Barriers to the Accommodation Request Process of the Americans with Disabilities Act

Article excerpt

The Americans With Disabilities Act (ADA) of 1990 is "An Act to establish a clear and comprehensive prohibition of discrimination on the basis of disability" (Preamble, ADA, 1990). One definition of disability discrimination given in the law is the failure to provide accommodation (ADA, 1990). The Equal Employment Opportunity Commission (EEOC; 1999) called the accommodation request process a fundamental feature of the ADA. The ADA does not mandate employment, it prohibits discrimination.

Research into the employment goals of the law makes the assumption that the ADA accommodation request process is viable (DeLeire, 2000; Moon, Chung, & Yang, 2003; Stapleton & Burkhauser, 2003, Wells, 2001). These studies, some using the same data sources, generate opposing answers on the ADA's impact on employment all the while ignoring the fundamental request process of the ADA. Other research looks into the behaviors of entities covered by the law, but these may not be relevant to the ADA's goals. For example, Bruyere (1999) surveyed 1,402 human resource departments on their preparedness to accommodate and reported that most said they were making changes. However, there was no way of knowing from that study whether the changes were initiated by, or even affected employees and/or job seekers with disabilities. Hernandez, Keys, and Balcazar's (2000; 2004) indicated that employers and representatives of the private and public sector express positive attitudes about the employment and access rights of workers with disabilities, but their behaviors may not match their attitudes. Relevant ADA behaviors have not been researched.

The meaning of the attitudes and opinions of people with disabilities in terms of their actual behaviors and the effect of ADA is also unclear. People with disabilities know about the law and are in favor of it (NOD/Harris, 2000; 2002), and some think it has not accomplished much (Hinton, 2003; NOD/Harris, 2004). The National Council On Disability's (NCD) (1995) collection of testimonies from people with disabilities affirmed the well known benefit of receiving accommodations. However, the NCD study did not describe the ADA request process in light of disability discrimination, that is, the refusal to accommodate. The functional impact of the law--the behaviors of the people who could make ADA requests and those who receive ADA requests is not known.

When the ADA complaint processes are used they are not effectual means of acquiring accommodation. In a comprehensive study of all ADA EEOC employment discrimination charges (N = 149,143) between July, 1992 and September, 2000, Moss, Burris, Ullman, Johnsen, and Swanson (2001) found that most complaints were rejected and that when a complaint was accepted, the person with the disability lost most of the time. Furthermore, Moss et al. found that the result of a fully processed EEOC complaint, win or lose, was most often simply a letter to the complainant. The authors concluded that the EEOC complaint process is ineffectual, and noted, "Aside from a chance to tell their stories, most claimants will not benefit from filing a claim." Colker (2000) reviewed ADA litigation and concluded that covered entities knew it was highly unlikely that they would ever face any enforcement action for noncompliance.

Sullivan (2001) found the major reason people charging disability discrimination lost their litigation was because of a breakdown in the negotiation process whereby an employee and an employer discuss what accommodation is needed. He noted the ways employees were blamed for contributing to that breakdown but wrote that the ways employers affected that breakdown were too varied to list. In contrast, Harlan, and Robert (1998) listed some of the ways employers effect the request for accommodation process. They labeled these tactics "employer resistance strategies." These included generating fear of reprisal, giving misinformation, pejorative labeling of requesters as "lazy" or "trouble makers," and telling requesters accommodations would take a long time to arrive and would be of poor quality. …