Hiring discrimination against people with disabilities under the ADA: characteristics of charging parties.

Abstract

This article describes findings from a causal comparative study of the characteristics of Charging Parties who filed allegations of Hiring discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) under Title I of the Americans with Disabilities Act (ADA) between 1992 and 2005.
Charging Party Characteristics derived from 19,527 closed Hiring allegations are compared and contrasted to 259,680 closed allegations aggregated from six other prevalent forms of discrimination including Discharge and Constructive Discharge, Reasonable Accommodation, Disability Harassment and Intimidation, and Terms and Conditions of Employment. Tests of Proportion distributed as chi-square are used to form comparisons along a variety of factors including age, gender, impairment, and ethnicity.
Most allegations of ADA job discrimination fall into the realm of job retention and career advancement as opposed to job acquisition. Hiring allegations, however, tend to be filed by Charging Parties who are disproportionately male, younger or older applicants, white, and coping with physical or sensory disabilities.
Prevailing theories about stigma suggest that negative attitudes are more prevalent toward persons with behavioral disabilities. However, this study provides clear evidence that one behavioral manifestation of negative attitudes, Hiring discrimination, is more often directed at persons with physical or sensory impairments. More outreach regarding ADA rights appears indicated for individuals who share the aforementioned characteristics.

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Hiring Discrimination Against People with Disabilities Under
the ADA: Characteristics of Charging Parties
Brian T. McMahon Æ Æ Richard Roessler Æ Æ Philip D. Rumrill Jr. Æ Æ
Jessica E. Hurley Æ Æ Steven L. West Æ Æ Fong Chan Æ Æ Linnea Carlson
? Springer Science+Business Media, LLC 2008
Abstract
from a causal comparative study of the characteristics of
Charging Parties who filed allegations of Hiring discrimi-
nation with the U.S. Equal Employment Opportunity
Commission (EEOC) under Title I of the Americans with
Disabilities Act (ADA) between 1992 and 2005. Methods
Charging Party Characteristics derived from 19,527 closed
Hiring allegations are compared and contrasted to 259,680
Introduction This article describes findings
closed allegations aggregated from six other prevalent
forms ofdiscrimination
ConstructiveDischarge, Reasonable
Disability Harassment and Intimidation, and Terms and
Conditions of Employment. Tests of Proportion distributed
as chi-square are used to form comparisons along a variety
of factors including age, gender, impairment, and ethnicity.
Results Most allegations of ADA job discrimination fall
into the realm of job retention and career advancement as
opposed to job acquisition. Hiring allegations, however,
tend to be filed by Charging Parties who are dispropor-
tionately male, younger or older applicants, white, and
coping with physical or sensory disabilities. Conclusion
Prevailing theories about stigma suggest that negative
attitudes are more prevalent toward persons with behav-
ioral disabilities. However, this study provides clear
evidence that one behavioral manifestation of negative
attitudes, Hiring discrimination, is more often directed
at persons with physical or sensory impairments. More
outreach regarding ADA rights appears indicated for
individuals who share the aforementioned characteristics.
includingDischarge
Accommodation,
and
Keywords
Workplace discrimination ? Employment ? Disabilities ?
Americans with Disabilities Act ? Discrimination
Hiring discrimination ?
Introduction
Discrimination in hiring has long been a prominent issue
facing members of protected classes in our society. Polit-
ical efforts initially produced proscriptions against such
discrimination based on racial/ethnic background, gender,
religion, and age as evidenced by legislation at the national
level. Specifically, the Civil Rights Act of 1964 prohibited
B. T. McMahon (&)
Department of Rehabilitation Counseling, Virginia
Commonwealth University, PO Box 980330, Richmond,
VA 23298-0330, USA
e-mail: BMcBull@vcu.edu
B. T. McMahon
Department of Physical Medicine and Rehabilitation, Virginia
Commonwealth University, PO Box 980330, Richmond,
VA 23298-0330, USA
R. Roessler
Department of Rehabilitation, Human Resources, and
Communication Disorders, University of Arkansas at
Fayetteville, Fayetteville, AR, USA
P. D. Rumrill Jr.
Disability Institute, Kent State University, Kent, OH, USA
J. E. Hurley ? S. L. West
Department of Rehabilitation Counseling, Virginia
Commonwealth University, Richmond, VA, USA
F. Chan
Department of Rehabilitation Psychology and Special Education,
University of Wisconsin at Madison, Madison, WI, USA
L. Carlson
Department of Educational Foundations and Special Services,
Kent State University, Kent, OH, USA
123
J Occup Rehabil
DOI 10.1007/s10926-008-9133-4

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bias in hiring based on ‘‘race, color, religion, sex, or
national origin’’ [1, p. 4]. Three years later, the Age Dis-
crimination in Employment Act of 1967 invoked similar
protections on behalf of individuals 40 years of age and
older [1]. However, concern about discrimination in
employment affecting another minority group, namely
people with disabilities, existed as well [2]. The manifes-
tation of this awareness occurred in federal legislation in
1990 with the passage of the Americans with Disabilities
Act (ADA) [3].
Protections for people with disabilities under Title I of
the ADA cover both the hiring and retention phases of
employment. Employers can neither refuse to hire appli-
cants nor to accommodate employees based solely on the
presence of a disability [4]. This article focuses on the first
of these two protections; that is, the nature of hiring dis-
crimination as reflected in allegations filed with the U.S.
Equal Employment Opportunity Commission (EEOC)
between the years of 1992 and 2005 by adults with dis-
abilities. The research questions that guided the present
study included:
•
What is the prevalence of hiring discrimination allega-
tions in the EEOC’s Integrated Mission Systems (IMS)
database?
Does the prevalence of allegations of hiring discrim-
ination vary according to the type of disability
identified by Charging Parties?
To what extent do other personal characteristics known
to produce hiring bias affect the perceptions of
discrimination in hiring held by people with disabili-
ties? Specifically, to what extent are age, gender, and
racial/ethnic status related to the prevalence and pattern
of hiring discrimination allegations filed by people with
disabilities with the EEOC?
•
•
A Rationale for Studying Disability and Hiring
Discrimination
One can easily make a case for the need to examine the
problem of hiring discrimination for people with disabili-
ties. First of all, many Americans are potentially negatively
affected by employer prejudice against people with dis-
abilities who are seeking employment. Endicott [5]
estimated that roughly 12% of the workforce, or 21.3
million people, have disabilities that have an impact on
their ability to work. Head and Baker [6] stated that as
many as 50 million Americans have disabilities that affect
their abilities to seek and secure employment, population
estimates consistent with figures cited in the preamble of
the ADA [3]. Consequently, 20–50 million Americans may
experience barriers to equal employment opportunities due
to disability. The United States can ill afford the loss of any
of these potential members of the workforce given the
labor shortage projected to result from the impending
retirement of the ‘‘baby boomers’’ [7]. Secondly, employ-
ment is the gateway to both psychological and monetary
benefits in our society. In fact, Schur, Kruse, and Blanck
[8] stressed that remunerative employment is one of the
primary contributors to the overall quality of life of people
with disabilities as reflected in both their financial and
social status. Finally, employment discrimination and the
resulting denial of opportunity is a real factor for people
with disabilities. One out of every five employers [8] and
one out of every five employed people with disabilities [9]
reported that discrimination in the workplace due solely to
the presence of disability is a reality.
Hiring Discrimination and Disability: A Brief
Background
The high jobless rates of people with disabilities constitute
the most compelling evidence of the existence and persis-
tence of hiring discrimination. Since 1986, the jobless rates
of people with disabilities have approximated 66%. Based
on random samples of 1000 adults with disabilities from
the National Organization on Disability (NOD) Harris
Survey, the jobless rates for adults with disabilities have
been as follows: 1986–66%, 1994–69%, 1998–71%, 2000–
68%, and 2004–65% [9–11]. These continuing high jobless
rates provide further documentation of the position that
Hernandez, Keys, and Balcazar [12] took regarding the
‘‘veneer’’ of employer receptivity toward people with dis-
abilities. In their review of the literature, they noted that
employers generally report positive attitudes toward people
with disabilities; however, actual hiring rates, as evidenced
by the NOD statistics, reveal just the opposite trend.
Researchers [13, 14] have attributed the persistence of
stigma regarding disability and its negative impact on hiring
to a variety of factors. For many people, disability is asso-
ciated with low or no ability, an attribution that translates in
employers’ minds to outcomes such as poor performance,
sporadic attendance, and unsafe work behavior [3].
Employers and supervisors are also concerned about the
perceived high costs of accommodations and the possibility
of other workers demanding special consideration, resulting
in loss of control by front-line supervisors [8].
The negative impact of the stigma that society attaches
to disability is accentuated by the presence of other per-
sonal characteristics found to result in discrimination in
hiring, e.g., age, racial/ethnic status, and gender. For
example, O’Hara [15] used the term ‘‘twice disadvan-
taged’’ when speaking of the treatment in society that
women with disabilities experience. Alston and Bell [16]
made similar references to double jeopardy when discuss-
ing the combination of minority racial/ethnic and disability
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statuses. Hays [17] extended this logic by pointing out the
cumulative negative effect of all ‘‘isms’’ on access to equal
opportunity in society whether these ‘‘isms’’ result from
age, gender, racial/ethnic status, or disability.
Up to this point, disability has been discussed as a
generic concept related to discrimination in hiring rather
than in terms of types of disabilities and differential
treatment in the hiring process. However, evidence indi-
cates that not all disabilities are the same when it comes to
hiring discrimination. Past research on hiring has indicated
that people with disabilities such as mental illness, mental
retardation, and blindness tend to encounter more dis-
crimination in job seeking [3, 13, 18]. Unger, Campbell,
and McMahon [19] found that people with mental retar-
dation filed more allegations of hiring discrimination than
did a general disability group. They speculated that
employers believed that accommodations would be more
costly for adults with mental retardation and that individ-
uals with mental retardation would require lengthy time in
training and intensive on-the-job support. McMahon,
Shaw, West, and Waid-Ebbs [20] found that adults with
spinal cord injury reported higher levels of perceived hiring
discrimination as measured by EEOC allegations than did a
general disability comparison group. They attributed the
perceptions of widespread hiring discrimination on the part
of adults with spinal cord injury to the ‘‘spread of effect’’
phenomenon causing employers to view them as ‘‘less
able’’ across the board (p. 160). Similar experiences
regarding a higher incidence of hiring discrimination
occurred in comparisons of EEOC allegation patterns of
people with cerebral palsy and a general disability group.
Lowman, West, and McMahon [21] suggested that adults
with cerebral palsy experienced greater negative employer
biases in hiring due to factors such as difficulties in com-
munication,aestheticconsiderations,
presumption of incapacity. These findings tend to support
O’Hara’s [15] conclusion that the extent of discrimination
in employment encountered by a person is in direct pro-
portion to the level of prejudice maintained in the public
mind toward the person’s disability.
If millions of Americans with disabilities have limited
employmentopportunities
becomes extremely important to understand the dynamics
of such barriers in more detail. For this reason, this
investigation addressed both the prevalence of hiring dis-
crimination alleged by people with disabilities and the
factors that have the potential to influence the extent of
such discrimination. With greater knowledge about the
nature of hiring discrimination encountered by people with
disabilities, rehabilitation professionals can: (a) better ori-
ent people with disabilities as to how to counter prejudice
in the interview process, (b) improve education efforts
designed to reduce stereotypes in employers’ minds, and
andageneral
due to discrimination,it
(c) extend and enhance employment protections in legis-
lation such as Title I of the ADA.
Method
All allegations examined in this study apply only to Title I
(Employment provisions) of the ADA. Allegations of dis-
crimination occur in situations in which individuals
perceive that employment-related actions and/or decisions
are based entirely on the presence of the person’s disabil-
ity. The intent of this article is to determine how ADA Title
I allegations of discrimination in hiring (n = 19,527) are
different than allegations of other commonplace discrimi-
natory issues with respect to characteristics of Charging
Parties. The allegations comprising the comparison group
include five primary or most frequently occurring issues
representing 74% of all allegations in the EEOC’s IMS
database, specifically discharge and constructive discharge;
failure to accommodate; disability harassment and intimi-
dation; and terms and conditions of employment. Although
not among the most prevalent issues, intimidation is
included because its definition is similar to that of harass-
ment, and constructive discharge is included because of its
close connection to discharge. The EEOC’s definitions of
these issues and the frequency of allegations for each are
presented in Table 1.
Data Collection: The EEOC Investigation Process
Data for this study were collected by EEOC investigators
in every U.S. state and territory. The EEOC issued regu-
lations to enforce the employment provisions of ADA on
July 26, 1991. The majority of cases will involve
employers in the private sector with a workforce greater
than or equal to 15 employees. Filing a charge of
employment discrimination under ADA entails following
the procedures outlined by the EEOC [22]. Enforcement of
Title I by the EEOC is strictly a complaint-driven process.
The EEOC cannot audit or otherwise seek out or pursue
discriminatory activity in the absence of a complaint. All
allegations, their investigatory progress, and their resolu-
tions are maintained by the EEOC in a master database
known as the Integrated Mission System, or IMS.
Project Design and Procedures
The EEOC charge data were transferred to authors from the
EEOC via zip disk. Data needed to answer the research
questions were extracted, coded, refined, and formatted in
Microsoft Access using standard extraction criteria [23].
The result was a study-specific dataset in which the
underlying unit of measure is the frequency of allegations,
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a ratio level of measurement. The design includes a number
of variables:
•
Basis of the allegation, which is the impairment type
that the Charging Party identifies to qualify him/her for
ADA protections. The 39 impairment categories and
their frequencies and percentages are given in Table 2
in the Results section.
Age, an interval level variable with eight categories
including Under 18, 18 to 21, 22 to 29, 30 to 39, 40 to
49, 50 to 59, 60 to 65, and 66 + years of age.
Gender, a nominal variable, Male or Female.
Race/Ethnicity, a nominal variable with nine categories
including: White, African American, Hispanic/Mexi-
can, Other, Asian, Native American/Alaskan Native,
Mixed Ethnicity, and Unknown.
•
•
•
The research questions follow:
•
Is there a difference in the proportion of Hiring vs.
Non-hiring allegations that can be attributed to the type
of impairment of the Charging Party?
Is there a difference in the proportion of Hiring vs.
Non-hiring allegations that can be attributed to the age
of the Charging Party?
Is there a difference in the proportion of Hiring vs.
Non-hiring allegations that can be attributed to the
gender of the Charging Party?
Is there a difference in the proportion of Hiring vs.
Non-hiring allegations that can be attributed to the race/
ethnicity of the Charging Party?
•
•
•
Data were analyzed to answer the stated research questions
in two primary ways. First, descriptive statistics were used
to detail the various groups and attributes thereof. Second,
tests of proportion were conducted to compare the target
group (i.e., people who filed hiring allegations) with the
comparison group (i.e., people who filed high-frequency
non-hiringallegations)on allegation combinations
interest using MINITAB. To compensate for the effects
of multiple testing, alpha levels were set conservatively at
B.01. These analyses yielded Z scores (distributed as X2)
and 95% confidence intervals.
of
Results
The overarching purpose of the present study was to dif-
ferentiate ADA Title I allegations related to hiring from
those allegations involving other commonly asserted dis-
criminatory actions (i.e., discharge, constructive discharge,
failure to provide reasonable accommodations, harassment/
intimidation, terms and conditions of employment). In this
study, those two groups of allegations (i.e., hiring and non-
hiring) were compared based upon the characteristics of the
Charging Parties who filed ADA Title I allegations with the
EEOC between 1992 and 2005. The Charging Party char-
acteristics that were used to differentiate the two groups of
allegations were impairment type, age, gender, and race/
ethnicity. Descriptive data for hiring and non-hiring alle-
gations by impairment type of Charging Parties are listed in
Table 2.
As can be seen in Table 2, hiring allegations were most
frequently filed by Charging Parties whose impairment
types were related to the structure and function of the back.
In descending order, the next most frequently represented
Table 1 Target and comparison groups and their definitions
Target group
Hiring
N
19,572
Definition
Failure or refusal by an employer to engage a person as an employee
Comparison group
N
Definition
Discharge119,039Involutary termination of employment status on a permanent basis
Constructive discharge 8,869Employee is forced to quit or resign because of the employer’s discriminatory restrictions, constraints,
or intolerable working conditions
Reasonable
Accommodation
65,624Employer fails to provide reasonable accommodation to the known physical or mental limitations of a
qualified individual with a disability
Disability harassment and
intimidation
33,654 Bothering, tormenting, troubling, ridiculing or coercing a person because of disability. For example:
(1) making, allowing or condoning the use of jokes, epithets or graffiti; (2) application of different or
harsher standards of performance of constant or excessive supervisions; (3) the assignment to more
difficult, unpleasant, menia,l or hazardous jobs; (4) threats or verbal abuse; or (5) application of
stricter disciplinary measures such as verbal warning, written reprimands, impositions or fines or
temporary suspensions
Terms and conditions of
employment
32,494Denial or inequitable application of rules relating to general working conditions or the job environment
and employment privileges which cannot be reduced to monetary value. Examples include: (1)
assignment to unpleasant work stations or failure to provide adequate tools or supplies; (2) inequities
in shift assignments or vacation preferences; or (3) restrict- ion of mode of dress or appearance
Total Comparison259,680
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impairment types in the set of hiring allegations were
hearing, non-paralytic/orthopedic, vision, depression, dia-
betes, other psychological, and missing digits/limbs.
Similarly, non-hiring allegations were most often filed by
people whose impairment types were related to the back,
followed in descending order by non-paralytic/orthopedic,
depression, diabetes, heart/cardiovascular, other psycho-
logical, and other neurological.
A z-test for difference between two proportions revealed
that,incomparisontothenon-hiringgroup,ChargingParties
who filed hiring allegations were overrepresented for twelve
impairment types: hearing
P\.001), vision (z (N = 6,016) = 19.95, P\.001),
missing digits/limbs (z (N = 2,524) = 12.62, P\.001),
paralysis(z(N = 1,937) = 12.56,P\.001),cerebralpalsy
(z (N = 1,264) = 10.93, P\.001), other respiratory or
pulmonary (z (N = 2,505) = 10.73, P\.001), speech (z
(N = 1,372) = 8.70, P\.001), schizophrenia (z (N =
987) = 7.90, P\.001), disfigurement (z (N = 618) =
7.80, P\.001), epilepsy (z (N = 4,554) = 4.54, P\
.001), dwarfism (z (N = 103) = 3.93, P\.001), and drug
addiction (z (N = 1,734) = 3.79, P\.001).
In comparison to the non-hiring group, Charging Parties
who filed hiring allegations were underrepresented for six-
teen impairment types: anxiety (z (N = 7,313) = -26.57,
P\.001), non-paralytic/orthopedic (z (N = 23,407) =
-20.41, P\.001), depression (z (N = 17,853) = -17.67,
P\.001), asthma (z (N = 4,681) = -16.12, P\.001),
gastrointestinal(z(N = 2,249) = -15.96,
cumulative trauma (z (N = 2,646) = -11.82, P\.001),
heart/cardiovascular (z (N = 8,921) = -11.24, P\.001),
allergies (z (N = 1,723) = -11.01, P\.001), cancer (z
(N = 5,710) = -10.91, P\.001), back (z (N = 32,981) =
-10.33, P\.001), other neurological (z (N = 7,708) =
-8.67, P\.001), chemical sensitivities (z (N = 958) =
-8.55,P\.001),bipolardisorder(z(N = 7,676) =-6.45,
P\.001),otherblood(z(N = 2,745) = -6.00,P\.001),
multiple sclerosis (z (N = 3,297) = -5.91, P\.001), and
diabetes (z (N = 10,052) = -5.24, P\.001).
Table 3 displays the frequencies and percentages for the
following three variables: age, race/ethnicity, and gender.
With regard to age, a categorically coded variable,
Table 3 presents the frequencies and percentages across the
two allegation groupings. A z-test for difference between
two proportions revealed that, in comparison to the non-
hiring group, Charging Parties who filed hiring allegations
were overrepresented in the 18–21 (z (N = 2,267) = 3.99,
P\.001), 22–29 (z (N = 20,322) = 10.12, P\.001)
and 66 and over (z (N = 4,277) = 10.72, P\.001) age
ranges and underrepresented in the 40–49 (z (N =
89,949) = -7.76, P\.001), 50–59 (z (N = 57,054) =
-3.44, P = .001), and 60–65 (z (N = 11,991) = -4.43,
P\.001) age brackets.
Descriptive data for race and ethnicity categories across
allegation groupings are also presented in Table 3. When
looking at categories of race, hiring allegations were most
(z(N = 7,807) = 20.69,
P\.001),
Table 2 Hiring and non-hiring allegations by impairment type of
charging parties
Impairment type Hiring Non-hiring
N = 12, 618
N = 183,456
F
%
F
%
Back1,89215.0a
9.5b
8.0a
7.9b
6.1a
4.6a
31,08916.9
Hearing1,203
6,604 3.6
Non-paralytic/Orthopedic1,014
22,39312.2
Vision1,001
5,0152.7
Depression774
17,0799.3
Diabetes 582
9,4705.2
Other psychological5334.2
3.3b
3.2b
3.2a
3.0a
2.9b
2.8b
7,9524.3
Missing digits/limbs417
2,107 1.1
Epilepsy405
4,1492.3
Heart/cardiovascular 404
8,517 4.6
Other neurological376
7,3324.0
Other respiratory or pulmonary368
2,137 1.2
Paralysis357
1,5800.9
Learning disability3202.5
2.0b
2.0a
1.9a
4,175 2.3
Cerebral palsy250
1,0140.6
Bipolar disorder249
7,4274.0
Cancer235
5,4753.0
Alcoholism 2331.8
1.7b
3,2311.8
Speech216
1,156 0.6
HIV/AIDS204 1.6
1.3b
1.3b
1.3a
1.3a
1.1a
3,1581.7
Drug addiction168
1,5660.9
Schizophrenia 164
8230.4
Anxiety162
7,1513.9
Multiple sclerosis 158
3,1391.7
Asthma137
4,5442.5
Kidney impairment 1331.1
1.0a
1.0b
1,589 0.9
Other blood 126
2,619 1.4
Disfigurement 125
4930.3
Brain injury (Traumatic)115 0.9
0.6a
1,6930.9
Cumulative trauma79
2,5671.4
Mental retardation560.4
0.4a
0.4a
0.2b
0.2a
9860.5
Allergies45
1,678 0.9
Gastrointestinal45
2,2041.2
Dwarfism26
770.0
Chemical sensitivities 24
9340.5
Tuberculosis110.11260.1
Autism50.095 0.1
Cystic fibrosis50.0810.0
Alzheimer’s10.0310.0
Key:aunder representation of hiring;bover representation of hiring
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frequently field by Charging Parties who identified them-
selves as White, followed in descending order by Charging
Parties who identified as African American, Other, His-
panic/Mexican, Asian, Native American/Alaskan Native,
Mixed, and Unknown. Likewise, non-hiring allegations
were most often filed by people who identified themselves
as White, followed in descending order by people who
identified as African American, Other, Hispanic/Mexican,
Asian, Native American/Alaskan Native, Mixed, and
Unknown.
A z-test for difference between two proportions revealed
that, in comparison to the non-hiring group, Charging
Parties who filed hiring allegations were overrepresented in
the White (z (N = 152,298) = 21.12, P\.001) and
Native American/Alaskan Native (z (N = 1,569) = 3.75,
P\.001) groups and underrepresented in the African
American (z (N = 48,246) = -14.76, P\.001), Other (z
(N = 21,616) = -8.08, P\.001), and Hispanic/Mexican
(z (N = 16,121) = -2.98, P = .003) groups.
With regard to gender, also shown in Table 3, the hiring
group was 34.7 percent female (N = 6747) and 65.3 per-
cent male (N = 12,719), whereas the non-hiring group was
50.0 percent female (N = 129,178) and 50.0 percent male
(N = 129,298). A z-test for difference between two pro-
portions revealed that the hiring group had proportionally
more males and proportionally fewer females than did
the comparison group of non-hiring Charging Parties
(z (N = 142,117) = 43.13, P\.001; z (N = 135,925) =
-42.90, P\.001).
Discussion
Hiring Discrimination in Perspective
Data in this study and in previous research on EEOC
allegations support the broad generalization that claims of
employment discrimination are more about job retention
than job acquisition [2, 23]. In this investigation of EEOC
allegations from 1992 to 2005, hiring ranked fifth in
frequency among the top five allegation categories. Dis-
charge, reasonable accommodation, terms and conditions
of employment, and disability harassment and intimidation
occurred more often than hiring as official allegations
of discrimination filed with the EEOC. Certainly, these
findings underscore the importance of job retention
interventions that address such needs as early barrier
identification and accommodation planning and employee
education regarding procedures for seeking and securing
reasonable accommodations and for asserting one’s rights
in the employment setting [24, 25].
All of these on-the-job interventions designed to
enhance job retention are reminiscent of the call for addi-
tional rehabilitation personnel who can fulfill the role of a
career development specialist who is involved in helping
employees with disabilities retain their employment [26,
27]. Although it is not clear how these services should be
funded and provided, the need for them is apparent.
Advocates might call for the development of resources to
enable the state-Federal VR program to provide such
job retention services. Employee Assistance Programs in
business and industry could offer job retention interven-
tions as part of their mission as an indication of the private
sector’s commitment to reducing the impact of employ-
ment discrimination [28].
Table 3 Hiring and non hiring allegations by age of charging parties
GroupHiringNon-hiring
N = 17,557
N = 233,310
F
%
F
%
Under 18 120.0
1.2a
10.3a
26.4a
33.0b
21.7b
4.1b
3.0a
890.0
18–212142,0530.9
22–291,814
18,5087.9
30–394,641
60,26525.8
40–495,812
84,13736.1
50–593,809
53,24522.8
60–65725
11,2664.8
66 and Over530
3,7471.6
Hiring and non hiring allegations by race of charging parties
GroupHiring Non-hiring
N = 17,312
N = 225,669
F
%
F
%
Asian 2071.2
15.5b
6.0b
0.9a
69.2a
7.2b
2,664 1.2
African American2,684
45,56220.0
Hispanic/Mexican1,037
15,0846.7
Native American/Alaskan Native154
1,4150.6
White11,974
140,324 62.2
Other1,244
20,3729.0
Mixed80.01570.1
Unknown40.0910.0
Hiring and non hiring allegations by gender of charging parties
GroupHiringNon-hiring
N = 17,312
N = 225,669
F
%
F
%
Male12,17965.3129,29850.0
Female6,74734.7129,178 50.0
Key:aover representation of hiring;bunder representation of hiring
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Hiring Discrimination and Impairment Type
By the same token, this study does focus on the issue of
hiring discrimination, and it is therefore important to
examine trends in hiring discrimination and suggest
responses to such trends. In the information regarding
hiring discrimination and impairment types, it appeared
that the more common the physical impairment, the lower
the proportion of hiring allegations in comparison to the
proportion of the comparison group of allegations. One
possible interpretation is that many of these conditions
worsen with time and are more likely to become employ-
ment-related factors after the person has been on the job a
while rather than during the time the person is seeking a
job. Moreover, many of the conditions such as diabetes,
back injuries, non-paralytic/orthopedic impairment, and
cardio-vascular disorders are invisible, and interviewers are
precluded from asking about the presence of any disabili-
ties during the job interview [29]. Consequently, the topic
of disability does not come up as frequently during the
interview process as it would later in the individual’s
vocational life when disability-related limitations result in
concerns vis-a-vis unfair discharge or denial of a reason-
able accommodation. The only way such a condition might
affect the hiring process is if it were discovered during a
medical examination mandated for all applicants, which
may explain why some of the less frequent and invisible
conditions such as epilepsy are associated with a higher
proportion of hiring discrimination allegations. Of course,
the opposite is true for blindness and deafness, which are
usually apparent to the interviewer and therefore spur
discriminatory conduct during the hiring process.
The case of Holiday v. the City of Chattanooga [30] is
one example of an impairment that is either disclosed or
noticed during the hiring process. Seeking a job as a police
officer in Chattanooga, Holiday did very well in the
interview, met all written and physical requirements, and
passed the medical examination. During the examination,
Mr. Holiday told the examining physician that he (Mr.
Holiday) was infected with the Human Immunodeficiency
Virus. The physician advised the personnel director for the
City of Chattanooga to not hire Mr. Holiday because
Holiday would not have the stamina or endurance to per-
form reliably as a police officer and because his HIV
condition posed a danger of harm to others through transfer
of fluids. Holiday’s suit against the city was dismissed by
the District Court but upheld by the Court of Appeals on
appeal. The Court of Appeals ruled that Holiday passed all
job-related tests, that he had a history of working suc-
cessfully as a police officer, and that the city had not taken
into account these facts in denying him employment.
Research regarding the relative proportions of hiring
discrimination andnon-hiring discriminationfor
individuals with paralysis and neurological conditions
confirm previous findings in the literature. For example, the
allegation groups including people with spinal cord injuries
and individuals with cerebral palsy reported a higher pro-
portion of hiring discrimination allegations than of
discrimination allegations in the other primary issue cate-
gories. McMahon, Shaw, West, and Waid-Ebbs [20] and
Lowman et al. [21] attributed this higher incidence of
perceived hiring discrimination for people with paralysis
and cerebral palsy to the strong underlying negative atti-
tudes toward the conditions, to the visibility of the
condition to the employer, and to the psychological phe-
nomenon of ‘‘spread of effect.’’ In the case of spinal cord
injury, interviewers may assume that the severity of the
physical disability is indicative of other significant limita-
tions in interpersonal and cognitive functioning. The
communication difficulties the employer encounters in the
interview in the case of cerebral palsy may result in con-
clusions that the person is unable to perform adequately in
a work setting. Other groups of people in the sample, such
as individuals with speech impairments and individuals
who are deaf, may report higher proportions of perceived
hiring discrimination due to these same communication
and spread-of-effect reasons.
Both sensory conditions—blindness and deafness—
were associated with higher proportions of alleged hiring
discrimination which is consistent with the literature in
which sensory disabilities, particularly blindness, elicit
stereotypical thinking on the employer’s part regarding the
person’s employment potential [31]. Unger et al. [18]
traced some of this resistance to hiring people who are
blind to employers’ reports that reasonable accommoda-
tions in the screening/hiring process were most difficult to
make for people who are blind. Employers may view
accommodation as ‘‘counter-intuitive’’ to their notions of
effective applicant screening which would suggest that new
hires should have the highest probability of success without
any need for ‘‘expensive’’ and possibly ineffective
accommodations in the workplace [32]. Waterstone [33]
discussed how employers view the so-called ‘‘accommo-
dations mandate’’ of the ADA as a proactive or affirmative
action step which exceeds their responsibilities. Given
these employer attitudes, people with sensory disabilities
should be well prepared to describe their work potential,
their ability to perform essential functions successfully in
the past, and the value of affordable and available assistive
technology to enhance their performance.
Sometimes this stereotypical thinking about the limita-
tions of persons with sensory disabilities such as deafness
bars access even to jobs that the person could do without
accommodations. In a recent case involving America
Online [34], Davidson, a deaf individual, was not hired by
AOL for a non-voicephone customer assistance position.
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He applied one year later for a non-voicephone position
with AOL but was told that he could not apply for such
positions because they were filled from within the company
by voicephone customer assistants who were being dis-
placed due to outsourcing of that service to the Philippines.
At the time of his second rejection by AOL, Davidson
brought suit under the ADA claiming that he had been
discriminated against in the hiring process for two posi-
tions for non-voicephone customer consultants over the
span of about one year. The District Court dismissed his
claim in summary judgment because too much time had
elapsed between the first event of alleged discrimination
and his filing with the EEOC. The court also ruled that he
had not established discrimination in the second event
because he was not qualified for the transfer to a non-
voicephone position since non-voicephone positions were
restricted to current voicephone employees displaced due
to outsourcing of their current jobs. A person who is deaf
was not qualified to hold a voicephone position in the first
place.
The Court of Appeals for the Sixth Circuit ruled that
Davidson’s first allegation of hiring discrimination was
‘‘time barred,’’ but they did rule in his favor on the second
allegation of discrimination and sent the case back to court.
Essentially, the Sixth Circuit Court of Appeals determined
that AOL could not establish internal qualifications for a
position that were not job-related. Therefore Davidson was
a qualified applicant for a non-voicephone position, and a
jury should decide whether past experience as a voice-
phone assistant represented a legal job requirement.
Allegations from individuals with substance abuse
backgrounds represented a very small number in the total
sample of hiring discrimination charges. With that said,
drug addiction was overrepresented among Charging Par-
ties who filed ADA Title I hiring allegations. Although
drug addiction is rarely disclosed during the hiring process,
it would appear from these findings that, when it is dis-
closed prior to a job offer, employers tend to choose not to
hire the applicant on the basis of his or her addiction—
hence the high proportion of addicts in the hiring allegation
group. It is important to recognize that individuals with
substance abuse problems are not covered under the ADA
if they are currently illegal substances, so it is likely that
many of the hiring and non-hiring allegations filed under
Title I of the ADA are resolved in the employer’s favor.
Estimated at 80–85%, the jobless rate of individuals
with psychological disabilities is higher than that of most
groups of people with disabilities [35]. Apparently factors
contributing to this high unemployment rate are not always
present during the hiring phase, because the proportion of
hiring discrimination is lower than the proportion of other
allegations for conditions such as anxiety, bipolar disorder,
depression, and other psychological conditions. Just the
opposite, however, is true for schizophrenia in which the
proportion of allegations of hiring discrimination exceeds
that of the comparison allegations. Possibly the former
conditions are less obvious during the interview process,
particularly given evidence that suggests that one-half to
two-thirds of people with emotional disabilities may
eventually control their symptoms reasonably well and not
experience increasing disability over time [36].
Hiring Discrimination and Age of Applicant
Results on proportions of hiring and non-hiring allegations
viewed in terms of age indicated that younger and older
individuals were more likely to allege discrimination in
hiring than were middle-aged individuals. Specifically,
individuals from 18 to 29 had a higher proportion of hiring
allegations, as did individuals 66 years of age and older.
Individuals between the ages of 30 and 65 were more likely
to file non-hiring allegations. Younger workers are less
experienced and more often marginalized than more
experienced workers, so it stands to reason that this group
of workers would perceive more hiring discrimination. The
fact that workers 66 and over also had disproportionately
high rates of hiring allegations is consistent with research
documenting the existence of age discrimination in the
workplace [1, 22]. At first glance, it may seem strange that
individuals older than 65 would be filing hiring discrimi-
nation allegations, but one should remember that more than
1 in 8 in this age group are active in the employment arena
[5].
The age-based differences in proportion of hiring alle-
gations are consistent with common sense and with well
known models of career development. In Super’s career
theory [37], young adults enter the world of work during
the acquisition phase of career development, and they
would be expected to encounter more barriers to employ-
ment access during the hiring phase. Older individuals, on
the other hand, are involved in the establishment and
maintenance phases of employment which involves con-
cernsabout discharge, harassment,
accommodation.
Rehabilitation professionals and employers should con-
sider these age-relateddifferences
discrimination in the development of programs. Younger
individuals with disabilities need assistance with their job
seeking skills such as conducting one’s self in the job
interview, completing the job application, and organizing
the job search [38]. They need better preparation for the
world of work in terms of education and training and more
support during the job acquisition process [39]. Older
individuals need access to career support provided by
rehabilitation professionals to learn how to identify barriers
to on-the-job productivity and to reduce or remove those
andreasonable
inemployment
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barriers through proper accommodations. They need
information regarding helpful websites such as the Job
Accommodation Network (JAN) [40] so that they could
conduct their own searches for feasible accommodations
and appropriate vendors [41]. They also need easier access
to financial support while out of work and improved return-
to-work policies and practices in business and industry
[39].
Hiring Discrimination and Gender
Results on gender and proportion of hiring allegations
versus other major allegations are somewhat counter to
expectation and research. Men with disabilities were more
likely than women with disabilities to file hiring allega-
tions. The proportion of hiring allegations did not support
the double disadvantage findings for women with disabil-
ities of O’Hara [15]. Tentative explanations for this finding
do, however, exist in the literature. For example, Bell and
Klein [42] reviewed models of disability and stigma and
discussed the possibility that men with disabilities may
encounter more prejudice among employers than women
with disabilities because men with disabilities are viewed
as refutations of the stereotypical male characteristics of
independence, strength, and power.
The greater likelihood of hiring allegations among males
with disabilities may also have something to do with males
simply being more assertive about such matters. Possibly
they are more likely to act on the civil rights model of
disability [32] underlying the disability movement and the
creation of the ADA. It is also quite probable that women
with disabilities encounter less discrimination in the hiring
process not because there is less discrimination against
them but because they are less likely to apply for jobs
considered nontraditional or high status. For example,
Chatterjee and Mitra [43] noted that women with disabil-
ities are concentrated in the ‘‘feminized’’ or service sectors
of the economy. Their application for such positions would
not run counter to the public’s expectations of the roles
they should play and, consequently, they would encounter
less discrimination in the hiring process. Women with
disabilities are also less likely to work in positions of high
status or authority, once again explaining why they would
not encounter discrimination if they are relegated to only
applying for low status and low authority positions [42].
Hiring Discrimination and Racial/Ethnic Status
Results on racial/ethnic status are also contrary to expec-
tations and difficult to explain. Research clearly indicates
that individuals from minority groups experience a nega-
tive bias in the hiring process that is only compounded by
the presence of disability [16], yet the proportion of hiring
discrimination allegations versus other retention-related
allegations was higher for White and Native American/
Alaskan Native individuals than for African American,
Hispanic/Mexican, and other racial/ethnic status individu-
als. Social cognitive career theory and social learning
theory [44] may offer one plausible explanation in its
depiction of the expectations that have an impact on
behavior. These expectations are of two types—self-effi-
cacy and outcome expectations. Self-efficacy has to do
with whether individuals believe that they can perform
the behaviors required to achieve a certain outcome while
outcome expectations refer to their beliefs that it would
matter if they acted in such ways. Possibly, African
American and Hispanic/Mexican individuals have come to
have strong negative outcome expectations regarding the
utility of their allegations of discrimination in the hiring
process. They may take the pessimistic point of view that
such allegations will have little effect and that their time
and effort is better spent in continuing to search for jobs
rather than in filing charges of discrimination with the
EEOC.
There are other possible explanations as well. The
Rehabilitation Act Amendments of 1992 came about in
response to documentation that persons with disabilities
from racial and ethnic minority groups comprised an
‘‘underserved population’’ when it came to their involve-
ment with the state-federal vocational rehabilitation
program. Other authors have documented the complica-
tions arising from language barriers, cultural differences, or
a sense of distrust toward government programs. For
example, pursuant to developing capacity building pro-
grams to ameliorate these barriers, Balcazar, Keys and
Suarez [45] discovered that 93% of Hispanics/Mexicans
with disabilities in Chicago were unaware of their rights
and responsibilities under the ADA. Finally, some minority
group members may choose to bring their grievances under
Title VII of the ADA which has fewer ambiguities, more
case law, and more generous remedies for breach for
African Americans.
Conclusion
Although allegations of hiring discrimination represent a
small minority of all ADA Title I allegations filed by
people with disabilities since 1992, employers and dis-
ability advocates continue to express significant concern
regarding the accessibility and fairness of application and
hiring procedures in the American labor market. Indeed,
the uniqueness of hiring discrimination as an impediment
to the employment of people with disabilities is borne in
the findings of this study, which indicate that the
people who file ADA Title I hiring allegations are
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characteristically different than those who file allegations
not involving hiring.
Specifically, Charging Parties who filed hiring allega-
tions between 1992 and 2005 tended to be people with
more obvious physical or sensory disabilities than the non-
hiring comparison group. Charging Parties in the hiring
group were disproportionately younger and older, with the
non-hiring group having proportionately more middle-aged
members. Males, Whites, and Native Americans filed
proportionately more hiring allegations than did women
and other racial or ethnic groups. Taken in aggregate, these
findings strongly suggest a risk profile for perceived hiring
discrimination that is evident in the demographic charac-
teristics of Charging Parties. By understanding what types
of individuals are most and least likely to file hiring alle-
gations, rehabilitation professionals, employers, and other
stakeholders can tailor information and interventions
designed to reduce the incidence and impact of hiring
discrimination in a way that benefits workers and
employers alike.
Acknowledgments
Coordination, Outreach and Research Center for the National Net-
work of ADA Resource Centers, National Institute on Disability and
Rehabilitation Research, U.S. Department of Education (PR#
H133A060087). Appreciation is extended to Dr. Ronald Edwards,
Office of Research, Information and Planning, U.S. Equal Employ-
ment Opportunity Commission for his cooperation. The findings and
interpretations expressed herein are those of the authors and not the
EEOC. Database support was provided by Dr. Mehdi Mansouri.
This study was supported through the VCU
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