This year will be the 35th anniversary of the ADA becoming law. While the law has done much to make workplaces more accessible, its impact on employment has been modest at best. About 45% of individuals with disabilities are employed, compared to 78.9% of those without disabilities. The lack of success in helping the disabled become employed has much to do with the law and how it has been implemented. The ADA’s objectives were to ban employment discrimination against the disabled and eliminate barriers to access in commercial and public buildings. But the law has shown limited results and those have been achieved at very high costs. It has also given rise to abusive litigation that has done little to serve the needs of the disabled and may well have made the situation worse.
Flawed Assumptions
The fundamental premise for the ADA was that the disabled were actively discriminated against. It was claimed the experience of the disabled was similar to that of racial minorities that were discriminated against because of racist practices prior to the passage of the Civil Rights Act. But this was a false claim. Businesses never posted signs saying, “No Wheelchairs Allowed” or forced the disabled to eat at separate lunch counters. The disabled were not denied employment opportunities because of a general unwillingness of the majority of the population to associate with them. At the time of passage in 1990 the estimate of the number of disabled Americans that was used to justify the need for the law was 43 million, or 16 percent of the population. But the actual number of “traditionally” disabled – wheelchair users, the deaf and the blind – were less than 3 million, or a little over 1 percent.
“Disability”
The list of disabilities requiring employers to make accommodations now includes over two hundred conditions. It includes gambling addiction, allergies, phobias, obesity, and mood disorders. Virtually any of the 157 conditions that can be diagnosed as a psychiatric condition can qualify as a disability including “intermittent explosive disorder” which means having a habit of losing one’s temper. Validation for many of the tests used to diagnose psychiatric conditions is weak and sometimes nonexistent, which doesn’t help bring any credibility to claims of these being a disability.
When just about any physical or mental condition can be considered a disability, it trivializes the concept. And there’s a fundamental problem of equivalence when conditions that are correctable or can be addressed by behavioral changes are treated the same as conditions that are not. A quadriplegic or autistic individual has no path to correcting the situation. An alcoholic, an addict, or an obese person most certainly does. It may not be easy but it’s very much possible.
Accommodations
Employers are, for the most part, not allowed to ask about disabilities during the hiring process or make offers of employment contingent on passing a physical. This restriction makes no sense given that employers can demand candidates demonstrate mastery of skills by taking a test and being quizzed about their abilities during interviews. But employers are expected to make accommodations for the disabled, unless they are an “undue hardship” – the definition of which is vague at best. The costs may well exceed the value of the work done by an employee – a situation that would not be acceptable for employing any other employee. An employee has to earn their keep.
This lack of clarity has spawned a tsunami of lawsuits and claims against employers. In 2024, the EEOC received over 33,000 such complaints, of which only about 21% were deemed to have merit. The number of lawsuits brought against employers has been steadily trending upwards, with about 9,000 filed annually on average. A key reason for this is that the law allows plaintiffs (usually employees) to recover their attorneys’ fees if they prevail but denies the same to defendants (usually employers). Employers prevail in over 90% of these cases, but only at considerable expense, averaging over $100,000 per case.
The Challenge for TA
The ADA has raised awareness of daily challenges many people face, but good intentions don’t ensure good policy. Sympathy alone can’t replace common sense, nor can every disadvantage be eliminated. But barriers that can be addressed in the hiring process should be eliminated. One area of focus should be the algorithms used by ATS to match resumes to job requirements.
To serve the disabled the algorithms should assess the limitations candidates have, which is rarely, if ever, obvious from any resume or profile. What’s needed are assessments that evaluate the abilities of disabled candidates and provide an analysis of what the combination skills and accommodations can allow an individual to do. There is a vast body of clinical research on how particular disabilities impact people’s ability to complete physical and cognitive tasks but it has not been included in job-related assessments. Existing assessments typically assume (and correctly so) that in order to demonstrate proficiency or fit a candidate must demonstrate particular expertise or behaviors. However, technology such as video interviewing doesn’t allow for disabilities. The AI driven assessment can lower the score of candidates that have limited abilities to control their facial muscles or upper body. Facial tics or an inability to display emotions can be interpreted as insincerity.
Manual reviews don’t help much either. Video interviewing products capture, on average, about 14 minutes of video from candidates, but recruiters on average view less than 1 minute of it. Clearly recruiters form their opinions from their initial views and not a complete assessment. While understandable (the task of viewing recordings is mind-numbingly dull), it does little to help disabled candidates. This is where AI has the potential to truly level the playing field for the disabled.
Beyond Hiring
Employers should provide hiring managers with specific recommendations and guidance on how to engage with disabled individuals, depending on the disability. The typical hiring manager cannot be expected to understand the needs of the disabled. As an example, what rarely gets mentioned as part of onboarding, and should be a key component of inclusion, is the accessibility of restrooms. It goes beyond having grab bars and large stalls. Left unaddressed this materially impacts the ability of people in wheelchairs to work in an office. This is also why jobs that require significant travel can be challenging for disabled individuals. No plane that exists today has an accessible restroom. Effectively a flight of more than 4-5 hours can be very challenging. Similarly, employers need to have a holistic approach to the work environment. An autistic person may find an open office to be a frightening environment.
But this is a two-way street. The disabled community also has to accept that not everyone can be made whole with accommodations, and cost is very much a consideration. An effective solution to help the disabled would require eliminating restrictions on asking questions about disabilities during the hiring process, and limit the ability of individuals to file frivolous lawsuits. One perverse effect of the ADA is that employers may well choose to not employ the disabled when the costs of accommodations are unknown and they risk being sued for not making them.
I wrote this post while having lunch at a restaurant, looking at a picture of John Belushi as Bluto Blutarsky in Animal House. I couldn’t help but wonder if some of the employment provisions of the ADA were written by former members of Delta Tau Chi – the fraternity famous for the line “I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!” One hopes that we can get beyond that, at least when it comes to improving processes and technology for hiring the disabled. For those of us in TA I recommend Bluto’s comment when he heard the one above – “We’re just the guys to do it.”
