 (1989)).

 These words now seem prophetic. Based solely on “unmeasurable claims of past wrongs,” OFCCP has created precisely the “mosaic” the High Court ruled against.

 The Proposed Regulations have yet to issued.  Perhaps the comments of an alarmed populace will bring about substantial modifications. But if past is prologue, we fear OFCCP will again adopt its preferred response: a deaf ear. 

 Maybe only the vengeance of the courts can preserve a Nation of equal citizens.