Disability, Policy, and the Public WorkplaceEquity and Diversity in Public Administration

Introduction

• The class of people that suffer from disabilities is actually much larger than that as the law protects anyone who suffers from physical or mental impairment that significantly limits or restricts a major life activity (EEOC).• Examples from the EEOC:

• Hearing• Seeing• Speaking• Walking• Breathing• Caring for oneself• Learning

• Remember that anyone can become disabled at any time.• Approximately 19% of the U.S. population is disabled according to the United

States Bureau of the Census.

Historical Discrimination and the Disabled Rights Movement

• Buck v. Bell, 274 U.S. 200 (1927)• Virginia created a law that allowed the sterilization of inmates of

institutions in order to promote the “health of the patient and the welfare of society” so long as the person was afforded a hearing to determine whether sterilization served the public interest.

• The Court held that the Virginia law was not unconstitutional given the strength of the review that occurred prior to sterilization.

• Justice Oliver Wendell Holmes was averse to incompetence stating, “being swamped with incompetence…Three generations of imbeciles are enough.”

Historical Discrimination and the Disabled Rights Movement

• The decision in Buck v. Bell was indicative of the view Americans would have of the disabled: “out of sight, out of mind.”

• The disabled rights movement has mirrored the tactics used in the civil rights movement for African-Americans.

• In 1977 disabled Americans conducted sit-ins in government buildings in 10 major cities (this led to the passage of regulations by HEW to implement section 504 of the Rehabilitation Act of 1973).

• In 1978, disabled Americans conducted a protest in which they blocked buses, which were not accessible to the disabled, in the city of Denver (organized by Americans Disabled for Accessible Public Transit (ADAPTS)).

• In the 1980’s, the disabled community would fight alongside members of other minority communities to help pass the Civil Rights Restoration Act of 1988.• Meant to overturn Grove City v. Bell which significantly reduced the effects of discrimination legislation.

• The “Capitol Crawl”• http://www.youtube.com/watch?v=ueQ0TfVGxU4

• Disability pride marches have been held in Boston (1990, 1991) and Chicago (2004).

Public Policy and the Disabled

• Rehabilitation Act of 1973• Section 504 banned discrimination on the basis of

disability by recipients of federal funds.• Prior to this law, the problems of the disabled (unemployment, lack

of education) were viewed as the natural outgrowth of disability.• This Act was the first to recognize that this attitude was a form of

discrimination and to recognize the disabled as a class of people.• Reagan tried to do away with these “burdens on business” through

his deregulation efforts but because of advocacy and action by the disabled community, the doing away with regulations related to disability was halted.

Public Policy and the Disabled: The ADA (1990)

• Title I• This title protects the rights of those who are seeking employment by providing legal protections against discrimination.

• Protects qualified individuals from discrimination in recruitment, hiring, firing, promotion, wage and compensation, and job training.

• Also protects against retaliation from employers who discriminate on the basis of ability when those with disabilities file claims with the EEOC.

• Applies to businesses with 15 employees or more.• This title requires employers to make “reasonable accommodations” for those with disabilities who are seeking

employment.• Examples:

• Providing written materials in a way that accommodates those who may be blind (Braille or sign language interpreters), deaf (audio format, readers), or have minor visual impairments (large text documents).

• “Making workplace accessible to and usable by people with disabilities.” (EEOC)• Requirements

• An employer may ask for documentation of for a reasonable accommodation to verify the disability unless:• The disability and need for accommodation are obvious.• The individual has already provided documentation regarding the disability.

• An employer may offer alternatives so long as it meets the accommodation.• The title does not require accommodations that require an “undue hardship” on the employer.

• What is an undue hardship?• Loosely defined, it means that the accommodation would cause significant difficulty or expense to implement.• It does not include a cost-benefit analysis.

• Discrimination is enforced by the Equal Employment Opportunity Commission.

Public Policy and the Disabled: The ADA (1990)

• Title II• This title ensures that those with disabilities have equal access to government services at the local and state level regardless of

whether they receive federal funding.• “Equal access to civic life.”

• Examples:• Public housing• Courts• Public education• Public transportation• Emergency response

• Title III• Requires public accommodations (businesses that serve the general public) to make their facilities accessible to those with

disabilities.• “Reasonable modifications”

• Allow people with service animals to bring their animals into the business.• Ensure that those who are deaf can be communicated with as easily as others.

• Title IV• Deals with telecommunications (telephone, Internet, television).

• FCC – closed captioning• Title V

• Conditions not considered disabilities:• Sexual behavioral disorders

• Compulsive behaviors such as gambling addiction, kleptomania, substance abuse related to illegal drug use.

Public Policy and the Disabled: The ADA (1990)

• Who is disabled under the Americans with Disabilities Act (1990)?• A physical impairment that substantially limits one or more life activities.• A record of a physical or mental impairment that has substantially limited

major life activities.• A person who is regarded as having such impairment.• Notice that this does not list specific afflictions or disabilities but rather

broadly defines who might be covered under the act.• Opposition• U.S. Chamber of Commerce• National Federation of Independent Businesses• Religious groups

Legal Standards and the Disabled

• Because disability is a class that is covered by legislation, the Court has not articulated any standard as it applies to disability.

• Cases, as you will see, have focused more on interpretation of the meaning of language of the ADA.

Policy Issues and Disability: Unfunded Mandates

• The Americans with Disabilities Act represents one of the largest unfunded mandates in U.S. history.• Unfunded mandate – a directive from the federal government to the

states requiring that they perform certain functions, with no accompanying funds to support those functions.

• In the case of the ADA, not only were no funds afforded to state and local governments who had to retrofit buildings and other facilities, but it afforded a cost on public accommodations (businesses that serve the public) that had to do the same.

• This cost was a large financial burden on states and businesses.

Policy Issues: The Supreme Court and the ADA

• Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) – (7 – 2)• The Sutton twins were denied jobs as airline pilots by United Airlines because their uncorrected eyesight

was worse than the 20/100 standard used.• Glasses corrected the eyesight of the sisters to normal vision.• The Supreme Court decided that any determination of disability under the ADA should consider corrective

measures that mitigate the disability because the language of the ADA stated that the disability “substantially limits” present impairment (not future or hypothetical).

• The Court also reasoned that assessments of disability were individualized and that the disability in question was not substantially limiting.

• The Court decided this on the basis on congressional findings that 43 million Americans were disabled, a number which would be much higher if corrective measures were considered.

• Toyota Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)• Ella Williams was fired from her job as an assembly line worker after missing many days of work.• Ms. Williams stated that her absences and inability to do work were the result of carpal tunnel syndrome

and other impairments.• The Supreme Court decided that she was not considered disabled under the ADA as her impairments did

not substantially limit tasks that are of central importance to a person’s daily life, were not permanent, or long-term.

• This disqualified her as falling under the definition of disabled under the ADA.

Policy Issues and Disability: The ADAAA of 2008

• The Americans with Disabilities Act Amendments Act (ADAAA) of 2008• Defining Disability

• The Act also expands coverage of the ADA by more broadly defining the term “disability” by decreasing the focus on proving disability and increasing the focus on accommodation and access.• Disability “…shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent

permitted by the terms of this Act.”• Also, overturned the Court’s decision that mitigating measures (e.g., medicines) can be used in defining whether a

disability exists.• In other words, the Act forced courts, especially the Supreme Court, to interpret the term “disability” as

Congress intended.• Removed the language “regarded as” from the definition of disability such that a person must not prove

the disability is perceived as substantial.• Defining Major Life Activities

• “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”

• Major bodily functions, including, but not limited to, functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.• Not an exhaustive list.

Policy Issues and Disability: Accommodations

• From 1995 (62%) to 2007 (98%), the percent of transit buses that are lift-equipped or ramp equipped increased by 36%.

Policy Issues and Disability: Income and Poverty

• Disabled Americans early about $2,250/month while severely disabled Americans earn about $1,458 as opposed to $2,539/month for nondisabled Americans.

• The poverty rate among those with disabilities is 12%, while the poverty rate among those with severe disabilities is about 27% compared to the 9% poverty rate of nondisabled Americans.

Policy Issues and Disability: Education

• High School• 25 and older disabled Americans with less than high school

education: 28%• 25 and older nondisabled Americans with less than high

school education: 12%• College• Percentage of disabled Americans with a bachelor’s degree

or higher: 13%• Percentage of nondisabled Americans with a bachelor’s

degree or higher: 31%

Policy Issues and Disability: Unemployment

• 2013 Unemployment Rate:• Disabled: 13.2%• Nondisabled: 7.1%

• Source: U.S. Bureau of Labor Statistics

Disability and the Public Workplace

• Hayes, T. L., & Citera, M. (1995). Staffing for persons with disabilities: What is `fair' and `job related'? Public Personnel Management, 24(4), 413-428.

• Lewis, G. B., & Allee, C. L. (1992). The impact of disabilities on federal career success. Public Administration Review, 52(4), 389-397.

• Mello, J. A. (1995). Employment law and workers with disabilities: Implications for public sector managers and human resources. Public Personnel Management, 24(1), 75-88.

Role Play: Reasonable Accommodation

• Example A: An employee with a hearing disability must be able to contact the public by telephone. The employee proposes that he use a TTY to call a relay service operator who can then place the telephone call and relay the conversation between the parties.

• Example B: A cashier easily becomes fatigued because of lupus and, as a result, has difficulty making it through her shift. The employee requests a stool because sitting greatly reduces the fatigue. This accommodation is reasonable because it is a common-sense solution to remove a workplace barrier being required to stand when the job can be effectively performed sitting down.

• Example C: A crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do from 7:00 to 8:00, or have the workers do nothing.

• Example D: A cleaning company rotates its staff to different floors on a monthly basis. One crew member has a psychiatric disability. While his mental illness does not affect his ability to perform the various cleaning functions, it does make it difficult to adjust to alterations in his daily routine. The employee has had significant difficulty adjusting to the monthly changes in floor assignments. He asks for a reasonable accommodation and proposes three options: staying on one floor permanently, staying on one floor for two months and then rotating, or allowing a transition period to adjust to a change in floor assignments.

Role Play: Documentation of Disability

• Example A: An employee brings a note from her treating physician explaining that she has diabetes and that, as a result, she must test her blood sugar several times a day to ensure that her insulin level is safe in order to avoid a hyperglycemic reaction. The note explains that a hyperglycemic reaction can include extreme thirst, heavy breathing, drowsiness, and flushed skin, and eventually would result in unconsciousness. Depending on the results of the blood test, the employee might have to take insulin. The note requests that the employee be allowed three or four 10-minute breaks each day to test her blood, and if necessary, to take insulin.

• Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested a reasonable accommodation. The documentation provided at that time from the employee's psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. The psychiatrist's letter explained that during periods when the condition flared up, the person's manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes. Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder.

• Example C: An employee gives her employer a letter from her doctor, stating that the employee has asthma and needs the employer to provide her with an air filter.

Conclusion

• The struggle over the interpretation of the ADA and ADAAA represent opportunities to exclude the disabled from the workforce and thus create a less diverse organization.

• Diversity – respect for individuals of different characteristics such as color, race, ethnicity, gender, age, religion, sexual orientation, or way of thinking.• Notice the original working definition does not include disability• Why is diversity necessary?

• Diversity in public administration mirrors the diversity in the population.• Diversity in public administration provides a work environment that is open to a variety of lifestyles and ideas.• Diversity in public administration eliminates the “good old boys” network (similar characteristics, similar values).• Diversity allows administrators to deliver public services more effectively.

• The undermining of laws meant to protect the disabled population may cause a lack of representation of the disabled population thereby decreasing diversity.• See the unemployment rate.

• Why is this a problem?• Policies affecting the disabled have been a political battleground between employers, activists, and the disabled.• The disabled need to be assured a place at the table to have active representation in the debate over these policies.• The disabled may feel hesitant to actively represent the citizenry because it relegates them to a position of

“ambassador” of the disabled.• Equity – all individuals are equal in their moral worth, are entitled to equal treatment under law, and should have

an equal political voice.• Social equity – the fair, just, and equitable management of all institutions serving the public directly or by contract; the

fair, just, and equitable distribution of public services and implementation of public policy; and the commitment to promote fairness, justice, and equity in the formation of public policy.

• There are clear equity issues between the disabled and those who are not disabled in terms of income, poverty, education, accommodation, and unemployment.

• The ADA and ADAAA have closed this gap but there is still work to be done.• How can equity problems be fixed if there is a lack of representation (diversity) in the public workspace?