“BREAKING DOWN BARRIERS TO EMPLOYMENT FOR PEOPLE WITH DISABILITIES IS IMPORTANT IN ORDER FOR OUR COUNTRY TO FIELD A FULL TEAM AND ENSURE THAT NO WORKER IS LEFT BEHIND” — U.S. SECRETARY OF LABOR THOMAS E. PEREZ

 

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ENFORCES TITLE I OF THE AMERICANS WITH DISABILITIES ACT OF 1990 (ADA) AND SECTIONS 501 AND 505 OF THE REHABILITATION ACT OF 1973, WHICH MAKES IT ILLEGAL FOR EMPLOYERS IN THE PRIVATE, PUBLIC, AND FEDERAL SECTORS TO DISCRIMINATE AGAINST QUALIFIED JOB APPLICANTS AND EMPLOYEES BASED ON THEIR PHYSICAL OR MENTAL DISABILITIES. THESE LAWS ALSO REQUIRE EMPLOYERS TO PROVIDE REASONABLE ACCOMMODATIONS TO JOB APPLICANTS AND EMPLOYEES WHO NEED THEM BECAUSE OF THEIR DISABILITIES, UNLESS DOING SO WOULD IMPOSE AN UNDUE HARDSHIP ON THE OPERATION OF THE EMPLOYER’S BUSINESS.

 

ADDITIONALLY, NEW U.S. LABOR DEPARTMENT REGULATIONS REQUIRE FEDERAL CONTRACTORS – OF WHICH THERE ARE NEARLY 50,000 COMPANIES WITH APPROXIMATELY 200,000 ESTABLISHMENTS – TO SET A TARGET OF HAVING 7% OF THEIR WORKFORCE BE COMPRISED OF EMPLOYEES WITH DISABILITIES.

 

NOT A PRETTY PICTURE

 

ACCORDING TO THE LATEST U.S. CENSUS SURVEY OVER 27 PERCENT OF WORKING AGE INDIVIDUALS WITH A SEVERE DISABILITY ARE WORKING.

 

A Wharton school management study in 2013 identified three key obstacles to hiring disabled workers, such as negative employer perceptions, lack of external hiring support, and lack of internal hiring support, which the Wharton brief says is often a budgetary problem arising from the fact that funds don’t exist for creating internal employer expertise in ”hiring, accommodating, and training people with disabilities.”

 

There are 1.4 million college students with disabilities (NCES, 2009; the latest Harris Survey commissioned by the National Organization on Disability (NOD) and Kessler Foundation showed three-in-five college graduates with disabilities (60%) are not working (2010 Kessler-NOD Survey of Americans with Disabilities, by Harris Interactive).

 

In the U.S. Department of Labor’s official blog, Heidi Shierholz, chief economist at the department, and Kathy Martinez, assistant secretary of labor for disability employment policy, cite the unemployment rate for individuals age 18-64 with a disability averaged almost 19% between 2010 and 2012, compared to 9.3% for those without a disability. Even more troubling, they write, is the 60% of people with a disability who were not in the labor force at all — not receiving unemployment benefits and not working.

 

GOVERNMENT LEADS THE CHARGE

 

ACCORDING TO THE LABOR DEPARTMENT’S LATEST FIGURES (NOT SEASONALLY ADJUSTED), THE 2014 UNEMPLOYMENT RATE FOR PEOPLE WITH DISABILITIES SITS AT 12.3%, COMPARED TO 5.5% FOR PERSONS WITH NO DISABILITY (SEE FIGURE 1). ALSO, THE PERCENTAGE OF PEOPLE WITH DISABILITIES IN THE LABOR FORCE IS 20.1%, COMPARED TO 68.5% FOR PEOPLE WITH NO DISABILITY.

 

Picking up the gauntlet, in September the Department of Labor released a Final Rule in the Federal Register that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973 to encourage federal contractors and subcontractors to hire qualified workers with disabilities.

 

The department also is implementing the recently passed Workforce Innovation and Opportunity Act, signed into law in July by President Obama. WIOA is designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need to compete in the global economy.

 

In the month of October, to aid in its effort to promote hiring of persons with disabilities, and in honor of National Disability Employment Awareness Month, several new initiatives were announced by the Department of Labor. These include: •Approximately $14.8 million in grants for six states to help local American Job Centers improve employment outcomes for youth and adults with disabilities. The grants to California, Illinois, Kansas, Massachusetts, Minnesota, and South Dakota are being awarded as part of the Disability Employment Initiative, funded by the department’s Employment and Training Administration and Office of Disability Employment Policy. These grants will help expand the capacity of local American Job Centers to improve employment outcomes for youth and adults with disabilities by increasing their participation in existing career pathway systems and programs that build on partnerships among local educational institutions, businesses and disability advocates.

 

•Approximately $2 million to advance to improve post-secondary education and employment opportunities for youth with disabilities through the Pathways to Careers: Community Colleges for Youth and Young Adults with Disabilities Demonstration Project.

 

•Approximately $1.85 million to The Viscardi Center, a network of non-profit organizations providing a lifespan of services that educate, employ and empower children and adults with disabilities, for a technical assistance center, which will provide services to encourage and assist targeted employers to employ more workers with disabilities.

 

•The launch of PEATworks.org, a comprehensive web portal to improve employment for people with disabilities through the promotion of accessible technology.

 

•A new public service announcement for the Campaign for Disability Employment, “Who I Am,” that affirms the diverse attributes, skills, and talents that people with disabilities bring to the workplace.

 

These latest initiatives supplements earlier funding for organizations that develop models, provide technical assistance, and share best practices to improve employment opportunities for people with disabilities. The Disability Employment Initiative now supports 37 projects in 26 states.

 

WHERE PEOPLE WITH DISABILITIES WORK

 

AMONG THOSE WITH DISABILITIES WHO ARE EMPLOYED, THE OCCUPATION DISTRIBUTION IS MOSTLY SIMILAR TO THOSE WITHOUT DISABILITIES. WHILE EMPLOYED PEOPLE WITH AND WITHOUT DISABILITIES ARE ROUGHLY EQUALLY REPRESENTED IN ADMINISTRATIVE SUPPORT, SALES, AND CONSTRUCTION OCCUPATIONS, IT’S A DIFFERENT PICTURE IN MANAGEMENT AND PROFESSIONAL/TECHNICAL JOBS, WHERE PERSONS WITH DISABILITIES ARE SOMEWHAT REPRESENTED. IN THE AREAS OF SERVICE, PRODUCTION, AND TRANSPORTATION, THERE IS A HIGH CONCENTRATION OF PERSONS WITH DISABILITIES WORKING IN THESE SECTORS. (FIGURE 2)

 

THE DISCLOSURE DEBATE LINGERS

 

OVER THE PAST 25 YEARS, SINCE THE ENACTMENT OF THE ADA IN 1990, THE BASIC PROTECTIONS FOR DISABLED EMPLOYERS HAVE REMAINED THE SAME. IF YOU HAVE A MEDICAL CONDITION THAT LIMITS HOW YOU PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB, THEN THE EMPLOYER MUST MAKE REASONABLE ACCOMMODATIONS. YOU CAN’T BE DISCRIMINATED BY THE EMPLOYER BECAUSE OF A DISABILITY.

 

“Determining the ‘reasonable accommodation’ needs to be an interactive process, where everyone acts in good faith to come up with what that accommodation might be,” says Tom Harrington, principal, The Employment Law Group. The company works with plaintiffs in disability discrimination cases that fall under the ADA Amendments Act of 2008 (ADAAA). Its attorneys handle cases in the District of Columbia, Maryland, and Virginia.

 

“The harsh reality is that often the disabled, whether it’s a subtle or obvious physical disability, or a mental condition, may feel there is no reason to tell the employer, particularly if an accommodation is not necessary for essential parts of the job,” he adds.

 

Especially for job seekers, the feeling is that disclosing a disability is a “negative.” However, notes Harrington, if you don’t disclose your disability, and then after being hired require an accommodation, the request may not be well received.

 

“While it is a personal choice, if at any time you want to be protected under the ADA, one of the requirements is that the employer knows of the disability,” Harrington explains. The easiest way to handle this is for you to tell your employer.

 

“You need to put them on notice if your disability is ever going to be an issue,” he says. “We understand many employers don’t want to deal with having to make an accommodation, and may treat your disability as a negative factor. But if you need an accommodation, it is incumbent on you to tell the employer.”

 

During the application process, instead of hiding your disability, establish why you are the most qualified candidate.

 

“In most of the cases we handle, the employee has already been hired and is having issues at work related to accommodation,” Harrington says. “A lot of clients with mental conditions that qualify as disability come to us.” These conditions – such as bipolar, depression, or social anxiety – are more problematic in terms of disclosure.

 

“It's a tough balance between privacy and making the disclosure, but you can’t exercise your rights unless the employer knows you require a special accommodation,” he says.

 

Many don’t disclose their disability until they start having performance issues at work. “They’ve been written up, about to be fired, or were fired because of performance issues,” he adds. “They then make belated requests for accommodation.”

 

For example, in the case of someone with bipolar disorder, if the person doesn’t disclose his disability, a flare up is treated as a performance issue. “But it’s really a manifestation of their disability,” Harrington explains. “The accommodation they are seeking is flexible leave, usually considered a reasonable accommodation.”

 

According to Harrington, strong protections are in place that can be exercised.

 

“If you need an accommodation, you should ask for one,” he says. “Engage the employer in good faith to come up with an accommodation that is both reasonable and effective. If the employer doesn’t work with you or is hostile or dragging their feet, or doesn’t want to be bothered, then you can put them on notice.”

 

Making an internal complaint, such as to a human resources executive, invokes your rights.

 

While the overall environment for the disabled worker has gotten better over the past 25 years, there are still a lot of employers that don’t want to be bothered, and are looking for the path of least resistance. They consider it onerous to do what the law requires them to.

 

Almost any company of any size has company-wide policies in place that define a commitment to adhere to these protections. “They are not always vigorously enforced, but management knows they are there, and knows of their responsibilities,” says Harrington.