Commentary

Employers Deserve Credit for ADA Progress

By James M. Taylor
September 15, 1999
As government officials and political activists recently gathered in Washington, D.C., to celebrate the ninth anniversary of the Americans with Disabilities Act, the celebrants forgot to thank the American employers, who have borne the financial brunt of the law. Although the ADA was meant to improve the lives of persons with disabilities, it has failed to unearth any underlying pattern of workplace discrimination. Nevertheless, America’s employers have been left footing the bill.

Statistics from the U.S. Civil Rights Commission show that the ADA has had little or no impact on the employment rate for persons with disabilities. In 1991, the year before the ADA took effect, 23 percent of persons with severe disabilities were employed. In 1994, the latest year for which reliable statistics are available, that percentage grew to only 26 percent.

Such a small increase is hardly impressive. The 3 percent gain is even less impressive considering the fact that America was in a recession in 1991, while the economy was booming in 1994. The percentage of persons with disabilities who were employed in 1994 is identical with the percentage of persons with disabilities who were employed in 1986.

How can it be that employment rates have remained steady even after the ADA banned workplace discrimination and required employers to provide special accommodations for disabled workers? The answer may have less to do with employment discrimination and more to do with financial incentives.

Many persons with disabilities remain unemployed not because employers won’t hire them but because it pays better to stay at home. So long as a person with a disability remains unemployed, he or she may be eligible for tens or even hundreds of thousands of dollars in annual cash payments and government health insurance benefits.

In fact, a May 1999 General Accounting Office report estimates that the federal government will distribute $110 billion in cash and benefits to persons with disabilities this year, principally through Social Security. Because government payments invariably approach and frequently exceed workplace salary expectations, persons with disabilities often choose to stay at home rather than seek employment. The Associated Press recently reported that less than one-half of one percent of Americans receiving disability benefits ever returns to work.

But has the ADA nevertheless been of benefit by exposing a pattern of employment discrimination against those persons with disabilities who choose to enter the workforce? Not according to American juries. Testimony in November 1998 before the U.S. Civil Rights Commission cited an American Bar Association finding that plaintiffs have failed to show any unlawful discrimination in 92 percent of the cases litigated under the ADA.

That might be good news for employers, except that testimony also noted that such cases can cost employers $150,000 or more to successfully defend each meritless claim under the ADA. Moreover, a general counsel for the Equal Employment Advisory Council, conceded that it can cost an employer $50,000 to $100,000 in attorney fees alone to dismiss a simple, garden-variety case. Considering that plaintiffs file almost 20,000 new ADA charges every year, law-abiding employers are shouldering tremendous financial burdens associated with the Act.

To the extent that supporters of the ADA meant to improve the lives of persons with disabilities and give the nondisabled community a better understanding of persons with disabilities, they are to be applauded. But it is unfortunate that they might undermine those good intentions with the high costs of that law.

James M. Taylor is editor of Accommodating Disabilities Business Management Guide and has written on disabilities for the Cato Institute.