When the Americans with Disabilities Act was passed in 1990, many had hoped it would provide far more opportunities for disabled individuals in the workplace. While employment rates have increased among people with severe functional limitations, the overall employment rate of people with disabilities remains significantly lower--and unemployment rates three times higher--than those of people without disabilities, according to a 2004 poll by Harris Interactive Inc.
Only 56.6 percent of working-age Americans with disabilities are employed, compared with 77.2 percent of nondisabled Americans, according to 2000 U.S. Census data.
"Despite the Americans with Disabilities Act and other federal initiatives, high unemployment among people with disabilities remains a huge problem," says Cynthia Jones, director of the Center for an Accessible Society, which is based in San Diego and funded by the National Institute of Disability and Rehabilitation Research.
"Adverse court rulings and contradictory federal policies that actually make it difficult for people with disabilities to work contribute to this problem, as do people's attitudes toward what people with disabilities are able to do," she says.
While many employers have been open to hiring and accommodating individuals with disabilities, three Supreme Court rulings in 1999 significantly narrowed the parameters of the ADA, further impeding efforts to create a more inclusive atmosphere in the workplace for people with disabilities.
"The biggest problem created by the courts has been the misinterpretation of the definition of disability," says Kevin M. Barry, supervising attorney and teaching fellow at the Federal Legislation Clinic of the Georgetown University Law Center, based in Washington, D.C. "More than 97 percent of employment cases under the ADA are dismissed on summary judgment because the courts have determined that individuals are not disabled under the ADA's definition of disability."
The law states that a person is considered disabled if he or she: has a physical or mental impairment that substantially limits one or more of their major life activities; has a record of such an impairment; or is regarded as having such an impairment. Yet many people with diabetes, cancer, epilepsy, heart disease and other serious conditions have been found to be "not disabled enough" by the courts' narrow interpretation of the ADA. This has created a catch-22 in which a person's condition is either not serious enough to constitute a disability, or too serious for that person to work.
The Supreme Court further complicated things in 1999 when it ruled that a person's use of medication or another medical aid must be considered in determining whether they have a disability under the ADA. In essence, people with serious health conditions who find a treatment that enables them to work often find that they are not protected by the law and, thus, not entitled to reasonable accommodations under the ADA.
"Unfortunately, the courts are focusing so much attention on the narrow definition of disability and mitigating measures rulings that they have shrunken the effectiveness of the ADA," says Barry. "The law was intended to address disability discrimination in the workplace, but has only managed to create a more demanding standard to determine who qualifies as disabled."
Despite these challenges in the courts, working conditions for individuals with disabilities are beginning to improve. Many employers have been reasonably responsive to Title I of the ADA, which addresses employment discrimination, and have been open to addressing reasonable accommodation requests from employees with disabilities.
"Court cases are not necessarily representative of how the law is working in action," says Peter Blanck, a professor and chairman of the Burton Blatt Institute at Syracuse University. The institute seeks to promote best practices for advancing the successful employment of people with disabilities. "The employment situation has substantially improved for disabled individuals since the passage of the ADA. The employment rate has risen among those who want to and are able to work, and many accommodations required of employers are not very expensive or difficult to make."
Perhaps part of the reason for that is that many employers report that the actual net benefits of providing workplace accommodations to employees with disabilities outweigh the costs. A service of the U.S. Department of Labor's Office of Disability Employment suggests that many accommodations have a low cost but high impact on employers' bottom lines.
Using information from a 2006 report by the University of Iowa's Law Health and Disability Center, the Department of Labor's Job Accommodation Network reported 46 percent of employers interviewed said that accommodations for persons with disabilities cost nothing. About 45 percent of employers reported a one-time cost. Of those that did have a cost, the typical one-time cost was $500.
The Job Accommodation Network researches and reports on the employment issues of the disabled. The University of Iowa study involved interviews with 366 employers between January 2004 and December 2006.
The study further found that only 25 out of 366 employers, or 7 percent, said that the accommodation resulted in an ongoing cost to the company.
"More than 80 percent of accommodations made by employers are very effective and cost little or nothing," says Anne E. Hirsh, services manager at JAN. "Most employers are more focused on how to keep valuable employees and maintain productivity than worrying about whether they're in compliance with the ADA."
Hirsh says that's where her department comes in. "We educate employers about the types of accommodations that can be made and how to document what they're doing and why," she explains.
Employers that contacted JAN also reported numerous benefits after making accommodations for employees with disabilities. The most frequently mentioned direct benefits were: the accommodation allowed the company to retain a qualified employee; the accommodation increased worker productivity; and the accommodation eliminated the costs of training a new employee. Indirect benefits included improved interactions with co-workers and increased company morale and productivity. In addition, a significant number of employers said the accommodation helped improve workplace safety.
"Often, the perception of disabled individuals and their abilities are not consistent," says Blanck. "Employers need to enhance their workplace culture to focus on wellness and promoting people's abilities, rather than looking at their disabilities. The ADA is part of a much larger sea change in disability reform, affecting the ability of disabled individuals to work and become a valuable asset to their employers and society."
That's a growing trend, according to an executive in the San Jose offices of Mercer Human Resources Consulting.
"Many employers today are more focused on trying to keep qualified employees at work," says Rob Clarke, a principal in Mercer's Absence Management Group. The vast majority of employees want to work. The key is to find a way to manage both performance and disability simultaneously, in order to maintain productivity and focus on the business at hand," he says.
The ADA can help accomplish that, according to a lawyer based in White Plains, N.Y., who specializes in disabilities issues.
"The ADA has been extraordinarily successful in changing the mindset of employers regarding individuals with disabilities, and has largely led to the focus on ability, rather than disability," says Frank Alvarez, a partner and national coordinator of the Disability, Leave and Health Management Practice Group at Jackson Lewis LLP.
"Employers understand the concept of individualized assessment, as well as the need for reasonable accommodations. The problem today is, many employers do not understand how expansive the definition of disability might be in practice."
While many U.S. Supreme Court rulings have narrowed the focus on the ADA, lower courts and state laws, such as in California and Washington, are broadening the definition of disability. That's going to increase the obligations of employers to provide protection for disabled individuals. These new laws will require more employers to treat medical conditions as disabilities.
"These laws will significantly increase the obligations of employers and potentially gives rights to many more individuals than anyone realized," says Alvarez. "Employers will be forced to spend even more time managing medical leave and accommodation issues, which drastically impacts their ability to manage day to day operations."
"Still, there is reason for optimism," says Alvarez. "My hope is that if reasonable people examine the strengths and weaknesses of the ADA, the law can be improved and, ultimately, achieves what it set out to do."
MINDY TORAN lives in Pennsylvania.
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October 1, 2007
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