By Tamar Asedo Sherman
Title I of the Americans with Disabilities Act (ADA) prohibits discrimination in employment against people with disabilities in the private sector as well as in state and local governments. That sounds good, but what does it really mean for us, for people with disabilities who want to work?
One thing it does not mean is that an employer must give preference to an individual with a disability. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to the existence or consequence of a disability. For example, if two people apply for a job as a typist—one who has a disability and accurately types 50 words per minute, the other without a disability who accurately types 75 words per minute—the employer may hire the applicant with the higher typing speed, if typing speed is a requirement of the job.
Under the ADA, employers must provide reasonable accommodations to “qualified individuals” with disabilities, or applicants who have the necessary skills, education, experience, and other job-related requirements to perform the essential functions of a position, with or without accommodation. Accommodations are changes to the work environment, or changes in the way things are usually done, that allow an individual with a disability to enjoy equal employment opportunities.
For instance, a teacher friend of mine with multiple sclerosis (MS) was given several accommodations at his high school to allow him to continue working as his condition progressed. He was assigned the classroom closest to the door and nearest to the parking lot, given an air conditioner in his room, a modified teaching schedule, and the closest restroom was refurbished to be accessible.
Other accommodations could include modifying workstations to accommodate a wheelchair, building a ramp into the building, restructuring job tasks, providing flexible hours, and a place to rest during the day. An accommodation is not considered “reasonable,” however, if it creates an undue hardship for the employer.
“Undue hardship” refers not only to financial hardship for an employer who has been asked to, or is considering, making accommodations, but also to accommodations that are overly extensive or disruptive or that would change the nature or operation of a business.
So where does that leave us?
Studies show that the level of employment of people with disabilities has actually declined since the enactment of the ADA. Surely many of us have encountered discrimination on the basis of our visible disability, but it is difficult to document.
On at least two occasions, I was told outright that I would not be considered for the position because I had MS. Both employers were with nonprofit agencies that work with people with disabilities. They said I could not perform “essential duties” of the job. My perspective was that with “reasonable accommodations” I could have. But was I going to file a formal complaint against them? Not likely.
That’s the problem with the ADA. You can’t just make a phone call or write a letter and have the offending party fined or arrested. If you think you have been subject to disability- based employment discrimination from a private employer, you can file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) or a state or local anti-discrimination agency. Subsequently, you could file a lawsuit on your own. not bePublic employees can lodge a complaint with the federal Department of Justice.
Either way, the process is long and arduous.
During Fiscal Year 2005, the EEOC received 14,893 complaints from individuals alleging disability discrimination, filed 46 lawsuits against employers under the ADA, and recovered more than $48 million in total monetary benefits through enforcement and litigation. The amount recovered sounds impressive; however, the small number of claims pursued is appalling. Only 13.8 percent of those aggrieved even filed claims.
Researchers at the University of North Carolina at Chapel Hill who did an outcomes study regarding disability employment discrimination cases in 2005 found that the overwhelming majority (97%) of cases that go to trial end unfavorably for the plaintiff. However the same study found that 62% of complainants received beneficial outcomes because most cases were settled out of court. This contradicts the prevailing notion that ADA lawsuits are favoring employers, not individuals with disabilities, the authors said. So maybe we are benefiting, after all.
For more information, check www.usdoj.gov or www.eeoc.gov.
Tamar Asedo Sherman works as an employment specialist at UCP-Suffolk in Hauppauge, NY. She can be reached at action@unitedspinal.org
