What the ADA Didn't Fix

It is official: Unemployment has passed 8 percent. Although politicians and commentators may have different ideas about what to do, everyone agrees that people need to get back to work for the economy to improve. For one group, though, the situation is actually far worse. According to the Bureau of Labor Statistics, in February 2009, the unemployment rate of people with a disability was 14 percent, compared with 8.7 percent for people with no disability, not seasonally adjusted. The employment-population ratio for people with a disability was 19.8 percent, compared with 64.8 percent for those with no disability. Given the current need to improve employment prospects for all groups, it is an ideal time to reassess what can be done to move and keep more people with disabilities in the workforce.

This is not a new problem. The unemployment numbers for people with disabilities have stayed stagnant since the passage of the Americans with Disabilities Act in 1990, despite that law's stated intent to remedy historical vocational and economic disadvantage. Why is this? Part of the answer is the way the act has been interpreted and enforced. Courts took an overly restrictive view of its definition of disability, so even an individual with mental retardation was considered (in one opinion) as not "disabled" for purposes of the statute. Public enforcement officials like the Department of Justice and the Equal Employment Opportunity Commission did not make big, high-profile, class action Americans with Disabilities Act cases a priority. Happily, both of these trends appear to be changing. With the ADA Amendments Act of 2008, Congress broadened the definition of disability, which will have the effect of giving more people rights under the statute. And both the executive branch and private lawyers are bringing more disability class actions.

Yet even with these changes, at the end of the day, antidiscrimination law has real limits. The Americans with Disabilities Act, with its civil rights approach, identifies a community of people with disabilities who are capable of working, once barriers are removed and reasonable accommodations are made. But the federal government's social support programs do not serve this population well. By and large, they are tailored for an elderly population for whom returning to the workplace is not a high priority. At its best, the act can stop an employer from irrationally choosing not to hire someone with a disability, or can compel an employer to make a reasonable workplace modification to allow the individual with a disability to perform his or her job. Yet the act does nothing to help this individual confront other barriers, like getting health insurance if the employer does not provide it (or provides inadequate coverage to meet that person's needs) or becoming trained for the job in the first place.

Traditionally, social support programs like Social Security and Medicaid have actually contained significant work disincentives. If an individual with a disability who was receiving Social Security payments or Medicaid returned to work, he or she could lose payments and public health insurance. Reforms like the Ticket to Work and Work Incentives Improvement Act have improved this situation somewhat by allowing people with disabilities to work for a period of time before losing these benefits. But most social support programs still require people to prove a complete inability to work and have a long period of non-work (up to two years) before working. And at some point, people with disabilities will lose health insurance and other benefits, even though they will never be able to obtain these needed services through their employers or in the private market.

Given rising unemployment rates, the government needs to think more creatively about better serving the population of people with disabilities who may be in and out of the labor market. Although some form of universal health coverage would be the ideal, even more modest steps like relaxing non-work requirements for existing public health insurance programs would give people with disabilities the freedom to seek employment without jeopardizing health insurance. And disability benefits could be offered on a more graduated scale, rather than conditioning benefits on an all-or-nothing determination as to whether someone can work. Finally, there needs to be more of an investment in job training programs, which is something that would benefit all workers in our changing economy.

There is an opportunity here that should not be missed.

A 2007 cost-benefit study conducted by a consortium of the Illinois Department of Commerce and Economic Opportunity, the city of Chicago, the Chicago Chamber of Commerce, and DePaul University concluded that people with disabilities, when they could find employment, stayed in their jobs longer than people without disabilities, had fewer unscheduled absences and had nearly identical job performance ratings than people without disabilities. The key is adopting policies that enable more individuals with disabilities to get into the pipeline. Raising the job prospects of this group would accrue to everyone through higher employment numbers.