Public funding for disability accommodations: A rational solution to rational discrimination and the disabilities of the ADA

Harvard Civil Rights-Civil Liberties Law Review

Volumn 33, Issue 1, 1998, Pages 196-236

  Moss, Scott A ^a,b   Malin, Daniel A ^c  

^a STANFORD UNIVERSITY   (United States)

^b HARVARD LAW SCHOOL   (United States)

^c HARVARD COLLEGE   (United States)

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[No Author keywords available]

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EID: 11544366872     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (246)

1. 42 U.S.C. §§ 12101-12213 (1994).
2. See 42 U.S.C. § 12112(b)(5) (1994).
3. See 42 U.S.C. §§ 12111(10), 12112(b)(5)(A) (1994).
4. See 42 U.S.C. § 12111(5)(A) (1994) (exempting employers of fewer than 15 workers).
5. See RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 480-94 (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS]; Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK 18-30 (Carolyn L. Weaver ed., 1991); Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495 (1995); Ron A. Vassel, The Americans with Disabilities Act: The Cost, Uncertainty and Inefficiency, 13 J.L. & COM. 397 (1994).
6. See RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 480-94 (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS]; Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK 18-30 (Carolyn L. Weaver ed., 1991); Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495 (1995); Ron A. Vassel, The Americans with Disabilities Act: The Cost, Uncertainty and Inefficiency, 13 J.L. & COM. 397 (1994).
7. See RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 480-94 (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS]; Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK 18-30 (Carolyn L. Weaver ed., 1991); Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495 (1995); Ron A. Vassel, The Americans with Disabilities Act: The Cost, Uncertainty and Inefficiency, 13 J.L. & COM. 397 (1994).
8. See RICHARD EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 480-94 (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS]; Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK 18-30 (Carolyn L. Weaver ed., 1991); Mark A. Schuman, The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act, Liberty, and Markets, 10 ST. JOHN'S J. LEGAL COMMENT. 495 (1995); Ron A. Vassel, The Americans with Disabilities Act: The Cost, Uncertainty and Inefficiency, 13 J.L. & COM. 397 (1994).
9. Richard H. Nakamura, Jr., Pride & Prejudice in the Workplace, FED. LAW., June 1996, at 22.
10. See generally John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REV. 983, 1024 (1991) (describing the employer's uncertain hiring decision process when faced with the current individualized, lawsuit-based discrimination regime).
11. See R. Bales, Libertarianism, Environmentalism, and Utilitarianism: An Examination of Theoretical Frameworks for Enforcing Title I of the Americans with Disabilities Act, 1993 DET. C.L. REV. 1163 (1993).
12. See Development in the Law, Employment Discrimination: The Americans with Disabilities Act: Great Progress, Greater Potential, 109 HARV. L. REV. 1602, 1609-10, 1615-16 (1996) [hereinafter Great Progress].
13. See Peter David Blanck, Assessing Five Years of Employment Integration and Economic Opportunity Under the Americans with Disabilities Act, 19 MENTAL & PHYSICAL DISABILITY L. REP. 384, 386-90 (1995) [hereinafter Blanck, Employment Integration].
14. See also Peter David Blanck, The Economics of the Employment Provisions of the Americans with Disabilities Act: Part I - Workplace Accommodations, 46 DEPAUL L. REV. 877 (1997) [hereinafter Blanck, Workplace Accommodations];
15. Peter David Blanck, Transcending Title I of the Americans with Disabilities Act: A Case Report on Sears, Roebuck and Co., 20 MENTAL & PHYSICAL DISABILITY L. REP. 278, 283 (1996) [hereinafter Blanck, Transcending Title I].
16. See, e.g., Sue A. Krenek, Beyond Reasonable Accommodation, 72 TEX. L. REV. 1969, 1974 (1994).
17. See, e.g., Great Progress, supra note 9, at 1623-24 (describing improvement to the ADA framework without mentioning public funding).
18. Apart from the common knowledge that discrimination persists, several studies have documented specific magnitudes and forms of discrimination. See Kwabena Gyimah-Brempong & Rudy Fichtenbaum, Black-White Wage Differential: The Relative Importance of Human Capital and Labor Market Structures, 21 REV. BLACK POL. ECON. 19 (1993) (finding systemic wage gaps beyond factors traceable either to traditional productivity characteristics or to personal characteristics of the worker).
19. See RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 651-52, 658-59 (4th ed. 1992); EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 42-47, 76.
20. See RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 651-52, 658-59 (4th ed. 1992); EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 42-47, 76.
21. See, e.g., Nancy E. Dowd, Liberty vs. Equality: In Defense of Privileged White Males, 34 WM. & MARY L. REV. 429, 436 (1993) (calling Epstein's Forbidden Grounds "a defense of th[e] position and the community of privileged white males").
22. See John J. Donohue III, Is Title VII Efficient?, 134 U. PA. L. REV. 1411, 1418-19 (1986) [hereinafter Donohue, Title VII].
23. See, e.g., POSNER, supra note 14, at 651-53, 658-59; EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 42-47.
24. See POSNER, supra note 14, at 652 ("The tendency for the market to be dominated by firms with the least prejudice . . . is weaker under monopoly.").
25. See id. at 287-88 (noting that, for example, cheating on a price-fixing agreement is harder when the goods are homogeneous, which makes price deviations more obvious).
26. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: How NEIGHBORS SETTLE DISPUTES 55-59 (1991) (noting that people who share multiple relationships are less likely to violate an unofficial norm in one relationship for fear of risking damage to another).
27. See Kim B. Clark & Richard B. Freeman, How Elastic is the Demand for Labor?, 62 REV. ECON. & STAT. 509, 518 (1983) (estimating elasticity of labor demand at .4 to .5).
28. In comparison to the labor market, the stock market is less likely to feature shared opinions that inhibit entry into undervalued areas. See John J. Donohue III, Employment Discrimination in Perspective: Three Concepts of Equality, 92 MICH. L. REV. 2583, 2595 (1994) [hereinafter Donohue, Three Concepts].
29. Labor surpluses may occur for many reasons, such as the employer practice of paying above-market wages in order to induce worker competition. See David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 CAL. L. REV. 493, 499, 517-20 (1996).
30. See Donahue, Three Concepts, supra note 22, at 2595-96 (discussing the limited return to finding an undervalued worker in the labor market and contrasting it to the huge potential profits yielded by a search for an undervalued stock in the capital market).
31. See, e.g., James B. Stewart, Recent Perspectives on African-Americans in Post-Industrial Labor Markets, 87 AM. ECON. REV. 315 (1997) (discussing studies of statistical discrimination).
32. See, e.g., Donohue, Three Concepts, supra note 22, at 2608-09.
33. See Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE LJ. 1, 8-9 (1996). This perception is evident in, and inflamed by, anti-ADA articles holding out abnormally high damage awards as typical of ADA cases. See infra note 70.
34. For example, Blanck, while emphasizing the cheapness of most accommodations, notes that for Sears, the cost of an automatic door opener, a typical accommodation for employees in wheelchairs, was $1,198, and the cost of Braille displays and related technologies to accommodate the visually impaired was $21,000. See Blanck, Transcending Title I, supra note 10, at 279-80.
35. See Carolyn L. Weaver, Incentives versus Controls in Federal Disability Policy, in DISABILITY AND WORK, supra note 5, at 11-12.
36. See Donohue, Three Concepts, supra note 22, at 2598.
37. See, e.g., EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 32-34; Bales, supra note 8, at 1208 (discussing, but not supporting, this position).
38. See, e.g., Bales, supra note 8, at 1212-13.
39. See, e.g., Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979): [C]lever men may easily conceal their motivations. As overtly bigoted behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared. It means that when a discriminatory effect is present, the courts must be alert to recognize means that are subtle and explanations that are synthetic. (citations and quotation marks omitted).
40. In probably the classic case of pretextual assertions of rational discrimination, Korematsu v. United States, 323 U.S. 214 (1944), the asserted neutral wartime security rationale for interning Japanese Americans was both overinclusive (encompassing Japanese Americans born citizens in this country, for whom the fear of "foreign loyalty" was most spurious) and underinclusive (leaving other nationalities not subject to the restriction).
41. See, e.g., JOSEPH STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 213-35 (2d ed. 1988).
42. See, e.g., THOMAS SCHELLING, MICROMOTIVES AND MACROBEHAVIOR 124-33 (1978) (giving examples of such behavior).
43. POSNER, supra note 14, at 12. If, for example, a nondiscriminatory labor market would yield a wage of $20,000 while a racist market yields a white wage of $25,000 and an African American wage of $15,000, then the African American worker loses more utility than the white worker gains, because going from $20,000 to $15,000 hurts more than going from $20,000 to $25,000 helps.
44. See, e.g., Evan S. Schechter, Work While Receiving Disability Insurance Benefits: Additional Findings From the New Beneficiary Followup Survey, 60 Soc. SECURITY BULL., No. 1, at 3, 4, 17 (1997) (showing 22% of federal disability insurance recipients working within a decade after receiving benefits, a majority of whom did not attribute their working to improved health).
45. See id. at 3 (listing several of these incentives).
46. See, e.g., Valerie Leiter et al., Case Management at Work for SSA Disability Beneficiaries: Process Results of the Project NetWork Return-to-Work Demonstration. 60 Soc. SECURITY BULL., No. 1, at 29 (1997) (assessing one such pilot program).
47. See 20 C.F.R. § 404.1581-.1587 (1997).
48. See 20 C.F.R. § 404.1560-.1569a (1997). For example, a worker with a back injury, limited education, and no transferable skills may qualify as "disabled" only when his or her labor market prospects fall below the point at which work is realistically available.
49. Estimates of unemployment levels for persons with disabilities range from 50 to 90%. See Blanck, Employment Integration, supra note 10, at 389 (citing P. Wehman, Employment Opportunities and Career Development, in THE ADA MANDATE FOR SOCIAL CHANGE 145, 154 (1993)). Of those unemployed, 66% would like to have jobs. See MICHAEL ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 740 (3d ed. 1994).
50. Estimates of unemployment levels for persons with disabilities range from 50 to 90%. See Blanck, Employment Integration, supra note 10, at 389 (citing P. Wehman, Employment Opportunities and Career Development, in THE ADA MANDATE FOR SOCIAL CHANGE 145, 154 (1993)). Of those unemployed, 66% would like to have jobs. See MICHAEL ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 740 (3d ed. 1994).
51. Estimates of unemployment levels for persons with disabilities range from 50 to 90%. See Blanck, Employment Integration, supra note 10, at 389 (citing P. Wehman, Employment Opportunities and Career Development, in THE ADA MANDATE FOR SOCIAL CHANGE 145, 154 (1993)). Of those unemployed, 66% would like to have jobs. See MICHAEL ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 740 (3d ed. 1994).
52. See infra note 220 and accompanying text for detailed figures.
53. Cf. Jerry Mashaw, Against First Principles, 31 SAN DIEGO L. REV. 211, 218-19 (1994) (discussing non-monetary benefits of employment received by persons with disabilities).
54. See generally Bales, supra note 8, at 1217 (discussing the difficulty of quantifying costs and benefits).
55. Richard Epstein, Standing Firm, On Forbidden Grounds, 31 SAN DIEGO L. REV. 1, 21-22 (1994) [hereinafter Epstein, Standing Firm].
56. EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 42.
57. Id. at 75.
58. For example, some African Americans, anticipating the inconvenience and humiliation of being denied rides by racist taxi drivers, tend to avoid activities that require taxi rides. We thank Coy Ross for this example of the pervasive opportunity costs discrimination imposes.
59. See, e.g., Bales, supra note 8, at 1209 (describing this phenomenon for a deaf individual).
60. See Wilkins & Gulati, supra note 23, at 574-80.
61. The risk-averse reject marginally profitable bets (positive expected value) while the risk-seeking accept marginally unprofitable bets (negative expected value). The risk-neutral maximize expected outcome by choosing between options based on their expected values without regard to their relative uncertainty. See, e.g., MICHAEL L. KATZ & HARVEY S. ROSEN, MICROECONOMICS 178-80 (2d ed. 1994).
62. See, e.g., Bales, supra note 8, at 1211-12.
63. For example, hiring people with disabilities may ameliorate a problem of under-employment that imposes costs on government, the worker's family, and others.
64. See, e.g., Mashaw, supra note 45, at 222-24.
65. See, e.g., STIGLITZ, supra note 35, at 120, 122-23 (noting the free rider problem for goods that provide benefits to others than those who pay the price tag).
66. Voice-recognition and speech synthesis for computers, for example, also benefit the non-disabled. See, e.g., Bill Gates, Helping People with Disabilities Helps Everyone, BUFFALO NEWS, Aug. 19, 1997, at D7.
67. See STIGLITZ, supra note 35, at 120-25. Patent law also supports innovation by letting inventors keep the benefits of invention, but this has limited application to firm accommodation experiments, which are more likely new uses of existing products rather than inventions of original products.
68. See, e.g., ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN'S LIFE 153-77 (1946) (recounting Brandeis's drive for government action to facilitate provision of affordable life insurance). Insurance and capital markets are typical examples of incomplete markets for goods that are critical to the individuals who need them but too risky for rational actors to provide because of the limited information as to how severe the costs will be. See STIGLITZ, supra note 35, at 76-77. Disability accommodations are an example of such a needed good.
69. See, e.g., Karlan & Rutherglen, supra note 27, at 23-24.
70. See, e.g., Schuman, supra note 5, at 509.
71. More mildly, individuals may be apathetic toward the firm's interests, declining to bear personal search costs that would provide great benefits to the firm.
72. See, e.g., DAVID G. MYERS, SOCIAL PSYCHOLOGY 119-20 (3d ed. 1990).
73. See id.
74. For example, most people wrongly guess that more women die from pregnancy, abortion, and childbirth than from appendicitis. See Massimo Piatelli-Parmarini, Probability Blindness: Neither Arbitrary nor Capricious, BOSTONIA, Mar.-Apr. 1991, at 28, 31-32.
75. See, e.g., STEPHEN G. BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 35-36 (1995).
76. See, e.g., id. at 36.
77. See BRUCE M. OWEN, ECONOMICS AND FREEDOM OF EXPRESSION: MEDIA STRUCTURE AND THE FIRST AMENDMENT 1-31 (1975).
78. See, e.g., Fawn Germer, Divided We Stand: The Clash of Rights in America. Disability Access Law Can Clobber; Businesses Buck Change, Get Sued, Lose, COM. APPEAL, Oct. 15, 1996, at A1. This well-publicized piece in a syndicated series on discrimination described a handful of five-figure ADA judgments as stemming from claims over which "the EEOC routinely takes employers to court and wins." Id.
79. For a seminal study of confirmation bias, see P.C. Wason, On the Failure to Eliminate Hypotheses in a Conceptual Task, 12 Q. J. EXPERIMENTAL PSYCHOL. 129 (1960) (finding that after people make initial, premature guesses as to a numerical pattern, they skew their interpretation of subsequent evidence in straining to preserve the initial guess).
80. See, e.g., Bales, supra note 8, at 1212. This problem also plagues firms, which may retain a firm "ideology" that limits the possibilities it can see. See, e.g., Wilkins & Gulati, supra note 23, at 515 n.67.
81. For example, viewing successful persons with disabilities as "exceptions."
82. For example, people tend to buy media that reinforce their views (e.g., Mother Jones purchasers tend to be liberal; The National Review purchasers tend to be conservative).
83. See Francis Kim, Discriminatory Tastes: Social Darwinism and Discrimination in the Labor Market (1997) (unpublished manuscript, on file with the Harvard Civil Rights-Civil Liberties Law Review).
84. See, e.g., Bales, supra note 8, at 1205 (noting that bigoted tastes may well be mutable by legal norms).
85. See Donahue & Siegelman, supra note 7, at 1023.
86. See id. at 1004 (finding lower rate of suit based on discrimination than on other actionable wrongs).
87. See POSNER, supra note 14, at 519-20, 554-56; Donahue & Siegelman, supra note 7, at 1007.
88. This can be seen as either irrationality or a manifestation of a taste for revenge that is rational in the long term because someone "known in advance to have that preference is not likely to be tested by aggression in the first place." ROBERT H. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS 5 (1988).
89. Even if potential plaintiffs will sacrifice monetary self-interest to their emotions in pursuing unpromising suits, their potential lawyers (at least those working on a contingency fee) probably will not. Moreover, willingness to sacrifice material well-being for emotional preferences is limited by the dollar stakes of the sacrifice. See Matthew Rabin, Incorporating Fairness into Game Theory and Economics, 83 AM. ECON. REV. 1281-83 (1993). This indicates that emotional behavior is not "damn-the-torpedoes" irrationality but a rational tradeoff between monetary and non-monetary preferences.
90. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989) (quoting Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 638 (5th Cir. 1985)).
91. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
92. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 523-24 (1993) (reversing grant of summary judgment to plaintiff who proved pretext because a reasonable factfinder could still find for a defendant "whose proffered reason is unpersuasive or even obviously contrived").
93. See Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997) (en bane) (reversing factfinder verdict for plaintiff who proved pretext). While it is not certain other circuits will follow Vassar, the Hicks/Vassar line illustrates a new judicial strictness further burdening plaintiffs who face the already difficult task of indirectly proving discriminatory motive.
94. See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) (holding that statistical evidence of a disparity between the firm's work force and the labor pool can make a prima facie case of a pattern or practice of discrimination).
95. See Karlan & Rutherglen, supra note 27, at 18.
96. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) (rejecting plaintiff's statistics because they only proved that the employer was less diverse than the general population, not than the relevant pool of qualified workers).
97. For example, even if a firm's work force is Q% disabled while the population is 10Q% disabled, it is unclear what share of the 10Q% may not be qualified for the job. If only 10% of the disabled could perform the job, then the firm is hiring the expected amount.
98. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
99. See Karlan & Rutherglen, supra note 27, at 2-3.
100. See Green, 411 U.S. at 802 (1973).
101. See generally Donohue & Siegelman, supra note 7, at 1012 (noting that the more segregated the labor force, the more difficult it is to find comparative evidence illustrating discriminatory, disparate treatment).
102. See Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (permitting back pay award in race discrimination case).
103. See, e.g.. Farber v. Massillon Bd. of Educ., 917 F.2d 1391 (6th Cir. 1990), cert. denied, 498 U.S. 1082 (1991) (allowing petitioner suing for sex and age discrimination to demand, in lieu of appointment, the wages she would have received absent discrimination).
104. In Title VII and ADA suits, compensatory and punitive damages are available only for disparate treatment discrimination, not for disparate impact discrimination and are capped at $50,000-$300,000, depending on the employer's size. See 42 U.S.C. § 1981a(b)(3) (1994). Additionally, punitive damages are available only where the defendant acted with "malice or reckless indifference" to the plaintiff's statutory rights. 42 U.S.C. § 1981a(b) (1994). And in civil rights suits generally, courts will not presume mental distress supporting compensatory damages; plaintiffs must prove actual injury, whether mental or physical. See Carey v. Piphus, 435 U.S. 247 (1978).
105. See, e.g., Cassino v. Reichhold Chems., Inc., 817 F.2d 1338 (9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988) (reversing a front pay award that did not sufficiently consider plaintiff's ability to mitigate his damages by working for some length of time before eventually retiring).
106. See POSNER, supra note 14, at 660; Donohue & Siegelman, supra note 7, at 1006-08. Of course, with the diminishing marginal utility of money, a small award may mean more to a low-wage worker than a large award means to a high-wage worker with a hefty bank account and other job options. But high-wage workers may have additional need for judicial vindication (e.g., a white-collar worker needing a spotless record).
107. For example, if someone loses a 9-to-5 minimum-wage job, but then obtains a similar job after two weeks, total lost wages are $412. Assuming an unrealistic 90% chance of victory and an 1/3 contingency fee, the attorney could expect to collect $123.60, which would not attract many lawyers.
108. FED. R. Civ. P. 68.
109. See 42 U.S.C. § 1981a(a)(3) (1994). See also Karlan & Rutherglen, supra note 27, at 20-21.
110. See Karlan & Rutherglen, supra note 27, at 34-37.
111. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
112. See, e.g., Joseph R. Grodin, Arbitration of Employment Discrimination Claims: Doctrine and Policy in the Wake of Gilmer, 14 HOFSTRA LAB. LJ. 1, 4-5, 5 n.6 (1996) (citing U.S. GEN. ACCOUNTING OFFICE, GAO/HEHS-95-150, EMPLOYMENT DISCRIMINATION: MOST PRIVATE-SECTOR EMPLOYERS USE ALTERNATIVE DISPUTE RESOLUTION 7 (1995), which says that 10% of employers use mandatory ADR for non-union employees and that 8.4% more were considering doing so, and citing Mei L. Bickner et al., Developments in Arbitration For Unrepresented Employees (unpublished manuscript, on file with the Hofstra Labor Law Journal), which says that 85% of the procedures reported began after Gilmer).
113. 105 The following provisions are exemplary: that the employee pay several hundred dollars of the arbitrator's fee, that the employee has limited or no right to discovery or legal representation, and that the employer unilaterally chooses the arbitrator. See Grodin, supra note 104, at 5, 5-6 n.8 (citing Bickner, supra note 104).
114. Grodin, supra note 104, at 2.
115. See supra notes 78 and accompanying text.
116. See Donohue & Siegelman, supra note 7, at 984 (discussing discrimination generally).
117. See id. at 1031.
118. M. at 1008 (citing a sample of non-white employment discrimination plaintiffs).
119. These do not include litigation expenses, which discrimination plaintiffs do not advance under the common practice of contingency fees, but which may be a factor in an arbitration. See supra note 105.
120. See ELLICKSON, supra note 20, at 60-62 (studying disputes among ranchers in an insular county).
121. See, e.g., Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89-90 (2d Cir. 1996) (finding a "constructive discharge" claim to be reasonable where plaintiff resigned in the face of intolerable conditions such as disproportionate, abusive criticism and writing on the wall as to her lack of future prospects).
122. See, e.g., Americans with Disabilities Act of 1990, 42 U.S.C. § 12203 (1995) (declaring employer retaliation against an ADA employment discrimination claimant a form of ADA-covered discrimination).
123. See Karlan & Rutherglen, supra note 27, at 20. In a harassment suit, in contrast, the desired end more likely does not entail affirmative employer effort, but rather that the employer leave the plaintiff alone. While the employer may be intransigent, courts can find and penalize intransigence more easily than a lackluster effort to accommodate.
124. On the other hand, high-wage workers may suffer more from termination, as they have more cash and power to lose, and more low-wage jobs exist as good substitutes for low-wage workers. See Donohue & Siegelman, supra note 7, at 1007. But low-wage workers are less likely to have the substantial bank accounts to carry them through rough spells, and due to the diminishing marginal utility of money, their low wage may mean more to them than the high wage does to a wealthier worker.
125. See Karlan & Rutherglen, supra note 27, at 20, 33.
126. For example, the market power problem also varies by race. In 1995, 82% of racial minorities with disabilities were not working, compared to 67% unemployment for all persons with disabilities. See Julie Bennett, An Extra Challenge: Job Search Strategies for People with Disabilities, CHI. TRIB., Dec. 29, 1996, § 18, at 20.
127. See Mary Conroy, Workers With Mental Illness Deserve Support, CAP. TIMES, May 14, 1997, at 1C.
128. Blanck, Employment Integration, supra note 10, at 389. See also Roger O. Crockett, Disabled Discrimination Claims Climb Sharply, PORTLAND OREGONIAN, Aug. 1, 1996, at B1 (reporting that about 70% of disability discrimination claims filed with the Oregon Bureau of Labor and Industries "are from workers with neck sprains, bad backs and knees, asthma and psychological problems, such as depression").
129. Blanck, Employment Integration, supra note 10, at 389. See also Roger O. Crockett, Disabled Discrimination Claims Climb Sharply, PORTLAND OREGONIAN, Aug. 1, 1996, at B1 (reporting that about 70% of disability discrimination claims filed with the Oregon Bureau of Labor and Industries "are from workers with neck sprains, bad backs and knees, asthma and psychological problems, such as depression").
130. See Donohue & Siegelman, supra note 7, at 993, 994 n.28 (reporting the "ability to detect violations of one's rights . . . [as legally actionable] depends not only on the grossness of the violation but also on one's education [and] legal sophistication").
131. See id. at 993.
132. See id. at 1032.
133. This is distinguishable from "quid pro quo" harassment in which the employer ties the employee's job status to consent to abuse. See. e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).
134. Great Progress, supra note 9, at 1625.
135. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (1994).
136. The long-term trend of narrowing race and gender wage gaps accelerated rapidly when Title VII took effect in the mid-1960s, but began to slow in the 1970s. By the 1980s, the rate of progress toward wage parity for black women dipped below pre-1965 levels. See Augustin Kwasi Fosu, Occupational Gains of Black Women Since the 1964 Civil Rights Act: Long-Term or Episodic?, 78 AM. ECON. REV. 311-13 (1997).
137. Id. at 314.
138. See id. at 311.
139. See Elizabeth Bartholet, Application of Title VII to Jobs in High Places, 95 HARV. L. REV. 947 (1982).
140. See supra note 110 and accompanying text.
141. See Blanck, Employment Integration, supra note 10, at 389.
142. See supra notes 94-99 and accompanying text.
143. See, e.g., Donohue & Siegelman, supra note 7, at 1032.
144. See Fesel v. Masonic Home of Del., Inc., 447 F. Supp. 1346 (D. Del. 1978), aff'd, 591 F.2d 1334 (3d Cir. 1979).
145. For example, the preferences of male customers, colleagues, etc., generally cannot justify the exclusion of women. See, e.g., United States v. Virginia, 116 S. Ct. 2264 (1996) (finding that all-male state military academy denied equal protection to women). Additionally, blindness in one eye may not justify categorical exclusion from driving jobs. See, e.g., Eleanor Korry, All Things Considered: Sue Your Employer (National Public Radio broadcast, June 24, 1997) (recounting a suit against UPS in which the EEOC is siding with the plaintiff).
146. See supra Parts I.A.2 (incomplete information) and I.A.4.b (skewed basis for estimates).
147. See generally Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) (holding that under the Age Discrimination in Employment Act, airlines cannot categorically exclude the elderly from pilot jobs based on generalized health concerns, but rather must scrutinize the health of individual pilots).
148. See, e.g., Mashaw, supra note 45, at 219.
149. See supra note 28.
150. Consumer demand initially may be inelastic where consumers lack ready alternatives and all producers pass along similar costs. But over time, price increases make demand more elastic by inducing consumers to think of alternatives and alter their habits, as well as by spurring entry into the market by new producers of rough substitutes and foreign competitors not subject to workplace regulation. The increase in consumer options generated by this competition limits the ability of firms to pass along costs to consumers.
151. See, e.g., Great Progress, supra note 9 (discussing case law on the undue hardship standard).
152. See, e.g., Richard Corenthal, Balancing Interests Under the ADA, N.Y. L.J., July 2, 1993, at 1 (discussing case law on the safety exception).
153. See Donohue, Three Concepts, supra note 22, at 2608-12.
154. See supra Part I.B.1.
155. See Donohue & Siegelman, supra note 7, at 1025.
156. See, e.g., POSNER, supra note 14, at 338.
157. See, e.g., Schuman, supra note 5, at 506-07.
158. For example, where industry pay scales or collective bargaining agreements fix wages, or where employers find it advantageous to fix wages, there is little opportunity for employers to pass along costs. See Wilkins & Gulati, supra note 23, at 517-18.
159. See Leo T. Crowley & Lisa Schneider, 'Reasonable Accommodation' - Initiating the Process, N.Y. L.J., Feb. 29, 1996, at 3.
160. For example, making ladders safer by allowing product liability suits makes ladders more expensive. The resulting substitution to "jerry-rigged ladder substitutes," such as standing on stacked chairs, may decrease overall safety. See Stephen F. Williams, Second-Best: The Soft Underbelly of Deterrence Theory in Tort, 106 HARV. L. REV. 932, 934-36 (1993); Donohue, Three Concepts, supra note 22, at 2588 n.19.
161. For example, making ladders safer by allowing product liability suits makes ladders more expensive. The resulting substitution to "jerry-rigged ladder substitutes," such as standing on stacked chairs, may decrease overall safety. See Stephen F. Williams, Second-Best: The Soft Underbelly of Deterrence Theory in Tort, 106 HARV. L. REV. 932, 934-36 (1993); Donohue, Three Concepts, supra note 22, at 2588 n.19.
162. See, e.g., Schuman, supra note 5, at 506-07.
163. See, e.g., POSNER, supra note 14, at 271-85 (discussing the efficiency consequences of monopoly).
164. The Federal Communications Commission recently ran into such a problem in Boston. Federal rules require radio stations to charge all political candidates below-market ad rates but do not compel the stations to carry the ads of non-federal candidates. In the dull 1997 election season, several stations refused to carry city candidates' ads. See Anthony Flint, Radio Stations Reject Local Campaign Ads, BOSTON GLOBE, Oct. 22, 1997, at B1, B6.
165. For example, if, absent government intervention, employers perceive compliance to be $100 more expensive than non-compliance, then government can reverse this incentive with either a tax of $300 on non-compliance or a subsidy of $300 for compliance, both of which make it $200 cheaper to comply than not to comply.
166. See, e.g., POSNER, supra note 14, at 225. For example, if the optimal penalty is $100, government can opt to punish only 10% of the time, but with a $1,000 fine. To the extent that those punished are risk-averse, the enforcement rate can go even lower. See id. at 225-26.
167. See supra Part I.B.1.a.
168. See, e.g., POSNER, supra note 14, at 221-22.
169. See EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 493-94; Krenek, supra note 11, at 2007-13; Mashaw, supra note 45, at 231-37; Rosen, supra note 5, at 29-30.
170. See, e.g., Wilkins & Gulati, supra note 23, at 595 (mentioning, in a discussion of different ways to attack discrimination, a promising program in which a bar association stimulated demand for the services of equal-opportunity employers, aiming to make compliance a more financially attractive prospect).
171. See Griggs v. Duke Power Co., 401 U.S. 424 (1971) (prohibiting use by employers of employment tests that have discriminatory effects but no relevance to job performance). See also Pregnancy Discrimination Act, 42 U.S.C. §2000e(k) (1997).
172. Bertrand Russell, The Harm that Good Men Do, in SCEPTICAL ESSAY 84, 91 (3d ed. 1977) ("The man who abstains from certain acts labeled 'sin' is a good man, even though he never does anything to further the welfare of others.").
173. See EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 493-94.
174. See Mashaw, supra note 45, at 231-37. The logic of Mashaw's tax/permit system is similar to that of tradable pollution rights for environmental protection. See, e.g., Larry E. Ruff, The Economic Common Sense of Pollution, in STUDY GUIDE AND READINGS FOR STIGLITZ'S ECONOMICS OF THE PUBLIC SECTOR 98 (Edward C. Kienzle ed., 2d ed. 1989).
175. See Krenek, supra note 11, at 2009-13.
176. See EPSTEIN, FORBIDDEN GROUNDS, supra note 5. at 493 ("[F]ederal grants can be made to particular firms, to be spent in making their facilities accessible to certain classes of disabled persons. Some plants could be made accessible to wheelchairs, others to the blind.").
177. See id. at 491-94.
178. See Mashaw, supra note 45, at 231.
179. See id. at 232. Firms that can make accommodations cheaply will do so and sell their waivers to firms that can only accommodate at high cost, if at all.
180. A key rationale of the Act is that the federal government is uniquely suited to serve as a "model employer" of the disabled. The government is able to hire a high concentration of disabled workers, spread accommodation costs across all taxpayers, and develop new technologies that the market under-provides. See Karlan & Rutherglen, supra note 27, at 28-29, 38.
181. See Karlan & Rutherglen, supra note 27, at 32.
182. See, e.g., WILLIAM J. BAUMOL & ALAN S. BLINDER, ECONOMICS PRINCIPLES AND POLICIES 569 (6th ed. 1994).
183. Cf. supra notes 117-118 and accompanying text.
184. When consumer demand shifts between goods, the demand for labor shifts correspondingly; workers maximize their welfare by following. If the government had been providing grants to a typewriter factory as personal computers burgeoned in popularity, then workers in the typewriter factory town would be almost entirely left out of society's shift in demand. Cf. N. GREGORY MANKIEW, MACROECONOMICS 127 (1997).
185. For example, if the only wheelchair-accessible factory in Dubuque produces toasters, there may be little worry that a disabled worker would be significantly more productive in the local blender factory.
186. See EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 493.
187. See, e.g., id. at 491 (characterizing the reasonable accommodation requirement as imprudent, inefficient "mandated universal access" to be paid for by private firms).
188. See id. at 481-82. Some misguided attacks on the ADA and the entire philosophy of accommodations completely ignore this insurance function of accommodations, contending that individuals with disabilities should bear the entire social cost of living with their disabilities. See, e.g., Rosen, supra note 5, at 18, 29 (offering a vague plan for direct subsidies to persons with disabilities only for rehabilitation and training). Yet even with extensive training and education, many persons with disabilities require accommodations to perform jobs for which they are supremely qualified.
189. See supra notes 139-140 and accompanying text.
190. See, e.g., Krenek, supra note 11, at 2001-03.
191. See EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 491 ("[B]y driving up the prices of finished goods, [accommodation] hurts all persons, able and disabled alike, in their role as consumers.").
192. Krenek, supra note 11, at 2007.
193. See supra note 147 and accompanying text.
194. See Krenek, supra note 11, at 2007.
195. See Blanck, Employment Integration, supra note 10, at 386-89.
196. See, e.g., Steven B. Epstein, In Search of a Bright Line: Determining When an Employer's Financial Hardship Becomes 'Undue' Under the Americans with Disabilities Act, 48 VAND. L. REV. 391, 410-505 (1995) [hereinafter S. Epstein]; Great Progress, supra note 9, at 1615-17; Bales, supra note 8, at 1218-19; Nakamura, supra note 6, at 22.
197. See, e.g., S. Epstein, supra note 186, at 431-40 (noting the persistent lack of clarity of the "undue hardship" standard under the Rehabilitation Act and the ADA); Bales, supra note 8, at 1194 (noting that "the undue hardship test . . . boils down to cost versus the employer's ability to pay").
198. 188See 42 U.S.C. § 12111(5)(A) (1995) (excluding from the ADA employers with fewer than 15 employees).
199. Krenek, supra note 11, at 1974.
200. See Vassel, supra note 5, at 408 (contending that the actions of McDonald's and IBM serve as evidence that large companies in general willingly pursue workers with disabilities).
201. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
202. See Bales, supra note 8, at 1220 (proposing a cap based on percentages of employee salaries as an ADA reform); S. Epstein, supra note 186, at 454-57 (proposing a cap based on firm resources as an ADA reform). A public funding scheme could target an accommodation cap at least at upper-end federal disability and health care benefits, on the premise that if the government finds merit in payments of $X to support the disabled who cannot work, it is difficult to view as less meritorious payments of $X to support the disabled who can work only with accommodations.
203. EPSTEIN, FORBIDDEN GROUNDS, supra note 5, at 493.
204. See 20 C.F.R. § 404.1581-.1587 (1997).
205. See, e.g., Brian E. Dollery & Andrew C. Worthington, The Impact of Fiscal Illusion on Housing Values, 15 PUB. BUDGETING & FIN. 63 (1995).
206. See Mashaw, supra note 45, at 231 (arguing that accommodation costs "may be large or they may be small and their weight may be well or mal-distributed, but Congress need never know or acknowledge such problems because the expenditure is 'off budget'").
207. See, e.g., Bales, supra note 8, at 1217.
208. Epstein, Standing Firm, supra note 47, at 24.
209. See supra note 43.
210. See Steven D. Levitt, How Do Senators Vote? Disentangling the Role of Voter Preferences, Party Affiliation, and Senator Ideology, 86 AM. ECON. REV. 425, 427, 433-34 (1996).
211. See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938).
212. Bruce A. Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).
213. See id. at 732-33.
214. See id. at 732-37.
215. See id. at 726-28.
216. See id. at 729-31.
217. See W. at 729-31.
218. See inpra notes 119-120 and accompanying text.
219. Donohue, Three Concepts, supra note 22, at 2610.
220. See KATZ & ROSEN, supra note 53, at 659 ("Rent seeking is the driving force behind the demand for political favors.").
221. See Krenek, supra note 11.
222. W. at 2009.
223. See id. at 2010-12.
224. See Mashaw, supra note 45, at 223-24.
225. See Krenek, supra note 11, at 2011.
226. This reliance on a "reasonable" standard is curious given Krenek's identification of the distortionary effects of the ADA's "reasonable" standard as a source of tension between employers and disabled employees. See id. at 1991-92.
227. This estimate derives from the following estimates: (1) Workforce of 129 million. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1996 at 393 Tb1. 614 (1996) (estimating a civilian workforce of 124.9 million in late 1995, with recent annual growth averaging just over 1 million); OFFICE OF MANAGEMENT & BUDGET, ANALYTICAL PERSPECTIVES, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 1997, at 181 Tb1. 10-2 (1997) (estimating just over 1.5 million on active military duty in 1995). (2) Disabled as 14% of the labor force. This is an upper-end estimate. The EEOC, in its 1991 estimate of accommodation costs under the ADA, counted 10% of the workforce as disabled. Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. 8578, 8583 (1991) (to be codified at 29 C.F.R. pt. 1630) (proposed Feb. 28, 1991). Steven Epstein has cited 13.4% as a more accurate figure. See S. Epstein, supra note 186, at 457. A recent news report similarly placed the figure at 14%.
228. See Paula Mergenhagen, Enabling Disabled Workers, AM. DEMOGRAPHICS, July 1997, at 37. Use of the highest available estimate accounts for the possibility that public funding would achieve its objective and increase disabled labor force participation. (3) Disabled needing accommodations as 1/3 to 1/2 of the disabled work force. See Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. at 8584 n.24; S. Epstein, supra note 186, at 457. (4) Average cost of accommodation from $261 to $309.83. The EEOC had averaged several studies to reach a figure of $261. Equal Employment Opportunity for Individuals with Disabilities, 56 Fed. Reg. at 8583-84. This is far higher than Blanck's more recent estimate of $121, based on studies of costs of accommodation conducted by Sears, Roebuck and Co. Blanck. Workplace Accommodations, supra note 10, at 902. The upper-end $309.83 figure accounts for the roughly 18.7% aggregate inflation from 1992 to 1997, inclusive, since the EEOC's 1991-published estimate. See BUREAU OF THE CENSUS, supra, at 484 Tb1. 749 (inflation from 1992 to 1995); OFFICE OF MANAGEMENT & BUDGET, supra, at 5 Tb1. 1.1 (inflation estimates for 1996-1997). Not adjusting for inflation may be more accurate, however, as inflation adjustments may be bloated for technologies that become cheaper over time, such as voice recognition software. (5) Exclusion of federal government employee accommodation costs. Because the federal government already must pay the accommodation costs of its own employees, these costs should be subtracted from calculations of the cost of a funding program. Federal employees constitute just over 3.5% of the workforce. See OFFICE OF MANAGEMENT & BUDGET, supra, at 181 Tb1. 10-2 (estimating total federal employment of 4.5 million in 1995). On the assumption that these employees need accommodations at the same rate as private sector employees, the real federal cost of a funding program would be only 96.5% of the total cost of accommodations in the economy. (6) Elimination of redundant federal tax subsidies of $185 million. Currently, the federal government allows tax credits and deductions for costs of compliance with ADA requirements. See I.R.C. §§ 44, 51, 190 (1997) (providing a deduction of up to $15,000 for removal of architectural or transportation barriers, and either a deduction or a half-credit, depending on firm size, for accommodation costs above $250 and up to several thousand dollars);
229. see also J. David Lofton et al., Disability Act Compliance Costs Get Tax Benefits, 24 TAX'N FOR LAW. 162 (1995) (discussing various tax benefits). The federal government loses $165 million on the tax credit for disabled access expenditures and $20 million on the expensing of costs to remove architectural barriers to the disabled. See OFFICE OF MANAGEMENT & BUDGET, supra, at 62-64 Tb1. 5-1 (estimating revenue lost in 1997). Because the federal government already pays this $185 million of accommodation costs, it should be subtracted from calculations of the cost a funding program would cause the federal government to bear; there would be no tax subsidy for costs employers no longer must bear.
230. State and local government employees constitute roughly 12.9% of the total workforce. See BUREAU OF THE CENSUS, supra note 217, at 319 Tb1. 501 (15.824 million state and local employees in 1993 and 1.7% growth in that figure from 1984-1993, which projects to 16.362 million in 1995); id. at 393 Tb1. 614 (civilian employment of 124.9 million in 1995); OFFICE OF MANAGEMENT AND BUDGET, supra note 217, at 181 (active military employment of 1.518 million in 1995).
231. THE NEW INTERNATIONAL DICTIONARY OF QUOTATIONS 184 (Hugh Rawson & Margaret Miner eds., 1986) (quoting Senator Everett Dirksen).
232. The $62 billion figure is derived as follows. Federal Supplemental Security Income and state supplementation payments in 1996 totaled approximately $29 billion, made to roughly 6.6 million recipients, of whom about 78% were blind or disabled, and 22% aged. Federal payments constituted about 90% of these payments. See Table 2.A.1 - SSI: Number of persons receiving federally adminstered payments, by category and amount of payments, by source of payments, 1974-1996, 60 Soc. SECURITY BULL., No. 1, at 87 (1997). Assuming no significant difference between the amount of payments received by aged, blind, or disabled beneficiaries, this leads to an estimate of $23 billion in benefits to the blind and disabled. In addition, to the extent a person ever worked, and thus had federal paycheck withholding, he or she can receive payment under the Social Security Disability Insurance program. See 20 C.F.R. pt. 404 (1997). In 1996, roughly 6 million people received about $39 billion under this program, for an average of $6,500 per person. See Table I.B.I. - OASDI benefits: Monthly benefits in current-payment status, by program, 1940-1996, 60 Soc. SECURITY BULL., No. 1, at 71 (1997). The sum of these two estimates is $62 billion. Medicaid and food stamps, though not only for the disabled, increase the federal tab further.
233. Many workers needing accommodations costly enough to spur discrimination qualify for disability benefits. For example, a worker with a serious visual impairment may need expensive equipment to work, see supra note 28, and qualify easily for federal benefits, see supra note 194 and accompanying text.
234. See supra notes 56-60 and accompanying text.
235. See supra notes 61-76 and accompanying text.
236. See, e.g., Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995) (finding disabled worker unable to meet speed-based production standards not a "qualified individual"); Rollison v. Gwinnett County, 865 F. Supp. 1564 (N.D. Ga. 1994) (finding that sub-standard performance, even when traceable to disability of alcoholism, allows employer to terminate plaintiff).
237. The statutory text lists this as a possible accommodation. See 42 U.S.C. § 12111(9)(B) (1994).
238. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173 (6th Cir. 1996).
239. See, e.g., Milton v. Scrivner, Inc., 53 F.3d at 1118; Munoz v. H & M Wholesale, Inc., 926 F. Supp. 596 (S.D. Tex. 1996).
240. See, e.g., Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209 (4th Cir. 1994).
241. See, e.g., Burnett v. Western Resources, Inc., 929 F. Supp. 1349 at 1358 (D. Kan. 1996).
242. See supra note 17 and accompanying text.
243. Mashaw, supra note 45, at 232.
244. See id.
245. See, e.g., Chai R. Feldblum, The (R)evolution of Physical Disability Anti-discrimination Law: 1976-1996, 20 MENTAL & PHYSICAL DISABILITY L. REP. 613, 617-19 (1996) (recounting that business resistance focused on details and scope of the accommodation duty, not on existence of the duty).
246. See Age Discrimination in Employment Act, Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified as 29 U.S.C. §§ 621-634 (1994)).