Tuesday, January 10, 2012

The ADA Restoration Act: What's the fuss?

Why do we need a new law to restore the Americans with Disabilities Act? Here's Senator Harkin's words on this:

"Unfortunately, since the ADA was passed, a series of court decisions have ignored Congress’ clear intent regarding who should be protected under the law, and have narrowed the category of who qualifies as an “individual with a disability.”

“Many individuals who Congress intended to protect under the ADA – including people with epilepsy, diabetes, and cancer – are no longer protected as a result of these court decisions,” said Harkin. “These cases have created a bizarre catch-22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected. That is not what Congress intended when we passed this law 17 years ago. This situation clearly cries out for a modest, reasonable legislative fix, and that's exactly what I am doing, today, by introducing the ADA Restoration Act of 2007.”

The law has been interpreted to mean that you are not covered if you aren't disabled, leading to such controversial rulings such as Kirkingburg v. Albertson's Inc. The original judge said basically, Mr. Kirkingburg could be an "individual with a disability" in other lawsuits, but not in this particular case, because of existing federal law. It has been overturned on appeal.

The ADA restoration act would change the word to prohibit discrimination on the BASIS of disability, just as discrimination is now prohibited on the basis of gender, age, sexual orientation, or race. You don't have to prove you're a certain color even under a bright light in order to prove racial discrimination, and so it should be with discrimination on the basis of disability.

Properly written and clarified to businesses, with guidelines on what is safe and not safe to do, this may help employment potential. This clarity was missing with the first ADA. Many businesses fired their disabled employees when the ADA was about to pass for fear of lawsuits and increased costs. Employment for the disabled has NOT improved since the ADA.

The Federal Aviatian Administration (FAA) gave airlines clear guidelines about how to accomodate disabled fliers, and for the large majority disabled flyers find airports amazingly much more accessible than before the ADA (although discrimination still exists.)

Yet the average employer has no such resource, other than what case law involving the ADA has stated. Business briefs published by the U.S. Department of Justice involve accomodations, customer service, but not much on advertising, hiring and firing practices to avoid discrimination.

The closest non-disabled example of discrimination in hiring against the disabled would be for women of a certain age who arouse the covert fear that "they could get pregnant and leave after they've used up their employer-paid family leave", and same goes for older people who might be in worse health, but women face fewer obstacles to employment in the first place that disabled people do.

Despite the paranoia of some die-hard critics, The ADA does and the ADA restoration act would actually allow business to fire people for not doing work they were paid to do, whether disabled or not, or to simply reduce hours if the employee is not able to work full-time, without fear of a lawsuit related to the fact they're disabled.

Alas, employer-paid health insurance is unfortunately the major elephant in the room when it comes to discrimination against current employees. Businesses can't always afford to pay health insurance for part-time employees, but if they cut benefits due to disability causing reduced hours, they wind up risking lawsuits or paying health insurance for disabled employees and not healthy employees, and risking a lawsuit all around.

In a way, this is why the COBRA act was passed-- to obligate businesses to allow people to buy-in their health plans after termination of employment, or reduction in hours worked-- but without having to make the business chip in as well.

The Family and Medical Leave Act also protects employees' rights in case of emergency, and actually restricts the leave taken due to disability or family situations to 12 weeks (3 months). This may be paid or unpaid, or a combination of both. The employer is not obligated to pay it. Some might argue that Europe has a better model. However, COBRA is flat and includes disablity in its definition.

Interestingly, many websites (here's one!) talking about life after being laid-off suggest that if you're healthy, find a better plan. If you're ill, stay with COBRA... because of the problems of being rejected by new insurance policies. (Don't believe that one? Here's another with the same advice.)

So benefits, once intended to entice workers, now have become a fixed cost of employment that is nearly the same for the CEO and the mailboy. This massive obligation is fraught with continuing costs as the cost of health insurance spirals upwards out of the reach of average people without employer clout in getting group plans. That mean employees MUST hold out for benefits from employers, and often stay for the sake of benefits. Because larger businesses can get health insurance cheaper in bulk, they have an overhead advantage to smaller business. This MUST be changed for the sake of both businesses and employees alike.

The disproportionate, fixed costs of employing people full-time with benefits drives employers to hire 2-3 people part times, no benefits. In some areas (such as here), people may work 2-3 part-time jobs without benefits, when the business could likely provide full-time jobs... if they could afford the benefits.

Sadly, there are no part-time CEO jobs. The part-time jobs without benefits are generally the jobs that pay moderately or poorly to start with. Also, there's the family restriction on health insurance group plans, which means your friend, roommate, or sibling can't add you to his health plan for you while you're out of work or not getting benefits! Only your spouse can do that... if he/she has insurance.

If you're fostering a child, you probably can't add him to your health insurance, either. Thankfully, since 1999, foster children have Medicaid until age 21.

Employer-paid health insurance is not a benefit that is not equal for single people versus people with spouses or kids then. Because the employer pays part of the insurance for every person on the plan, we would expect some discrimination against parents, as well. And we do. So, employment discrimination can be based on many factors, including health insurance costs, as well as a perceived higher risk of being sued without cause. Doesn't make it right in any case.

When discrimation in hiring affects the bottom line, I fear that anti-discrimination laws will only work when employers are sued into compliance... or they are shown how their fears aren't true, and taught their rights in this case. A third path, that of meditating employment disputes, also depends on well-trained meditators.

The ADA restoration act will make it easier for us to sue for employment discrimination under the correct wording of the law. Business however need guidelines on how not to discriminate without bending over backwards inappropriately. Nobody should keep an employee just because they're fearful of a lawsuit and then use it as an excuse not to hire qualified people in the future. That means doing it right in the first place!

I get upset when businesses refuse to hire employees because of disability issues, qualifications aside. This is the WORST discrimination out there right now.

I've had people be rude to me and say "we don't want you, you're deaf." Well, they just wanted me a minute ago when they left me a voice message or e-mail after seeing my resume and I answered exactly what I could do per the job ad.

The ADA says I don't have to disclose my disability at any point, even when I am hired. Experience has taught me that I shouldn't allow employers the opportunity to discriminate before I get a foot in the door.

On your resume you shouldn't put any information (about gender, age, sexual orientation, martial status) that could lead to discrimination. It is also illegal for employers to ask for this information up front because they can use it to discriminate against you before even meeting you. Disabled people merit the same protection.

I've learned that I don't get callbacks if I tell people to use the relay. So voice mail it is for me. I've gotten a few interviews that way by calling THEM back via relay and talking to them first.

One manager said "you can't do this job" and when I asked why, began making excuses, lying about the job description which suddenly was nothing like what was written down on the job ad in front of me. She then wanted to revoke the interview which she had already offered to me on the voice mail.
I filed an complaint with the president of that company, explaining the situation and saying, whether the job ad was incorrect or the manager was lying, there was a significant problem here that should be fixed.

Many job ads specify "verbal or oral communication skills"-- which to to many is code for "deaf, stutterers, extremely shy, autistic, or other communication disorders need not apply." Sadly, it's not even true in all cases.

I once applied for a job that demanded oral communication, said so in the ad. I really wanted that job, and the ad didn't make it clear WHY. I applied for the job. They hired me-- there was nearly zero communication that couldn't be done by e-mail, except for meetings. It was one of the most quiet places I had ever worked in.

Now, whether intended or not, asking for physical, speech, mental or sensory requirements that are not key to the job is discriminatory. Key tasks should be part of the job information.

A business needs to be clear about the job they're advertising or they won't get good core skill fits. We shouldn't allow the trend of discrimination in advertising and interviewing for jobs to continue unchecked. It is a crime against us all.

All would-be recruiters and HR employees should try it from the other side: send out two similar resumes. Have a disabled and a nondisabled person phone the company, record or listen in the conversation. See how the callback goes, and/or the interview. Try with another disability, and so on.

Maybe we'll all learn something together about why the disabled aren't employed enough, despite all the laws out there. 66% unemployed is a really high rate.

Many disabled people start their own businesses of some sort. It's not for everybody, but if you're ever interested, The Small Business Association has information on how to do so.

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