Drivers of Hiring Discrimination for Individuals with Disabilities

31 Oct 2022 CategoryURG discrimination, racism and ableism Author Umain Recommends

Originally published here.

According to the U.S. Equal Employment OpportunityCommission (EEOC), discrimination in hiring is defined as ‘‘failure or refusal by an employer to engage a person asan employee’’ [1]. This specific definition of hiring doesnot include hiring-related discrimination issues which arecoded separately by the EEOC, such as prohibited medicalinquiry, training, negative references, qualification stan-dards, exclusive or segregated union, failure to refer byunion, testing, posting notices, apprenticeship, advertising,or reasonable accommodation.

This study is limited toonly those allegations specifically coded by the EEOC as‘‘hiring’’ issues.Since the effective date of the Employment Provisions(Title I) of the Americans with Disabilities Act (ADA), theNational EEOC ADA Research Project (Project) has doc-umented 19,527 allegations of hiring discrimination filedby individuals with disabilities. Taken together, theseallegations constitute 5.3% of the total in the Project’smaster dataset (N=369,182), a complete description of which is provided by McMahon et al. [2].

Hiring ranks fifthin the total number of allegations among 23 distinct discrimination issues, exceeded only by discharge, rea-sonable accommodation, terms/conditions of employment,and disability harassment. Hiring is a matter of highinterest due to its obvious impact on the labor force par-ticipation rate, yet the first and most obvious impression isthat it is relatively small as a workplace discriminationissue.

Even at this level, however, hiring discriminationcontinues as a significant vocational and psychosocialproblem for Americans with disabilities [3].Three studies conducted concurrent to this one reveal anumber of insights into the nature and scope of hiringdiscrimination and disability. These include unique char-acteristics of the Charging Parties [3] and Employers [4]who are most affected by this issue. Also completed isdocumentation of the Merit Resolution rate which in hiringwhich reflects a substantial increase in the level of actual(vs. perceived) discrimination compared to four other largediscrimination issues [5].

The Merit Resolution rate forhiring, which is the proportion of allegations resolved infavor of the Charging Party, is 26% compared to 20.6% forthe aggregate rate of Discharge/Constructive Discharge,Reasonable Accommodation, Terms/Conditions of Employment, and Harassment/Intimidation combined.The specific purpose of this study, however, is to dif-ferentiate Merit Resolution allegations from Non-MeritResolution allegations by answering the following researchquestions:

• What are the drivers of actual discrimination (MeritResolutions) in allegations of hiring discriminationbrought by Americans with disabilities?

• What categories of allegations can be identified inwhich the hiring discrimination experience ishomogeneous?

In conclusion, the overall rate of Merit Resolution forhiring discrimination (26%) is above the overall averagefor all the four other prevalent issues (20.6%), suggestingthat it is a less difficult allegation to substantiate. Thesedata confirm that hiring discrimination is a complex matterwith a variety of influences.

Primary among these is the ageof the Charging Party, after which the basis of the allega-tion (typically an impairment type) is the next predictorvariable. Bases other than behavioral disabilities result inhigher Merit Resolution rates, except in select industrieswherein applicants with behavioral disabilities experiencemarkedly high levels of actual discrimination.A high rate of Merit Resolution for any group is bothgood and bad news. On the positive side for youngerworkers, they prevail more often in the complaint resolu-tion process with respect to hiring discrimination. Thistendency might be attributed to several possible causes.

It may be that, with their careers mostly ahead of them, theyperceive they have more to lose if they ignore a perceiveddiscriminatory event, and so are more persistent in theircomplaint. It is also true that the ADA was the only majorcivil rights law in their generation, and they may be morefamiliar with it than older workers. This notion is sup-ported by the readiness of the youthful Charging Party toinvoke the lesser known prongs of the ADA definition of disability, thus suggesting a higher level of ADA literacy.It is also true that older workers may feel that age, notimpairment, was the basis of perceived discrimination, andso they can bring their complaint under another statute, theAge Discrimination in Employment Act.

Finally, it may bethat among those persons with disabilities who bringcharges of hiring discrimination, younger workers doexperience higher levels of actual discrimination.For rehabilitation professionals and providers of ADAtechnical assistance (such as the National Network of ADA Resource Centers known as DBTACs), there aresome clear implications. First, although hiring discrimi-nation is the most obvious impediment to the labor forceparticipation rate, it is not widespread.

Emphasis intraining and technical assistance may be adjustedaccordingly. Second, efforts to reduce hiring discrimina-tion are best directed at the young, and high schools,community colleges, vocational-technical schools, col-leges, and universities are logical recipients of trainingand technical assistance. Special educators, guidancecounselors, career centers, and services for students withdisabilities can be enlisted to provide accurate informationabout ways to identify and report hiring discrimination.

Finally, industry-specific training packages regarding theabilities and potential of applicants with behavioral dis-abilities appear to be in order for Agriculture, Real Estate,Mining, Food Services, Professional, Scientific andTechnical Services, or Public Administration. Pursuant tosuch outreach, however, providers will need a workingknowledge of the occupations within these industries tobe perceived as credible.

Future research will eventually focus on those lessprevalent issues that are clearly related to hiring. TheProject does have equally detailed information fromthousands of closed allegations regarding prohibitedmedical inquiry, training, negative references, qualificationstandards, exclusive or segregated union, failure to refer byunion, testing, posting notices, apprenticeship, and adver-tising. It will be interesting to explore the contributions of each to the overall job acquisition picture.

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