Employment of People with Disabilities: Recent Successes and an Uncertain Future

Vol. 42 No. 4

By

Alison Barkoff works on litigation and policy related to inclusion of people with disabilities in employment, education, and community life as the director of advocacy at the Center for Public Representation.  

Emily B. Read is a civil rights litigator with 12 years’ experience representing clients in disability, race, and gender discrimination matters. She is currently an adjunct associate professor at American University Washington College of Law.


Clancy Hopper, a self-advocate who works as a guide at the Grand Ole Opry, gives a tour to Tennessee Governor Bill Haslam

When you meet someone new, one of the first things you probably ask is “What do you do?” Employment is central to our lives. A good job contributes to our self-worth, offers membership in a community, provides benefits like health insurance, and is critical to financial stability and independence.

Employment is particularly important to people with disabilities who have historically been denied access to mainstream workplaces and are still often falsely assumed to be incapable of or uninterested in work. At the recent Disability Policy Seminar in Washington, D.C., advocate Evan Nodvin, who has Down syndrome, addressed a crowd of more than 700 people about why having a job is important to him: He can afford to live in an apartment on his own, take his girlfriend out, and travel to visit his out-of-town family; he has also become friends with non-disabled coworkers, with whom he spends time outside of work. 

Similarly, Zavier Kinville, who has an intellectual disability, participated in a lawsuit against the state of Oregon that helped him obtain his first job in a mainstream workplace as a teacher’s aide in a childcare program. Kinville is excited about his new position, which he has wanted for more than 10 years, and reports that earning money gives him “financial independence” and “freedom.” 

But too many people with disabilities do not have the same opportunities as Nodvin and Kinville. Most people with disabilities want to work, yet a shocking number are unemployed. According to the Bureau of Labor Statistics, in 2015, just 17.5 percent of people with disabilities were employed, compared to 65 percent of those without disabilities; and the unemployment rate for people with disabilities was more than twice that for people without disabilities. www.bls.gov/opub/ted/2016/17-point-5-percent-of-people-with-a-disability-employed-in-2015.htm. This joblessness persists in part because of a stereotype that people with disabilities are uninterested in or incapable of working. Public service systems and public and private employers have also not done enough to hire people with disabilities and help them succeed. 

Unemployment is particularly acute for people with intellectual or developmental disabilities (I/DD) or psychiatric disabilities. Despite many states adopting Employment First policies that say public funding for people with disabilities should prioritize employment, the vast majority of people with I/DD or serious psychiatric disabilities spend their days in dead-end sheltered workshop programs paying subminimum wages or in institutional day habilitation or day treatment programs that do not promote employment. Estimates from the Institute for Community Inclusion show that in 2014, less than 20 percent of people with I/DD received support to help them obtain and maintain a paying job in a mainstream workplace. www.statedata.info/datanotes/state_intellectual_and_developmental_disability_agencies_service_trends.

Notwithstanding these grim statistics, there has been substantial progress made in increasing employment of people with disabilities over the last several decades, mostly on a bipartisan basis. And there have been several recent significant advances, which we will describe in this article. But employment, a key part of the human experience, is still unavailable to many people with disabilities. And despite identifying job creation as a top priority, the Trump administration’s early positions on health care, the role of regulations, federal hiring, and civil rights enforcement leave uncertain the future of efforts to increase employment of people with disabilities.

A Brief History of Efforts to Increase Employment of People with Disabilities

Until recently, our society did not believe that people with disabilities could live independently, let alone work. Many—particularly those with the most significant disabilities—were isolated in institutions segregated from the broader community. But starting in the early 1970s, people with disabilities and their families demanded the right to be independent and included. Presidents Nixon and Ford signed the first antidiscrimination laws protecting Americans with disabilities: the Rehabilitation Act of 1973, which prohibits discrimination by federal agencies and entities receiving federal funds; and a precursor to what is now called the Individuals with Disabilities Education Act (IDEA), requiring public education and services for children with disabilities. 

The fight against disability discrimination led to the passage of the Americans with Disabilities Act (ADA), a bipartisan law signed by President George H.W. Bush in 1990. Congress intended the ADA to provide a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA’s goals include promoting economic independence and ending employment discrimination by requiring employers to provide “reasonable accommodations” to employees with disabilities. The ADA also includes an “integration mandate,” reaffirmed by the Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999), that makes it illegal for state or local governments, which administer many disability service systems, to segregate people with disabilities and deny them opportunities to participate in their communities. 

But the ADA’s integration mandate is meaningless for many people with disabilities if they do not have access to community-based services and care. Until the mid-1980s, Medicaid—the federal/state partnership that funds much of the services and care available to low-income people with disabilities—only paid for institution-based care. But then a child with a disability, Katie Beckett, and her family helped convince President Ronald Reagan to allow states’ Medicaid programs to fund the Centers for Medicare and Medicaid Services’ (CMS) Home and Community Based Services (HCBS) (www.medicaid.gov/medicaid/hcbs/index.html). HCBS programs now offer a wide range of supports to help people with disabilities live, work, and participate in their communities, and constitute more than half of all public spending on long-term supports for people with disabilities. In part as a result of this increased funding, there are now evidence-based services to help people with the most significant disabilities find and keep employment. The most important of these is “supported employment,” a package of flexible, individualized services to help people with disabilities navigate everything from finding a job that is a match to their skills and interests, to writing an application and interviewing, to requesting and negotiating reasonable accommodations. 

Despite this substantial progress, there is still much to be done to ensure that the opportunity to work is a reality for most people with disabilities. Recent laws and policy changes—which are just now starting to be implemented—are beginning to move toward this goal. 

Recent Successes in Increasing Employment of People with Disabilities

Numerous federal laws and policies addressing barriers to employment of people with disabilities were enacted recently, all as a result of collaboration between the president, Congress, disability advocates, and the business community. 

In the early years of ADA enforcement, many courts read narrowly the definition of a “person with a disability” covered by the ADA and dismissed cases on the threshold issue of whether the plaintiff’s disability met the statute’s coverage definition. This hobbled efforts to enforce the statute’s employment nondiscrimination and reasonable accommodation protections. To address this, the disability community worked with businesses and Congress to pass the 2008 ADA Amendments Act (ADAAA), signed by President George W. Bush near the end of his tenure, which reaffirmed Congress’s intent that the ADA broadly protect Americans with disabilities. During the Obama administration, both the Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) issued implementing regulations. See EEOC, “Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended,” 76 Fed. Reg. 68 (Mar. 25, 2011) (amending 29 C.F.R. pt. 1630); see also DOJ, “Regulations to Implement ADA Amendments Act of 2008,” 81 Fed. Reg. 155 (Aug. 11, 2016) (amending 28 C.F.R. pts. 35 and 36). The ADAAA and its regulations mean that courts can focus on whether disability discrimination actually occurred rather than on threshold issues of coverage. 

The ADA’s integration mandate has been critical to addressing the residential segregation of people with disabilities in institutions. But while more people with disabilities now live in the community, many still spend their days isolated in segregated day programs. Such programs include sheltered workshops, in which people with disabilities do menial and repetitive tasks like stuffing envelopes and shredding paper, for subminimum wages (which are currently legal under Section 14(c) of the Fair Labor Standards Act). In recent cases brought by disability advocates and the Obama DOJ, courts have found that the integration mandate applies to all types of segregation, not just residential institutionalization. Settlement agreements in these cases provide models for transforming disability service systems so that they help people with disabilities get competitive integrated employment (also referred to as “CIE,” meaning a job in a mainstream workplace that pays at least the minimum wage), instead of consigning them to segregated programs like sheltered workshops. See Settlement Agreement, Lane v. Brown (formerly Lane v. Kitzhaber), No. 3:12-00138 (D. Or.), available at www.ada.gov/olmstead/documents/lane_sa.pdf; Settlement Agreement, United States v. Rhode Island, No. 1:14-00175 (D. R.I.), available at www.ada.gov/olmstead/documents/ri-olmstead-statewide-agreement.pdf.

Also, the recently passed bipartisan Workforce Innovation and Opportunity Act (WIOA) (www.dol.gov/odep/topics/wioa.htm) of 2014 builds on the ADA’s goal of economic self-sufficiency by establishing employment of people with disabilities as a national priority. WIOA defines “employment” for people with disabilities as CIE that pays at least the minimum wage and the same wage for those with and without disabilities, and provides people with disabilities the same opportunities for career advancement as non-disabled coworkers. The act significantly limits the use of subminimum wage sheltered workshops and focuses on preventing the direct placement of students with disabilities from high school into such programs. WIOA also requires state agencies—including Medicaid, I/DD, vocational rehabilitation, and education systems—to enter into cooperative agreements to prioritize CIE. The Obama Departments of Labor (DOL) and Education (DOE) recently issued regulations implementing WIOA. See, generally, DOL WIOA Rules, 81 Fed. Reg. 161 (Aug. 19, 2016) (revisions to 20 C.F.R. pts. 603, 651–2, 6768), and 81 Fed. Reg. 232 (Dec. 2, 2016) (revisions to 29 C.F.R. pt. 38); see also DOE WIOA Rules, 81 Fed. Reg. 161 (Aug. 19, 2016) (revisions to 34 C.F.R. pts. 361, 363, 367, 369, 370, 397, and 461–3).

WIOA also created an advisory committee composed of a broad range of stakeholders, including people with disabilities, business leaders, supported employment and sheltered workshop providers, representatives of federal agencies, experts on employment of people with disabilities, and disability advocates. In September 2016, the committee issued a report setting forth a blueprint for increasing employment of people with disabilities, including recommendations that the federal government ensure federal funding prioritizes CIE, engage the business community in building CIE capacity, and phase out laws allowing programs to pay people with disabilities less than the minimum wage.

Congress recently took another step toward eliminating barriers to employment of people with disabilities by passing the bipartisan Achieving a Better Life Experience (ABLE) Act (www.ablenrc.org) in December 2014. Medicaid funds a number of services that are essential to many people with disabilities and that are generally not paid for by private (employer-based) health insurance. But Medicaid eligibility rules prohibit participants from accruing more than $2,000 in assets, which discourages people from working and saving. The ABLE Act allows people with disabilities to accrue more than $2,000 and still qualify for Medicaid, as long as they only use their savings to cover expenses not covered by Medicaid, such as education, housing, and transportation. States with Democratic and Republican governors have implemented ABLE, including then-Governor Mike Pence in Indiana in 2016.

In 2014, the Obama Department of Health and Human Services (HHS) issued new rules to ensure that all people receiving HCBS get the full benefits of community living, including opportunities to work. These rules require HCBS programs to offer people with disabilities opportunities to seek CIE and to receive services in a “non-disability specific” setting. See 79 Fed. Reg. 2948 (Jan. 16, 2014). States have until March 2019 to come into full compliance with the rules and have begun expanding employment services, revising service definitions and payment rates to incentivize CIE, and working with sheltered workshop and day program providers to transform their offerings. For example, Tennessee, with leadership from Republican Governor Bill Haslam, has adopted an Employment First policy and is moving its system away from sheltered workshops and day programs. (Note that on March 13, 2017, HHS Secretary Thomas Price and CMS Administrator Seema Verma sent a letter to governors stating that “[i]n recognition of the significance of reform efforts underway, CMS will work toward providing additional time for states to comply” with the HCBS Settings Rule. www.hhs.gov/sites/default/files/sec-price-admin-verma-ltr.pdf.)

The Obama EEOC also recently took action, issuing a regulation implementing Section 501 of the Rehabilitation Act, which requires affirmative action and nondiscrimination in employment by federal agencies. The regulation incorporates policies set forth in President Bill Clinton’s Executive Order 13163, which set a goal that the federal government hire 100,000 people with disabilities over five years, and President Obama’s Executive Order 13548, which recommitted the federal government to becoming a model employer of people with disabilities. The rule requires agencies to improve their recruitment, hiring, and retention efforts and to work toward a 12 percent workforce representation rate for people with disabilities generally and a 2 percent rate for people with significant disabilities. See 82 Fed. Reg. 654 (Jan. 3, 2017).

The Obama DOL also issued a regulation, implementing Section 503 of the Rehabilitation Act, which requires affirmative action and prohibits employment discrimination by federal government contractors and subcontractors. The rule requires contractors to work toward a 7 percent workforce representation rate for people with disabilities and to gather and report data on their efforts. See 78 Fed. Reg. 185 (Sep. 24, 2013). The regulation survived a legal challenge in which the plaintiff, a trade group representing construction contractors, made an argument that exemplifies some of the stereotypes and low expectations that continue to plague people with disabilities: that its members should have been exempt from the regulation’s 7 percent goal because people with disabilities are less able to work in such a “uniquely hazardous and physical” industry. See ABC v. Shiu, No. 14-5076 (D.C. Cir. Dec. 12, 2014).

These federal law and policy changes are starting to have an impact across the country. State and private employers are following the federal government’s lead by retaining and recruiting workers with disabilities. Numerous states have adopted affirmative employment policies similar to those of the Rehabilitation Act, including New York, Oregon, and Delaware. A growing number of private companies, including the pharmacy chain Walgreens and the bank Capital One, have implemented programs to increase their hiring and retention of people with disabilities. And state and business leaders have been speaking out about the economic and human capital advantages of hiring people with disabilities. 

An Uncertain Future 

Promoting the employment of people with disabilities has always been a bipartisan issue, and progress has been made regardless of the party in control of the White House and Congress. But despite identifying job creation as a top priority, the Trump administration’s early positions on health care, the role of regulations, federal hiring, and civil rights enforcement leave uncertain the future of efforts to increase employment of people with disabilities.

Medicaid is a key service for many people with the most significant disabilities. Medicaid not only funds supported employment, but it also covers daily living services that help people accomplish tasks that are essential to finding and keeping a job, like getting out of bed, getting dressed, and using transportation. The Affordable Care Act (ACA) expanded the availability of Medicaid and required that Medicaid programs increase coverage of these important services. But members of Congress, working together with the Trump administration, recently proposed the American Health Care Act (AHCA), which would repeal the ACA and make significant structural changes to Medicaid through block grants and per capita caps. See American Health Care Act of 2017, H.R.1628, 115th Cong. (2017). Repealing the ACA would reduce the number of people with disabilities who have access to Medicaid’s employment and daily living services. And restructuring Medicaid would lead to significant decreases in federal Medicaid funding, which in turn would force states to limit eligibility and cut services. (Note that the Congressional Budget Office estimated that the AHCA would lead to an $880 billion cut in federal funding over the next decade and could lead to significant cuts in, or even complete elimination of, optional services like HCBS. www.cbo.gov/system/files/115th-congress-2017-2018/costestimate/americanhealthcareact.pdf.) Without access to Medicaid and its employment and daily living services, many people with disabilities would be unable to work. While the AHCA was ultimately withdrawn, proposals to restructure Medicaid may well be part of future legislation. And the Trump administration has made clear that it still intends to reform Medicaid through regulatory action. www.cms.gov/CCIIO/Programs-and-Initiatives/State-Innovation-Waivers/Downloads/March-13-2017-letter_508.pdf.

The Trump administration and Congress have also pledged to repeal as many federal agency regulations as possible. The EEOC’s Section 501 regulations and the DOL’s Section 503 regulations in particular are poised to significantly increase federal and government contractor employment opportunities for people with disabilities. But even if these important new rules are not repealed or delayed, President Trump’s freeze on government and contractor hiring could effectively halt their progress. 

Finally, federal enforcement of the ADA has been essential to increasing employment of people with disabilities. Advocacy under the ADA’s integration mandate and the Olmstead decision has pushed disability service systems to prioritize CIE and provide supported employment. And advocacy under the ADA’s nondiscrimination and reasonable accommodation provisions has held employers accountable. Federal agencies—DOJ, EEOC, and DOL, among others—have been vital to investigating complaints and enforcing these requirements. But it remains unclear how or whether these agencies will continue to do this important work under the Trump administration.

Conclusion

We have come a long way from the days when most people with disabilities were segregated from society in institutions based on assumptions that they were incapable of living independently, let alone working. Bipartisan collaboration has been a hallmark of this progress toward inclusion, especially in the workplace. The recently-enacted federal laws and policies we have described created renewed momentum toward achieving one of the goals of the ADA: full economic independence for all people with disabilities. But it remains to be seen whether President Trump’s promise to focus on job creation will reach people with disabilities, or whether his policies on issues like health care and civil rights enforcement will leave them even further behind.

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