Introduction
Discrimination can be discussed as an important problem typical for US society even though it is prohibited in all social spheres. The Americans with Disabilities Act was enacted in 1990 to address the issue of discrimination against persons with disabilities in the area of employment (Americans with Disabilities Act, 1990; Flaherty & Roussy, 2014). According to Alexander and Alexander, “fair opportunity for education and employment is critical, indeed essential, to the well-being of both the individual and the state” (Alexander & Alexander, 2011, p. 900). Therefore, the effective law was important to be adopted to protect more than 43 million Americans who were regarded as disabled in the late part of the 1980s (Rozalski, Katsiyannis, Ryan, Collins, & Stewart, 2010, p. 22). Discrimination of persons with physical or mental disabilities in the sphere of employment can be viewed as the consequence of the overall social discrimination and seclusion of these people. Rozalski and the group of researchers pay attention to the fact that these people had been “historically isolated and segregated, facing discrimination in areas of employment, housing, public accommodations, and education, often without legal recourse to redress such discrimination” (Rozalski et al., 2010, p. 22). The problem of discrimination is also typical for educational facilities as workplaces where persons with disabilities can be treated unequally because of their differences. Thousands of American teachers and employees in educational settings become the victims of discrimination while being paid minimum wages and prevented from the promotion (Kaplin & Lee, 2007, p. 136). Therefore, the problem requires detailed analysis and discussion.
The purpose of this research is to analyze the Americans with Disabilities Act of 1990 with a focus on its effectiveness in addressing the problem of discrimination in the workplace. To conclude the importance and efficiency of the Act to respond to the needs of disabled persons in the United States, it is necessary to discuss the aspects of the law development and implementation, the amendments to the Act, the issues covered with the law, the legal and political aspects of the Act, and the role of the law in the ethical decision-making. The research paper also aims to present recommendations that can be followed to improve the implementation of the Americans with Disabilities Act in the US public and private employment sectors.
Problem Statement
The problem is in the fact that despite being prohibited, discrimination in educational settings is a typical phenomenon because of the inability of educational leaders to make ethically and legally appropriate decisions during the process of hiring disabled employees, conducting the teacher candidate assessments, training disabled employees, and deciding on promotion and compensation of this vulnerable category of the US population. Alexander and Alexander pay attention to the fact that even though the United States is “a large and economically powerful nation, it nevertheless suffers, as do many other nations, from discrimination in the workplace”, and there are few adequate solutions to address this issue (Alexander & Alexander, 2011, p. 900). Therefore, it is important to analyze how the Americans with Disabilities Act of 1990 can be effective to overcome discrimination against disabled persons in educational institutions.
Literature Review
Although the Americans with Disabilities Act (ADA) was adopted in 1990, and it is the basic legal source to guarantee the protection of employees with disabilities against discrimination, scholars are still concerned regarding the effectiveness of the Act to cover all the issues associated with the disabled persons’ employment (Americans with Disabilities Act, 1990). The ADA was enacted to state the unlawful character of discrimination in such areas as public services and accommodations, telecommunications, transportation, and commercial facilities (Cox, 2012; Hoffman, 2013). As a result of the ADA’s adoption, the employers and persons with disabilities focused on such notions as a “qualified employee” and “reasonable accommodation” because of the intention of employees to be hired based on their qualification and intentions of employers to avoid making the necessary adjustments to address the needs of disabled employees (Flaherty & Roussy, 2014, p. 4). Currently, the ADA prohibits discrimination in such practices as hiring, promotion, training and development, compensation, and termination (Novak, 2015, p. 98). In this context, Scotch noted in the article published in 2000, after a decade of law enforcement in the United States, that the ADA is a “comprehensive statement of public policy that people with disabilities should not be unfairly excluded from employment, public accommodations, and other aspects of public life, and that the federal government should act to protect them” (Scotch, 2000, p. 213). Therefore, the adoption of the ADA in 1990 was an important step toward regulating the social situation in the United States regarding the issue of discrimination in employment.
The supporters of the ADA as an appropriate regulation to control discrimination in organizations usually state that this law is beneficial for both employers and employees. Thus, the ADA is discussed by Harris as important to “maximize the agency and dignity of people with disabilities” (Harris, 2015, p. 459). In addition to the opinion stated by Harris, it is also possible to focus on the position of Scotch who was the first scholar to state that the ADA was the law providing disabled employees with many opportunities to become adapted to social life. Thus, according to Scotch, the ADA should also be discussed as “a policy commitment to the social inclusion of people with disabilities” (Scotch, 2000, p. 216). As a result, the Americans with Disabilities Act can be viewed as the law that helps the public and employers focus their attention on the needs of disabled people and promote their social adaptation while preventing the negative effects on daily lives that are typically associated with poverty and social isolation.
However, not all researchers are inclined to discuss the ADA as effective in protecting the persons with disabilities in the workplace because this law needs to be supported by a range of other regulations and policies to make disabled employees equal in their rights and opportunities to the other employees (Kulow, 2012; Mitka, 2012; Rumrill & Fitzgerald, 2010). Thus, Rumrill and Fitzgerald are rather skeptical regarding the effectiveness of the ADA to prevent discrimination in the workplace. The researchers state that being obliged to hire “qualified” employees and make reasonable accommodations” and being prohibited to terminate employees because of disabilities, employers try to act illegally while preventing workers from the adequate training, while providing minimum wages, and while avoiding promotion of disabled employees (Rumrill & Fitzgerald, 2010, p. 450). Therefore, regular amendments to the Americans with Disabilities Act are necessary to minimize the possibilities for the employers’ illegal activities toward disabled workers.
In her recent research, Novak (2015) identified many challenges associated with the ADA in the workplace. While focusing on the scholar’s findings important for the sphere of education, it is possible to pay attention to such aspects of Novak’s research as the ADA weaknesses regarding the provision of equal wages to all employees and provision of the necessary training for employees with disabilities. Novak states that the law allows employers to make exceptions and “to pay some people with significant disabilities a subminimum wage” (Novak, 2015, p. 103). Furthermore, limitations in wages are discussed by the researcher as “an outdated, paternalistic approach that perpetuates the perception that individuals with disabilities are incapable or undeserving of earning commensurate wages” (Novak, 2015, p. 104). In addition, employees in public and private organizations are often deprived of opportunities to participate in training sessions because employers do not see the potential in developing and promoting disabled workers (Novak, 2015, p. 105). Rozalski and the group of researchers also support Novak’s ideas and state that the Americans with Disabilities Act cannot be effective to change or improve the compensation policy for employees if the employer intends to decrease the employees’ wage regardless of their productivity (Rozalski et al., 2010, p. 23). The negative consequences of such policy are the decreases in the employment rate of persons with disabilities in public organizations, including schools, colleges, and universities.
The researchers concentrate on the fact that the Americans with Disabilities Act was revised and amended to improve the proposed strategies and policies regarding the protection of disabled people from different types of discrimination in the workplace. Therefore, the legislative history of the ADA is closely connected with the political aspects. The significant changes in the law were enacted as the ADA Amendments Act of 2008 and the revisions were adopted as the regulations of 2010. The ADA Amendments Act of 2008 is most associated with the political process in the United States and the proposed changes are often referred to as the congressional response to the law (Rozalski et al., 2010, p. 24; Rush, 2012, p. 79). Having revised the law, Congress pointed at such aspects in the ADA as the employer’s focus on reasonable accommodation and the employer’s violation of the law “when acting on the basis that an individual is regarded as disabled whether or not the employer believed the disability limited a major life activity” (Rush, 2012, p. 79). From this point, the ADA is constantly mentioned as part of the political process because policy-makers, administrators, and presidents regularly present their vision of social policies supported with the Americans with Disabilities Act. Researchers note that the legitimized forcing associated with the necessity of following the ADA can be effective only when it is supported by the political processes (Harris, 2015; Mitka, 2012). Therefore, the enforcement of the Americans with Disabilities Act and the political reaction to the processes as well as the promotion of executive orders to support different aspects of the ADA are the sides of the national policy regarding the protection of disabled Americans from discrimination in the workplace.
Formation and Implementation of the ADA
To analyze the efficiency of the law to address the issue of discrimination in detail, it is necessary to focus on the aspects of policy formation. The Americans with Disabilities Act was enacted in 1990, after the revision of several previous drafts. The ADA was a form of the policymakers and legal representatives’ reaction to discriminative actions of employers in the United States (Americans with Disabilities Act, 1990). To state clearly the employers’ obligations and responsibilities regarding disabled workers, Congress proposed the project of the ADA (Novak, 2015, p. 105). The law was planned to include the description of all controversial points regarding the treatment of disabled employees in the society and workplace (Harris, 2015, p. 458). The new Act was developed to support and extend Section 504 of the Rehabilitation Act of 1973 (Kaplin & Lee, 2007). Thus, the ADA was enacted to protect from discrimination for employees working in all organizations of the country’s public and private sectors.
Title I of the ADA proposes the broad definition to discuss persons who are disabled introduces the definition of the “qualified” individual and states the employers’ responsibilities regarding the provision of reasonable accommodation for the disabled workers (Americans with Disabilities Act, 1990). Thus, according to the ADA, disabilities covered with the Act are physical and mental medical conditions of different severity, including mobility impairments, deafness, blindness, autism, bipolar disorder, and others (Americans with Disabilities Act, 1990; Kulow, 2012, p. 340). Such conditions as substance use or, for instance, gender identity disorders, are not discussed as disabilities (Alexander & Alexander, 2011; Rush, 2012). As a result, according to the law, being qualified and having necessary skills, a person cannot be rejected to take the job position only because this individual is disabled.
From this perspective, Title I guarantees the protection for disabled persons while prohibiting discrimination in “all employment actions” (Rush, 2012, p. 77). Title II of the ADA discusses the aspects of employment in Public Services, Title III focuses on Public Accommodations and Services Operated by Private Entities, Title IV discusses the elements of Telecommunications, and Title V provides the legal overview of Miscellaneous Provisions (Americans with Disabilities Act, 1990; Rumrill & Fitzgerald, 2010, p. 450). It is important to state that the ADA was developed and implemented in 1990 to cover all the aspects of social life and to decrease the level of pressure on disabled Americans regarding employment issues (Flaherty & Roussy, 2014; Mitka, 2012, p. 965). However, the implementation of the ADA provoked more debates in the legislative sphere because of the necessity of effective decision-making regarding the extent of the Americans with Disabilities Act protection for disabled persons in the workplace. In the 1990s, the majority of complaints filed under the ADA were associated with uncertainties regarding the definition of disability and the scope of the employers’ responsibilities (Hoffman, 2013; Rush, 2012). These aspects were taken into account for the further revision of the Americans with Disabilities Act in 2008.
Legal Aspects and Cases Associated with the ADA
The Americans with Disabilities Act in the sphere of employment works as the guarantee of the social and economic protection for disabled persons to prevent possible discrimination. These goals of the Act are determined with references to the cases observed in the 1960s-1980s that provoked the development of the ADA (Alexander & Alexander, 2011). Referring to the sphere of education, the most influential cases were Gurmankin v. Costanzo (1977) and the School Board of Nassau County v. Arline (1987). In these cases, the teachers experienced discrimination in the workplace because of having disabilities of different levels of severity. Before 1990, such cases were discussed in the court according to the principles and rules stated in the Rehabilitation Act of 1973, Section 504. In the first legal case, the blind teacher was prevented from taking the class and obtaining the administrative position in the school district because of his disability. The court made the decision referring to the presence of necessary skills and competence in the plaintiff (Gurmankin v. Costanzo, 1977). The focus on skills and qualifications necessary for obtaining a certain position in the educational environment was also important while discussing such a case as the School Board of Nassau County v. Arline. The plaintiff was prevented by the school administration from performing as a teacher because of becoming disabled after tuberculosis (School Board of Nassau County v. Arline, 1987). While discussing the issue, the court focused on the teacher’s qualifications, and it was stated that there were no reasonable grounds to reject the candidate of the disabled teacher because she had the qualifications necessary for taking the position.
These cases helped in determining the importance of the notion of the “qualified” employee. This notion was further developed in the Americans with Disabilities Act enacted in 1990. It is stated clearly in the ADA that individuals cannot be discriminated against because of their disabilities while being qualified for the work, or while being “otherwise qualified” (Alexander & Alexander, 2011; Cox, 2012). In such a case as Bartlett v. New York State Board of Law Examiners (1998), the plaintiff was rejected to be provided with the necessary accommodations to participate in teacher examinations. According to the court decision, it was stated that teacher candidates should be provided with necessary accommodations, but the focus should be on their qualifications. As a result, the provision of accommodations cannot guarantee to pass the examination, and the teacher candidate with disabilities should meet the program or certificate requirements (Bartlett v. New York State Board of Law Examiners, 1998). The presented cases were important to determine the legal aspects of the Americans with Disabilities Act that required further discussions and revisions from policy-makers.
Furthermore, it is important to state that in school settings, the ADA regulates the relations of not only employees and employers but also the relations of the school administration and students. The reason is that the courts discuss these cases while taking the definition of disability from the ADA and applying such acts as the Rehabilitation Act of 1973 and the Individuals with Disabilities in Education Act (Cox, 2012). This approach was used to discuss the controversial situation in the case of Weixel v. Board of Education of City of New York (2000). In this case, the plaintiff faced the challenge of supporting the idea that she was disabled and required necessary accommodations (Weixel v. Board of Education of City of New York, 2000). These discussed cases provide the grounds to claim that the definition of disability proposed in the Americans with Disabilities Act is one of the main challenges for making decisions in specific legal cases.
Political Aspects of Implementing and Amending the ADA
Even though the Americans with Disabilities Act was implemented as the law to address the interests of the disabled employees working in public and private organizations, there were debates on the appropriateness of the ADA principles to be used to protect persons from discrimination about hiring, promotion, compensation, training, and termination (Harris, 2015; Scotch, 2000). In the 1990s, it was found that the ADA could harm disabled employees because leaders and human resource managers used different strategies to avoid hiring persons with disabilities or to minimize the payment because of the increased costs of employing such persons (Rumrill & Fitzgerald, 2010). As a result, a series of revisions of the ADA was proposed by political leaders to improve the rules stated in the Act. The congressional or political response to the implementation of the ADA was provoked by the fact that the courts were inclined to discuss the ADA statements limitedly, and such “narrow reading of the statute led numerous cases to be dismissed due to the plaintiff being too functional after corrective measures and resulted in Congress amending the ADA” (Rozalski et al., 2010, p. 24). In 2008, Congress focused on discussing such aspects as the necessity of providing reasonable accommodations by employers and the impossibility to discuss the employee’s disability as preventing a person from the “major life activity” (Rush, 2012, p. 79). The definitions of disability were reformulated, and the ADA Amendments Act of 2008 expanded the ADA’s scope while guaranteeing more protection for disabled employees.
During a decade after the ADA adoption, the Act was discussed by experts and scholars as having unintended consequences because the first reaction of the employers to the Act was the focus on ways to circumvent the law (Rush, 2012; Scotch, 2000). Therefore, more clarifications and improvements for the ADA were necessary to be adopted in 2008. The ADA Amendments Act of 2008 provides several important clarifications for the previously used definition of disability. According to the amendments, a notion of disability can include a condition that can limit a person about his or her single major life activity. If the episodic impairment can cause such type of disability, it is also included in the notion (Rozalski et al., 2010). Furthermore, more clarifications were added regarding the procedure of assessment of the person’s state in terms of disability.
It is also important to pay attention to the fact that during a long period, the ADA did not regulate the wages of disabled employees properly. As a result, employers chose to pay disabled workers subminimum wages in private and public sectors, including the educational institutions (Kulow, 2012, p. 340; Novak, 2015). The problem was addressed only in 2014 when President Obama presented the executive order according to which the minimum wage was also increased for employees with disabilities. Those employees, who had previously received subminimum wages, were provided with the opportunity to improve their material state. This political action was discussed as an important step to guarantee equal treatment for persons with disabilities in the United States (Novak, 2015, p. 106). From this point, President Obama’s executive order of 2014 can be discussed as the main political event associated with using the Americans with Disabilities Act to address the problem of discrimination in the state.
The ADA Impact on the Legal and Ethical Decision-Making in the Sphere of Education
The Americans with Disabilities Act significantly influences ethical decision-making in all employment spheres, including education. According to Rozalski and the group of researchers, the ADA was “heralded as the end of the marginalization of millions of Americans with physical and mental impairments and the beginning of their full integration into all aspects of life” (Rozalski et al., 2010, p. 22). As a result, the rules and norms presented in the ADA should be discussed by educational leaders as the legal and ethical guidelines that need to be followed strictly to prevent discrimination in the workplace. With the focus on academic settings, the ADA regulates the relations between the school district, college, and university administrators, other educational leaders, and employees in terms of providing all teacher candidates and other representatives of the staff with equal opportunities to take the job position (Alexander & Alexander, 2011; Rumrill & Fitzgerald, 2010, p. 449). Furthermore, the Americans with Disabilities Act of 1990 guarantees that employers will focus on providing disabled persons with accommodations in educational settings while taking into account the needs of the staff and students (Alexander & Alexander, 2011). Therefore, the legal and ethical decision-making of educational leaders regarding hiring, promoting, and training employees with disabilities highly depends on the principles stated in the ADA.
In their practice, educational leaders and human resource managers should focus on several aspects determined according to the ADA to make ethical decisions regarding recruiting, rewarding, training, and promoting employees. The first challenge for proposing ethical decisions is the discussion of which employees should be treated according to the ADA norms and principles (Hoffman, 2013, p. 152). The problem is in the fact that there are still unclear requirements in the law, despite the ADA Amendments Act of 2008. Nevertheless, while comparing the ADA with the Rehabilitation Act of 1973, it is possible to state that the law enforced in 1990 is more effective to eliminate the potential for confusion in situations when public administrators and educational leaders need to conclude regarding the discriminative element in the case (Kaplin & Lee, 2007). The guidelines presented in the Americans with Disabilities Act should be discussed as appropriate to help leaders in conducting the individualized assessment of employees regarding their disability. While following the ADA norms, a leader can make effective ethical decisions regarding the hiring, promotion, and compensation of the members of the teaching or administrative staff.
Thus, the risks that an administrator will act unethically while discussing the candidates for hiring or promoting in the educational setting can decrease significantly, if the leader is focused on the ADA norms. The reason is that the final version of the ADA provides the clarified points that are important to be applied to the procedure of assessment and recruitment of the candidate. In addition, the ADA Amendments Act of 2008 points out the necessity of hiring the ADA coordinator for public settings to avoid any uncertainties in resolving ethical and legal issues associated with discrimination in the workplace (Kulow, 2012; Novak, 2015, p. 92). From this point, educational leaders can benefit from understanding and following the principles of the ADA because the focus on the law aspect is important to make ethical decisions in problematic cases when the presence or level of disability is difficult to be identified adequately.
Importance and Effectiveness of the ADA to protect the Americans with Disabilities
About 50 million Americans with disabilities experience economic and social difficulties associated with the impossibility to be hired for a well-paid job and to be effectively included in social life (Harris, 2015; Hoffman, 2013). In this context, the Americans with Disabilities Act of 1990 covers disabled employees in all the social spheres and economic sectors to avoid discrimination and promote these persons’ participation in social life. However, there are different opinions regarding the ADA’s effectiveness to address the needs of disabled workers because the employers intended to circumvent the law.
While assessing the effectiveness of the ADA to serve the needs of Americans with disabilities, Harris states that the discussion of the Act as a “prophylaxis or remedy for stigma” remains “an open question” (Harris, 2015, p. 492). The reason is that the barriers for disabled people are considered today as political matters rather than social ones (Harris, 2015). Thus, Harris pays attention to the fact that people with disabilities in the United States continue “to be un- and underemployed and under-educated based on false conceptions of their agency and humanity” (Harris, 2015, p. 461). However, the proponents of the law state that if the problem of disability is discussed in the context of the socio-political model, it is possible to expect more positive outcomes associated with the Americans with Disabilities Act because in this case, the main focus is on citizens’ social and economic needs (Scotch, 2000). Therefore, to be effective, the law regulating the discrimination issue in employment needs to be developed according to the socio-political model (Rush, 2012, p. 78). The effectiveness of amending and revising the ADA with the help of political forces is the reason to support the stated idea.
The importance of the act is also analyzed with the focus on the increased number of Americans protected with the ADA after the Act was amended. Provided changes in the definitions’ formulation were important to change the overall approach to treating disabled employees.
It is also important to state that in educational institutions the ADA is followed more effectively than in the other public and private organizations (Alexander & Alexander, 2011; Kaplin & Lee, 2007). However, there are frequent cases when the members of the staff are deprived of opportunities to be equally trained, promoted, and paid.
Recommendations
It is important to provide the plan for overcoming the substantial barriers for the disabled people’s employment in the United States despite the focus on the amended Americans with Disabilities Act of 1990 to maximize the employment opportunities (Novak, 2015, p. 106). Costs of reasonable accommodations need to be regulated appropriately to balance the employers’ opportunities for hiring disabled persons and providing them with necessary accommodations and resources. Therefore, it is necessary to propose a strategy for determining and regulating the required accommodation costs.
Furthermore, to prevent the hidden discrimination of employees regarding the compensation, it is important to develop an effective policy supporting the ADA, in which the basic rules regarding the distribution of wages among the employees will be formulated depending on the principles stated in the President’s executive order of 2014. It is also possible to discuss the issue of wage subsidies in the context of the ADA to prevent the discrimination of disabled employees regarding the wage in the future (Flaherty & Roussy, 2014). In addition, it is appropriate to hire coordinators and create teams in organizations that could be responsible for controlling the focus on the ADA procedures while discussing the rights of the disabled employees (Rumrill & Fitzgerald, 2010; Rush, 2012).
As a result, the list of recommendations for improving the implementation of the ADA in the United States should include the following points: (1) the development of a strategy for balancing the accommodation costs for employers; (2) the improvement of the approach to treating employees equally regarding the compensation; and (3) the development of teams in the workplaces to control the leaders’ focus on the ADA while treating disabled workers.
Conclusion
The Americans with Disabilities Act of 1990 is a critical step in the US legislation to respond to the problem of discrimination in the country. The results of the ADA analysis indicate that despite being amended in 2008, the law still requires improvements to cover all the aspects of discriminating against disabled persons in the workplace. The main challenging areas associated with the educational sphere are the discrimination of disabled employees regarding the recruitment process, compensation, training, and promotion. Even though employers cannot discriminate against workers with disabilities openly, there are many identified ways to avoid following the law. To support the ADA in the sphere of economic protection for persons with disabilities, President Obama signed the executive order in 2014, according to which the minimum wage of disabled employees increased.
However, although the political process contributed to improving the situation regarding the compensation of disabled employees in the sphere of education, there are still many areas where further actions are important to be taken. Thus, important definitions presented in the ADA require further clarification, as it was made in 2008. Moreover, the overall approach to applying the ADA principles to educational settings and employment needs to be reconsidered. Nevertheless, the Americans with Disabilities Act of 1990 can also be discussed as beneficial for the employees in educational institutions because the necessity to adhere to the ADA norms and principles makes educational leaders improve their ethical decisions regarding hiring, promoting, training, and compensating disabled employees. From this point, the ADA is an effective law to address the needs of disabled employees and protect them from discrimination, but the formation of its aspects needs clarification to avoid misinterpretation. To guarantee that the ADA is implemented effectively in educational institutions, it is necessary to achieve the goal when all employers know the aspects of the anti-discrimination employment law to integrate its rules into everyday practice. In this case, the ADA can be discussed as most effective to meet the interests of US citizens with disabilities.
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