By Cori Ritchey
While the Americans with Disabilities Act requires employers to hire in a way that is non-discriminatory, the issue of bias lives on even in a world where workers are difficult to come by.
Though there are laws surrounding hiring without prejudice towards those with disabilities, these laws are formatted with broad wording, which makes it easy for employers to get around the laws.
“There’s a line in the law that says hiring can’t cause undue hardship on the company,” said Sass. Companies will use his wording to explain away why they can’t hire a specific person.
Undue hardship is not clearly defined. Many companies will use this line in the law to be able to combat lawsuits surrounding discriminatory hiring practices.
“Vague laws, or as they are often referred to in the legal field, ambiguous laws, are unfortunately very common,” said Rosie Kirkby, a lawyer in the Boston area. “Oftentimes, the way to work around ambiguity in laws is by interpreting it in favor of the party with the least ‘power,’ if you will.”
With vague descriptions surrounding several parts of the Americans with Disabilities Act, there are countless ways for companies to get around making biased decisions.
“The company just has to establish that it tried,” said Sass. “That is where the gray area lies.”
Discrimination is seen all the time surrounding hiring, in everything from age, race, and disability. In 2021, there were more than 61,000 charges filed with the U.S. Equal Employment Opportunity Commission. Of these charges, more than 22,000 were related to discrimination surrounding disability.
“For employment discrimination specifically, the laws have been interpreted to be construed against the party who prepared it,” Kirkby said. For many of these cases, settlements happen and the client who filed never truly receives justice.
“I think it shows up in all kinds of venues,” said Sass. “Over the years, I’ve had managers come and say, ‘well, this is why I’m making this decision’. And as soon as you challenge them on it, their logic falls apart.”
The rate of unemployment for people with disabilities is nearly double the rate of unemployment of abled people, 9% compared with 4.4%, according to the U.S. Bureau of Labor Statistics. With a current labor crisis underway, where many people are not re-entering the workforce after being laid off due to shutdowns revolving around the Covid-19 pandemic, people with disabilities seem to be an untapped market of potential employees.
“It is illegal, but no one is going to say it’s because of [their disability],” said Elizabeth Tikoyan, founder of the Healp app, a networking and social platform for people with disabilities. “But, we all know it’s why people are not getting those jobs.”
Stories of discrimination and wrongful hiring is incredibly common in the disability and chronic disease community, said Tikoyan, who was diagnosed with chronic Lyme disease in high school. The energy deficits and muscle dysfunction she has experienced has left her feeling judged and undermined in the workplace.
There are many cost effective solutions to providing resources that people with disabilities may need. One of the most common adaptations, Sass said, is needing a talk to text software installed in a computer because of physical limitations. These types of programs are relatively cheap and tend to increase productivity.
While physical disabilities have always been an issue, mental disabilities are being seen more and more by employers.
“I’ll tell you what I see coming up more and more is accommodations surrounding anxiety,” said Sass.
Another resource that could be of use is more personal care days for people living with mental illnesses. In Canada, this is seen fairly often, Sass said.
“I’ve had several employees from Canada walk in with a doctor’s note to basically say this person needs 30 days paid leave, and they can get that up there,” said Sass. America does not have laws that would allow this kind of resource to be allocated to persons with disabilities.
Getting hired is only the first step for people with disabilities. Discrimination can, and often does, happen long after the job has been accepted.
According to a 2019 research brief from the ADA National Network, roughly one in 10 persons with disabilities experienced workplace discrimination even after the passing of the ADA laws. From this group of people, nearly one third of them removed themselves from the workforce entirely. Not only did they quit whatever job they did have, they never returned to any other job either.
Different types of disabilities discovery discrimination in different ways. According to a 2019 research brief from the ADA National Network, those suffering from mental disabilities are more likely to report workplace discrimination then the physically disabled.
These experiences of discrimination cause people to not disclose their disability at later jobs. According to the same research brief, only 39% of workers told their managers about their disability. Even a smaller amount, only 24%, told their coworkers.
Tikoyan’s poor experience with a boss was what inspired her to create Healp. The discrimination against her didn’t start until she told her manager about her Lyme disease one day when her muscular issues were acting up. “Before I told her [about my disease], there were never any issues,” Tikoyan said.
After it was brought up, Tikoyan said she experienced several bouts of bias. More than once, she was told not to do different aspects of her job because she wasn’t “capable.” From this experience is what birthed her app, Healp. She craved a community to help her through these external aspects of having a disability.
“I knew I had to develop something that could help other people like me,” Tikoyan says. “There are so many people going through this, but very few people are talking about it.”