New: Is The Employment Disability Law Working?

Harry Brill
Wednesday December 06, 2017 - 10:44:00 AM

Among the serious problems that disabled workers encounter is that during difficult economic times they are among the first to lose their jobs. Their unemployment rate is currently in the double digits. As a result, the record shows, there has been a substantial increase in applications for social security disability benefits to replace their lost jobs.

Now it looks like the reverse is also down the road. President Trump's budget proposes a $65 billion dollar cut in the disability program. Undoubtedly, these cuts, which would limit the number of recipients, will appreciably increase the competition for scarce jobs among the disabled. Currently, only 41 percent of the disabled from ages 21-66 are employed compared to 79 percent of the non-disabled. And disabled persons who are fortunate enough to find work average about $9,000 less annually than other workers.

A major hurdle disabled people confront is that they are victimized by employment related discrimination. To address this problem Congress in 1990 passed the Americans for Disability Act, which was signed by President George H. Bush. The enforcement of this law has been a real challenge.  

It is widely assumed that the marginal labor force status of the disabled is due to the constraints that their impairments cause. However, the main problem that they confront is how their difficulties are interpreted by others, particularly by employers. The most appropriate words for understanding the misinterpretations are the twin problems of "business self- interest" and "prejudice". Business tends to assume that a disability is almost always a handicap to performing a job adequately and that therefore if a disabled employee is hired a lower wage is appropriate. 

But even such a serious disability as being paralyzed from the waist down does not necessarily rule out the ability to do a good job. Consider FDR's disability. During his entire presidency, and even before, he was paralyzed from the waist down. For those with a severe mobility problem, one important option that could benefit employers as well as disabled employees include the opportunity to work at home. Already, 24 percent of employed people do at least some or all their work remotely. Customer service positions and many technical and computer related jobs are among the paid tasks that can be done at home. Clearly, almost all disabled persons could hold a job and perform adequately if employers provide the opportunities. 

However, rather than assuring that the ADA is enforced, the majority on the Supreme Court has been a major barrier. Reflecting its pro-business perspective, the court ignored the intent of Congress. The Supreme Court on four occasions defined disability so narrowly that it virtually vitiated the law. As a result, according to the American Bar Association, employers won over 90 percent of the lawsuits. In one year, the Association reported, employers prevailed in 94.5 of the several hundred cases heard. 

As a distinguished law professor observed, the law served as a windfall for employers. The abominable results were widely publicized in the media which galvanized considerable protest. The political pressure encouraged Congress to add amendments to the law that would define disability broadly. 

But first, the additional amendments to the ADA, which although a significant improvement, also contains a serious shortcoming. Although business is required to make reasonable accommodations for disabled employees, they are not compelled to do so if the employer believes it poses a serious inconvenience or expense to the business. But how much is a high expense? Since business interests were among those who crafted the revisions, it is not surprising that the final product is less than perfect. 

Also, it took a long while for the new legislation to take effect. The revised law, Americans with Disabilities Act Amendments Act (ADAAA), was signed by President Bush in September 2008. But the EEOC regulations to guide the implementation of the legislation were not approved until March 2011. This postponed the implementation of the law for 2 1/2 years. It also has taken the courts longer than usual to handle the post-amendment cases. 

But despite the delays, the changes and additions to the law have had a major positive impact. In the district court cases decided by the judges, the decisions favoring employers dropped from 74.4 percent to 45.9 percent. For the first time employers have been losing over half the cases. Congress had approved the revisions almost unanimously. The impact of the new amendments combined with strong bipartisan support has resulted in improving the odds for the disabled appreciably. 

However, we shouldn't be trapped by a culture of low expectations. That business prevailed in 45.9 percent of the cases is still too high. As the record shows, the Democrats are more likely than the Republicans to rule in favor of disabled Plaintiffs. But President Trump has been nominating to the federal judiciary more reactionary Republican judges. On the other hand, since there are now over 850 federal judges appointed for life, Trump will only be able to replace a limited number. Also, for Trump to triumph by nominating reactionaries to the federal courts requires a majority vote of the Senate. Since the Trump administration is making so many unpopular decisions, the chance of the Republicans losing their majority status in the Senate is good. 

But to reduce the Republicans in Congress to a minority status will not happen by itself. Much depends on the active involvement of many citizens who care about making a serious difference. Are you among them? If so the opportunity to achieve major gains is considerable, which include increasing the job opportunities for those unjustifiably considered physically or mentally incapable of doing a good job. It is also essential to assure that these workers are not stereotyped to justify lower and unequal compensation.