Disability Discrimination: Counsel Your Leaders to Do What’s Right, Not Just What’s Legal

By Joe Jones, Ph.D., SHRM-SCP Oct 3, 2016
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In recognition of National Disability Employment Awareness Month, here are some facts and figures to consider. 

In 2015, there were 26,968 charges of disability discrimination filed through the Equal Employment Opportunity Commission (EEOC)—making up 30 percent of all charges of discrimination. The number of disability-based discrimination charges has increased by over 12,000 since 2005. Just this year, the Lowe's home improvement store chain settled an $8.6 million nationwide disability discrimination lawsuit filed by the EEOC over the firing of thousands of workers with disabilities.

At the same time, individuals with disabilities are underrepresented in the workforce. In 2015, according to the Bureau of Labor Statistics, 17.5 percent of individuals with disabilities were employed. Comparatively, 65 percent of people without a disability were employed. In other words, a higher percentage of individuals with disabilities were unemployed in 2015, compared to individuals without disabilities. 

Several factors could explain the rise in the filing of discrimination charges: People with disabilities are now less hesitant to submit claims, disability support groups are doing more outreach on employee rights, and laws and regulations have changed, while, unfortunately, employers continue to discriminate against people with disabilities. 

One explanation for the low employment percentage is that individuals with disabilities are not required by law to report their disabilities if they are not job-related. Also, some jobs may truly have essential functions for which accommodations cannot be made, so therefore no individuals with disabilities could be employed there. But even taking both of these into account, when one looks at the number of EEOC charges filed, the number of cases lost or settled by employers like Lowe's, and the gap in employment of individuals with disabilities, it appears that this is not just an issue of nonreporting or being unable to accommodate for essential functions. 

Regardless of the reasons, employers and HR professionals should be concerned about the potential for costly discrimination lawsuits. But they should also think of employing individuals with disabilities not as a risk to mitigate, but as a strategic opportunity to leverage. 

Establishing fair hiring and promotion practices to eliminate the potential for discrimination of any kind is, of course, sound legal practice. It's also strategically valuable. It gives employers and HR professionals the opportunity to hire people for positions based solely on the determination of who is best qualified for a job, not on personal biases or other matters that have nothing to do with job performance. Making unbiased decisions about employees or potential employees is more than just a way to stay out of legal trouble. 

Building an inclusive work culture also encourages employee engagement and retention. Employees who feel that the organization's hiring and promotion decisions are based on job-related competencies—rather than on who does or doesn't use a wheelchair—are more likely to trust organizational leadership, which is a key driver of retention. Employees in organizations where there is even a suspicion of discrimination may be less engaged and less interested in supporting the organizational mission. 

There are positive benefits that can extend to outside the organization as well. Embracing the potential value of individuals with disabilities and giving them an environment in which they can thrive sends a message to customers and stockholders that fairness and equality are core values in your company. 

The critical competency of Consultation involves helping organizational business partners gain a better understanding of the strategic values and potential risks associated with human capital and organizational culture. It's HR's role, therefore, to analyze business challenges and consult with leaders about specific organizational interventions that can support individuals with disabilities and ensure that they are hired fairly and treated properly in the workplace. Having a conversation about disabilities is not always easy. But learning to guide leadership regarding sensitive situations is a critical strategic business practice, a proactive way to reduce legal risk and the right thing to do.

To increase your strength in the area of Consultation, check out the SHRM resources listed below.

Two-day seminars:

General competency guidance: The SHRM Competency Model

 Joe Jones, Ph.D., SHRM-SCP, is director of HR competencies and resources research for SHRM. 

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