Tuesday, July 28, 2015

Americans with Disabilities Act at 25

A couple of days ago was the 25th anniversary of the enactment of the Americans with Disabilities Act (ADA). The ADA is a wide-ranged law that is hailed as the one of the most comprehensive civil rights bills that "prohibits discrimination and guarantees that people with disabilities have the same opportunity as everyone else to participate in the mainstream of American life: to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services." The good intentions of the law are certainly there. Individuals that are disabled are generally a vulnerable and economically disadvantaged demographic within society. Disabled individuals are people too, and as such, should be afforded a shot at the American dream. Any decent human being would feel sympathy towards these individuals and the obstacles they face. However, if one is going to pontificate about the importance about helping disabled individuals, then we need to get past the argumentum ad misercordiam that is all too commonly used to advocate for the ADA and ask ourselves a brutally honest question: Has the ADA actually helped disabled individuals participate in the mainstream of American life?

83 percent of Americans approve of the ADA, which is something the ADA has going for it. It most probably means that the ADA isn't going anywhere anytime soon. Popularity of a bill is nothing more than using a logical fallacy of argumentum ad populum. What about those who directly benefit from the bill?

For the 20th anniversary of the ADA, the National Organization on Disability conducted a survey of disabled individuals. Amongst the findings was that even though there was improvement on educational attainment and political participation, disabled individuals lagged behind [relative to non-disabled individuals] in employment, household income, access to transportation, health care, going to restaurants, and satisfaction with life.

Employment rates are actually an important metric for measuring the ADA's success since one of its main goals is to enjoy employment opportunities. The current employment-population ratio for disabled individuals is 16.7 percent (Bureau of Labor Statistics [BLS]). Compare this to the non-disabled population, whose employment-population ratio is 64.4 percent (BLS). Also, the median annual earnings for a disabled individual is 68 percent of non-disabled individuals. Disabled individuals also have an unemployment rate about twice as high as non-disabled individuals, as well as being twice as likely to work part-time (BLS). If you want a more temporal viewpoint, we can look at Census data for 1990, 2000, and 2010 (as well as BLS data from 2008-2013) to compare disabled individuals to non-disabled individuals.

The painful fact is that since the enactment of the ADA, the employment rate (as well as the median income household) for disabled individuals has actually decreased (DeLeire, 2000; Acemogulu and Angrist, 1998), even when you account for cyclical events (e.g., recessions). The ADA seems to have negative effects on the retail sector specifically (Prieger, 2004). Even if you want to argue that the ADA did not cause the decrease employment amongst the disabled (e.g., Jolls and Prescott, 2004), although I have already highlighted studies pointing to an underlying causal link, it is certainly true that the ADA did not increase employment amongst the disabled, which was one of the major goals of the ADA.

The U.S. Commission on Civil Rights points out that it might not even be the ADA but rather the increase of enrollees in Social Security Disability Insurance (SSDI). I have taken a look at SSDI. While I don't have any doubts that SSDI plays a role in decreasing employment opportunities for disabled individuals, the ADA still played a vital role in this unemployment decrease (Acemogulu and Angrist, ibid.). Whether it results in higher wages for disabled individuals is more ambiguous. Some argue that it improved wages (Thompkins, 2011), whereas others argue that it caused a decrease in wages (Beegle and Stock, 2003). While the Tompkins study points out that the ADA did more for educational attainment for those who had a high school degree or less, it also concludes that the ADA did not improve the wages of disabled individuals relative to non-disabled individuals (Thompkins, p. 28).

There are some factors that go into the inefficacy of the ADA. One is the broad definition of "disabled." Under the ADA [§12102(1)(A)], a disability is defined as a "physical or mental impairment that substantially limits one or more major life activities of such individual." Courts have already ruled that back and knee strains, headaches, and erectile dysfunction, along with other minor impairments, are covered under the ADA. By covering minor impairments under the ADA, the ADA insults those who deal with real disabilities, and undermines its prime directive.

While we're on the discussion of vague wording, what about the definition of "reasonable accommodation" [§12111.(9)]? Here is a list of some "reasonable accommodations" under the law: time off, a modified workspace or restroom, a sign language interpreter, materials in Braille, you get the idea. If the accommodation cannot be made and the individual absolutely cannot perform their duties, they have to be reassigned to a more amenable task. Even while some of the accommodations are 100 percent legitimate, can you see how, maybe, just maybe, this can become burdensome for an employer, especially if it is a smaller business? If you don't accommodate, then there is a matter of litigation. Let's take a look at government statistics from the EEOC on ADA litigation. $95.6 million in monetary benefits during 2014, and to think that doesn't even touch upon the legal fees! Over 25 thousand ADA charges in 2014. This is not an issue with just the ADA, but one of the issues I have with anti-discrimination laws in general. Advocates talk about creating a system that helps the individuals, but the mechanisms actually create disincentives to hire those the law was intended to help. The ADA imposes higher accommodation costs than a firm would voluntarily incur. It is simply easier for firms to avoid hiring disabled individuals. Why should we keep a bill that does nothing to employ disabled individuals?

I also have philosophical qualms with the ADA, aside from taking a swing at liberty by using the force and coercion of government to dictate how a employer should control their own workplace. It doesn't exactly cultivate goodwill, but I digress. Do we see ourselves as more incapable of helping ourselves now that the government has provided such a broad definition of who is disabled? The Onion actually did a good parody back in 1998 illustrating this very point. We all have problems, and the vast majority of us are going to deal with an impairment in the workplace at some point. Yes, some impairments are worse than others and should have more due consideration. However, the pendulum has swung the other way.

But let's say that you're completely indifferent to property rights, and that you believe that the ends justify the means. Which ends are we talking about, the fact that wages of disabled individuals have not improved relative to non-disabled individuals or that the employment rate for disabled individuals has not improved since the ADA's enactment? This is not to say that the ADA has not made a positive difference for certain individuals, but the ADA is another example of the law of unintended consequences. Labor laws have this uncanny tendency to disincentivize the opposite of what it was intended to do, which in this case is hire more disabled individuals. Irony of ironies, the ADA actually encourages discrimination!

In spite of what the Center for American Progress might think, more government is not the answer here. More of the same is only going to dig a deeper hole. As this NPR article points out, there are so many more obstacles for disabled individuals to overcome that the ADA has not been able to address. Issues for disabled individuals go beyond the workplace, and include better health care, transit, education for disabled individuals to acquire marketable skills, and educating those in society (especially employers) about disabilities so we can create both a more amicable social climate in which employers feel comfortable hiring disabled individuals instead of worrying about onerous regulations. Creating a more accepting social milieu without the onslaught of government regulations will create a better life not just for disabled individuals, but society as a whole.


  1. As a disabled person, I must demur. You do raise a few good points; income and employment for disabled people do lag. I agree that the ADA is a hindrance to the hiring of the disabled because of its vague language; the vagueness is unhelpful because it confuses employers, who don't know what they have to provide for disabled people; it confuses disabled people, who don't know if what they ask for will be accommodated; and it adds fuel to the fire of an overly litigious culture.

    The trouble with your attitude in this piece is this: if the hiring of disabled persons were left to the businesses themselves and ADA had never occurred, there would be no curb cuts, handicapped-accessible parking, handicapped-accessible doors, etc. We would be a country like Italy or Greece or China, where it is nearly-impossible for a disabled person to even leave their family's house, let alone get an education, get a job, or live on their own independently.

    My right to have an education and to live an independent life was fought for by many people, including my precedessors and my own parents. But I can tell you that my life has been made easier by ADA, and yes, has been made easier by SSI. I have struggled with every university I've attended, trying to get services and housing I needed. In many cases I was the first disabled person living in my building or even living in the area, and it helped to have ADA in my pocket.

    I'll admit that I've been less-than-successful in securing employment, particularly full-time employment. I fantasize about someday having a full-time job. I agree that disabled people do need better health care, transit, education... and... BING-BING-BING-BINGO!! Educating employers. To me, that seems to be the number-one obstacle. Employers need to be taught to overcome their perception that the disabled are incompetent, poor workers, that our hiring is costly for them and their workplace, that our hiring will result in lawsuits.

    What's annoying about your attitude in this piece is that your takeaway is to blame "onerous regulations". It's only recently that groups like blacks, or women, or even Jews were allowed to get a foothold in universities and workplaces. If businesses were left to themselves, they'd still be dominated by old, white men (in fact, most still are, particularly CEOs, despite token gestures towards "diversity" at lower levels). What helped them- regulations! I know you’ll disagree.

    The state government of Colorado provided free birth control to all Colorado women regardless of their income; it led to a 40% drop in teen pregnancy and a 42% drop in teen abortion, which in turn allowed the state to save huge amounts of money that it didn't have to spend on caring for these young girls and undernourished babies.

    Similarly, more government programs gearing towards hiring, training, and empowering the disabled would reduce expenses for ADA and SSI in the long run. The allegedly "onerous" government is not the obstacle. Early humans created government to do what private enterprise, private individuals and other organizations would not or could not do. Government has a positive role to play in people's lives, and government is what keeps the wolf away from my door by preventing me from living in your “if private enterprise isn’t doing it then fuck it” world. Toodles.

    1. Mark, I'm not surprised that you demurred. If anything, I find the response to be wholly predictable. What I wasn't fully expecting was the level of presumptuousness of your response. First, you presume that without the ADA, we’d be like Greece or China, and disabled individuals wouldn’t have a prayer. This doesn’t even get into the fact that you don’t have the knowledge of a parallel universe in which the ADA was not passed. None of us have that knowledge, and we can only assess what has been, what is, and what we use projections to make educated guesses as to what will be.

      Comparing a world without government intervention via the ADA is similar to saying that without the government to take care of us, there would be no education, health care, or food. It’s an argumentum ad metum to scare us into believing a world without the ADA’s regulations would make it impossible for disabled individuals to have a living. I find that to be an interesting presumption to make considering that the employment rate actually dropped for disabled individuals after the ADA’s enactment. If a world without the ADA were that difficult, how was it that disabled individuals did have jobs in the first place, and how is it that the employment rate for disabled individuals decreased? The numbers just don’t fit with your hyperbolic assumption that it is nearly-impossible to live in America without the ADA.

    2. More amusingly, you presume I live in a "if private enterprise isn't doing it, then fuck it" world. I thought you would have picked up on this after knowing for me all this time, but I'm not an anarcho-capitalist, so the strawman argument was unnecessary as it was inaccurate. I’m a consequentialist libertarian who believes that neither the free market nor government is perfect. Unlike yourself, I don’t believe that government officials are more altruistic, less corruptible, or are omniscient. I also don’t compare an idealized form of Big Government versus a worst-case “free market” scenario. I compare government the way it is (not the way I think it should be or the way it could theoretically play a positive role) versus the way the world works with liberalized markets, and if the research I have done during my pursuits in the career field of public policy has taught me anything, it is that liberalized markets generally work better than government intervention.

      Yes, I have found exceptions to the rule: birth control subsidies (http://libertarianjew.blogspot.com/2014/02/a-libertarian-argument-for-subsidized.html), partial smoking bans (http://libertarianjew.blogspot.com/2013/09/a-libertarian-argument-in-favor-of.html), and a carbon tax (http://libertarianjew.blogspot.com/2015/06/is-there-case-for-carbon-tax-for-those.html). However, these are exceptions to the rule pointing to my view that smaller government [as opposed to no government] is better than moderate or even Big Government. Liberalizing marketplaces has done more to alleviate poverty and improve the quality of life than any government bureaucracy ever has.

    3. That’s a good segue as to why I have an issue with government regulations, both with civil rights issues generally and with the ADA specifically. You talk about how the free market would keep down certain minority groups if it weren’t for the government. Let’s not forget that it was the government that was obstructionist in this respect. For African-Americans, you have the Dredd Scott case, Plessy v. Ferguson, Jim Crow laws. For homosexuals, the fact that the government got in the business of defining marriage is what prohibited homosexuals from getting married as long as they did. Although some cultural and societal shifts had to occur for women’s rights to take hold, technological developments helped women. Cooking and cleaning took hours. With the inventions of the microwave, oven, washer and dryer, amongst other inventions, women were able to have the free time to pursue jobs. On a similar note, the modern-day wheelchair, as an example, was not invented by some bureaucratic agency. It was invented by Harry Jennings in 1932. This was a man in the private sector who wanted to help his disabled friend, Herbert Everest. The two of them subsequently started a business together, Everest and Jennings, and provided affordable wheelchairs to many disabled individuals.

      Literary devices and anecdotal evidence notwithstanding, what I found most intriguing about your response is that you agreed with me on my main points: The ADA has vague language that does not help with employment prospectives, it encourages litigiousness, and your Facebook status from Sunday showed a [somewhat] dismayed attitude since the employment rate for disabled individuals is still so low, even after 25 years of the ADA. You want to go beyond anecdotal evidence and argue that the ADA made housing easier for individuals? Find me some data to show that home ownership and/or rental rates have gone up for disabled individuals, then let’s talk. At best, and this would be a tenuous assumption to begin with, it has not gotten easier for disabled individuals to find a livelihood with the ADA. If anything, it has become more difficult because the ADA creates a disincentive to hire disabled individuals. Without a livelihood, it’s hard to feed yourself, pay for a roof over your head, and gain financial independence, which is why I am using the ADA as a primary metric of success or failure. While it’s nice to talk about more that can be done to help, the purpose of this blog was to look at the ADA at this juncture. The reality is that whatever good the ADA has done is considerably outweighed by the deleterious effects it has had on labor markets, both for disabled employees and their employers, over the past 25 years.

  2. "First, you presume that without the ADA, we’d be like Greece or China, and disabled individuals wouldn’t have a prayer." I've talked to disabled individuals who lived pre-ADA, and yes, it was extremely difficult for them to get around and do things outside their house. I can categorically state that without the ADA- I, me, Mark Langenfeld, would not have been able to get an education. Universities, like other businesses, want to turn a profit and have no interest in helping the disabled- UNLESS they are required to by law. If businesses had their druthers, we'd still have things like child labor (and still do, in Third World countries). Business is not some saint, and the free market is not G-d. By the way, if the free market is so great, where does it exist? If it doesn't exist now due to your "onerous" regulation, and allegedly never existed in the past, doesn't that make you as theoretical as a Marxist?

    "Liberalizing marketplaces has done more to alleviate poverty and improve the quality of life than any government bureaucracy ever has." Maybe, but without government bureaucracy, we wouldn't have iodized salt, flouridated water, mass vaccination or clean air.

    "This was a man in the private sector who wanted to help his disabled friend, Herbert Everest."

    Yes, but would your much-vaunted private sector have agreed to provide wheelchairs to parks, museums, and zoos at low or no cost? If your answer is yes, you have a far higher opinion of the private sector than I.

    "With the inventions of the microwave, oven, washer and dryer, amongst other inventions, women were able to have the free time to pursue jobs." I disagree. Technological changes may have played a role- even a primary role- but women participated in the change, too. Microwaves and washing machines didn't integrate male-only colleges and workplaces.

    Yes, I agreed with your (very salient) points. But the answer lies in reforming the ADA and doing more to help the disabled, as opposed to your solution- which was what exactly? We won't have a higher rate of disabled employment until we have a larger conversation with employers about how the disabled can contribute to a productive workforce. That is the root of the problem, and until that is addressed, we are putting Band-Aids on a flesh wound.

    The ADA made housing easier for me. I was speaking from my personal experience. I was (nearly) denied housing at my current university until I threatened an ADA lawsuit. My point was, without ADA I would have had no recourse. And that's the thing- without ADA the college could have simply said, "No, we're not housing this student, he's making trouble, let's expel him." That's reality.

    Yes, ADA is flawed and needs to do more, parrticularly with employment. I'm dismayed that I don't have a full-time job. But without integrated schools and at least the attempt at inclusion, I'd never have been able to attain my qualifications at all. Prior to a certain era, most disabled people in America were sent to separate schools or institutionalized. Do some research.

    I'm not saying that ADA is perfect or that it can't improve- because it can. But I'm of the opinion that more needs to be done for the disabled, not less. The track record of the private sector in caring for the disabled is quite horrendous, I assure you. Government plays a role and without it, I'd be shafted.

    I'm afraid we'll have to agree to disagree on this one, friend.

    1. I do have to run off to work and don't have time to address every point you made, but I wanted to respond with a couple of points. First is that the verbiage I had predominantly been using was "liberalized markets," not "free markets." Free markets is too high of a purity test to be implemented in reality, which is why I prefer to discuss it in terms of liberalized markets. With that being said, while some countries have more liberalized markets than others, there are enough liberalized markets out there to make observations about how liberalized markets work.

      Second, social change happens from the bottom up. It doesn't take place from some government entity. This was especially true for the civil rights and gay rights movement, although it also holds true for womens' rights. As deplorable as sending disabled individuals to separate schools is (not only morally, but also because it doesn't address the issues at hand), nothing drastic is going to change, with or without the ADA. There had to have been at least some sort of societal awareness about the issue before the government would even bother legislating for the ADA, without which the status quo would have remained intact. If you're wondering what my solution would be, although this is very much on the spot on in a harried manner, it would be a series of private-sector initiatives educating the populace on issues faced by the disabled community and how to make hiring processes of disabled individuals seem and be less burdensome for employers, which is something to which I alluded in the initial blog entry. This blog entry was meant to be a reflection on how the ADA has performed thus far, and based on the numbers out there, it doesn't bode well for the ADA as a success story. I know we both agree that something more should be done to help disabled individuals. We're just disagreeing on how that should ultimately be implemented.