On 25th ADA Anniversary, the Milestones and Challenges

Pregnancy discrimination claims, ‘perceived disability' claims on the rise

By Dana Wilkie Jul 23, 2015
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In the 25 years since President George Bush signed the Americans with Disabilities Act (ADA), the landmark law has been amended, expanded and debated in pivotal lawsuits before the U.S. Supreme Court.

The act, which turns a quarter-century old on July 26, prohibits discrimination against people with disabilities in employment, transportation, public accommodations, commercial facilities, telecommunications, and state and local government services.

President Barack Obama on July 20 celebrated the anniversary of the ADA, which he said has ushered in a “bright new era of equality, freedom and independence” for millions of Americans. He said his father-in-law, Fraser Robinson, had to deal with many challenges after he was diagnosed with multiple sclerosis in his early 30s and needed to use crutches.

More Training, More Jobs Needed

Jonathan Segal, a partner at Duane Morris LLP and an ADA expert, said the Equal Employment Opportunity Commission (EEOC) has done a good job of educating employers about accommodating workers with disabilities and has been aggressive about enforcing the ADA. On the other hand, he said, “more training of managers is necessary and the EEOC can help in terms of [providing] educational materials to combat disability-based stereotypes, particularly with regard to mental disabilities. There is still unwarranted stigma with regard to emotional conditions.”

Steve Soroka, CEO of SourceAmerica, a nonprofit that matches people with disabilities to jobs, said the ADA hasn’t done enough to help Americans who are disabled find employment. According to the U.S. Bureau of Labor Statistics, the unemployment rate for people with a disability was 12.5 percent in 2014, about twice the rate of 5.9 percent for those with no disability.

“Despite both small and big gains that have resulted from the ADA, there’s still much work to be done,” Soroka said. “Equal access to employment opportunities for people with disabilities remains a big issue. Nearly 80 percent of people with a significant disability do not have jobs.”

People with a disability have a physical or mental impairment that affects one or more of their major life activities, such as walking, bathing, dressing, eating, preparing meals, going outside the home or doing housework.

About 56.7 million people—19 percent of the population—had a disability in 2010, according to a broad definition of disability, with more than half of them reporting the disability was severe, according to a comprehensive report on this population released today by the U.S. Census Bureau.In 2013, West Virginia had the highest state percentage of civilian noninstitutionalized people with disabilities at 20.2 percent, while Utah had the lowest at 9.5 percent. The median annual income for people with a disability was $20,885. Median annual earnings for those without a disability was $30,928.

Despite the ADA, which imposes penalties on those who violate it, discrimination against people with disabilities continues, as is evident from court rulings that have found workers lost jobs, weren’t hired or weren’t promoted because of their disabilities.

ADA Updates

In 1999’s Sutton v. United Air Lines, the U.S. Supreme Court limited the definition of disability. The court determined that in order for a claimant to establish that an employer violated the ADA, the claimant had to prove that the employer regarded the worker as being “substantially limited” in a major life activity. This often proved a difficult threshold to meet because in most instances, an employer viewed a person’s physical or mental impairment as preventing that person from doing a specific job, but didn’t necessarily perceive the person as being generally impaired.

Under the ADA Amendments Act (ADAAA) of 2008, that changed. Now, claimants need only prove that an employer took a job action against them—or refused to hire them—based on the employer’s view that the individual had an actual or perceived medical impairment, whether or not that impairment limits a major life activity.

“The ADAAA considerably broadened the definition of disability,” said Jonathan R. Mook, an attorney with Alexandria, Va.-based DiMuroGinsberg PC and a nationally recognized ADA authority. “With the ADAAA expanding who is covered under the statute … there is no question that we will see an increasing number of persons claiming the protections of the ADA, and courts recognizing their rights.”

Meanwhile, pregnancy discrimination claims are growing at a faster rate than any other protected category. Employers can be liable for pregnancy discrimination under the ADA, as well as Title VII of the Civil Rights Act of 1964, the Patient Protection and Affordable Care Act, the Family and Medical Leave Act, and the Pregnancy Discrimination Act. Pregnancy discrimination claims filed with the EEOC grew by 35 percent from 1997 to 2007.

Segal said there’s also been a steady increase in what he called “perceived disability" claims. Such claims allege that an employer took a job action against a worker, or refused to hire an applicant, based on the employer’s perception that the worker or applicant was disabled, when in fact he or she wasn’t.

“It is easy, perhaps too easy, to allege a perceived disability,” he said. “A well-intended question by a manager as to whether an employee has a physical or emotional problem may be the sufficient predicate for an ADA perceived disability claim.”

A classic example of this, Segal said, is when a manager says to a subordinate: “I am worried about you. You seem down. Are you depressed?”

“The unspoken response [by the worker] might be: ‘Not anymore, since you’ve given me grounds to file a perceived disability claim by asking that caring question,’ ” Segal said.

The nation’s smaller employers are more likely than larger ones to offer job flexibility that can accommodate workers with disabilities, including working at home periodically and having control of when to take breaks. This is among the findings in a national report released Oct. 1, 2014, by the Families and Work Institute and the Society for Human Resource Management.

What’s Next

The EEOC will commemorate the anniversary of the signing of the ADA into law on Thursday, July 23, because the actual anniversary date falls on a Sunday.

As part of the ADA celebration, Obama announced a collaboration between the Justice Department and the EEOC that will streamline investigations of discrimination complaints and boost outreach and training. In August 2015, the Social Security Administration will award $20 million to organizations that help people with disabilities understand the work incentives available under the Social Security Act and encourage them to return to the workforce. And the Federal Transit Administration will release guidance this summer on ADA requirements for transportation facility designs, bus and rail services, and paratransit services for the disabled.

Dana Wilkie is an online editor/manager for SHRM.
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