Employers Deserve Credit for ADA Progress

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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 hashadlittle or no impact on the employment rate for persons withdisabilities.In 1991, the year before the ADA took effect, 23 percent of persons withsevere disabilities were employed. In 1994, the latest year for whichreliable statistics are available, that percentage grew to only 26percent.

Such a small increase is hardly impressive. The 3 percent gain is evenless impressive considering the fact that America was in a recession in1991, while the economy was booming in 1994. The percentage of personswith disabilities who were employed in 1994 is identical with thepercentage of persons with disabilities who were employed in 1986.

How can it be that employment rates have remained steady even after theADAbanned workplace discrimination and required employers to providespecialaccommodations for disabled workers? The answer may have less to dowithemployment discrimination and more to do with financial incentives.

Many persons with disabilities remain unemployed not because employerswon't hire them but because it pays better to stay at home. So long asaperson with a disability remains unemployed, he or she may be eligiblefortens or even hundreds of thousands of dollars in annual cash paymentsandgovernment health insurance benefits.

In fact, a May 1999 General Accounting Office report estimates that thefederal government will distribute $110 billion in cash and benefits topersons with disabilities this year, principally through SocialSecurity.Because government payments invariably approach and frequently exceedworkplace salary expectations, persons with disabilities often choose tostay at home rather than seek employment. The Associated Press recentlyreported that less than one-half of one percent of Americans receivingdisability benefits ever returns to work.

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

That might be good news for employers, except that testimony also notedthat such cases can cost employers $150,000 or more to successfullydefendeach meritless claim under the ADA. Moreover, a general counsel for theEqual 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 newADAcharges every year, law-abiding employers are shouldering tremendousfinancial burdens associated with the Act.

To the extent that supporters of the ADA meant to improve the lives ofpersons with disabilities and give the nondisabled community a betterunderstanding of persons with disabilities, they are to be applauded.Butit is unfortunate that they might undermine those good intentions withthehigh costs of that law.

James M. Taylor

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