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An Analysis of the Americans with Disabilities Act

Info: 4801 words (19 pages) Essay
Published: 8th Feb 2020 in Social Policy

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Abstract 

This paper examines the effectiveness of the Americans with Disabilities Act using current and historical data on employment ratios and median income from several government sources.  The paper also includes the results of a simple survey from a small convenience sample designed to collect anecdotal evidence of the impact of this important legislation.  Furthermore, the cost of implementation is compared to the cost of replacing disabled employees.  Also included is a discussion of similar legislation as well as potential alternative approaches.  The paper concludes with suggestions for other avenues of research. 

An Analysis of the Americans with Disabilities Act 

Introduction

According to the United States Census Bureau, people with one or more disabilities make up 12.5% of the total civilian population (noninstitutionalized) and 13.4% of the labor force (United States Census Bureau, 2018).  The Americans with Disabilities Act of 1990 (ADA) is an attempt by Congress to provide protection against discrimination in employment and to provide equal access to state and local government activities, public transportation, public accommodations, and telecommunications services, for persons with disabilities. Prior to the ADA such protections had been provided to some individuals through various state and federal statutes.  The ADA established uniform protections to all disabled individuals across the United States.  Furthermore, the ADA extended those same protections to individuals who were discriminated against based on association with disabled persons and to persons who were perceived to be disabled.  Regardless of the ultimate success or failure of the ADA, the extension of anti-discrimination protections to the disabled population and the impetus to reduce barriers to full participation in public life represents a triumph in the advancement of civil rights. 

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In establishing the ADA, Congress recognized that many disabled persons were subject to discrimination and had no legal protections against such discrimination such as those provided to individual members of protected classes by the Civil Rights Act of 1964 (CRA).  The principle intents were to protect persons with a disability from discrimination and increase their ability to participate in all aspects of public life through the elimination of barriers to access. 

Enforcement of the ADA is the responsibility of the Equal Employment Opportunity Commission under the United States Department of Labor.  The ADA is entirely consistent with the mission of the Department of Labor in promoting the welfare of workers and job seekers, improving working conditions and providing opportunities for employment for all individuals, including those with disabilities (U.S. Department of Labor, 2018).

Since discrimination is not an industry-specific issue, the ADA, like the CRA, is not limited with respect to industry.  The same exceptions given to private clubs and religious organizations are also provided for under the ADA, though the religious exemption is questionable in the case of the ADA.  The exemption for religious organizations is appropriate in the case of the CRA since religious affiliation is one of the protected classes under the CRA.  As there is no specific association between religious affiliation and disability, the exemption for religious organizations doesn’t really make sense in the ADA. 

While the ADA doesn’t make exemptions for specific industries, it does exempt employers with less than 15 employees from compliance, as the requirement to provide reasonable accommodations to persons with disabilities might pose an undue hardship on small businesses. In addition, the ADA allows exemptions for specific job functions where it can be justified.  For example, a person in a wheelchair can’t physically perform the kinds of duties required by fire rescue personnel.  The ADA also provides exemptions where employment of a person with a disability might pose a risk to the health and safety of the public. 

Problem Statement

Though the ADA may not be perfect and its relative success may be debatable, there is little doubt that it has done much to improve working conditions for persons with disabilities through the reasonable accommodation requirements and the elimination of physical barriers to access.  Overturning this legislation would halt much of the progress that has been made in improving access for persons with disabilities.  It would also deny may disabled persons an avenue for legal redress against discrimination in employment and other aspects of public life. 

Literature Review

A number of studies have examined the ADA with varying conclusions.  An early study, conducted in 1995, showed general support for the legislation among both employers and disabled persons and a belief by both groups that the legislation would be effective (Moore & Crimando, 1995).   A study by Mudrick in 1997 highlighted the problem with workers being able to establish a disability that was severe enough to qualify for protection under the ADA without being so severe that it would preclude the ability of a person to perform the essential functions of a particular job (Mudrick, 1997).   This issue was also a major focus of a 1999 study published in the Stanford Law Review (Friedland, 1999).  A 2001 study determined that the enactment of the ADA resulted in reduced employment levels for disabled persons between 1992 and 1996 after the provisions of the ADA became effective.  The decline is attributed to employer fears over the cost of reasonable accommodations and the threat of litigation.  Data extracted from this study is shown in Figure 2: Percent Employment by Population 1988-1996 .  In 2003, Randolph determined that employment opportunities had not increased for individuals with disabilities and that the severity of the disability was a significant predictor in determining a lack of educational attainment, lower employment status and lower income (Randolph, 2004).  A 2004 study by Jolls also noted the decline in employment of individuals with disabilities following the enactment of the ADA.  Unlike the findings of Acemoglu and Angrist in 2001, Jolls proposes that this decrease was due to mainly to increased participation in education as a result of the ADA rather than a decrease in opportunities (Jolls, 2004).  A recent study from 2016 highlights the ADA’s lack of success in increasing employment for individuals suffering from intellectual disabilities (Montelone, 2016).  A more recent study from 2018 found that a California law that extended protections of the ADA to individuals with less severe conditions improved employment opportunities within the State of California (Button, 2018). 

A scoping review of the available literature in 2014 identified nearly 700 published journal articles on various aspects of the ADA (Harris, et al., 2014).  However, even with all of the available literature representing thousands of research hours, 28 years later, the success or failure of the ADA is still not clear. 

In addition to the issue of the effectiveness of the ADA, a number of studies have examined the cost of reasonable accommodations.  Two studies in the early 2000’s found the average cost to be around $100 (Inge, Strobel, Wehman, Todd, & Targett, 2000; Unger & Kregel, 2003).   Studies from 2010, 2011 and 2017 showed higher average costs in the $500 range (Hernandez & McDonald, 2010; Hartnett, Stuart, Thurman, Loy, & Batiste, 2011; Job Accommodation Network, 2017)

Methodology/Analysis

This paper examines the effectiveness of the ADA along two dimensions.  The first analysis looks at the employment statistics over the last 8 years as published by the Bureau of Labor Statistics and the U.S. Census Bureau.  The hypothesis is that a successful implementation of the ADA would result in employment and income levels for individuals with disabilities that are consistent with those of individuals without reported disabilities.  This hypothesis is consistent success factors used in previous studies (Mudrick, 1997).

Figure 1: Percent Employment by Population 2009-2017   (United States Department of Labor, Bureau of Labor Statistics, 2018)

Figure 2: Percent Employment by Population 1988-1996 (Acemoglu & Angrist, 2001)

Figure 1: Percent Employment by Population 2009-2017 depicts the employment-population ratio (number of persons employed as a percentage of total number of persons in a particular group) of persons with disabilities and persons with no disabilities.  The results are clearly disappointing.  The employment-population ratio for persons with one or more disabilities is less than 1/3 of the employment-population ratio for persons without a disability.  Data extracted from a 2001 study by Acemoglu and Angrist and shown in Figure 2: Percent Employment by Population 1988-1996 shows a similar disparity in the period immediately preceding and following the enactment of the ADA.  Though the gap increased in the years immediately following the adoption of the ADA, the current gap, as of 2017, is essentially the same as it was in 1988. 

Statistics for median income were also compared over the same time frame with similar results.  As shown in Figure 2: Median Annual Income, the income figures for persons with one or more disabilities is substantially lower than that of people without disabilities.  Though the median income for both groups has generally increased over the period examined, the gap between the two groups has widened. 

Figure 3: Median Annual Income  (United States Census Bureau, 2018)

As a second measure of success, a survey was issued to a convenience sample of persons known to the author to have one or more disabilities and who are currently employed.  The survey asked three simple questions.  The first question asked if the person had been provided with one or more reasonable accommodations at their workplace based on their disability.  Of the 15 persons surveyed 9 (60%) indicated that they had been provided some sort of accommodation.  The second question asked if the individual felt that their employer would have provided accommodations if they had not been required by law to do so; 5 of the 9 persons who had been provided an accommodation felt that their employers would have done so regardless of the law.  The third and final question asked if the person’s work environment had improved with respect to accessibility in the years since the enactment of the ADA.  For this question 14 of the 15 respondents indicated that their work environments had been improved.  While this survey was very simple and the sample size was small, it does reflect that the success of the ADA is not entirely represented by employment or income statistics. 

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Results

Though the statistics on employment-population ratio and median income are disappointing, they don’t necessarily mean that the ADA hasn’t been beneficial.  It simply indicates that the significant barriers to full employment faced by individuals with disabilities can’t be eliminated solely through legislative action.  As the survey results showed, the ADA has resulted in improvements in accessibility and accommodations for at least some people with disabilities. 

In addition, the ADA has provided a legal pathway for individuals with disabilities to seek redress against discrimination in the workplace.  As shown in Figure 3: Federal ADA Charges Filed by Year, the number of complaints filed by persons claiming employment discrimination shows a generally increasing trend.  In 2017 a total of 26,838 complaints were filed with the EEOC based on employment discrimination under the ADA.  These figures do not include complaints filed with local or state agencies.  The Florida Commission on Human Relations, which handles ADA complaints for the State of Florida, received an additional 506 complaints in 2017 (Florida Commission on Human Relations, 2017).  If not for the ADA, complainants from several states might have no legal remedy for their claims.

Figure 4: Federal ADA Charges Filed by Year,  (U.S. Equal Employment Opportunity Commission, 2018)

On the issue of cost, as mentioned previously, recent studies have shown that the average cost of a reasonable accommodation is in the neighborhood of $500.  As of 2016, the Society for Human Resources Management reports that the average cost per hire across the United States is $4,129 (Society for Human Resources Management, 2016).  This clearly demonstrates that providing a reasonable accommodation to retain an otherwise capable, experienced and fully trained employee is a very cost-effective alternative to replacement based on hiring costs alone.  This simple analysis does not account for the additional expense required to train a replacement nor does it account for the loss of corporate knowledge that walks out the door with the loss of a disabled employee. 

The issue of litigation costs is a legitimate concern but based on 2017 data from the Census Bureau and the EEOC, far less than 1% (0.35%) of disabled employees filed a complaint in 2017.  According to the EEOC, the total amount of monetary damages awarded for 2017 was $135.2M.  Although that seems like a lot, when averaged out across the total population of disabled employees, the cost of damages is around $17.85 per employee for 2017 (United States Census Bureau, 2018; U.S. Equal Employment Opportunity Commission, 2018).  Employers who treat their disabled employees well and provide reasonable accommodations in accordance with the ADA should have little to fear from the few employees who actually file complaints. 

The cost of enforcement of the ADA by the EEOC is difficult to determine.  A very rough estimate based on the budget of the EEOC, the portion of total complaints associated with the ADA and the number of disabled employees in 2017 is approximately $15/disabled employee (U.S. Equal Employment Opportunity Commission, 2016; U.S. Equal Employment Opportunity Commission, 2018; United States Census Bureau, 2018).  Compared with the median annual income for persons with disabilities, this cost represents about 90 minutes of productive work in a calendar year. 

Conclusion/Recommendation

It is interesting to note that Federal Employees of the Executive Branch are not covered under the ADA.  Employees of the Executive Branch are offered similar protections under the Rehabilitation Act of 1973 which served as a model in the development of the ADA.  Other entities such as state and local governments have established similar statutes. 

One alternative to the ADA would be to have left the matter in the hands of the individual States.  Prior to the enactment of the ADA, most states had established some form of protection for individuals with disabilities, either through legislation or the development of a body of case law at the state level.  As of 1990, 18 states had laws that provided essentially the same protections as the ADA, another 29 states had some form of protection though not to the same degree as that provided by the ADA, and three states provided no protection against discrimination for persons with disabilities (Jolls, 2004).  Left to the states it is likely that the same legislative patchwork would have continued, providing inconsistent protection for persons with disabilities across the nation. 

In 1992, the State of Florida enacted the Florida Civil Rights Act which includes protection against discrimination by employers in areas covered by the ADA and the CRA.  However, the Florida statute does not include any requirements that employers provide reasonable accommodations to persons with disabilities or that public places provide access to persons with disabilities (State of Florida, 2018).  As such, the Florida statute only duplicates a portion of the benefits provided under the ADA. 

Another alternative might have been the failed OSHA Ergonomic Regulations.  While this proposed regulation might have done much to reduce the occurrence of future disabilities resulting from non-ergonomically friendly workplaces, it would not have provided the same protections against discrimination as the ADA nor would it have addressed the issue with accessibility to public services for non-employees.  A 2014 approach proposed by Stein, Silvers, Areheart, and Francis, recommended that the ADA be altered or replaced with a new standard that would provide any worker, regardless of disability, the right to request a reasonable accommodation without fear of reprisal (Stein, Silvers, Areheart, & Francis, 2014). 

It has been suggested by opponents of the ADA that the enactment of the ADA has resulted in a large number of frivolous lawsuits which pose an unreasonable burden on businesses.  However, the data available from the EEOC shows that this is unlikely to be true.  The number of complaints filed under the ADA for employment discrimination in 2017 is comparable to the number of complaints filed for discrimination based on race (28,525) and sex (25,601) under the Civil Rights Act (U.S. Equal Employment Opportunity Commission, 2018). 

The ultimate success of the ADA will be achieved when, and if, the employment rates and median incomes for persons with disabilities are comparable to those of the non-disabled population.  The ADA should not be determined to be a failure because parity hasn’t yet been achieved.  Legislative action can happen fairly quickly but true social change takes a long time.  Take for example the Equal Pay Act which made it illegal for men to be paid more than women for the same job.  The equal pay act was signed into law in 1963.  Today, 55 years after the law was enacted, women are, on average, still paid less than men in the United States.  However, the wage gap has slowly decreased.  It is hoped that the ADA will eventually produce similar results. 

Future Areas of Related Research

In a 2014 article, the authors point out that there exists a fundamental disconnect between the ADA and the Social Security Disability Income (SSDI) program administered by the Social Security Administration.  The article suggests that the different definitions of disability force disabled persons into choosing between fighting employers through the provisions of the ADA or opting out of the workforce through SSDI.  It appears that many disabled persons are choosing the later because it is easier than fighting for their right to continue working (Stein, Silvers, Areheart, & Francis, 2014).  There also exist significant barriers to people returning to work once having been awarded SSDI.  The maximum benefit available under the SSDI program in 2018 is $2,788/month (Boyte-White, 2018).  This is approximately equivalent to pre-tax earnings of $20/hr.  SSDI also provides beneficiaries with access to Medicare.  The result is that someone coming off a period of disability and the associated inability to work for several years must find a job making $20/hr. with included insurance to equal the benefits provided by SSDI.  Competition for such jobs is fierce.  Given the existing prejudices against persons with disability, on top of the reluctance by hiring managers to employ persons who have been out of the workforce for a period of several years, it is extremely difficult for someone who wants to come off of disability to do so.  Further research is needed to determine why otherwise able people are choosing to remain out of the work-force and to design programs that can facilitate their return to work. 

Another potential area of research that could provide support to the positive effects of the ADA would be to conduct a longitudinal study comparing the productivity of persons who have been provided reasonable accommodations against the productivity of individuals with similar disabilities who have not been provided with such assistance.  Combined with information on the cost of reasonable accommodations, both initial and recurring, such research would likely demonstrate that the cost of accommodations is more than justified by the avoided loss of productivity for individuals with disabilities.  A control group of non-disabled employees doing the same job could demonstrate that disabled workers with appropriate accommodations are just as productive as their non-disabled counterparts.  One challenge with such a study is the potential ethical issues associated with withholding reasonable accommodations from workers just to measure their decline in productivity. 

Despite the number of studies that have already been done and the potential ethical problems in doing studies of disabled persons, the field is full of potential areas of research that could substantiate the positive effect of the ADA regardless of disappointing national employment and income statistics. 

References

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  • Button, P. (2018). Expanding employment discrimination protections for individuals with disabilities: evidence from California. Industrial and Labor Relations Review, 365-393.
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  • Friedland, M. (1999). Not Disabled Enough: The ADA’s “Major Life Activity” Definition of Disability. Stanford Law Review, 171-203.
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