ADA Audio Conference PowerPoint Slide Outline-March 20, 2007

Slide 1:
Workplace Discrimination & Disability 
The National EEOC ADA Research Project
Brian T. McMahon
Sr. Research Professor, PM&R
Professor, Rehabilitation Counseling
ADA Audio Conference Series
March 20, 2007

Slide 2:
ADA Title I Primer
(all you’ll need to know - - for  today)	
All Personnel Actions must be unrelated to the existence or consequence of disability as defined in the act.

Slide 3:
Workplace discrimination and disability only barrier to employment?  No!
Financial disincentives to work
Instability in Economy
Labor Market Fluctuations
Healthcare Availability
Outsourcing of Jobs
Prospective Guest Worker Program(s)
Least Researched Barrier?  Yes! 

Slide 4:		
What’s in the Database?
369,000 Title I Closed allegations over 13.2 yrs
(not in process)
Grows @ 5% per year
Charging Parties/Consumers
45 unique and known impairments 
Race, Gender, Age
Respondents/Employers
10 unique industry groupings
Number of Employees
Region (DBTAC and Census)
Issues: 25 unique types of discriminatory behavior
Outcome/Resolution:  allegation has/not Merit

Slide 5:
Graphic Figure:  Five Major Variables of Analysis
Claimant:
Age, Sex, Ethnic
Disability

Place:  Region

Employer:  
Industry/SIC Code
Size:  Number of workers

Adverse Action:  25 Types of Discrimination
Related to Getting the Job:
Qualified Individual
Medical Exam
Testing
Hiring
Training
Reasonable Accommodation

Work conditions:
Wages
Benefits
Job Classification
Work Assignment
Segregated Facilities
Promotion
Demotion
Discipline
Suspension
Intimidation
Harassment
Terms/ Conditions

Keeping the Job:
Discharge
Constructive Discharge
Involving Retirement
Layoff
Recall
Reinstate

Other

Complaint Resolution (Outcome)
Favors Individual:
•	Negotiated Settlement
•	Withdrawal w/ Benefits
•	Reasonable Cause
•	Successful 
Conciliation
•	No Success
Conciliation

Favors Employer:
No Cause
Administrative Closure

Slide 6:
45 Impairments into six comparison groups	
General Disability (200k)
Psychiatric Impairments (50k)
Chemical Dependence (7k)
Other Disability (70k)
Record of /Regarded as (44k)
Association with Person w/ Disability (3.5k)

Slide 7:
General Disability:  200,000
Known physical, sensory or neurological impairments: 
allergy, asthma, back, chemical sensitivity, HIV, blood disorders, cancer, DIABETES (11 million), 
disfigurement, dwarfism, missing limbs, orthopedic impairment, GI, hearing, cardio, kidney, MR, autism, Alzheimer’s, TBI, CP, CTD, LD, MS, CF, TB, epilepsy, paralysis, other neurological or respiratory, speech, vision

Slide 8:
Psychiatric:  50,000
Allegations involving:
anxiety disorder , depression, bipolar illness, schizophrenia, other psychiatric impairment.

Slide 9:
Chemical Dependence:  7,000
Allegations involving:
Alcoholism 
Drug dependence.

Slide 10:
Other:  70,000
Allegations involving:
Physical, Sensory or Neurological Disability
Specific Impairment Not Known 

Slide 11:
Record of or Regarded as:  44,000
Relationship or Association:  3,500
Not Existence but Consequence of Disability
These allegations are studied separately because they do not pertain to actual disability status in the present time; i.e., they relate to second and third prongs of the ADA definition of disability
Specific impairment unspecified

Slide 12:
Seven study areas:
Disability specific patterns
Gender, Race, Age
Industry Specific Patterns
Impact of Employer Size, Region
Issue specific analysis
Supreme Court Decisions (e.g. Sutton)
Drivers of Merit Outcome

Slide 13:

Let’s get a feel for specific studies and findings
But first “No differences” does not mean “NO discrimination”
“No differences” means “No uniqueness”

Slide 14:
True or False?
In disability world, most allegations of workplace discrimination are resolved in favor of the person with a disability

Slide 15:
False! (Graph)
The Employer Prevails in 78% of Cases with Merit 
The Individual Prevails in 22% of Cases with Merit
Less than 5% of cases are tried in the courts

Slide 16:
True or False?
Lacking resources, small employers are more likely to engage in discriminatory behavior

Slide 17:
(Graph)
Size Matters in Thousands:
56,000 Allegations against employers with 15-100 employees
21,000 Allegations against employers with 101-200 employees
19,000 Allegations against employers with 201-500 employees
72,000 Allegations against employers with greater than 500 employees

Slide 18:
True or False?
In Disability World, Most workplace discrimination is related to hiring activity

Slide 19:
(Graph)
False!
Hit Parade of Issues
104,000 related to Termination
58,000 related to Reasonable Accommodation
26,000 related to Harassment
25,000 related to Terms and Conditions
12,000 related to Hiring
12,000 related to Discipline
8,000 related to Constructive Discharge
Hiring is less than 4% of all allegations

Slide 20:
Disability Discrimination is a job retention barrier
Hiring
Quality of Work
Job Retention

Slide 21:
True or False?
Consistent w/ social psychology research, workplace discrimination is more prevalent when it involves behavioral disabilities (psychiatric and addiction)

Slide 22:
False!
Higher levels of actual discrimination within Physical, Sensory, Neurological conditions.  This is contrary to prevailing theories about stigma

Slide 23:
Which Group Experiences the Highest Overall Level of Workplace Discrimination?
Mental Retardation
Missing Limbs
Disfigurement
Epilepsy
HIV/AIDS

Slide 24:
Answer is?
Most impairment groups have 2-3 issues with significant difference from GENDIS

2.	X X is Second
Significant difference on 9 of top 25 issues

Slide 25:
(Graph)
Merit Resolution Rates x Issue

Total: HIV/AIDS 32% Resolution versus 22% General Disability
Insurance Discrimination:
61% HIV/AIDS versus 29% General Disability
Other Benefits:
54% HIV/AIDS versus 22% General Disability

Significant Difference on 16 of 25 Top Issues

Slide 26:
Which group reports the most disability-related harassment?
Spinal Cord Injury
Hearing Impairment
Mental Retardation
Traumatic Brain Injury

Slide 27:
Disability Harassment
26,000 allegations	
Includes bothering, tormenting, troubling, ridiculing, or coercing an employee because of disability
Involves jokes, epithets, or graffiti
 Insidious?

Slide 28:
Answer is …. ?
Mental Retardation
Traumatic Brain Injury
Hearing Impairment
more insidious?

Slide 29:
Database Integrity
Disfigurement, N = 751
Problems in Harassment and Non-Wage Benefits
Problems in Retail and Service Industries
Slightly Lower Merit Rates,
As expected but ……  

Slide 30:
Database Integrity
Disfigurement, N = 751
Allegations of Discrimination and Merit Findings For Disfigurement are driven by?????

Slide 31:
Database Integrity
CTDs: A.J. Armstrong et al.,
Higher w/ large employers (>500)
Higher in:
Manufacturing
Transportation/utilities
Financial, Insurance, Real Estate
Higher In:
Layoff, Reinstatement, Reasonable Accommodation

Slide 32:
Sutton Trilogy & Diabetes
Sutton  v United Airlines
Albertson’s  v Kirkinburg
Murphy v United Parcel Service

“Substantially Limiting” must consider mitigating circumstances dramatically reduces the number eligible for ADA protections

Slide 33:
Most likely impacts:
Diabetes
Depression
Epilepsy
Multiple Sclerosis
Conditions in which substantial limitations are ameliorated considerably by:
Medications
Prosthetics/orthotics
Assistive Technology
Psychological Adjustment

Slide 34:
Sutton “Catch 22”
Consider a Person w/ Type I Diabetes
Hypoglycemic Episodes Controlled by Insulin
Unfairly Considered “Unfit to Work”
But not impaired enough to be protected by ADA

Slide 35:
NCD Concerns
March 17, 2003
The Supreme Court's stance on mitigating measures deprives the individual of the right to maintain an ADA action … because such a person is not eligible for the ADA's protection. This means an employer or other covered entity may discriminate with impunity against such individuals in various flagrant and less flagrant ways.

Slide 36:
(Table)
Sutton x Diabetes
June 22, 1999

Allegations  Pre-Sutton 5644
Allegations Post Sutton 5793
Total:  11, 427

Months:
Pre-Sutton  83
Post-Sutton 51
Total:  134

Allegations per Month:
Pre-Sutton  68
Post-Sutton  114
Total:  8,535

Merit Resolutions:
Pre-Sutton  1073
Post-Sutton  1494
Total:  2567

Merit Resolution Percentages:
Pre-Sutton 19 percent
Post Sutton 26 percent
Total:  22.4 percent
Discrimination Emboldened?  Yes
Plaintiffs Discouraged?  No

Slide 37:
There are many, many favorable industry findings
There are many, many favorable issue findings 
Must reinforce the positives

Slide 38:
Project to Date
15 Lead Investigators, 50 Total
9 Universities
40 Studies Published or In Press
4th Dissertations almost complete(3 Us)
>5 Studies more in 2007 (+ each yr)
Support from 4 grants (3 NIDRR)
Entire Process began 4 yrs ago 
Entire process is voluntary
Business like and professional approach
Close linkage/Monitoring by EEOC

Slide 39:
Where are these published?
Work:  Journal of Prevention, Disability, and Rehabilitation
June/July 2005 (9 Studies)
Journal of Vocational Rehabilitation
December, 2005 (6 Studies)

Workplace Discrimination and Disability (2007).  B.T. McMahon (Ed).  VCU RRTC on Workplace Support & Job Retention 
(11 reprints from above)

2006:  Update Database
To be released in 2007:  Healthcare Industry, Cancer, Blindness/Low Vision, autism, MCS, Others.

To be conducted by CORC (07-09)  
•	Reasonable Accommodation, Terms/Conditions, Hiring, Termination 
•	Gender and Ethnicity STudies (08-09)
•	DBTAC Regional Profiles (07)
•	Advance Specific Findings in Greater Details(M.S.)
•	More Supreme Court Decision Impacts

Slide 40:
Shirley Chisholm
“In the end antiblack, antifemale, and all forms of discrimination are equivalent to the same thing – antihumanism.”