Why Don’t You Have People with Disabilities Working for You and Why Can’t You Retain Them?

© Copyright, 2020, William D. Goren,* Esq., J.D., LL.M.

All Rights Reserved

People against the ADA are fond of saying that the ADA has not moved the needle with respect to hiring. Retention of persons with disabilities is not great either. However, the problem isn’t with the ADA. Rather, it is because people don’t understand under what circumstances a person with a disability is willing to self-disclose. They also don’t understand the best practices for recruiting and retaining persons with disabilities. This blog entry discusses all of this. Before moving on, I want to thank Tara Norgard, Esq, Chair of the Diversity and Inclusion Committee of the Federal Bar Association, and Katherine Yanes, Chair of the Federal Bar Association’s Disability and Inclusion Outreach Subcommittee, for their support and encouragement. Also, I want to thank Professor Brittany Stone and Professor Amy Banko of Rutgers University for allowing me to borrow their excellent thoughts on why students with disabilities do not disclose when they are at colleges and universities (they generously agreed to allow me to use their thoughts when I mentioned to them that what they found was highly transferable to the employment context). Also, the best practices come from very detailed set of reports put out by Westat done at the behest of the U.S. Department of Labor’s Chief Evaluation Office, found here. The blog entry is divided into parts and they are: some statistics from ABA survey of LGBTQ or attorneys with disabilities; Westat statistics; why don’t people with disabilities disclose more often; Westat hire or not hire persons with disabilities; Westat recruiting persons with disabilities; Westat retaining persons with disabilities; and my thoughts/takeaways. The reader is free to read any or all of the categories. However, you definitely want to read the thoughts/takeaways section for sure.

I

Some Statistics from an ABA survey of LGBTQ attorneys and attorneys with disabilities

  1. The article discussing the ABA study on attorneys who are LGBTQ or persons with disabilities can be found here.
  2. Nearly 40% of attorneys who identify as having disabilities or as LGBTQ report experiencing discrimination, harassment, and bias in the workplace.
  3. Of those 40% of attorneys, almost 22% say they experience subtle and intentional biases, while nearly 39% say they experience subtle but unintentional biases.
  4. Of those reporting disability and health issues, 54% identify as women, 45% identify as men and 1.4% report other gender identities.

II

Westat Statistics

  1. The Westat report for the Chief Evaluation Office of the Department of Labor can be found here.
  2. 91.6% of companies offer interview locations that are accessible.
  3. 80.5% of companies offer accommodations for interviews.
  4. 74% of companies offer job announcements that display nondiscrimination and equal opportunity policy statements.
  5. 30.4% of companies offer an application process that is accessible to persons with disabilities.
  6. 17.5% of companies actively recruit persons with disabilities.
  7. 10.5% of companies have measurable goals for hiring persons with disabilities.
  8. 4.2% of companies have a dedicated recruiter for recruiting people with disabilities.
  9. 22.6% of companies say they currently employ at least one person with a disability.
  10. 82.9% of companies say they offer voluntary and confidential self-disclosure.
  11. 73.3% of companies offer stay at work and return to work programs.
  12. 69.2% of companies offer workplace flexibility programs.
  13. 64.7% of companies offer task shifting.
  14. 59.6% of companies offer job reassignments.
  15. 51.7% of companies offer disability awareness or sensitivity training.
  16. 28.6% of companies offer measurable goals for retaining and advancing people with disabilities.
  17. 4.7% of companies offer a disability employee resource or an affinity group.

In looking at all the numbers, a number that leaps out is that only 22.6% of companies say they currently employ at least one person with the disability. That number is far too low. The number is simply not possible. So, why does such a low number exist?? The rest of the blog entry will explore this question.

III

Why Don’t People with Disability Disclose More

AHEAD is the Association on Higher Education and Disability. Think of that group as people in disability services at places of higher education. It is a great group. This year the national convention is entirely online. At this conference, Professor Stone and Professor Banko of Rutgers University presented a webinar session entitled, “Decisions, Decisions: Helping Students with Psychiatric Condition Navigate Disclosure in the Academic Environment.” They had lots of good thoughts on why students with disabilities decide to disclose or not. As a person with a disability myself (a bilateral sensorineural congenital hearing loss of 65-120 dB who functions entirely in the hearing world with lip reading and hearing aids. I also use voice dictation technology to access my computer for reasons unrelated to my deafness), I have been faced with the choice of disclosure myself over the years. However, until this presentation I had never seen the particular things, which I just internalized over the years, a person with a disability struggles with in deciding to disclose talked about before explicitly. Here is some of what the professors said in their presentation as extrapolated by me to apply to the employment context.

  1. A person thinking of disclosing a disability is going to be thinking of: 1) need; 2) what kind of accommodations might be offered; 3) what kind of documentation they will have to provide; 4) self efficacy and identity; 5) stigma associated with disclosure; and 6) likelihood that disclosure will lead to discrimination.
  2. A person of thinking of starting the reasonable accommodation process will also be thinking of: 1) fear of disclosure; 2) knowledge base of the company and the persons to whom the disclosures are being made; 3) stigma when viewed by supervisors and peers and other staff.
  3. With respect to disclosure, how successful that disclosure will be will depend upon: 1) the perception of the person with a disability’s experience of going through the disclosure process; and 2) the reported response of people the individual with a disability works with and interacts with.
  4. Questions a person with a disability considers when trying to figure out who they are going to tell about their disability include: 1) whether the person they are disclosing their disability to will support them in some way; 2) whether there are drawbacks to the disclosure; 3) whether they are prepared for their reaction to their disclosure; 4) whether the person to whom the disability is being disclosed will be able to provide them with accommodations; and 5) what is the culture of the environment.
  5. In deciding whether to disclose, a person with a disability may be thinking of things in terms of a rubric. For example, benefits of not disclosing would include: 1) maintaining the existing relationship as it is; 2) Not having to have awkward conversations; and 3) not having to worry that the person to whom the disability is disclosed will tell everybody else. On the other hand, not disclosing the disability may lead to the employer treating the person with the disability as if they didn’t have a disability, which only causes problems later. It also creates the wrong impression as to why certain things are happening the way they are.
  6. Benefits of disclosing would include: 1) more understanding and better communication; 2) no longer has to feel like he or she is hiding something; and 3) the person realizing that having a disability is not a barrier to successful performance. On the other hand, a drawback of disclosing is possibly creating stereotypical assumptions of what the person with a disability is capable of and really getting hurt if what happens after disclosure doesn’t go well.

IV

Westat Hire or Not Hire Person with Disabilities

  1. The benefits most frequently cited by companies for hiring persons with disabilities were: 1) projecting a positive image of the company with prospective customers (72.5%); 2) projecting a positive image of the company with prospective employees (72%); and 3) increasing the pool of qualified candidates (60.8%). Less cited as benefits included: 1) increasing morale (41.3%); 2) reducing legal liability for lack of diversity (32.8%); 3) tax incentives (30.4%); and 4) increasing productivity (18.5%).
  2. 87% of companies surveyed expressed at least one concern about hiring people with disabilities, including more than half saying their concerns included: 1) safety on the job for the person with a disability in their coworkers (59.4%); 2) the ability of workers with disability to perform job duties (55.5%); and absenteeism (51.7%). Other concerns included costs and attitudes of customers (28%), coworkers (23.8%), supervisors (17%), and top level management (14%). Not surprisingly, employers expressing concerns about person with disabilities were less likely to recruit them. Companies expressing concern about the abilities of workers with disabilities to perform the job were 17 percentage points less likely to hire people with disability than companies that were not concerned.

V

Westat Recruiting Persons with Disabilities.

  1. If a company utilizes at least five of eight recruitment and hiring practices, they significantly increase the likelihood that they hired persons with disabilities in the past year. Those practices including: 1) having measurable goals for hiring people with disabilities; 2) partnership with organizations; 3) accessible interview location; 4) active recruitment of people with disabilities; and 5) and accessible online applications.
  2. Public entities are more likely to actively recruit persons with disabilities than their private sector counterparts (this has been my own personal experience as well).
  3. On page 3-27 of the full report, Westat refers back to an academic study that found employing the following practices increased the likelihood of hiring people with disabilities: 1) actively recruiting people with disabilities; 2) partnership with community organizations; 3) diversity plan; 4) explicit goals for hiring people with disabilities, including goals for hiring people with disabilities in management performance; 5) internship for people with disabilities; 6) senior management commitment; 7) review of online job application accessibility; and 8) advance notice about accommodations in the job application process.

VI

Westat Retention of Persons with Disabilities.

  1. On page 3-27 of the full report, Westat refers back to a different academic study that found that several retention practices were associated with retention effectiveness, including: 1) the provision of development opportunities to employees at every level; 2) seeking the ideas and involvement of employees; and 3) assuring employees know how their work and performance support the mission of the organization.
  2. Three retention and advancement practices were significantly related to an increased likelihood of retention success with recent hires a person with disabilities including: 1) having a disability employee resource group; 2) workplace flexibility program; and 3) voluntary and confidential self-disclosure.

VII

Thoughts/Takeaways:

  1. When the ADA was passed the LGBTQ community specifically did not want to be lumped in with persons with disabilities. Over time, the transgender community for a variety of reasons began to seek the protections of the ADA. Whether that will continue in light of Bostock v. Clayton County recently decided by the United States Supreme Court remains to be seen.
  2. Recently, the American Bar Association passed an ethical rule prohibiting discriminating and harassing people in protected classes. It will be interesting to see if that rule has any effect.
  3. Plenty of discrimination going on in the practice of law with respect to the LGBTQ and persons with disabilities communities
  4. Businesses need lots of educating on what persons with disabilities can do as the concern noted in the Westat report about hiring people with disabilities simply don’t add up in light of the evidence.
  5. Understanding why an individual with a disability might not disclose may help the employer craft a process that encourages such disclosure. One thing an employer could do well to keep in mind is the do’s and don’ts of the interactive process, which I discussed here.
  6. The reasons why a student in higher education does not disclose a disability are easily transferable over to the employment context.
  7. Practices that work for recruiting and hiring people with disabilities include: 1) having measurable goals for hiring people with disabilities; 2) partnership with other organizations; 3) accessible interview location; 4) active recruitment of people with disabilities; and 5) and accessible online applications.
  8. Practices that work for retention effectiveness of persons with disabilities include: 1) the provision of development opportunities to employees at every level; 2) seeking the ideas and involvement of employees; and 3) assuring employees know how their work and performance supports the mission of the organization.
  9. Retention success practices that work include: 1) having a disability employee resource group; 2) workplace flexibility program; and 3) voluntary and confidential self-disclosure.
  10. Affinity groups are a godsend. I myself am involved with the Deaf and Hard of Hearing Bar Association. It makes all the difference in the world to be able to hang out, network, and share thoughts with people who get what you are going through. People with disabilities regardless of educational level silo terribly. So, having a group of all disabilities can be very difficult to create and maintain. That said, I do know of a couple of large law firms (Reed, Smith and Sidley Austin), that have set up disability affinity groups. Having these kinds of groups should not be underestimated.
  11. People with disabilities can have very unique perspectives. For example, the ADA prohibits preemployment disability related inquiries and medical exams. After a conditional job offer, it can still get complicated. Figuring out what is a disability related inquiry is not always easy. A person with a disability would have a heightened antenna for that kind of issue. Preventive law demands that should a person with a disability be interested in the disability rights arena, an employer would do well to get persons with disabilities involved in such matters.
  12. There is a tremendous amount of lack of knowledge of just what is the cost of an accommodation. Most accommodations don’t cost much of anything. The most expensive accommodations may run $1400 or so. Three things that can help employers manage this are: 1) always checking with the person with an employee first rather than going off on your own adventure to figure out how to solve the problem; 2) contacting the Job Accommodation Network whenever you get stuck as you explore the interactive process; 3) knowing the do’s and don’ts of the interactive process, here.
  13. Disclosing a disability is a very intense and personal call. I have been there myself. If the disclosure can wait, many will wait to disclose until after the job has been offered. Others have no choice but to disclose right away. Some as a matter of identity might disclose right away. On the legal side, early disclosure is always better so as to prevent problems later. It may also depend upon the disability. It is entirely possible if an individual has more than one disability they might disclose one early and one sometime later after the offer or even after being on the job for a while.
  14. Safety on the job as a common concern can be dealt with through assessing whether the employee is a direct threat, such as discussed
  15. Whether a person can perform the job duties isn’t the issue for employers of 15 or more employees. The issue under the ADA is whether the essential functions of the job can be performed with or without reasonable accommodations and without constituting a direct threat.
  16. Direct threat is a high bar to meet. The standard comes from two different United States Supreme Court cases: School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987); and Chevron, U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).
  17. Keep in mind, the ADA applies in the employment context to employers of 15 or more. It is entirely possible that your state may have a disability discrimination law with a lower threshold. So, those laws need to be kept in mind as well.
  18. Senior management commitment is so important.

I hope by this blog entry I have given you a roadmap for going beyond stereotypes of persons with disabilities so that you can comfortably go ahead and start recruiting and retaining persons with disabilities. That only 22.6% of companies surveyed by Westat (over 2500 companies were surveyed), even know that they have an employee with a disability is absolutely mind-boggling and should not be accepted by anyone as being sufficient.

About the Author

*William D. Goren, Esq., of William D. Goren, J.D., LL.M. LLC in Decatur, GA, has 30 years of experience dealing with the ADA as an Attorney. His law and consulting practice as well as his blog, Understanding the ADA, http://www.williamgoren.com/blog/  (a member of the ABA Top 100 for five consecutive years, 2014-2018), all focus on understanding the ADA so that the client understands what it means to comply with that law. In particular, he provides consulting, counseling, representation, and training services involving compliance with the Americans with Disabilities Act, Rehabilitation Act of 1973, and related laws. He is also a frequent presenter, a trained mediator,  a FINRA arbitrator, and an arbitrator on the CPR employment panel. Finally, he is the author of Understanding the ADA, now in its 4th edition (ABA 2013), and numerous other articles on the rights of persons with disabilities.  Interesting fact: He trained his miniature poodle to be a hearing dog while he practices virtually.

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