The Low Cost of ADA Compliance (and the Misconception of the High Cost)

          Along with the spirit of the ADA came the requirement that discriminatory barriers to employment be removed for individuals with disabilities, in order that they may achieve the “equality of opportunity, full participation, independent living and economic self-sufficiency” that Congress originally sought when they passed the original ADA.

          The ADA defines discrimination as “not making reasonable accommodations to the known limitations of an otherwise qualified individual.” In order to avoid this discrimination, employers have to accept the financial burden of accommodation up to the undue hardship ceiling.

          Employers often complain about the costs associated with making reasonable accommodations. According to a DePaul University and Illinois Department of Commerce and Economic Opportunity study, the financial advantages of making the accommodations outweigh the disadvantages:

-Participants with disabilities from the retail and hospitality sectors stayed on the job longer than participants without disabilities.

-Across all sectors, participants with disabilities had fewer scheduled absences than those without disabilities.

-Retail participants with disabilities had fewer days of unscheduled absences than those without disabilities.

Regardless of sector, participants with and without disabilities had nearly identical job performance. <www.disabilityworks.org/downloads/disabilityworksdepaul studyexecutivesummary.pdf>.

The above and other studies point to the ideas that costs of compliance are small, and the additional benefits of compliance are that individuals with disabilities are less excluded in society in general when put into work. They are also taken off government-assisted programs.

It seems, however, that before the individual with a disability begins the arduous task of defining his or herself as disabled under the ADA, they’re faced with a misconception that equality is too expensive. This misconception is a societal obstacle that, so long as it exists and goes unpacked, will hinder the ADA from reaching its goals. 

(Stay tuned for my next blog as the focus of Massachusetts Disability Lawyer turns to guardianship in special education as well as other disability cases.)

The ADA’s Spirit Versus the ADA in Practice

On July 26, 1990, with 3,000 disability rights advocates looking on, then President George Bush signed the Americans with Disabilities Act (ADA) into law. Bush described the ADA that day as

the world’s first comprehensive declaration of the equality of people with disabilities, and evidence of America’s leadership internationally in the cause of human rights. With today’s signing, every man, woman and child with a disability can now pass through the closed doors, into a bright new era of equality, independence and freedom.

Equality, independence and freedom: these were the purported goals of the ADA more than 20 years ago. The definition of disability contained within the ADA, however, creates enormous hurdles for individuals with disabilities, as they must first prove themselves disabled under its definition before they can begin to seek its protections.

This creates a discrepancy between the original spirit of the ADA and its effect on those trying to use the law. While the legal identity of “disabled” contained within the ADA could be used to challenge barriers, it created new ones.

The ADA itself—as well as court interpretation—has created obstacles to equality, independence and freedom. It’s also created two groups of individuals with disabilities: those who were considered disabled under the ADA and were able to seek protection under the ADA, and those who were disabled, but were not able demonstrate the legal standards set out in the ADA and were therefore excluded.   

            The ADA’s definition of disability creates a categorization of disability that places an additional burden on individuals with disabilities, instead of addressing institutional barriers and attitudes that construct individuals as disabled. As Professor Katherine Dudich of the Massachusetts School of Law at Andover has stated, the ADA is reactive, not proactive. It is this characteristic of the ADA, and its requirements for qualifying as disabled under the ADA, that are antithetical to the original spirit of the law.