Emerging Issues

1
Emerging Issues Challenges around ADA
Employment Provisions Implications for
Rehabilitation Education and Practice

• NCRE Annual Conference
• San Antonio, TX
• 21 February, 2009

2

• Presenters
• Wendy Wilkinson
• DBTAC Southwest ADA Center
• Larry Featherston
• Susanne Bruyère
• Hannah Rudstam
• DBTAC-Northeast, Cornell University, Employment
  and Disability Institute

3

• Wendy Wilkinson
• DBTAC Southwest ADA Center

4
Discrimination and Disability

• Glass ceiling issues and employment of persons
  with disabilities
• Legislation
• Americans with Disabilities Act of 1990
• Americans with Disabilities Act Amendments of
  2008
• Genetic Information Nondiscrimination Act of 2008

5
Glass Ceiling Issues in Employment Barriers

• Historical
• Decades of segregation, unemployment and
  stigmatization are factors. Many people with
  disabilities have internalized their relegation
  to second class citizenship to the extent that
  they have become so demoralized and
  disenfranchised that they do not pursue
  educational opportunities, involve themselves in
  social, political and other activities which
  would enhance their position in society and lead
  to expanded employment opportunities.
• Perception that people with disabilities cannot
  truly compete in the workplace unless they can be
  cured or rehabilitated remains. Programs were
  developed to rehabilitate persons with
  disabilities so they could become economically
  productive and contribute to society in a way
  that was recognized and respected. The focus was
  placed completely on the individual, and the
  impact of traditional workplace structures and
  policies on the individuals abilities to perform
  in a job were not addressed.
• External factors exogenous to the workplace
  which include limited access to health care,
  educational opportunities, adequate housing and
  transportation.
• Health Care Access to health care is critical to
  employment status of persons with disabilities.
  Individuals with disabilities in the workplace
  may choose to remain in jobs which offer little
  upward mobility in order to retain access to
  health insurance.

6
Glass Ceiling Issues in Employment Barriers

• Self-identification
• Many individuals, including both those who do not
  know about the ADA and those who are aware of its
  existence, may not consider themselves to be
  individuals with disabilities. Many individuals
  who are deaf do not label themselves as
  individuals with disabilities, they consider
  themselves to be a part of a culture, linked
  together by a common language.
  Self-identification as belonging to a class is
  one key to breaking down employment barriers. The
  next step is educational, for people with
  disabilities to achieve social equity they must
  first empower their own members and then persuade
  others (Karst)
• The individuals that do identify themselves as
  people with disabilities are not all politically
  active, empowered members of a class whom are
  aware of the ADAs existence. Of those who are
  aware of its existence, few understand its
  mandate and possess the resources necessary to
  use it effectively. Perhaps this can be
  attributed, in part, to the nature of the
  legislative mandates people with disabilities are
  most familiar with. The programs most people
  with disabilities have traditionally had access
  to--are entitlement in nature, design and
  perception. These have imbued many individuals
  with disabilities with a sense of powerlessness
  over their destiny.
• Workplace Culture Tremendous barriers in the
  workplace remain because of traditional workplace
  culture and norms. Barriers are created by,
  routine personnel actions, policies, and
  procedures (Compton). Job descriptions often
  dictate the means which should be used to
  accomplish a particular job task instead of
  describing the end result desired. Many unions
  view nondiscrimination laws as a threat to their
  core, guiding principles --job security and
  seniority.

7
Glass Ceiling Issues in Employment Barriers

• Workplace pressure
• Anecdotal evidence suggests that workplace
  pressure to conform makes individuals reluctant
  to request accommodations for fear of being
  singled out and appearing to demand special
  consideration (SWDBTAC). Co-workers and
  supervisory personnel may perceive the provision
  of an accommodation to be special treatment,
  instead of being understood as a necessary
  adjustment to promote equal opportunity.
• Many people with disabilities, may be afraid to
  request accommodations because of a fear of
  having to disclose the existence of a disability.
  
• Others may be unaware of the law and their right
  to request accommodation. So, there may be
  significant numbers of people with disabilities
  in the workplace still trying to work within
  accepted norms which dont allow them to be as
  effective as they could be with an appropriate
  accommodation. Their performance as well as
  their opportunities for advancement may be
  significantly affected. apparently neutral job
  requirements which are, in effect, discriminatory
  because they screen out great numbers of
  otherwise qualified individuals.
• Socialization Studies have shown the
  socialization of men and women effects the status
  of women in the workforce (Taub). Many persons
  with disabilities have traveled a distinctly
  different route to the workplace than others.
  Some groups of individuals with disabilities who
  have discontinuity in their work lives may be
  tremendously impacted, as women have been, in
  pursuing employment opportunities which offer the
  greatest returns. Discontinuous workforce
  participation has been shown to have a chilling
  effect on womens progression in the workforce
  (Polachek).

8
Glass Ceiling Issues in Employment Barriers

• Perceptions
• Attitudinal studies reveal that people with
  different types of disabilities are subjected to
  different kinds of discrimination (Fuqua.).
• Persons with disabilities encounter different
  types and degrees of discrimination in the
  workplace relative to the type of impairment they
  have (Compton). One study indicated that
  employers expressed considerably more doubt about
  the productivity of people with learning
  disabilities than they did of individuals with
  other types of disabilities (Gerber). Another
  study revealed that individuals with visible,
  physical impairments are viewed more favorably
  than those with mental or sensory impairments
  (Fuqua) There is a hierarchy of acceptance
  dependent on the particular type of disability.
  Individuals with hidden, unfamiliar or more
  stigmatized disabilities face greater barriers
  in the workplace and in society. The
  unemployment rate among people with psychiatric
  disabilities is estimated to be 85 which is
  significantly higher than the rate for
  individuals with physical disabilities (Mancuso).
  Studies of negative attitudes toward different
  impairment groups consistently find mental
  impairments eliciting the strongest prejudice
  (Baldwin)
• Within the disability community itself there is a
  stratification among individuals with different
  types of disabilities. Individuals with a
  certain type of impairment may make
  stereotypical assumptions concerning other types
  of impairments. Persons with disabilities are
  not immune from the influences that cause others
  to make judgments about others with certain types
  of disabilities unfamiliar to them. People
  understand and accept those who are most like
  them. (Henderson)

9
Glass Ceiling Issues in Employment Barriers

• Disability Nondiscrimination legislation
• Since the passage of the ADA courts and employers
  struggled with reconciling the competing values
  the ADA, as drafted embodies--the struggle among
  different conceptions of disability, a civil
  rights mandate balanced with cost considerations,
  misperceptions regarding the mandate of the ADA
  (affirmative action vs. nondiscrimination).
• In Southwestern Community College v. Davis, the
  Supreme Court referred to reasonable
  accommodation at one point as an affirmative
  action requirement and later addressed it as a
  nondiscrimination mandate. In Alexander v.
  Choate, the Court clarified its analysis of
  reasonable accommodation, noting the criticism
  its earlier interpretation engendered, and found
  that it was a nondiscrimination mandate.
• Employers and individuals with disabilities
  perception of the governments commitment to
  enforcement is an important factor in assessing
  workplace barriers.
• Can an employee with a disability be assured of
  accessing the protection of the law?
• Do employers perceive the law as one that is
  actively enforced?
• Does it appear that the government, through the
  ADA, is completely committed to ending workplace
  discrimination against people with disabilities?
• Legislation cannot address all the behaviors
  which manifest themselves in the workplace as
  intolerance to difference. Numerous events can
  occur in the workplace which may not constitute
  actionable discrimination but which impact an
  individuals job performance. The discomfort of
  co-workers or customers due to misperceptions of
  an individual with a disability may significantly
  impede their chances of progressing in the
  workplace.

10
Glass Ceiling Issues in Employment Barriers

• Disability Nondiscrimination legislation
• It is impossible to draw a clear line around
  persons with disabilities protected by the
  law--how does one demonstrate the existence of
  systemic discriminatory practices without
  determining whether the group passed over for
  jobs had disabilities.
• The ADA is limited in its ability to address
  institutionalized, systemic discriminatory
  practices in a comprehensive manner because it is
  restricted in its ability to address the full
  range of activities that impact employment
  discrimination. The ADA was drafted to address
  discrimination at a micro level, its statutory
  language is crafted to redressing individualized
  discrimination.
• To date, enforcement efforts have been focused on
  providing individual redress. Early Title VII
  enforcement efforts were targeted as well to
  addressing allegations of individualized
  discrimination. Soon after its enactment, this
  enforcement strategy was challenged because it
  wasnt addressing widespread, systematic
  employment discrimination (Graham). In response,
  the EEOC developed the theory of disparate impact
  to address employment discrimination against a
  class. Strategies were developed utilizing
  statistical data to profile race disparities in
  the workplace. The difficulty of gathering data
  on people with disabilities in the workplace
  makes it impossible to use a traditional,
  statistical approach in applying the disparate
  impact theory in the context of disability
  discrimination.

11
Glass Ceiling Issues in Employment Barriers

• Employment Support Programs
• Title VII programs provide the greatest
  assistance in attaining employment. The Act does
  not provide specific guidance as to precisely
  what benefits must be provided, nor does it
  define the ultimate employment goal. The
  statutory language of the Act appears to mandate
  the provision of some services, while the
  regulations seem to allow conditional provision
  of services. It is unclear how much discretion
  a state agency has over provision of necessary
  rehabilitation services. There is also a lack of
  clarity regarding the ultimate employment goal,
  which has resulted in some litigation. At issue
  has been the appropriate vocational goal level
  which the program must support. Should it be the
  achievement of the highest vocational goals . . .
  or merely suitable employment
• For the most part the programs developed by the
  Social Security Administration or through Title
  VII of the Rehabilitation Act do not follow the
  individual into the workplace. Once the
  employment goal has been attained, the
  individuals case will be closed or they will be
  deemed ineligible. Some programs have been
  developed to allow for transitioning into
  employment, but for the most part, ones entree
  into the workforce triggers a cut-off or
  phase-out of any assistance for
  disability-related expenses or health care.

12
Research Gaps

• In Culture and Disability, Karen Hirsch makes
  note of the lack of historical scholarship on
  disability in comparison to the number of studies
  on the history of African -Americans and women
  which impacted the civil movements for these
  groups. The lack of references and scholarship
  on disability in history further negates its
  importance to other groups--if it hasnt been
  documented how can its existence be recognized.
  This recognition is extremely important given the
  studies that suggest that people with
  disabilities encounter more workplace
  discrimination than any other group (Johnson).
• Documentation of the costs of discrimination
• Income replacement and disability benefit
  programs
• Expand societal notions of cost and redefine how
  we quantify and assess the costs of
  discrimination versus compliance. Any assessment
  of the costs associated with ADA implementation
  should be compared against the societal cost of
  discrimination. Some of these costs are directly
  employment related--discrimination diminishes the
  labor pool which can result in wage inflation,
  thus increasing the costs of goods and services.
  In addition, the costs to employers of having
  access to an arguably noncompetitive labor pool
  because it does not include all potentially
  qualified applicants should be included.
• Impact of awareness of civil rights and access to
  benefits and privileges of society on employment.

13
Legislation

• Discrimination is defined as Unfair treatment of
  a person or a group based on prejudice
• Challengetargeting discrimination based on
  disability
• Americans with Disabilities Act of 1990
• As passed
• As implemented and interpreted
• Americans with Disabilities Act Amendments of
  2008
• As passed
• As implemented and interpreted?

14
ADA ADAAA

• Under the ADA of 1990 many cases were dismissed
  before trial because plaintiffs could not meet
  the high standard of proving that they had a
  disability. The ADAAA makes this outcome much
  less likely. 
• The ADAAA of 2008 makes important changes to the
  ADA to restore the intent and protections of the
  Americans with Disabilities Act of 1990. The
  amendments
• reject the holdings in several Supreme Court
  decisions that severely narrowed the definition
  of disability
• direct the EEOC to change the language in the
  regulations in several key sections to ensure
  that a broad range of individuals discriminated
  against on the basis of disability will be
  protected by the Act.

15
What did Congress Do?

• Congressional Intent is Clear
• In order to understand the true import and power
  of the ADA Amendments Act one must review the
  statute and its Findings and Purposes to
  determine what the ADAAA means and what Congress
  is directing the EEOC to do.
• Rules of construction are what courts use to
  interpret statutes. Normally Findings and
  Purposes are not considered as having the same
  weight as statutory language, but the statutory
  language in the ADAAA refers back to the
  Findings and Purposes and it makes it clear
  that Congress intended the courts to look at this
  as statutory language.
• The Findings and Purposes language of the ADAAA
  is very specific and clearly describes the remedy
  Congress is seeking. It directs the EEOC to
  remedy certain cases that Congress believes were
  decided contrary to the intent of the ADA as it
  was passed in 1990.
• The EEOC is directed to address the definition of
  disability.

16
 12101. Findings and purpose

• A new finding was added and an original one
  deleted
• New
• The Congress finds that
• (1) (1) physical or mental disabilities in no
  way diminish a persons right to fully
  participate in all aspects of society, yet many
  people with physical or mental disabilities have
  been precluded from doing so because of
  discrimination others who have a record of a
  disability or are regarded as having a disability
  also have been subjected to discrimination
• Why?
• The finding that 43 million people in the United
  States have disabilities was deleted is because
  the Supreme Court in both Sutton and Toyota used
  this as rationale for applying a rigid standard
  for narrowing the definition of disability
• had Congress intended to include all persons
  with corrected physical limitations among those
  covered by the Act, it undoubtedly would have
  cited a much higher number than 43 million
  disabled persons in the findings

17
Finding No. 8

• Is important because the EEOC defined
  substantially limited as significantly restricted
  and that was inconsistent with what Congress had
  intended. It imposed too high a standard and
  excluded many persons with disabilities the Act
  was supposed to protect.
• Congress finds that the current Equal Employment
  Opportunity Commission ADA regulations defining
  the term substantially limits as significantly
  restricted are inconsistent with congressional
  intent, by expressing too high a standard.

18
Supreme Court Cases Rejected

• The Supreme Court has decided twenty ADA cases,
  five of these cases centered on the definition of
  disability. Four of these cases significantly
  narrowed the definition of disability
• Sutton v. United Airlines, 527 U.S. 471
  (1999).Murphy v. United Parcel Service, 527 U.S.
  516(1999).Albertson's, Inc. v. Kirkingburg, 527
  U.S. 555 (1999).
• Toyota Motor Mfg., Kentucky, Inc. v. Williams,
  534 U.S. 184 (2002).
• Congress rejected the holdings in these cases
• Sutton trilogy Disability must be evaluated
  by factoring in impact of mitigating measures.
• There is a small compromise in the amendments
  regarding mitigating measures
• The ameliorative effects of the mitigating
  measures of ordinary eyeglasses or contact lenses
  shall be considered in determining whether an
  impairment substantially limits a major life
  activity.
• However these individuals would be protected if
  they are regarded as having an impairment
• Toyota- Activities limited must be of central
  importance to a persons daily existence.

19
Reasoning in Supreme Court CaseAirline Reinstated

• School Board of Nassau County v. Arline, 480 U.S.
  273 (1987) set forth a broad view of the third
  prong of the definition of disability under the
  Rehabilitation Act of 1973. Purposes at 3)
• In Airline the plaintiff, a school teacher, had
  been hospitalized for tuberculosis and was in
  remission for 20 years when she had three
  relapses over a period of two years while she was
  working. After the last two, she was suspended
  with pay until the end of the school year at
  which point she was terminated. She brought suit
  under Section 504 of the Rehabilitation Act of
  1973. The court found that she had a disability
  under the record of prong of disability because
  her hospitalization for a disease which affected
  her respiratory system. Pp. 480 U. S. 280-281.
  The Courts ruling was broad so it would cover
  anyone who had an actual, record of or a
  perceived impairmenteven if they did not have
  any impairment at all. (http//supreme.justia.com/
  us/480/273/case.html)
• In its rationale, the Court noted that Congress
  expansion of the definition of disability in
  504 reflected Congress concern that persons with
  disabilities should be protected from
  discrimination stemming not only from simple
  prejudice, but also from archaic attitudes and
  laws and from the fact that the American people
  are simply unfamiliar with and insensitive to the
  difficulties confronting individuals with
  disabilities. The expanded definition included
  discrimination against persons with a record of
  or who are regarded as having an impairment, but
  may not have one at all.

20
ADAAA More Traditional Civil Rights Law

• The amendments conform the ADAAA with the
  structure of Title VII and other civil rights
  laws
• Require an individual to demonstrate
  discrimination on the
• basis of disability rather than discrimination
  against a qualified individual with a disability
  because of the disability of such individual.
• Focus is now on whether a qualified individual
  has been discriminated against on the basis of
  his or her disability, rather than on whether the
  individual is a person with a disability.

21
Major Life Activities Listed and Enhanced

• Major life activities were not defined in the ADA
  statute of 1990, but were defined in the
  regulations implementing the law. The ADAAA
  provides a list of major life activities.
• The ADA regulations promulgated by the EEOC in
  1991 defined major life activities to include
  functions such as caring for oneself, performing
  manual tasks, walking, seeing, hearing, speaking,
  breathing, learning, and working. The ADAAA also
  lists these and adds eating, sleeping,
  standing, lifting, bending, speaking, breathing,
  reading, concentrating, thinking, and
  communicating.
• The ADAAA also lists major bodily functions that
  should be considered major life activities
• Major life activities also includes the
  operation of a major bodily function, including
  but not limited to, functions of the immune
  system, normal cell growth, digestive, bowel,
  bladder, neurological, brain, respiratory,
  circulatory, endocrine, and reproductive
  functions.

22
ADAAA Addresses Impairments

• The ADAAA added additional language stating that
• (C) An impairment that substantially limits one
  major life activity need not limit other major
  life activities in order to be considered a
  disability.
• (D) An impairment that is episodic or in
  remission is a disability if it would
  substantially limit a major life activity when
  active.

23
New Section on Qualification Standards Related to
Vision Added

• (c) Qualification Standards and Tests Related
  to Uncorrected Vision- Notwithstanding section
  3(4)(E)(ii), a covered entity shall not use
  qualification standards, employment tests, or
  other selection criteria based on an individuals
  uncorrected vision unless the standard, test, or
  other selection criteria, as used by the covered
  entity, is shown to be job-related for the
  position in question and consistent with business
  necessity.

24
What Could Change?

• EEOC could change list of impairments.
• Significant restriction will be changed.
• It will have great impact on definition of
  disability issues, including revision of the
  definition of a work disability under the first
  and third prongs
• individuals who alleged that they had a
  disability which substantially limited their
  ability to work encountered a tremendous
  evidentiary burden by having to establish that
  they were significantly restricted in their
  ability to perform a class or broad range of
  jobs. It was a surprisingly strict regulatory
  requirement which made it exceedingly difficult
  for a plaintiff who had been subjected to an
  adverse employment action because of a work
  disability to establish the full range of jobs in
  which their performance would be restricted.
  This hurdle was especially difficult in cases
  where an individual was alleging that the
  employer regarded them as having a work
  disability as they must not only prove up the
  range of jobs they were excluded from, but also
  that the employer believed that there was a full
  range of jobs that this person was restricted
  from performing. The courts have taken this
  language and applied it very restrictively. Many
  individuals had difficulty proving that their
  employer perceived them as unable to perform a
  full range of jobs.
• The new regarded as language appears to target
  this issue as it states a person should just have
  to prove that they were discriminated against
  because of an impairment and not have to address
  whether that perception also included a specific
  major life activity.

25
What impact will the ADAAA have on the
workplace?

• Increased number of individuals in the workplace
  who are protected by the federal law.
• Range of coverage and protections afforded under
  the amended ADA will expand significantly.
• The ADAAAs broad coverage and protections remove
  the focus from a disability inquiry and place
  it squarely on the interactive process.
• Employers should review their policies and
  practices governing the ADAs interactive process
  and focus on their reasonable accommodations
  procedures.
• Upon request for a reasonable accommodation
  employers should engage in an interactive process
  with employees or applicants regardless of
  whether medication, aids, or other mitigating
  measures may be available to them.
• If an employee or applicant demonstrates a
  physical or mental impairment that would limit
  his or her ability to request an accommodation,
  initiate an informal interactive process to
  accommodate them

26
Genetic Discrimination

• The ADA of 1990 has not been widely used to
  challenge genetic discrimination. Although the
  statutory language of the ADA does not reference
  genetic traits, there was a discussion of the
  issue during the congressional debates.
• The ADA has been interpreted by the EEOC as
  including genetic discrimination under the
  thirdregarded as prong of the definition of
  disability.
• (EEOC Guidance (http//www.eeoc.gov/policy/docs/90
  2cm.html)
• Regarded as applies to individuals who are
  subjected to discrimination on the basis of
  genetic information relating to illness, disease,
  or other disorders. Covered entities that
  discriminate against individuals on the basis of
  such genetic information are regarding the
  individuals as having impairments that
  substantially limit a major life
  activityExample -- CP's genetic profile
  reveals an increased susceptibility to colon
  cancer. CP is currently asymptomatic and may
  never in fact develop colon cancer. After making
  CP a conditional offer of employment, R learns
  about CP's increased susceptibility to colon
  cancer. R then withdraws the job offer because
  of concerns about matters such as CP's
  productivity, insurance costs, and attendance. R
  is treating CP as having impairment that
  substantially limits a major life activity.
  Accordingly, CP is covered by the third part of
  the definition of "disability.

27
Genetic Discrimination

• The ADA of 1990s application to genetic
  discrimination became more limited after the
  Sutton trilogy of cases. Still, the EEOC did not
  withdraw the guidance. However, even if the ADA
  of 1990 could be found to apply to individuals
  with symptomatic genetic conditions it may not
  protect workers from requirements or requests
  to provide genetic information to their
  employers..... In addition, once the applicant is
  hired, the employer may request that the employee
  take a medical exam, such as a genetic test,
• if the employer can demonstrate that the
  information from that test is job related and
  consistent with business necessity.
• The ADAAA, because of the rejection of the Sutton
  trilogy and the directive by Congress to apply a
  broader definition of disability, can be used to
  challenge genetic discrimination that is
  asymptomatic under the regarded as prong.

28
Genetic Information Nondiscrimination Act of 2008
(GINA)

• On May 21, 2008, GINA was enacted.
• It prohibits U.S. insurance companies and
  employers from discriminating on the basis of
  information derived from genetic tests. GINA is
  divided into two main parts
• Title I, prohibits discrimination based on
  genetic information by health insurers and
• Title II prohibits discrimination in employment
  based on genetic information.

29
Genetic Information Nondiscrimination Act of 2008
(GINA)

• Title I of GINA prohibits group health plans and
  health insurance issuers in the group market from
  using genetic information to adjust premium or
  contribution amounts for the group covered under
  the plan. Plans and issuers in the group market
  are still allowed to increase the premium rate
  for an employer based on the manifestation of a
  disease or disorder of an individual enrolled in
  the plan, but they are prohibited from using the
  manifested disease or disorder of one individual
  as genetic information about other group members
  to further increase the premium.
• Title II of GINA prohibits discrimination in
  employment because of genetic information and,
  with certain exceptions, prohibits an employer
  from requesting, requiring, or purchasing genetic
  information. The law prohibits the use of genetic
  information in employment decisions including
  hiring, firing, job assignments, and promotions
  by employers, unions, employment agencies, and
  labor-management training programs.

30
Genetic Information Nondiscrimination Act of 2008
(GINA)

• The parts of the law relating to health insurers
  will take effect by May 2009, and those relating
  to employers will take effect by November 2009.
• EEOC and HHS are currently developing regulations
• It will be tested!

31
Issues Facing Women with Disabilities in the
Workplace

• By
• Larry W. Featherston, A.B.D., C.R.C., C.V.E.
• Cornell University

32
Barriers to Work for All Individuals with
Disabilities

• Ignorance, prejudice, a reluctance to change by
  employers
• Effects of disability need for continued
  medical treatment
• Negative perceptions about returning to work
• Lack of confidence and motivation
• Job availability
• Lack of Transportation

(Bruyère et al., 2006 Feist-Price Khanna,
2003 Roessler, Williams, Featherston
Featherston, 2006 )
33
Double handicap additional barriers for women

• Deegan and Brooks (1985), Feist-Price and Khanna
  (2003), and Schur (2003)
• Gender bias / Sexism
• Oppressive actions by society

34
Wage Discrimination

• Women with disabilities must be afforded the
  same rights and opportunities as all other
  persons, irrespective of disability status and
  sex, with regard to employment. (p.12)

Feist-Price, S., Khanna, N. (2003). Employment
inequality for women with disabilities. Off Our
Backs, 33(1/2), 10-12.
35
Most recent evidence of wage discrimination

• Dey Hill, 2007
• Women employed full-time, one year out of college
  are earning 80 of the earnings for men
• Women employed full-time, ten years out of
  college are earning 69 of the earnings for men
• The gender pay gap has become a fixture of the
  U.S. workplace and is so ubiquitous that many
  simply view it as normal. (p. 2)

36
Why is this Significant?

• If working women earned the same as men (those
  who work the same number of hours have the same
  education, age, and union status and live in the
  same region of the country), their annual family
  incomes would rise by 4,000 and poverty rates
  would be cut in half. (p. 2)

• National Womens Law Center. (2006). The Paycheck
  Check Fairness Act Helping to close the wage gap
  for women.

37
Evidence of Wage Discrimination using the RSA-911
data

• Looked at
• Individuals with disabilities who received
  services through RSA and received a competitive
  employment closure status in 2003, 2004, 2005 and
  2006
• Individuals who reported working 30-50 a week
• Individual had no missing data

38
Matched Men and Women with Disabilities on 16
Variables
Note The 2005 and 2006 RSA databases did not
report age.
39
Median Weekly Earnings for Matched Men and Women
with Any Disabilities for Fiscal Years 2003,
2004, 2005, and 2006
40
Median Weekly Earnings for Matched Men and Women
with Single or Multiple Disabilities for Fiscal
Years 2003, 2004, 2005, and 2006
41
Median Weekly Earnings for Matched Men and Women
with Any Disabilities by Ethnicity for Fiscal
Years 2003, 2004, 2005, and 2006
42
Median Weekly Earnings for Matched Men and Women
with Any Disabilities, and Men and Women in the
United States for Fiscal Years 2003, 2004, 2005,
and 2006

Note Comparison earnings data was adapted from
the U.S. Department of Labor, Bureau of Labor
Statistics 2003 2006 Current Population Survey.
Median usual weekly earnings of full-time and
salary workers age 16 and older. data.
http//www.bls.gov/cps/earnings.htmdemographics
43
Median Weekly Earnings for Matched Men and Women
with Any Disabilities, and Men and Women in the
United States for Fiscal Years 2003, 2004, 2005,
and 2006

Note Comparison earnings data was adapted from
the U.S. Department of Labor, Bureau of Labor
Statistics 2003 2006 Current Population Survey.
Median usual weekly earnings of full-time and
salary workers age 16 and older. data.
http//www.bls.gov/cps/earnings.htmdemographics
44
Median Weekly Earnings for Matched Men and Women
with Disabilities by Educational Attainment at
Closure for Fiscal Years 2003 to 2006
Note All values are in U.S. dollars. Men and
women were not matched on age for 2005 and 2006
fiscal years.
45
What Does it All Mean?

• Women with disabilities, just like women without
  disabilities, are being discriminated against
  because they are women!

46
What do we need to address?

• VR Service provisions
• Disability policy

47
Disability Employment Discrimination Implications
for Rehabilitation Counseling
Susanne M. Bruyère Ph.D., CRC Disability and
Business Technical Assistance Center-Northeast Emp
loyment and Disability Institute Cornell
University smb23_at_cornell.edu
47
www.ilr.cornell.edu
48
Importance of Employment Focusfor People with
Disabilities

• People with disabilities continue to be
  significantly un- and under-employed, compared to
  their nondisabled peers.
• Claims of discrimination are higher, in
  comparison to other protected groups.
• The ADAAA provides an opportunity to re-examine
  and improve workplace practices, especially in
  light of an aging workforce.

48
49
Presentation Overview

• Employment, poverty, and household income gaps
  for people with disabilities
• Areas (disability type/employment process) of
  disability employment discrimination
• Implications of trends in disability employment
  discrimination for
• Rehabilitation counselor practice
• Rehabilitation counselor education
• Rehabilitation research
• Disability public policy

49
50
Continuing Employment, Poverty, and Household
Income Gaps in 2007

• The employment rate in 2007 of Americans with
  disabilities aged 21-64 was 37, compared to 80
  of people without disabilities.
• In 2007, an estimated 25 of Americans with a
  disability aged 21-64 lived in families with
  incomes below the poverty line, compared to an
  estimated 9 of civilian men and women without a
  disability.
• The median annual income of households with
  working-age people with disabilities was 38,400
  in 2007, while it was 61,000 for those without
  working-age people with disabilities.

Source Calculations by W. Erickson, Cornell
University, Employment and Disability Institute,
using the American Community Survey (ACS) 2007.
Research funded by the USDE-NIDRR.
51
Employment Gap (Ages 21-64)
Gap42.8
Source Calculations by W. Erickson, Cornell
University, Employment and Disability Institute,
using the American Community Survey (ACS) 2007.
Research funded by the USDE-NIDRR.
51
52
Poverty Gap (Ages 21-64)
Gap15.7
Source Calculations by W. Erickson, Cornell
University, Employment and Disability Institute,
using the American Community Survey (ACS) 2007.
Research funded by the USDE-NIDRR.
52
53
Median Annual Household Income
Gap22,600
Source Calculations by W. Erickson, Cornell
University, Employment and Disability Institute,
using the American Community Survey (ACS) 2007.
Research funded by the USDE-NIDRR.
53
54
Continuing Claims of Employment Disability
Discrimination

• People with disabilities are the largest group
  per 1,000 of those in protected groups filing
  claims
• Retaliation and regarded as disabled are among
  the top five areas of alleged employment
  disability discrimination
• Claims of discrimination between disability and
  age discrimination are beginning to interface
• Trends have implications for rehabilitation
  counselor practice, education, and research

55
Number of Charges by Statute Per 1,000 People in
the Labor Force with Protected Class
Characteristics, 1993-2007
Source Calculations by M. Bjelland, Cornell
University, Employment and Disability Institute,
using the EEOC IMS and CPS, 1993-2007. Research
funded by the USDE-NIDRR.
55
56
Percentage of ADA Charges by Basis (Top 5),
1994-2007
Source Calculations by M. Bjelland, Cornell
University, Employment and Disability Institute,
using the EEOC IMS files, 1994-2007. Research
funded by the USDE-NIDRR.
56
57
Percentage of ADA Charges by Basis (Top 6-10),
1994-2007
Source Calculations by M. Bjelland, Cornell
University, Employment and Disability Institute,
using the EEOC IMS files, 1994-2007. Research
funded by the USDE-NIDRR.
57
57
58
Percentage of ADA Charges by Issue (Top 5),
1994-2007
Source Calculations by M. Bjelland, Cornell
University, Employment and Disability Institute,
using the EEOC IMS files, 1994-2007. Research
funded by the USDE-NIDRR.
58
59
Interplay of Workplace Disability and Aging Issues

• Employers will be asked to make accommodations to
  retain an aging workforce
• Visual and hearing disabilities more common
• Upper-extremity issues due to arthritic
  conditions
• Select health conditions (i.e., heart, diabetes)
• Has implications for workplace accommodations,
  counselor practice and therefore counselor
  preparation and rehabilitation research

59
60
Percentage of ADA and ADEA Charges Filed by Basis
(Top Joint ADA/ADEA Bases), 1993-2007
Source Calculations by M. Bjelland, Cornell
University, Employment and Disability Institute,
using the EEOC IMS files, 1993-2007. Research
funded by the USDE-NIDRR.
61
The Aging Workforce

• The Census Bureau projects that the 45 to 64
  year-old U.S. population will have grown by
  nearly 18.6 million (29.7) from 2000 to 2010
• This group will account for nearly half (44) of
  the working age population (20-64) by the year
  2010
• The prevalence of disability grows with age
  (Figure 1)
• By 2010, the number of people with disabilities
  between the ages of 50 and 65 will almost double,
  and will be significantly larger than at any
  other age
• From U.S. Census Bureau population projects
  http//www.census.gov/ipc/www/usinterimproj/
  accessed February 6, 2009.
• From U.S. Census Bureau population projects
  http//www.census.gov/ipc/www/usinterimproj/
  accessed March 17, 2005.
• From The Economic Consequences of Disability
  Onset Near Retirement, mimeo, Robert Weathers
  2005.

61
62
Implications-Rehabilitation Practice

• Provide consultation services to employers to
  assist in addressing areas where discrimination
  allegedly most often occurs (i.e. discharge,
  accommodation, harassment, terms/conditions of
  employment, and hiring), how better to
  accommodation in the areas where disability
  claims are most frequently filed (i.e.
  orthopedic, mental health, diabetes), and
  interplay w/aging workforce
• Provide guidance to clients about their rights in
  the hiring, retention, and career advancement
  processes

63
Implications-Rehabilitation Education

• Continued inclusion of disability
  nondiscrimination legislation provisions in
  counselor training
• Cultivate counseling skills appropriate to an
  aging workforce
• Build competency in knowledge and skills in
  apparently most problematic accommodation areas
  for employers
• Reinforce the importance of cultivating an
  awareness of employment rights in the client in
  the context of the counseling process
• Cultivate employer consultation skills that
  address apparent most problematic areas of
  employment process

64
Implications-Rehabilitation Research

• Identify needed skills for counseling with aging
  workforce
• Identify interventions that heighten client
  efficacy in self advocacy for asserting
  employment rights
• Identify effective workplace interventions that
  change employer behavior to minimize disability
  employment discrimination in selected parts of
  employment process
• Identify effective employment policies and
  practices that maximize accommodation for select
  disability types
• Identify effective employment policies and
  practices that maximize inclusion and minimize
  disability discrimination

65
Behind closed doors Indirect context factors
that impact workplace decisions about people with
disabilities
Hannah Rudstam Disability and Business Technical
Assistance CenterNortheast 1800 949 4232
66
Purposes

• To broaden the conversation around how disability
  discrimination unfolds in the workplace
• Not to provide answers, but to pose questions
• Implications for
• Education of VR professionals
• KT efforts communicating with employers

67
Context within which workplace decisions are made
about people with disabilities
Indirect discrimination factors Not directly
related to disability--could subtly but
powerfully impact how decisions are made about
anyone who appears different
Direct discrimination factors Attitudes,
beliefs, expectations directly related to
disability
Gatekeepers
68
Context factors impacting how employment
decisions are made about people with
disabilities
6. Changing voice of the market Importance of
social responsibility to competitive advantage
1. Changing nature of and role of gatekeepers


5. Medical insurance embedded in employment
limits options
2. Rapid rise in productivity expectations
4. Increase in remote leadership and in
leadership spans of control
3. Rapid rise in contingent workforce
69
1. Who are the key players? The emerging
importance of reaching mid-level managers

• HR professionals are often our point of entry.
• Yet, mid-level managers might be more important
  as gate-keepers decisions makers
• Transition from transactional to strategic HR
  practice might heighten the importance of
  mid-level managers as arbiters of employment
  lives of people with disabilities (SHRM Outlook
  Survey, 2008)

70
2. Rapid rise in productivity expectations
Over the past two decades, productivity
expectations have risen dramatically.
71
U.S. workforce productivity has risen
dramatically over the last decade
Productivity in /worker
Source Bureau of Economic Analysis, U.S. Dept.
of Commerce, 2006
72
3.Rapid rise in contingent workforce
Contingent workforce Contingent workers are
defined as those who do not have an explicit or
implicit contract for long-term employment.
73
U.S. Bureau of Labor Statistics. Number of New
Jobs in 10 Fastest-Growing Industries.
Projection 2003 - 2012
74
4. Increase in remote leadership and in
leadership spans of control
Managers have more direct reports (Davison,
2003 Gittell, 2001 Buckingham Coffman, 1999
) Managers are more likely to be leading remotely
or virtually (Cogliser, 2000 Kelloway, et.al.,
2003 Watkins, 2009)
75
5.Health insurance-embedded employment impacts
employers decisions and limits entrepreneurial
options for people with disabilities
Extensive literature on how health
insurance-embedded employment impacts work
decisions for people with disabilities. But how
does it affect employers decisions about
hiring? Growing employers fear of rising health
care coststaking steps to contain health care
costs 53 of employers have added a health
assessment form to their benefits enrollment
process (SHRM 2009 Outlook Survey) To avoid
high health care costs, employers may be less
interested in hiring (and insuring) people with
disabilities. (NCD, 2007, p 181) Particularly
an issue for medium small businesses (ODEP
Survey, 2008) Suppresses the entrepreneurial
options of people with disabilities themselves
(DiCicca, 2007)
76
6.Market demand-- Social responsibility and
cause commitment are becoming more important to
competitive advantage and more integrated into
the value proposition

• Cone Cause Survey, 2007
• 87 respondents will switch from one product to
  another (price and quality being equal) if the
  other product is associated with a good cause (an
  increase from 66 in 1993)
• Brands that can engage customers emotionally
  command prices significantly higher than the
  competitors
• 72 of employees want their employers to do more
  to support a cause (up from 52 in 2004)

77
6.Market demand-- Social responsibility and
cause commitment will become more important to
competitive advantage
Growing customer awareness of expectations
for diversity Increasing importance of diverse
workforce to talent recruitment retentionto
being an employer of choice Uneven inclusion
of disability in diversity efforts (Ball, et.al.
2005)
78
6. Market demand Social responsibility and
cause commitment will become more important to
competitive advantage
A University of Massachusetts Harris Poll
study found that 93 of customers surveyed said
they would PREFER to patronize a business that
has people with disabilities in their workforce
(Sipersteina, et.al., 2005).
79
In summary Taking a broader view--Employers
decisions about hiring, reasonable accommodation,
promotion, etc. are not made in a vacuum.

• KT Efforts
• Casting our attention more toward the receivers
  of knowledge
• The world they live in
• What context factors condition their decisions?
• Effective knowledge translation and outreach
  involves understanding the overarching context
  within which the information is received, given
  meaning and acted upon.

80
Resources for Future Reference

• Disability and Business Technical Assistance
  Centers, ADA Hotline [phone]
• www.adata.org
• Cornell brochures on workplace disability
  accommodations, HR policies and practices
  www.hrtips.org
• Cornell national and state disability statistics
  www.DisabilityStatistics.org
• Employment and Disability Institute
• www.ilr.cornell.edu/edi

80