The workplace discrimination experiences of people with multiple sclerosis across three phases of Americans with Disabilities Act implementation

Abstract

BACKGROUND: This study investigated the experiences with the Equal Employment Opportunity Commission (EEOC) of adults with multiple sclerosis (MS) across three phases of Americans with Disabilities Act (ADA) implementation: Phase I (pre-Sutton decision era, 1992–1999), Phase II (Sutton decision era, 2000–2008), and Phase III (ADA Amendments Act era, 2009–2011).

OBJECTIVE: Research questions addressed differential (a) characteristics of charging parties and respondents, (b) patterns in the number and type of allegations, and (c) proportions of merit and non-merit EEOC judgments.

METHODS: The study utilized data from the Integrated Mission System of the U.S. EEOC.

RESULTS: Findings indicated that proportionally more women and Hispanic adults with MS filed claims during Phases II and III than during Phase I. More older individuals and African Americans with MS filed claims during Phase III than during Phases I and II. In Phase I, adults with MS were more likely to allege discrimination against smaller employers and less likely to file charges against larger employers, a trend that reversed during Phases II and III. The annual number of resolved EEOC charges appeared to increase during Phase I, increase then decrease in Phase II, and increase during Phase III. Regardless of phase, most allegations pertained to either unlawful discharge or failure to provide reasonable accommodations. Although higher in Phase III than in I, the percentage of EEOC merit decisions was highest in Phase II.

CONCLUSION: Over time, more typically disenfranchised individuals sought ADA protections, possibly due to publicity, support from advocates, and membership in a culture supporting diversity and nondiscrimination. The increased number of resolved allegations in Phase III was consistent with the greater inclusiveness attributed to the ADA Amendments Act. Interpretation of other findings is provided regarding characteristics of respondents, types of allegations, and trends in EEOC merit decisions.

Keywords

Multiple sclerosis (MS)workplace discrimination Americans with Disabilities Act (ADA)

1 Introduction

Since its initial implementation in 1992, the ADA has evolved through phases of early adoption and establishment of precedents (Phase I, Pre-Sutton decision, 1992–1999), restricted eligibility andprotections via mitigating measures (Phase II, the Sutton decision, 2000–2008), and emphasis on greater inclusion and reasonable accommodation (rather than on disability determination) following passage of the ADA Amendments Act (Phase III, ADA Amendments Act era, 2009-present). Therefore, it is timely to determine the extent to which the evolution of Federal protections under the ADA and its subsequent amendments has affected both the number and type of employment allegations filed by people with MS and the resolutions of those allegations rendered by the Equal Employment Opportunity Commission (EEOC).

1.1 Employment discrimination and MS

Research documents the need for employment protections for adults with MS. First, unemployment rates are extremely high for people with MS, estimated to be 56–58% (Julian, Vella, Vollmer, Hadjimichael, & Mohr, 2008), and this figure occurs in a group of individuals with work experience who wish to continue to work but are frequently forced to leave the workforce prematurely (Julian et al., 2008; Moore et al., 2013; Vickers, 2012). Second, most adults with MS who file allegations of employment discrimination are currently working, and their complaints often pertain to unlawful discharge (i.e., termination) or failure to receive reasonable accommodation at the worksite (Rumrill, Roessler, McMahon, & Fitzgerald, 2005; Neath, Roessler, McMahon, & Rumrill, 2007). Without the protections of the ADA and the EEOC, adults with MS and other disabling conditions would have little to no recourse for correcting alleged discriminatory treatment by employers. Consequently, the way in which the ADA is implemented has a tremendous impact on the employment status of workers with disabilities, particularly people with MS.

1.2 ADA Implementation eras

One historical perspective on ADA implementation since 1992 postulates evolution of the Act through a period of ambiguity and precedent setting (Phase I, Pre-Sutton decision) to a period of restrictive interpretation and narrowing coverage (Phase II, Sutton decision) to the contemporary ADAAA period of greater inclusion and reasonable accommodation (Phase III, ADA Amendments Act Era, 2009 to present).

1.2.1 Phase I, Pre-Sutton Decision, 1992–1999

The pre-Sutton phase was characterized by legal efforts to clarify issues regarding the ADA such as “technical terms,” legislative impact, and compliance processes (Bishop & Jones, 1993; Lee, 2001; West & Cardy, 1997). Technical terms requiring clarification included “qualified individual”, “undue hardship”, “reasonable accommodation”, and “severely limits”. Questions about legislative impact pertained to how the law would affect business and industry in the private sector and educational institutions and churches in the public/nonprofit sector. Some in the business community anticipated that the ADA would result in an explosion in legal activity (Lee, 2001). Ambiguity regarding procedural issues arose in terms of the specific steps that “covered entities” must take to comply with the law (Bishop & Jones, 1993). In particular, confusion in the courts regarding how to determine membership in the protected class of “person with a disability” (i.e., qualified individual) resulted in contradictory decisions in which the cases of some individuals with disabilities were never heard if their impairments were controlled in whole or part via mitigating measures (e.g., medication, rehabilitation therapies, medical devices, surgery, assistive technology) or if their conditions did not substantially limit the individual from performing a wide array of jobs (Gostin, 2003; Lee, 2001). Some observers viewed the intense scrutiny on eligibility, i.e., whether the individual was a person with a disability, as a form of employer “push back” against the perceived high costs of reasonable accommodation and further litigation (Rothstein, 2014). Regardless, the conceptual and procedural ambiguity of the ADA in its first phase of implementation produced contradictory legal decisions, selective employer opposition, and indecision among agencies responsible for its oversight (Mello, 2001).

1.2.2 Phase II, Sutton Decision, 2000–2008

Phase II was initiated by the “Sutton trilogy” beginning in 1999 in which the Supreme Court significantly limited access to ADA protection by people with disabilities. Contradicting existing EEOC regulations (Mello, 2001), the Supreme Court’s 7 – 2 ruling required individuals to demonstrate that they were “substantially limited in a major life activity even when using any mitigating measures to reduce the impact of the disorder (such as medication or assistive devices like contact lens)” (Kruse & Hale, 2003, pp. 4-5). Consequently, some individuals with disabilities were excluded from membership in the protected class if their conditions were deemed not substantially limiting due to mitigating measures (Essex, 2002). Often deliberations regarding ADA coverage were devoted to determining whether the person even qualified for protection rather than to considering the more substantive issues of discriminatory behavior. When those issues were addressed, the Courts were prone to rely on employer input to determine whether discrimination had occurred and whether accommodations offered were reasonable (Lee, 2001). Mezey (2005) and others (Job Accommodation Network, 2014) noted that the outcome of the Supreme Court’s decision on mitigating measures was contrary to the intent of the original legislation, resulting in disappointing levels of protection against discrimination for the 43 million adults with disabilities cited in the Act.

1.2.3 Phase III, ADA Amendments Act Era, 2009-Present

Recognition by advocates of people with disabilities of the unintended narrowing of the applicability of the ADA due to the Sutton trilogy led to passage of the ADA Amendments Act (ADAAA) in September, 2008. Overturning the Sutton decision, Congress implemented the ADAAA on January 1, 2009. The ADAAA removed the use of mitigating measures to determine disability, placing the emphasis more on determining whether discrimination occurred and whether adequate efforts were made to reasonably accommodate rather than on whether the person has a disability (Dorrian, 2014; Job Accommodation Network, 2014).

As evidenced by the increased number of allegations filed with the EEOC by people with disabilities since 2009 (Dorrian, 2014), the ADAAA has resulted in greater inclusion and broader coverage for people with disabilities. One reason is that some impairments are automatically considered disabilities without a test of “substantial limitation” (e.g., deafness, blindness, diabetes, epilepsy, cancer, psychiatric disorders, multiple sclerosis, muscular dystrophy, HIV/AIDS). Similarly, conditions considered to be in remission such as MS or cancer are considered disabilities if they would substantially limit the person in any life activities when active. The Amendments also added major bodily functions to the long list of major life activities meaning that impairments that limit the effectiveness of a bodily function such as the endocrine system (e.g., diabetes) would qualify as a disability (EEOC, 2014; Office of Federal Contract Compliance Programs, 2014). Recent legal trends suggest that the Courts are even sympathetic to the argument that temporary conditions such as a broken leg are covered under the ADAAA if the condition is serious enough (Berkowitz, Downes, Ericsson, & Patullo, 2014).

1.3 Purpose of the study

The purpose of this article is to describe the differential impact of phases in the implementation of the Americans with Disabilities Act (ADA) on the lives of adults with multiple sclerosis (MS). Several research questions guided the analysis of the patterns over time in the discrimination allegations and EEOC resolutions pertaining to the employment experiences of adults with MS. The three critical stages of ADA enforcement investigated were (a) the initial implementation years of the ADA, 1992–1999; (b) the period of the Sutton decision with its more restrictive definition of disability and its emphasis on mitigating measures, 2000–2008; and (c) the period of the ADA Amendments Act with its more inclusive definition of disability and emphasis on reasonable accommodation, 2009–2011 (2011 is the last complete calendar year for which the EEOC had available data on the workplace discrimination experiences of people with MS for this investigation). Answers to the following research questions shed light upon the nature and scope of ADA implementation over time for Americans with MS.

Do the characteristics of charging parties with MS (e.g., age, gender, race/ethnicity) differ depending upon the historical period being analyzed (i.e., pre-Sutton, Sutton, and ADA Amendments Act eras)?

Do the characteristics of employers (e.g., size, location, industry designation) involved in discrimination allegations differ depending upon the historical period being analyzed?

Do the number and nature of resolved ADA Title I allegations filed with the EEOC by people with MS differ depending upon the historical period being analyzed?

Do the proportions of ADA Title I allegations that are resolved in favor of charging parties with MS through the EEOC’s investigatory process differ depending upon the historical period being analyzed? Resolutions favoring the charging party are “with merit,” meaning that discrimination did occur according to the EEOC. Resolutions in favor of the employer are deemed “without merit,” meaning that discrimination did not occur according to the EEOC.

2 Method

2.1 Data source

To conduct this investigation, the research team secured permission from the Equal Employment Opportunity Commission (EEOC) to access the EEOC’s Integrated Mission System database with proper protections for the Charging Parties (applicants or employees) and Respondents (employers). Information gathered pertained to the type and number of complaints of employment discrimination under Title I of the ADA filed by adults with MS and the manner in which the EEOC resolved those complaints. From approximately three million records involving all allegations of employment discrimination, 1 a “study dataset” was extracted to include only those variables related to the research questions regarding the comparability of the three phases of ADA implementation. To protect the identity of Charging Parties and Respondents, the extraction process adhered to specificguidelines:

The unit of study is an allegation; it is not an individual Charging Party, nor an individual Respondent. A single Charging Party may bring more than one allegation or may bring the same allegation on more than one occasion (e.g., in 1997 and again in 2005).

Only unique allegations that do not involve recording errors or duplications are included in the study dataset.

To maximize confidentiality, all identifying information regarding Charging Parties and Respondents was purged except for age, race/ethnicity, gender, and disability status of charging parties and North American Industry Classification System code (NAICS code), number of employees, and location (a broad U.S. census track region) of employers.

Study data were strictly limited to allegations brought under Title I of the ADA. Allegations brought under other federal employment statutes that are not directly related to disability status including the Civil Rights Act, Equal Pay Act, Age Discrimination in Employment Act,and the Family and Medical Leave Act were not considered.

Due to the wide variations in state anti-discrimination statutes based on disability, state charges were also excluded to maintain a consistent definition of both disability and discrimination.

To maintain consistency in definitions and procedures among the study variables, only allegations received, investigated, and closed by the EEOC were included. This required the exclusion of allegations referred by the EEOC to litigation for disposition in civil court, federal or state.

Only allegations that were closed by the EEOC during the study period, defined as July 26, 1992 (first effective date of ADA Title I) through December 31, 2011, were included in the study dataset.

Open allegations (still under investigation) were excluded from the study. This exclusion exists to ensure that all allegations in the study dataset are “closed” as either Merit (reasonable cause for discrimination) or Non-Merit (no reasonable cause for discrimination).

2.2 Variables in the EEOC Database

2.2.1 Characteristics of the charging party

As stated above, the characteristics of the charging party include gender (female/male), race/ethnicity (Caucasian, African American, Hispanic/Mexican, and Other), and disability type.

2.2.2 Characteristics of the respondent

The characteristics of the Respondent include the location/region (New England, Northeast, Mid-Atlantic, Southeast, Midwest, Southwest, Great Plains, Rocky Mountains, Pacific, and Northwest), the industry designation or NAICS code, and the number of employees (ranges from 15 to over 500).

2.2.3 Issues

All charges involve some allegation of an adverse action by employers, and these are known as “issues.” The database includes more than 40 specific employment decisions upon which an ADA Title I allegation can be based. This study mainly focused on 18 types of discrimination identified by the EEOC between 1992 and 2011 that are related to job acquisition (i.e., hiring, training, and reasonable accommodation), work conditions (i.e., wages, benefits, assignment, demotion, promotion, discipline, suspension, intimidation, harassment, and terms/conditions), and job retention (i.e., discharge, constructive discharge, layoff, and reinstatement) and that have enough cases per historical era in order for the analyses to beconducted.

2.2.4 Resolution

This refers to the final EEOC determination as to whether or not discrimination actually occurred. Resolutions are classified as Merit, favoring the charging party (a determination that discrimination did occur) or Non-Merit, favoring the respondent employer (a determination that discrimination did notoccur).

2.3 Sample selection

Data required to examine allegation and resolution patterns for the proposed research questions included the entire population of ADA Title I complaints received by the EEOC from people with MS from 1992 through 2011 (n = 6,801), with comparisons made among three historical periods in ADA history: Pre-Sutton decision era (1992–1999, n₁ = 1,613), Sutton era (2000–2008, n₂ = 3,918), and ADA Amendments Act era (2009–2011, n₃ = 1,270).

2.4 Data analysis

To report the characteristics of charging parties and employers and the discrimination experiences of charging parties, the researchers used descriptive statistics such as means and standard deviations for continuous variables and frequencies and percentages for categorical variables. The three historical periods in ADA history separated the allegations into three groups – the pre-Sutton decision era, the Sutton era, and the ADA Amendments Act era – with allegation group serving as the independent variable.

One-way analysis of variance (ANOVA) was used to compare group differences on the continuous variable of charging party age. Before the analyses of group differences were conducted on the other dependent variables, all of which were categorical in nature, the homogeneity of variances assumption was evaluated; results indicated that this assumption was violated. Therefore, the robust test of equality of means, Welch’s F test, was utilized to adjust for the effects caused by unequal variances.

For each categorical dependent variable (e.g., gender, disability type, issue, employer location, and resolution, etc.), a chi-square test was first utilized to test the homogeneity of proportions across the three ADA eras. If a chi square test indicated the existence of significant proportional differences, two-sample proportion tests were used as a follow-up technique to determine the relative ordering of proportions within each level of the categorical dependent variable. In other words, within each level of the categorical dependent variable, each pair of the proportions was compared by using a two sample proportion test. Data were imported into the Statistical Package for the Social Sciences (SPSS) version 21 for all analyses. Because multiple between-group comparisons were conducted in this study, the level of significance (i.e., the alpha value) was set conservatively at.01. For the pair-wise proportion tests, the Bonferroni method was used to adjust the alpha values for multiple comparisons (i.e., 0.01/3 = 0.003).

3 Results

The first research question concerned whether demographic characteristics of charging parties with MS differed across the three ADA eras. Researchers examined three demographic variables: Age, gender, and race/ethnicity. Charging parties with MS had mean ages of 42.14 (SD = 8.45), 42.82 (SD = 8.91), and 44.67 (SD = 9.50) in the pre-Sutton, Sutton, and ADA Amendments Act eras respectively. A Welch’s F test revealed significantly different mean ages in the three eras (Welch’s F_(2,2,558.49) = 25.67, p < 0.001). A Games-Howell post hoc analysis showed that the age differences in the pre-Sutton and the ADA Amendments Act eras and in the Sutton and the ADA Amendments Act eras were statistically significant (p < 0.001 in both comparisons), indicating that the group mean age for charging parties with MS in the ADA Amendments Act era was significantly higher than the group mean ages in the pre-Sutton and the Sutton eras. The group mean ages in the pre-Sutton and the Sutton eras were not significantly different.

Charging parties with MS in the three chronologically ordered ADA eras (pre-Sutton, Sutton, and ADA Amendments Act) were 64.7%, 70.5%, and 74.3% female, respectively. A chi square analysis indicated that the proportions of allegations filed by female charging parties with MS were statistically different across the ADA eras, (χ² (2, N = 6,698) = 33.05, p < 0.001. Therefore, pair-wise comparisons among the three proportions of allegations filed by female charging parties with MS in the three ADA eras were carried out to determine the ordering of the proportions. Using the Bonferroni method to control the family-wise Type I error rate at p < 0.01, analyses revealed that proportionally fewer allegations were filed by females in the pre-Sutton era than in the Sutton and the ADA Amendments Act eras; however, the proportions of allegations filed by females in the Sutton and the ADA Amendments Act eras were not significantly different.

With regard to race/ethnicity, charging parties with MS were 77.7% Caucasian, 12.9% African American, 1.8% Hispanic, and 7.6% others in the pre-Sutton era; 73.8% Caucasian, 13.4% African American, 4.5% Hispanic, and 8.4% others in the Sutton era; and 69.7% Caucasian, 22.4% African American, 5.2% Hispanic, and 2.7% others in the ADA Amendments Act era. A chi square analysis revealed that the proportions of allegations filed by charging parties with MS representing different racial/ethnic groups were statistically different across the ADA eras, χ² (6, N = 5,803) = 121.33, p < 0.001. Racial and ethnic differences among charging parties with MS in the three eras are displayed in Table 1, including the follow-up pair-wise comparisons for each racial/ethnic group. In order to mark the significant pairs in Table 1, each ADA era was assigned a key (i.e., an “A” for pre-Sutton, a “B” for Sutton, and a “C” for ADA Amendments Act). For each significant pair, the key of the ADA era with the smaller column proportion appears under the historical era with the larger column proportion.

As can be seen in Table 1, the pair-wise comparisons of racial/ethnic proportions revealed that proportionally more allegations were filed by Caucasian charging parties with MS in the pre-Sutton era than in the Sutton and the ADA Amendments Act eras and that the proportions of allegations filed by Caucasians in the Sutton and the ADA Amendments Act eras were not significantly different. Conversely, proportionally more allegations were filed by African American charging parties with MS in the ADA Amendments Act era than in the pre-Sutton and the Sutton eras – and proportionally more allegations were filed by Hispanic charging parties with MS in the Sutton and the ADA Amendments Act eras than in the pre-Sutton era. In addition, proportionally fewer allegations filed by charging parties with MS in other minority groups appeared in the ADA Amendments Act era than in the pre-Sutton and theSutton eras.

The second research question investigated whether respondent employer characteristics varied across the three ADA eras. Three dependent variables – employer size, location, and industry designation – were examined for differences. Descriptive statistics regarding employer size are displayed in Table 2. In each of the historical eras, charging parties with MS most often filed allegations against employers with 501 or more employees (i.e., 42.9% in the pre-Sutton era, 47.8% in the Sutton era, and 50.7% in the ADA Amendments Act era). The next most often cited employers were small entities with 15 to 100 employees (i.e., 35.9% in the pre-Sutton era, 29.8% in the Sutton era, and 26.2% in the ADA Amendments Act era), with much smaller proportions of allegations being leveled against mid-size employers with 101–500 employees across the three ADA eras.

A chi-square analysis revealed that the proportions of allegations filed against employers of different sizes were significantly different across the three ADA eras, (χ² (6, N = 6,342) = 44.77, p < 0.001. The follow-up pair-wise comparisons revealed that proportionally more allegations were filed against employers with 15 to 100 employees and fewer allegations were filed against employers with 500 employees or more in the pre-Sutton era than in the following two eras. Proportions of allegations were not significantly different between the Sutton and the ADA Amendments Act eras for employers with 15 to 100 employees or for employers with 500 employees or more. Proportionally more allegations were filed against employers with 201 to 500 employees in the ADA Amendments Act era than in the pre-Sutton era; however, the proportional differences in allegations against employers with 201 to 500 employees were not significant between either the pre-Sutton and the Sutton eras or the Sutton and the ADA Amendments Act eras. No difference was identified among the three ADA eras for employers with 101 to 200 employees.

Descriptive statistics regarding employer location are displayed in Table 3. A chi square analysis indicated that the proportions of allegations against employers in various regions were not homogeneous across the three ADA eras, χ² (18, N = 6,801) = 72.48, p < 0.001. Pair-wise comparisons revealed that proportionally more allegations against employers in the Southeast region were filed in the Sutton and the ADA Amendments Act eras when each of these two eras was compared to the pre-Sutton era; the proportions of allegations against employers in the Southeast were not significantly different between the Sutton and the ADA Amendments Act eras. This indicates that allegations were more frequently filed against employers in the Southeast after the pre-Sutton era. However, the proportion of allegations filed against employers in the Great Plains region in the pre-Sutton era was significantly higher than that in the Sutton and ADA Amendments Act eras, and the proportions of allegations against Great Plains employers in the Sutton and ADA Amendments Act eras were not significantly different. This indicates that allegations were less frequently filed against employers in the Great Plains after the pre-Sutton era. No other inter-era differences were identified on the employer location variable.

Table 4 presents frequencies and proportions of allegations for employer industry designations across the three ADA eras. A chi square analysis revealed that the proportions of allegations against employers in various industries were not the same across eras, χ² (32, N = 5,282) = 138.02, p < 0.001. In the follow-up pair-wise analyses, results indicated that only one significant proportional difference was observed between the pre-Sutton and the Sutton eras; proportionally fewer allegations were filed against employers in the Arts, Entertainment, and Recreation industry during the Sutton era than in theprevious era.

Compared to the first two eras, proportionally more allegations were filed against employers in Educational Services, Accommodation and Food Services, and Construction in the ADA Amendments Act era, whereas proportionally fewer allegations were filed against employers in Manufacturing. In addition, compared to the Sutton era, proportionally more allegations were filed against employers in Administrative, Support, Waste Management, and Remediation Services in the ADA Amendments Act era. No other pair-wise comparisons revealed significant inter-era differences on the employer industry variable. These findings should be interpreted with caution because there was a substantial amount (22%) of missing data for the industry designations of employers against whom allegations were filed by people with MS throughout the ADA’s effectuation.

The third research question examined whether the number and nature of ADA Title I allegations filed by people with MS and resolved through the EEOC’s investigatory process differed across the three ADA eras. The number of allegations for each year across the three historical eras is plotted in Fig. 1. Although the graph presents only descriptive statistics, a pattern seems to emerge. Generally speaking, the number of resolved allegations increased every year in the pre-Sutton era, and the ascending trend continued into the first four years of the Sutton era before it turned downward for the last few years of that era. Then, when the ADA Amendments Act era started, the trend turned upward, with 2011 (which is the last year of data available for this investigation and the third year of ADA Amendments Act effectuation) having the highest number of resolved allegations among all years in the ADA’s history. It should be noted that some allegations were filed during the Sutton era but resolved during the ADA Amendments Act era using Sutton criteria. These overlapping allegations are considered Sutton-era allegations because of the resolution criteria used, and they are depicted in Fig. 1 with a circle along with all other Sutton-era allegations. All allegations resolved using ADA Amendments Act era criteria are depicted in Fig. 1 using a triangle.

In terms of the adverse actions of employers (i.e., issues) alleged by charging parties with MS, Table 5 presents frequencies and percentages for the 18 most frequently cited issues, with all other issues aggregated into an Other category for the three ADA eras. A chi square analysis revealed that the proportions of issues were not homogeneous across eras, χ² (36, N = 6,801) = 108.62, p < 0.001. The follow-up pair-wise analyses indicated significant inter-era differences for the issues of Hiring, Layoff, Discipline, and Benefits. Specifically, the proportions of Hiring (i.e., failure or refusal by an employer to engage a person as an employee) allegations were 4.6% in the pre-Sutton era, 3.0% in the Sutton era, and 1.9% in the ADA Amendments Act era. However, the pair-wise proportion comparisons for Hiring indicated that only the differences between the pre-Sutton and ADA Amendments Act eras were statistically significant. This pattern held true for Layoff and Benefits.

A different pattern emerged in the analysis for Discipline. The proportions of allegations related to Discipline in both the Sutton and the ADA Amendments Act eras were significantly higher than that in the pre-Sutton era; however, the proportion of allegations concerning Discipline in the ADA Amendments Act era was not significantly different from that in the Sutton era. It is noteworthy that there were no inter-era differences in the proportions of allegations related to discharge or reasonable accommodations, the two most frequently cited issues by charging parties with MS that comprise approximately half of all ADA Title I allegations throughout the ADA’shistory.

The final research question concerned whether patterns of case resolutions involving allegations by people with MS differed across the three ADA eras. As noted in the Methods section, resolutions were aggregated into two categories for purposes of comparison, merit resolutions and non-merit resolutions. Merit resolutions favor the charging party; non-merit resolutions favor the employer. Merit resolutions included those labeled as withdrawn with benefits to the Charging Party, settled with benefits to the Charging Party, successful conciliation, and conciliation failure. Non-merit resolutions included findings of no cause and all administrative closures.

Table 6 presents the proportion of merit resolutions for each of the three phases of the ADA’s effectuation. The aggregate merit rates (i.e., the percentage ofclosures that were resolved in the charging party’s favor) for each era were pre-Sutton –19.0% (n₁ = 1,613), Sutton - 31.8% (n₂ = 3,918), and ADA Amendments Act - 25.5% (n₃ = 1,270; see Table 6). A chi square analysis revealed that the proportions of merit resolutions were different across eras, χ² (2, N = 6,801) = 96.75, p < 0.001. The follow-up pair-wise analyses revealed that all comparisons were statistically significant, meaning that proportionally more allegations were resolved with merit in the Sutton era than in the other two eras. Also, proportionally more allegations were resolved with merit in the ADA Amendments Act era than in the pre-Sutton era.

4 Discussion

This study addressed the extent to which three phases of ADA implementation had a differential impact on the employment discrimination experiences of adults with multiple sclerosis (MS). Interesting trends occurred in the findings pertaining to the characteristics of charging parties and respondents (e.g. age, gender, and racial/ethnic status of charging parties and size and location of respondent employers). Adults with MS alleging discrimination were older in the ADA amendments Act phase than in the Sutton and pre-Sutton eras. The proportion of females alleging discrimination increased from the pre-Sutton to the other two phases, with the Sutton and ADA Amendments Act eras having the same proportion of females. The percentage of African American individuals with MS increased significantly in the ADA Amendments Act era when compared with that of the other phases. A somewhat similar trend occurred for Hispanic individuals with MS, except that the proportions in the Sutton and ADA Amendments Act eras were equal but larger than in the pre-Sutton era.

Most allegations were filed against larger employers (501+ employees), and that proportion increased in both the Sutton and ADA Amendments Act eras in comparisons with the pre-Sutton era. The reverse trend occurred with respect to smaller employers (15–100); specifically, more charging parties filed allegations of discrimination against small employers in the pre-Sutton than in the Sutton or ADA Amendments Act eras. For employers in the 201–500 employee range, the proportion of allegations was greater in the ADA Amendments Act era than in the pre-Sutton era, but no differences occurred in the proportions of allegations in the Sutton and ADA Amendments Act eras. No differences in proportions of allegations appeared in those employers with 101 to 200 employees.

Some of the most important findings pertain to the greater participation of older, female, and minority individuals with MS over time in seeking ADA protection, due possibly to the positive effects of time and experience with the ADA on the part of adults with MS and interested providers and advocates. Bishop and Jones (1993) suggested that successful implementation of the ADA depends upon three variables – communication, resources, and commitment. As more individuals learn about Title I protections, as more resources are devoted to encouraging adults with MS to exercise their rights through interventions such as self-advocacy training (Antao et al., 2013), and as society increases its commitments to non-discrimination in the workplace for adults with disabilities, one might expect a larger number of allegations of discrimination by more typically disenfranchised individuals such as women and minorities with disabilities (Gostin, 2003). Evidence of political and social commitment to the ADA over time is easily seen in recent efforts to reestablish that the intent of the Act was to provide inclusive protection for people with disabilities during the ADA Amendments Act phase (Rothstein, 2014).

Several factors may have combined to increase the proportion of older adults with MS alleging discrimination during the ADA Amendments Act era. First, the trend may simply be a function of the increasing age of the workforce. In 1980, the average age of the American worker was 35; by 2008, it was 41. In 2008-9, the majority of the American workforce (54%) was between the ages of 40 and 75 (Ng & Feldman, 2010). This trend of an aging American workforce is likely to continue for the next 30 years or so as the 77 million members of the Baby Boom generation continue to age while enjoying longer life expectancies than their parents (Wickert, Dresden, & Rumrill, 2013).

As the number of older workers increases, the frequency of perceived discrimination increases commensurately, as evidenced by the increased incidence of ADA title I allegations filed by older workers with MS over time. Research also suggests that older workers place a high value on retaining their employment because they have many years invested in positions in which they have found a good fit between their personal characteristics and tasks and benefits of their jobs. In fact, data suggest that older workers do not conform to more negative stereotypes in that they are more motivated and attached regarding their work roles (Ng & Feldman, 2010), which could explain a greater willingness to seek recourse from discrimination in the workplace in order to retain employment.

Similar arguments can be made regarding the increased number of women with MS alleging discrimination during the Sutton and ADA Amendments Act eras. First, the sheer numbers of women establishing themselves in the workplace increased rapidly from the 1960s to the 1980s (BLS Reports, 2014), a period of time during which the women’s rights movement gained greater visibility and support (Potter & Banyard, 2011). By the 1990’s and on, cultural expectations strengthened regarding the rights of women that would encourage more female employees to protest unfair treatment at work whether the unfair treatment was based on gender, on disability, or on both.

Similarly, trends in the workplace regarding the value of diversity and requirements to address gender and racial/ethnic inequality in pay and promotion practices may have provided another impetus for women and minority individuals with MS to exercise their civil rights at work over time (Taneja, Pryor, & Oyler, 2012). Comprising half of the American workforce and increasingly well educated, female employees, some of whom have disabilities, represent a substantial proportion of individuals who would likely take action to protest unfair treatment at work (BLS Reports, 2014) as they grow more aware of their employment rights.

In terms of employer size, before considering inter-era differences, it is interesting that, across all three eras, the highest frequencies of ADA title I allegations by people with MS were filed against larger employers with 501 or more employees. This finding is consistent with prior studies of workplace discrimination against workers with disabilities (McMahon, Edwards, Rumrill, & Hursh, 2005), and it likely reflects that larger employers hire more employees, including more employees with disabilities (Strauser, 2013). Larger employers may also implement more practices that inform employees about their rights, particularly with regard to employment discrimination (Roessler & Sumner, 1997). In terms of inter-era comparisons, it is interesting that the proportion of allegations filed against the smallest employers was significantly higher in the pre-Sutton era than in either the Sutton or ADA Amendments Act eras, while there was a slight indication of the reverse with larger employers (501+). It may be the case that smaller employers have increased their capacity over time to informally address disability-related issues in the workplace without requiring formal intervention from the EEOC. Given that the frequency of allegations against large employers has remained high and even increased over successive ADA eras, more outreach to large employers may be needed to provide information about the nature of MS, issues facing workers with MS as they attempt to maintain their careers, and reasonable accommodation strategies to enhance on-the-job productivity and reduce the incidence of ADA Title I allegations (Antao et al., 2013).

In terms of the location of respondent employers, more allegations were filed against employers in the Southeast, and the fewest charges were filed against employers in New England across ADA eras. This may reflect regional differences in employee rights legislation, workers compensation policies, and/or the involvement of labor unions to protect the rights of workers.

Although data regarding the industrial classifications of employers may not be as reliable as other findings given the high rate of missing information in this field of the EEOC’s Integrated Mission System database, changes over time in the proportions of allegations against employers in different industries do suggest the need for industry-specific ADA training and consultation. Employers in manufacturing, for example, may require different approaches to ADA compliance on behalf of people with MS than employers in industries such as education, social services, and hospitality. Future research concerning the workplace discrimination experiences of people with MS in particular industries could inform the development of these tailored programs to help employers in those industries prevent or discontinue discriminatory actions against workers with MS.

Trends in the number of allegations suggested a slight ascending pattern during the pre-Sutton era, an ascending then descending pattern in the Sutton era, and an ascending pattern in the ADA Amendments Act era. These findings are in keeping with the status of the ADA during each time period and the socio-political environment in which it existed. For example, during the pre-Sutton era, individuals with disabilities and their advocates were just learning about the protections afforded under Title I, although their access to these protections was slowed by ambiguities regarding key terms in the legislation (e.g., “qualified individual”, “undue hardship”, “reasonable accommodation”, and “severely limits”) and compliance processes related to criteria for membership in a protected class as a person with a disability (Bishop & Jones, 1993; Lee, 2001; West & Cardy, 1997). The pre-Sutton era was also a period in which some in the business community anticipated that the ADA would result in an explosion of legal activity (Lee, 2001), which may have slowed implementation of the legislation initially.

The ascending then descending pattern in the number of allegations in the Sutton era appears consistent with what Mezey (2005) described as the gradual narrowing of ADA protections resulting from a variety of sources. First, being viewed as a person with a disability required determination that the person was substantially limited in performing a major life activity. Criteria for achieving a substantially limited status were unclear, and working was not considered a major life activity (Gostin, 2003). Second, judicial decisions supported the position that disability did not exist as a legal condition if mitigating measures such as medication or medical aids resulted in control of the health condition. During the Sutton era, the preeminent question seemed to be “are you disabled?” rather than “were you discriminated against in the workplace?” As the years of the Sutton period passed, the slow decrease in allegations filed appear consistent with the impact of the unanimous decision of the Supreme Court reflected in Justice O’Connor’s admonition that the ADA must be “interpreted strictly to create a demanding standard for qualifying as disabled” (cited in Gostin, 2003, p. 9).

The ascending pattern in the number of allegations during the ADA Amendments Act era, 2009–2011, is consistent with the broadening of coverage called for in the Amendments that enabled more individuals with MS to seek recourse for discrimination on the job. The Amendments eliminated the consideration of mitigating measures to determine disability, listed specific conditions such as MS as presumptively disabling, and broadened the type of life and bodily functions considered as major life activities (EEOC, 2014; Job Accommodation Network, 2014; Office of Federal Contract Compliance Programs, 2014). The ADA Amendments Act shifted the key questions in ADA Title I enforcement from “are you a person with a disability?” (the key question in the Sutton era) to “were you discriminated against in your employment and did you fail to receive proper resolution of your need for a reasonable accommodation?”

Perhaps the most interesting finding related to the discrimination issues alleged by people with MS is the fact that allegations of unlawful discharge and failure to provide reasonable accommodations accounted for approximately half of all ADA title I allegations across eras, with no significant differences in the proportions of these two high frequency issues being observed over time. This finding has held in numerous EEOC investigations over the years (Cichy et al., in press; McMahon et al., 2005), and it behooves rehabilitation professionals who provide ADA consultation to employers and people with MS to focus their efforts on procedures for preventing unlawful discharge and for implementing reasonable accommodations that enable qualified adult workers with MS to retain employment (Chapin, 2012; McMahon et al., 2005). This focus on job retention represents a departure from early ADA training and consultation priorities, which focused primarily on job acquisition issues such as interviewing and hiring even though these issues have always represented a small proportion of ADA Title I allegations filed with the EEOC (McMahon et al., 2005; Strauser, 2013). In fact, allegations related to hiring filed by people with MS dropped sharply and significantly from the pre-Sutton to the Sutton and ADA Amendments Act eras as a linear function of time.

In terms of the resolutions of ADA Title I allegations involving people with MS, the merit resolution rate was lowest (19%) in the pre-Sutton era, then it jumped significantly (to nearly 32%) in the Sutton era and declined somewhat (to more than 25%) in the ADA Amendments Act era. This trend is somewhat counter-intuitive, as the highest merit resolution rate was observed during the Sutton era that was characterized by narrowing protections under the ADA and judicial rules that were seen as unfavorable to ADA charging parties. One might speculate that people with MS who filed ADA Title I allegations during the Sutton era were more likely to have severe disabilities that were easier to qualify under the law than did those ADA Title I charging parties with MS in the pre-Sutton era. Perhaps the narrowing protections of the Sutton era prompted a self-selection bias among people with MS whereby those with the most obvious MS symptoms and those who experienced the most blatant forms of workplace discrimination tended to file Title I allegations in greater numbers than was the case in the pre-Sutton era, hence the higher rate of merit resolutions following the Sutton decision. The first three years of the ADA Amendments Act era saw the merit resolution rate for people with MS decline somewhat in comparison to the Sutton era, but it remains significantly higher than the merit resolution rate in the initial and uncertain pre-Sutton era. With expanded definitions of disability and the inclusion of MS as one of the presumptively disabling diagnostic categories in the ADA Amendments Act, it is reasonable to expect that the merit resolution rate for charging parties with MS will continue to exceed that of the original ADA era and possibly reach the merit resolution rate observed in theSutton era.

5 Conclusion

Although the results of this investigation are somewhat difficult to interpret, there is no question that the workplace discrimination experiences of Americans with MS have changed considerably across the three major eras of ADA implementation. Compared to the original, pre-Sutton era, the successive Sutton and ADA amendments Act eras were marked by higher proportions of allegations filed by older, female, and non-Caucasian charging parties with MS. The proportions of allegations against large employers increased over time, whereas the proportions of allegations against small employers decreased. The total number of resolved ADA title I allegations filed by people with MS increased steadily in the pre-Sutton era, increased then decreased in the Sutton era, and increased again in the ADA Amendments Act era. Across the three eras, approximately half of all ADA title I allegations filed by people with MS involved claims of unlawful discharge or failure to provide reasonable accommodations. The merit resolution rate for allegations filed by people with MS was lowest in the pre-Sutton era and highest in the Sutton era.

This study demonstrates the dynamic nature of the ADA. It experienced dramatic changes in its brief history by means of Supreme Court interpretation as well as Congressional amendment. With its expanded definition of disability, elimination of the mitigating measures standard that excluded many people from protection under the ADA as per the Sutton trilogy, and its inclusion of MS as one of the 13 presumptively disabling diagnostic categories, the ADA Amendments Act holds significant promise for people with MS who seek to maintain their careers without being subjected to discrimination in the workplace. It is hoped that subsequent years of implementation of the ADA Amendments Act will reduce the incidence of discrimination against workers with MS, increase the merit resolution rate for those people with MS who seek redress, and be marked by higher rates of labor force participation for this experienced, well-educated, but all-too-often disenfranchised group of workers.

Conflict of interest

The authors have no conflict of interest to declare.

Footnotes

1

These confidential records were obtained from the Equal Employment Opportunity Commission (EEOC) through an Interagency Personnel Agreement (IPA) and a Confidentiality Agreement involving the EEOC, Dr. Brian T. McMahon, and his employer (a state university).

Acknowledgments

This research was funded through a Health Care Delivery and Policy Research grant from the National Multiple Sclerosis Society, New York, NY. The authors wish to thank the National Multiple Sclerosis Society, its participating chapters, and the study participants for their support and assistance with this research. Appreciation is extended to Dr. Ronald Edwards of the United States Equal Employment Opportunity Commission for his technical guidance in reviewing these findings

References

Antao

, Shaw

, Ollson

, Reen

, Tu

, Bossers

, & Cooper

(2013). Chronic pain in episodic illness and its influence on work occupations. Work, 44, 11–36.

Berkowitz

, Downes

, Ericsson

, & Patullo

(2014). The latest developments on coverage and reasonable accommodation under the amended ADA. Employee Relations Journal, 40(2), 3–25.

Bishop

, & Jones

(1993). Implementing the Americans with Disabilities Act of 1990: Assessing the variables of success. Public Administration Review, 53(2), 121–128.

Bureau of Labor Statistics (2014). Women in the labor force: A databook (Report 1049). Retrieved from http://www.bls.gov/opub/reports/cps/womenlaborforce_2013.pdf

Chapin

(2012). The role of participation of people with disabilities in the new American workplace. In Toriello

P. J.

, Bishop

M. L.

, & Rumrill

P. D.

(Eds.), New directions in rehabilitation counseling: Creative responses to professional, clinical, and educational challenges (pp. 236–254). Linn Creek, MO: Aspen Professional Services.

Cichy

K. E.

, Li

, McMahon

B. T.

, & Rumrill

P. D.

(in press). The workplace discrimination experiences of older workers with disabilities: Results from the National EEOC ADA Research Project. Journal of Vocational Rehabilitation.

Dorrian

(2014). ADAAA at five: Intent largely realized, but interpretation still evolving. HR Focus. Washington, DC: Bloomberg BNA.

Equal Employment Opportunity Commission (2014). Fact sheet on the EEOC’s final regulations implementing the ADA. Washington, DC: Author.

Essex

(2002). Americans with Disabilities: Are they losing ground?The Clearinghouse, 75, 151–153.

10.

Gostin

(2003). At Law: The judicial dismantling of the Americans with Disabilities Act. The Hastings Center Report, 33(2), 9–11.

11.

Job Accommodation Network (2014). The ADA Amendments of 2008. Morgantown, WV: University of West Virginia.

12.

Julian

, Vella

, Vollmer

, Hadjimichael

, & Mohr

(2008). Employment in multiple sclerosis: Exiting and entering the work force. Journal of Neurology, 255, 1354–1360.

13.

Kruse

, & Hale

(2003). Disability and employment: Symposium introduction. Industrial Relations, 42(1), 1–10.

14.

Lee

(2001). The implications of ADA litigation for employers: A review of federal appellate court decisions. Human Resource Management, 40(1), 35–50.

15.

McMahon

B. T.

, Edwards

, Rumrill

P. D.

, & Hursh

(2005). An overview of the National EEOC ADA Research Project. Work, 25, 1–7.

16.

Mello

(2001). The rights of employees with disabilities: Supreme Court interpretations of the Americans with Disabilities Act and the implications for human resource management. Employee Responsibilities and Rights Journal, 13, 175–190.

17.

Mezey

(2005), Disabling interpretations: The Americans with Disabilities Act in federal court. Pittsburgh, PA: University of Pittsburgh Press.

18.

Moore

, Harding

, Clarkson

, Pickersgill

, Wardle

, & Robertson

(2013). Demographic and clinical factors associated with changes in employment in multiple sclerosis. Multiple Sclerosis Journal, 19, 1647–1654.

19.

Neath

, Roessler

, McMahon

, & Rumrill

(2007). Patterns in perceived employment discrimination for adults with multiple sclerosis. Work: A Journal of Prevention, Assessment, and Rehabilitation, 29, 255–274.

20.

T. H.

, & Feldman

D. C.

(2010). The relationships of age with job attitudes: A meta-analysis. Personnel Psychology, 63(3), 677–718.

21.

Office of Federal Compliance Contract Programs (2014). The ADA Amendments of 2008: Frequently asked questions. Washington, DC: Department of Labor. www.dol.gov/ofccp/regs/compliance/faqs/ADAfaqs.htm, 7/29-2014

22.

Potter

S. J.

, & Banyard

V. L.

(2011). The victimization experiences of women in the workforce: Moving beyond single categories of work or violence. Violence & Victims, 26(4), 513–532.

23.

Roessler

R. T.

, & Sumner

(1997). Employer opinions about accommodating employees with chronic illnesses. Journal of Applied Rehabilitation Counseling, 28(3), 29–34.

24.

Rothstein

(2014). Forty years of disability policy in legal education and the legal profession: What has happened and what are the new issues?Journal of Gender, Social Policy, and Law, 22(3), 519–650.

25.

Rumrill

, Roessler

, McMahon

, & Fitzgerald

(2005). Multiple sclerosis and workplace discrimination: The National EEOC ADA Research Project. Journal of Vocational Rehabilitation, 23, 179–188.

26.

Strauser

(2013), Career development, employment, and disability in rehabilitation. New York: Springer Publishing Company.

27.

Taneja

, Pryor

M. G.

, & Oyler

(2012). Empowerment and gender equality: The retention and promotion of women in the workforce. Journal of Business Diversity, 12(3), 43–53.

28.

Vickers

(2012). Antinarratives to inform health care research: Exploring workplace illness disclosure for people withmultiple sclerosis (MS). Journal of Health and Human Services Administration, 35, 170–206.

29.

West

, & Cardy

(1997). Accommodating claims of disability: The potential impact of abuses. Human Resource Management Review, 7, 233–246.

30.

Wickert

, Dresden

, & Rumrill

(2013), The sandwich generations guide to eldercare. New York: Demos Medical Publishers.