Employment, disability, and the americans with disabilities act issues in law, public policy, and research

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E m p l o y m e n t, D i s a b i l i t y, a n d
th e A m e ri can s w i th D i sab i l i t i e s Ac t


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PSYCHOSOCIAL ISSUES
General Editor
Eric A. Plaut, M.D.
Advisory Board
Solomon Cytrynbaum, Ph.D
Kenneth I. Howard, Ph.D.
Alan A. Lipton, M.D., M.P.H.
Thomas F. A. Plaut, Ph.D., M.P.H.


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Employment,
Disability,
and the
Americans with
Disabilities Act
Issues in Law, Public Policy,
and Research

Edited by Peter David Blanck

N orth we ste rn U n ive r si ty Pre s s

E van ston, I l l i no i s


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Northwestern University Press
Evanston, Illinois 60208-4210
Compilation copyright © 2000 by Northwestern University Press. “Employing People with
Disabilities: Some Cautionary Thoughts for a Second-Generation Civil Rights Statute”
copyright © 1997 by Michael Ashley Stein. Published 2000. All rights reserved.
Printed in the United States of America
ISBN 0-8101-1688-X (cloth)
ISBN 0-8101-1689-8 (paper)

Library of Congress Cataloging-in-Publication Data
Employment, disability, and the Americans with Disabilities Act:
issues in law, public policy, and research / edited by Peter David Blanck
p.
cm.
Includes bibliographical references and index.
ISBN 0-8101-1688-X (cloth : acid-free paper) — ISBN 0-8101-1689-8 (pbk : acid-free
paper)
1. Handicapped—Employment—Law and legislation—United States. 2. Discrimination
in employment—Law and legislation—United States. 3. Handicapped—Legal status, laws,
etc.—United States. I. Blanck, Peter David, 1957–.
KF3469.E48 2000
344.7301'59—dc21
00-008840
The paper used in this publication meets the minimum requirements of the American
National Standard for Information Sciences—Permanence of Paper for Printed Library

Materials, ANSI Z39.48-1984.


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Contents

List of Figures and Tables ix
Preface xi
INTRODUCTION

The Evolving ADA

3

Paul Steven Miller

Part One: Road Map to ADA Title I
CHAPTER I

A Road Map for ADA Title I Research 19
Scott Burris and Kathryn Moss
CHAPTER II

Employing People with Disabilities: Some Cautionary Thoughts for a
Second-Generation Civil Rights Statute 51
Michael Ashley Stein
CHAPTER III

Glass-Ceiling Issues in Employment of People with Disabilities 68

Wendy Wilkinson and Lex Frieden

Part Two: Implementing ADA Title I Law
CHAPTER IV

The Nonevolution of Enforcement under the ADA:
Discharge Cases and the Hiring Problem 103
Steven L. Willborn
CHAPTER V

The ADA Employment Discrimination Charge Process:
How Does It Work and Whom Is It Benefiting? 118
Kathryn Moss


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CHAPTER VI

Compliance with the ADA and Employment of Those
with Mental Disabilities 146
Teresa L. Scheid
CHAPTER VII

Professional Licensing, Screening for Disabilities,
and the ADA 174
Stanley S. Herr

Part Three: The Economics of ADA Title I
CHAPTER VIII

The Economics of the Employment Provisions of the Americans with
Disabilities Act: Workplace Accommodations 201
Peter David Blanck
CHAPTER IX

Employer Accommodation of Older Workers with Disabilities:
Some Empirical Evidence and Policy Lessons 228
Thomas N. Chirikos
CHAPTER X

Estimating the Potential Benefits of the ADA on the Wages and
Employment of Persons with Disabilities 258
Marjorie L. Baldwin

Part Four: Research on Implementation of ADA Title I
CHAPTER XI

Genes in the Workplace: New Frontiers for ADA Law,
Policy, and Research 285
Robert S. Olick
CHAPTER XII

Occupational Injuries among Workers with Disabilities

315

Craig Zwerling, Nancy L. Sprince, Charles S. Davis,
Robert B. Wallace, Paul S. Whitten, and Steven G.
Heeringa

CHAPTER XIII

Assistive Technology in the Workplace and the Americans
with Disabilities Act 329
Heidi M. Berven and Peter David Blanck


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CHAPTER XIV

Attitudes, Behavior, and ADA Title I

356

Mollie Weighner Marti and Peter David Blanck

Part Five: Culture and Policy in ADA Title I
CHAPTER XV

Bodies and Environments: The Cultural Construction of
Disability 387
Douglas C. Baynton
CHAPTER XVI

From Colonization to Civil Rights: People with Disabilities and
Gainful Employment 412
Karen Hirsch
CHAPTER XVII

Avoiding Iron-Door Barriers to the Employment of Persons
with Developmental Disabilities 432
Tom Walz and Lea Anne Boucher
CHAPTER XVIII

Completing Stories

447

Steve Thunder-McGuire
CONCLUSION

ADA at a Crossroads

463

Marca Bristo
Author Index to the Chapters
Subject Index to the Chapters
Notes on Contributors 483

469
477


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Figures and Tables

FIGURES

Chapter I. A Road Map for ADA Title I Research
Figure 1: Dimensions of ADA Title I Policy and Research 22
Figure 2: A Heuristic Model of Multidisciplinary Title I Research 29
Figure 3: Flow Chart of Individual Law Use under Title I 33

Chapter IV. The Nonevolution of Enforcement under the ADA
Figure 1: ADA Employment Cases

104

Figure 2: ADA Hiring and Discharge Cases 106
Figure 3: Disabilities and the Wage Line 112
Figure 4: Marginal Productivity and Margin of Error 113

Chapter XIII. Assistive Technology in the Workplace and the
Americans with Disabilities Act
Figure 1: Patents Issued between 1977 and 1995 Mentioning Physical,
Visual, or Hearing Impairments 336
Figure 2: Patents Mentioning the ADA Classified by Application
and Issuance Year 338
Figure 3: Patents Mentioning the ADA Classified by Type 339
TA B L E S

Chapter V. The ADA Employment Discrimination Charge Process
Table 1: Cases Received by Disability Type 124
Table 2: Nature of Allegation 126

Table 3: Outcome of All ADA Employment Discrimination
Charges Processed and Closed by EEOC and FEPA
Offices through June 30, 1995 128
Table 4: Amount of Benefits 130


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Table 5: New Jobs and Reinstatements Resulting from All ADA
Employment Discrimination Charges Processed and Closed
by EEOC and FEPAs through June 30, 1995 131
Table 6: Benefit Rate by Disability Type 133
134

Table 7: Benefit Rate by Race/Ethnicity and Gender

136

Table 8: High, Average, and Low Benefit EEOC Offices

Table 9: High, Average, and Low Benefit FEPA Offices 137

Chapter VI. Compliance with the ADA and Employment of
Those with Mental Disabilities
Table 1: Sample and Response Rate

156

Table 2: Compliance with the ADA

159
162

Table 3: Organizational Factors Affecting Compliance
Table 4: Compliance Rationales

164

Table 5: Degree of Discomfort with Various Types of Employees 167
Table 6: Assessment of Stigma against Those with Mental Disabilities

168

Chapter IX. Employer Accommodation of Older Workers with Disabilities
Table 1: Job Accommodation Frequencies
Table 2: Selected Health Characteristics

241
244

Table 3: Determinants of Job Accommodation 246
Table 4: Determinants of Work Status at Follow-Up

248

Appendix: Variable Definitions and Summary Statistics 251

Chapter X. Estimating the Potential Benefits of the ADA on the Wages and
Employment of Persons with Disabilities
Table 1: Impairment Groups

261

Table 2: Sample Statistics for Impairment Groups

267

Table 3: Means and Coefficient Estimates of the Employment Function
Table 4: Means and Coefficient Estimates of the Wage Equation 271
Table 5A: Employment and Wage Losses Attributed to
Discrimination (Male) 273
Table 5B: Employment and Wage Losses Attributed to
Discrimination (Female) 275

269


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Preface

Work is a basic ingredient in our culture. . . . The individual with a
disability frequently presents a unique employment problem. If his
impairment makes it impossible for him to meet the performance
requirements of occupations for which he is otherwise qualiÔed . . .
retraining or job-restructuring might be necessary to permit his
entering the society of the work force. If the disabled person is barred
from employment because of the assumptions or fears of those who can
withhold or grant employment, then community re-education is
indicated.

—Esco Obermann (1965, p. 23)

Since Dr. Obermann’s seminal work, A History of Vocational Rehabilitation in
America, and particularly during the past twenty-Ôve years, disability law,
culture, and policy, as re¶ected most directly by the passage of the Americans with Disabilities Act of 1990 (ADA), have undergone a dramatic shift
toward the equal employment of persons with disabilities. Title I of the
ADA, embodying the ADA’s employment provisions, is playing a central
role in enhancing the labor force participation of qualiÔed persons with disabilities and in reducing their dependence on governmental entitlement
programs (Blanck 1998, 1997, this volume).
Yet, on the tenth anniversary of the ADA, systematic information from
multiple scholarly disciplines on the work lives of persons with disabilities
was lacking (Burris and Moss, this volume). The promise of the ADA and
related laws to integrate into society millions of Americans makes this lack of
information troubling. Dramatic positive changes affecting the work lives of
persons with disabilities are occurring in public attitudes and behavior
toward individuals with disabilities in employment, governmental services,
telecommunications, and public accommodations (Blanck 1998).
In 1998 the United States Supreme Court decided its Ôrst case under
the ADA, Bragdon v. Abbott, involving interpretation of the scope of the
xi


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xii

PREFACE

deÔnition of disability under the law (Blanck, this volume; Olick, this volume). In 1999 the Supreme Court ruled in Ôve more cases interpreting the
ADA, each having important implications for the laws deÔnition of disability and its relation to other federal laws. Among other issues, the 1999 cases

involved the ADA and the provision of social security beneÔts and community-based services for persons with disabilities. The importance of these and
other developments is discussed throughout the book, with analysis from
multiple disciplines of the implications for people with disabilities (Wilkinson and Frieden, this volume).
Documentation of ADA implementation from the perspectives of multiple disciplines is necessary to address the growing attitudinal backlash
against disability law and policy implementation (Miller 1997; Stein, this
volume). Some critical of the ADA have stated that the law should be
rewritten to protect only people with “genuine” disabilities (Blanck 1998).
Others argue that there is little deÔnitive evidence that disability law and
policy have resulted in larger numbers of qualiÔed persons with disabilities
participating in the workplace (Rosen 1991; Willborn, this volume).
This volume addresses these and related issues through an examination
of employment, disability, and implementation of the ADA. The contributions to the volume are re¶ective of the recent paradigm shift in disability
policy and law toward individual and civil rights, equal participation in the
democratic process, empowerment, and self-determination (Blanck 2000).

Substituting Information for Myths about Disability
One goal of this volume is to substitute information for the prevalent myths
and misconceptions about persons with disabilities, particularly in the realm
of employment (Blanck 1998). Researchers estimate that people with disabilities make up approximately 20 percent of the total U.S. population,
excluding persons living in nursing homes or other institutions (McNeil
1997). According to Jack McNeil’s 1997 report, Americans with Disabilities,
which is based on U.S. Census Bureau data collected between October
1994 and January 1995, approximately 54 million Americans reported some
level of disability. Approximately 26 million people described their disability
as severe.
Recent data from the U.S. Census Bureau suggest that the employment
rate for people ages 21 to 64 without a disability was 82 percent and 77 percent for those with nonsevere disabilities (reviewed in Blanck 1998). In


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PREFACE

xiii

comparison, only 26 percent of those with severe disabilities were employed.
The presence of a disability is associated with lower earnings. The median
monthly earnings were $2,190 for men ages 21 to 64 without disabilities and
$1,470 for comparable women. For those with nonsevere disabilities, the
median monthly earnings were $1,857 for men and $1,200 for women. For
those with severe disabilities, the median monthly earnings dropped substantially to $1,262 for men and $1,000 for women.
Thus, the presence of a disability is related to a lower likelihood of being
employed, and, when employed, to a substantially lower level of income.
People with disabilities who want to work and who are capable of working
also are less likely to be able to work because affordable private health insurance is not available to them (Blanck 1998).

Communicating Information about
Disability and Employment
Communicating information from multiple disciplines about people with
disabilities is critical to effective ADA implementation in the future. It is
instrumental to the evaluation of employment integration and economic
opportunity for all Americans (Blanck 1998). Policy makers, researchers,
employers, courts, and members of the disability community beneÔt from
this information.
The need to inform ADA stakeholders of the progress toward achieving
equal employment opportunity for all qualiÔed Americans is not unlike that
faced after the landmark 1954 Supreme Court school desegregation decision
in Brown v. Board of Education. After the Supreme Court’s decision,
extensive study was conducted on attitudes and behavior toward school
desegregation policies. Scholars from many disciplines took up the challenge—social psychologists, political scientists, economists, and sociologists—examining the links between historically rooted prejudicial attitudes

and social behavior (Blanck 1998).
An analogous body of multidisciplinary research on employment integration under ADA implementation is needed. The passage of the ADA
alone has signiÔcantly changed biased and unfounded attitudes toward persons with disabilities in American society. This has resulted from the government’s recognition of disabled persons’ civil rights and the acknowledgment
of the prejudice and segregation historically faced by many qualiÔed individuals with disabilities (Baynton, this volume). Beyond these effects, practical


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P R E F AC E

knowledge of employment integration under ADA Title I is needed (Moss,
this volume).

Central Goals of the Present Volume
Employment integration during the initial stages of ADA implementation
poses many challenges that may be addressed through the systematic study of
people with disabilities who grapple with the law on a daily basis (Hall and
Hall 1994). The present investigation has three related goals:
1. to foster multidisciplinary dialogue and research about employment,
disability, and economic opportunity for persons with disabilities;
2. to raise awareness of the work capabilities and qualiÔcations of people
with different disabilities; and
3. to enhance the effective implementation of ADA law and disability policy
by providing information to improve communication about employment
integration, workplace accommodations, and related areas.
To date, the literature has not adequately addressed these issues. Although
criticism of the ADA and disability policy by the press and academia is abundant, little effort has been devoted to communicating their importance to
the future of American society. This volume examines employment, disability, and the ADA implementation from the premise that multidisciplinary

analysis is crucial to complement knowledge about individual civil rights in
these areas.
There is no denying that employment, disability, and ADA implementation warrant careful attention. The ADA is the most comprehensive federal civil rights law addressing discrimination against people with disabilities
in all aspects of their daily lives (Baldwin, this volume; Morin 1990). The
Civil Rights Act of 1964 does not address discrimination on the basis of a
disability. The Rehabilitation Act of 1973 prohibits discrimination against
persons with disabilities by federal contractors and recipients of federal grants
but does not apply to providers of public accommodations or to private-sector
employers. The Individuals with Disabilities Education Act (IDEA) is meant
to ensure an equal and appropriate education to children and young adults
with disabilities. Unlike these prior laws, the ADA prohibits discrimination
against persons with disabilities in employment, governmental and local
services, public accommodations, insurance, telecommunications, and public transportation (Wilkinson and Frieden, this volume).


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P R E F AC E

xv

Overview of This Volume
This volume presents an examination of emerging issues in employment, disability, and ADA implementation. It grew out of the 1997 University of
Iowa Obermann Seminar of the same title. The Obermann Seminar brought
together leading researchers, policy makers, employers, members of the disability community, and others to discuss and examine the issues.
Although many scholars and policy makers have described the import of
the ADA in general (Blanck 1998), prior to the Obermann Seminar little if
any attention had been devoted to multidisciplinary analysis of issues related
to employment, disability, and ADA implementation. Yet these issues have
been the subject of particular discussion and debate, particularly as they

relate to recent welfare and health care reforms (Blanck, this volume).
Today, some employers vigorously lobby Congress to limit the reach of
Title I, in terms of the types of persons covered by the law and the remedies
available under the law. Others oppose provisions that allow for jury trials in
cases of employment discrimination and for compensatory and punitive
damages when employers intentionally discriminate against workers with
disabilities. Some critics express concern over what they characterize as economically inefÔcient, vague, and undeÔned terms and obligations of the
employment provisions of the ADA.
As is the case with any new legislation, questions about ADA Title I
implementation may be raised in terms of its impact on the citizens it is
designed to serve and on those responsible for complying with and enforcing it. This is why the development of information from multiple perspectives relating to the implementation of the law in practice is crucial.
Independent of the civil rights guaranteed by the ADA, this information
helps to deÔne the parameters of the law. It enables ADA stakeholders—
persons with disabilities, employers, and others—to attempt proactive interpretations that make business sense and that transcend minimal compliance
with the law (Chirikos, this volume; Scheid, this volume).
The volume is divided into ¤ve parts designed to explore pressing issues
in the area of employment, disability, and the ADA. The parts examine,
respectively,
1. a “road map” to future multidisciplinary study of employment, disability, and the ADA;
2. legal interpretations of the implementation and enforcement of the
ADA;


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P R E F AC E

3. economic analysis of employment, disability, and the ADA, and related

issues in the area of employment and wage discrimination and the provision of workplace accommodations;
4. research applications on employment, disability and the ADA, exploring areas such as genetic discrimination, professional licensing, and the
use of technology in the workplace; and
5. the analysis of the impact of culture and society on employment, disability, and the ADA.
The varying audiences for the volume include:
• scholars, graduate students, and undergraduate students in the areas of
economics, law, medicine, sociology, history, rehabilitation counseling, organizational behavior, and psychology;
• law school teachers and students studying federal and state disability
law and policy;
• policy makers, persons in government, and advocates in the areas of
welfare, work, and health care reform;
• employers and human resource professionals; and
• employment and labor law practitioners and scholars.

As our society enters the new millennium, these and other individuals
will face critical questions about the workforce of the twenty-Ôrst century,
increasingly comprised of workers with disabilities. Such pressing issues
addressed by the contributors to this volume include:
• will our increasingly diversiÔed and aging workforce include millions
of qualiÔed persons with disabilities? (Baldwin, Stein, ThunderMcGuire, Willborn chapters)
• what will be the characteristics, capabilities, and qualiÔcations of this
workforce? (Baldwin, Hirsch, Scheid, Walz and Boucher chapters)
• what types of workplace accommodations and job supports will be
available to employees of this emerging workforce? (Blanck, Chirikos,
Zwerling et al. chapters)
• how will the dramatic changes that have occurred in the last quarter of
the twentieth century in areas such as disability law, culture, public
policy, and assistive technology shape the emerging workforce of the
next century? (Baynton, Berven and Blanck, Olick chapters)

Discussion of these and many other questions are needed to help deÔne
future legal, research, and policy approaches in the area. Dialogue and study


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xvii

from multiple disciplines are needed to raise awareness and understanding of
the complex issues that underlie attitudes and behavior toward workers with
disabilities.
This volume beneÔted greatly from the dedication and support of members of the Center for Advanced Studies at the University of Iowa, directed
by Jay Semel, who were responsible for the Obermann Seminar series. I am
grateful for the additional support for this project that was provided by the
University of Iowa College of Law Foundation and subgrants from the National Institute on Disability and Rehabilitation Research (NIDRR) and the
Social Security Administration.
This volume is dedicated to the late Esco Obermann, who taught the Obermann Fellows that “you can learn a lot from a cornÔeld.
As always, my work in this particular corn Ôeld could not have been
accomplished without the loving support of my wife, Wendy, and our four
children, Jason, Daniel, Albert, and Caroline.
—Peter David Blanck

References
Americans with Disabilities Act of 1990, 42 U.S.C. § § 12101–12113.
Blanck, Peter David. 1991. The Emerging Work Force: Empirical Study of the
Americans with Disabilities Act. J. Corp. L. 16:693.
———. 1992a. Empirical Study of the Employment Provisions of the Americans
with Disabilities Act: Methods, Preliminary Findings and Implications. N.Mex.

L. Rev. 22:119.
———. 1992b. On Integrating Persons with Mental Retardation: The ADA and
ADR. N. Mex. L. Rev. 22:259.
———. 1994. Employment Integration, Economic Opportunity, and the Americans with Disabilities Act: Empirical Study from 1990–1993. Iowa L. Rev.
79(4):853–923.
———. 1997. The Economics of the Employment Provisions of the Americans
with Disabilities Act: Part 1: Workplace Accommodations. DePaul L. Rev.
46:877–914.
———. 1998. The Americans with Disabilities Act and the Emerging Workforce. Washington, D.C.: American Association on Mental Retardation.
———. 2000. Civil War Pensions, Civil Rights, and the ADA. Forthcoming.
Blanck, Peter David, and Mollie W. Marti. 1997. Attitudes, Behavior, and the
Employment Provisions of the Americans with Disabilities Act. Villanova L.
Rev. 42:345–407.


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P R E F AC E

Bragdon v. Abbott. 524 U. S. 624 (1998).
Brown v. Board of Education. 347 U.S. 483 (1954).
Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e–2000e-17.
Hall, Francine S., and Elizabeth L. Hall. 1994. The ADA: Going beyond the Law.
Acad. Mgmt. Exec. J. 8:17.
Individuals with Disabilities Education Act, Pub. L. 101–476.
McNeil, Jack. 1997. Americans with Disabilities: 1994–95. U.S. Census Bureau—
Household Economic Studies Current Population Reports, P70-61 (Sept. 16).
Miller, Paul Steven. 1997. The Americans with Disabilities Act in Texas: The

EEOC’s Continuing Efforts in Enforcement. Hous. L. Rev. 34:777, 778.
Morin, Elizabeth C. 1990. American with Disabilities 1990: Social Integration
through Employment. Cath. U. L. Rev. 40:189, 201–2.
Obermann, C. Esco. 1965. A History of Vocational Rehabilitation in America. Minneapolis, Minn.: T. S. Denison.
Rehabilitation Act of 1973, Pub. L. 93–112.
Rosen, Sherwin. 1991. Disability Accommodation and the Labor Market. In Disability and Work: Incentives, Rights, and Opportunities, ed. Carolyn L. Weaver, pp.
18, 22. Washington, D.C.: AEI Press.


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Introduction
The Evolving ADA
Paul Steven Miller
The work of today is the history of tomorrow, and we are its makers.
—Juliette Low, founder of the Girl Scouts

T

he passage of the Americans with Disabilities Act of 1990 (ADA)
marked a victory in the ongoing struggle of over 49 million people

with disabilities to overcome the barriers that prevent their full participation in American society.1 Since its enactment, the ADA has provided a powerful means to increase workplace equality, promote social integration, and
enhance the fundamental dignity of people with disabilities. Yet the work necessary to fulÔll the objectives of this landmark law is only beginning.
Federal agencies and the courts need to continue providing guidance to
employers and employees through technical assistance, enforcement activities,
and the development of case law. These efforts, in tandem with research, education, and advocacy from the disability community, will gradually begin to
change attitudes about people with disabilities.
This book represents the Ôrst major discussion and compilation of employment, disability policy, and the ADA from multiple research disciplines. In his
preface to this volume, Peter David Blanck has delineated the primary goals of
this book: to substitute information from multiple perspectives for myths about
disability, to communicate this information to ADA stakeholders, and to
enhance the implementation of the employment provisions of the ADA. To
help examine these issues, my task in this introduction is to highlight the evolution of the ADA after the law’s tenth anniversary.
3


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4

P AU L S T E V E N M I L LE R

Employment, Disability Policy, and the ADA
The ADA is about independence, empowerment, and integration for disabled
people. Like women, people of color, and religious minorities, people with disabilities have had to ¤ght for the recognition of their civil rights, battle to get
legal protections, and struggle to become integrated in society. Nowhere is this
challenge more visible than in their efforts to enter and succeed in the workplace (Burris and Moss, this volume). The goal of the ADA is to allow qualiÔed
people with disabilities to be hired, promoted, retained, and treated equally,
instead of being excluded from work based upon the fears, myths, and stereotypes associated with their disabilities.
Gradually, the ADA is changing attitudes about people with disabilities and
recasting public policy and case law to re¶ect a different concept of disability

(Marti and Blanck, this volume). Where once a medical model of disability
based on pity and charity guided public policy, now gradually public policy is
being guided by a civil rights model of disability based on ability, value, and
pride (Walz and Boucher, this volume). As a result, people with disabilities are
becoming more fully integrated into American life and society.
Today, nearly a quarter century after the enactment of Section 504 of the
Rehabilitation Act and ten years since the passage of the ADA, many physical
and attitudinal barriers are crumbling, and people with disabilities are increasingly valued for their abilities instead of pitied for being different.2 Public policy no longer equates difference with uselessness. Since the passage of the ADA,
more and more people with disabilities are moving off government beneÔts,
entering the workforce, and becoming taxpayers. According to the Census
Bureau, in 1994, two years after the ADA’s employment provisions took effect,
approximately 800,000 more severely disabled individuals were working than
were working in 1991.3 In addition, as educational laws and policies have
become more inclusive, greater numbers of people with disabilities have prepared for and pursued higher education.4 As a result, more qualiÔed individuals
with disabilities are entering the job market today than in previous years.
Despite the gains made since the passage of the ADA, people with disabilities continue to have higher unemployment rates, and a greater percentage live
in poverty than any other group in American society.5 Almost all disabled people are interested in and willing to work, and many have job skills. Yet discrimination and prejudice are still cited most often by disabled people as the reason
they do not have a job (Baldwin, this volume).6 Despite legal protections, prej-


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TH E E V O L V I N G A D A

5

udice and bias continue to exist and have a tremendous in¶uence on people
with disabilities’ ability to work and succeed.7 The ADA requires that employment decisions be made based upon the merits of an individuals qualiÔcations,
regardless of disability.
The high unemployment rate for people with disabilities is a complex

problem with multiple causes. In addition to the problem of discrimination and
bigotry in the workplace, many people with disabilities must contend with
inaccessible job sites and public transportation systems. While the ADA
addresses the issue of accessibility in public accommodations,8 public transportation,9 and access to the telephone system for people who are deaf, hard of
hearing, or have speech disabilities,10 modiÔcation of those systems is taking
place over time. While future changes in the infrastructure mark positive steps
forward, they will not help somebody who is looking for a job today. Equally
important is the inability of many disabled people to acquire adequate and
affordable health care from an employer or in the private marketplace. Often,
qualiÔed disabled people who want to work choose not to enter the job market
because they fear giving up or not being able to replace their Medicare or other
government health beneÔts (Bristo, this volume).

The Need for Diverse Study of Employment,
Disability, and the ADA
The ADA removes many barriers which have previously excluded people with
disabilities from the workplace; it contains broad language prohibiting discrimination against a qualiÔed individual with a disability” in hiring, promotion,
discharge, compensation, and other terms and conditions of employment.11 An
individual with a disability is deÔned as a person with a physical or mental
impairment that substantially limits him or her from performing a major life
activity; a person with a record of such an impairment; or a person who is
regarded as having such an impairment (Wilkinson and Frieden, this volume).12 The ADA requires that a covered employer provide reasonable accommodations for qualiÔed individuals with disabilities if such accommodations
do not impose an undue hardship on the employer.13
The ADA’s duty of reasonable accommodation has allowed many people
with disabilities to gain and maintain employment without causing much
difÔculty for employers (Blanck, this volume). The vast majority of reasonable
accommodations are inexpensive.14 The President’s Committee on Employment


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P AU L S T E V E N M I L LE R

of People with Disabilities reports that the cost of making an accommodation
averages around $200 per employee with a disability, with many accommodations
costing less than $50.15 Providing a reasonable accommodation does not mean
that an employer must hire a second person to do the disabled person’s job. The
key to making a reasonable accommodation work is often creativity and common
sense, not cost (Chirikos, this volume). Inherent in implementing the ADA is the
creation of new ways of thinking and new practices. Studies indicate that disabled
employees perform as well on the job as nondisabled employees.16 Yet despite the
relative ease and low cost of most accommodations, many employers harbor stereotypes and fears over the cost of reasonable accommodations and the perception
that they will disrupt the workplace.
An employer’s responsibility to provide an accommodation to a worker
with a disability is limited by “undue hardship.”17 Implied in this notion is the
fact that the employer will need to bear the cost in providing the accommodation, as long as it does not impose an undue burden on the employer after considering the size and Ônancial resources of the business. Accommodations that
may create an undue hardship for a small auto parts shop may not create an
undue hardship for General Motors.
The ADA’s contextual deÔnitions of disability, reasonable accommodation, and undue hardship lie at the core of the statute’s ability to respond to discrimination on an individualized basis. The ¶exibility embraced by the ADA is
necessary to take into account the wide range of different disabilities, and the
different Ônancial resources of employers to pay for such accommodations. Not
every disability is manifested in the same way, and different disabilities may
require different accommodations depending on the degree of limitation and
the job in question.
The ADA is structured to take into account the factual circumstances of
each case in order to address the underlying discrimination encountered by the
individual. The law does not lay out an all-inclusive list of disabilities that are
covered by its provisions since such a list would have to be based on assumptions, which may be incorrect or inapplicable, about how those disabilities may

affect an individual’s ability to function. Rather, the law’s coverage is extended
to all individuals who Ôt within one of the three prongs of the deÔnition of disability.18 The ảuidity of this deÔnition requires employers as well as judges to
set aside their preconceived notions about individuals with disabilities and evaluate each person based on his or her own abilities and circumstances. And yet
the law’s ¶exible structure is sometimes blamed for failing to provide clear
answers to all situations (Willborn, this volume).


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TH E E V O L V I N G A D A

7

The ADA has been criticized for not offering easy solutions and for being
difÔcult to interpret, because of its apparent lack of clear deÔnitions about who
is covered by the law and what is required as reasonable accommodation.
However, because different disabilities create different accommodation needs,
deÔnitiveness is simply not possible or feasible as a way of responding to the
kind of discrimination that disabled people face. Similarly, every job has unique
essential functions. The lack of a simplistic one size Ôts all approach to many
aspects of the ADA has led courts to grapple with issues of implementation
(Burris and Moss, this volume).
The implementation of the ADA is at a crucial stage right now. It is important that courts seek to embrace the underlying vision of the ADA. Yet, in the
absence of a sound research base, courts are often construing the ADA far too
narrowly and excluding from its protection many victims of real disability discrimination.19 There has been much litigation and case law concerning the
threshold question of whether an employee has a disability that is covered by
the law.20 The deÔnitional issue of showing that one is disabled is critical
because, without such a showing, one is not protected by the law and thus not
entitled to any accommodation. Some courts are Ônding that people with various types of cancer, diabetes, speciÔc learning disabilities, major depression,
and other signiÔcant impairments fall outside the deÔnition of individual with

a disability and are unprotected by the ADA.21
Similarly, some courts have interpreted the term qualiÔed in an equally
narrow manner. For example, despite the statute’s clear language, which applies
the ADA to the “terms, conditions, and privileges” of employment, including
employee beneÔts,22 courts have nonetheless thrown out cases challenging discrimination in post-employment beneÔts like disability insurance and health
insurance.23
By narrowing the ADA’s scope, disabled people who want to work and
need reasonable accommodations are excluded from protection. Would-be
disabled plaintiffs are put in a catch-22 situation. On the one hand, if an individual is functioning too well on the job, he or she may be found to fall outside
the ADAs deÔnition of disability, and thereby be unprotected. On the other
hand, if an individual proves that his or her impairment is severe enough to get
over the hurdle of qualifying for protection, he or she may be deemed to be so
impaired as not to be qualiÔed to perform the essential functions of the job.
Similarly, the evidence the individual submits to establish that he or she is disabled may be used improperly against the individual in determining whether or
not he or she is qualiÔed, and vice versa.