Disability in the Workplace - Research Paper Example

Disability in the Workplace Discrimination being a behavioral manifestation of one’s unfair treatment, negative attitude or judgments has been frequently reported in workplaces across the globe. Employees would be treated differently based on their gender, religion, race, age, sexual orientation, political affiliations, disabilities and nationality among other aspects. This paper evaluates these forms of workplace discrimination and distinguishes what could be termed as legal discrimination from illegal or unethical discrimination. Borrowing from various secondary sources, the paper gives some of the common effects of workplace discrimination. People living with disabilities have been cited as the most disadvantaged in employment and this paper focuses on discrimination against people with disabilities in the workplace. The legislation against this form of discrimination, particularly the Americans with Disabilities Act, ADA would be evaluated and compared to its revised version referred to as the ADA Amendments Act, ADAAA which sought to clarify contentious issues in its predecessor. Introduction Treatment of people unfairly in particular respects amounts to discrimination and would happen because of people’s prejudiced or stereotypical beliefs about other persons based on their attributes or personal characteristics. Chou and Choi further define workplace discrimination as the variation in treatment pegged on an individual’s characteristics “which impairs or nullifies fairness of treatment or opportunity in the workplace” (1052). Repa (253) gives examples of illegal discrimination as discriminations based on race, skin color, religious beliefs and nationality. Robin (2) points out at sexual harassment as a rampant form of discrimination especially in workplaces. Other recent forms of discrimination considered to be illegal include discrimination based on one’s HIV/AIDS status, pregnancy, being divorced, lesbian or gay. Some other forms of workplace discrimination prohibited by the Americans with Disabilities Act include discrimination based on mental or physical disability, job applicant’s present and past medical conditions and creation of worksites that pose physical barriers to movement of the physically handicapped (Goodman-Delahunty & Foote 27). Treating everyone equally also amounts to discrimination. However, there are exemptions for discrimination such that they do not amount to being illegal, but only if for a specific purpose. These exemptions allow for employers to recruit from a particular race, sex or age when these factors are deemed necessary for a particular job. This should be genuine and there should be a crucial requirement for the kind of persons being recruited. Other exemptions seek to boost the opportunities for the disadvantaged groups as required by the equal opportunity policies (Repa 250). Such persons could also be provided with more favorable trainings. Discrimination has adverse consequences at organizational, group and individual levels. Goodman-Delahunty and Foote (78) categorize these consequences into psychological or mental, somatic or physiological and vocational or work related consequences. Psychological consequences include depression, distress, fear, anxiety, loss of control, hostility and loss of control. Physiological consequences include binge-eating, change in blood pressure, increase in alcohol consumption, crying spells, hypertension, headaches and gastrointestinal complaints. At the workplace, victims of discrimination would exhibit decreased productivity, organizational withdrawal, decrease in job satisfaction, decreased commitment to work and the organization and quitting job. The effects of discrimination would be exhibited differently among different people due to the variation in response to stressors. They also vary with minority status and gender. Disability Various scholars and institutions have defined disability, capturing the various aspects necessary for their reference. The International Labor Organization, ILO (2) defines disability as a physical, intellectual, mental or sensory impairment that adversely affects one’s prospect of securing, retaining, advancing in or returning to suitable employment. Robin (5) defines disability as severe lifetime physical or mental impairments which lead to substantial limitation in more than two areas of major activities in life such as learning, language, self direction and self care among others. The author further notes that in the US, there are about 4.5 million people with disabilities which include autism, mental retardation, cerebral palsy, Down syndrome, epilepsy and traumatic brain injury. Of the current working-age adults with disabilities, a considerable 30% have been employed in the conventional labor market. Over years, there has been the move towards the integration of these workers into mainstream jobs with less emphasis on placing them in sheltered workshops. The Americans with Disabilities Act The Americans with Disabilities Act, ADA refers to a law of the federal civil rights that came into being in 1990, aimed at preventing discrimination and enabling people with disabilities to fully participate in all societal aspects. ADA considered an employee as disabled if such a person has been mentally or physically impaired such that this person is substantially limited in at least one of the major life activities (Repa 253). This act has been divided into three sections: in Title 1 – Employment, employers are prohibited against discriminating against qualified persons with disabilities; Title II – Public Accommodations by State and Local Governments requires all government agencies to render equal access to programs regardless of disability; and Title III – Public Accommodations by Private Business requires publicly accessible businesses to provide accommodations whenever readily achievable. Effects of ADA Title I did not require businesses to employ the disabled but at least not to discriminate against them in employment. The use of “readily achievable” in Title III meant that businesses did not have to transform immediately but as soon as they could (Cullota 2). ADA implied that all business constructions had to be made accessible. But this act excluded homes in its coverage, hence apartments, other than those meant for business purposes needed not observe this law. As businesses renovated their premises, consideration had to be taken for accessibility renovations such as widening the doors, lowering counters and adding ramps for wheelchairs. Restaurants did not have to have their menus in Braille as waiters could read the menu out to the customers that are visually impaired. The 2009 ADA amendments The ADA Amendments Act, ADAAA that took effect in January 2009 redefined the person considered to be disabled, which increases the coverage of the workers seeking accommodations. This followed two Supreme Court cases, Sutton vs. United Airlines Inc and Toyota Motor Manufacturing, Kentucky Inc. vs. Williams in 1999 and 2002 respectively, where the Court was found to be restrictive in its consideration of persons with disability and thus not observing the intentions of ADA. Thus ADAAA prescribes for the adoption of a broader coverage in the definition of disability. It also expressively mandates the Equal Employment Opportunity Commission, EEOC to give interpretive guidance and binding regulations on ADAAA. This paper considers the seven areas in Americans with Disability Act that ADAAA amends. First, the pre-ADAAA law considered an employee as being substantially limited from carrying out life’s major activities if such a person is unable to perform the major activities that average persons from the general population can or if significantly restricted to the manner, condition or duration where an average person from the general population carries out the activity. However, the ADAAA brought in a reversed perspective of this observation by the Supreme Court and the EEOC by interpreting what was meant by “substantially limits” (Cullota 3). The new law quashes the terms ‘unable to perform’ and ’severely restricted’ calling for revision of agency’s regulation by EEOC. While upholding the use of ‘substantially limits,’ ADAAA does not require for an impairment to be as serious as interpreted in ADA. In ADAAA, life’s major activities have been enumerated. In the pre-ADAAA law, these activities were defined by EEOC to be performing of manual tasks, speaking, breathing, hearing, walking, seeing, working, learning and caring for oneself (Repa 254). Other additions include standing, sitting, reaching and lifting. Despite this categorization, courts have had to deal with some major activities like sex, crouching, operating machinery and communicating among others. The ADAAA thus brought on board broad, non-exclusive conditions generally considered to be major activities in life. However, Cullota (3) noted that the law remains silent on activities like driving, computer use and sexual relations, meaning that these will continue to be sources of litigation. Additionally, the new law does not require that a disability be that impairment that would limit a major life’s activity to also limit another major life activity. In addition, ADAAA expands ‘major life activities’ to encompass ‘major bodily functions’ (Robin 4). During the ADA law, bodily functions did not constitute major life activities. But in the ADAAA, Cullota cites the law as having considered “operation of a major bodily function” being unlimited to normal cell growth, immune system functioning, digestive, reproductive, circulatory, respiratory, circulatory, endocrine, neurological and brain functions (5). Thus, if one has mental or physical impairment that limits any of these bodily functions, the person would be considered as disabled under ADAAA. In evaluating whether the considered impairment would substantially limit one’s major life activities, there would be need to consider mitigating effects such as prosthetic devices, medication or behavioral modifications. The Sutton vs. United Airlines Inc. case for instance restricted the definition of disability to people not using mitigating measures. The Supreme Court would therefore not consider epilepsy, for example, as disability because it could be controlled totally through medication. The ADAAA law rejects this perspective directing courts to analyze disability regardless of ameliorative essence of mitigating criteria like prosthetics, medication, medical equipment, assistive technology, auxiliary aids adaptive or behavioral neurological modifications. This means that courts have to consider one’s condition of disability in the unmitigated or un-medicated state. The only exception in this provision according to Cullota (5) notes that individuals should be assessed when in their ordinary contact lenses or ordinary eyeglasses meant to get rid of refractive error or fully correct acuity in vision. With ADA, ‘regarded as’ was considered from the employer’s perspective. Plaintiffs would thus be tasked with proving that their employer considered them as being impaired to an extent that limited life major activities. ADAAA does away with the need for the plaintiff to show that the employer had considered him or her as having a substantial impairment that limited life activity. Instead, it considers one as disabled if there has been a subjection to action forbidden under the act due to a mental or physical impairment, whether or not it is perceived to limit or limits a major life activity. Exclusion in this Act includes impairments considered to be both minor and transitory where transitory would be based on an expected or actual duration of not more than six months. In the pre-ADAAA law, the EEOC considered that the employer had no duty to provide reasonable accommodation to persons protected by ADA because such persons would be considered as disabled (Cullota 7). This is because of the need for dismantling workplace barriers so as to provide reasonable accommodation. Therefore, ADAAA does not require employers to provide accommodations to employees claiming to be regarded as disabled. Whereas ADAAA extends the coverage regarded as distinctive treatment claims, this would be less critical to those requiring reasonable accommodation. Finally, ADAAA has some new provisions which Cullota (7) terms as friendly to the employer. ADAAA explicitly considers reverse discrimination as not cognizable. Therefore, discrimination against persons without disabilities would not amount to violation of the Act. It maintained the exclusion for conditions based on sex and makes no significant changes to obligations of employers on reasonable accommodation and non-discrimination other than expanding the coverage of persons considered as disabled. ADAAA made no changes to ADA confidentiality requirements for medical information of employees or their pre-employment medical examinations. Conclusion This paper has highlights some of the illegal forms of discrimination such as sexual harassment and discrimination against gender, race, nationality and disability. However, it also points out at situations where discrimination would be allowable such as situations where an employer seeks to provide an equal employment opportunity to the disadvantaged groups or when the requirements of a job call for specific considerations. The ADA was a legislation aimed at protecting people with disabilities in America against discrimination at their workplaces. It was revised to pave way for ADAAA in 2009 that sought to clarify critical aspects in the preceding law excluded majority of people with varied forms disabilities. As such, the new law considers people with disabilities in a wider scope as people who are unable to perform life major activities and whose major bodily functions have been compromised. ADAAA expanded the list of these activities and introduced the bodily functions to make it wholesome. This has made it simple to interpret this Act in courts and to also making the law protect the interests of more deserving people with disabilities who were disadvantaged under the Americans with Disabilities Act. Works Cited Chou, R. J. & Choi, N. G. “Prevalence and correlates of perceived workplace discrimination among older workers in the United States of America.” Ageing and Society 31 (2011): 1051 – 1070. Cullota, R. “ADA Amendments Act take effect January 1 2009.” Frilot LLC. Web. 10 October 2012. . Goodman-Delahunty, J. & Foote, W. E. Evaluation for Workplace Discrimination and Harassment. New York, NY: Oxford University Press, 2011. International Labor Organization. “Managing Disability Issues at the Workplace.” December 2010. Web. 10 October 2012. Repa, B. K. Your Rights in the Workplace. 9th ed. Berkeley, California: Delta Printing Solutions Inc., 2010. Robin, D. Promoting the health and safety of individuals with developmental disabilities employed in mainstream settings. Berkeley: University of California, 2006. Read More