Month: June 2020

Despite significant progress for U.S. workers with disabilities, many barriers remain.

May 27, 2020 | By Allen Smith, J.D.

A blind Harvard law student who couldn’t get a job interview with a single firm. Vietnam veterans who had lost their legs serving their country and couldn’t access buses or trains to commute to work. A polio survivor who became mobility-impaired and was denied a teaching certificate in New York City.

The examples of discrimination against people with disabilities before the Americans with Disabilities Act (ADA) was enacted 30 years ago “go on and on,” says Bobby Silverstein, an attorney with Powers Pyles Sutter & Verville in Washington, D.C., and a behind-the-scenes architect of the law.

The ADA opened doors for many. In addition to making disability a protected class and giving the community legal recourse, the act bans questions related to disability on job applications, provides for greater accessibility to public buildings and transportation, and requires employers to reasonably accommodate employees and job applicants. The ADA also makes requiring medical examinations before a job offer unlawful, and limits disability-related questions and medical examinations of employees.

Still, high rates of unemployment and underemployment remain for people with disabilities, and new barriers to Web accessibility are emerging. But employers can help change that.

Barriers Everywhere

Before the ADA, many hiring managers didn’t think people with disabilities were able to work, says Chai Feldblum, an attorney with Morgan Lewis in Washington, D.C., and a former commissioner of the Equal Employment Opportunity Commission. Feldblum worked for the American Civil Liberties Union AIDS Project while the Senate and House of Representatives were crafting the ADA, and she became the lead lawyer negotiating the law.

“Feldblum and Silverstein were really the drafters of it,” says Susan Meisinger, SHRM-SCP, J.D., former president and CEO of the Society for Human Resource Management. She was vice president for government affairs at the Society when the ADA was being worked out.

Before the law was enacted, Silverstein says, the first question on job applications often was “Do you have a physical or mental disability?” This posed a major barrier not only for people with visible disabilities, but also for people with so-called hidden disabilities, such as mental-health issues, epilepsy, cancer or diabetes.

On top of that, easy access to office buildings, stores, hospitals, factories, theaters, recreational facilities, parks, sports arenas, schools, libraries and restaurants “was not the rule, but the exception,” says Jean Ryan, president of Disabled in Action of Metropolitan New York in New York City.

Additionally, service animals, such as guide dogs for people with low or no vision, were often denied access to public spaces, says Priyanka Ghosh, director of external affairs for the National Organization on Disability in New York City. “Communication in various formats, such as Braille signage for people who are visually impaired and teletype phones for people who are hard of hearing, was also not guaranteed,” she adds.

Other types of workplace accommodations were similarly unavailable, according to Feldblum. People who were deaf or hard of hearing had no right to sign-language interpreters, for example, and people with psychiatric disabilities or HIV or AIDS weren’t able to take temporary leave to receive treatment.

Veterans, particularly Vietnam veterans, were discriminated against regularly out of fear that they might become violent due to post-traumatic stress disorder, says Ronald Drach, a Vietnam veteran who lost a leg during his service and is president of Drach Consulting in Oxford, Pa.

Before the ADA, “stigma was acute for all types of disabilities,” says Deborah Dagit, president of Deb Dagit Diversity LLC in Washington, N.J. “Companies could openly discriminate without fear of reprisal, and myths about people with disabilities were treated as fact versus fiction,”  she says. “Employers could decide what kind of an accommodation a person with a disability should have, whether it worked for them or not.”

Civil rights legislation was “desperately needed” 30 years ago for Americans with disabilities who “were shamefully shunned and excluded from virtually every aspect of society,” says Andrés Gallegos, a member of the National Council on Disability in Washington, D.C., and an attorney with Robbins, Salomon & Patt in Chicago. The exclusion resulted not from their disabilities, but from environmental barriers “constructed by a society that had fashioned views of disability as shameful, grotesque, requiring fixing and, if fixing wasn’t possible, then segregation by institutionalization.”

Apart from those employers covered by the Rehabilitation Act, Gallegos says, employers “had no legal obligation to provide disabled employees with any form of support or assistance to help facilitate their success at work.”

The Rehabilitation Act: Groundwork for the ADA

Much of the ADA, including the reasonable accommodation requirement, was derived from the Rehabilitation Act of 1973, Meisinger notes.

Section 504 of the Rehabilitation Act prohibits recipients of federal funds, including many universities and schools, from discriminating based on disability. Section 503 of the Rehabilitation Act prohibits federal contractors from discriminating based on disability and, unlike the ADA or Section 504, requires affirmative action for people with disabilities.

But individuals cannot sue for violations of Section 503 of the Rehabilitation Act, notes Larry Lorber, an attorney with Seyfarth in Washington, D.C., who used to head the Office of Federal Contract Compliance Programs. Instead, they must rely on the U.S. Department of Labor to sue on their behalf, he says.

Bipartisan Support

The ADA transformed the lives of people with disabilities, and support for its passage came from both sides of the aisle.

“There was a direct cause and effect between the AIDS epidemic and the enactment of the ADA,” Feldblum says. When George H.W. Bush ran for president, he was asked about a law prohibiting discrimination against those with AIDS. He was for such legislation but wanted a bill that prohibited discrimination against all people with disabilities.

Justin Dart, who headed the President’s Committee on the Employment of People with Disabilities—the predecessor for the U.S. Department of Labor’s Office of Disability Employment Policy— at the time of the ADA’s enactment “was a major driver in persuading Bush to do something,” Meisinger says.

Bush was a “critical player,” says Silverstein, who was staff director and chief counsel to the Subcommittee on Disability Policy, working for Sen. Tom Harkin, a Democrat from Iowa and chief sponsor of the ADA.

Bush sent numerous messages in favor of the ADA during his presidential campaign and delivered a speech at an inaugural ball sending the message that he supported a civil rights bill for people with disabilities. Sen. Bob Dole, a Republican who represented Kansas, also was key in ensuring that Republicans negotiated and passed the bill.

Grassroots Effort

Pat Wright, director of government affairs of the Disability Rights Education & Defense Fund in Washington, D.C., spearheaded various grassroots efforts in the disability community, Silverstein says, noting that Wright was called “the general” for her leadership during the ADA’s enactment.

But the ADA would not have been possible without the disability rights movement that began in earnest in the early 1970s, according to Gallegos. “The disability rights movement was not led by a handful of individuals—although the movement has specific heroes—but by thousands of people who borrowed the tactics of other civil rights movements,” he says. “They mobilized; took to the streets in protest; staged sit-ins; testified before local, state and federal government officials; and wrote thousands of letters and placed calls to government officials in support of civil rights legislation for persons with disabilities.”

Gallegos adds that the galvanizing of the disability community to fight for civil rights legislation helped shape how people with disabilities came to view disability and themselves. Up to that point, he notes, many of them had “internalized the negative societal disability constructs.”

Progress Made

On July 26, 1990, Ghosh recalls, President Bush “spoke to the thousands assembled on the South Lawn of the White House, including many in attendance with disabilities, and proclaimed that the signing of the ADA ‘signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.’

“The signing of the ADA physically reshaped American communities by opening inaccessible spaces to people with disabilities,” Ghosh says.

“The greatest impact initially was [on] public access, including transportation,” Dagit says. In addition, all new buildings had to be accessible, including having compliant wheelchair ramps, and renovations for older buildings were required to meet accessibility mandates. This opened up new opportunities for people with disabilities.

“I happen to be a wheelchair user who also has motor coordination/dexterity issues and visual limitations because of cerebral palsy,” says Amy Scherer, a staff attorney with the National Disability Rights Network in Washington, D.C. She entered her freshman year of college at Furman University in Greenville, S.C., shortly after the passage of the ADA. “I was the first wheelchair user to attend this university. As a result of the ADA, they renovated one of the dorms so that I could live on campus and made adjustments to several of the inaccessible buildings so that I could easily attend classes.”

Scherer notes that following her graduation from law school, she did not have to face intrusive questions about her disability and instead was able to focus on highlighting the skills she would bring to the job. “Despite the fact that I am unable to drive, I can get to and from my office independently each day by using the accessible public transportation system in my city,” she says. “Needless to say, my employment experience would have been much different without the passage of the ADA.”

Another game changer introduced by the ADA, according to Dagit, was methodology for identifying what constitutes a reasonable accommodation. People with disabilities now have a large say in what an accommodation will be, thanks to the requirement that employers discuss possibilities with them.

There have, of course, been some bumps along the way. During the 1990s and early 2000s, for example, courts limited who was considered to have a disability. Even people with prosthetic limbs did not qualify, Feldblum notes. That changed when the ADA Amendments Act of 2008 (ADAAA) restored the broad definition of disability originally envisioned by the law’s drafters.

The ADAAA put the law’s focus back on reasonable accommodation, which is the heart and soul of the ADA, says Lorber.

In addition, stigma against people with disabilities has decreased in recent years, Dagit says:  “While we still have a long way to go for full and equal access, we have made significant progress.”

Ongoing Discrimination and Barriers

Although the ADA has been in place for 30 years, “assumptions about the capabilities or presumed lack thereof of a person with a disability still remain a barrier to successful employment for people with disabilities,” says Cabell Clay, an attorney with Moore & Van Allen in Charlotte, N.C. “Stigmas against people with disabilities continue to exist.”

It can be hard to change views that have been “hardened over decades and, like any other stereotype or prejudice, handed down between generations,” Gallegos says.

Additionally, some employers still don’t fully understand what reasonable accommodation involves. All too frequently, Clay notes, “employers presume that accommodating an employee with a disability will be disruptive or expensive. In fact, it may be as simple as providing an extra five-minute break to allow an employee to check her blood sugar or providing a headset to accompany an employee’s phone.”

Dagit adds, “While we have seen dramatic improvements, it is still challenging to get from point A to B using public transportation, [and] unemployment remains high, as often, employees with disabilities are the last hired and first fired during changes in business conditions.”

Dagit, who is 4 feet tall and has a large presence in the disability community, says she routinely encounters barriers on business trips, including:

• Insufficient parking at the airport for people with disability permits.
• Challenges transporting her service dog on a plane or train. Dagit says this can require “mountains of paperwork” that has to be updated annually and frequently involves inappropriate questions about the dog’s role.
• Concern about whether her wheelchair or scooter will be operable when arriving at her destination.
• Accessible hotel rooms that aren’t acceptable for her because they were designed for a man of average size with a spinal-cord disability. Dagit says she has to ask for a “regular room” with a bathtub, which can be hard to find.
• Wheelchair entrances that are far from parking spots and hard to locate.
• Security staff who do not want a service dog in the building.

The Way Forward

Thirty years later, “people with disabilities are still twice as likely to be unemployed” as those without disabilities, says Corinne Weible, co-director for the Partnership on Employment and Accessible Technology in Washington, D.C. “To close that gap, we all need to work together to make every workplace an inclusive workplace.”

Employment discrimination remains one of the top issues in the deaf and hard-of-hearing community, says Howard A. Rosenblum, CEO of the National Association of the Deaf in Silver Spring, Md. “Companies now will not blatantly refuse to hire or accommodate deaf or hard-of-hearing people on the basis of disability,” he explains, “but many have found other reasons or excuses not to hire them.”

In addition, many employers are reluctant to retain sign-language interpreters and often mistakenly believe interpreters are needed full time, he notes.

One possible solution is for employers to establish a centralized reasonable accommodation fund (CRAF) to help pay for accommodation needs that might arise. While accommodations are often inexpensive and sometimes even cost nothing, “data on employment shows that employers in both the private and public sectors that hire the most deaf and hard-of-hearing people are those that have a working CRAF system in place,” Rosenblum says.

For Chris Danielsen, J.D., director of public relations for the National Federation of the Blind in Baltimore, the main employment barriers for people with visual impairments are not legal but attitudinal. “Employers have low expectations and do not know the true capacity of blind people to perform the vast majority of jobs and job functions,” he says.

The main takeaway on the 30th anniversary of the ADA, says Disabled Action of Metropolitan New York’s Ryan, is that people with disabilities represent a valuable but largely untapped group of workers.

“Those of us with disabilities spend our lives ignoring discouragement, persisting through setback, solving problems and finding creative routes around obstacles,” Ghosh says. These are traits that any employer would be lucky to have in an employee.

As Gallegos puts it, thanks to the ADA, “persons with disabilities need not be dependent upon social programs but can contribute positively to society and live independently in pursuit of their own defined goals and dreams.”

• Allen Smith, J.D., is SHRM’s manager of workplace law content.

This article was originally published by the Society of Human Resources Managers (SHRM).