A bipartisan coalition of 100+ organizations and former Cabinet Members are calling on the President-Elect to sign the following Executive Order in his first 100 days of office. This Executive Order is a part of our initiative to improve accessibility for People with Disabilities in the Intelligence Community.
(DRAFT PREPARED OUTSIDE OF THE WHITE HOUSE)
BUILDING A MORE ACCESSIBLE, INCLUSIVE, AND EFFECTIVE INTELLIGENCE COMMUNITY
By the authority vested in me as President by the Constitution and the laws of the United States of America, to increase the national security of our nation, and ensure persons with disabilities can contribute their vital skills and perspectives to the defense of our national security, it is hereby ordered as follows:
Section 1. Established Legal Authority
Prior Executive Orders
Prior Executive Orders and laws have advanced the Intelligence Community’s role in promoting the inclusion of disabled persons in its workforce. Representative Executive Orders includeExecutive Order 13548 of July 26, 2010 (Increasing Federal Employment of Individuals with Disabilities) and its related predecessors, Executive Order 13163 of July 26, 2000 (Increasing the Opportunity for Individuals With Disabilities to be Employed in the Federal Government) and Executive Order 13078 of March 13, 1998 (Increasing Employment of Adults With Disabilities). Representative statutes and regulations include the National Security Act of 1947, as amended, Intelligence Community Directive (ICD) 110 on Intelligence Community Equal Employment Opportunity, and Diversity and Intelligence Community Policy Guidance (ICPG) 110.1 on Employment of Individuals with Disabilities. Recruiting, developing, and retaining a diverse workforce and inclusive workforce is ever more important considering the complex mission of the IC.
These orders and laws all reflect a recognition of the importance of tapping the skills and perspectives of the millions of Americans living with disabilities to strengthen the IC. Unfortunately, there are many dated policies and regulations that make it difficult for the IC to meet achievable diversity goals. Without strategically reviewing the legacies of old law and regulations that are keeping the IC from advancement, the Federal government will not achieve these goals .
The purpose of this Executive Order, as the successor to these prior orders, is to direct the necessary next steps to strengthen the IC by making the IC accessible to those with disabilities. To do so, we must first evaluate the laws and regulations that are keeping IC from advancement and then put in place policies that will make the IC accessible to those with disabilities and thereby enhance our national security.
Developing standards for national security exception in Section 508 of the Rehabilitation Act Of 1973
The Rehabilitation Act of 1973 (29 U.S.C. 794d) requires the Federal government departments and agencies to enhance accessibility to Information Communication Technologies (“ICT”) for individuals with disabilities by implementing Assistive Technology (“AT”). Pursuant to an exception, agencies operating ICT as part of a national security system (as defined by 40 U.S.C. 11103(a)) are not required to implement AT. (An agency’s ICT may qualify for this exception if it 1) involves intelligence activities; 2) involves cryptologic activities related to national security; 3) involves command and control of military forces; 4) involves equipment that is an integral part of a weapon or weapons system; or 5) Is critical to the direct fulfillment of military or intelligence missions. The exception does not include ICT involved with routine administrative and business applications such as payroll, finance, logistics, and personnel management. This exception also applies only to federal agencies and their components. This exception cannot be claimed by vendors and contractors.)
The historical use of this as a blanket exception for software, databases, and other technologies has meant that ICT systems have been built and procured without ensuring workforce usability standards, especially for the disabled employee. These standards have improved in recent years, but the legacy of the exception in Section 508 still has a negative impact today.
Although the exception cited above is intended to be narrow to protect the intelligence community from increased vulnerability to security breaches, many agencies within the IC have for many years read the exception broadly in order to justify blanket exclusion of any efforts to implement AT or update inaccessible systems with regard to their ICT. As a result, some of the most important systems used in the IC are not accessible to employees . Some agencies have, thus, failed to engage in a case-by-case analysis of when implementation of AT in ICT would be both cost effective and beneficial to enhancing the diversity of their workforces and implementation would not make systems more vulnerable.
Legacies of older policies inhibit the IC from recruiting and retaining the most successful employees.
Other national security policies and the manifestations of their legacies inhibit the IC’s ability to recruit, hire, and retain persons with disabilities. While prior Executive Orders called for increased employment of persons with disabilities, none have provided insights into overcoming the systemic barriers within the national security structure that make hiring standards reachable. For example, existing federal government guidelines at many IC agencies render it improbable that some individuals meeting the definition of disability can obtain the necessary clearances to be hired. This order is meant to ensure that all qualified candidates have the same opportunity to help us in our important task of keeping American safe.
In addition, the legacy of building and maintaining inaccessible secure facilities continues to be a hurdle for many employees with disabilities. Many tools that allow for independence and success, like smartphones that blind people use to identify money or handwritten notes with the camera, are prohibited. As the workforce ages and employees develop more disabilities from infections like COVID, our agencies must create innovative solutions to keeping our spaces secure, while utilizing new innovative smart tools that improve employee health.
The ADA and Rehabilitation Act typically prevent persons with disabilities from retaliation on the basis of their disability and require federal agencies to provide reasonable accommodations, however, these laws are not consistently applied in granting or revoking a security clearance and providing accommodations in secure facilities. The ICs policies and regulations that underlie its low levels of employment of people with disabilities must be examined to ensure our nation is not missing opportunities to enhance our national security.
Section 2. Policy
American Must Leverage the Most Diverse and Inclusive Workforce to Succeed
People with diverse backgrounds, cultures and experiences offer opportunities to look at national security data with different vantage points, perspectives and cultural lenses. Diversity and inclusion of employees provides advantages for analysis of and recommendations based on intelligence data and prevent the potential for “group-think” in homogenous groups. The success of the IC’s mission in providing timely, insightful, objective, and relevant intelligence to inform decisions on national security issues and events depends on America leveraging the most diverse and inclusive workforce possible.
The IC must have a dynamic and agile workforce capable of meeting the national security demands of an increasingly complex and interconnected world. This mission cannot be met without diversity in the workforce and improved efforts of including specific workforce components through policy change. While many of the challenges facing disabled persons in the federal workforce are widespread and present outside of the government, intelligence agencies face some unique challenges in implementing reasonable accommodations while still prioritizing the enhanced security requirements necessary within the IC.
Prioritizing Accessibility With Security
Maintaining information security within the IC remains a critical goal. However, without careful consideration of whether AT implementation and other accommodations can be made consistent with security priorities, the IC has missed opportunities to make a more hospitable workplace for people with disabilities and, thereby, weakened the IC by limiting diversity and inclusion. As of 2017, 7.9% of the U.S. intelligence community workforce was made up of persons with disabilities, compared to an 8.99% disability rate in the federal workforce, 17.5% in the overall civilian labor force and the 20-25% that is representative of US persons. Given the data, IC agencies must redouble their efforts to comply with prior executive orders on recruitment, hiring, and retention of persons with disabilities and federal anti-discrimination laws in the Rehabilitation Act and the ADA and must work to improve accessibility across the board, including but not limited to ICT systems, security clearance guidelines, and physically infrastructures.
Strategic Plan for Building a More Accessible Intelligence Community
The Director of the Office of the Director of National Intelligence shall establish an IC-wide committee to promote accessible ICT systems at all levels of the Federal IC workforce.
a. The committee must consist of a representative from each agency’s security component, inspector general’s office, EEO office, disability ERG sponsor, National Security Council and legal team. The White House Senior Advisor on Disability shall identify subject matter experts from the Equal Employment Opportunity Commission (EEOC) and White House.
b. Within 90 days of this order, the Government and IC wide Committee shall
i. Establish IC-wide standards on the development, procurement, and maintenance, and use of ICT systems to insure that they are accessible to people with disabilities; such standards provide access to and use of information and data to persons with disabilities that is consistent to access and use of information for persons without disabilities. The committee shall coordinate updating, development, and acquisition of accessible systems within the IC;
ii. Establish procedures for agencies to apply for the national security exception in Section 508 of the Rehabilitation Act (508 exception), which will be available on a case-by case basis through this Committee. The exception can be used as a last resort when ICT engineers, security, and other relevant groups have tried and failed at delivering an accessible system.
iii. Set a timeline, not to exceed two years, by which all currently noncompliant systems will be evaluated under the new standard for a 508 exemption and during which any system not deemed to qualify for the exemption is brought into compliance
iv. Review and update other IC element regulations that limit employees with disabilities, which shall include a review ofn ongoing efforts to unify strategies and implementation across agencies and complete implementation of ICPG 110.1 on Employment of Persons with Disabilities, including
- A review of facility accessibility to promote the requirements of the Architectural Barriers Act of 1968 and crafting IC-wide policy to highlight accessibility requirements for physical infrastructures and the development of a strategic plan for updating domestic and international architecture and infrastructures to meet accessibility standards that are unique to the IC.
- The assessment must include ingress and egress of buildings and sensitive comparted information facilities (SCIF) and location of secure lockboxes at all IC element building entries reserved for persons with disabilities.
- A review of security clearance requirements, focusing on bolstering disabled employees in the IC workforce and crafting guidance in line with federal anti-discrimination standards under the ADA and the Rehabilitation Act. After this review, develop a process for recruiting persons with disabilities who need accommodations in the security clearance process.
- Stand-up a task force to drive innovation in developing reasonable accommodations in the intelligence community that targets overcoming the unique barriers of secure facilities in the IC. Collaborators shall include subject matter experts from outside the IC on reasonable accommodations and technology innovation.
v. Ensure the appropriate availability of counsel to address potential discrimination in the IC by
- Compiling and making publicly available a list of disability rights attorneys with appropriate federal government clearances and develop a strategy for eliminating barriers for employees with disabilities to seek outside counsel for workplace grievances. ; and
- to the extent the data list should number less than 20 attorneys, working to recruit and clear and appropriate group of disability rights attorneys to work with the IC
c. The Committee shall, within, one year of this order:
i. Develop best practices and guidelines in procurement, development and maintenance of all ICT systems with a focus on accessibility;
ii. Provide an annual report on the implementation of ICPG 110.1 and engage in a continuous process of monitoring and review to facilitate accountability and transparency to employees and the public.
iii. Publicly report retention metrics of disabled persons, which include data from exit interviews of persons with disabilities, and tracking progress of any senior officers with disabilities.
Section 3. Enforcement
, The Executive Office of the President, and each agency and department of the IC shall establish procedures for investigating and adjudicating claims for discrimination in violation of this Executive Order. And all agencies, departments, and the Department of Justice through the committee must outline accountability mechanisms utilizing the ADA and the Rehabilitation Act.
Section 4. Definitions
- “Disability” shall be defined as set forth in the ADA Amendments Act of 2008; and
- “National Security System” shall be defined as set forth in as defined by 40 U.S.C. 11103(a))
Sec. 5. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) Independent agencies are strongly encouraged to comply with the provisions of this order.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
BY THE NUMBERS
With diversity in government, we can ensure that our leaders will have a variety of policies that take in consideration the needs of all Americans. For far too long, our leaders have failed to represent the rich diversity of our nation. It’s time for a more Inclusive America.
Less than 1% of senior-ranked executive positions are held by People with Disabilities.
1 in 4
One in 4 U.S. adults – 61 million Americans – identify as a Person with Disability.
12% is the minimum target the government has set to hire People with Disabilities.