By Rafael A. Icaza –
This is the first in a series of blogs about disability in the labor market. In this first one I address the background and basic features of the Americans with Disabilities Act (ADA). In future blogs I will address in more detail issues raised by the ADA and similar laws, such as what constitutes a “reasonable accommodation” or an “undue hardship”.
Many disabled Americans want to work but employers are reluctant to hire them because of the stigma that attaches, primarily, to visibly disabled people, and also for fear they will be unable to perform the job. The disabled who are employed also experience difficulties in developing their careers, as some employers simply assume they cannot perform at a higher level. To address these challenges, in 1990 Congress enacted and President George H.W. Bush signed into law the ADA, which “prohibits . . . employers [of 15 or more employees] from discriminating against people with disabilities in all employment-related activities, including hiring, pay, benefits, firing and promotions.” (www.dol.gov/odep/pubs/fact/laws.htm.) Despite the ADA, the disabled still experience much higher rates of unemployment than those without disabilities. According to the U.S. Bureau of Labor Statistics, as of July 2013, the unemployment rate for persons with a disability was 14.7%, but 7.4% for those without disabilities. Even worse is the unemployment rate of disabled youths. As of July 2013, only 19.4% of disabled 16 to 19 year-olds were employed, compared to 33.3% of their non-disabled counterparts. And only 33 % of disabled 20 to 24-year olds were employed, compared to 65.5 % of the non-disabled. (http://data.bls.gov/cgi-bin/ print.pl/ news.release/empsit.t06.htm).
The ADA mandates five considerations employers and workers must take into account to address the above problems. (1) Employers must consider not only candidates and employees who are healthy, but also those who can do the job with or without “reasonable accommodation”; (2) employers and workers must engage in a dialogue—an “interactive process”—to identify reasonable accommodations enabling the worker to fulfill the duties of the job; however, (3) even when disabled workers can do a job with or without an accommodation, employers can refuse to hire or can discharge them if the accommodation imposes an “undue hardship” upon the employer; (4) similarly, even when workers can do a job with or without an accommodation, employers can refuse to hire or can discharge them if they cannot perform the essential functions of the job in a manner which would not endanger themselves or others; and, finally, (5) employers “may discriminate against a whole group of persons with disabilities if the absence of a particular disability is a bona fide occupational qualification (BFOQ).” For example, an employer may refuse to hire any person with back problems for a job requiring heavy lifting. (Sterling Transit Co. v. Fair Employment Practice Commission (9181) 121 Cal.App.3d 791.)” In future blogs I will discuss these considerations.