Disability in the Workplace: Reasonable Accommodations or Red Tape? — Part 2
Organizations and individual employers know exactly what they can exploit — and they do — through legal loopholes, eroded oversight powers, and by leaning into the prevailing culture of ableism. In Part 1, we defined who is considered disabled and legal maze that governs accessibility in the workforce. (Missed it? Read it now.)
In Part 2, we’re going to discuss how employers navigate legal requirements and the obstacles workers may face proving discrimination in the workplace.
When you think of disability in the workplace, I’d like you to think of one term: reasonable accommodations.
The ADA requires that employers make “reasonable accommodations” for those who have disabilities. Accommodations are essentially anything that may be needed to allow someone with a disability to perform the job duties required for a position in a satisfactory way.
The key word here is “reasonable” — there is wide latitude with the definition of that.
Any time a staff member needs an accommodation, it kicks off a conversation and information gathering back and forth usually between human resources (or sometimes a supervisor) and the individual. Typically there is a complicated exchange of doctor’s notes, forms, job description reviews, conversations with supervisors, worksite visits, policy and legal research, and a litany of calls and requests for information.
Remember how I said the key word is “reasonable”? This can be based on many factors such as:
the job duties impacted
what is needed
the cost
how the accommodations may displace other workers
the available work
physical space requirements
whether there are other jobs that could be done instead
if there is a leave of absence (paid or unpaid) available
if it is physically possible to continue to do the work
is the disability permanent or temporary
was it the result of a workplace injury
how small or large the organization is
the list goes on and on…
While all of this inquiry may be relevant, notice how broadly it can be interpreted and how invasive this process can be for the worker — not to mention stressful!
The fact finding and research eventually results in a determination by the employer (read: Human Resources) about if and how they are able to accommodate. This is known in HR terms, as the “interactive process” and is at the heart of many of the challenges and fears that the disabled community faces when seeking and maintaining employment.
For the person seeking to have a disability accommodated this is actually a risky proposition, because if a disability is determined to be one that cannot be accommodated, that person risks having an employment offer rescinded, not getting a promotion, or even potentially having their employment discontinued or being demoted due to an inability to accommodate. All while following the federal and state regulations.
When you have a disability, you know somewhat intuitively that these types of outcomes are a strong possibility. That understanding feeds into the desire to hide it, find your own workarounds, work for yourself, or sometimes to remain outside of the workforce entirely — especially if you hold other more visible marginalized identities that also contribute to workplace discomfort and or discrimination.
While the law is clear about non-discrimination and severe penalties can be levied on organizations that do, proving that discrimination has occurred is difficult.
First, the EEOC, the governing body responsible for determining when discrimination has occurred, has been quietly defunded. While the number of discrimination cases forwarded to them has risen, the current budget is smaller than it was in 1980 and the agency has 40% less staff since the same time. This means that fewer complaints are investigated and only the most egregious cases are assumed, returning a high percentage to be privately settled.
Second, the burden is on the person who is experiencing the discrimination to prove that it happened — not on the employer to prove that it didn’t. This lopsided way of administering the law places the balance of power to the benefit of the employer who already has an advantage over the employee in most other employment matters.
With so little oversight and so many ways to be legally compliant without actually being inclusive of disabled workers, is it any wonder that the results are so dismal?
But… I am a big believer in being the change you want to see and in knowing the rules so that you can effectively break them. In part 3, we’ll talk about how Evinco is doing just that. Starting with how we are changing the experience of being employed and disabled from the inside out, establishing a leadership presence in workplace justice, and raising the bar for other organizations that aspire to progressive values.
Written by Dawn Jimenez, Director of Employment + Culture at Evinco Strategies.
This is Part 2 of a series on Navigating Disability in the Workplace. Missed Part 1? Read it here. And check out Part 3, Centering Employee Wellness and Rest, here. Part 4 talks about the subminimum wage and how you can get involved in disability advocacy.