As a part of its responsibility to monitor federal agency compliance with Section 501, the U.S. Equal Employment Opportunity Commission (EEOC) collects and compiles data regarding agencies' hiring and advancement of workers with disabilities. At the time of hiring, federal agencies provide employees the opportunity to self-disclose that they have a disability, on a Standard Form 256 (SF-256); the numbers of people who so identify are reported to the EEOC. In1979, EEOC officially designated certain disabilities as targeted disabilities in its Management Directive 703 issued on December 6, 1979, which in 2003 was superseded by Management Directive 715. MD 715 defines targeted disabilities as "Disabilities that the federal government, as a matter of policy, has identified for special emphasis in affirmative action programs. They are: 1) deafness; 2) blindness; 3) missing extremities; 4) partial paralysis; 5) complete paralysis; 6) convulsive disorders; 7) mental retardation; 8) mental illness; and 9) distortion of limb and/or spine."

In January 2008, the EEOC issued a report on the performance of federal agencies regarding the participation of workers with disabilities in their workforces -- Improving the Participation Rate of People with Targeted Disabilities in the Federal WorkForce. The findings were highly disturbing. Among them were the following facts:

The percentage of federal employees with targeted disabilities has fallen every year since 1994.

In 2006, the participation rate of persons with targeted disabilities fell to 0.94% of the federal government's total workforce, the lowest participation rate in 20 years.

Between 1997 and 2006, the actual numbers of employees with targeted disabilities in the federal workforce declined by

4.75%, despite the fact that the workforce as a whole grew by 5.48%.

Since 1979, EEOC has estimated the availability of persons with targeted disabilities of working age and able to work as 5.95% of the workforce-age population, based upon U.S. Department of Labor Employment Standards figures, and had recommended this percentage as a conservative objective for federal government agencies. As of 1982, the actual percentage of workers with targeted disabilities was only .82%. For the next 10 years, this rate grew, albeit at a glacially slow average rate of .04% per year; in 1992, EEOC noted that at that rate of increase it would take more than 21 years before people with targeted disabilities would comprise 2% of the federal workforce. But even the snail's pace of increase could not be maintained. The percentage of federal employees with targeted disabilities peaked at 1.24 in 1993 and 1994, and has been going downhill ever since. In 2005, the rate fell below 1% for the first time since 1984.

When the EEOC issued Management Directive 715 in 2003, it dropped the 5.95% objective for government employment of workers with targeted disabilities. In December 2006, EEOC Commissioner Christine Griffin announced in a speech that she had a much more modest goal -- to see the rate of federal employment of persons with targeted disabilities get to 2% by 2010. This is approximately one third of the goal EEOC had endorsed almost 30 years ago.

In June 2006, at the urging of Commissioner Griffin, EEOC initiated what it called the LEAD (Leadership for the Employment of Americans with Disabilities) initiative to addresses the declining number of employees with targeted disabilities in the federal workforce; LEAD focuses on outreach to senior leaders at federal agencies to enhance their awareness of both the employment challenges faced by persons with targeted disabilities and policies and practices that can reverse the decline of such people in the federal workforce population. And yet, given recent performance, even the trifling 2% objective seems out of reach. As the EEOC observed in the January 2008 report,

Between FY 1997 and FY 2006, the permanent workforce increased in five of the ten years. The participation rate of PWTD [person with targeted disabilities] during that same ten-year period nonetheless decreased every year. Moreover,

in the five years when the size of the permanent workforce decreased between FY 1997 and FY 2006, the participation rate for PWTD had a disproportionately higher decrease. For example, from FY 2002 to FY 2003, the permanent workforce declined by 1.27%, but PWTD declined by twice as much at 2.59%. Overall, the federal government is losing more PWTD than it is hiring each year.

It turns out that most federal agencies are not even bothering to set measurable objectives regarding increasing the numbers of workers with targeted disabilities in their workforces. The 2008 EEOC report cited figures from 2005 indicating "that despite the declining participation rate of PWTD in the federal government, only 15.82% of agencies established...

The performance of federal agencies in employing workers with targeted disabilities is abysmal, and the lack of agencies'
commitment to doing any better is appalling.

These shocking problems have not escaped comment, both within and without the disability community. They have received some newspaper coverage, albeit not much. In its 2008 Progress Report, the National Council on Disability dutifully acknowledged the problem of declining federal disability employment rates and expressed it concern; the report contained the following observations:

Among the many statistics on the employment of people with disabilities, few are as surprising as those of federal employment. The Equal Employment Opportunity

Commission (EEOC) is among those that have noted and addressed sharp declines, so much so that by 2005 the percentage of federal employees with significant disabilities, which had peaked in 1994, had slid back to 1984 levels.

Since enactment of the Rehabilitation Act of 1973 it has been understood as a matter of law, and NCD believes as a matter of consensus, that the Federal Government should be a leader in the employment of people with disabilities. Hence, when the overall national decline in employment for Americans with disabilities is confirmed and compounded by a perhaps even more precipitous decline in the public sector, this becomes a matter of great concern.

Unfortunately, NCD was not particularly critical of the EEOC nor other federal agencies, and the Council's suggestions for addressing the problems it raises are largely for more information-gathering, study, and consultation, instead of a call for urgent, robust, concrete corrective action. NCD's recommendation regarding this issue was the following:

NCD recommends that the EEOC undertake a comprehensive examination of the issues raised by the disheartening federal employment data on people with disabilities and submit a report to the President, Congress, and the public, setting forth major causes and proposed solutions to steadily raise levels of employment and monitor upward mobility.

Others within the disability community have blown the whistle on the poor performance of federal agencies in hiring and retaining employees with disabilities; too often, however, such commentary is compromised to some degree by patient, conciliatory, and sanguine overtones. The performance of the federal government -- the purported model employer of persons with disabilities -- is outrageous; where are the expressions of outrage?

On January 28, 2008, the Office of Legislative Affairs of the U.S. Department of Justice (DOJ) sent a letter to the Chair and Ranking Minority Member of each of the congressional committees with jurisdiction over the ADA Restoration Act bills. In the letter, the DOJ declared that we strongly oppose the proposed legislation, and took the position that the only corrective legislation that the Department would endorse would address the single issue of mitigating measures. In my opinion, the DOJ position as expressed in the letter is uninformed, surprisingly inconsistent with stances the Department had taken in the past, un-nuanced, and harsh. It has not, however, provoked a storm of exasperated protest from the disability community. I can only hope that the DOJ position will be made an issue in the upcoming presidential election campaign.

On June 19, 2008, the Office of the Mayor of the District of Columbia issued a news release announcing that "the National Capital Region Transportation Planning Board (TPB) approved funding to bring wheelchair accessible taxicabs to the District of Columbia for the first time." This development is obviously a positive and admirable one, and the Administration of DC Mayor Adrian Fenty deserves some credit for helping to bring it about. The problem, however, is that it is only occurring in 2008, 18 years after the ADA was enacted, and over 40

years since Professor tenBroek announced that people with disabilities have a legal right to be abroad in the land. How is it possible that until now there have not been any accessible taxis in our nation's capital? How has the absence of them not been a source of national disgrace, social activism, and strident hue and cry? How have our country's lawmakers and leaders of government allowed such a travesty to continue? And why hasn't the disability rights movement held the officials' feet to the fire until they corrected this failing?

The foregoing suggests the need for more vigorous, forceful involvement in…