Megaconference Special #5 of 6: ADA-AA Whyfor in Employment
Published June 29, 2009 @ 10:53AM PT
Saturday ended up being "ADA Day" for me at the Megaconference, both sessions I attended being on the ADA (Americans with Disabilities Act). The first was called "The ADA Amendment Acts of 2008" and focused on the definition of "disability" according to the ADA and employment (Section I). The key item stressed in both ADA presentations is that the ADA is civil rights legislation.
As someone who followed the ADA-AA as it was being worked on last year, I was already familiar with the basics--that the power of the ADA had been weakened and that the ADA-AA was to restore the original intent of congress. What I was less familiar with were the concrete examples behind why this was so: over and over, people were being deemed "too disabled" to work at their jobs, but "not disabled enough" to be protected under the ADA. So people were being fired, demoted, discriminated against, and then dismissed. Imagine a woman who is fired for being female and then told she's not "womanly enough" for the ERA to apply to her.
Now the really fascinating bit to me was the speaker's rundown of why this happened (I'm always so interested in the whys!). Especially as this "why" has a lot to do with perspectives.
The ADA is, again, civil rights legislation. It is not a government service, it is not something one "applies for." However (at least according to the speaker), when the Equal Employment Opportunity Commission first got a hold of it to create regulations, they came immediately from the perspective of social security and workman's compensation--government programs that require a person "prove" some "level" of disability--not from the perspective of civil rights.
This lead to bickering over whether an individual was "qualified" rather than seeing the person as a member in a protected group, even to the point of going to people's houses to make sure they were "disabled enough" at home to qualify as protected in the workplace under the ADA. Imagine a religious discrimination case involving someone going to your home to make sure you had the "right amount" of religious items in your house and following you to make sure you regularly attend religious services! This is especially problematic as the ADA doesn't just protect people who are disabled, but people who are considered to be disabled (but aren't actually) or who are associated with someone else who is disabled!
The ADA-AA hopefully has changed this perspective around to make sure that the focus of anti-discrimination cases is on the discrimination rather than the "level of disability" of the person. This is one of many examples of how perspectives and attitudes toward people on the spectrum, or people with disabilities, need to change and modernize to see us not as medical problems but as human beings with human rights.
It will be interesting to watch how regulations and application of the legislation unfold as we move into the future.
For more information on the ADA-AA, see the U.S. Department of Labor's ADA FAQs. Also, see DBTAC Northwest's ADA-AA resources.
[news potpourri tomorrow--still playing catch-up]
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Dora is committed to improving quality of life for individuals on the autistic spectrum--including herself! She is Co-director of the Academic Autistic Spectrum Partnership in Research and Education and a member of the Autistic Self Advocacy Network's Board of Directors.
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I had problems with something like this the time I unsuccessfully filed an autism-related human rights complaint here in Canada. I knew perfectly well that I didn't actually have to be disabled to be discriminated against, and yet everyone else seemed to think it was about how my disability (even if they didn't know what it was) automatically meant they could have a double standard, where I was not automatically entitled to what everyone else was. I was unable to explain it to the tribunal so that they'd understand.
I think one of the problems with autism-related cases is that you explain the situation, and they look at you with polite blank faces - the situation doesn't register with them because it's out of their experience. So I hope the ADA people will have some way of "seeing" autism.
Posted by Anemone Cerridwen on 06/29/2009 @ 07:13PM PT
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It always amazes me when people complain that there are different standards to determine whether an individual is covered by the ADA for employment-discrimination purposes and whether an individual is eligible to receive disability income. It's trivially easy for me, a TAB person, to figure that it would be completely nonsensical to use the same criteria, since that would mean both providing welfare benefits to people who can work and requiring employers to hire people who can't do the job. Of course logic doesn't enter into it; what's really going on is an emotional aversion to paying taxes and to having to live in a world that includes people you haven't specifically chosen to invite into it.
Posted by Eric Bohlman on 06/29/2009 @ 10:04PM PT
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I recently went to the local EEOC office because I have been experiencing harassment at work. The intake woman did not know what SSDI is or that to get onto SSDI you must have a disability that interferes with a major life function. So, she asked me various questions to determine if I "qualified" to file a complaint. (One of the determining factors in qualifying is if you have a disability that interferes with a major life function.) She decided that I qualify.
What I learned at the EEOC is that the EEOC cannot issue subpoenas during its investigation. Nor can it require your witnesses to speak. Nor are witnesses' statements taken under oath. This means that they can lie if they want.
While ADA explicitly says that retaliation is not allowed toward those filing a charge or participating in an investigation, if it does occur, you must be able to prove that it was a result of the charge being filed and investigated. Since witnesses understandably may feel at risk of retaliation or losing their jobs, they may elect not to make statements or they may not collaborate your story. I was told that if this happens, my case would be weakened.
Obviously there are incidents that occur without witnesses. It is easy to see how an investigation could become a matter of what you say vs what the harasser/discriminator or employer says. Who will be believed? The burden of proof is on the person who files the charge.
Additionally, even if your harasser has made statements referencing your disability as a reason for his/her behavior, you must prove that the harassment/discrimination is due to your disability. The statement is not enough. You must prove that the statement is in fact referencing your disability. While I thought it was obviously a direct reference to my disability, I learned that it could be interpreted differently.
ADA is nice in theory. But, I feel it was created just to appease those with disabilities. It clearly lacks teeth and does not truly offer any protection at all to a person with a disability who is being harassed/discriminated against.
Posted by Kim Hing on 07/02/2009 @ 02:03AM PT
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