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The ADA at 29: Much Progress, Much Remains

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Jul 26, 2019

Today, America celebrates the anniversary of the Americans with Disabilities Act (ADA). Signed into law by President George H. W. Bush on July 26, 1990, this landmark legislation guaranteed access to housing, public establishments and employment opportunities for millions of citizens with disabilities. While tremendous progress has been made in the last 29 years, there is still much work to be done in ensuring that individuals with disabilities have equal access to the workplace. Then and only then, will the ADA achieve President Bush’s vision of full equality and inclusion.

Since the passage of the ADA, and as cases challenging the lack of access or outright discrimination against disabled Americans wound through the courts, many cases of employment discrimination were dismissed due to the applicant’s failure to prove they were a person with a disability. With the passage of the ADA Amendments Act (ADAAA), relief was brought to Americans with disabilities. The ADAAA provided clarity and guidance for the human resources professional to better understand if a worker was a covered person with a disability. HR professionals could now better determine what sorts of conditions rose to the level of being a major life activity and a major bodily function.

With new understanding through the ADAAA about who should be covered, coupled with advancements in technologies, both HR professionals and employment law practitioners were better able to advise their business counterparts to provide for inclusion and accommodation of workers with disabilities.

 Most disabled are unemployed

Yet, almost 30 years later, people with disabilities remain the largest group of unemployed Americans with the employment to population ratio at only 19.1% as compared to 65.9% for those without a disability So how can corporate teams work together to ensure their workplace and their policies are aligned with the ADA’s vision of equality and inclusion?

In this tight labor market, employers are trying to attract and retain talent. This includes workers with disabilities in part because they make up one of the few existing underemployed talent pools. However, one of the greatest areas of legal exposure for employers continues to emanate from the ADA and its amendments. This area of the law remains the most difficult for employers, HR professionals and even employment lawyers, to navigate. There is often confusion surrounding the intersection of the ADA, the Family Medical Leave Act (FMLA) and even state laws.

An economic equality statute

Starting with the premise that the ADA is, at its core, an economic equality statute, an employer’s basic obligation is to provide equal opportunity for a disabled individual to be considered for the job he or she holds or desires; enable the employee to perform the essential functions of a job an employee already holds; and to provide equal opportunity for an individual to enjoy equivalent benefits and privileges of employment. This is achieved by providing reasonable accommodations to “qualified individuals with a disability” as defined by the Act. This includes providing access for a disabled employee or applicant, unless doing so is an undue hardship for the employer or creates a direct threat to workplace health or safety.

The most important and basic steps an employer can take to prevent exposure is to engage in the interactive process. That is, meeting and discussing with an employee or applicant to determine what, if any, reasonable accommodation, he or she might need to perform the essential functions of the job. Failure to simply talk to the employee or applicant is what gets many employers in trouble and can lead to an increased risk of litigation. Often this falls to supervisors and other management personnel. The challenge is that many managers lack the skills or even the basic understanding of their obligation and unknowingly skip this step, opening the employer up to risk. This is where HR, through guidance and training, plays a significant role in protecting the business.

Train and cross-train

The movement toward unconscious bias training and prevalence of diversity and inclusion professionals at major corporations is on the rise in America. However, even amidst the movement for more diversity and inclusion, the topic of inclusion for people with disabilities is cited as the last area of focus for most corporate inclusion programs. According to the 2015 annual CEO Survey by PWC, only 7% of diversity and inclusion strategies are aimed toward people with disabilities, while the largest share — 33% — were geared towards gender diversity. This study clearly reveals American corporations are in dire need of increasing their disability recruitment efforts to leverage the benefits obtained by hiring talented and productive disabled individuals.

In the three decades since the passage of the ADA, there has been a positive spike in the number of employers who are sincere in wanting to make sure employees with disabilities are provided the accommodations they need to do their work. Creating silos for the responsibilities of educating employees about accommodations can preclude so many chances for naturally occurring disability related “work-arounds” to occur. However, cross-departmental training and skill building that addresses the varied responsibilities, biases and roles for professionals in HR, recruitment, legal, IT, facilities and others are key to success. Inclusion starts and works when all parties to the solution are included. This was the ADA’s intent.

By making training interactive and mandatory, or by bringing in expert accommodations consultants, employers can retain these workers and reduce ADA claims.

Eliminate electronic barriers

HR departments should have a heightened awareness on how barriers to access can prevent employers from finding the right candidate, and potential employees from finding the right position. Employers can make easy updates to the recruiting process that remove technology-based obstacles that stop unknown numbers of future applicants who use assistive technology from ever applying to open positions. Some of these solutions include: adding a dedicated email address and phone number, as well as adding accessibility checking protocols to all electronic documents used in the application and onboarding process.

These steps will help open your doors to more and more new workers with disabilities who match your needs.

Progress, but work remains

In the almost three decades since the passage of the ADA, the workplace has evolved significantly. HR has become a stronger corporate business partner and with that, business has become better educated about the value of diversity and inclusion. Technology has improved, allowing for more creative and innovative ways to accommodate disabilities. However, there is still a long way to go to achieve full equality in the workplace for physically and mentally challenged Americans. The added amendments to the ADA have certainly advanced the cause, but continued education and skill development training remain necessary to achieve full the inclusion envisioned 29 years ago

Everyone should have the opportunity to know the dignity and value that comes from work. Here’s hoping we achieve that goal before another 29 years.

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