Empirical study of The Americans with Disabilities Act: Employment issues from 1990 to 1994

Behavioral Sciences and the Law

Volumn 14, Issue 1, 1996, Pages 5-27

  Blanck, Peter David ^a,b,c,d,e  

^a UNIVERSITY OF IOWA   (United States)

^b Annenberg Washington Program   (United States)

^c AMERICAN BAR ASSOCIATION   (United States)

^d President's Committee on Employment of People with Disabilities ^*  (United States)

^e UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; DISABILITY; ECONOMIC ASPECT; EMPLOYMENT; HUMAN RIGHTS; LAW; OCCUPATIONAL HEALTH; SOCIAL PSYCHOLOGY; UNITED STATES;

ACTIVITIES OF DAILY LIVING; ADULT; CIVIL RIGHTS; DISABLED PERSONS; HEALTH POLICY; HUMANS; PERSONNEL SELECTION; PREJUDICE; PROGRAM EVALUATION; REHABILITATION, VOCATIONAL; UNITED STATES;

EID: 0030051682     PISSN: 07353936     EISSN: None     Source Type: Journal    
DOI: 10.1002/(SICI)1099-0798(199624)14:1<5::AID-BSL224>3.0.CO;2-6     Document Type: Article

References (115)

1. Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq.
2. PETER D. BLANCK, COMMUNICATIONS TECHNOLOGY FOR EVERYONE: IMPLICATIONS FOR THE CLASSROOM AND BEYOND (White Paper and CDROM) (The Annenberg Washington Program 1994).
3. See NATIONAL ACADEMY OF SOCIAL INSURANCE, PRELIMINARY STATUS REPORT OF THE DISABILITY POLICY PANEL 135 (1994).
4. E.g., Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK: INCENTIVES, RIGHTS, AND OPPORTUNITIES 18, 22 (Carolyn L. Weaver ed., 1991).
5. See Bob Dole, Are We Keeping America's Promise to People with Disabilities? - Commentary on Blanck, 79 IOWA L. REV. 925, 928 (1994).
6. See ADA Watch Year One: A Report to the President and the Congress on Progress, in IMPLEMENTING THE AMERICANS WITH DISABILITIES ACT 3 (National Council on Disability 1993).
7. ABA COMMISSION ON MENTAL AND PHYSICAL DISABILITY LAW AND COMMISSION ON LEGAL PROBLEMS OF THE ELDERLY, TARGETING DISABILITY NEEDS: A GUIDE TO THE AMERICANS WITH DISABILITIES ACT FOR DISPUTE RESOLUTION PROGRAMS 3 (1994);
8. Francine S. Hall & Elizabeth L. Hall, The ADA: Going Beyond the Law, 8 ACAD. MGMT. EXEC. J. 17 (1994).
9. 42 U.S.C. §§12101-17 (Supp. IV 1992); 47 U.S.C. 225, 611 (Supp. IV 1992).
10. Based on a sample size of 1127 adults, the demographics are: 57% (n=643) men and 43% women (n=484); 84% (n=950) white and 16% (n=177) minority. Ages ranged from 18 to 72 years.
11. Peter D. Blanck, The Emerging Work Force: Empirical Study of the Americans with Disabilities Act, 16 J. Corp. L. 693 (1991);
12. Peter D. Blanck, Employment Integration, Economic Opportunity, and the Americans with Disabilities Act: Empirical Study from 1990 to 1993, 79 IOWA L. REV. 853-939 [hereinafter "Empirical Study"].
13. See also Peter David Blanck, Assessing Five Years of Employment Integration and Economic Opportunity under the Americans with Disabilities Act, 19(3) MENTAL & PHYSICAL DISABILITY L. REP. 384-392 (1995) (describing other findings for the present investigation).
14. See George Rutherglen, Discrimination and its Discontents, 81 VA. L. REV. 117 (1995);
15. see also The Lawyer's Friend, Fortune, May 29, 1995, at 176 (noting confusion as to meaning of ADA's terms).
16. John J. Donohue III, Employment Discrimination Law in Perspective: Three Concepts of Equality, 92 MICH. L. REV. 2583 (1994).
17. MICH. L. REV. Id. at 2608-2611.
18. MICH. L. REV. Id. at 2611.
19. MICH. L. REV. Id. at 2586 (arguing that this trend poses a concern because expanding the category of protected persons carries a risk of diluting protection to groups already defined as members of the protected group).
20. To stimulate this dialogue, the EEOC has issued guidelines for analysis of the statutory definition of disability. See EEOC COMPLIANCE MANUAL, Definition of the Term Disability §902, Mar. 15, 1995, available in Westlaw, BNA-DLR, File No. 51 d30, (Directives Transmittal Full Text).
21. See, e.g., Zande v. State Dept. of Admin., 44 F.2d 538 (1995) (discussion of concept of disability, qualified individual, and reasonable accommodation).
22. Cf. Coghlan v. H.J. Heinz Co., 851 F. Supp. 808 (N.D. Tex. 1994) (job applicant with controlled insulin dependent diabetes not constitute per se disability under the ADA, but requires factual determination); with EEOC COMPLIANCE MANUAL, supra note 17, at §902.
23. See Peter D. Blanck & Robert Folberg, The Americans with Disabilities Act: Emerging Issues for Ophthalmologists, 101 OPHTHALMOLOGY 1635, 1635 (1994).
24. See, e.g., Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) (Title II of the ADA requires services for persons with disabilities in most integrated community settings).
25. 29 C.F.R. §1630.2(m & n) (1991).
26. See, e.g., Peter D. Blanck, The Americans with Disabilities Act: Issues for Back and Spine Related Disability, 19 SPINE 103 (1994).
27. The skill measure contains items that assess an individual's functioning and growth. For each participant a skill score is generated (e.g., reflecting abilities in employment, selfcare, mobility, and communication). See Empirical Study, supra note 10, at 876-79. The health-status measure assesses the participants' general medical needs. Many persons with mental retardation and good health status face limitations in employment integration and advancement as a result of discrimination. See Paula M. Minihan & Deborah H. Dean, Meeting the Needs for Health Services of Persons with Mental Retardation Living in the Community, 80 AM. J. PUB. HEALTH 1043, 1046-48 (1990).
28. 29 C.F.R. §1630.5(1991).
29. See PETER D. BLANCK, COMMUNICATING THE AMERICANS WITH DISABILITIES ACT: TRANSCENDING COMPLIANCE: A CASE REPORT OF SEARS ROEBUCK AND CO. (Annenberg Washington Program Report 1994).
30. See, e.g., Zande v. State Dept. of Admin., 44 F.2d 538 (1995) (holding employer has no duty under the ADA "to expend even modest amounts of money to bring about an absolute identity in working conditions between disabled and nondisabled workers.").
31. Peter D. Blanck, Studying Comparative Anti-Discrimination Law. Employment Integration and Economic Opportunity under the ADA from 1990-1994, Presentation at Yale Law School Conference on "Should difference make a difference?" (March 1995).
32. See, e.g., Roy Spiegel, A Toothless Law, N.Y. TIMES, Apr. 24, 1995, at A17 (arguing that the ADA is not adhered to because it has no legal force).
33. See generally Empirical Study, supra note 10.
34. See also Robert Rosenthal & Peter D. Blanck, Science and Ethics in Conducting, Analyzing, and Reporting Social Science Research: Implications for Social Scientists, Judges, and Lawyers, 68 IND. L.J. 1209, 1221
35. See AMERICAN ASSOCIATION ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 1 (1992).
36. Tom Harkin, The Americans with Disabilities Act: Four Years Later - Commentary on Blanck, 79 IOWA L. REV. 935, 936 (1994).
37. For more detailed discussion of the four employment types, see Empirical Study, supra note 10, at 870-74.
38. For example, work or training in a non-integrated setting in which wages are usually half of the minimum wage.
39. For example, employment with services of a job coach; at least minimum wages are paid.
40. In each cell of Table 1, hypothetical weights are assigned to the cells to calibrate employment movement. These weights range from -3 to +3, reflecting the magnitude of potential movement over time from one employment category to another category as follows: 0 for no employment, 1 for sheltered employment, 2 for supported employment, and 3 for competitive employment.
41. 2=69.83, p<0.001, reduction from 34% to 20%.
42. The 1994 Harris Survey of Americans with Disabilities, commissioned by the National Organization on Disability, shows an increase in the unemployment rate of working age adults with disabilities between 1986 and 1994, from 66% to 68%. LOUIS HARRIS & ASSOCS., SURVEY OF AMERICANS WITH DISABILITIES 37 (1994).
43. Oklahoma Employment Sec. Comm'n, Economic Research and Analysis Div. (1994).
44. Cf. SUPPORTED EMPLOYMENT: STRATEGIES FOR INTEGRATION OF WORKERS WITH DISABILITIES 15 (Paul Wehman et al. eds., 1992) (finding growth in numbers of supported employment participants for persons with disabilities in Oklahoma during years 1986-1988) (hereinafter "SUPPORTED EMPLOYMENT").
45. For significance testing with sample size of 1127, approximate r of 0.05, =p<0.10; r of 0.06, =p<0.05; r of 0.08, =p<0.01; and, r of 0.10, =p<0.001.
46. See Beverly Lozano, Independent Living: Relation Among Training, Skills, and Success, 98 AM. J. MENTAL RETARDATION 249 (1993);
47. Julie A. Racino & Judith E. Heumann, Independent Living and Community Life, GENERATIONS: AGING & DISABILITIES, Winter 1992, at 45.
48. Based on participants' views of their needs and opportunities, obtained from a responding subset. Inclusion into society results in enhanced personal satisfaction and perceptions of choice and control in life. See Wendy Parent, Quality of Life and Consumer Choice, in THE ADA MANDATE FOR SOCIAL CHANGE 19, 20, 27 (1993).
49. See, e.g., Mary Sinnott-Oswald et al., Supported and Sheltered Employment: Quality of Life Issues Among Workers with Disabilities, 26 EDUC. & TRAINING IN MENTAL RETARDATION 388, 388-97 (1991).
50. Effect size correlation between 1990 and 1994 income levels =0.44, t=12.54, p<0.001 (based on sample size of 639). In all analyses involving income (whether gross or earned), actual dollar amounts are transformed into "log dollars" using the natural log function, thereby reducing the influence of extreme values. See Empirical Study, supra note 10, at 888;
51. see also ERNEST R. BERNDT, THE PRACTICE OF ECONOMETRICS: CLASSIC AND CONTEMPORARY 161 (1991).
52. See Table 2, infra.
53. See Table 1.
54. Repeated measures analysis of variance: F(1, 1982)=3.09, p=0.08 (gender x year interaction); gender main effect not significant; F(1,1982)=897.45, p=0.0001 (integration in employment main effect).
55. From 1990 to 1994, younger relative to older participants show the greatest gains in total income (r=0.23).
56. Cf. Peter D. Blanck, "Buck versus the Bell Curve," Editorial for the Annenberg Washington Program (1995);
57. RICHARD J. HERNSTEIN & CHARLES MURRAY, THE BELL CURVE 162-66 (1994).
58. Scores range from 0 to 38.
59. See Empirical Study, supra note 10, at 891.
60. Scores range from 0 to 80.
61. Integrated and independent living is central to civil rights for people with disabilities. See Judith E. Heumann, Building Our Own Boats: A Personal Perspective on Disability Policy, in IMPLEMENTATION OF THE AMERICANS WITH DISABILITIES ACT, at 257 (Lawrence O. Gostin & Henry A. Beyer eds., 1993).
62. People with mental retardation who live in integrated settings show significant advancements in capabilities and participation in society. See Empirical Study, supra note 10, at 880-82;
63. Carol A. Howland et al., Independent Living Centers and Private Sector Rehabilitation's: A Dynamic Partnership for Implementing the ADA, 8 NARPPS J. 75, 75 (1993) (discussing how independent living improves empowerment, inclusion, and self-sufficiency).
64. For more detailed discussion of the four living types, see Empirical Study, supra note 10, at 880-83.
65. See Empirical Study, supra note 10, at 880 (discussing institutional litigation in Oklahoma and possible effect on sample under study).
66. Cf. Peter David Blanck, On Integrating Persons with Mental Retardation: The ADA and ADR, 22 N.M. L. Rev. 259, 261 (1992).
67. Repeated measures analysis of variance: F(1,3084)=1.56, p=0.19 (gender x year interaction); F(1,771)=12.28, p=0.0005 (gender main effect); F(1,3084)=2.77, p=0.03 (race x year interaction); F(1,771)=2.76, p=0.10 (race main effect).
68. Cf. 137 Cong. Rec. S11,107 (daily ed. July 26, 1991) (statement of Sen. Harkin) ("[T]he clearly implied promise of ADA is that all Americans with disabilities will be empowered to fulfill their potential. ..."); Justin W. Dart, Jr., The ADA: A Promise To Be Kept, in IMPLEMENTING THE ADA, supra note 55, at xxi, xxiv-xxv (discussing "empowerment policy").
69. See Empirical Study, supra note 10, at 883-85. The analyses examine the amount of meaningful contact by these participants with self-advocacy organizations (e.g., involvement with "People First"). The participants' family and governmental supports also are assessed. To assess job or skill educational goals, the model uses a measure consisting of work, self-care, recreation, independent living, communication, social skills, and citizenship factors.
70. See Michael D. West & Wendy S. Parent, Consumer Choice & Empowerment in Supported Employment, in SUPPORTED EMPLOYMENT, supra note 41, at 29, 38-40.
71. Repeated measures analysis of variance: F(1,2768)=3.10, p=0.02 (gender x year interaction); F(1,692)=6.87, p=0.009 (gender main effect).
72. Repeated measures analysis of variance: F(1,2776)=3.17, p=0.02 (skill x year interaction); F(1,694)=202.78, p=0.0001 (skill main effect). Skill level defined as high and low, based on median split.
73. Repeated measures analysis of variance: F(1,2768)=12.96, p=0.0001 (integration in living arrangement x year interaction); F(1,692)=157.18, p=0.0001 (integration in living arrangement main effect).
74. Findings for the other empowerment components show that from 1990 to 1994, family and governmental supports improve, reflecting increased involvement by families in mainstreamed education, independent living, and competitive employment. Cf. AMERICAN ASSOCIATION ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 1, 101-103 (1992).
75. JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 4 (1993).
76. Shapiro, supra note 67, at 183 ("When disabled people are herded into sheltered workshops to earn below minimum wage salaries for piecework, employers lose the impetus to hire good workers, and taxpayers foot the bill."). See also Parent, supra note 44, at 27 (high satisfaction of persons with mental retardation in sheltered employment who move to supported employment).
77. The 1994 Harris data show that more persons with disabilities believe access to employment opportunities has improved since 1990 than believe it has regressed (44% vs. 28%). For public transportation the percentages are 60% and 13%, respectively, and for public facilities the percentages are 75% and 6%.
78. Although the findings show changes from 1990 to 1992 on many of the measures, after 1992 changes occur at a less dramatic pace. See THOMAS D. COOK & DONALD T. CAMPBELL, QUASI-EXPERIMENTATION: DESIGN & ANALYSIS ISSUES FOR FIELD SETTINGS (1979).
79. Repeated measures analysis of variance: F(1,3120)=3.27, p=0.02 (integration in employment x year interaction); F(1,780)=2.70, p=0.11 (integration in employment main effect).
80. See Empirical Study, supra note 10, at 900-07.
81. See Empirical Study, supra note 10, at 907-10;
82. Pat Rogan & Stephen Murphy, Supported Employment & Vocational Rehabilitation: Merger or Misadventure?, J. REHAB., Apr./May/June 1991, at 39-42. The profiles do not represent a prescriptive list of the dimensions necessary to predict a participant's employment movement.
83. Thirty percent of the subgroup (46 of 153) are unemployed in 1990 and 1994, compared to 14% of the entire sample.
84. Monthly earned income in actual dollars ranged from $0 to $1600, with a mean of $83.
85. For degree of integration in employment (t=5.38, p<0.001), earned income (t=6.06, p<0.001), job skills (t=5.48, p<0.001), independence in living (t=8.68, p<0.001), job and life satisfaction (t=2.10, p=0.05), and selfadvocacy (t=2.35, p=0.02). Also, for family and government support (t=2.99, p=0.003), and for vocational educational goals (t=-7.50, p<0.001).
86. Cf. William J. Hanna & Elizabeth Rogovsky, On the Situation of African-American Women with Physical Disabilities, 23 J. APPLIED REHAB. COUNSELING 39-45 (1992) (25% of black women with disabilities are employed full time, as compared to 77% of white men, 44% of white women, and 57% of black men with disabilities).
87. See Paul Wehman, Employment Opportunities and Career Development, in THE ADA MANDATE FOR SOCIAL CHANGE 145, 154 (Paul Wehman ed., 1993).
88. See Wehman, supra note 78, at 54-58.
89. See NATIONAL ACADEMY OF SOCIAL INSURANCE, supra note 3, at 109-10 ("workers with limited skills who also have disabilities are doubly disadvantaged").
90. LOUIS HARRIS & ASSOCIATES, SURVEY OF AMERICANS WITH DISABILITIES 37 (1994) (adults with disabilities perceive insufficient finances, lack of full social life, and inadequate health insurance, as serious problems).
91. See IMPLEMENTATION OF THE AMERICANS WITH DISABILITIES ACT: RIGHTS AND RESPONSIBILITIES OF ALL AMERICANS 3 (Lawrence O. Gostin & Henry A. Beyer eds., 1993).
92. See ADA Watch, supra note 6, at 63.
93. 2=45.51, p=0.0001 (for high skill group, with 75% in nonintegrated employment in 1990 and 1994).
94. REPORT TO THE PRESIDENT: THE NATIONAL REFORM AGENDA AND CITIZENS WITH MENTAL RETARDATION, U.S. DEPT. HEALTH & HUM. SER., PRES. COMM. MENTAL RETARDATION 16-17 (1994).
95. Harkin, supra note 33, at 936.
96. See, e.g., Donohue, supra note 13, at 2611 (noting expansion of guarantees to workers covered by the ADA).
97. Donohue, supra note 13, at 2611.
98. See Blanck, supra note 23, at 103-104.
99. See EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, National Database Charge Receipt Listing, Aug. 8, 1993, at 55.
100. See Empirical Study, supra note 10, at 921.
101. See BNA Management Briefing, Eeoc: Casellas Says New Litigation Procedure Will Free Commission for More Policy Work, Apr. 21, 1995 (referring to Labor Department Report finding no widespread abuse of affirmative action,
102. citing Alfred W. Blumrosen, How Courts Are Handling Reverse Discrimination Claims, 56 DLR d22, AA1, Mar. 23, 1995, at E-1.
103. See BNA Management Briefing, supra note 92, (concluding that EEOC is not an affirmative action agency). Cf. Milton v. Scrivner, 1995 U.S. App. LEXIS 9384 (10th Cir. Apr. 21, 1995) (concluding that altering employer's production standards is not reasonable accommodation, and employer may make changes to its business to increase profit even though they impact on persons with disabilities).
104. 42 U.S.C. 12112 §102b(5)(B).
105. See Wehman, supra note 78, at 255.
106. See generally Alan J. Tomkins & Victoria Weisz, Social Science, Law, and the Interest in a Family Environment for Children with Disabilities, TOLEDO L. REV. (forthcoming 1995).
107. See Blanck, supra note 26. See also Peter D. Blanck, Communicating the Americans with Disabilities Act: Transcending Compliance: 1996 Follow-up Report on Sears Roebuck and Co. (Annenberg Washington Program Report, forthcoming 1996).
108. See Peter D. Blanck et al., Implementing Reasonable Accommodations Using ADR Under the ADA: A Case of a White Collar Employee vnth Bipolar Mental Illness, 18 MENTAL & PHYSICAL DISABILITY L. REP. 458 (1994) (empirical information provides feedback to employers and employees about ADA implementation, reducing litigation costs).
109. See Empirical Study, supra note 10, at 866-67 (citing studies).
110. See Blanck, supra note 26, at 28-29. Thus, even in under an "intrinsic quality standard" discussed by Donohue, supra note 13, an employer as a nondiscriminating market participant may choose to employ a qualified person with a disability and not distort efficient market decision making.
111. See Blanck, supra note 26, at 34 (Sears study findings).
112. 46 F.3d 325 (3d Cir. 1995).
113. Id. at 332 (decided under Title II of the act).
114. Id. at 334.
115. Cf. Blumrosen, supra note 92 (conclusions regarding race and gender employment disputes).