The United States is well versed in what to say in order to appear as if actions are being made toward positive change. Paying so-called “lip service” to topics of critical experience comes naturally, and is in fact seen as a necessary aspect of life, for most industries, corporations, politicians, and even the average citizen.
No year has this been more clear than 2020. For every issue brought to the public’s attention, corporations and industries are among the first to issue expertly crafted, carefully worded statements that, in essence, say nothing at all. Vague promises to “work toward positive change” and to educate and train staff are made, posted on every form of social media linked to them, and the box is considered checked.
This rote method of handling nuanced, important social issues is applied without prejudice. Any and all topics tend to receive the same sort of response, whether it be to racism, sexism, ageism, or ableism.
The American with Disabilities Act (ADA) has prohibited the discrimination of disabled persons since 1990, but that does not mean that it doesn’t actually happen. And the posts seen and widely shared online denouncing ableism does not mean that it is not a real issue facing many members of our population.
Disabilities in the Workplace and Discrimination, a History
Just like any right achieved, the law against discriminating against disabled persons began after groups banded together to advocate and protest for their rights. It took thousands of people to stand up, to organize and participate in protests, write pieces of all kinds in order to educate the public, and file lawsuits to get to the final product of the ADA. For decades before that, those with disabilities were relegated to an “out of sight, out of mind” approach, rug swept and cast aside so that their issues were not visible and comprehensible to the non-disabled citizen.
One change that marked a large step toward a new world was the passing of the 1973 Rehabilitation Act, Section 504, which forbade the discrimination of the receipt of federal funds due to disability. This change, a positive one in its own right, also drew a clear line in the sand. People began to understand that disabled people were being excluded and segregated, discriminated against on the basis of something they had no control over, similar to someone being discriminated against due to their skin color or gender.
This Section passage also addressed the public perception that a person who was disabled and therefore unemployed and under-educated was likely that way due to random chance, instead of the fact that being disabled created consequences such as unemployment and a lack of education. Not because the disability in and of itself caused these issues, but because society’s prejudice against the disabled, and the societal barriers constructed against them, led to these consequences.
Further, Section 504 created a class for people with people with disabilities. It named them as a minority group, and that naming afforded them protection. Being subject to prejudice, they still deserved the protection of their civil rights.
From this point on, it was a slow roll, one with both forward and backward motions at times, to working toward a more inclusive country. Lawsuits were won, cases made it all the way up to the Supreme Court more than once, and a number of other bills and laws were passed to form those that we have to contend with today.
But just because these laws exist, does not mean that they are actually followed.
Even more confounding today is that the U.S. Small Business Administration requires that disabled individuals demonstrate that they are disadvantaged through evidence of multiple, continuous acts of discrimination. So let’s be clear, if you are a visible or nonvisible minority by being part of one of these groups: Hispanic American, Native American, Sub-continent Asian American, Black American, Pacific Asian American, you have little to no chance of being deemed socially disadvantaged by the SBA and will receive benefits for government contracting – promoting employment.
Never mind the fact that people with disabilities, particularly visible disabilities and “severe” disabilities, clearly meet the standards for inclusion as a presumptively eligible group for SBA benefits the government refuses to support the disabled. Consider that the Ticket to Work and Self Sufficiency (Ticket) program were created in 1999 to provide Social Security disability beneficiaries, ages 18 through 64, with job placement to become employed, increase their earnings, and become financially independent. Let’s ask rhetorically, was this program created because disabled individuals had no difficulties finding gainful employment?
The incongruity is astounding, that different parts of the government can be so different — with Social Security a white knight, and the SBA deciding that disabled persons are not a minority class, visible or not, needing support.
Corporate Lawsuits against Disability Discrimination
We celebrate 30 years since the passage of the ADA, yet even still Corporate America ignores the plight of the disabled, generating lawsuits year-over-year. The problem is, that while the suits are needed, the result is a furtherance of shunning and apathy of the disabled. Sadly, there are a great deal of cases that could be used to illustrate the point that the laws created have not stopped companies from discriminating against disabled persons in the workplace. Worse still is the knowledge that even an exhaustive list of every lawsuit against disability discrimination would not actually contain every time it has happened, as often the person being discriminated against will choose to let it go or is unable or unwilling to seek legal action.
Here gathered is just a small selection of corporate lawsuits against disability discrimination.
In EEOC v. FedEx Ground, a case that is still pending these six years later, the EEOC (U.S. Equal Employment Opportunity Commission, a group responsible for enforcing the federal discrimination laws in regards to disabled persons) filed against FedEx for failing to accommodate deaf or hard-of-hearing applicants. The company has training videos which are a mandatory part of new-hire orientation but failed to offer either American Sign Language options or closed-captioning.
The suit also highlighted the failure of the company to accommodate these persons for meetings that were mandatory to attend, as well as not offering equipment modifications to allow deaf or hard of hearing persons to work without having to hear a signal.
This was not FedEx’s first brush with the EEOC, as they lost a suit in 2006 for failing to accommodate a deaf employee’s reasonable requests for minimal accommodation.
In this six-figure settlement case, the EEOC filed a disability discrimination lawsuit against Kmart when the national retailer refused to hire an employee when he was unable to provide a urine sample as part of the mandatory hiring process. The would-be employee was told there was a mandatory pre-employment drug screening. When he told the hiring manager that he was unable to provide a urine sample because he had kidney disease and dialysis, offering instead to provide a blood or hair sample, he was refused and denied employment. Kmart settled for $102,048 in monetary relief.
The Cheesecake Factory
In this still-pending case, the EEOC took on mall staple restaurant The Cheesecake Factory, after the company fired a newly hired deaf employee rather than working to accommodate him.
This company also required training videos as a part of the new-hire process but refused to give the employee a closed-captioned version or offer ASL interpretation. Because the new employee could physically not complete the training, The Cheesecake Factory fired him.
The EEOC stated that the home improvement chain fired thousands of workers with disabilities for years due to their strict leave policy. If any employee exceeded their maximum medical days of leave, regardless of the extenuating circumstances, they were fired. This case made it clear that having a maximum number of days of leave for illness or injury could make you non-compliant with the ADA.
Prestige Senior Living and Prestige Care
This more recent example addressed issues in a chain of Vancouver, Washington companies, and affiliates, whose assisted living properties and nursing facilities had job requirements that did not offer disabled persons appropriate accommodation policies. The chain required each and every one of its employees to be able to do all of their job duties, without any kind of restriction, always. This, paired with its stringent and unforgiving leave policy meant that even if an employee was hurt on duty, they were not allowed to return to work until they were back to 100%, 100% recovered, and able to complete 100% of their job. Not recovering quickly enough could cause them to be fired.
One example that was cited in the lawsuit was that of an employee experiencing a complication from a knee injury. Her physician said she needed four to six weeks to heal, and because she was not able to do all of her job duties, and the healing period outlasted her leave, she was fired.
In this case, the EEOC noted that while employers will not be able to accommodate every need for every position, it should be a conversation, rather than the company using policies to completely rule the person out simply because they have a disability.
Responses to the push for change, and even to lawsuits filed directly from the EEOC against them, have resulted in different responses across industries and companies.
Some companies, like those mentioned in the above examples, made a concerted effort to change the policies that were negatively impacting disabled persons. In nearly all of those, the EEOC praised the companies involved for taking a step toward positive change by abolishing overly strict leave policies and updating outdated and excluding training systems.
Others, however, choose to go a different way.
Nationwide transportation company Lyft, the well-known alternative to the Uber rideshare application, and recognizable by its virulently pink logo, chose not to make the positive changes necessary, even when specifically targeted by the EEOC.
A federal class-action lawsuit was filed against the company by New York residents for not providing accessible vehicles. This came after a settlement in which Lyft and Uber agreed that by 2021, they would be able to provide service to a minimum of 80% of wheelchair-accessible vehicles in under 10 minutes and 90% in less than 15 minutes.
This agreement thrilled a great deal of the New York City population, as the city’s subway system is not easily accessible, and in some areas not accessible at all, so having an Uber or Lyft that is wheelchair accessible could make a massive difference in the lives of many.
Unfortunately, Lyft is taking issue with this settlement and is currently disputing these obligations. The method it is using to not have to make these changes? Calling itself a tech company instead of a transport company. Lyft hopes that by changing its designation from a transport company, it will no longer have to abide by these mandated changes. It should be noted the company is further facing another class-action lawsuit in San Francisco, which also claims the company discriminates against those with disabilities.
For now, the result of Lyft’s fight to continue to be inaccessible and noncompliant with the ADA is unknown, but it is worth looking at the methods some companies use to not have to become more accessible to those with disabilities. Even in 2020, the disabled population is struggling to be represented.
Unemployment in the Disabled Community
As reported by the U.S. Bureau of Labor Statistics in 2019, only 19.3% of people with a disability were employed. For those without a disability, that number is 66.3%, a stark contrast. In many cases, the reason for unemployment is not due to a physical or mental inability to work, but to noncompliant and non-accessible work environments, as well as societal barriers that still remain today, even 47 years after Section 504’s passage, and 30 years following passage of the ADA.
Part-time employment was much higher for those with a disability as opposed to those without one, with 32% of disabled persons working part-time, and only 17% of non-disabled persons working part-time. Disabled persons were also more likely to be self-employed than non-disabled persons. Given the disabled are more likely to be self-employed, I can’t imagine how the SBA chooses to shun the disabled from the 8a program.
What’s the Cause?
The last two statistics, highlighting the facts that disabled people were both more likely to be self-employed and more likely to work part-time than non-disabled people, are perhaps the most telling when it comes to searching for the cause of these unemployment rates.
These two statistics seem to speak to one thing- not the inability or unwillingness to work, but the societal barriers and unwillingness for accommodation that prevent them from working full-time or for others.
Research agrees with this, showing that the main reason for the unemployment of those with disabilities is the way they are viewed by companies and hirers. Hiring managers and company policies view disabled persons as unable to complete the work-related tasks and requirements in the same way a non-disabled person could, regardless of the disability itself.
Interestingly, inclusive companies with disabled staff and employees were found to have a 28% higher revenue than those without, as well as 30% higher profit margins, and double the net income. This was found during a study conducted between 2015 and 2018. Even with the numbers to back up the benefits of an inclusive workplace environment, the U.S. remains far behind both Europe and Canada when it comes to the employment of disabled people.
What Can Be Done?
In the current time, little that is being done to address this issue is actually, effectively working toward change. Numeric goals being set by companies to hire so-many of this type of person, and so-many of another type, work only to create a foundation for future failure. The answer to inclusiveness is not to simply hire this many people from a minority group, but to treat them as you would their peers. For many, the accommodations necessary are minimal. Consider the earlier examples, where the employee simply needed closed captions in order to be able to be hired. A small, simple, one-time change, but one that opens up the playing field for tens of thousands of people.
This all serves to push disabled persons further into invisibility, encouraging them to hide their disabilities if possible to avoid fitting a role or risk being turned away entirely.
Working toward Inclusiveness: What You Can Do
Before you begin, ensure that you are thinking about working toward inclusiveness from the proper perspective. If you are only working to be inclusive so that your company appears positive and forward-thinking or so that it meets a quota or ensures you will not be coming head-to-head in a courtroom with the EEOC, then the results will speak for themselves.
However, if you want to truly be a part of a positive future, to benefit from the life experience and skills of all people, regardless of sex, gender, or whether they have a disability, then your company will reap the benefits. Culture is key. To reach true inclusiveness, work toward cultural change to find the path to truly combat discrimination.
This all starts with the simplest step: hire people with disabilities. But do it organically; do not just pick a name from a stack because it fills this need. From there, take steps to ensure that your company culture is one of inclusion and accommodation. This does not end with accessible facilities. There is also no one size fits all set of steps here. Depending on the employees and their needs, what you need to do to create this environment will differ. As long as you undertake it thoughtfully, and with their input, you are on the right path. This leads directly to the next point.
Include the employees as you work on their accommodations. Do not feel content with doing a bit of online research and then calling it good, or assuming you know what they need. You may do more than necessary, or end up not doing enough to actually accommodate them. Let their voice be heard.
The rewards for inclusiveness of the disabled are high. Companies that were the most inclusive of disabled persons attained 28% higher revenue, 30% greater profit margins, and twice the net income of their peers during a study period of 2015 through 2018. Nonetheless, the U.S. lags Canada and Europe in the employment of disabled persons, who struggle globally to find employment.
There is still a long road ahead when it comes to fostering change to combat discrimination against those with disabilities. With each law and judgment making changes, tiny steps are being made. But true change will not occur without you. Be a part of the change by listening to the conversation, learning, and doing what you can to improve. Something so simple is what will create the largest difference. Focus on a culture of inclusion — the emergent empathy for all will drive your organizational growth. Does your company not want higher revenues and profitability?
by Luka Erceg, JD, LLM, MBA, CIRA
Luka Erceg is a Canadian-born, American entrepreneur who has focused on sustainable/clean tech ventures. He holds a Juris Doctorate, Master of Laws, Master of Business Administration, and Bachelor of Marketing. He is a Certified Insolvency and Restructuring Advisor through the Association of Insolvency and Restructuring Advisors. On January 11, 2018, Luka suffered a left-shoulder disarticulation (amputation) due to a flesh-eating bacterial infection brought on by bad oysters. Since losing his arm, he has been witnessing discrimination firsthand as he works to re-enter the U.S. economy. Recently, he was recognized globally by the LinkedIn News Team for his post on inclusiveness and bankruptcy in the matter of the Cirque du Soleil bankruptcy, see link here. Previously, Scientific American published his blog article “I lost my arm to microbes but they can save the world”, found here: https://blogs.scientificamerican.com/observations/i-lost-my-arm-to-microbes-but-they-can-save-the-wo rld/, on his tragic experience but the nonetheless ongoing importance of nature and microbiology in addressing global waste problems.
Luka has been written about in Forbes, FastCompany, The Economist, Scientific American, and numerous other publications. In addition, he has also testified before the U.S. House of Representatives and U.S. Senate on separate occasions. His last company was almost acquired by Tesla before investors rejected the offer.