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Employers still grappling with disability law after 25 years

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Employers still grappling with disability law after 25 years

The Americans with Disabilities Act of 1990 has given employers headaches that include litigation, but the law also has provided guidance on the fair treatment of disabled workers in its 25 years of existence.

Advocates for the disabled, however, say more needs to be done.

The ADA, which President George H.W. Bush signed into law on July 26, 1990, guarantees equal opportunity for people with disabilities in employment, public places, transportation, state and local governmental services, and communications.

The ADA's Title I applies to private employers in particular.

In 2008, President George W. Bush signed into law the Americans with Disabilities Amendments Act — legislation proposed largely in response to Supreme Court rulings that advocates felt minimized the law's effectiveness (see related story).

The ADA makes identifying and accommodating the abilities of the disabled a “practical issue that we need to deal with,” said Lori Golden, McLean, Virginia-based abilities strategy leader at Ernst & Young L.L.P.

Before 2008, employers' mentality was “you absolutely had to treat everybody exactly the same or you would be in trouble,” said defense attorney Robin E. Shea, a partner at Constangy, Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina.

The law made employers “much more aware of trying to work with individuals when they have unique needs, and it's made the workplace a little less lockstep and more flexible,” Ms. Shea said.

Still, the ratio of disabled employment declined to 17.1% in 2014 from 17.6% in 2013, while the employed ratio for people without a disability increased to 64.6% from 64.0%, according to the Bureau of Labor Statistics.

“There are instances where it's been absolutely wonderful, because it's required employers to give people a chance they might not have otherwise,” said defense attorney Kathryn Dudley Helms, office managing shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Columbia, South Carolina. It “can force an employer to take a more open look” at a disabled employee.

“The bad part of any protective law is there are a few employees who will abuse it,” who “can cause a lot of headaches,” she said.

It can also be a challenge to deal with employees seeking unreasonable accommodations, such as a supervisor who wants to work from home, Ms. Helms said.

One issue presenting new challenges for employers is pregnancy, in light of the U.S. Supreme Court's March ruling in Peggy Young v. United Parcel Service Inc. The court held that the Atlanta-based package delivery company acted unlawfully in refusing to accommodate a part-time worker's lifting restriction while it did accommodate other workers' limitations.

It is understood that there must be accommodation for a pregnant woman with gestational diabetes, Ms. Helms said. “But what about someone who has a normal, healthy pregnancy, with no disease-related issues, and she has a lifting restriction, which is very common?”

Ms. Shea said, however, the biggest ADA challenge “is just determining whether someone can be accommodated given their medical condition, and what types of accommodation would be appropriate, and what to do if the employee's physician recommends something that doesn't seem to fit the work environment.”

“Sometimes, the doctors are too lenient; sometimes, the doctor will release the worker back to work without restrictions,” but everyone knows the job will be difficult for the employee, she said. But, “accommodation seems to be the way of the workplace now, and I think it's going to be that way” with its expansion into conditions including pregnancy.

Furthermore, with the ADA Amendments Act of 2008, “we have a very, very broad inclusion of various medical conditions that are considered disabilities” and the trend “will just keep going in that direction,” with technology making it easier to make accommodations such as the use of voices for visually-impaired computer users, Ms. Shea said.

A study last September by the Morgantown, West Virginia-based Job Accommodation Network, which is part of the Department of Labor's Office of Disability Em-ployment Policy, concluded that 57% of accommodations cost nothing while the rest typically cost $500.

While “accommodating a disability is not always a straightforward issue,” Ernst & Young tries “to look at them as plans or as adjustments, rather than as a kind of legal obligation,” Ms. Golden said.

From the employee or applicant's perspective, the law has failed to adequately encourage employers to hire the disabled, observers say.

Chai R. Feldblum, commissioner at the Equal Employment Opportunity Commission, which en-forces Title I, said the ADA works best in helping the disabled stay on the job and getting them promoted if they already are working.

But it has been less successful in helping the disabled get hired, “because it has always been hard to prove that not being hired was from discrimination,” Ms. Feldblum said.

“Getting jobs is still challenging,” said Linda Batiste, principal consultant at the Job Accommodation Network.

“Once you're an employee, it's easier to keep your job, at least in our experience,” because employers are willing to make accommodations, she said.

“At least among blind people, the rate of unemployment is pretty much what it was before the ADA,” at around 62%, said a spokesman for the Washington-based National Federation for the Blind, who said “the real problem is attitudinal.”

Employers have followed a “very carefully balanced, crafted approach” to complying with the ADA, but results have been disappointing in terms of integrating the disabled into the workplace because of stigma that is still attached, said Curt Decker, executive director of Washington-based advocacy group National Disability Rights Network.

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