15 years from implementation of ADA in the USA-from the perspective of employment and reasonable accommodation

Michael Stein
Professor, School of Law,The College of William & Mary

What is a Reasonable Accommodation?

The ADA governs the conduct of "covered entities," which include private employers, employment agencies, labor organizations, and joint labor-management committees. These entities, which for convenient reference I will call "employers," are prohibited from discriminating against qualified individuals with disabilities in all aspects of the employment relationship.

The United States Congress defined a person with a disability as one who has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual," who has a history of such impairment, or who is regarded as having one. The subject of who is an individual with a disability, let alone a "qualified" individual with a disability, has been the focus of much case law and legal scholarship, and is likely to continue as a source of contention. For now, it suffices to say that Supreme Court decisions require disabilities to be significant ones, as measured in their mitigated states, with any attendant limitations impairing a wide range of functional activities.

To be covered by the ADA, individuals with disabilities must also be "qualified." This means that only those individuals capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations, are covered by the Act. Thus, a completely blind applicant would not be qualified for a position as a truck driver, where the essential job function is the ability to drive. She would, however, be qualified for a position as a molecular biochemist, where the essential job function of mixing substances is either achievable through the applicant's own abilities, or through provision of accommodation in the form of Braille or other coded indicators.

Reasonable accommodations can encompass a wide range of individualized adjustments to existing workplace conditions, but are mainly conceptualized as falling into one or both of two categories. The first category requires the alteration or provision of a physical plant, such as ramping a stair to accommodate the needs of an employee who uses a wheelchair. These type of accommodations involve "hard" costs, meaning that they invoke readily quantifiable out-of-pocket expenses. Purchasing and installing a ramp, for example, is usually a one-time expenditure with a fixed and knowable cost.

The second type of accommodation involves the alteration of the way in which a job is performed. This might mean not requiring a wheelchair-using store clerk to stack high shelves. These sort of accommodations bring into play "soft" costs, which are more difficult to quantify. This hypothetical employee might require a fellow worker to stack the high shelves while she staffed the register. Her circumstance might also necessitate that a human resource manager meet with other employees to explain the change in their daily duties, or that a supervisor be required to learn how to take these alterations into consideration when evaluating overall job performance.

Two overlooked systemic points are worth noting. First, disability-based accommodations, can involve hard costs, soft costs, or both. Second, because the ADA requires that places of public accommodation be made readily accessible, some employment-related accommodation costs should be subsumed by employers in their guise as owners or operators of those venues if they are otherwise ADA-compliant. In this case, assuming that the store did not fall within any ADA exception, the owner would have been required to install an entry ramp as a reasonable modification even without the presence of a disabled employee.

Workplace accommodations become an undue hardship upon employers when they require "significant difficulty or expense," as measured against the totality of an employer's financial circumstances. Beyond the actual cost of an accommodation, considerations include the following: "the overall financial resources," "size," and "number of persons employed" at the facility; "the effect on expenses and resources," location, structure, "and functions of the workforce"; as well as the general "impact" of the accommodation. More concretely, these factors could include the actual cost of the ramp, the amount of store space lost to the ramp, the profitability of the store, the number of employees, and the job modification's impact on the store's day-to-day operation. If the store was part of a larger organization, an assessment of reasonableness could also take into account the store's other locations, and whether it made sense to have the wheelchair-using employee work full time at another location (for example, one with lower shelves or an abundance of clerks to stack the higher ones), or alternate between locations (while operating the register or meeting customers at each).

Thus, the ADA provides a large number of factors to be considered when assessing the reasonableness of any given accommodation. At the same time, however, the law fails to offer substantial guidance as to how an employee, employer, judge, or policymaker ought to balance those factors beyond the proviso that an accommodation is reasonable until it engenders an undue hardship.

How Effective is the Americans with Disabilities Act?

The success of the ADA depends a good deal upon what indicator is relied upon for assessing results.

a. Employment Rates

One way to gauge change in attitudes is to examine any post-ADA employment effects among disabled workers. A hotly contested debate has developed over the proper metric and cohort that should be used in determining employment rates, as well as the implications of those results. Until dispositive evidence arises to the contrary, it is fair to say that the employment rate of disabled workers relative to nondisabled ones, has either decreased, or at the least, not substantially increased. Specifically, two empirical studies of the post-ADA employment effects on workers with disabilities find a reduction in the employment rate of workers with disabilities relative to workers without disabilities, and either a neutral or beneficial effect on wages. Several reasons can explain these effects, including the overall poor condition of the economy over the period measured (1990-1994), the absence of job programs targeting the disabled, the lack of health care coverage, and welfare reform, to name a few. Given, however, that the ADA was in large measure driven by the desire to increase the independence of people with disabilities, this assessment of the ADA is a bleak one.

b. Win-Loss Court Rates

Similarly dour is the picture taken from examining general ADA jurisprudence, as well as the overall federal district court won-loss rate of ADA employment cases. In the normal course of events, plaintiffs should win about half their cases. Nevertheless, an American Bar Association report found that employers prevailed in more than ninety-two percent of ADA employment cases over the period from 1992 to 1997, a rate that was corroborated in a separate study by Professor Ruth Colker. A subsequent ABA study of 1998 outcomes indicates that the employers' win rate increased to ninety-five percent. Many plausible reasons can be offered to explain this phenomenon, including: technical misuse of pre-trial motions in favor of defendants; judicial opposition to the statute or towards people with disabilities; claimants not falling within the statute's purview; plaintiffs feeling strongly enough to pursue non-winning claims or having "negative expectation value" of settlement; informational asymmetry clouding the litigation decision making process; poor lawyering; or mediocre expert testimony.

c. Qualitative Assessments

Stepping outside the boundaries of quantitative assessments, qualitative analyses present a different picture of the ADA's efficacy in transforming general social attitudes towards people with disabilities. To begin with, a good deal of anecdotal evidence exists on voluntarily provided accommodations for workers with disabilities. The reasons why an employer chooses to accommodate a disabled worker can be fairly complex, including reasons that are typically considered to be economically inefficient. A strong relationship between an employer and an able-bodied employee prior to the manifestation of the latter's disability, individual employers' motivations related to social justice and/or diversity, previously positive experiences with hiring disabled workers, or simply employers' or human resource managers' good natured willingness to give a member of a marginalized group a chance to demonstrate their abilities.

Unfortunately, the voluntary provision of accommodations is the least reported aspect of the disability-related employment story. Professor Peter Blanck has examined the corporate cultures of a few large organizations and the reasons for why they employ and accommodate workers with disabilities. Regrettably, the systemic (and also quantitative) studies originating from his center are exceptional in that regard. Yet it is that very type of enquiry that lends the most insight into how social norms are altered.

d. Attitudinal Change

An expressive law analysis of the ADA indicates that the statute has the potential to legislate a belief change regarding individuals with disabilities in three ways: by informing the public about people with disabilities, by creating tri-order sanctions which alter the mainstream's behavior when interacting with the disabled, and by financially sanctioning discriminatory behavior.

The ADA educates mainstream individuals about people with disabilities who, unlike other minority groups, were empowered by civil rights legislation prior to a general elevation of social consciousness about their circumstances and capabilities. The statute does so by providing information through its legislative findings regarding the relative position of people with disabilities in society. This is especially true in the statute's statements about artificial exclusion as the cause of social exclusion, as opposed to inherent necessity. Additionally, by requiring that places of public accommodation be made readily accessible, the ADA affords people with disabilities a greater opportunity to participate in social function. Together, these features lessen the identity of the disabled as "other," and increase nondisableds' general familiarity with people with disabilities. Hence, following the ADA's promulgation, an employer who reads the statute (or consults with a lawyer as to its effects) is presented with a different vision of disability identity than that previously held. If she had lacked information regarding the role of disabled workers in society, the ADA has now updated her knowledge and beliefs. If she had been ambivalent about excluding disabled workers, the ADA's passage has now tipped her from being a fence-sitter toward accepting an inclusive equilibrium. Further, when an employer encounters people with disabilities in other areas of social activity, say, at a baseball game or when riding on public transportation, she becomes acclimated to the presence of persons from whom she was previously sheltered. This effect, in combination with the educational information contained in the ADA, will influence an employer to embrace the notion that people with disabilities belong in the mainstream, including the workplace. This is particularly true because the general impetus to exclude disabled people arises from benign neglect rather than from animus.

Moreover, because the ADA is a civil rights remedy rather than a subsidy program, its goal is to alter employer behavior that contributes to unacceptable systemic patterns of social and economic subordination. Framed as an antidiscrimination device, the ADA contains three levels of sanctions that can change social norms towards people with disabilities. As a first order sanction, the fact that Congress promulgated the ADA in this manner signals to individuals that the majority of the franchise believes that discriminating against the disabled is morally wrong. However, even if the ADA does not change the thinking of individual employers who would prefer to continue to exclude disabled workers, the framing of disability-based exclusion as a moral wrong can convince those employers not to exercise that preference in fear of social condemnation. This is true whether the censure would arise through formal or informal channels. Moreover, the ADA can cause other members of an employer's society to bring social pressure and condemnation to bear upon her until she abstains from excluding disabled.

What Policy Lessons can be Learned from the ADA Experience?

Perhaps the most expedient way to transform social norms is through increasing society's familiarity with a previously unknown group that it perceives, in sociological terms, as "other." A great deal, if not the essential, support for the ADA's passage came from the "hidden army" of legislators with either personal (because they themselves had disabilities) or instinctive (because individuals they cared for were disabled) understanding of disability-related stigma. As people age and are either themselves subject to a disabling condition, or come into contact with others who have disabilities, they become more sensitive to what it means to be catalogued as "disabled." Indeed, the transmogrification of previously able-bodied individuals into people with disabilities is, among minority groups, an almost unique phenomenon that contributes to reducing the sense of "otherness." It is for this reason that I have opposed proposals to narrow the ADA's definition of disability to the "seriously" disabled, even though to date the largest category of people asserting ADA claims are able-bodied individuals who develop back-related maladies. Although largely grounded in anecdote, there is reason to believe that when a known and valued able-bodied employee becomes, through illness or injury, a known and valued employee with a disability, the disabled community as a whole benefits. In addition, because ADA requires that places of public accommodation be made readily accessible, many employment-related accommodation costs should be subsumed by employers in their guise as owners or operators of those venues. Moreover, when states and local governments comply with ADA access requirements in the areas of public transportation and public accommodation as well as in the general construction of the physical environment, people with disabilities will have greater opportunity not only to physically participate in social function, but also to socially interact with mainstream society.

Legal, political, and economic examinations of post-ADA employment effects upon workers with disabilities generally fail to appreciate the connection between increased labor market participation and environmental factors exogenous to the ADA itself. In other words, by focusing strictly on the ADA and its existence as a civil rights statute, these analyses have ignored the role that publicly based initiatives play in making a civil rights statue function. These support mechanisms include the availability of health care, accessibility of public transportation, existence of job training programs, the extent to which governmental agencies are committed to enforcing antidiscrimination provisions, and the consequences of employer attitudes and public opinion toward people with disabilities. This shortcoming is particularly noteworthy in the legal literature where the ADA's significance almost wholly overshadows other factors. Specifically, legal analyses almost totally ignore factors beyond the realm of law.

By the same token, American policymakers have, until recently, overlooked the correlation between environmental factors and labor market participation. This is so despite the ADA's legislative findings that report in detail on the systematic exclusion of people with disabilities from the workplace?as well as society at large?and express Congress's intention to bring about their full participation. Nevertheless, it has only been the last few years that have seen policy makers acknowledge the role of environmental factors in fostering integration. In 1998, eight years after the ADA's passage, the Presidential Task Force on Employment of Adults with Disabilities recognized the importance of environmental factors and exhorted President Clinton to develop responsive policy initiatives. A 1999 Department of Labor report encouraged greater dialogue on the issue of extra-legal ways to promote greater labor market participation among workers with disabilities. Later that year Congress passed the Ticket to Work and Work Incentives Improvement Act, which extended the length of time that people with disabilities receiving public assistance could continue to receive health care coverage after obtaining gainful employment. Coinciding with the tenth anniversary of the ADA, on July 26, 2000, the Clinton Administration announced a series of policy initiatives intended to allow people with disabilities currently receiving Social Security disability-related benefits to earn more income without losing cash benefits.

Two notable exceptions to the general neglect of extra-legal influences upon post-ADA employment effects are the respected work of economists Marjorie Baldwin and Richard Burkhauser. Baldwin and her colleagues conducted quantitative studies into the existence and effects of employer prejudice upon the wage and employment levels of Americans with disabilities. These studies revealed that in 1990 men with disabilities lost income amounting to $11 billion dollars. Most of these losses were attributable to employer prejudice and were distributed unevenly among different types of disabilities. Baldwin asserts that the ADA is unlikely to bring about a substantial increase in workers with disabilities' employment rates because the ADA does not adequately take into account the influence of prejudice. Burkhauser criticized the ADA's lack of conjoined work initiatives by contrasting various European policies directed toward "transferring" people with disabilities from social welfare networks into the workforce. Burkhauser points out that the success of these initiatives correlates directly to the degree that any given national policy provides incentives or harbors expectations about individuals with disabilities' workplace participation.

Although both Burkhauser's and Baldwin's work is laudable, their findings underscore the need for greater qualitative and quantitative study into how environmental factors effect levels of participation by people with disabilities in the workplace. Much research needs to be done toward understanding the extent and/or degree of disincentives that keep people with disabilities from the workplace. Catalysts to encourage the disabled's labor market participation should also be explored. Delving into factors exogenous to the law will provide a richer and more complete knowledge base from which to develop policy initiatives.

Conclusion

The ADA has exerted a powerful and constructive influence over international instruments, as well as in the United States. The ADA has therefore greatly benefited persons with disabilities by presenting a powerful moral argument as to why certain conditions are unnecessarily exclusionary and should be changed. Nevertheless, because the ADA is derived from a civil rights perspective, it necessarily contains a pair of shortcomings. By invoking notions of corrective justice, the ADA model must overcome deeply held (however unfounded) beliefs that resist the idea of a world having been unjustifiably structured to exclude disabled persons. Of greater significance is that by concentrating on civil rights, the ADA cannot invoke and utilize the full range of economic, social and cultural rights.

By invoking notions of corrective justice, meaning that similarly situated people should be treated alike, the ADA must expend political capital to overcome erroneous but deeply held beliefs that resist the notion of accommodations as part of the antidiscrimination agenda. In other words, due to the framework's exclusive grounding in formal justice, to effectuate its precepts requires winning a battleground of ideas in which the resistance far outweighs the support. Second, and more globally, by drawing an inclusive line at equality of opportunity for equally situated individuals, the ADA effectively negates additional economic, social and cultural support that could benefit disabled persons. These rights cover two circumstances. First, entitlements that could benefit persons with disabilities who fall outside the standard sameness arguments because at present their individual variations would not be accounted for even using broad and inclusive principles. The second, are significant economic, social, and cultural rights to which all disabled persons are entitled to not because of their equality to a baseline norm, but instead due to their equality as fellow human beings. These include rights that are necessary in order to effectuate first generation rights, like having health care or education being readily available as a means of ensuring entry to the job market. They can also extend to the broader reworking of social landscapes, for instance, affirmative action or special rights in the employment context that are needed to make an already uneven playing field somewhat even. In limiting itself to civil rights, the ADA neglects these further empowering provisions.

When considering the employment of disabled persons, it is therefore essential not only to ensure their equal treatment and freedom from prejudice, but also the means through which that equality is brought about.