Over the past 35 years, perhaps the greatest expansion in civil rights has involved individuals with disabilities. In virtually every realm of American life, from elementary education to professional sports, accommodations for the disabled have become commonplace. The genesis of this profound alteration of attitudes and practices has been debated for at least three decades.
For some, it is a natural extension of the human rights agenda, especially important in an aging society. For others, it is a misplaced expansion of the hyper individualism of the late 20th century, which insists in various ways that no student fails and no employee is unqualified. What makes the debate of critical importance is the role of government to impose and enforce laws, rules, and regulations mandating special treatment. The U.S. Department of Labor’s (DOL) proposed regulations to compel federal contractors to fill seven percent of all jobs with disabled workers is the latest example of the belief that solutions to complicated problems are but one more regulation away.
More of the same
The latest expression of governmental concern for disabled individuals comes from Senator Tom Harkin (D-Iowa), one of the original proponents of the Americans with Disabilities Act of 1990 (ADA). In “Unfinished Business: Making Employment of People with Disabilities a National Priority”, Senator Harkin seeks to summarize the results of a series of hearings before the Committee on Health, Education, Labor and Pensions (HELP) that aimed to reduce “the persistently low labor force participation of people with disabilities.”
Senator Harkin correctly notes that the basic programs that currently provide financial and other support to individuals with disabilities all begin with a proposition that the recipients are unable to work. He believes the changing definition of “disability” requires that these programs be modernized in “a way that consistently promotes long-term employment and economic self-sufficiency and security without harming millions of current and future beneficiaries and recipients.” However, those programs are beyond the reach of the HELP Committee, and besides, he doesn’t explain how he would effectuate those changes.
As an alternative, Senator Harkin writes that he is planning to introduce legislation that will:
- Help young people with disabilities transition successfully from school to higher education and competitive, integrated employment that can lead to quality careers and economic security;
- Help businesses owned by disabled individuals compete effectively for contracts within all levels of government and the private sector;
- Create incentives for states to develop and test new models of providing income support, rewarding work, and offering long-term services and support that will better enable people with disabilities to live in the community, work to and earn their full potential, and remain employed after the onset of a disability; and
- Encourage saving and asset development for people with disabilities so that they can become more economically secure and join the middle class.
Besides lacking any specifics (what help, incentives, or encouragement is contemplated?), the problem with Harkin’s proposals is that they do no more than replicate the language and ideas that have been in circulation for the past 20 years. Thus, they offer little hope for practical success. There are other indications that good intentions will not be enough. The Government Accountability Office (GAO) recently reported that the federal government’s new initiative to increase its hiring of disabled workers has made no progress despite presidential oversight.
Bottom line
Perhaps what is needed is a clearheaded review of why people with disabilities aren’t seeking work and why employers ― including the federal government ― aren’t hiring them at the anticipated numbers. Perhaps after more than 20 years of laws and regulations, it’s time to recognize that not everyone can do every job ― or even wants to; that working full-time is an unachievable goal for many people with severe disabilities; and that simple accommodations for those with an inability to think, concentrate, communicate, work with others, get to work, or stay at work aren’t available in a contemporary workplace. Maybe those are the reasons for “the persistently low labor force participation of people with disabilities.” And no legislation is going to fix it.
Burton J. Fishman is an attorney with Fortney & Scott, LLC. He has devoted his practice to developing the “law of the workplace,” an interdisciplinary approach that offers employers counsel and representation on a broad range of matters growing out of government regulation of business. He can be contacted at bfishman@fortneyscott.com.
Could someone make some sense of employment policy. Between illegal aliens, the ADA, rights of the elderly to continue in employment – what does this do to the young and able bodied that nearly all employers view as the best opportunity for success and better costs of doing business. The unemployment rate is stuck in a high percentage that is frustrating so many. 15 yrs ago the high school & college students found jobs after school and in the summer; today these jobs are MUCH less available as th elderly hold on and illegals take many of these opportunities. Seems we are eating our young for false and ego based reasons. Charity in public policy must consider all the results and ramifications for true benefit to the society.