Discrimination: Disabled

DICTIONARY OF AMERICAN HISTORY, 3rd Edition, Charles Scribner's Sons (an imprint of the Gale Group), Forthcoming

Posted: 26 Feb 2002

See all articles by Michael Ashley Stein

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Abstract

Congress noted when enacting the 1990 Americans with Disabilities Act ("ADA") that the country's 43 million disabled citizens have been "subjected to a history of purposeful unequal treatment" and politically disempowered because of "stereotypic assumptions not truly indicative" of their individual abilities "to participate in, and contribute to, society" (ADA, 1990). Highly illustrative of this situation was Congress's citation of survey data which indicated that two-thirds of working age individuals with disabilities were unemployed, while two-thirds of non-working disabled individuals wanted to work (Burgdorf, 1991). Largely in response to this figure (Census data are relatively more sanguine, reporting that "only" about half of working age disabled individuals were unemployed at that time), Congress promulgated Title I of the ADA in an effort to increase labor market participation among workers with disabilities (Stein, 2000c).

Title I covers entities employing more than fifteen workers, prohibits their discriminating against "qualified individuals with disabilities" in all aspects of the employment relationship, and requires them to provide those individuals with "reasonable accommodations." These include making existing facilities physically accessible, job restructuring or modification, and reassignments. Accommodations which cause "undue hardship" to their putative providers are exempted from compliance, as is the hiring or retention of disabled individuals who pose a "direct threat" to public health or safety (ADA, 1990). To assert a Title I claim, a disabled worker must first demonstrate that she is a "qualified individual with a disability." This requires her not only to satisfy the ADA's definition of who is disabled, but also that she could "perform the essential functions" of a given job either with or without the assistance of a reasonable accommodation (ADA, 1990).

Although the determination of which accommodations are reasonable, and what job functions are essential, in any given dispute may seem at first blush the proper province for a jury determination as fact finder, a vast majority of courts have instead deferred to employers? assertions of feasibility and essentiality, and have thus ruled as a matter of law that plaintiffs were unqualified for their positions. As a result, only some five percent of Title I plaintiffs prevailed in their federal trials during the period 1992-1997 (Colker, 1999).

A decade after the ADA's promulgation, the overall unemployment statistics of disabled workers remain essentially unchanged, while their employment rate relative to that of nondisabled workers has moderately decreased, leading some economists to assert that the ADA is actually harmful to the group it is intended to assist (Acemoglu & Angrist, 1998). Although issue can be taken with many of the assumptions underlying these analyses, including the metrics utilized, the picture painted remains dismal and should provoke concern and examination (Stein, 2000a). Several factors have contributed to these negative post-ADA employment effects.

First is the unique civil rights chronicle of people with disabilities who, unlike other marginalized minority group members, were empowered by legislation prior to a general elevation of social consciousness about their circumstances and capabilities. Thus, popular opinions about people with disabilities, especially misperceptions regarding their capabilities, do not yet conform to the spirit of the ADA's legislative findings nor to the letter of assertions made by disability rights advocates (Stein, 2000b).

Second, although a great deal of rhetoric has surrounded the costs of accommodations, the practical consequences of Title I have been the subject of surprisingly little research. The few empirical studies that have been conducted, however, indicate that many of the accommodation costs engendered by Title I are generally nonexistent or minimal. In fact, they suggest that certain economic benefits, such as increased retention rates and concurrently reduced worker replacement costs, can make many accommodations cost effective for the providing employers (Blanck, 1997; Blanck & Marti, 1997).

A third factor is that, until 2000, national policymakers overlooked the impact of environmental factors exogenous to the ADA, including the availability of health care and accessibility of public transportation, on increasing disabled workers? labor market participation. Only a decade after the ADA's enactment were a series of policy initiatives passed to allow people with disabilities currently receiving Social Security disability-related benefits to earn more income without losing their cash or health benefits.

Suggested Citation

Stein, Michael Ashley, Discrimination: Disabled. DICTIONARY OF AMERICAN HISTORY, 3rd Edition, Charles Scribner's Sons (an imprint of the Gale Group), Forthcoming, Available at SSRN: https://ssrn.com/abstract=299302

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

1585 Massachussetts Avenue
Austin Hall 305
Cambridge, MA 02138
United States
617-495-1726 (Phone)

University of Pretoria Faculty of Law, Centre for Human Rights ( email )

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Hatfield 0028
Pretoria
South Africa

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