Emerging Issues & Challenges
around ADA Employment Provisions:
Implications for Rehabilitation Education
and Practice
NCRE Annual Conference
San Antonio, TX
21 February, 2009
1
Presenters
Wendy Wilkinson
DBTAC Southwest ADA Center
Larry Featherston
Susanne Bruyère
Hannah Rudstam
DBTAC-Northeast, Cornell University,
Employment and Disability Institute
2
Wendy Wilkinson
DBTAC: Southwest ADA
Center
3
Discrimination and Disability
• Glass ceiling issues and employment
of persons with disabilities
• Legislation
– Americans with Disabilities Act of 1990
– Americans with Disabilities Act
Amendments of 2008
– Genetic Information Nondiscrimination
Act of 2008
Glass Ceiling Issues in Employment: Barriers
– Historical:
• Decades of segregation, unemployment and stigmatization are factors.
Many people with disabilities have internalized their relegation to second
class citizenship to the extent that they have become so demoralized and
disenfranchised that they do not pursue educational opportunities, involve
themselves in social, political and other activities which would enhance
their position in society and lead to expanded employment opportunities.
• Perception that people with disabilities cannot truly compete in the
workplace unless they can be cured or rehabilitated remains. Programs
were developed to rehabilitate persons with disabilities so they could
become economically productive and contribute to society in a way that was
recognized and respected. The focus was placed completely on the
individual, and the impact of traditional workplace structures and policies
on the individuals abilities to perform in a job were not addressed.
– External: factors exogenous to the workplace which include; limited access to
health care, educational opportunities, adequate housing and transportation.
– Health Care: Access to health care is critical to employment status of persons
with disabilities. Individuals with disabilities in the workplace may choose to
remain in jobs which offer little upward mobility in order to retain access to
health insurance.
Glass Ceiling Issues in Employment: Barriers
– Self-identification:
• Many individuals, including both those who do not know about the ADA and those
who are aware of its existence, may not consider themselves to be individuals with
disabilities. Many individuals who are deaf do not label themselves as individuals
with disabilities, they consider themselves to be a part of a culture, linked together
by a common language. Self-identification as belonging to a class is one key to
breaking down employment barriers. The next step is educational, ―for people with
disabilities to achieve social equity they must first empower their own members and
then persuade others (Karst)
• The individuals that do identify themselves as people with disabilities are not all
politically active, empowered members of a class whom are aware of the ADA‘s
existence. Of those who are aware of its existence, few understand its mandate and
possess the resources necessary to use it effectively. Perhaps this can be
attributed, in part, to the nature of the legislative mandates people with disabilities
are most familiar with. The programs most people with disabilities have traditionally
had access to--are entitlement in nature, design and perception. These have imbued
many individuals with disabilities with a sense of powerlessness over their destiny.
- Workplace Culture: Tremendous barriers in the workplace remain because of traditional
workplace culture and norms. Barriers are created by, routine personnel actions,
policies, and procedures (Compton). Job descriptions often dictate the means which
should be used to accomplish a particular job task instead of describing the end result
desired. Many unions view nondiscrimination laws as a threat to their core, guiding
principles --job security and seniority.
Glass Ceiling Issues in Employment: Barriers
• Workplace pressure:
• Anecdotal evidence suggests that workplace pressure to conform makes
individuals reluctant to request accommodations for fear of being singled out
and appearing to demand special consideration (SWDBTAC). Co-workers and
supervisory personnel may perceive the provision of an accommodation to be
special treatment, instead of being understood as a necessary adjustment to
promote equal opportunity.
- Many people with disabilities, may be afraid to request accommodations because
of a fear of having to disclose the existence of a disability.
- Others may be unaware of the law and their right to request accommodation. So,
there may be significant numbers of people with disabilities in the workplace still
trying to work within accepted norms which don‘t allow them to be as effective as
they could be with an appropriate accommodation. Their performance as well as
their opportunities for advancement may be significantly affected. apparently
neutral job requirements which are, in effect, discriminatory because they screen
out great numbers of otherwise qualified individuals.
• Socialization: Studies have shown the socialization of men and women effects the status of
women in the workforce (Taub). Many persons with disabilities have traveled a distinctly
different route to the workplace than others. Some groups of individuals with disabilities
who have discontinuity in their work lives may be tremendously impacted, as women have
been, in pursuing employment opportunities which offer the greatest returns.
Discontinuous workforce participation has been shown to have a chilling effect on
women‘s progression in the workforce (Polachek).
Glass Ceiling Issues in Employment: Barriers
• Perceptions:
– Attitudinal studies reveal that people with different types of disabilities are subjected to
different kinds of discrimination (Fuqua.).
• Persons with disabilities encounter different types and degrees of discrimination in
the workplace relative to the type of impairment they have (Compton). One study
indicated that employers expressed considerably more doubt about the productivity
of people with learning disabilities than they did of individuals with other types of
disabilities (Gerber). Another study revealed that individuals with visible, physical
impairments are viewed more favorably than those with mental or sensory
impairments (Fuqua) There is a hierarchy of acceptance dependent on the particular
type of disability. Individuals with hidden, unfamiliar or more stigmatized disabilities
face greater barriers in the workplace and in society. The unemployment rate among
people with psychiatric disabilities is estimated to be 85% which is significantly
higher than the rate for individuals with physical disabilities (Mancuso). Studies of
negative attitudes toward different impairment groups consistently find mental
impairments eliciting the strongest prejudice (Baldwin)
– Within the disability community itself there is a stratification among individuals with
different types of disabilities. Individuals with a certain type of impairment may make
stereotypical assumptions concerning other types of impairments. Persons with
disabilities are not immune from the influences that cause others to make judgments
about others with certain types of disabilities unfamiliar to them. People understand and
accept those who are most like them. (Henderson)
Glass Ceiling Issues in Employment: Barriers
• Disability Nondiscrimination legislation:
– Since the passage of the ADA courts and employers struggled with reconciling the competing
values the ADA, as drafted embodies--the struggle among different conceptions of disability,
a civil rights mandate balanced with cost considerations, misperceptions regarding the
mandate of the ADA (affirmative action vs. nondiscrimination).
• In Southwestern Community College v. Davis, the Supreme Court referred to reasonable
accommodation at one point as an affirmative action requirement and later addressed it
as a nondiscrimination mandate. In Alexander v. Choate, the Court clarified its analysis
of reasonable accommodation, noting the criticism its earlier interpretation engendered,
and found that it was a nondiscrimination mandate.
– Employers and individuals with disabilities perception of the governments commitment to
enforcement is an important factor in assessing workplace barriers.
• Can an employee with a disability be assured of accessing the protection of the law?
• Do employers perceive the law as one that is actively enforced?
• Does it appear that the government, through the ADA, is completely committed to ending
workplace discrimination against people with disabilities?
– Legislation cannot address all the behaviors which manifest themselves in the workplace as
intolerance to difference. Numerous events can occur in the workplace which may not
constitute actionable discrimination but which impact an individuals job performance. The
discomfort of co-workers or customers due to misperceptions of an individual with a
disability may significantly impede their chances of progressing in the workplace.
Glass Ceiling Issues in Employment: Barriers
– Disability Nondiscrimination legislation:
• It is impossible to draw a clear line around persons with disabilities
protected by the law--how does one demonstrate the existence of systemic
discriminatory practices without determining whether the group passed over
for jobs had disabilities.
• The ADA is limited in its ability to address institutionalized, systemic
discriminatory practices in a comprehensive manner because it is restricted
in its ability to address the full range of activities that impact employment
discrimination. The ADA was drafted to address discrimination at a micro
level, its statutory language is crafted to redressing individualized
discrimination.
• To date, enforcement efforts have been focused on providing individual
redress. Early Title VII enforcement efforts were targeted as well to
addressing allegations of individualized discrimination. Soon after its
enactment, this enforcement strategy was challenged because it wasn‘t
addressing widespread, systematic employment discrimination (Graham). In
response, the EEOC developed the theory of disparate impact to address
employment discrimination against a class. Strategies were developed
utilizing statistical data to profile race disparities in the workplace. The
difficulty of gathering data on people with disabilities in the workplace makes
it impossible to use a traditional, statistical approach in applying the
disparate impact theory in the context of disability discrimination.
Glass Ceiling Issues in Employment: Barriers
• Employment Support Programs:
– Title VII programs provide the greatest assistance in attaining employment.
The Act does not provide specific guidance as to precisely what benefits must
be provided, nor does it define the ultimate employment goal. The statutory
language of the Act appears to mandate the provision of some services, while
the regulations seem to allow conditional provision of services. It is unclear
how much discretion a state agency has over provision of necessary
rehabilitation services. There is also a lack of clarity regarding the ultimate
employment goal, which has resulted in some litigation. At issue has been the
appropriate vocational goal level which the program must support. Should it
be the achievement of the highest vocational goals . . . or merely suitable
employment
– For the most part the programs developed by the Social Security
Administration or through Title VII of the Rehabilitation Act do not follow the
individual into the workplace. Once the employment goal has been attained,
the individuals case will be closed or they will be deemed ineligible. Some
programs have been developed to allow for transitioning into employment, but
for the most part, ones entree into the workforce triggers a cut-off or phase-out
of any assistance for disability-related expenses or health care.
Research Gaps
• In Culture and Disability, Karen Hirsch makes note of the lack of historical
scholarship on disability in comparison to the number of studies on the history of
African -Americans and women which impacted the civil movements for these
groups. The lack of references and scholarship on disability in history further
negates its importance to other groups--if it hasn‘t been documented how can its
existence be recognized. This recognition is extremely important given the studies
that suggest that people with disabilities encounter more workplace discrimination
than any other group (Johnson).
• Documentation of the costs of discrimination:
– Income replacement and disability benefit programs
– Expand societal notions of cost and redefine how we quantify and assess the
costs of discrimination versus compliance. Any assessment of the costs
associated with ADA implementation should be compared against the societal
cost of discrimination. Some of these costs are directly employment related--
discrimination diminishes the labor pool which can result in wage inflation, thus
increasing the costs of goods and services. In addition, the costs to employers
of having access to an arguably noncompetitive labor pool because it does not
include all potentially qualified applicants should be included.
– Impact of awareness of civil rights and access to benefits and privileges of
society on employment.
Legislation
• Discrimination is defined as ―Unfair treatment of
a person or a group based on prejudice”
• Challenge—targeting discrimination based on
disability
– Americans with Disabilities Act of 1990
• As passed
• As implemented and interpreted
– Americans with Disabilities Act Amendments of 2008
• As passed
• As implemented and interpreted?
ADA & ADAAA
• Under the ADA of 1990 many cases were dismissed before trial
because plaintiffs could not meet the high standard of proving
that they had a disability. The ADAAA makes this outcome much
less likely.
• The ADAAA of 2008 makes important changes to the ADA ―to
restore the intent and protections of the Americans with
Disabilities Act of 1990.‖ The amendments:
– reject the holdings in several Supreme Court decisions that severely
narrowed the definition of disability;
– direct the EEOC to change the language in the regulations in several
key sections to ensure that a broad range of individuals discriminated
against on the basis of disability will be protected by the Act.
What did Congress Do?
Congressional Intent is Clear:
• In order to understand the true import and power of the ADA Amendments
Act one must review the statute and it‘s ―Findings and Purposes‖ to
determine what the ADAAA means and what Congress is directing the EEOC
to do.
• Rules of construction are what courts use to interpret statutes. Normally
―Findings and Purposes‖ are not considered as having the same weight as
statutory language, but the statutory language in the ADAAA refers back to
the ―Findings and Purposes‖ and it makes it clear that Congress intended
the courts to look at this as statutory language.
• The ―Findings and Purposes‖ language of the ADAAA is very specific and
clearly describes the remedy Congress is seeking. It directs the EEOC to
remedy certain cases that Congress believes were decided contrary to the
intent of the ADA as it was passed in 1990.
• The EEOC is directed to address the definition of disability.
§ 12101. Findings and purpose
A new finding was added and an original one deleted:
New
• The Congress finds that—
• (1) ‗(1) physical or mental disabilities in no way diminish a person‘s right to
fully participate in all aspects of society, yet many people with physical or
mental disabilities have been precluded from doing so because of
discrimination; others who have a record of a disability or are regarded as
having a disability also have been subjected to discrimination
Why?
• The finding that 43 million people in the United States have disabilities was
deleted is because the Supreme Court in both Sutton and Toyota used this
as rationale for applying a rigid standard for narrowing the definition of
disability:
• “[h]ad Congress intended to include all persons with corrected physical
limitations among those covered by the Act, it undoubtedly would have
cited a much higher number [than 43 million disabled persons in the
findings”
Finding No. 8
• Is important because the EEOC defined
substantially limited as significantly restricted
and that was inconsistent with what Congress
had intended. It imposed too high a standard and
excluded many persons with disabilities the Act
was supposed to protect.
– “Congress finds that the current Equal Employment
Opportunity Commission ADA regulations defining the
term „substantially limits‟ as „significantly restricted‟ are
inconsistent with congressional intent, by expressing
too high a standard.”
Supreme Court Cases Rejected
• The Supreme Court has decided twenty ADA cases, five of these cases
centered on the definition of disability. Four of these cases significantly
narrowed the definition of disability:
• Sutton v. United Airlines, 527 U.S. 471 (1999).
Murphy v. United Parcel Service, 527 U.S. 516(1999).
Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999).
Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
• Congress rejected the holdings in these cases:
• ―Sutton trilogy‖ – Disability must be evaluated by factoring in impact of
mitigating measures.
• There is a small compromise in the amendments regarding mitigating
measures:
– The ameliorative effects of the mitigating measures of ordinary
eyeglasses or contact lenses shall be considered in determining whether
an impairment substantially limits a major life activity.
– However these individuals would be “protected” if they are “regarded as”
having an impairment
• Toyota- Activities limited must be of ―central importance‖ to a persons daily
existence.
Reasoning in Supreme Court Case—Airline
Reinstated
• School Board of Nassau County v. Arline, 480 U.S. 273 (1987) set forth a broad
view of the third prong of the definition of disability under the Rehabilitation
Act of 1973. Purposes at 3)
– In Airline the plaintiff, a school teacher, had been hospitalized for
tuberculosis and was in remission for 20 years when she had three
relapses over a period of two years while she was working. After the last
two, she was suspended with pay until the end of the school year at which
point she was terminated. She brought suit under Section 504 of the
Rehabilitation Act of 1973. The court found that she had a disability under
the “record of” prong of disability because her hospitalization for a
disease which affected her respiratory system. Pp. 480 U. S. 280-281. The
Court‟s ruling was broad so it would cover anyone who had an actual,
record of or a perceived impairment—even if they did not have any
impairment at all. (http://supreme.justia.com/us/480/273/case.html)
• In its rationale, the Court noted that Congress‘ expansion of the definition of
disability in § 504 reflected Congress‘ concern that persons with disabilities
should be protected from discrimination ―stemming not only from simple
prejudice, but also from ‗archaic attitudes and laws‘ and from ‗the fact that the
American people are simply unfamiliar with and insensitive to the difficulties
confront[ing] individuals with…‖ disabilities. The expanded definition included
discrimination against persons with a record of or who are regarded as having
an impairment, but may not have one at all.
ADAAA More ―Traditional Civil Rights Law‖
• The amendments conform the ADAAA with the structure of
Title VII and other civil rights laws:
• Require an individual to demonstrate discrimination ―on the
basis of disability‖ rather than discrimination against a
qualified individual ―with a disability because of the disability
of such individual.‖
Focus is now on whether a qualified individual has been
discriminated against on the basis of his or her disability,
rather than on whether the individual is a person with a
disability.
Major Life Activities Listed and
Enhanced
• Major life activities were not defined in the ADA statute of 1990, but
were defined in the regulations implementing the law. The ADAAA
provides a list of major life activities.
• The ADA regulations promulgated by the EEOC in 1991 defined major
life activities to include functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. The ADAAA also lists these and adds
―eating, sleeping, standing, lifting, bending, speaking, breathing,
reading, concentrating, thinking, and communicating.‖
• The ADAAA also lists major bodily functions that should be
considered major life activities:
– ―Major life activities also includes the operation of a major bodily
function, including but not limited to, functions of the immune
system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.‖
ADAAA Addresses Impairments
• The ADAAA added additional language stating
that:
―(C) An impairment that substantially limits one
major life activity need not limit other major life
activities in order to be considered a disability.
(D) An impairment that is episodic or in remission
is a disability if it would substantially limit a major
life activity when active.”
New Section on Qualification Standards
Related to Vision Added
“(c) Qualification Standards and Tests Related to
Uncorrected Vision- Notwithstanding section
3(4)(E)(ii), a covered entity shall not use
qualification standards, employment tests, or
other selection criteria based on an individual‟s
uncorrected vision unless the standard, test, or
other selection criteria, as used by the covered
entity, is shown to be job-related for the position
in question and consistent with business
necessity.‟‟
What Could Change?
• EEOC could change list of impairments.
• Significant restriction will be changed.
– It will have great impact on definition of disability issues, including revision of the
definition of a work disability under the first and third prongs…
• individuals who alleged that they had a disability which substantially limited their
ability to work encountered a tremendous evidentiary burden by having to
establish that they were significantly restricted in their ability to perform a class
or broad range of jobs. It was a surprisingly strict regulatory requirement which
made it exceedingly difficult for a plaintiff who had been subjected to an adverse
employment action because of a work disability to establish the full range of jobs
in which their performance would be restricted. This hurdle was especially
difficult in cases where an individual was alleging that the employer regarded
them as having a work disability as they must not only prove up the range of jobs
they were excluded from, but also that the employer believed that there was a full
range of jobs that this person was restricted from performing. The courts have
taken this language and applied it very restrictively. Many individuals had
difficulty proving that their employer perceived them as unable to perform a full
range of jobs.
• The new ―regarded as‖ language appears to target this issue as it states a person
should just have to prove that they were discriminated against because of an
impairment and not have to address whether that perception also included a
specific major life activity.
What impact will the ADAAA have
•
workplace?
on the in the workplace who are protected by the federal
Increased number of individuals
law.
• Range of coverage and protections afforded under the amended ADA will expand
significantly.
• The ADAAA‘s broad coverage and protections remove the focus from a ―disability‖
inquiry and place it squarely on the interactive process.
• Employers should review their policies and practices governing the ADA‘s
interactive process and focus on their reasonable accommodations procedures.
• Upon request for a reasonable accommodation employers should engage in an
interactive process with employees or applicants regardless of whether medication,
aids, or other mitigating measures may be available to them.
– If an employee or applicant demonstrates a physical or mental impairment that would limit
his or her ability to request an accommodation, initiate an informal interactive process to
accommodate them
Genetic Discrimination
• The ADA of 1990 has not been widely used to challenge genetic
discrimination. Although the statutory language of the ADA does not
reference genetic traits, there was a discussion of the issue during the
congressional debates.
• The ADA has been interpreted by the EEOC as including genetic
discrimination under the third—regarded as prong of the definition of
disability.
– (EEOC Guidance (http://www.eeoc.gov/policy/docs/902cm.html)
– “Regarded as… “applies to individuals who are subjected to
discrimination on the basis of genetic information relating to illness,
disease, or other disorders. Covered entities that discriminate against
individuals on the basis of such genetic information are regarding the
individuals as having impairments that substantially limit a major life
activity…”Example -- CP's genetic profile reveals an increased
susceptibility to colon cancer. CP is currently asymptomatic and may
never in fact develop colon cancer. After making CP a conditional offer of
employment, R learns about CP's increased susceptibility to colon
cancer. R then withdraws the job offer because of concerns about
matters such as CP's productivity, insurance costs, and attendance. R is
treating CP as having impairment that substantially limits a major life
activity. Accordingly, CP is covered by the third part of the definition of
"disability.‟”
Genetic Discrimination
• The ADA of 1990‘s application to genetic discrimination became
more limited after the Sutton trilogy of cases. Still, the EEOC did
not withdraw the guidance. However, even if the ADA of 1990
could be found to apply to individuals with symptomatic genetic
conditions it may not ―protect workers from requirements or
requests to provide genetic information to their employers..... In
addition, once the applicant is hired, the employer may request
that the employee take a medical exam, such as a genetic test,
– if the employer can demonstrate that the information from that
test is job related and consistent with business necessity.‖
• The ADAAA, because of the rejection of the Sutton trilogy and the
directive by Congress to apply a broader definition of disability,
can be used to challenge genetic discrimination that is
asymptomatic under the ―regarded as‖ prong.
Genetic Information
Nondiscrimination Act of 2008 (GINA)
• On May 21, 2008, GINA was enacted.
• It prohibits U.S. insurance companies and
employers from discriminating on the basis of
information derived from genetic tests. GINA is
divided into two main parts:
• Title I, prohibits discrimination based on genetic
information by health insurers; and
• Title II prohibits discrimination in employment
based on genetic information.
Genetic Information Nondiscrimination
Act of 2008 (GINA)
• Title I of GINA prohibits group health plans and health insurance issuers in
the group market from using genetic information to adjust premium or
contribution amounts for the group covered under the plan. Plans and issuers
in the group market are still allowed to increase the premium rate for an
employer based on the manifestation of a disease or disorder of an individual
enrolled in the plan, but they are prohibited from using the manifested
disease or disorder of one individual as genetic information about other
group members to further increase the premium.
• Title II of GINA prohibits discrimination in employment because of genetic
information and, with certain exceptions, prohibits an employer from
requesting, requiring, or purchasing genetic information. The law prohibits
the use of genetic information in employment decisions — including hiring,
firing, job assignments, and promotions — by employers, unions,
employment agencies, and labor-management training programs.
Genetic Information
Nondiscrimination Act of 2008 (GINA)
• The parts of the law relating to health insurers
will take effect by May 2009, and those relating to
employers will take effect by November 2009.
• EEOC and HHS are currently developing
regulations
• It will be tested!
Issues Facing Women with
Disabilities in the Workplace
By
Larry W. Featherston, A.B.D., C.R.C., C.V.E.
Cornell University
Barriers to Work for All Individuals
with Disabilities
• Ignorance, prejudice, a reluctance to change by
employers
• Effects of disability – need for continued medical
treatment
• Negative perceptions about returning to work
– Lack of confidence and motivation
• Job availability
• Lack of Transportation
(Bruyère et al., 2006; Feist-Price & Khanna, 2003; Roessler, Williams, Featherston & Featherston, 2006 )
―Double handicap‖
– additional barriers for women
• Deegan and Brooks (1985), Feist-Price and
Khanna (2003), and Schur (2003)
– Gender bias / Sexism
– Oppressive actions by society
Wage Discrimination
―Women with disabilities must be afforded the
same rights and opportunities as all other
persons, irrespective of disability status and sex,
with regard to employment.‖ (p.12)
Feist-Price, S., & Khanna, N. (2003). Employment inequality for women with disabilities. Off Our Backs, 33(1/2), 10-12.
Most recent evidence of wage
discrimination
• Dey & Hill, 2007
– Women employed full-time, one year out of
college are earning 80% of the earnings for men
– Women employed full-time, ten years out of
college are earning 69% of the earnings for men
―The gender pay gap has become a fixture of the
U.S. workplace and is so ubiquitous that many
simply view it as normal.‖ (p. 2)
Why is this Significant?
―If working women earned the same as men (those
who work the same number of hours; have the
same education, age, and union status; and live
in the same region of the country), their annual
family incomes would rise by $4,000 and poverty
rates would be cut in half.‖ (p. 2)
National Women’s Law Center. (2006). The Paycheck Check Fairness Act: Helping to close the wage gap for women.
Evidence of Wage Discrimination
using the RSA-911 data
• Looked at:
– Individuals with disabilities who received services
through RSA and received a competitive
employment closure status in 2003, 2004, 2005
and 2006
– Individuals who reported working 30-50 a week
– Individual had no missing data
Matched Men and Women with
Disabilities on 16 Variables
To create two equal comparison groups for each fiscal year, men and
women were be matched on:
1. Race 9. VR counseling received
2. Age 10. Additional training
3. Region 11. Medicare recipient
4. Education at closure 12. Medicaid recipient
5. Cost of services received 13. SSI recipient
6. Primary disability 14. SSDI recipient
7. Secondary disability 15. TANF recipient
8. Disability severity 16. Worker’s Comp recipient
Note: The 2005 and 2006 RSA databases did not report age.
Median Weekly Earnings for Matched Men and
Women with Any Disabilities for Fiscal Years
2003, 2004, 2005, and 2006
Median Weekly Earnings for Matched Men and
Women with Single or Multiple Disabilities for
Fiscal Years 2003, 2004, 2005, and 2006
Median Weekly Earnings for Matched Men and
Women with Any Disabilities by Ethnicity for
Fiscal Years 2003, 2004, 2005, and 2006
Median Weekly Earnings for Matched Men and Women with
Any Disabilities, and Men and Women in the United States for
Fiscal Years 2003, 2004, 2005, and 2006
Note: Comparison earnings data was adapted from the U.S. Department of Labor, Bureau of Labor Statistics 2003 – 2006
Current Population Survey. Median usual weekly earnings of full-time and salary workers age 16 and older. data.
http://www.bls.gov/cps/earnings.htm#demographics
Median Weekly Earnings for Matched Men and Women with
Any Disabilities, and Men and Women in the United States
for Fiscal Years 2003, 2004, 2005, and 2006
Note: Comparison earnings data was adapted from the U.S. Department of Labor, Bureau of Labor Statistics 2003 – 2006
Current Population Survey. Median usual weekly earnings of full-time and salary workers age 16 and older. data.
http://www.bls.gov/cps/earnings.htm#demographics
Median Weekly Earnings for Matched Men and Women
with Disabilities by Educational Attainment at Closure
for Fiscal Years 2003 to 2006
2003 2004 2005 2006
Educational Men Women Men Women Men Women Men Women
Level Median Median Median Median Median Median Median Median
(75th
%i
N (75th %ile) (75th %ile) N (75th %ile) (75th %ile) N (75th %ile) le) N (75th %ile) (75th %ile)
No High School Diploma 1,38 307 251 1,47 320 260 320 276 322 280
8 0 3,833 3,745
(400) (301) (400) (320) (400) (336) (420) (344)
High School Diploma or 7,50 7,42
equivalent 8 325 280 0 339 290 14,018 347 300 13,508 350 303
(437) (358) (441) (363) (450) (380) (473) (400)
Some College, no degree 2,98 400 340 3,04 400 350 400 360 418 368
5 6 10,172 10,216
(518) (440) (545) (460) (558) (480) (580) (480)
1,17 538 500 1,25 560 528 560 537 600 548
College degree or higher 9 6 4,167 4,302
(769)
Note: All values are in U.S. dollars. Men (700) women were(780) matched on age for 2005 and 2006 fiscal years.
and not (709) (800) (711) (840) (750)
What Does it All Mean?
Women with disabilities, just like
women without disabilities, are being
discriminated against because they are
women!
What do we need to address?
VR Service provisions
Disability policy
Disability Employment Discrimination:
Implications for Rehabilitation Counseling
Susanne M. Bruyère Ph.D., CRC
Disability and Business Technical Assistance
Center-Northeast
Employment and Disability Institute
Cornell University
smb23@cornell.edu
47
www.ilr.cornell.edu
Importance of Employment Focus
for People with Disabilities
• People with disabilities continue to be significantly
un- and under-employed, compared to their
nondisabled peers.
• Claims of discrimination are higher, in comparison
to other protected groups.
• The ADAAA provides an opportunity to re-examine
and improve workplace practices, especially in
light of an aging workforce.
48
Presentation Overview
• Employment, poverty, and household income
gaps for people with disabilities
• Areas (disability type/employment process) of
disability employment discrimination
• Implications of trends in disability employment
discrimination for:
– Rehabilitation counselor practice
– Rehabilitation counselor education
– Rehabilitation research
– Disability public policy
4
49 9
Continuing Employment, Poverty, and
Household Income Gaps in 2007
• The employment rate in 2007 of Americans with disabilities
aged 21-64 was 37%, compared to 80% of people without
disabilities.
• In 2007, an estimated 25% of Americans with a disability
aged 21-64 lived in families with incomes below the
poverty line, compared to an estimated 9% of civilian men
and women without a disability.
• The median annual income of households with working-
age people with disabilities was $38,400 in 2007, while it
was $61,000 for those without working-age people with
disabilities.
Source: Calculations by W. Erickson, Cornell University, Employment and Disability Institute, using the American Community
50
Survey (ACS) 2007. Research funded by the USDE-NIDRR.
Employment Gap (Ages 21-64)
Gap=42.8%
Source: Calculations by W. Erickson, Cornell University, Employment and Disability Institute, using the American Community
51
Survey (ACS) 2007. Research funded by the USDE-NIDRR.
Poverty Gap (Ages 21-64)
Gap=15.7%
Source: Calculations by W. Erickson, Cornell University, Employment and Disability Institute, using the American Community
Survey (ACS) 2007. Research funded by the USDE-NIDRR. 52
Median Annual Household Income
Gap=$22,600
Source: Calculations by W. Erickson, Cornell University, Employment and Disability Institute, using the American Community
Survey (ACS) 2007. Research funded by the USDE-NIDRR. 53
Continuing Claims of Employment
Disability Discrimination
• People with disabilities are the largest group per
1,000 of those in protected groups filing claims
• Retaliation and ―regarded as disabled‖ are among
the top five areas of alleged employment
disability discrimination
• Claims of discrimination between disability and
age discrimination are beginning to interface
• Trends have implications for rehabilitation
counselor practice, education, and research
54
Number of Charges by Statute Per 1,000 People in the Labor Force with Protected
Class Characteristics, 1993-2007
Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS and CPS,
55
1993-2007. Research funded by the USDE-NIDRR.
Percentage of ADA Charges by Basis (Top 5), 1994-2007
Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 56
1994-2007. Research funded by the USDE-NIDRR.
Percentage of ADA Charges by Basis (Top 6-10), 1994-2007
Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 57
1994-2007. Research funded by the USDE-NIDRR.
Percentage of ADA Charges by Issue (Top 5), 1994-2007
Source: Calculations by M. Bjelland, Cornell University, Employment and Disability Institute, using the EEOC IMS files, 58
1994-2007. Research funded by the USDE-NIDRR.
Interplay of Workplace Disability
and Aging Issues
• Employers will be asked to make accommodations
to retain an aging workforce
– Visual and hearing disabilities more common
– Upper-extremity issues due to arthritic conditions
– Select health conditions (i.e., heart, diabetes)
• Has implications for workplace accommodations,
counselor practice and therefore counselor
preparation and rehabilitation research
59
Percentage of ADA and ADEA Charges Filed by Basis
(Top Joint ADA/ADEA Bases), 1993-2007
Source: Calculations by M. Bjelland, Cornell University, Employment and Disability 60
Institute, using the EEOC IMS files, 1993-2007. Research funded by the USDE-NIDRR.
The Aging Workforce
• The Census Bureau projects that the 45 to 64 year-old
U.S. population will have grown by nearly 18.6 million
(29.7%) from 2000 to 2010*
• This group will account for nearly half (44%) of the
working age population (20-64) by the year 2010**
• The prevalence of disability grows with age (Figure 1)
• By 2010, the number of people with disabilities between
the ages of 50 and 65 will almost double, and will be
significantly larger than at any other age***
*From U.S. Census Bureau population projects http://www.census.gov/ipc/www/usinterimproj/ accessed February 6,
2009.
**From U.S. Census Bureau population projects http://www.census.gov/ipc/www/usinterimproj/ accessed March 17,
2005.
**From ―The Economic Consequences of Disability Onset Near Retirement,‖ mimeo, Robert Weathers 2005.
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Implications-Rehabilitation Practice
•Provide consultation services to employers to assist in
addressing areas where discrimination allegedly most
often occurs (i.e. discharge, accommodation,
harassment, terms/conditions of employment, and hiring),
how better to accommodation in the areas where
disability claims are most frequently filed (i.e. orthopedic,
mental health, diabetes), and interplay w/aging workforce
•Provide guidance to clients about their rights in the
hiring, retention, and career advancement processes
62
Implications-Rehabilitation
Education
•Continued inclusion of disability nondiscrimination legislation
provisions in counselor training
•Cultivate counseling skills appropriate to an aging workforce
•Build competency in knowledge and skills in apparently most
problematic accommodation areas for employers
•Reinforce the importance of cultivating an awareness of
employment rights in the client in the context of the counseling
process
•Cultivate employer consultation skills that address apparent
most problematic areas of employment process
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Implications-Rehabilitation Research
• Identify needed skills for counseling with aging workforce
• Identify interventions that heighten client efficacy in self
advocacy for asserting employment rights
•Identify effective workplace interventions that change
employer behavior to minimize disability employment
discrimination in selected parts of employment process
•Identify effective employment policies and practices that
maximize accommodation for select disability types
•Identify effective employment policies and practices that
maximize inclusion and minimize disability discrimination
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Behind closed doors:
Indirect context factors that impact
workplace decisions about people with
disabilities
Hannah Rudstam
Disability and Business Technical Assistance Center—Northeast
1800 949 4232
Purposes…
1. To broaden the conversation around how
disability discrimination unfolds in the
workplace
2. Not to provide answers, but to pose
questions
3. Implications for:
– Education of VR professionals
– KT efforts & communicating with employers
Context within which
workplace decisions are
made about people with
disabilities
Direct Indirect discrimination
discrimination factors:
factors: Not directly related to
Attitudes, beliefs, disability--could subtly but
expectations powerfully impact how
directly related to decisions are made about
disability anyone who appears
―different‖
Gatekeepers
Context factors impacting how employment decisions are
made about people with disabilities
6.
Changing voice of the 1.
market: Importance of Changing nature
social responsibility to of and role of
competitive advantage gatekeepers
5.
Medical insurance 2.
embedded in Rapid rise in
employment limits productivity
options expectations
4.
Increase in remote 3.
leadership and in Rapid rise in
leadership spans of contingent
control workforce
1.
Who are the key players?
The emerging importance of
reaching mid-level managers
•HR professionals are often our point of
entry.
•Yet, mid-level managers might be more
important as gate-keepers & decisions
makers
•Transition from transactional to
strategic HR practice might heighten the
importance of mid-level managers as
arbiters of employment lives of people
with disabilities (SHRM Outlook Survey,
2008)
2.
Rapid rise in productivity
expectations
Over the past two decades,
productivity expectations have
risen dramatically.
U.S. workforce productivity has risen dramatically over the last decade
Productivity
in $/worker
Source: Bureau of Economic Analysis, U.S. Dept. of Commerce, 2006
3.
Rapid rise in contingent
workforce
Contingent workforce:
Contingent workers are defined
as those who do not have an
explicit or implicit contract for
long-term employment.
U.S. Bureau of Labor Statistics. Number of New Jobs in 10
Fastest-Growing Industries. Projection 2003 - 2012
4.
Increase in remote leadership
and in leadership spans of
control
Managers have more direct reports (Davison,
2003; Gittell, 2001; Buckingham & Coffman, 1999; )
Managers are more likely to be leading
remotely or virtually (Cogliser, 2000; Kelloway,
et.al., 2003; Watkins, 2009)
5.
Health insurance-embedded Extensive literature on how health insurance-
embedded employment impacts work decisions for
employment impacts people with disabilities. But how does it affect
employers’ decisions and employers’ decisions about hiring?
limits entrepreneurial options Growing employers’ fear of rising health care
costs—taking steps to contain health care costs
for people with disabilities 53% of employers have added a ―health
assessment‖ form to their benefits
enrollment process (SHRM 2009 Outlook
Survey)
“To avoid high health care costs, employers may
be less interested in hiring (and insuring) people
with disabilities.” (NCD, 2007, p 181)
Particularly an issue for medium & small
businesses (ODEP Survey, 2008)
Suppresses the entrepreneurial options of people
with disabilities themselves (DiCicca, 2007)
6.
Market demand--
Social responsibility and
cause commitment are Cone Cause Survey, 2007
becoming more important to
•87% respondents will switch from one
competitive advantage and product to another (price and quality being
more integrated into the equal) if the other product is associated with
a good cause (an increase from 66% in
value proposition 1993)
•Brands that can engage customers
emotionally command prices significantly
higher than the competitors
•72% of employees want their employers to
do more to support a cause (up from 52% in
2004)
6.
Market demand--
Social responsibility and
cause commitment will
become more important to
competitive advantage
Growing customer awareness of &
expectations for diversity
Increasing importance of diverse workforce to
talent recruitment & retention—to being ―an
employer of choice‖
Uneven inclusion of disability in diversity
efforts (Ball, et.al. 2005)
6.
Market demand—
Social responsibility and
cause commitment will
become more important to
competitive advantage
A University of Massachusetts & Harris Poll study
found that 93% of customers surveyed said they
would PREFER to patronize a business that has
people with disabilities in their workforce
(Sipersteina, et.al., 2005).
In summary…
Taking a broader view--
Employers’ decisions about
hiring, reasonable
accommodation, promotion,
etc. are not made in a
vacuum. KT Efforts
• Casting our attention more toward
the ―receivers‖ of knowledge
o The world they live in
o What context factors condition
their decisions?
• Effective knowledge translation and
outreach involves understanding the
overarching context within which the
information is received, given
meaning and acted upon.
Resources for Future Reference
• Disability and Business Technical Assistance
Centers, ADA Hotline 1-800-949-4232
www.adata.org
• Cornell brochures on workplace disability
accommodations, HR policies and practices
www.hrtips.org
• Cornell national and state disability statistics
www.DisabilityStatistics.org
• Employment and Disability Institute
www.ilr.cornell.edu/edi
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