Saturday, April 21, 2007

Burris and Moss on the Impact of the ADA on Employment

New on SSRN: Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, ___ Hofstra Lab. & Emp. J. ___ (forthcoming 2007). The abstract:

Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of disability. Since its passage in 1990, debate has raged about whether the statute is doing any good. A steady stream of narrowing court decisions has led some to declare the law a failure. This article reviews the empirical evidence on the effectiveness of Title I. Many studies find a decline in employment rates among the disabled in the wake of the ADA, but the evidence that these declines were caused by the ADA is weak. Title I protects people who require no more than a "reasonable accommodation" to do the job in question; the employment data include a much broader range of people, many if not most of whom could not meet Title I's qualification standard. Studies that "correct" for this difference find no or even a slightly positive impact on employment. Studies of employer attitudes and practices show a positive change, as do a few studies of the "empowerment" felt by people with disabilities.

Many commentators attribute any weakness in the effect of the ADA to the narrow interpretation of key elements of the statute by the federal courts. While the statute has been narrowly interpreted, a more important factor may be the flaws in processing of complaints by the EEOC and state partner agencies. While the limitations of the statute's language are real, Title I has provided benefits to workers with disabilities and could provide more benefits if enforcement mechanisms were improved.

We conclude that Congress should revisit the promises it made in the ADA. For people whose disabilities make it difficult to work, even with an accommodation, anti-discrimination law cannot have much of an effect on employment rates except as part of a comprehensive policy encompassing social security, health care, training programs and tax incentives. Only Congress can rewrite the statute to protect people who can work but whose disabilities have been excluded from the statute by the courts. And Congress, state legislatures and the bar must take steps to repair our broken enforcement system for employment discrimination disputes: more funds, greater use of mediation, and better legal services are essential to making the ADA a real remedy for employment discrimination.

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