Silver Taube: We must remove barriers for workers with disabilities

According to the Bureau of Labor Statistics, the unemployment rate for individuals with a disability was 7.6% in 2022, about twice as high as the rate for those without a disability.

People with a disability were more likely to work in service occupations, production, transportation, material moving and sales than people without a disability. They were also less likely to work in management, professional and related occupations than people without a disability.

Attitudes about disability present barriers to employment. Individuals with disabilities encounter stereotypes, ableism and discrimination that make it difficult to get a job.

In a study, researchers at Rutgers and Syracuse University created resumes that matched the experience to job openings on a well-known job search website. There were two candidate profiles — one with six years of experience, the other with about a year out of college. Candidates with and without disabilities were equally qualified. One-third of the cover letters mentioned no disability, while one-third disclosed a spinal cord injury and the other third Asperger’s syndrome, both conditions chosen because they would not affect the accounting abilities required for the job.

The researchers found there was a 26% lower chance of employer interest for applicants with disabilities. The drop in interest in disabled candidates was about the same whether the applicant disclosed a spinal cord injury or Asperger’s. The more experienced applicants with disabilities were 34% less likely to get responses than the non-disabled applicants.

Once on the job, people with disabilities face discrimination. Equal Employment Opportunity Commission (EEOC) data shows disability claims were the most common in 2020 and second only to retaliation in 2021 and 2022. California Civil Rights Department data shows that, in 2020, the highest number of cases were disability discrimination cases when added to the requests for reasonable accommodation cases.

In March, a federal judge ruled as a matter of law that UPS violated federal law by failing to accommodate and then firing an employee because of his disability.

According to the EEOC’s lawsuit, an employee who suffered from diabetes asked a UPS human resources supervisor for the accommodation of an occasional short break to check his blood sugar and eat or drink something if necessary. The supervisor referred to the employee with a disability as a “liability,” claiming that he could not do his job because of his diabetes. After the employee’s second shift ended, the supervisor left the employee a voicemail message firing him.

Last September, the EEOC sued Verizon for refusing to allow a disabled employee to compete for vacant positions within the company compatible with his disability, forcing him to quit.

According to the lawsuit, a management employee who suffered from hypertension asked his manager to permit him to move to a field position or to an alternate management position to accommodate his disability. There was an opening for a field position which the employee had previously held, but Verizon did not allow him to compete for that position or for vacant managerial positions. Verizon offered no other accommodation, and the employee was forced to resign due to medical necessity.

In November 2022, the California Civil Rights Department reached a $600,000 settlement with farm labor contractor Esparza Enterprises. The complaint alleged Esparza Enterprises unlawfully denied a worker’s disability-related accommodations and terminated her because of a temporary disability that resulted from a workplace injury.

From my experience as an employment attorney, employers regularly violate disability laws and fail to reasonably accommodate workers with disabilities.

It is unlawful for an employer to ask questions that would require an applicant to disclose a disability during the hiring process. For example, an employer may not ask:

• If an applicant has any disability or medical condition
• If an applicant has ever applied for workers’ compensation
• If an applicant is taking prescription drugs

An employer is legally required to provide a reasonable accommodation to a worker with a disability unless it is an undue hardship. Examples of reasonable accommodations are:

• Disability tools such as hearing aids or mobility aids
• The option to relocate a worker’s desk to an accessible area
• Schedule modifications based on the worker’s needs
• Job protected leave time for medical treatment, recovery and care

An employer is legally required to engage in the interactive process by entering into a dialogue with the worker about the accommodation the worker requires. The employer does not have to provide the worker with the exact accommodation the worker requests, as long as the employer offers a similar accommodation that works.

Employers may request a doctor’s note that specifies the employee’s restrictions and limitations and the required accommodation. However, even if the employer does not require a doctor’s note, it is wise for the worker to provide a note that states the workers’ restrictions and the accommodations the worker needs.

An important resource for both employers and workers is the Job Accommodation Network. It helps individuals with disabilities explore accommodation ideas and provides practical suggestions for requesting and negotiating accommodations with an employer. The network also provides free and confidential consultation for employers of all sizes and types — private, federal, state or local government, etc. This consultation includes practical guidance on workplace accommodation solutions and accommodation process strategies.

The employer is never allowed to disclose a worker’s disability to anyone except managers and supervisors who need to know the employee’s limitations or accommodations, or first aid and safety personnel who may need information as to how to assist or treat the worker in case of an emergency. If the employer discloses a worker’s disability or medical condition to anyone else, the worker can file a claim with the EEOC since the Americans with Disabilities Act requires all medical information be kept confidential and in separate files.

Employers must follow the law, reject stereotypes and ableism and remove barriers to employment for people with disabilities.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].