EEOC Responds to 10 Questions
October is National Disability Employment Awareness Month (NDEAM) in the United States. However, you may not have noticed due to several other monthly observances nationwide.
NDEAM is sponsored annually in October by the U.S. Department of Labor, Office of Disability Employment Policy, which says the observance dates back to 1945. The goal of NDEAM is to shine a spotlight on — and raise awareness about — disability issues in the workplace, including employer responsibilities and employee rights.
The employment population ratio for people without disabilities (65.7%) was more than triple that of people with disabilities (18.7%) in 2017, according to the U.S. Bureau of Labor Statistics.
Disability employment is a persistent problem, despite broad efforts by the federal government and disability rights groups to promote voluntary compliance with the landmark Americans with Disabilities Act (ADA).
One might think more progress had been made by now, nearly 30-years after the ADA’s enactment. This is especially true due to new and evolving Assistive Technology to help people with disabilities in the workplace and society.
Unfortunately, disability discrimination is still a pervasive problem in the employment context, despite incremental gains over the decades to level the playing field.
Companies of all sizes should consider this:
People with disabilities represent a vast pool of untapped talent in a competitive domestic labor force where the national unemployment rate is nearing historic lows.
National Disability Employment Awareness Month (NDEAM) - Office of Disability Employment Policy …
Reflecting a commitment to a robust and competitive American labor force, the 2018 National Disability Employment…
I recently spoke with Christopher J. Kuczynski. Chris is the Assistant Legal Counsel for the U.S. Equal Employment Opportunity Commission (EEOC) and heads the ADA/GINA Policy Division within the agency’s Office of Legal Counsel.
An EEOC veteran attorney, Chris served as Associate Director for the White House Domestic Policy Council in 2003–2004. He’s also played an instrumental role in writing EEOC’s ADA rules, regulations and policy guidance.
Employers nationwide would be wise to pay close attention to what Chris has to say in order to foster discrimination-free work environments based on talent, merit and ability to do the job (for people with or without a disability).
My conversation with Chris — presented in a Question & Answer (Q&A) format below — covers the following disability employment issues:
- Workforce Diversity & Disability.
- Disability Population & Employment.
- Reasonable Accommodation.
- Leadership from the Top.
- Myths, Fears & Stereotypes.
- Accessibility & Technology.
- EEOC Enforcement, Training & Outreach.
- Genetic Discrimination in the Workplace.
Diversity & Disability
- DG: Can you explain the importance of National Disability Employment Awareness Month and why the employer community should pay attention?
- CK: One of the things I have emphasized is that disability should be part of the model of diversity that is so important in the workplaces of America today.
I don’t think disability has become fully incorporated into the notion of diversity, in which disability is seen as a real positive value in the workplace. A month like this is an opportunity to remind people of why it should be.
2. DG: When we talk about disability awareness do you think most employers still don’t get it regarding why disability employment is important?
- CK: Even though disability is still an issue for companies 28-years after passage of the ADA, I think more employers are aware of it in ways they have certainly not been prior to the ADA. Disability has become a larger part of the modern business model.
“One of the things that may still be a struggle for employers of any size is the concept of reasonable accommodation. Some employers may have concerns about the cost of accommodations, although studies show this cost is not great.” — EEOC’s Chris Kuczynski (CK)
3. DG: According to a well cited study by Cornell University, the cost of accommodating an employee with a disability is only $500 on average — and the ROI is much higher per productivity gains. Do employers know that?
- CK: The studies are out there and available to employers. I think many large employers are familiar with the $500 figure. However, in addition to dollars and cents costs, companies might also be thinking about how difficult or disruptive the accommodation process could be to the operation of their business.
Reasonable accommodation requires employers to do things differently from the way in which they would normally do them, in order to provide equal employment opportunities.
“Reasonable accommodation is something employers may grapple with because it requires a response to individualized needs that people with disabilities may have.” — CK
4. DG: Do enough employers know the rules, regulations and responsibilities involved in providing reasonable accommodations, nearly three decades after the ADA became law?
- CK: I think many employers do know about the ADA’s rules and regulations, but certainly there are some that don’t. There are any number of resources available for companies where they can learn more, including our website www.eeoc.gov.
“The EEOC regularly provides the business community with Technical Assistance Program Seminars, information updates on our web site and other outreach. We also have small business liaisons in the field.” — CK
Sometimes it’s not so much that employers don’t know how to comply with the ADA — or even have policies in place — but there could be problems in communicating those policies so they’re filtering down to supervisory officials who must make day-to-day decisions about accommodations.
“A reasonable accommodation is just a simple request for a change that’s needed because of a medical condition.”
Leadership from the Top
5. DG: How important is it in corporate America for CEOs to communicate the message that workforce diversity includes people with disabilities, rather than only the HR department or just putting information in employee handbooks?
CK: It’s critically important for the message to filter down from the very top of the organization. That’s because even the best workforce may not be committed to any type of project until employees believe executive leaders and managers are committed to it. This includes disability hiring and diversity.
“What leadership from the top should also mean is that it becomes part of the accountability for managers and front-line supervisors.” — CK
That is, performance should be assessed in part on whether hiring managers or others within the organization are evaluating diversity when it comes to disability and other protected statuses.
Leadership from the top comes with accountability for officials who implement these policies and practices. This includes outreach to the disability community and working closely with advocacy groups to implement and/or revise policies and procedures that make good business sense.
“Some candidates have all the qualifications that an employer requires, however, what’s standing in the way is myths, fears and stereotypes.” — CK
6. DG: What are some of the specific myths, fears and stereotypes regarding people with disabilities that are still prevalent today in the employer community?
CK: It could be as simple as thinking that a person with a disability can’t do the job because the person will be an unproductive employee. There could be fundamental misconceptions, for instance, that a disability translates into an inability to think and work productively.
“There could also be myths, fears and stereotypes by employers about safety in the workplace.” — CK
Some employers still may have negative attitudes and misperceptions related to those with a history of mental health conditions. They may think a person with mental illness automatically means an elevated risk regarding threats of violence in the workplace. But that’s simply wrong.
“The safety risks associated with mental disabilities are no greater than those associated with the population generally. Safety concerns also occur due to some physical conditions, not only mental impairments.” — CK
The law also protects people from discrimination based on their relationship with a person with a disability (even if…
7. DG: Can you talk about the business case for disability employment, especially in a tight labor market which we have today in the United States…
- CK: It’s usually the case that people with disabilities are very reliable, loyal and productive. There are studies, for example, that show absenteeism for employees with disabilities have been lower than among the general worker population. That leads to greater productivity.
Some people with disabilities have problem-solving skills that not only result from experience but also from their disability. This equates to effective problem solving for an employer. Also, the business case for diversity — which has been made ad nauseam — includes people with disabilities.
“The benefits include expanding a company’s consumer base, added perspective in decision making and greater return on investment.” — CK
Some segments of the consumer base might also like to see companies assume a leadership role in terms of embracing accessibility to new technology for people with disabilities.
8. DG: According to data from the U.S. Census Bureau, about 60 million people in America— or roughly one in five people — either have or will have a disability at some point in their lives. Anything to add about this?
- CK: Some would say that maybe the number is even greater than that because of the ADA’s expanding definition of disability — particularly since the law was amended in 2008 — you have a very broad definition of what constitutes a disability today.
“The 60 million number sounds consistent with an upward trend in those estimates, about 20 million more people compared to when the ADA was passed in 1990.” — CK
9. DG: Can you talk about ADA enforcement by the EEOC and how this compares to other EEOC-laws enforced, like Title VII of the sweeping Civil Rights Act which covers multiple bases of discrimination, including race and sex?
- CK: The EEOC total caseload consists of over 30% of ADA charges alleging disability discrimination. We’re obtaining a lot of monetary relief for people with disabilities through resolving administrative charges, plus we are bringing a significant number of ADA lawsuits involving a variety of issues.
“We also provide outreach and technical assistance to employers, which compliments enforcement.” — CK
Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as…
10. DG: Due to new and evolving technology, such as decoding the human genome, is EEOC observing more genetic discrimination in the workplace?
- CK: The Genetic Information Non Discrimination Act of 2008 — or GINA — is the most recent of the civil rights law for which the agency has authority.
Under GINA, employers cannot discriminate against employees or applicants based on genetic information. This includes family and medical history, as well as genetic testing.
We see a small number of employment discrimination cases under GINA compared to the other EEOC-enforced laws. This is not surprising based on when the law was passed and what we were seeing at the state level with similar laws about genetic information.
“The most common type of issue that comes up under GINA is related to family and medical history as part of employee medical examinations.” — CK
As Chris clearly articulates above, it should be obvious by now that disability employment simply makes good business sense.
Still, not every employer has gotten the message and not every company proactively promotes voluntary compliance with the law.
That’s why disability discrimination at work remains a persistent problem 28 years after passage of the ADA and eight-years after passage of the corresponding ADA Amendments Act.
Too many disability-based myths, fears and stereotypes abound, despite the business case for fostering workforce diversity — which includes employees with disabilities.
People with disabilities represent a significant part of the U.S. population, in addition to a large pool of untapped talent for employers in a competitive global marketplace.
All companies need to be aware of disability issues, and not just during National Disability Employment Awareness Month. Employers need to show awareness every day and month of the year.
But is awareness enough?
“While disability employment awareness is certainly a good thing, employers also need to take steps to make sure it’s a priority.” — CK
In essence, disability awareness alone is not enough.
The business community should fully embrace proactive prevention, open communication, outreach, education and technical assistance efforts to promote voluntary compliance with the ADA and avoid discrimination.
Disability discrimination against qualified employees and applicants may result in EEOC investigations and litigation, in addition to that of private plaintiffs. This only leads to wasted time, added business costs and negative publicity for employers — all of which can damage the brand image, while jeopardizing bottom line productivity and profits.
More companies need to increase their efforts to make disability employment a priority in the 21st century workplace.
Remember that voluntary compliance simply makes good business sense.
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Note: The author is a former EEOC national spokesman, media relations manager and senior communications advisor (career civil service).