Genetic Discrimination and the Employment Provisions of the Americans with Disabilities Act: Emerging Legal,Empirical, and Policy Implications

The Americans with Disabilities Act of 1990 (ADA) is the most comprehensive federal civil rights law addressing employment discrimination against potentially millions of Americans. The Human Genome Project (HGP) is a federally funded research effort that seeks to map and sequence every human gene. This article is meant to contribute to the emerging dialogue on the interplay between the HGP and the employment provisions of the ADA, set forth in Title I of the act. The relevance of the HGP to emerging legal questions, including those arising under Title I and recent EEOC guidelines, is described. Thereafter, empirical issues are discussed, and directions for future investigation of genetic discrimination under the ADA are explored.     

When Do I Disclose?

SUMMARY

The Americans with Disabilities Act of 1990 (ADA) heralded a new era of civil rights for the disabled, including the mentally ill. This article concerns Title I of the ADA, protections against discrimination in employment. It is a revised version of an article orginally published in a consumer publication, the MDSG/New York Newsletter (Mood Disorder Support Group) to provide guidance on the pro's and con's of making disclosure of mental illness in the job environment. As such it is a valuable reference for both therapists and service recipients who wish to learn more about how the ADA relates to the employment of people with mental illness and who may be faced with the difficult decision of whether or not they should disclose their condition and request reasonable accommodation. Occupational therapists should be well-informed on this topic, to assist consumers with questions on disclosure, reasonable accommodations and other aspects of Title T. Employers can benefit by providing them with information about appropriate accommodations. And occupational therapists can advise both consumers and employers on how a psychiatric illness may affect work performance.     

Different paths to justice: the ADA, employment, and administrative enforcement by the EEOC and FEPAs

Under Title I of the ADA, individuals who believe they have been subjected to disability-based employment discrimination may file an administrative charge. This article looks at who files charges; over what issues, and with what outcomes in both Equal Employment Opportunity Commission (EEOC) field offices, and state and local fair employment practice agencies (FEPAs). The data for the article are computerized records of all ADA charges filed through March 31, 1998. The data indicate that individuals who rely on a FEPA to investigate their charge have a greater likelihood of obtaining a beneficial outcome than individuals who rely on the EEOC, but proportionately more individuals receiving a beneficial outcome are likely to receive monetary benefits from the EEOC than from a FEPA. Further, those who receive beneficial outcomes will probably receive greater monetary benefits from charges investigated by the EEOC than from those investigated by a FEPA.     

Employment of individuals with mental disabilities: business response to the ADA's challenge

This research examines the response of the business community to the Americans with Disabilities Act (ADA) with specific focus on the employment of those with mental disabilities. The ADA is viewed as an important "rational myth" in that it represents both a legal and normative demand with which businesses are expected to comply. Yet employers' responses will be influenced by their attitudes toward persons with mental disabilities as well as their concern with legal sanction for discriminatory behaviors. A telephone survey was completed in a southern metropolitan area with a random sample of 117 businesses in order to access the knowledge employers have about the ADA (and its inclusion of those with mental disabilities), the compliance with the ADA, the employment practices, and the role played by stigma in the employment of individuals with mental disabilities. In terms of specific practices which indicated compliance with the ADA, a little over one-third of the companies which were surveyed by telephone had a Title 1 implementation plan, 15% had specific policies for hiring those with mental disabilities, and 37.6% had indeed hired such an individual. The role of coercive and normative rationales for compliance to the ADA was examined. It was found that receiving formal information about the ADA, threat of legal sanction, and previous employment of those with mental disabilities were all significant predictors of compliance with the ADA. Stigmatizing attitudes did not predict compliance, though employers did view those with mental disabilities with more discomfort than other types of employees.     

Reasonable accommodation for employees with mental disabilities: a mandate for effective supervision?

Reasonable accommodation under Title I of the Americans with Disabilities Act (ADA) for employees with mental disabilities is explored from a behavior analytic perspective. Although much of the attention in issues of reasonable accommodation is concentrated on persons with physical disabilities, it is argued that the needs of individuals with mental disabilities are in greater need of further study. The criteria for successful accommodation in the workplace for employees with mental disabilities is seen to be structurally different, but functionally similar to successful accommodations for employees with physical disabilities, and is based on the development of enabling environments. Behavior analysis offers a theoretical basis and performance management presents a methodological basis for analyzing, developing, implementing, and evaluating reasonable accommodation for persons with mental disabilities, largely in terms of effective supervision. It is concluded that Title I of the ADA may be seen as providing a mandate for effective supervision, which may also be extended to all employees.     

What Employment Counselors Need to Know About Employment Discrimination and the Civil Rights Act of 1991

Under Title VII of the Civil Rights Act of 1964 there are two theories of liability for employment discrimination: disparate treatment and disparate impact. While disparate treatment deals with the adverse treatment of a specified employee, disparate impact deals with discrimination against a class of individuals. The Civil Rights Act of 1991 modified the law to allow plaintiffs to more readily bring a discrimination case. This article reviews the major components of the Civil Rights Act of 1964, the Civil Rights Act of 1991, and a proactive approach to using equal opportunity law in employment counseling.     

Contemporary Title VII Enforcement: The Song Remains the Same?

Equal employment opportunity (EEO) law is constantly evolving and many changes can happen in 50 years. Title VII of the Civil Rights Act of 1964 has always been the most comprehensive law related to workplace discrimination. Like all laws, Title VII has matured over time, including amendments by Congress, refinement by the courts, and creation and updates of regulations by enforcement agencies. However, there are several controversies that have endured during this maturation process, and this article focuses on four of them: (1) adverse impact theory, (2) reverse discrimination, (3) sexual harassment, and (4) retaliation. There are common issues across these controversies. However, for purposes of exposition, each one is treated as a separate entity. For each of the four controversies, we review historical context, recommend compliance strategies and share best EEO practice recommendations for practitioners and employers.     

The Failure of the Bona Fide Occupational Qualification in Cross‐Gender Prison Guard Cases: A Problem beyond Equal Employment Opportunity

Knowing the theory of gender that a court is using to understand and assess the issues in a case is vital to ensuring that women are afforded their full rights under the law. Unfortunately, courts often do not explicitly state what understanding of gender is informing their decisions. An exception is found in employment law: specifically, the bona fide occupational qualification (BFOQ) exception to Title VII of the Civil Rights Act, which allows employers to engage in sex‐based discrimination in those instances in which the sex of the employee is a reasonably necessary qualification for the job. In these cases, because the court must analyze how “manness” or “womanness” impacts one's qualification to hold certain kinds of employment, the court must articulate its understanding of gender. This paper examines two BFOQ cases in the cross‐gender prison guard context, those cases in which an individual of one sex seeks to guard inmates of the opposite sex. In these cases the courts created a theory of gender that posits men and women as different in kind. The theory developed in this line of cases is an attack on Title VII protections and a potential barrier to women's equality under the law.     

Applicability of the ADA to "Ticket to Work" employment networks. Americans with Disabilities Act

This article examines the applicability of the antidiscrimination provisions of the Americans with Disabilities Act (ADA) of 1990 to The Ticket to Work and Work Incentives Improvement Act (TWWIIA) passed in 1999. Among other policy changes, under the Ticket to Work program, eligible recipients of disability insurance (SSDI) and supplemental income (SSI) receive a voucher or "ticket" to obtain services from qualified employment networks (ENs). ENs provide employment services and supports to designated beneficiaries and must meet certain qualification requirements. The ADA is applicable to ENs in several ways: primarily, in the EN's responsibility to provide appropriate access and services to program participants. This article discusses application of the ADA to the Ticket Program as ENs begin to serve program beneficiaries.     

Will the costs of accommodating workers with disabilities remain low?

Whether the costs of job accommodation remain low as more persons with disabilities enter the work force is a crucial issue in evaluating the progress of the employment provisions of the Americans with Disabilities Act (ADA). Much depends on the extent to which health and economic factors thought to raise or lower the costs of accommodation to employers actually predict accommodation outcomes. An empirical model of employer accommodation is specified and tested with data on a representative sample of Americans in their fifties. Among others, the results show that both the likelihood and extent of job accommodation are significantly influenced by cost-increasing and cost-decreasing factors, in each case in the direction predicted by the model. Inferences about the future trajectory of the costs of job accommodation and the employment effects of the ADA are discussed. Copyright © 1999 John Wiley & Sons, Ltd.     

Effects of Seeking Accommodation and Disability on Preemployment Evaluations

Within the context of the Americans With Disabilities Act (ADA) of 1990, we examined the impact of requesting accommodation and having a disability on ratings of applicant suitability for employment. Psychology students and human resources (HR) professionals reviewed application materials from a hypothetical job candidate and then evaluated the candidate's qualifications for the job. Participants were randomly assigned to 1 of 5 conditions that consisted of a candidate seeking or not seeking accommodation partially crossed with disability type (none, physical, or psychiatric). Three potential covariates were considered: HR employment status, and knowledge of and attitude toward the ADA. Results showed that asking for reasonable accommodation lowered suitability ratings, even when controlling for HR employment status, the only significant covariate. Also, a candidate with a psychiatric disability was given significantly lower employment suitability ratings than was a candidate with no disability. Implications for applicants with disabilities and employers are discussed.     

Religious Educational Institutions: Limitations and Liabilities Under ADEA and Title VII

The Age Discrimination in Employment Act (ADEA) and Title VII were enacted to further a national public policy prohibiting employment discrimination on the basis of specified protected categories. Title VII, however, has several exemptions permitting religious organizations to discriminate on the basis of religion. ADEA has no such exemptions. Superimposed over both statutes are the free-exercise and establishment clauses protecting the right of religious educational institutions to practice their religious beliefs. The extent to which religious schools and colleges should be restrained in the practice of their religion, where such practice concerns alleged discrimination, involves a careful consideration of the nature of the institutions, the nature of the employee, and the interaction of constitutional interpretation and public policy.     

Title VII Sex and Race Discrimination Litigation Settlements as Opportunities for Organizational Change

Purpose

This study investigated how frequently and under what circumstances Title VII lawsuit settlements resulted in mandates for substantive organizational change in HR policies and practices that, according to social science research, are likely to move beyond mere pro forma compliance to foster greater inclusion and equality.

Design/Methodology/Approach

502 consent decrees settling Title VII sex and race discrimination lawsuits in 200–2008 were collected, coded, and analyzed. Multinomial logistic regression was used. Sociological theories of organizational change and of the relationship between law and organizations informed the study.

Findings

48 % of the consent decrees examined specified no meaningful substantive changes; 31 % required formalization of personnel decision-making remedies; 21 % required more innovative measures. Certified class actions, other non-individual lawsuits, lawsuits filed in more liberal Federal District Courts, and public sector employer predicted more substantive remedies for organizational change in organizations’ EEO policies and practices, all else being equal. Single plaintiffs and a conservative District Court legal environment predicted a greater likelihood of pro forma only remedies.

Implications

Discrimination lawsuit settlements are a potential impetus for improved diversity management policies.

Originality/Value

Consent decrees are an unusually direct and potentially powerful mechanism under Title VII for employment discrimination lawsuits to mandate substantive organizational change. Whereas a few studies have discussed a very small number of high-profile settlements, this is the first systematic examination of the programmatic mandates in consent decrees and how they vary.     

Social framework testimony in employment discrimination cases

The use of social framework testimony by social psychologists in employment discrimination cases is expanding. After reviewing the legal background of this type of testimony, we describe its content and discuss an important Title VII case of sex discrimination where the testimony played a critical role. We also distinguish social framework testimony from other types of expert testimony by psychologists.     

A multiple-attribute decision-making approach to assess the disability of visually impaired workers

The Americans with Disabilities Act (ADA) has redefined employability and disability. The measurement and evaluation of the disabled worker's residual capabilities, in terms of worker strengths and weaknesses, job requirements and work environment, is the first step to comply with the ADA. This study presents an application of multiple-attribute decision-making procedures. The task is to develop a single index for use in assessing the disability of visually impaired workers through a consideration of factors defined by the U.S. Employment Service for successful job performance. The index can also be used to identify and prioritize the need for reasonable accommodation and to match visually impaired workers to appropriate employment.     

Persons with disabilities

In 1990, the United States Congress enacted legislation protecting the civil rights of persons with disabilities. The Americans with Disabilities Act (ADA) (1990) has been termed the most significant civil rights legislation since the 1960s (Rothstein, 1992/1994; see also Drimmer, 1993; Gostin & Beyer, 1993). The intent of the ADA is to provide “not only equal treatment [for persons with disabilities], but also equal opportunity” (Rothstein, 1992, p. 19, emphasis in original). The purpose of the ADA is not only to eliminate intentional discrimintion, but also to change “policies and practices that have a discriminatory impact” on persons with disabilities (p. 19). The ADA was implemented in the wake of decades of growing awareness of and responses to the numerous societal barriers confronted by persons with disabilities. The civil rights movement for persons with disabilities was spawned by grass roots movements (Scotch, 1984). Over time, this civil rights movement has been aided by behavioral science research as well as by legal actions (see, e.g., Scotch, 1984, 1988; see also Ainlay, Becker, & Coleman, 1986; Asch & Fine, 1988; Rothstein, 1992/1994; Shapiro, 1993). It is still too early to assess the ultimate success of the specific ADA legislation, much less the general disability-rights, advocacy movement. Nevertheless, as the articles in this special issue of Behavioral Sciences and the Law reflect, the behavioral-science-and-law community has much to contribute to the elimination of the marginalization of persons with disabilities in modern society. As shown in the articles in this issue, these efforts can include a) assessing progress in light of legislation and policy reforms, b) identifying on-going barriers, and c) offering ideas for different ways to conceptualize not only the problems, but also the solutions to problems confronting persons with disabilities. Ultimately, these and the other efforts being undertaken in the legal, social, and political arenas should help in the fight to fully integrate persons with disabilities into every part of the social fabric. The issue begins with two articles that report on empirical research. First, Professor Peter Blanck presents results from his longitudinal study of the ADA. Specifically, Professor Blanck has been examining employment integration and economic opportunity. His article summarizes the findings from his program of research: There are seven core findings, indicating both successes in employment (e.g., an increase of employment in integrated work settings) as well as continuing concerns (e.g., wage disparities as a function of gender; a leveling off of economic opportunities). The other empirical study is presented by Professor Delbert Rounds. Professor Rounds interviewed individuals with legal blindness in order to learn about their experiences of criminal victimization. One of only a handful of studies on the impact of crime on persons with disabilities, the research indicates that although individuals with legal blindness may not be victimized at rates different than sighted persons, the legally-blind appear to be vulnerable to specific kinds of victimization and their victimization experiences may differ from other crime victims' experiences. The remaining five articles assess different issues related to persons with disabilities. All draw, to some degree, on behavioral science research to argue for the elimination of barriers to persons with disabilities so that they can share the same social and legal rights and responsibilities as non-disabled persons. Professor Harlan Hahn offers a sociopolitical definition of disability. Instead of conceptualizing disability as a functional impairment, Professor Hahn advocates the use of a minority model that stresses attitudinal discrimination as the principal problem facing disabled persons. Professor Hahn suggests that the reconceptualization of disability could benefit persons with disabilities in both social scientific and legal contexts. For example, it would focus social scientific investigations on such issues as the concept of aesthetic anxiety. Research undertaken in light of the minority/attitudinal model, Professor Hahn argues, could have the same positive consequences in aiding persons with disabilities in their fight for legal and social equality as did social scientific research regarding race issues. Professor Michael Perlin presents a different twist on sociopolitical implications of disability issues. He shows how a seemingly “minor” decision by the United States Supreme Court in the mental disability case of Godinez v. Moran (establishing a unitary standard for the determinations of competence to stand trial, competence to plead guilty, and competence to waive counsel) had a substantial influence on the way in which the courts recently handled the high-visibility case of Colin Ferguson. Ferguson, a very bright but mentally disabled Black man, was the defendant charged with the murder of six people and the wounding of 19 others. Professor Perlin uses the filters of sanism and pretextuality to examine the Ferguson trial and to provide insight into how the American criminal justice system reacts to defendants with mental disabilities. Whereas Professor Perlin analyzed criminal law issues that disenabled persons with mental disabilities rather than enabled them, Professor Roger Levesque analyzes recent civil law reforms that have the same consequence. Professor Levesque's focus is on the way in which laws (statutes and case decisions) have intruded on the rights to engage in sexual, marital, and parental relationships. His analyses are very similar to Professor Perlin's in the demonstration of sanist and pretextual approaches to these issues taken by the law. Professor Levesque advocates that the law adopt the approach taken by many (but not all) social scientists — viz., the examination of behavior in context without preconceived, moralistic positions, resulting in individual assessments of competency — in order to provide a better understanding of rights and abilities for persons with mental disabilities, and, ultimately, an end to restrictive legal rules. Professor Donald Hantula and Ms. Noreen Reilly also focus on persons with mental disabilities. They contend that under the reasonable accommodation provisions of the ADA, persons with mental disabilities should and could have successful employment opportunities if only the social and managerial environments were to be modified. Professor Hantula and Ms. Reilly suggest the use of behavior analysis and performance management perspectives as bases for analyzing, developing, implementing, and evaluating reasonable accommodation for persons with mental disabilities. They also argue that the changes needed for persons with disabilities would actually benefit non-disabled employees as well. Finally, Dr. McCay Vernon, Dr. Lawrence Raifman, and Professor Sheldon Greenberg analyze the problems associated with providing Miranda Warnings to deaf suspects. They provide caselaw, empirical, and analytical evidence demonstrating that present law enforcement practices fail to inform deaf suspects of their legal rights, resulting in adverse consequences for both law enforcement and the suspects. Dr. Vernon and his colleagues identify techniques that not only promote an awareness of the problems, but also help to address the problems for criminal justice officials and for deaf suspects.     

Assistive technology patenting trends and the Americans with Disabilities Act

This article examines the ways in which the growing economic market for assistive technology (AT) may be analyzed in the context of effective implementation of the Americans with Disabilities Act (ADA). It summarizes the results of an ongoing study of patent data from the United States Patent and Trademark Office (PTO). The purpose of the study is to examine how the ADA is fostering innovation and economic opportunity for AT developers, manufacturers, and retailers. The findings suggest that evaluations of the ADA based on its perceived costs to society need to be balanced by the range of societal benefits accruing from the law, including those unanticipated economic benefits found in the present study.     

Adolescent romantic relationships as a tug of war: The interplay of power imbalance and relationship duration in adolescent dating aggression

The present study investigates the link between power imbalance within the romantic couple and psychological, relational and physical adolescent dating aggression (ADA) perpetration, considering also the role of relationship duration as an indicator of the developmental stage of the relationship. This is the first investigation into whom is perceived to have power in the relationship (the partner or the subject him/herself) by distinguishing between male and female adolescents. Participants were 805 Italian adolescents (36.1% males; 63.9% females) aged 14–20 years (M_age = 17.16 years, SD_age = 1.34), all reporting having been in a romantic relationship currently or within the past 6 months. Males perceiving a balanced relationship reported lower levels of psychological ADA perpetration, and they perpetrated more relational ADA in longer relationships where the partner is perceived to have the power. No significant findings emerged regarding physical ADA. Females perceiving themselves as having the power in the relationship reported higher levels of psychological and physical ADA perpetration. They perpetrated more relational ADA when they perceived the partner as having the power in the relationship. Also, females in longer relationships in which power was not perceived as equally shared between partners reported higher physical ADA perpetration. Finally, for both males and females, longer relationships were characterized by higher levels of ADA toward the partner. Findings highlight the importance of studying the interplay between power imbalance and relationship duration on ADA perpetration, and provide the way to understand possible functions of ADA within a romantic relationship.