Will new legislation requiring companies to do more to accommodate disabled workers and protect their right prevent them from getting hired in the first place?
By Elaine Cohen
What do Starbucks, United Parcel Service, Daimler Chrysler Corp, Wal-Mart Stores Sears Roebuck and United Airlines have in common? They all featured in the Equal Employment Opportunity Commission's Hall of Fame, a report of 20 significant cases that were litigated or resolved by the EEOC between 1995 and 2009, in support of the rights of people with disabilities. The report was published in 2010 to mark the 20th anniversary of the Americans with Disabilities Act (ADA), which became law in the U.S. in 1990.
These six cases alone delivered around $8 million in damages payments to employees who brought lawsuits against these companies, and includes the largest single settlement ever paid, by Sears Roebuck and Co., in 2009, for having terminated employees who required more than the one-year period of compensation leave defined in the company policy. Instead of allowing them "reasonable accommodations" due to their disabilities, as demanded by ADA, Sears Roebuck fired them.
Awards were given to 235 individuals for a total settlement of $6.2 million.
Other cases in the "Hall of Fame" include:
- United Airlines: Denying overtime hours to workers on "light duty."
- Starbucks: Lack of additional training and support for a barista with mental impairments.
- UPS: Firing an employee for making too many mistakes in sorting packages due to an epilepsy disorder.
- Daimler Chrysler: Excluding applicants with learning disabilities from unskilled automobile manufacturing jobs through a pre-employment test.
In the above cases, as with others, the nature of the issues raised may seem marginal to some. These are not mainstream cases of rampant discrimination against large sections of the working population as a matter of corporate policy. They are outliers on the discrimination spectrum, though they may be representative of more widespread practice, which does not reach the courts.
Job Candidates with Disabilities: When Efficiency Comes in the Way
What characterizes the ADA breaches highlighted by the EEOC report is the conflict that companies face between respecting the rights of people with disabilities and the business need for employees who can perform their jobs effectively and efficiently. Everyone likes low maintenance employees. Having to make extensive efforts to enable people with disabilities to perform their roles is a choice not many companies freely make -- amply evident from the unemployment numbers.
There are over 27 million eligible employees with disabilities in the U.S. The unemployment rate for disabled people has consistently outpaced that of the general population -- 12.9 percent in 2012 versus 8.7 percent for others.
To counter this trend, the U.S. Labor Department, under the leadership of Hilda Solis, a strong campaigner for labor rights, has been attempting to introduce quotas where firms of more than 50 employees that contract or subcontract with the federal government would be asked to have disabled people make up 7 percent of their work force.
Job Discrimination: Defining "Reasonable Accommodation"
By law, ADA requires companies to offer "reasonable accommodation" for the needs of employees with disabilities. The acid test: what constitutes "reasonable accommodation." An article published recently in The Wall Street Journal informs that the EEOC may be proposing to expand the definition and reach of what "reasonable accommodation" might mean.
It could include, for example, holding jobs open for disabled workers for an unlimited period of time, or refraining from firing employees for inappropriate behavior, if the reason for such behavior could be seen as being caused by their disability, or providing additional telecommuting options for disabled employees. The article makes the point that, "all of these changes would increase employer costs and litigation risk and make them think twice about hiring disabled workers. For a government agency with "equal opportunity" in its name [EEOC], that's not the outcome to aim for."
The Flip Side: Organizational Culture
The opposite side of this coin, however, is the opportunity that companies gain from employing people with disabilities. Once provided with the means to do their work effectively, people with disabilities can be loyal, stable and positive elements of the workforce. People with disabilities may be well-educated, and may offer high-end skills. The additional effort required to create an inclusive workplace may well be more than compensated by improved overall business results.
More importantly, respecting people with disabilities is a highly visible value for employees to learn from and encourage.
Advancing a compassionate, supportive, flexible workplace which is responsive to employee needs can have a positive impact on organization culture, promoting teamwork, reducing conflict and affirming a sense of community and meaning in people's daily work.
This may also be reflected in more positive interactions with other stakeholders, especially in the area of customer service - the correlation between CSR and customer service has been proven in research.
The Executive Diversity Council of Lockheed Martin, one potential U.S. company that would be the target of potential quotas for employing people with disabilities, announced the establishment of a new Leadership Forum for People with Disabilities as part of its overall commitment to Diversity and Inclusion in its 2011 Sustainability Report, which quoted the President and COO:
"Not only is it important for our employees, but it is also essential for our customers, suppliers, partners and the communities we serve."
If companies can get over the scare factor of potential litigation, and accept a broader interpretation of "reasonable accommodation" for people with disabilities, this may well deliver outcomes that both business and the EEOC will be happy with. Let merit decide the rest.