Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘disability’

Failure to Accommodate is Disability Discrimination

Friday, June 1st, 2018

Many people with disabilities face barriers before they even get their foot in the door. But the hiring process is only one form of disability discrimination.

Employers — including federal agencies and government contractors — are legally obligated to accommodate disabilities. But what is considered a “reasonable” accommodation? What if the employer says no?

What does disability accommodation look like?

Under the Rehabilitation Act of 1973 and the Americans with Disabilities Act, employers must provide reasonable accommodations to enable individuals with a disability to (a) compete for a job, (b) access the workplace, (c) perform the functions of the job and (d) enjoy the perks and privileges of the job.

The Equal Employment Opportunities Commission offers these examples of disability accommodations:

  • A wheelchair ramp or handicap-accessible bathroom
  • Specialized equipment or workstation alterations
  • Dictation software for a person with carpal tunnel syndrome
  • An interpreter or TTY software for a hearing-impaired person
  • Changing or eliminating some job tasks
  • Dividing the work day or allowing for extra breaks
  • Working from home (telecommuting)
  • Reassignment to a vacant position

What is the process for requesting accommodations?

Many applicants are hesitant to ask for accommodations during the hiring process. They don’t want to jeopardize their shot, or may not know what accommodations are needed until they start the job.

A request for accommodations can be made at any time, orally or in writing. Once the request is made to a supervisor or manager, it must be forwarded to the agency’s designated Disability Program Manager. The DPM must accept the request and forward it to the appropriate parties. The DPM must respond to the employee within 10 days to discuss viable solutions.

What does failure to accommodate look like?

If management ignores or flatly refuses a reasonable request, that constitutes discrimination. The law requires employers to make a good faith attempt to work with the disabled employee. If the accommodation is not feasible because of cost or other factors, the employer is obligated to offer alternatives or consider compromises. Under the law, refusing to engage in an interactive process is considered failure to accommodate.

For federal employees, all requests for accommodation go through the EEOC. Sometimes the EEOC authorizes an accommodation that differs from the original request. This is not considered failure to accommodate.

What are the remedies for disability discrimination or inadequate accommodation?

If the EEOC denies a request, it must give a detailed explanation why. The employee can request reconsideration through an informal process. If the decision is still unsatisfactory, or if there has been an adverse action, the employee can initiate a formal appeal or grievance through the EEOC or the Merit Systems Protection Board.

If a government contractor or other private employer denies a reasonable request, the remedies vary. The employee could sue to force the employer to provide accommodation. If the employee was let go, reassigned or harassed after requesting accommodations, they could sue for reinstatement or sue for damages for wrongful termination or retaliation.

People with disabilities want to work and contribute and be valued, just like everyone else. If the accommodations would be effective and would not cause the agency or company undue hardship, the law requires it.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published at Passman & Kaplan, P.C., Attorneys at Law on May 31, 2018. Reprinted with permission.

This man was denied a job as a sheriff’s deputy just because he has HIV. Now he’s suing.

Wednesday, November 1st, 2017

A Louisiana man has filed a federal lawsuit against the Iberia Parish Sheriff’s Office (IPSO) for allegedly discriminating against him in 2012. According to the complaint, filed last week by Lambda Legal, IPSO was prepared to hire Liam Pierce as a deputy sheriff, but allegedly opted not to after learning that Pierce has HIV.

“It was like a punch to the gut,” Pierce, 46, told ThinkProgress in a phone interview. “It really frustrated me that for all the wonderful things that are here in Louisiana and all the wonderful people we have, we still have people that are not appropriately educated with HIV, how it’s transmitted, what the risks are, and what isn’t risky.”

As the complaint recounts, two days after Pierce had his in-person interview with IPSO in March, 2012, Captain Rickey Boudreaux told him that was going to be hired by the department, pending a medical examination. That examination, completed two weeks later, found that Pierce indicated “no significant abnormalities or medical findings,” with all physical findings “within normal limits.” But it did state that he is HIV-positive. Two days after submitting the medical examination, Pierce received a letter from IPSO indicating that he would not be hired.

“It’s clear on the medical evaluation: The only thing negative was the HIV status,” Pierce said, adding that a friend’s contact at the department relayed to him that he wasn’t hired because he failed the medical. He immediately knew it was because of his HIV status. “Anybody with a simple amount of education is able to see right and wrong and this is plainly wrong. It’s no different than discriminating against somebody because they have diabetes or because they have cancer. You can’t discriminate against that. It’s wrong.”

Indeed, the U.S. Department of Justice has resources dedicated specifically to educating the public about how discrimination on the basis of HIV status is a violation of the Americans with Disabilities Act.

Pierce has a long history of service to others. He’s been an EMT, a paramedic, a firefighter, and a police officer. It was actually Hurricane Katrina that brought him to Louisiana in the first place; he ditched his old job after securing authorization to join the first-responder recovery efforts. He was hired full-time shortly thereafter by a local agency. To this day, he still teaches various public safety courses, including firearm safety, first aid, CPR, and — ironically — blood-born pathogens. His enthusiasm for helping others even convinced his husband to take an interest in firearm safety and they now teach the classes together.

How States Are Trying to End the Disability Unemployment Crisis

Thursday, March 23rd, 2017

Data in the newly released 2016 Disability Statistics Compendium are highlighting a pernicious, and complex, disparity for the disability community: unemployment. In 2015, less than 35 percent of disabled Americans between 18-64 living in the community were employed, in contrast with some 76 percent of their non-disabled counterparts.

This is not just a disparity of disabled and non-disabled, though, but also one determined by state of residence. In Wyoming, for example, nearly 60 percent of disabled people are employed, while at the other end of the spectrum, in West Virginia, the disability employment rate is around 25 percent.

Understanding why employment outcomes for disabled people are so widely variable is important because such knowledge may contribute to a fresh approach to getting disabled people who are ready and willing to work into fulfilling jobs.

Officials from South Dakota Advocacy Services (SDAS), an agency charged with disability advocacy, shed some light on the subject. Their state has a disability employment rate of slightly more than 50 percent, an accomplishment they’re proud of. While the path to getting to that number takes work, officials argue, it’s achievable.

“South Dakota has a lot of things other states could look to,” says Tim Neyhart, executive director at SDAS.

Officials’ work starts at the high school level. As disabled students get closer to graduation, community agencies start working with them to prepare them for the workforce to ensure they don’t fall through the cracks as they move into adulthood.

Cole Uecker, also of SDAS, explains that the goal is “integrated competitive employment,” with disabled people entering the job market alongside their non-disabled peers, instead of being shunted to sheltered workshops. Under the sheltered workshop model, disabled people are segregated in facilities where they complete basic, repetitive tasks for low pay—often subminimum wage—and don’t achieve autonomy and independence.

Disabled students in South Dakota are paired with rehabilitation specialists who help them acquire job skills and learn about the programs and services available to them. To address the “benefits trap” that keeps disabled people unemployed because they fear losing services, the state offers Medical Assistance for Workers with Disabilities, a Medicaid buy-in program that allows them to retain benefits while working.

Elsewhere in the country, some areas use job programs like Project SEARCH, which originated at Cincinnati Children’s Hospital Medical Center in 1996 when a nurse—frustrated with high turnover among hospital support staff—got the idea of bringing in disabled people, providing them with vocational rehabilitation at the hospital and encouraging them to enter the workforce. The formalized program now has some 3,000 graduates per year, says Maryellen Daston, a program specialist, and a very high success rate, with participants in Project SEARCH finding employment after the program at a rate of 77 percent in 2015.

Neyhart and Daston echo each other when they talk about getting disabled people into the workforce. Both assume that disabled people are capable of work and want to be part of the community. Both prioritize integrated competitive employment and early intervention to identify needs before people leave school.

But lots of states have similar goals and programs, so why are some states having such radically better outcomes than others?

One answer lies in demographics. South Dakota, for example, is not a highly populous state, which makes the personalized, thoughtful intervention needed for successful employment programs functionally possible. Moreover, just 12.5 percent of the state’s residents identify as disabled in the American Community Survey. By comparison, nearly 20 percent of residents in West Virginia identify as disabled. Neyhart also acknowledges that South Dakota has a low unemployment rate overall.

States with higher disability unemployment rates often have a larger disabled population. They also tend to be more populous overall, in addition to more racially diverse. Administering effective support programs may be more challenging with heavier demands on state resources—especially in states struggling with poverty, like much of the South, where disability employment rates are low.

Programs that enable a smooth transition from school to the workplace have documented results, as does allowing people to enter the workplace while retaining critically important healthcare benefits. This may be a challenge of scale, which could be a good thing, because that means it’s a problem with the potential to be solved.

“In order to improve, you always have to be looking at areas in which the numbers aren’t as good,” notes Neyhart.

This blog originally appeared at inthesetimes.com on March 21, 2017. Reprinted with permission.

S.E. Smith is an essayist, journalist and activist is on social issues who has written for The Guardian, Bitch Magazine, AlterNet, Jezebel, Salon, the Sundance Channel blog, Longshot Magazine, Global Comment, Think Progress, xoJane, Truthout, Time, Nerve, VICE, The Week, and Reproductive Health Reality Check. Follow @sesmithwrites.

Maryland To Become The Second State To Guarantee Fair Minimum Wage For Workers With Disabilities

Friday, April 22nd, 2016

CoryHerroMaryland will soon become the second state, after New Hampshire, to phase out the “subminimum wage” for workers with disabilities.

Maryland lawmakers this month passed a bill that would do away with special wage certificates that allow employers to pay disabled workers according to productivity rather than hours worked. The law affects all 36 of Maryland’s “sheltered workshops” — nonprofit organizations that hire people with disabilities at subminimum wages to perform basic tasks like assembling products, hanging clothes, or picking up trash.

Some 420,000 Americans with disabilities are employed this way nationally, some at a rate of just pennies per hour. The average Marylander working under this arrangement makes less than $4 per hour — an unjust rate that no longer jives with modern attitudes toward disability, advocates say.

The bill’s sponsor, Rep. Jeff Waldstreicher (D), says the bill is a victory for civil rights.

“By passing HB 420 and SB 417, we have upheld Maryland’s highest ideals,” he wrote in a public statement. “Marylanders are a compassionate, caring people. We believe in the dignity of every individual, in equal rights.”

In addition to boosting wages, the bill aims to desegregate Maryland’s workforce over the next four-and-a-half years. The Department of Disabilities will reallocate state and Medicaid funding to promote employment in “competitive, integrated workplaces” rather than in sheltered, segregated workshops. The state will pick up the tab for planning workers’ transitions to integrated employment.

“People thrive in a diverse workplace,” Waldstreicher told ThinkProgress. “Most of these workers want this transition, and we want to help it go smoothly.”

Legislators have worked closely with the sheltered workshops, and the majority are on board. They were initially concerned that higher wages would displace workers, but the state’s integrated employment plan assuaged their fears.

Disability advocates applauded the legislation, saying sheltered workshops are ineffective and reforms are long overdue.

“[Workshops] offer the employees no opportunities to be part of their community or to make enough money to support themselves,” the Autistic Self Advocacy Network said in a statement commending the Maryland legislation.

“Sheltered workshops often rely on outdated, non-mechanized production processes — which are poor vehicles for developing the skills real employers need in the open market economy,” writes University of Michigan law professor Samuel Bagenstos in a report to the National Federation of the Blind.

Indeed, only 5 percent of sheltered workshop employees leave to take a job in the community, according to a 2001 investigation by the Government Accountability Office.

The bill is now on the desk of Gov. Larry Hogan (R). Waldstreicher told ThinkProgress he’s “positive” the governor will sign it into law.

These developments in Maryland are part of a turning tide against paying disabled workers less than minimum wage. Last month, Democratic presidential candidate Hillary Clinton expressed support for eliminating the subminimum wage nationwide.

“We’ve got to figure out how we get the minimum wage up and include people with disabilities in the minimum wage,” Clinton said when a young lawyer with autism asked her about the minimum wage exemption. “There should not be a tiered wage.”

And in 2014 President Obama included workers with disabilities in his federal minimum wage hike — guaranteeing minimum wage for some 50,000 federal contract employees with disabilities.

This blog originally appeared at ThinkProgress.org on April 20, 2016. Reprinted with permission.

Cory Herro comes to ThinkProgress from California, where he writes columns for The Stanford Daily and tutors rowdy middle schoolers. He likes to play pickup hoops and surf, even though his skills are rudimentary. Cory is pursuing a bachelor’s in public policy with a focus on poverty policy.

Disabled Workers Face Discrimination, but it's not Inevitable

Friday, November 13th, 2015

LauraClawsonGosh, why are people with disabilities so much less likely to be employed than people without disabilities (34 percent to 74 percent in 2013)? One reason is what researchers from Rutgers and Syracuse universities discovered when they sent out resumes for fake job applicants who either had a spinal cord injury, Asperger’s syndrome, or did not mention a disability: applicants who mentioned a disability heard back from employers 26 percent less often than applicants who didn’t mention a disability, and it was actually worse for more experienced applicants.

You know how Republicans are always railing against laws that would prohibit employers from discriminating and the like? Maybe that’s because such laws work:

The study showed that the Americans With Disabilities Act, the 1990 federal law banning discrimination against those with disabilities, appeared to reduce bias. The lack of interest in disabled workers — and especially in the rate at which they were called back for an interview — was most pronounced in workplaces with fewer than 15 employees, the study found. Businesses that small are not covered by the federal law. At publicly traded companies, which may be more concerned about their reputations and more sensitive to charges of discrimination, evidence of discrimination on the basis of disability seemed largely to disappear. The same was true at firms that receive federal contracts, which are required by the government to make a special effort to hire disabled workers.

This is why we need stronger laws and more enforcement, not Republicans blocking progress because hey, we already have laws that kinda sorta cover that.

This blog was originally posted on Daily Kos on November 7, 2015. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.

Your Rights Job Survival The Issues Features Resources About This Blog