Disability Discrimination Of Employees

The definition of disabilities is one that has changed over the years. The United States government has influenced these definitions because it either helps or limits the amount of assistance or protection that is allowed. The United States Equal Employment Opportunity Commission EEOC (2018) defines disability discrimination as an employer discriminating against an individual with disabilities who are qualified to do a certain job with reasonable accommodations. (EEOC, 2018)

A person with disabilities is acknowledged as to have a physical or mental impairment that limits the scope of the job description for the job that they are applying for. On July 20, 1990, then President George H.W, Bush put law into place by signing a bill that would mark the end of discrimination of employees with disabilities called the Americans with Disabilities Act (ADA). (Allen, 1994, p. 4)

Mark A. Rothstein reports in his journal article published in the JAMA The Journal of the American Medical Association · June 2015 “Innovations of the Americans With Disabilities Act Confronting Disability Discrimination in Employment”, “The goal of the ADA is to provide employment opportunities for individual Americans with physical or mental disabilities”. (Rothstein, 2015) The law applies to all state and local government agencies as well as private companies that have over 15 or more employees within the company. (Rothstein, 2015)

Valienti also acknowledges that the word ‘substantially’ had been bias by the Supreme Court. (Valenti, 2014) The Supreme Court’s defines a disability as a condition that prevents or severely restricts the individual from doing major life activities and precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities. (Valenti, 2014)

Historical Account

Over the years since the beginning of the ADA, disability discrimination has changed. Many of the employees can find substantial jobs that are available. In the early 1970’s there were several initiatives that sparked the beginning of the disabilities rights movement.

The major voice in this movement at this time was from the Disabled in Action (DIA), a disabilities activist group that helped included folks with disabilities into societal roles. The DIA was founded by Judy Huemann, a graduate from Long Island University, sued the city of New York because she was denied her teaching license because of her disability. (McNeese, 2014) Other such great organization in the beginning was the United Handicapped Federation (UHF), they were founded in Minneapolis and Saint Paul, Minnesota.

The UHF were advocates for better accommodations in transportation, housing, architectural limitations, and employment. (McNeese, 2014) During these trying times the United States was going through many major changes dealing with world wars and having those veterans return with injuries as well. The Rehabilitation Act of 1973 finally passed after being vetoed the first go around by then President Richard Nixon. This law was the groundwork for providing laws that socially discriminated against those with disabilities in the community.

These laws started out the process of making sure buildings and infrastructure was suitable for individuals with disabilities. (McNeese, 2014) A significant part of the Rehabilitation Act of 1973 was section 504 was the very end of the bill where it stated “No otherwise qualified handicapped individual in the United States shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. (McNeese, 2014)

Although this was a great gesture and a step in the right direction this was not inclusive of the hiring practices that were still needed. According to the U.S. Census Bureau (2002) reports that almost one in five Americans self-report some kind of disability, with one in ten experiencing a severe disability. About 8% to 17% of the population between the ages of 20 and 64 have a disability that limits their ability to be employed, and about half that number are disabled to the point where they cannot work or can work only irregularly. (Kager & Rose 2010)

The United States Bureau of Labor Statistics which is a part of the United States Department of Labor reported in 2017 in a “New Release”, “Persons with a Disability: Labor Force Characteristics — 2017 article that 18.7 percent of people with disabilities were employed at this time. (BLS, 2018) The ratio for employment-population for employees with a disability was a staggering 65.7 percent. These ratios for folks with and without disabilities increased dramatically from 2016 to 2017, from this time the unemployment rate decreased from 9.2 percent to 4.2 percent. (BLS, 2018)

Valenti describes the general provisions of the initial Act “some 43,000,000 Americans’ with one or more physical or mental impairments, a number which is likely to increase as the population ages.2 According to Committee reports, the ADA was intended to address a ‘compelling need’ for a ‘clear and comprehensive national mandate’ to prevent discrimination against the disabled. (Valenti, 2014) The BLS includes “Persons with a disability tend to be older than persons with no disability, reflecting the increased incidence of disability with age.

In 2017, 48 percent of persons with a disability were age 65 and over, compared with 16 percent of those with no disability. Overall, women were somewhat more likely to -2- have a disability than men, partly reflecting the greater life expectancy of women. In 2017, the prevalence of disability continued to be higher for Blacks and Whites than for Hispanics and Asians.” (BLS, 2018)

Disability Discrimination Legislation

The laws that were set to protect people with disabilities and put into place were enacted to use these legislative acts to initial and protect individuals with disabilities in the workforce. To the EEOC there is no more important law than the one considered here of Title I of the ADA of 1990 this law makes it illegal to discriminate against a qualified person with a disability in the private sector and in state and local governments. This law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

The law also requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer’s business. (EEOC, 2018) Since the implementation of the ADA a tremendous number of lawsuits and charges were filed with the EEOC on disability discrimination. When the Act began to be heavily enforced in 1992 the EEOC compiled well over 189,000 grievances on disability discrimination.

Consequences of Disability Discrimination

Lawsuits and Monitory Implications

The EEOC averaged around 16,000 complaints a year which was almost a quarter of the cases filed to the EEOC since 1992. EEOC (2018) According to Crampton & Hodge,” This is evident in the $300 million that the EEOC has obtained for ADA violations through its enforcement efforts, which include settlements, conciliation, mediation, and litigation.” (Wooten & James, 2005)

In the journal “Americans with Disability Act (ADA) and Associational Discrimination: Policy and Practice Issues for Employer” written by Gerald E. Calvasina, Richard V. Calvasina, Eugene J. Calvasina, “A notable lawsuit concerning Buffington. PEC Management (d/b/a Burger King), Theresa Buffington was employed by PEC in a restaurant management capacity from December of 2003 until November 2010 (Buffington v. PEC Management, 2014). Buffington also had a son who succumbed to a 12-year battle with cancer in June of 2011. PEC managers knew of Buffington’s son’s condition before or as of the time of her employment with PEC (Buffington v. PEC Management, 2014).

On November 12, 2010, Buffington was terminated for violating company policy for allowing a non-management employee to drive for company business on November 7, 2010 and for ongoing issues related to performance. (Buffington v. PEC Management, 2014). In a deposition given by one of the managers involved in the termination, the manager stated the rule violation was that straw that broke the camel’s back, and because of that rule violation, I had to let her go. (Buffington v. PEC Management, 2014). It was also alleged that the same manager made statements at the termination meeting such as

, We need someone whose head is there 100 percent, We are planning on spending 400 grand to remodel the restaurant, Now you can go spend all your time with your son, and please go spend some time with your son ([ECF No. 36 at 5-6], Buffington v. PEC Management, 2014).

Buffington successfully challenged PEC Managements arguments regarding her performance by convincing the jury that she was never documented for Poor Work Performance ([ECF No 36 at 83] Buffington v. PEC Management, 2014). Buffington was also able to convince the jury that the company had not consistently enforced its use of vehicles policy (Buffington v. PEC Management 2014).

In denying PEC’s request to set aside the jury verdict and award, the court noted that the creditability of statements made by PEC’s manager at the termination meeting was for the jury to decide and, the company’s argument that those statements were nothing more than performance critique and a compassionate off-the-record statement made while parting ways were not enough to set aside the verdict (Buffington v. PEC Management, 2014). The jury awarded Buffington $115,000 in front pay damages, $70,000 in compensatory damages, and back pay damages of $43,156.06. (Calvasina, Calvasina, Calvasina, 2017)

Job satisfaction is extremally important, retaining your employees is key to managing a successful company or organization. When dealing with employees it is ideal to keep their interest and motivation up. With the implementation of the ADA it is imperative to provide realistic accommodations to employees who have a disability that prohibit them from doing a job.

In a journal entry provided by Kim L. MacDonald-Wilson, Ellen S. Fabian, and Shengli Dong titled “Best Practices in Developing Reasonable Accommodations in the Workplace: Findings Based on the Research Literature” starts out by stating that “Since the enactment of the Americans with Disabilities Act, the provision of reasonable accommodations to jobseekers and employees with disabilities has been viewed as an essential component of hiring and retention” (MacDonald-Wilson, Fabian, & Dong, 2008)

The article also outlines that the ADA has described “reasonable accommodations are defined as any adjustments that allow people with disabilities to enjoy equal employment opportunities as long as the required modifications do not result in “undue hardship for the employer”. (MacDonald-Wilson, Fabian, & Dong, 2008)

Lynn Perry Wooten and Erika Hayes James expressed their concern in an article “Challenges of Organizational Learning: Perpetuation of Discrimination Against Employees with Disabilities” published in the Behavioral Sciences and the Law Journal they admit “Although it has been over a decade since President George H. W. Bush signed the ADA of 1990, organizations are still grappling with creating a work environment that accommodates the needs of their employees with disabilities, while leveraging their talents and skills.”(Wooten & James, 2005)

Rothstein was confronting disability discrimination in employment by stating “because of the variety of workplace settings and disabilities, the ADA provides a nonexclusive list of the types of accommodations that may be required: making facilities accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials, or policies, and the provision of qualified readers or interpreters.” (Rothstein, 2015)

References

1. Allen, Jeffery G. (1994) “Successful Job Search Strategies for the Disabled: Understanding the ADA.” (4)
2. BLS (2018) The United States Bureau of Labor Statistics https://www.bls.gov/news.release/pdf/disabl.pdf
3. BUFFINGTON v. PEC MANAGEMENT II, LLP, No. 1:2011cv00229 – Document 140 (W.D. Pa. 2014). (Court case referenced by Calvasina, Calvasina, Calvasina, 2017)
4. Gerald E. Calvasina, Richard V. Calvasina, Eugene J. Calvasina, (2017) ‘Americans with Disability Act (ADA) and Associational Discrimination: Policy and Practice Issues for Employers,’ Journal of Organizational Psychology, Vol. 17, Iss. 1, pp. 9-17
5. EEOC (2018) United States Equal Opportunity Commission https://www.eeoc.gov/eeoc/publications/fs-ada.cfm
6. Karger, Howard & Rose, Steven R. (2010) Revisiting the Americans with Disabilities Act after Two Decades, Journal of Social Work in Disability & Rehabilitation, 9:2-3, 73-86, DOI: 10.1080/1536710X.2010.493468
7. MacDonald-Wilson, K., Fabian, E., & Dong, S. (2008). Best practices in developing reasonable accommodations in the workplace: Findings based on the research literature (link is external). The Rehabilitation Professional, 16(4), 221-232.
8. McNeese, Tim. (2014). Disability rights movement. North Mankato, MN: Abdo Publishing Company.
9. Rothstein, Mark. (2015) Innovations of the Americans With Disabilities Act Confronting Disability Discrimination in Employment. JAMA. 2015;313(22):2221–2222. doi:10.1001/jama.2015.3417
10. Sheats J.D., Brett, “Businesses Benefit from the Perspectives of Their Employees with Disabilities.” SHRM, SHRM, 10 Apr. 2018, www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/pages/businesses-benefit-from-the-perspectives-of-their-employees-with-disabilities.aspx.
11. Valenti, A. (2014). Amendments to the Americans with Disabilities Act: How Will It Change Judicial Consideration of Employees’ Claims of Discrimination’southern Law Journal, 24(1), 89-111. Retrieved from https://login.proxy181.nclive.org/login?url=https://search.proquest.com/docview/1513536612?accountid=13153
12. Wooten, L. P., & James, E. H. (2005). Challenges of organizational learning: Perpetuation of discrimination against employees with disabilities. Behavioral Sciences & the Law, 23(1), 123-141. doi:10.1002/bsl.630