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Despite advances in equal job opportunity for a number of disenfranchised groups, one group that has continued to suffer both job and economic discrimination is the disabled:
- Disabled people in the workforce have unemployment rates almost double those of nondisabled people.
- Two-thirds of disabled Americans between sixteen and sixty-four are not working, and 66 percent of those not working say they would like to work.
- Disabled workers with thirteen or more years of education earn only 71 percent of the earnings of similarly educated nondisabled workers. Those with less than twelve years of education earn less than one-third the earnings of similarly educated nondisabled workers.1
On 26 July 1990, the Americans with Disabilities Act (ADA) became law. The Act extends the protections afforded under the Rehabilitation Act of 1973 and will eventually affect all firms with fifteen or more full-time employees. In order to help business owners and managers understand the law and respond to its requirements, we will (1) review the background and provisions of the ADA and (2) recommend courses of action for employers.
The Legislative Environment
A series of laws have addressed employment discrimination against various groups. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, religion, sex, color, and national origin. The 1967 Age Discrimination in Employment Act extends protection to individuals forty years of age and older. The 1973 Rehabilitation Act was the first national law to address employment protections for disabled individuals. The Act prohibits employment discrimination against otherwise qualified disabled workers by federal, state, and local governments, their agencies, and certain federal contractors.2 However, despite this Act and numerous related state and local regulations, almost fifteen million workers with disabilities in the private sector still lacked protections against employment discrimination. The ADA was enacted to fill this gap in coverage.
The ADA contains five titles or sections dealing with various business activities:
- Title I provides for equal employment opportunities;
- Title II requires equal availability and accessibility to all services provided by state and local governments, including transportation;
- Title III prohibits discrimination in public accommodations and services operated by a wide range of private businesses, including hotels, recreational facilities, and retail stores;
- Title IV concerns telecommunications;
- Title V contains miscellaneous provisions such as protection for individuals invoking their rights under the ADA.
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1. Studies cited by the EEOC in 56 Federal Register at 8581.
2. The Rehabilitation Act of 1973 requires federal contractors and subcontractors with contracts exceeding $2,500 per annum to practice nondiscrimination and employ affirmative action in their hiring practices. In addition, those contractors and subcontractors with annual contracts of $50,000 and more, and more than fifty employees, must develop and maintain written affirmative action plans that satisfy requirements of the Office of Federal Contract Compliance Programs.
3. All materials, references, and direct quotations are drawn either from the Americans with Disabilities Act (Public Law 101-336, 104 Stat. 329) or from the EEOC’s Proposed Rules on the ADA in 56 Federal Register 8577, 28 February 1991, or Final Rules and Regulations in 56 Federal Register 35726, 26 July 1991.
4. 56 Federal Register at 35736. This section also states, “Homosexuality and bisexuality are not impairments, and so are not disabilities as defined in this part.”
5. 56 Federal Register at 35736. The reference is to those “currently engaging in the illegal use of drugs.” However, “the terms disability and qualified individual with a disability may not exclude an individual who (1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, … [or] (2) is participating in a supervised rehabilitation program and is no longer engaging in such use.”
6. 56 Federal Register at 35748.
7. 56 Federal Register at 35743. The EEOC cites Treadwell v. Alexander, 707 F. 2d 473 (11th Cir. 1983) and Dexler v. Tisch, 660 F. Supp. 1418 (D. Conn. 1987) in support of both possibilities.
8. 56 Federal Register at 35748. See Carter v. Bennett, 840 F. 2d 63 (D.C. Cir. 1988).
9. 56 Federal Register at 35726.