Proposed New Rules for Federal Contractors

The Obama Administration has proposed new guidelines for hiring workers with disabilities that would require all federal contractors to set goals of having 7% of their workforce composed of persons with disabilities.

Certainly, this will add some muscle to the Americans with Disabilities Act, since it requires action which is stronger than the passive of not discriminating.  Of course, there will be the ever-present paperwork needed to document this effort and businesses will object to that, as they have objected to paperwork requirements of Affirmative Action and the ADA. 

Some other concerns include how to document this 7% since the ADA does not allow you to ask about disability.  That’s not quite true, though, is it?  AFTER a person is hired, it is allowed to ask disability related questions and, if the response is voluntary, this documentation can be accomplished. 

What I find exciting about these new guidelines is that federal contractors will have to document their efforts to recruit individuals with disabilities.  This outreach is crucial to all successful employment programs and needing to document it will ultimately lead to workforces that are more inclusive of persons with disabilities.

This will not resolve all the employment issues of persons with disabilities, but it is a giant step in the right direction.

You can read the notice of proposed rule-making or submit a comment at http://www.regulations.gov.  Comments will be accepted until February 7, 2012.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

The problems with disability policy based on medical model

When disability policy was developed, disability was viewed in the medical model.  The understanding was that the person had a medical problem that was in need of fixing and that, until that medical problem could be fixed, that person was unable to work.  If the medical problem could not be fixed, the person would be considered totally and permanently disabled. 

We put physicians and other medical providers in charge of whether or not a person could work, whether or not a person receives various disability benefits and what services and accommodations a person with a disability needs. 

While we are inundating medical providers with paperwork to attest to these things, no one seems to take into consideration that they are not the ones with all the answers. 

While most disabilities have a physiological beginning, that doesn’t necessarily mean they need or will respond to medical interventions.  For example, if a person is in an accident and incurs a brain injury, the disability can be permanent.  However, the time for effective medical therapy is only for a short period after the injury.  If the person still has the disability after 20 years, what do we expect a physician to do? 

Some disabilities are the result of medical conditions that need ongoing treatment, but many do not need medical intervention.  Yet, we put them all in the same category and require that there be medical documentation of all kinds of things related to disability. 

In the meantime, since most medical providers have the same view of disability as the average population, they are responding with the viewpoint that they are supposed to be able to decide major life issues for these people.  Should the person work?  What are the person’s transportation needs?  Does a person need a roll-in shower?  What about a parking pass?  Should the person be in a nursing home?  If so, can we keep the person out with appropriate services?  What services?  (Read the last three again to note the irony.)

Removing disability issues from the medical establishment could benefit persons with disabilities, ease the burden on medical providers and reduce costs for society.  Since the medical model is now recognized as not appropriate for determining disability, let’s next consider what the basis for disability needs to be.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Determined Tennis Player

When I first heard there was a story about a one-armed high school tennis player who made it to the Kentucky State High School Tournament, my thought was that was nice.  But, I didn’t think it was a whole lot more than that.  I was mistaken.

Jacob Raleigh had played in the tournament two years before, when he had two arms.  Now he was back playing again with only one arm.  Okay.  This gets a little more interesting.  But there is more. 

Raleigh’s dominant hand was his left hand.  However, the young man developed a rare soft-tissue cancer in his left wrist which eventually led to the amputation of his left arm.  Now, this is a big deal. 

This young man, in the short two years between playing in the state tournament, had cancer, lost his dominant arm, learned to play tennis again with his right arm and still made it to the state tournament.  Oh, and people who lose an arm, no matter the reason, have to learn to balance themselves all over again.  This is huge!

This young man is obviously going to succeed in whatever he chooses to do in life, since he is so determined.  It also goes to show that having a disability does not change the character of the person.  It only changes one characteristic. 

If you are an employer and an applicant with a disability looks to be employed in your business, think of Jacob Raleigh.  I don’t guarantee that your applicant will be that determined, but you need to at least consider that the person in front of you is the same person, with the same education and experience, he or she was before disability and that it is likely that you can accommodate the disability with a simple accommodation. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Murray Mann addresses The State of Disability in the Workplace

The Spring 2011 issue of Diversity MBA Magazine has an article by Murray Mann, a principal of Global Diversity Solutions Group LLC, a Chicago based consulting firm titled The State of Disability in the Workplace.

Even though the ADA has been in effect for 20 years and research shows that businesses that hire persons with disabilities and even use persons with disabilities in their advertising benefit greatly, the unemployment rate for persons with disabilities is still extraordinarily high. 

I encourage you to read the entire article, but I will quote some of the statistics cited in this article:

·         More than 54 million persons with disabilities comprise the third largest market segment in the US.

·         In February 2011, one in five (20.6%) persons with disabilities were employed, compared to over two-thirds (69.5%) of persons without disabilities.

·         For every dollar spent on an accommodation, participating companies realized more than $10 in benefits.

·         2% of HR professionals replying to a survey used resources available to find qualified job applicants who are veterans with disabilities.

The sources for his statistics included the Department of Labor’s Bureau of Labor Statistics, the Job Accommodation Network and the Society of Human Resource Management.

Mr. Mann has done a thorough job of defining the problem.  We need to look at the reasons this is happening and see what can be done about it.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

EEOC Third Rule of Construction

The third rule of construction in the EEOC regulations to determine whether an impairment substantially limits a major life activity is the big one that the first two were building up to:

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘‘substantially limits’’ a major life activity should not

demand extensive analysis.

Virtually all the cases brought to the Supreme Court in the past 20 years dealt almost exclusively on whether or not the person with the disability “qualified” for protection under the Act.  This rule is meant to stop that.  It clearly states that the issue should be decided on whether discrimination has occurred.  If there were no other changes in these amendments, they would have accomplished much.

The most important thing to remember about the Americans with Disabilities Act is that it is civil rights legislation.  As in all other civil rights legislation, the coverage is intended to be broad.  No other minority needs to qualify to be covered under civil rights legislation.  Neither should persons with disabilities.  Focusing on whether an impairment is sufficiently disabling seriously diminishes the intended protections.

I will grant that there are individuals who do not have a disability who will seek protection under the ADA because they have no other protection.  However, that should not limit the rights of those who should be covered.  Nor should it be the standard by which others are judged.  Fraud needs to be dealt with separately.

In order for this Act to provide protection, the acts of discrimination should be the focus for all decisions.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

EEOC publishes regulations

The Equal Employment Opportunity Commission (EEOC) has published final regulations implementing the ADA Amendments of 2008.  http://www.gpo.gov/fdsys/pkg/FR-2011-03-25/pdf/2011-6056.pdf

These amendments clarify the definition of disability in order to broaden those covered, consistent with other civil rights legislation.  They also are intended to change the focus from who is covered to the act of discrimination itself – refusal to hire, accommodate, promote, etc.  Almost all the major court decisions have focused on whether or not someone qualifies rather than on whether or not the act of discrimination occurred.  The amendments should change that.

A major section of the recently published regulations is the nine rules of construction determining what “substantially limits” a major life activity means in the definition of disability.  Every one of these rules makes it clear that they are intended to be interpreted broadly to cover more people than in the original act.

If these amendments decrease the incidences of discrimination and reduce the unemployment rate of persons with disabilities, they will have done their job.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Profit by Investing in Workers with Disabilities

“Profit by investing in workers with disabilities” is the theme for this year’s Disability Employment Awareness month, observed in October.  This was announced by the US Department of Labor’s Office of Disability Employment Policy.  http://www.dol.gov/opa/media/press/odep/ODEP20110609.htm.

Organizations planning activities for October will be focusing on this theme this year, that employing workers with disabilities is good business. 

First, by being willing to include workers with disabilities in your employment plan, you have access to a deeper pool of talent.  Persons with disabilities are better educated and have more skills than ever before.  This includes returning veterans, persons with physical disabilities and people with intellectual disabilities, as well as people with any other disabilities.  When you are hiring, you are hiring the ability.  It then becomes a matter of simply accommodating the disability.  If you have hired the right talent, accommodating the disability is no more than adding the appropriate tools for the job.

Second, hiring, accommodating, retaining and promoting persons with disabilities are viewed by the public – and that include customers – as a sign that a business is welcoming to all.  People want to do business with a company that is welcoming.  It makes them all feel that they are important as customers.

So, since employing persons with disabilities is good for your bottom line, profit by doing just that.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Diversity Inc. Top 10 Companies for Persons with Disabilities

Diversity, Inc. publishes its list of the top 10 companies for persons with disabilities.  http://www.diversityinc.com/article/8389/The-DiversityInc-Top-10-Companies-for-People-with-Disabilities.

These companies stand out for a number of reasons:

·         They all have employee resource groups (ERG’s) for employees with disabilities, averaging 7.1 percent of all their employees.

·         They all have formal recruitment programs for persons with disabilities. 

·         62% of them do business with certified suppliers owned by persons with disabilities.

In reading the profiles, you can see that these companies go further in their efforts to be inclusive.  The CEO of one of the companies is a person with a disability.  Another company specifically advertises that it is a disability-friendly company. 

They all do much more than provide low-paying jobs.  They recruit, retain and promote persons with disabilities as part of their routine talent development.  They provide benefits that are disability friendly and offer training programs for all employees on disability awareness.

When diversity professionals choke on how to deal with employment of persons with disabilities, promoting call centers and work-at-home programs as the only answers, they should look to these companies as models.  The skills and talents of persons with disabilities run the same range as the skills and talents of all other people.  When that is understood, the gap in employment between persons with disabilities and those without, as well as the gap in salaries, will begin to close.

Kudos to these companies!

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Senator Harkin's Address to U.S. Chamber of Commerce

Last week, Senator Tom Harkin (D-IA) addressed the U.S. Chamber of Commerce to talk about why Americans with disabilities are leaving the workforce in such high numbers.   The full text of his address is found at http://harkin.senate.gov/press/release.cfm?i=332449. 

The high rate of unemployment of persons with disabilities is a very complicated and complex issue.  There is still a great deal of discrimination toward persons with disabilities in the workplace, due in part to the low expectations of persons with disabilities that employers who have no experience with employees with disabilities have. 

Even diversity specialists have difficulty trying to find where to fit persons with disabilities.  Some think they need to establish call centers.  Others think that telecommuting is the answer.  I have even heard them label persons with disabilities as “differently abled” because they are afraid to note that they have disabilities.  Clearly there is a huge need for education and enlightenment.

All is not lost, though, when you realize that a company such as Walgreens actually sets internal goals of the percentage of employees with disabilities they will hire.  While these goals currently apply only to their distribution centers, I would hope that they will expand them to their overall employment plan.

Other factors affecting the employment of persons with disabilities include the perverse disability policies on both the state and national levels where even so-called work incentives build in serious limitations on how far a person with a disability can go before being at risk of losing the very services that allow them to work.  At the same time, we have lawyers selling disability as a desirable way of life.

We do need to approach this from all angles and Senator Harkin is certainly to be applauded for his efforts in this regard.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Why Don't Businesses Hire Persons with Disabilities?

Many companies think they understand what to do about hiring persons with disabilities. 

Some companies have programs for employees who are “differently abled”.  (As soon as someone uses a term like that, we know they’ve missed the boat.)  These organizations will create call centers or group together other very low end jobs that they believe persons with disabilities can fill. 

What is their problem?  Very low expectations. 

As an employer, a company should be looking to hire the right person for the job.  Businesses are in business to make money.  In every other search for the right employee, they look at education, experience, skills that can do the job that will make money for them.  That is how it has always worked.  Even since the federal Americans with Disabilities Act was passed, there has been a blindness toward what people with disabilities can do.  So, in order to be in what some employers think is compliance, they create these jobs in an effort to attract employees who have disabilities.

What really needs to happen is for employers to understand that they need to look for the right talent for all jobs.  Then look at a person’s education, skills and experience without regard to disability.  Most disabilities can be accommodated once the skills are lined up.  No special programs needed.

Unfortunately, many employers get stuck as soon they perceive any level of disability.  The low expectations kick in faster than you can blink.  Fear of lawsuits.  Fear of low productivity.  Fear of the inability to address low productivity.  Fear of… 

Low expectations lead to fear which leads to discrimination.  Result?  Very low employment rates for persons with disabilities. 

So, while we need to change disability policy so that it’s possible for persons with disabilities to work without penalty, we also need to educate employers on the advantages of including persons with disabilities in their ordinary employment plan. 

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude

Hiring Persons with Disabilities in Healthcare

How can we eliminate the medical model definition of disability? 

Disability itself is not a medical problem.  Its cause may be and some complications are medical issues, but the disability itself is not.  It just is.  Yet, with this model of disability, the person with a disability is viewed as broken and in need of repair.  That results in a low expectation of what the person with a disability can do. How does that expectation affect the person trying to apply for a job, especially in the healthcare system?

Every time I speak with hospitals about hiring persons with disabilities, someone asks the question, “This is a hospital.  What can we hire persons with disabilities to do here?” 

Since I know physicians, lawyers, professors, chemists, writers, database administrators, and people in all sorts of professions who have disabilities, this question makes me shake my head.  The reality is that this is the wrong question for a hospital or any other employer to ask.  After all, when you focus on the disability, you are less inclined to hire someone. 

Disability is a social construct.  The medical definition just doesn’t fit when talking about employment.  Look at the job skills that you need to hire and then hire a person who has these skills. 

Focusing on what the abilities are will help you raise your expectations.  Accommodating the disability then becomes a simple matter of providing the employee with the necessary tools to do his or her job.

So, raise your expectations, hire the ability and accommodate the disability.

Annette Bourbonniere

www.accessing-ability.com

401-846-1960

Fax:  401-846-1944

Twitter:  @AccessInclude