The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact
Kathryn Moss and Scott Burris*
Signing the Americans with Disabilities Act (ADA) in 1990, President George H. W. Bush described it as an “historic new civil rights Act…. the world’s first comprehensive declaration of equality for people with disabilities” (National Council on Disability, 2004b, p. 30). Others called it “a watershed in the history of disability rights, … the most far-reaching legislation ever enacted against discrimination of people with disabilities” (U.S. Congress, Office of Technology Assessment, 1994). A substantial body of disability law—including the Rehabilitation Act of 1973, the Education for All Handicapped Children Act of 1975 (now known as the Individuals with Disabilities Education Act), the Fair Housing Amendments Act of 1988, and numerous state antidiscrimination disability statutes—was already in place, but the ADA seemed to promise a dramatic change in the place of people with disabilities in American society. The ADA was broader in scope than existing federal laws, prohibiting discrimination not just in employment and public programs but also in public accommodations. It covered private employers and service providers and not just public and publicly funded ones (Miller, 1998). The ADA emerged from Congress with bipartisan support, carrying an explicit promise to people with disabilities of “equality of opportunity, full participation, independent living, and economic self sufficiency.” The statute would, it was predicted, significantly af-
fect “not just persons with disabilities and persons charged with respecting and enforcing human rights, but virtually every segment of our society—all Americans” (Gostin and Beyer, 1993. p. xiii).
Measuring the impact of a major civil rights statute is difficult (Donahue and Heckman, 1991). Impact depends upon the complex process of implementation by courts, enforcement agencies, and employers (Blumrosen, 1993; Edelman and Suchman, 1997). “Impact” can take a variety of forms, from increases in wages and employment rates to significant changes in social or organizational norms. The causal role of a civil rights statute is difficult to disaggregate from other social and economic factors, such as labor market conditions generally and government interventions on a number of interrelated fronts (Heckman, 1990). In the case of the ADA’s employment provisions, assessment is further complicated by differences between the population defined as disabled in data sources that monitor the employment and economic status of the U.S. population and the narrower group of people whose employment rights are actually protected by the law (Blanck et al., 2003; Burris and Moss, 2000; Kruse and Schur, 2003; Schwochau and Blanck, 2000).
The evidence suggests that the employment effects of the ADA have been, at best, mixed. Many studies find a decline in employment rates among the disabled, a decline which some have attributed to the ADA. Some find that the abysmally low wages of people with disabilities have not changed with the enactment of the ADA and may even have declined. Negative employer attitudes toward the disabled persist. The courts have interpreted the statute narrowly, and enforcement has been flawed. Yet there are also indications that the ADA has helped people with disabilities. Tens of thousands of individuals with disabilities have directly benefited by filing claims under the law. Organizations have adopted new employment practices and policies, and many people with disabilities have gained new leverage in pursuing their career goals. There is evidence that the segment of the disabled population actually protected by the employment provisions of the statute has seen an improvement in employment rates.
This paper summarizes what is known about the effects of the ADA’s employment rules. It reviews how the law has been operationalized and how the employment experiences of people with disabilities have changed since its passage. It begins with a brief overview of the ADA’s provisions. The next part reviews the evidence for three kinds of effects of the ADA: impact on wages and employment rates, changes in employer attitudes and practices, and the law’s empowering effect for people with disabilities. We then turn to a review of how the implementation of the law by courts and administrative agencies and countervailing social welfare policies complicate the assessment of the statute’s effectiveness.
THE ADA AND ITS EMPLOYMENT PROVISIONS: A BRIEF OVERVIEW
The ADA prohibits discrimination against individuals with disabilities (Americans with Disabilities Act of 1990). It is based on and supplements the 1973 Rehabilitation Act and other earlier laws (Feldblum, 2000). The ADA has five sections, referred to in the law as “Titles.” Title I contains its employment provisions; the other titles deal with matters that include state and local government services and access to public accommodations.
The ADA’s definition of “disability” is a crucial factor in the effort to understand its effects. In general, people are considered disabled for the purposes of the ADA if they satisfy at least one of three criteria: they have “a physical or mental impairment that substantially limits one or more of the major life activities,” they have “a record of such an impairment,” or they are “regarded as having such an impairment.” Title I prohibits employment discrimination only against “qualified individuals with disabilities.” A qualified individual with a disability is one who meets the skill, experience, education, and other job-related requirements of a position and who can perform the essential functions of the job under the same conditions as any other worker or with what is known as a “reasonable accommodation” to the disability. “Reasonable accommodations” are defined in Title I as changes to the work environment or process that allow a person with a disability to enjoy equal employment opportunity; they include making facilities accessible, restructuring jobs, modifying work schedules, reassigning the worker to a more suitable position if one is available, and modifying equipment or devices. An accommodation is not considered reasonable if it creates an undue burden for the employer. “Undue burden” includes financial hardship, but also accommodations that are disruptive or that would change the nature or operation of a business.
Title I applies to all employers with 15 or more employees, both private and public, as well as to employment agencies, labor organizations, and joint labor-management committees. It prohibits discrimination against qualified individuals with a disability in any aspect of employment. The prohibition embraces discrimination in job application procedures, hiring, firing, advancement, compensation, fringe benefits, and job training. Inquiries about the existence, nature, or severity of a disability before an individual is hired are prohibited, although an employer may require a medical examination after a job offer has been made if it is required of all new employees, is job related, and is consistent with business necessity.
The enforcement of the ADA differs from title to title (Parry, 1998). Under Title I, individuals who believe that they have been subject to employment discrimination because of a disability may file an administrative charge with the U.S. Equal Employment Opportunity Commission (EEOC)
or an equivalent state or local human rights agency. Later, they may file a lawsuit, but only after they have received a “right-to-sue letter” from the agency. Federal law provides that winning plaintiffs can recover attorney’s fees from the defendant but offers no guarantee that legal services will be provided or paid for in the prosecution of the suit.
MEASURING THE EFFECTS OF TITLE I
Congress intended the elimination of disability-based employment discrimination to increase the ability of people with disabilities to participate in the labor market on the same basis as others. We consider here several indicators that may be used to measure Title I’s success: (1) employment rates and wage disparities, (2) employer attitudes and practices, and (3) “empowerment” effects among people with disabilities themselves.
Employment Rates and Wage Disparities
The results of studies both on what happened to the wage and employment rates of people with disabilities in the decade following the passage of the ADA and whether the ADA was the cause of the various changes that they identified differ (Hotchkiss, 2003). There is consensus that the employment rate declined in the 1990s for people reporting that they had conditions that limit their ability to work, but whether this trend extended to wages or to people more likely to be protected by Title I is still debated. Disagreement starts with whether the most commonly used data sets properly define disability and also extends to more arcane points of study methodology. Analysis is complicated by the changing judicial interpretation of “disability” over time and the fact that in many states people with disabilities had substantial protection from discrimination even before the ADA was passed. These issues are fully discussed elsewhere (Blanck et al., 2003; Kruse and Schur, 2003; Stapleton and Burkhauser, 2003). In this section, we briefly summarize the findings and most significant methodological issues.
Most studies of employment rates use one of three nationally representative data sets: the Current Population Survey (CPS), the National Health Interview Survey, and the Survey of Income and Program Participation (SIPP), all of which define “disability” primarily in terms of a self-reported health condition that limits or entirely prevents an individual from working. The researchers analyzing these data generally agree that the rate of employment for working-aged adults with disabilities declined during the 1990s, not only absolutely but also relative to the rate for those without disabilities (Acemoglu and Angrist, 2001; Burkhauser et al., 2003; DeLeire, 2000; Houtenville and Burkhauser, 2004; Kruse and Schur, 2003; Moon and Shin, 2006; Stapleton and Burkhauser, 2003).
Fewer studies have looked at changes in wages over time. DeLeire analyzed SIPP data for men between 1986 and 1995 and found no significant declines (DeLeire, 2000). Acemogolu and Angrist, using similar methods, analyzed CPS data for men and women between the ages of 21 and 58 years over the same time period and reached the same conclusion (Acemoglu and Angrist, 2001). Moon and Shin, using SIPP data for men between 1990 and 1992, found that the logarithm of the real wages of people with disabilities had declined relative to those of men without disabilities (Moon and Shin, 2006).
Title I’s definition of disability excludes people who cannot work (or who require more than a “reasonable” accommodation to do so), and it covers people who have no serious impairment or work limitations but are mistakenly treated as if they had. Thus the employment rate of people with serious work limitations is a flawed indicator of the statute’s effect on those whom it was designed to help. A set of questions on the SIPP about functional and activity limitations that do not prevent work allowed Kruse and Schur to investigate changes in a segment of the disabled population that more closely approximates that covered by Title I (Kruse and Schur, 2003). They found that employment rates did decrease in the 1990s for individuals reporting a work disability but that employment rates actually increased for those with functional and activity limitations that do not prevent work (Kruse and Schur, 2003). Disagreement about the validity of studies based on a work-limitation definition of disability persists, even as the Bureau of Labor Statistics works to craft a new definition more compatible with the ADA for use in the CPS (Burkhauser et al., 2002; McMenamin et al., 2006; National Council on Disability, 2004a).
Researchers have tested many explanations for the employment outcomes that they found. They have studied the importance of demographic factors and education (Houtenville and Daly, 2003), changes in the nature of work or in the job market (Stapleton et al., 2003), the changing size and composition of the disabled population (Kaye, 2003), changes in the costs of health care and modes of health care financing (Goodman and Waidmann, 2003; Hill et al., 2003; Yelowitz, 1998), and expansions of the Social Security Disability Income (SSDI) and Supplemental Security Income (SSI) programs, including both lowering of the eligibility requirements and increases in benefits for some recipients (Burkhauser et al., 2001; Houtenville and Burkhauser, 2004). Reviewing these data, two leading researchers concluded that SSDI and SSI expansion had played a more significant role than any other factor, including the ADA (Stapleton and Burkhauser, 2003).
Table E-1 lists the studies that have focused on the effect of the ADA on employment among people with disabilities. Most used the work-limitation definition of disability and depended primarily on the temporal associa-
TABLE E-1 Studies of the Effect of the ADA on Employment Rates and Wages
Definition of Disability
Men ages 18–64 years with and without disabilities
Acemoglu and Angrist (2001)
Men and women ages 21–58 years with and without disabilities
Kruse and Schur (2003)
Men and women ages 21–58
Classification was based on 14 different SIPP disability measures representing three dimensions: activity limitations, receipt of disability income, and reported ability to work
Beegle and Stock (2003)
1970, 1980, and 1990
Men and women ages 18–64 years with and without disabilities
Houtenville and Burkhauser (2004)
Men and women ages 21–58 years with and without disabilities
Jolls and Prescott (2004)
Men and women ages 21–58 years
Moon andShin (2006)
Men ages 20–62 years with and without disabilities
Classification was based on responses concerning use of a wheelchair or long-term use of a cane, crutches, or a walker; activity limitations; reporting one or more disability conditions; and receiving federal benefits based on an inability to work.
tion between the date of passage (1990) or the effective date (1992) of the ADA’s Title I and employment changes to prove causation. Using both simple pre-post and year-by-year analyses, Moon and Shin (2006), DeLeire (2000), and Acemogolu and Angrist (2001) all found robust declines in employment rates: Moon and Shin on the order of 6 percent and DeLeire of 7 percent. Acemoglu and Angrist reported sharp drops in annual weeks of employment for men with disabilities aged 21 to 58 years and women
with disabilities under age 40 years. Moon and Shin also found a decline in the logarithm of the real wages of men with disabilities of 5.3 percent relative to that of men without disabilities, although it was significant only at the 0.1 level. Econometric modeling led both DeLeire and Acemoglu and Angrist to attribute the declines specifically to the reasonable accommodation requirement of Title I; Acemoglu and Angrist thought that the reduction in the rates of employment among disabled individuals also reflected employers’ expectation of increased lawsuit costs.
The use of a different definition of disability and different time periods leads to different results. Kruse and Schur used 14 different measures of disability from the SIPP that represented permutations along three dimensions (activity limitations, receipt of disability income, and reported ability to work) to facilitate comparisons between people more and less likely to be covered by the ADA (Kruse and Schur, 2003). They found that the subgroup of people most likely to be covered by Title I saw an improvement in employment rates, while for others employment declined.
Houtenville and Burkhauser (2004) replicated the study of Acemoglu and Angrist (2001), testing the sensitivities of different definitions of disability, as well as the effects of different periods of time. They confirmed that the employment rate for people with a work limitation did indeed decline when the rate was measured by the annual number of weeks that an individual worked during one calendar year. The use of a 2-year time period, however, suggested that employment began to decline in the mid-1980s and actually sharply improved in 1992 for some age-sex categories. They concluded that there was “little evidence of a negative effect of the ADA on the population with longer term disabilities and some evidence of a positive effect of the ADA” (Houtenville and Burkhauser, 2004, p. 7).
All the studies that have attempted to test the impact of the ADA by temporal association with national trends in employment and wages suffer from the same flaw: many states had laws against discrimination on the basis of disability before the ADA came into effect, so we cannot assume that the implementation of Title I represented a change in the rules for all employers and workers. Two studies specified state-law variables that made it possible to compare the rates of employment and wages for people with disabilities in states with and without various ADA-like disability protections at the same points in time.
Beegle and Stock compared state-level employment conditions for people with disabilities at three points, in 1970, 1980, and 1990. Because all three times were before the time of the implementation of the ADA, it should be understood that the study used similar state laws as a proxy for the federal statute (Beegle and Stock, 2003). They found that disability discrimination laws were associated with lower relative earnings among disabled individuals and with slightly lower rates of relative labor force participation rates among disabled individuals. However, once they controlled
for differential time trends in employment among disabled and nondisabled individuals, there was no systematic negative relationship between the laws and the relative employment rates of disabled individuals. Of course, this also suggests that there was no substantial positive impact of state disability discrimination laws.
Jolls and Prescott studied states with three different legal conditions between 1990 and 1993: states with no protections comparable to the ADA, in which the ADA would represent an entirely new influence; “protection without accommodation” states, whose law prohibited employment discrimination against people with disabilities but did not require reasonable accommodation; and “ADA-like” states, whose protections for the employment rights of people with disabilities both prohibited discrimination and required reasonable accommodation (Jolls and Prescott, 2004). They found that employment rates for disabled individuals began to decline in 1993 relative to pre-ADA levels in all three categories of states. The extent to which the ADA was new law made no significant difference, making it difficult as a general matter to attribute the declines to employers’ reaction to new legal requirements.
The design of the study of Jolls and Prescott (2004) allowed them to test the effects of specific ADA mandates. They found that the employment rates of individuals with disabilities fell 10 percent in the early days of the ADA in “protection without accommodation” states compared with that in states that already had full “ADA-like” statutes, indicating that the reasonable accommodation requirement had an independent negative effect on employment. Yet they also found little or no differences between pre- and post-ADA employment rates among people with disabilities in states that had had no protection before, indicating that the ADA did not have a significant impact in states where it brought entirely new mandates. Considering other important confounding variables—including the size of the employer covered, differences between states in eligibility for disability benefits and the amounts of disability benefits, states’ economic environments, and preexisting state group-specific trends in employment rates among disabled individuals—Jolls and Prescott concluded that apart from a short-term effect of the new reasonable accommodation requirement, there was no link between the ADA and the employment declines experienced by people with disabilities starting in 1993 and continuing forward (Jolls and Prescott, 2004).
Employer Practices and Attitudes
The ADA requires employers to eliminate discriminatory practices and promote equal opportunity by making reasonable accommodations for workers with disabilities. We can assess the impact of the ADA on employ-
ment by asking what employers have done to comply with the law and whether there is evidence that the attitudes of employers to people with disabilities have improved. Existing data show a high level of awareness of the law and substantial compliance activity. They do not shed much light on the sincerity or the effectiveness of employer efforts and suggest that negative attitudes toward disabled people persist.
At the time of enactment, many employers were uninformed about the ADA and had significant concerns about the costs that it was going to impose. This seems to have changed rather quickly. More durable has been the negative attitudes about people with disabilities, especially those with certain types of disabilities (Bruyere et al., 2006; Greenwood and Johnson, 1987). Employers feel more positively about people with physical or sensory disabilities than they do about people with psychiatric or cognitive disabilities (Baldwin, 1992; Scheid, 2005). There is less acceptance of people whose disabilities are perceived as having been caused by factors under their control than for “innocent” victims (for example, there is less acceptance of a person paralyzed in an accident caused by her own drinking than of a person paralyzed by the actions of a drunken stranger) (Bruyere et al., 2006; Hazer and Bedell, 2000; Mitchell and Kovera, 2006).
Given the poor empirical correlation between attitudes about disabled people and actual employer behavior (Bruyere et al., 2006), attitude studies may be more suggestive of the complexity of workplace decision making and the need for further research than conclusive about the employer response to the ADA. Organizations have historically made changes in policies, procedures, and organizational structures in response to a new national civil rights law (Edelman and Suchman, 1997). Organizational compliance actions create the environment in which managers make decisions about hiring, promotion, and accommodation. Perceptions of organizational adherence to the ADA have been found to be a better predictor of how managers put the ADA into practice than their personal attitudes about people with disabilities (Thakker and Solomon, 1999). Larger employers typically respond to antidiscrimination laws by creating policies and internal equal employment opportunity offices to help the organization draw the line between legal and illegal behavior and to minimize and resolve discrimination disputes. In a 1998 survey of human resource managers, 72 percent reported that their companies had formal procedures for requesting reasonable accommodations and presenting grievances (Bruyere, 2000). Employers too small to support a separate human resources or equal employment opportunity staff may respond to antidiscrimination law in less formal but still important ways (Barnes and Burke, 2006).
Aside from a number of small surveys, qualitative studies, and dissertations (Blackburn, 2003; Harlan and Robert, 1998; Unger, 1999), the best evidence on the organizational response to the ADA comes from a series
of large probability surveys of human resources managers conducted by Bruyere and colleagues at Cornell University (Bruyere et al., 2006). General awareness of the law was high, with a large majority (80 to 90 percent) of both federal and private respondents reporting that they had received training in specific elements of the law, particularly reasonable accommodation and nondiscrimination in hiring (Bruyere, 2000).
Title I puts considerable emphasis on reasonable accommodation as an instrument for workplace inclusion, making the extent to which employers provide accommodations a good measure of compliance. Bruyere’s surveys tracked 10 types of accommodations, including changes in accessibility, transportation, supervisory methods, and job requirements. The research found overall that most employers were making accommodations of all types, but there were important variations. As an employer, the federal government was substantially more likely to report the provision of accommodations of virtually every kind than private employers (Bruyere, 2000), and large employers reported a greater use of accommodations than smaller ones (Bruyere et al., 2006). The differences between federal and private employers and between small and large employers were largely accounted for by those that reported that they had never been asked for an accommodation but may also reflect a greater emphasis on compliance within the federal government. A lack of requests for accommodation could indicate an unsupportive environment, employee unfamiliarity with their rights, or the use of informal, undocumented accommodations in smaller workplaces. For all employers, physical accessibility, workplace or tool reconfiguration, and policy change accommodations were more common than changes in training, supervisory methods, or job structure (Bruyere, 2000).
Most federal government (95 percent) and private (82 percent) employers reported that they had made facilities more accessible. There were sharper differences in other areas. Government employers were twice as likely to report providing communication access to the hearing impaired (91 percent versus 43 percent) or visually impaired (77 percent versus 37 percent). Less than half of employers, federal or private, had provided flexible test-taking procedures or a scent-free environment, but most employers that did not provide these accommodations reported that no one had ever asked for them (Bruyere, 2000). A similar pattern and explanation emerged in studies comparing large and small private employers, with smaller employers consistently less likely to report various compliance activities (Bruyere et al., 2006).
The ADA requires a large number of changes in routine procedures that can also be used to mark employer compliance. Brueyere tracked 10 indicators in the hiring process, ranging from changing where recruiting was conducted to overcoming communication barriers with technology or interpreters and complying with restrictions on obtaining information
about medical examinations and medical histories. As with the provision of reasonable accommodations after a disabled individual is hired, employers were much more likely to make what they reported to be “easy” changes, like ensuring physical accessibility in the interview site, than to take on communication barriers. Again, the federal government as an employer was much more likely to report providing these accommodations than private employers, apparently because private employers were less aware of how to overcome communication barriers.
A survey focusing on the private-sector use of adaptive information technologies found that less than half of the respondents reported that their organizations had experience in modifying a computer to make it accessible to an employee with a disability (Bruyere et al., 2005). Respondents employed by large organizations were more likely than those employed by small organizations to report familiarity with assistive technology and accessible web designs and to report that their organizations had made modifications to computers and adaptations to workstations. In general, however, there was a low level of familiarity with assistive technology. Almost half (46 percent) were familiar with screen magnifiers, approximately one-third were familiar with speech recognition software, about one-fourth were familiar with video captioning, about 20 percent were familiar with braille readers/displays, about 16 percent were familiar with screen readers, and only 13 percent were familiar with accessible web design.
These studies leave little doubt that employers are generally aware of the ADA and have taken steps to meet its requirements. They show that employers are making accommodations in hiring processes and in the workplace. The studies do not allow confident conclusions to be made about how well these measures are being implemented and the extent to which people with disabilities have benefited or perceived any benefits. Bruyere’s respondents report that negative attitudes and a lack of information still stand as barriers to the hiring and retention of workers with disabilities and that smaller employers may need more help to understand and implement the law’s requirements. More research is also recommended (Bruyere et al., 2006).
The ADA could have a positive impact by empowering workers with more tools for achieving their goals or vindicating their rights. Filing an ADA complaint is one way in which people can use the law to defend their rights. More than 200,000 workers filed discrimination claims under ADA in the decade after the statute was passed (Moss et al., 2005), but research on how people “use” the law would predict that only a small minority of people with disabilities will invoke the ADA to deal with discrimination.
People often use a language of rights to define their social goals and position, and disadvantaged groups and their advocates often see the defining of rights as a policy solution to social problems. At the same time, research has consistently shown that Americans are loathe to sue (Felstiner et al., 1980-1981; Galanter, 1983) and that civil rights laws are among the least often invoked (Curran and Spalding, 1974; Engel and Munger, 2003). Research on the ADA suggests that people with disabilities conform to this pattern of law avoidance not simply because they are unaware of the law or are unable to get a lawyer but because filing a complaint implicates a variety of deep social and psychological issues (Engel and Munger, 2001; Moss et al., 2005; Studdert, 2002).
Just as organizations may comply with the law without active enforcement, individuals may “rely” on the law in their own strategies for daily living without formally invoking it (Burris and Moss, 2000). An important study by Engel and Munger explored this in the context of the ADA. Detailed life-history interviews with 60 people with a variety of disabilities found at least three ways in which the ADA was changing their lives, apart from litigation:
First, rights can change the self-perceptions of individuals with disabilities, enabling them to envision more ambitious career paths by incorporating in their plans the reasonable accommodations and the nondiscriminatory treatment guaranteed by the ADA…. Second, ADA rights become active through cultural and discursive shifts even when rights do not directly transform an individual’s self-perceptions. By becoming part of everyday speech, thought, and action, ADA rights affect the way others perceive individuals with disabilities as employees…. Third, ADA rights may become active through institutional transformations that are not directed at any particular individual…. [R]ights are sometimes implemented unilaterally by … employers, rather than through advocacy by the rights-bearers themselves (Engel and Munger, 2003, pp. 243–244).
While these “empowerment effects” are difficult to quantify, they must be seen as among the most important forms of impact that a civil rights law can have. Although the Engel and Munger study is qualitative, it offers intriguing suggestions that the ADA may be working through these mechanisms. Bruyere’s work and some unpublished studies have found signs that people with disabilities are reluctant to ask for accommodations (Baldridge, 2002; Bruyere, 2000; Frank, 2004). Further research along these lines would be valuable.
RETHINKING THE “CAUSE” OF THE EFFECTIVENESS OF TITLE I
Relating changes in the employment situations of people with disabilities to Title I is not a straightforward matter. We can, however, reduce
the uncertainty and guide reasonable inferences about cause and effect by clearly specifying how the ADA has been applied and identifying factors that might be confounding its intended effects. In this section we discuss several key factors: judicial interpretation of the statute’s terms, how the law has been implemented in courts and administrative enforcement agencies, and the problem of countervailing social welfare policies.
Title I in the Courts: Narrowing the Protected Class
Title I did not purport to provide legal protection of employment opportunity to everyone with a disability but does provide legal protection of employment opportunity to those who meet its definition of a “qualified person with a disability.” Many proponents of the ADA have argued that Congress intended the definition to be liberally applied, as it had been under the earlier Rehabilitation Act, so that even substantial accommodations would be deemed “reasonable” to encourage the inclusion of people with disabilities who have low levels of functioning and so that “impairment” and “major life activity” would be liberally construed to ensure that qualified people did not suffer employment discrimination simply because of prejudice, fear, or outdated stereotypes (Burgdorf, 1991, 1997; Feldblum, 2000). Over the last 15 years, however, the U.S. Supreme Court has led the federal courts in interpreting Title I narrowly (National Council on Disability, 2004b). We summarize the main rulings and then review the data on case outcomes.
Supreme Court Decisions: Narrowing the Protected Class
Membership in the protected class, a virtual nonissue under other discrimination statutes in which a plaintiff’s status is obvious (for example, race or gender under Title VII of the Civil Rights Act of 1965 or age under the Age Discrimination in Employment Act), has been the single most litigated issue in ADA cases. Even under prior law, the status of a plaintiff as “disabled” was required to be determined in an “individualized inquiry,” but as the ADA case law developed, the notion that disability determinations must be made on a case-by-case basis took on a decisive importance (Feldblum, 2000; Albertson’s, Inc. v. Kirkingburg, 1999). Under this approach, a person is found to be disabled; conditions are not categorically disabilities. Thus it is not enough for the plaintiff to show that he or she has a condition, such as epilepsy or carpal tunnel syndrome, that as a general matter is plainly a disability. Rather, he or she must prove to the court exactly how this condition constitutes a substantial limitation of a major activity in his or her own life and yet does not prevent him or her from doing the job.
Many conditions—such as diabetes, hypertension, and depression—have been found to meet the definition of impairment under the law but are controllable through medication so that, at least most of the time, their effects on daily life are minimal. In a trio of important cases involving nearsightedness, hypertension, and monocular vision, the U.S. Supreme Court held that mitigating, or corrective, measures should be considered in determining whether an individual has a disability under the ADA (Sutton v. United Airlines, Inc., 1999; Murphy v. United Parcel Service, 1999; Albertson’s, Inc. v. Kirkingburg, 1999). Under this interpretation, an employer may discriminate against someone because he or she has, say, diabetes, but as long as the victim is successfully controlling the condition with medication he or she has no recourse under the ADA. Of course, if the employee is not controlling the condition, he or she not only suffers symptoms but may find him- or herself excluded from the ADA because he or she is too impaired to do the job even with a reasonable accommodation.
The U.S. Supreme Court also took a narrow view of the “regarded as” prong of the definition. In older cases under the Rehabilitation Act, the Supreme Court attributed this prong to Congress’s concern with protecting the disabled against 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 confront[ing] individuals with handicaps” (School Board of Nassau County v. Arline, 1987). In the Sutton and Murphy cases, however, the Court introduced what amounts to a rather difficult “intent” element into the inquiry. It required the employee to show not only that the employer regarded the employee as unable to do the job at issue because of disability but also that the employer has essentially thought out its decision in terms of the primary definition of disability. In Sutton, the court ruled against plaintiffs barred from serving as pilots for failing to meet vision requirements that they argued were more stringent than necessary:
Petitioners have failed to allege adequately that their poor eyesight is regarded as an impairment that substantially limits them in the major life activity of working. They allege only that respondent regards their poor vision as precluding them from holding positions as a “global airline pilot.” … Because the position of global airline pilot is a single job, this allegation does not support the claim that respondent regards petitioners as having a substantially limiting impairment (Sutton v. United Airlines, Inc., 1999, pp. 492–493).
The mechanic involved in the Murphy case had been doing his job with excellent performance ratings for years but was fired because his hypertension barred him from getting the U.S. Department of Transportation truckdriver’s license that his employer generally required mechanics to possess.
Murphy showed that he had not actually needed to drive in his work but failed to show that the employer “regarded him” as disabled because there was no evidence that the employer thought that he was too disabled to do any job other than the one that required the license. In both cases, people were fired because of impairments that the employer believed precluded them from doing the job that they had but were not protected by the ADA because they could not prove the employer thought about their fitness for a wide range of other, similar jobs.
The U.S. Supreme Court’s rulings have restricted the definition in other significant ways. In Toyota v. Williams, there was no dispute that the plaintiff had suffered from carpal tunnel syndrome for many years; had changed job assignments several times because of it; and had trouble with basic manual tasks like gardening, dressing herself, and housework. In holding that her impairment did not substantially limit a major life activity, the Court ruled that “substantially” excluded “precludes impairments that interfere in only a minor way” with the activity and narrowed “major life activity” to mean one that is “of central importance to daily life” (Toyota Motor Manufacturing of, Kentucky, Inc. v. Williams, 2002, p. 197 [emphasis added]). Despite her undisputed impairment and the demonstrable limitations that it created, the plaintiff failed to qualify as disabled because “she could still brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house” (Toyota Motor Manufacturing of Kentucky, Inc. v. Williams, 2002, p. 202).
For many people with disabilities, medication, devices, adaptability, and sheer grit can mean that they are not in fact substantially limited in the activities of daily life. For them, the real barrier to participation in employment may be prejudice or stereotypes, meaning that when they suffer discrimination the only “major life activity” that their impairment has limited is work itself, and then only because of the attitudes or actions of others. Under prior law and in the early days of the ADA, “working” seemed to be well accepted as a major life activity, but in the Sutton, Murphy, and Williams cases, the U.S. Supreme Court cast serious doubt on this, suggesting that if the only activity impaired is working, the plaintiff will need to show that he or she is “unable to work in a broad class of jobs” (Sutton v. United Airlines, Inc., 1999; Murphy v. United Parcel Service, 1999; Toyota Motor Manufacturing of, Kentucky, Inc. v. Williams, 2002). In the words of the National Council on Disability, “[t]here are extensive examples of situations in the case law in which plaintiffs have been fired, refused employment, or otherwise disadvantaged in the workplace because of their actual or perceived impairments but have been unable to bring ADA actions because they could not meet what one federal court of appeals called the ‘weighty showing’ of demonstrating that they would be precluded from a class or broad range of jobs” (National Council on Disability, 2004b).
Lower Court Decisions: Few Plaintiff Victories
The effect of narrowing U.S. Supreme Court and courts of appeals rulings can clearly be seen in the outcomes of reported ADA cases. A series of annual studies conducted by the editors of the Mental and Physical Disability Law Reporter has analyzed Title I final case decisions in federal courts (Allbright, 2001, 2002, 2003, 2004, 2005; Parry, 1998, 1999, 2000). The studies have highlighted how rarely plaintiffs secure a favorable court judgment or jury verdict in published ADA case decisions. Taking into account reversals on appeal, the plaintiff success rate in these cases ranged from just under 8 percent between 1992 and 1997 to as low as 3 percent from 2002 to 2004. Colker’s study of published appellate decisions found that courts ruled in favor of defendants 94 percent of the time (Colker, 2001). Courts of appeals reversed prodefendant outcomes in trial courts only 21 percent of the time in Title I cases, whereas the rates were 26 to 48 percent in other types of cases that Colker reviewed. There was a similar gap in appellate reversals of trial court decisions in favor of plaintiffs: in ADA cases, plaintiff trial court victories were reversed 60 percent of the time, whereas the range was 33 to 52 percent in other kinds of cases. Only prisoners challenging their conditions of confinement were more likely than Title I plaintiffs to have a win reversal (69 percent) (Colker, 2001).
Case Outcomes Through Settlements: Benefits for Many Plaintiffs
While the studies of published Title I decisions demonstrate the impact of the narrow judicial interpretation of the law, reported case decisions are not a reliable indicator of overall outcomes, because most lawsuits are settled without a reported decision. Because settlements are voluntary, we presume that most of them entail some sort of payment or other benefit to the plaintiff. Moss and colleagues collected data from federal court files on a nationally representative sample of 4,114 lawsuits filed between 1993 and March 31, 2001, and linked the cases with administrative data obtained from the EEOC (Moss et al., 2005). Of the 3,624 federal court cases with identifiable outcomes, 2,219 (61 percent) were classified as settlements.1 These findings are consistent with an earlier study of ADA cases in one judicial district (Rulli, 2000). The study confirmed that plaintiffs lose most cases that are decided by a judge on motions to dismiss or for summary judgment. Its finding that in ADA cases plaintiffs whose cases go to trial
do as well as plaintiffs in other civil rights cases supports the view that the narrow definition of disability is the main doctrinal factor driving the low success rate for plaintiffs.
The study of Moss et al. (2005) also indicated that the vast majority of people eligible to file a Title I lawsuit in federal court did not invoke this right. During the period covered by the study, 201,371 Title I charges filed with the EEOC or state or local fair employment practice agencies (FEPAs) were not resolved to the charging parties’ satisfaction and were therefore eligible to be filed as lawsuits. The researchers estimated that only 27,725 lawsuits were actually filed, meaning that up to 87 percent of employment claims filed with state and federal agencies were abandoned without a resolution. The administrative process does serve a screening function, sparing the courts the labor of dealing with unsupported allegations, but the sheer volume of abandoned cases points to another important set of problems in the implementation of Title I, to which we turn next.
The Title I Enforcement System: Implementation Problems
Title I is enforced by the same agencies and under the same procedures as the nation’s other employment discrimination laws. People who believe that they have been discriminated against in employment on the basis of a disability may file an administrative charge with the EEOC or a state or local FEPA that contracts with the EEOC, which initiates an administrative dispute resolution process. If the administrative process fails to produce a satisfactory result, the worker can file an ADA lawsuit in state or federal court. The effectiveness of this enforcement system has been weakened by chronic underfunding of the EEOC in the face of ever growing workloads (Moss et al., 2001).
The Administrative Charge Process
The EEOC has primary enforcement authority for Title I. It contracts with state and local FEPAs to help with receiving and investigating employment discrimination charges. In theory, each case is investigated by the agency to the point at which it is settled or it is determined that the charge is supported or not supported by “reasonable cause” to believe that discrimination has occurred. Individuals who want to get to court as quickly as possible can short-circuit the administrative process by asking for a “right to sue” letter. The EEOC can take unresolved cases to court itself, alone or in collaboration with a complainant’s own attorney.
In fact, the EEOC has never been able to investigate all, or even most, complaints. It has had a backlog of cases since the earliest days, a backlog that by 1993, 1 year after Title I took effect, had reached 96,945 cases
(Moss et al., 2001; U.S. Government Accountability Office, 2005). Shortly after the ADA was enacted, the EEOC tried to deal with its backlog with a new system of intake triage. Based on the complainant’s initial submission, new cases were separated into three categories: clearly meritorious (Category A) cases, clearly unsupported (Category C) cases, and cases whose merits could be determined only after further investigation (Category B). The agency made substantial progress in reducing case processing time, decreasing the inventory of charges awaiting resolution, focusing investigative resources onto cases it believed to be strong, increasing its rate of “reasonable cause” determinations, and increasing the monetary benefits received by charging parties. By September 2000, 149,123 charges had been filed and resolved with the EEOC under the ADA, with median benefits of $6,000 per closure.
The new system is efficient, but has never been validated for accuracy. The C categorization is probably the most reliable because it depends upon objective factors like whether the employer has enough workers to be covered by the ADA. About 25 percent of cases are classified as Category C and quickly dismissed. Categorization as a Category A case requires more of a “feel” for the facts that make for a strong case. About 17 percent of cases are put in Category A. The problem with Category B is that inclusion rests on the classifier’s inability to assess the case’s merits without further fact finding, and most cases (57 percent) are rated Category B. Because of insufficient staff resources, most Category B cases and even some Category A cases are never seriously investigated, so the fate of a complaint hangs on a subjective rating based on only the information that the complainant is able to articulate. Not surprisingly, good outcomes—settlements with benefits and reasonable cause findings—are highly correlated with the original classification decision. In spite of a very successful mediation program targeted at Category B cases (Moss et al., 2002), the majority of possibly meritorious ADA claims filed with the EEOC and FEPAs are never investigated or resolved.
Access to Legal Services
People do not need to retain an attorney to file a claim with the EEOC or a FEPA, nor does having an attorney during the administrative process raise the chances of resolving the case (Moss et al., 2001). The overall benefit rate for individuals with attorneys (17.2 percent) was nearly identical to the overall benefit rate for individuals without attorneys (17.1 percent). Having an attorney does have a significant effect on the size of monetary settlements. Median actual monetary benefits for individuals with attorneys were significantly higher ($19,750) than those for individuals without attorneys ($4,482). Median projected monetary benefits (mainly “front pay”
or wage increases) were $19,500 for represented parties, whereas they were $16,200 for individuals without attorneys.
An inability to get legal help is probably one of the most important factors in the huge rate of claim abandonment between the administrative and judicial systems. People with attorneys during the EEOC/FEPA stage had significantly higher right-to-sue resolutions (31.4 percent) than individuals without attorneys (7.4 percent). Most (85 percent) Title I plaintiffs in federal court suits have attorneys, and those with attorneys had much better court results. The proportion of cases that were settled or decided for the plaintiff was about three times higher among plaintiffs who were represented by an attorney than among those representing themselves (68 versus 23 percent (p < 0.0001]) (Moss et al., 2005).
ADA Complainants with Psychiatric Disabilities
Among the most troubling findings of ADA implementation research has been a difference in experiences and outcomes for people with psychiatric disabilities. People with psychiatric disabilities were less likely than people with other disabilities to have a case classified as Category A by the EEOC and less likely than other to have a case resolved with benefits, even when categorization is controlled for (Moss et al., 2001; Ullman et al., 2001). They were slightly but significantly less likely to be referred by the EEOC to mediation, and employers were significantly less likely to agree to take part (Moss et al., 2002).
Once they were in court, people with psychiatric disabilities were significantly less likely than people with other disabilities to feel that they were “treated with respect,” that the judge was “fair to both sides,” and that they were satisfied overall with their experience of filing a lawsuit. These differences in perception corresponded to actual differences in the outcomes of the lawsuits filed by the two groups of plaintiffs. Plaintiffs with psychiatric disabilities were only half as likely as those with other disabilities to receive a settlement or favorable court decision, even when important cofactors, such as health status, education, and having a lawyer, were controlled for (Swanson et al., 2006). The data raise the possibility of “justice disparities” in the ADA enforcement system, that is, durable differences in outcomes between cases brought by people with psychiatric disabilities and those brought by people with other disabilities that are not attributable to differences in the legal and factual merits of the cases.
For people whose disabilities are severe enough to place them on the margins of employability, the effects of Title I may be blunted by other
elements of national disability policy. Expansion of eligibility for federal Social Security programs2 made it easier for marginally employable people to get income and health benefits, a phenomenon that some believe was the main driver of the declining employment rates among the disabled in the 1990s (Stapleton and Burkhauser, 2003). Eligibility for these programs required leaving the workforce and proving that one was unable to engage in any substantial gainful activity. Historically, people receiving benefits under these programs encountered substantial disincentives to going back to work. Workers returning to low-wage or part-time work faced the prospect of earning less than they received in benefits. Because Medicare/Medicaid benefits were tied to social security disability eligibility, going back to work could also mean a gap in or total loss of health insurance (Stapleton et al., 2005). Court decisions under the ADA added another wrinkle: Defendants in discrimination cases may use an individual’s application for or acceptance of disability benefits as evidence that the individual is not “otherwise qualified” to work and therefore not protected from discrimination (Cleveland v. Policy Management Systems Corp., 1999).
The government has acted in recent years to reshape Social Security to encourage beneficiaries to return to work and assist them with doing so. Legislation has expanded eligibility to programs that allow people to work and still receive benefits for a time, that allow increased access to vocational rehabilitation programs, that give state Medicaid administrators greater leeway to cover people returning to work from disability, that defer medical eligibility reviews for people trying to return to work, and that have funded advocacy organizations to improve communication between individuals with disabilities and state agencies (Ticket to Work and Work Incentives Improvement Act of 1999). Research is under way to assess the implementation and outcomes of these initiatives.
Despite widespread perceptions (or assertions) that Title I has not “worked,” the empirical picture is fuzzy and mixed. People with disabilities continue to have lower employment rates than other Americans, but whether this is because of or in spite of the ADA is not known. There is evidence that the law improved employment rates for the portion of the disabled population most clearly protected by Title I. Employers know about and are implementing the law but continue to have negative attitudes toward people with disabilities. There is no doubt that the ADA has been
narrowly interpreted by courts and imperfectly enforced by administrative agencies and the judicial system.
In the face of these findings, it is useful to heed the reminder that “Legal protections from discriminatory practice are probably indispensable, but such guarantees cannot be the only strategy toward ending the discrimination and social exclusion faced by Americans with disabilities” (Scotch, 2000, p. 222). The ADA stands as a long-term commitment to integrating people with disabilities into the mainstream of American life. The agencies, courts, lawyers, and employers responsible for fulfilling the U.S. Congress’s promise can do better and do more, but only in the context of a broader social change in attitudes about and behavior toward people with disabilities.
Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)
Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999)
Murphy v. United Parcel Service, 527 U.S. 516 (1999)
School Board of Nassau County v. Arline, 480 U.S. 273 (1987)
Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)
Statutes, Regulations, and Legislative Materials
Age Discrimination in Employment Act, 29 U.S.C. §623 (2006)
Americans with Disabilities Act of 1990, 42 U.S.C. §§12101–12213 (2006)
Education for All Handicapped Children Act of 1975, P.L. 94-142, 89 Stat. 773 (Nov. 29, 1975) (now called the Individuals with Disabilities Education Act and codified at 20 U.S.C. §1400 et seq.)
Fair Housing Amendments Act of 1988, 42 U.S.C. §3613 et seq. (2006)
Rehabilitation Act of 1973, 29 U.S.C. §§791–794 (2006)
The Ticket to Work and Work Incentives Improvement Act of 1999, P.L. 106-170, 113 Stat 1860 (December 17, 1999)
Title VII of the Civil Rights Act of 1965, 42 U.S.C. §2000e-2(a) (2006)
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