Civil Rights and Employment Issues of Disability Policy
Date Mailed: Friday, September 24th 1999 07:06 PM
>From the web page http://www.mswitzer.org/sem99/papers/bruyere.html Paper presented to 1999 Switzer Seminar Civil Rights and Employment Issues Of Disability Policy A Report for the 21st Mary E. Switzer Memorial Seminar Disability Policy: Issues and Implications for the New Millennium By Susanne M. Bruy=8Are, Ph.D., CRC Cornell University September, 1999 Introduction The purpose of this contribution to the Switzer 1999 monograph on disability policy is to provide an analysis of the role and effectiveness of civil rights legislation in enhancing the employment status of persons with disabilities. The Americans with Disabilities Act (ADA) is the most recent of the laws that define public policy toward disability in the United States. It and its predecessor, the Rehabilitation Act of 1973, incorporated the idea that the ability of persons with disabilities to get jobs or access to training is limited by the prejudices of others rather the direct effects of injuries or illnesses alone (Johnson, 1997). Despite repeated different attempts to introduce employment and disability policies over the past several decades to improve upon the employment status of persons with disabilities, employment inequity continues. According to Burkhauser and Houtenville (1999), using the Current Population Survey (CPS) for working age civilians in 1997: * 20% of men and 11% of women with work disabilities were working full-time year round, * Compared to 80% of men and 54% of women without work. Such inequity was the spur for the passage of the ADA in 1990, and continues to be of grave concern to disability advocates and public policy analysts. This paper discusses public perception of the ADA's impact and disability employment policy evolution over the decade since the legislation's passage. In 1990, President George Bush signed the Americans with Disabilities Act of 1990 (ADA), to take yet another step toward employment equity for people with disabilities. The ADA is a landmark piece of civil rights legislation that extends the prohibitions against discrimination on the basis of race, sex, religion, and national origin to persons with disabilities. It is a remarkably comprehensive law, addressing the broad ranging areas of employment, public services, transportation, public accommodations, and communications. For purposes of the discussion in this paper, we focus on Title I, the employment provisions of the ADA. The ADA employment provisions apply to private employers with at least fifteen employees and to state and local government employers. One facet of disability public policy, which can be confusing to public policy analysts, is the definition of the meaning of disability. The ADA has a three-part definition of "disability." This definition is not the same as the definition of disability in other laws, such as state workers' compensation laws or other federal or state laws that provide benefits for people with disabilities. Under the ADA, an individual with a disability is a person who has: * a physical or mental impairment that substantially limits one or more major life activities; * a record of such an impairment; or * is regarded as having such an impairment. The ADA protects qualified individuals with disabilities from discrimination. A "qualified individual with a disability" is a person who meets the necessary prerequisites for a job and can perform the essential functions with or without reasonable accommodation. A "reasonable accommodation" is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for a qualified individual with a disability to participate in the job application process, perform the essential functions of a job, and/or enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. While it is recognized that disability policy is a subset of broader public policy, the relationship between disability issues and other public policy issues is not well understood. Moore and Feist-Price (1999) identify three definitions of disability, which have come from the medical, economic, and sociopolitical perspectives. An earlier definition of disability was based on a medical paradigm of disability, which influenced the initial structure of the Social Security Administration's benefits programs. The medical model emphasizes the functional limitations associated with the disability. The economic paradigm suggests that an analysis of disability impact should be based on a limitation on the amount of work an individual can perform. The sociopolitical paradigm promotes the concept that people with disabilities are not labeled as deviant because of their disability, but because those around them and their societal environment label them "deviant," since they appear different. More recently, perception of disability has expanded to a model that sees barriers in the environment and in the attitudes of people as the creator of the "handicap." For the past twenty-five years, since the passage of the Rehabilitation Act of 1973 and the advent of the independent living movement, promoters of disability policy have attempted to integrate and transcend the limitations of any single perspective, and expand the impetus of disability public policy with the inclusion of civil rights for persons with disabilities. Early on in the implementation of the ADA employment provisions, interest in its impact on the broader U.S. disability policy was discussed (West, 1991). It is most fitting that this Switzer Seminar creates an opportunity for analysis of the impact that the employment provisions have had on employment for persons with disabilities since their implementation in 1992. A valid analysis of the impact of the Americans with Disabilities Act requires an interdisciplinary perspective. Thus, reflected in this presentation are perspectives from social policy experts, economists, rehabilitation educators, legal scholars, and others. The areas for discussion in this manuscript are as follows: backlash to the ADA and related civil rights initiatives; similarities and differences of the ADA to civil rights legislation for other protected populations; civil rights protection as a part of employment policy; civil rights protection vs. a special focus of workforce development policy for persons with disabilities; a discussion on whether civil rights and affirmative action policies for persons with disabilities have outlived their utility; and future trends and issues surrounding the ADA. The Civil Rights Backlash In the past several years, a backlash against the ADA has been emerging. Critics of the legislation have questioned its effectiveness in several ways: its success in making a difference on employment outcomes for people with disabilities; effectiveness in the enforcement of the ADA; allegations of unfounded legal claims and needless lawsuits which financially burden employers; and the cost to employers for accommodations. This section of this paper provides a brief discussion on each of these challenges to the efficacy of the ADA and evidence to support or refute each criticism. Making a Difference in the Employment Status of People with Disabilities Blanck (1994) identifies as one of the characteristics of the backlash, the criticism that there is little definitive evidence that ADA-mandated accommodation measures result in larger numbers of qualified persons with disabilities participating in the workplace. Massachusetts Institute of Technology economists Acemoglu and Angrist (1998) suggest that adverse effects may have occurred for people with disabilities since the advent of the ADA. Using results of an analysis of March Current Population Surveys (CPS) data for 1988-1997, they examined the employment and wages of disabled and non-disabled workers over this time period. They conclude that the empirical results of their analysis suggest that the ADA had a negative impact on the employment of disabled men, with no effect on wages. They report that the results for women are mixed. Some policy analysts (Donohue and Heckman, 1991) provide us with a parallel analysis of perceived failures in other discrimination legislation. They suggest that the shift occurring in the nature of Title VII cases, with overwhelmingly complaints of discriminatory discharge, may actually have provided a disincentive to hiring additional black Americans, since the failure to hire will not likely bring a lawsuit, but the hiring may expose the employer to litigation should a subsequent discharge occur. Others offer contradictory information about the impact of the ADA on advancing the employment interest of persons with disabilities, or offer alternative ways to assess the effectiveness, which may lend different information. One example is Blanck (1994, 1998), reporting on an investigation of the impact of the ADA, which includes a longitudinal study of 1,000 persons with disabilities in the state of Oklahoma. The principal findings of this investigation show that from 1990 to 1995, almost half of the participants (43%) in this study, who were persons with mental retardation, moved into more integrated employment settings. The proportion of individuals engaged in competitive employment more that doubled from 6% in 1990 to 15% in 1995. Blanck concludes, from this investigation, that the ADA has had a positive impact on the employment of persons with significant disabilities. Blanck's conclusions from this research are that not only were individuals' employment outcomes enhanced, but integration factors were significantly improved as well, and offers an alternative or expanded assessment of efficacy that should be used to test the Americans with Disabilities Act. He designed and tested a model of more integrated employment that included factors such as employment integration, capabilities/qualifications (adaptive skills, health status, equipment/accommodation) of the individual, inclusion factors (living arrangement, job/life satisfaction and choice) in the community, empowerment factors (self advocacy, family and government, job/skill educational goals), and legal factors. Such a multi-level analysis of the employment status of persons with disabilities may be particularly helpful when analyzing incremental gains in employment outcomes for persons with severe disabilities. Burkhauser, Butler, and Weathers (1999) use a lifecycle labor supply model to study the impact of public policy on a worker's decision to apply for Social Security Disability Insurance SSDI) benefits. The results of their analysis show that employer accommodation significantly slows a worker's application for SSDI benefits, while easier access to SSDI benefits increase the speed of application following the onset of a health condition. Effectiveness of Enforcement of the ADA Another area where criticism has been leveled at the ADA employment provisions is in its enforcement by the U.S. Equal Employment Opportunity Commission (EEOC). The U.S. Commission on Civil Rights (USOCR) conducted an investigation of complaints about this enforcement in 1998 (US Commission of Civil Rights, 1998). Its findings were that, since the EEOC became responsible for enforcing the ADA in 1992, EEOC's workload, in terms of charges of discrimination filed with the agency, has increased markedly. In fiscal year 1991, before the ADA took effect, EEOC received 63,836 private sector charges. Two years later, in fiscal year 1993, the first full year of ADA enforcement, EEOC received 87,942 private sector charges, an increase of 38 percent. Almost 21 percent of all charges received in 1993 were ADA charges. USOCR's conclusion was that ADA charges accounted for most of the increase in EEOC's workload between fiscal year 1991 and 1993. USOCR also reports that the EEOC has taken steps to address the increased workload and was able to increase the number if resolutions per staff member through implementation of a charge priority handling procedure in fiscal year1995. EEOC also had provided extensive training to its field office staff responsible for the ADA, and reportedly this was more training than had ever been provided on any other statute (USOCR, 1998). However, one of the continuing problems for EECO cited by the USODR report was limitation to budget. "Despite the passage of the ADA in 1990 and the Civil Rights Act of 1991 the following year, which added considerably to the EEOC's workload, EEOC's budget has not grown in the 1990's" (p. 61). The fiscal year 1999 budget calls for improvements in technology to handle the increased needs, as well as an expansion of an alternative dispute resolution program, to address these issues. Criticism of High Legal Costs for Employers One of the criticisms leveled at the ADA is that it has led to unfounded legal claims and needless lawsuits to employers. Critics hold that the law is ambiguous in the areas of definition of "disability" and degree of "reasonableness" of accommodation, leaving employers vulnerable to frivolous claims. A comparison of claims and settlements across all EEOC discrimination legislation enforced for FY 1998, shows parallel profiles in the types of settlements from EEOC charges (see Table 1). With the exception of pregnancy discrimination, merit resolutions and settlements are somewhat similar across all employment discrimination charges. This data suggests that, from the EEOC's analysis of claims upon review, there is not necessarily a significantly higher proportion of unfounded cases among ADA Title I claimants than any other employment discrimination. The analysis of outcomes of ADA Title I discrimination cases resulting in legal action suggests that employers are the winners significantly in the legal arena. The Mental and Disability Law Reporter analyzed all ADA employment cases covered in its journal to determine the exact percentages of employer and employee victories in such cases over a five-year period. The conclusion was that employers prevailed in approximately 92 percent of the final case decisions, thus contradicting the public perception that the ADA employment provisions more heavily burdened employers. This 92 percent figure is also consistent with the results of the analysis of the EEOC's statistics for administrative complaints during the same time period, which revealed that employers prevailed in approximately 86 percent of the administrative complaints resolved by the EEOC. Cost of Accommodations Another contention of the ADA is the alleged cost of accommodations to employers, a requirement that is not matched in other nondiscrimination or civil rights legislation. Blanck (1993) counters this criticism with data from an employer survey that reports that most employers (91 percent) do not believe that making accommodations was unduly expensive. These findings are similarly reported in a study by Cornell University in 1998 (Bruy=8Are, 1999). A telephone survey was conducted of 1,403 SHRM members nationally to assess their perception of the impact of the ADA on their workplace policy and practices; a 73% response rate was obtained (n=3D813). One of the questions asked of these individuals was their perception of remaining barriers to the employment and advancement for people with disabilities. Cost of training, supervision, and accommodations on behalf of persons with disabilities, were each very low in percentage of respondents reporting of remaining barriers; they rated as 10, 12, and 16% respectively. Indeed, consistent with these findings is data that kept by the President's Committee on Employment of Persons with Disabilities Job Accommodation Network (JAN) (1998), which suggests that the costs of accommodation, as reported by employers JAN services, is under $1000 in four accommodation requests out of five (see table 2). In one in five accommodations made there was no cost at all. Similarities and Differences Between Civil Rights Legislation For Different Populations Over the past fifty years, the body of law prohibiting discrimination in employment has grown enormously in terms of the extent of geographic coverage, the range of covered employers, the array of protected workers, and the spectrum of prohibited practices (Donohue, 1994). The most recent addition to employment nondiscrimination and this body of law are protections for persons with disabilities, previously outlined in the Rehabilitation Act and most currently in the ADA. In the area that follows under this topic, we will briefly discuss the similarities and differences between civil rights legislation for persons with disabilities and that of other protected populations. Similarities Between Laws Johnson (1997) recalls that the civil rights model for public policy toward disability was spurred on when a proposal for inclusion of people with disabilities in the Civil Rights Act of 1970 was rejected. It is his contention that subsequently this led to the creation of Section 504 of the Rehabilitation Act of 1973 and the civil rights model of disability in the Americans with Disabilities Act which identifies the experiences of persons with disabilities with those of African Americans and other minority groups. The claims data for persons with disabilities is unfolding very similarly to those of other protected populations. This is true both in settlements or resolutions of outcomes of claims, and in the nature of the claims. Both for persons with disabilities and other protected populations, claims most often filed are those due to alleged unlawful discharge. Mudrick (1997), conducted a comparable analysis of the disposition of discrimination complaints filed with state civil rights agencies, and found that there were similarities in the profile of claims across all of these agencies as to the experience of the EEOC claims data for employment discrimination. Some scholars suggest that although the paradigm of disability with the advent of the ADA has been moved into a minority group model, identifying discrimination as the primary barrier facing people with disabilities, that this is insufficient for their full social participation (Scotch and Schriner, 1997). An alternative model of disability that is based on the concept of human variation or heterogeneity of people with disabilities is proposed by Burkhauser (1997). He contends that a direct parallel with other civil rights legislation does not take into account the heterogeneousness of the nature of needs of persons with disabilities, which is a very diverse group. These comments bring us to an analysis of the differences between other civil rights legislation and the Americans with Disabilities Act. Differences There are several areas that are cited as distinct differences between the Americans with Disabilities Act and other civil rights legislation. These are as follows: the definition of a covered person under the ADA, the requirement of reasonable accommodation, the requirement of enforcement on a case-by-case basis, and the absence of an affirmative action requirement in the ADA (although included in the Rehabilitation Act of 1973). One of the differences most often cited is in the ADA employment provisions is the presence of a three-pronged definition of disability. In this definition, a person with a disability is covered by the law if they have a known physical or mental condition or impairment that substantially limits major life activities, have "a record of" a physical or mental condition, or are "regarded" as having such a condition. This is seen as one of the more contentious aspects of disability law, and a decided difference from previous civil rights legislation (Blanck and Weighner Marty, 1997). Unlike the case for race or sex, the Americans with Disabilities Act raises questions about who is eligible to be covered by the protective umbrella of the law. Civil rights litigation for race or sex seldom starts out with a challenge regarding whether the complainant is really a member of a racial minority or of a specific gender. These types of distinctions become particularly true when the nature of the disability may be invisible, or includes areas that take more refinement of diagnostic assessment, such as a psychiatric disability. In these cases, the judgement of whether a claimant is protected or not may include documentation of the level of impairment that exists and whether there is a substantial impact on the person's major life functions. A second area of difference is the requirement for reasonable accommodation that is present in the ADA, and also present in the 1973 Rehabilitation Act and some state human rights or disability nondiscrimination statutes. For example, the accommodation issues with respect to religion which are in other pieces of civil rights legislation has most often involved requests from employees to employers about changes of shifts, time off for religious observance, and required work attire (Mudrick, 1997). By contrast, accommodation for disability includes not only the possibility of changes in shift or work hours but also changes to the physical environment of the workplace, the purchase of equipment, or, in the case of vision-impaired or hearing-impaired employees, the salary of assistants to read or sign. The third manner in which the enforcement of disability civil rights statutes differ from the enforcement of other statutes is that the cases must be decided on a case-by-case basis. Because the circumstances of each individual are unique, the remedy must be tailored to the particular circumstances and limitations of the complainant with a disability. The absence of affirmative action requirements in the ADA continues to be troublesome to some that would otherwise be supporters of the legislation. Middleton, Harley, Rollins, & Solomon (1998) encourage a reconsideration of what is seen as a limitation in the ADA and urges that affirmative action be included for sustainable disability nondiscrimination reform over the long haul. Civil Rights Protection as a Part of Employment Policy Any discussion of the effectiveness and the impact of the Americans with Disabilities Act must be set in the context of overall employment policy. Indeed, as concluded by Burkhauser and Haveman in 1982, "no set of programs offers a better microcosm of the political, moral, and economic debates that will result from this general thinking of the role of social policy than those comprising the U.S. disability system" (p.1). And, compared to other public policies for disabled persons, those dealing with employment have the longest history. Federal government involvement began just after World War I, in response to the number of disabled soldiers who returned home from the battlefield. From this time, the vocational rehabilitation (VR) program, funded primarily by the federal government and operated by the states, has grown dramatically in terms of expenditures, clients served, and types of services rendered (Percy, 1989). The fifty year period between the post-World War One efforts, and the first civil rights legislation for persons with disabilities, is filled with incremental efforts to help persons with disabilities to get jobs or access training, and to indemnify against the income losses and health care costs associated with disabling illness and injuries. In light of this history, Yelin (1997) holds that work disability policy in the United States has been primarily compensatory, rather than rehabilitative. Built on a welfare model, as much as 80% of expenditures on behalf of persons with disabilities who have employment problems take the form of disability compensation payments from social security disability insurance, supplemental security income, workers' compensation, veterans programs, and private disability benefits. Efforts to maintain the employment of persons with disabilities who work or to help those who do not to find jobs have received far less attention and far fewer resources. The first civil rights legislation for persons with disabilities was the Architectural Barriers Act of 1968, followed in 1973 by the Rehabilitation Act. Pre-1973, employment policies for persons with disabilities were based more on the concept that the obstacles to employment or education were the limitations imposed by injuries or illnesses themselves and if those limitations could be eliminated or bypassed by compensatory strategies, the problems of disability would be solved (Johnson, 1997). The new anti-discrimination policies such as the ADA, however, are seen by some as a necessary and useful addition to the older efforts. These are seen as policies that operate from the principle that the only limitations on the employment of persons with disabilities are the prejudices of others. Several authors elaborate on the interplay between different employment policies that may confound and complicate the efficacy of the others. Burkhauser (1997) contends that while the ADA is the most visible legislation in terms of contributing to a national policy to integrate working age people with disabilities into mainstream employment, American disability transfer programs may be complicating its impact. He maintains that the unprecedented growth in the younger disability transfer population is counter to the goal of integrating these individuals into mainstream employment. Burkhauser urges public policy makers and disability rights proponents to shift the focus from a disability policy primarily based on transfers, to one based on the proposition that persons with disabilities can and should be expected to work. Daly (1997) furthers this analysis with an examination of experiences in Germany, a nation that pursues a disability policy that includes direct intervention in the labor market on behalf of persons with disabilities. She maintains that Germany is an appropriate choice for this type of comparison because it combines a generous and accessible social insurance system with employment support, rehabilitation and retraining for those with disabilities, and a quota system that requires public and private employers to hire one worker with a disability for every sixteen workers it employs. McFadden (1997) discusses the complexity of the interplay between application for social security benefits and a bona fide Title I ADA discrimination claim for a person with a disability. Social Security defines disability differently than the ADA does. Social Security eligibility does not consider whether a person could work with a reasonable accommodation. Prior to a recent Supreme Court decision, courts reasoned that people who claimed to be totally disabled in filing for social security disability benefits have as much as admitted that they cannot work, which would preclude them from filing under the ADA. The Supreme Court held that these two seemingly divergent statutory contentions are often consistent with each other, and pursuit of Social Security Disability Insurance (SSDI) benefits does not automatically stop the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient's success under the ADA. One other analysis of employment policy that can be contributed here is employment policy as it plays out within the individual employment setting, resulting in employer policies that contribute to protection or minimize discrimination for persons with disabilities. Employers play a key role in deciding employment outcomes for persons with a disability through establishment of workplace policies for recruitment, screening, hiring, training, promoting, accommodating, and return to work and retention efforts, subsequent to a significant illness or injury. In the Cornell University study previously mentioned, which draws upon the perspectives of human resource managers, survey results support the finding that many workplaces have responded very positively to the accommodation requirements of the ADA. Of the 813 employer representatives responding, four out of five had made facilities accessible to employees with disabilities, or been flexible in the application of HR policies. Approximately two out of three reported having restructured jobs or modified work hours, made parking or transportation accommodations for employees with disabilities, provided written job instructions, or modified their work environment as an accommodation. Civil Rights Protection vs. Special Focus of Workforce Development Policy for Persons with Disabilities Donahue and Heckman (1991) looked at continuous vs. episodic change in the impact of civil rights policy on the economic status of blacks. These authors concluded that indeed an improved status for black Americans since the institution of civil rights employment legislation protections had been accomplished. They suggest that it is difficult, however, to singularly attribute that to the introduction of civil rights legislation. They also suggested that further examination of factors such as migration and increased education need to be examined to explain the post-1964 gains in employment status for black Americans. A similar such analysis must be conducted on the status of persons with disabilities, examining and holding constant these factors, to better determine the impact of the ADA as civil rights legislation itself. Civil rights protections such as afforded by the Americans with Disabilities Act must be blended with complementary workforce development policy for persons with disabilities. This is not an either/or choice. In designing U.S. workforce development policy, gathering employer perspectives is critical. As discussed earlier, results of the human resource professional survey conducted by Cornell University reported that costs of training, supervision, and accommodation, were minimally seen as barriers to employment of persons with disabilities (Bruy=8Are, 1999). More often reported as a remaining barrier from the perception of these respondents, was the lack of related experience (51%) and lack of requisite skills and training (40%) of a person with a disability who is an applicant or incumbent in the job. This may point to the need for a more aggressive education and training employment policy for youth transitioning from school to community and employment opportunities. Burkhauser (1997), confirms the need for a consideration of supporting the additional skills training and education needs of persons with disabilities who are not equipped with such as they attempt to move into the labor market. He expresses concern that the ADA will be of value most to that proportion of the approximately 13 million people with disabilities of working age who already are well prepared to enter and compete in the labor market. He contends that it will do little good to people with disabilities who face the more traditional barriers to work such as low levels of education and poor job skills. The idea of specific job training efforts and placement for persons with disabilities, is not a new one in the vocational rehabilitation arena. However, it has not to date been specifically applied to an analysis of the impact of disability civil rights legislation such as the ADA. Collignon (1997) encourages researchers and disability policy makers to establish a base line of key indicators now and to track the indicators over time to evaluate the effectiveness of the ADA. He points to one set of existing data as a model, a comparison of national studies analyzing longitudinal earnings data collected for federal-state vocational rehabilitation (VR) program cohorts before and after full implementation of the Rehabilitation Act. This earlier research reveals that employment and earnings gains were realized by people with disabilities provided job training and placement in the VR program following the reforms introduced by the Rehabilitation Act, as a precursor of the ADA. Have Civil Rights and Affirmative Action Policies for Persons with Disabilities Outlived Their Utility? Baldwin and Johnson (1998) present four principles that contradict common misconceptions of disability and work. These principles are as follows: * Most frequent types of disabilities are not those that are caused by birth defects or traumatic accidents. Instead they are musculoskeletal conditions, such as arthritis or cardiovascular conditions, typically caused by chronic degenerative processes that increase as persons age. Among younger age groups, mental illness is the most prevalent disabling condition. * Most workers with disabilities are not disabled as children and were not therefore subject to discrimination in education or to labor market discrimination at the time of entry into the labor market. * The ability of the disabled person to work does not depend solely on the nature of his impairment and the quality of medical care received. Many other factors, including characteristics of the worker in his usual job, attitudes of employers, labor market conditions, and the availability of workplace accommodations, are important determinants of employment outcome for disabled workers. * There are large wage differentials between disabled and nondisabled workers that are not explained by health-related differences in productivity. Although productivity differentials are one important factor in explaining the wage differentials, employer discrimination also contributes to the low wage rates of workers with disabilities (p. 40) A review of accommodations most often requested by callers to the Job Accommodation Network (Jan) identifies motor-related disabilities as the most often inquired about area (39 percent) (see Figure 1). This is consistent with Baldwin and Johnson's contention that musculoskeletal disabilities are the most frequent disability conditions. In 1984, congress issued the National Council on Disability (NCD) a mandate to review all federal programs relating to disability and offer recommendations on how Congress could best promote the independent of persons with disabilities and minimize dependence on governmental programs (NCD, 1997). This effort must again be conducted. An analysis of the effectiveness and the need for continuing to see through the promise of the ADA should come in the context of an analysis of overall national Federal programs for persons with disabilities, as well as the impact of the administrative or judicial process surrounding this particular piece of civil rights legislation (USGAO, 1996). The ADA was added to a set of different and often uncoordinated Federal programs for persons with disabilities. There are more than 80 Federal programs that address the problems of people with disabilities. The largest set of these programs fall within the disability benefits system (Johnson, 1997). At the judicial level, we have to ask whether the current system is effective in addressing whether employees are treated unfairly under the act due to the myriad legal technicalities that more often than not prevent the issue of employment discrimination from being considered on its merits by an administrative or judicial tribunal. It appears that we now have a system under the ADA in which plaintiffs in employment discrimination cases prevail less than 14 percent of the time, either administratively or judicially (Mental and Physical Disability Law Reporter, 1998). The inefficiencies of this system of dealing with EEO complaints was confirmed in the recent U.S. Commission on Civil Rights report (1998). Continuing employment disparity between persons with disabilities and the non-disabled working age American population suggests that it is premature to relax our vigilance in application of civil rights and affirmative action policies for persons with disabilities, as provided in the ADA and the Rehabilitation Act. However, it is imperative that American public policy analysts and implementers, researchers and practitioners explore complementary mechanisms for strengthening the power of this legislative mandate. Research to date would suggest that the costs of accommodation are not an issue, either in practice or in perceptions of employers (Job Accommodation Network, 1998, Blanck, 1993, and Bruy=8Are, 1999). However, attitudinal issues in the workplace and disparities in job training and education for persons with disabilities remain. It is imperative for the welfare of society as a whole that these continuing inequities be addressed. When employers, fellow workers, or customers shun certain protected groups for certain jobs, they impose social costs even apart from the depressing of wages of this preferred group. Such slights can in themselves cause not only self-esteem and financial pain for a given individual, but a significant social cost and labor market cost in the grander picture for society as a whole (Donohue, 1994). Future Trends and Issues A discussion of future trends and issues for the field of rehabilitation must include a discussion on its implications for the roles of government, service providers, consumers, educators, and researchers in disability policy formulation and change. Implications for Employment, Integration, and Independence of Persons with Disabilities Blanck and Weighner Marty (1997) suggest that an informed assessment of the effectiveness of the ADA should include research devoted to the study of the individual, corporate, and societal implications of the employment provisions in practice. They maintain that increased knowledge based on the study of the law's actual workings and the employment provisions in practice is needed. They suggest that this is a need similar to a comprehensive study conducted to inform affected individuals and policymakers subsequent to the landmark United States Supreme Court decision in Brown v. Board of Education (1953). At that time, extensive study was required and conducted on attitudes and behaviors towards school desegregation policies. Blanck and Weighner Marty (1997) suggest that at that time many disciplines took up this challenge, among them social psychology, political science, economics, and sociology, examining the predictive links between underlying attitudes and subsequent social behavior. Development of an analogous body of interdisciplinary research is needed today on the ADA generally, and of Title I in particular. The Roles of Specific Stakeholders The purpose of public disability policy and rehabilitation service delivery must be to enhance the quality of life of people with disabilities (Kosciulek, 1999). Empowering people with disabilities to have direct input to and control over the policies and practices that directly affect their lives can achieve this important objective. People with disabilities must play a very central role in directing the disability policy formulation and rehabilitation service delivery that is a significant critical factor to their empowerment Policy makers and Federal agency leaders have a heightened responsibility to assist with refinement of implementation of the ADA, particularly with the advent of workforce preparation, welfare reform, and alterations to the Social Security Insurance system. It is increasingly imperative that Federal leaders work together to design a system that minimizes barriers and maximizes incentives to persons with disabilities across all the respective systems represented by these new pieces of legislation. Educators of persons with disabilities can contribute to implementation of the ADA by both making sure that persons are informed of their rights as they move from school to community and the workplace, but also in contributing to a seamless service delivery system that encourages employment. This means taking an integrated Federal workplace policy at the national level, and reinforcing its interlacing qualities at the local level, while keeping persons with disabilities at the center of the process. Rehabilitation service providers will continue to be a critical component of implementation of the Americans with Disabilities Act. A minimum contribution is knowledge of the ADA, and being able to inform persons with disabilities about their rights and employers about their responsibilities under Title I. Additionally, as time goes on, their contribution to the social policy process is increasingly needed. Service providers have a part to play in the implementation of disability employment policy at the local level. Being able to understand the interplay of Federal policies at the state and local level is gaining ever-increasing importance, particularly with new workforce development and welfare reform state legislation that impacts services to persons with disabilities (Bruy=8Are, forthcoming). Having informed rehabilitation agencies and informed service providers are imperative in this process. Consideration of Alternative Dispute Resolution The U.S. Equal Employment Opportunity Commission (EEOC) currently encourages alternative dispute resolution for addressing workplace disputes, including claims of discrimination (U.S. EEOC, 1998, 1999). Such a system may assist persons with disabilities to reclaim at the grassroots level more power for outcomes in discrimination cases. This may be one way of trying to address the reported inadequacies of the legislative and judicial systems, if implemented carefully. It will be important, for long-term gains in the application of the ADA to be realized in the workplace, existing workplace structures be used to continue to provide employers with supports on accommodations. Examples of such applications are use of safety and health professionals, occupational medicine professionals, and employee assistance professionals in the workplace. Rehabilitation service providers should also explore the viability of assisting with attitudinal change issues needed in a given workplace, by the introduction of information about differences in persons with disabilities in cultural diversity programming within given workplaces. Conclusion The purpose of the paper has been to contribute to the thinking of this Switzer Seminar on future disability policy issues and implications, information on the impact of civil rights legislation targeted toward improvement of the status of people with disabilities in American work life. Employment is a critical factor in liberating people with disabilities and assuring their equal participation in American society. It is the forum for economic equity, as well as often for social affiliation and an opportunity for expression of skills and talents. Persons with disabilities have a rightful equal place at the heart of the American work place, and civil rights legislation such as the Americans with Disabilities Act have been attempt to significantly move us toward that equity. Much work remains to realize the promise of the ADA, and this paper is an attempt to clarify remaining barriers to spur needed disability policy reforms, which will help the ADA to meet this promise. References Acemoglu, D., & Angrist, J. (1998). Consequences of employment protection: The case of the Americans with Disabilities Act. (NBER Working Paper W6670). Cambridge, MA: National Bureau of Economic Research. Baldwin, M., & Johnson, W. (1998). Dispelling the myths about work disability. In T. Thomason, J.F. Burton, Jr., & D.E. Hyatt (Eds.). New approaches to disability in the workplace, IRRA Research Volume. Ithaca, NY: ILR Press. Blanck, P. (1993). The Americans with Disabilities Act: Putting the employment provisions to work. Washington, DC: The Annenberg Washington Program. Blanck, P. (1994). Employment, integration, economic opportunity, and the Americans with Disabilities Act: Empirical study from 1990-1993. Iowa Law Review, 79(4), 843-939. Blanck, P. (1998). The Americans with Disabilities Act and the emerging workforce: Employment of people with mental retardation. Washington, DC: American Association on Mental Retardation. Blanck, P. &, Weighner Marty, M. (1997). Attitudes, behavior, and the employment provisions of the Americans with Disabilities Act. Villanova Law Review, 42(2), 345-408. Bruy=8Are, S. (1999). (with the assistance of Allison Branick) The ADA at work. Alexandria, VA: Society for Human Resource Management. Bruy=8Are, S.M. (forthcoming). The Americans with Disabilities Act: Where we stand ten years later. Directions in Rehabilitation Counseling, Volume 11. New York: Hatherleigh Publications. Burkhauser, R.V. (1997). Post-ADA: Are people with disabilities expected to work? Annals of the American Academy of Political and Social Science, 549,71-83. Burkhauser, R.V., Butler, J.S., & Weathers, R.R. (1999). How policy variables influence the timing of Social Security Disability Insurance applications. Working Paper. Ithaca, NY: Rehabilitation Research and Training Center for Research on Employment Policy for People with Disabilities. Burkhauser, R.V. & Haveman, R.H. (1982). Disability and work: The economics of American policy. Baltimore, MD: Johns Hopkins University Press. Burkhauser, R.V., & Houtenville, A.J. (1999) Recent trends in the employment and income of persons with disabilities. Working paper. Ithaca, NY: Cornell University, Rehabilitation Research and Training Center for Economic Research on Employment Policy for Persons with Disabilities. Collignon, F. (1997). Is the ADA successful? Indicators for tracking gains. Annals of the American Academy of Political and Social Science, 549, 129-147. Daly, M. (1997). Who is protected by the ADA? Evidence from the German experience. Annals of the American Academy of Political and Social Science, 549, 101-116. Donohue, J.J. III (1994). Employment discrimination law in perspective: Three concepts of equality. 92 Michigan Law Review 2583. Donohue, J.J. III, & Heckman, J.J. (1991). Symposium: The law and economics of racial discrimination in employment: Re-evaluating federal civil rights policy. 79 Georgetown Civil Rights Policy 1713. Job Accommodation Network (JAN). Accommodation Benefit/Cost Data, 1992 through October 31, 1998. Morgantown, WV: West Virginia University. Johnson, W.C. (1997). The future of disability policy: Benefit payments or civil rights? Annals of the American Academy of Political and Social Science, 549, 160-172. Kosciulek, J.F. (1999). Consumer direction in disability policy formulation and rehabilitation service delivery. Journal of Rehabilitation, 65 (2), 4ff McFadden, M. (1997). ADA-is the glass half empty or .? Trial, 33(12), 28-35. Mental and Physical Disability Law Reporter (1998). Study finds employers win most ADA Title I judicial and administrative complaints. MPDLR, May-June, 403-407. Middleton, R., Harley, D., Rollins, C., & Solomon, T. (1998). Affirmative action, cultural diversity, and disability policy reform: Foundations to the civil rights of persons with disability. Journal of Applied Rehabilitation Counseling, 29(3), 9-17. Moore, C., & Feist-Price (1999). Societal attitudes and the civil rights of persons with disabilities. Journal of Applied Rehabilitation Counseling, 30(2), 19-24. Mudrick, N. (1997). Employment discrimination laws for disability: Utilization and outcome. Annals of the American Academy of Political and Social Science, 549, 53-70. National Council on Disability (1997). Equal of Opportunity: The making of the Americans with Disabilities Act. Washington, DC: Author. Percy, S. (1989). Disability, civil rights, and public policy: The politics of implementation. Tuscaloosa: The University of Alabama Press. Scotch, R., & Schriner, K. (1997). Disability as human variation: Implications for policy. Annals of the American Academy of Political and Social Science, 549, 148-159. U.S. Commission of Civil Rights (1998). Helping Employers Comply with the ADA: An assessment of how the United States Equal Employment Opportunity Commission is Enforcing Title I of the Americans with Disabilities Act. September. Washington, DC: Author. U. S. General Accounting Office (1996). People with disabilities: Federal programs could work together more efficiently to promote employment. Report to the Chairman, Subcommittee on Employer-Employee Relations. Committee on Economic and Educational Opportunities, House of Representatives. (GAO/HEHS-96-126)Washington, DC: Author. U.S. General Accounting Office (1998). Equal employment opportunity: Rising trends in EEO complaint caseloads in the Federal sector. (GAO/GGD-98-157BR). Washington, DC: Author. U.S. General Accounting Office (1999). Equal Employment Opportunity: Complaint Caseloads rising, with effects of new regulations on future trends unclear. (GAO/GGD-99-128) Report to Congressional Requestors. Washington, DC: Author. West, J. (1991). The Americans with Disabilities Act: From policy to practice. New York: Milbank Memorial Fund. Yelin, E. (1997). The employment of people with and without disabilities in an age of insecurity. Annals of the American Academy of Political and Social Science, 549, 117-128. Table 1: Figures for Charge Resolution for FY 1998 Legislation Settlements Withdrawals w/ benefits Admin. Closures No Reasonable Cause Reasonable Cause Successful Conciliation Unsuccess. Conciliation Merit Resolutions ADA 4.9 3.5 27.7 57.7 6.2 2.3 3.9 14.7 Title VII of the Civil Rights Act 4.4 2.9 26.5 62.1 4.2 1.1 3.1 11.5 Age Discrimination in Employment Act 4.7 3.6 26.1 61.2 3.9 0.7 3.1 12.2 Equal Pay Act (includes concurrent charges with Title VII, ADA, ADEA 6.3 4.3 28.8 54.3 6.3 1.3 5.0 16.8 National Origin 3.6 3.1 26.1 64.1 3.1 0.7 2.4 9.8 Pregnancy Discrimination (EEOC and FEPAs) 9.5 7.3 23.0 56.7 3.5 1.5 2.0 20.3 Race-Based Charges 4.1 2.3 22.0 68.6 2.9 0.8 2.1 9.3 Religion-Based Charges 4.3 3.6 24.9 60.7 6.5 1.9 4.7 14.5 Sex-Based charges 4.6 3.6 31.6 55.0 5.2 1.4 3.8 13.4 Source: US Equal Opportunity Commission Data, Enforcement Statistics and Litigation. http://www.eeoc.gov/stats/index.html. Washington, DC: Author. Administrative Closure Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction. Merit Resolutions Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliations, and unsuccessful conciliations. No Reasonable Cause EEOC's determination of no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. The charging party may exercise the right to bring private court action. Reasonable Cause EEOC's determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues which gave rise to the initial charge. NOTE: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliations. Settlements (Negotiated) Charges settled with benefits to the charging party as warranted by evidence of record. In such cases, EEOC and/or a FEPA is a party to the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered by EEOC-enforced statutes). Successful Conciliation Charge with reasonable cause determination closed after successful conciliation. Successful conciliations result in substantial relief to the charging party and all others adversely affected by the discrimination. Unsuccessful Conciliation Charge with reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration. NOTE: Because "reasonable cause" has been found, this is considered a merit resolution. Withdrawal with Benefits Charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party. Table 2: Cost of Accommodations Approximately how much did the accommodation cost to make? N=3D684 Cost Percentage No cost Between $1 and $500 Between $501 and $1,000 Between $1,001 and $1,500 Between $1,501 and $2,000 Between $2,001 and $5,000 Greater than $5,000 20% 48% 12% 5% 3% 9% 3% Cumulative (since October 1992) Mean Cost Median Cost $935 $200 This Quarter Mean Cost Median Cost $1,242 $250 President's Committee on Employment of People with Disabilities' Job Accommodation Network (JAN). Accommodation Benefit/Cost Data, 1992 through October 31, 1998. Morgantown, WV: West Virginia University. ---------- End of Document -- TNET Mail-To-News Gateway Version - 1.6 For information about this gateway email programs@tnet.com
