Abstract
Keywords
Introduction and background
In 1995, Anderson, Kazmierski, and Cronin (1995) published this case study which captures both the motives for and issues addressed in this article:
Jeff is a 20 year-old college student who was originally diagnosed as having a significant language disability at the age of 4. In the third grade, his Full Scale IQ on the Wechsler Intelligence
Scale for Children-Revised was 130, above the 95th percentile. He showed significant deficits in numerous verbal areas and ... performance areas. His academic profile indicated a moderate reading disability and a severe written expression problem, coupled with superior math skills. He attended a private school for students with learning disabilities and is currently enrolled in a small college that provides an exemplary program of support services. He majors in math and minors in physical education and is excelling in both areas.
Jeff wishes to pursue a dual career as a high school math teacher and basketball coach ... . He must first pass the California Achievement Test to be admitted into a teacher certification program. All three parts must be passed at the ... 75th percentile or higher. Jeff passed the math test the first time at the 99th percentile but even after three attempts his highest scores in spelling and language were 50 and 45 percentile respectively. His application for admission into a teacher training certification programs was denied.
Because this is not an employment situation, Title I of the ADA (employment provisions) does not apply. However, Title II of ADA does: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity” (42 U.S.C. §12132). A “qualified individual with a disability” means one who, with or without modifications ... meets the essential eligibility requirements for the receipt of services or participation in programs or activities (42 U.S.C. §12131(2)). Jeff has a disability as that term is defined under the ADA. Whether he is qualified hinges on whether he meets the essential eligibility requirements for participation in the teacher education program even though he is unable to score high as required in the spelling and language categories of the CAT. The issues herein are twofold: qualification standards and employment related testing (p. 203-204).
Precisely 9,480 allegations have been filed by individuals with learning disabilities (LD) with the Equal Employment Opportunity Commission (EEOC) under Title I of the Americans with Disabilities Act (ADA) since its enactment in July 1992. In spite of this, few studies have been conducted to ascertain the conditions under which these allegations are likely to arise (Conway 2009; Lindsay 2011). By analyzing the details of these allegations, we offer crucial insights into workplace discrimination as a barrier to labor force participation. In this article, LD is not defined according to the language of the 1997 IDEA Amendments (PL 105-17), but rather as defined by the EEOC: “ ... a wide variety of neurological problems that have an impact on how a person organizes the visual, auditory, or other sensory information derived from the environment. Includes dyslexia and aphasia” (8, p. 4).
Purpose, research questions, and hypotheses
The purpose of this article is to discuss the characteristics of Charging Parties and of Employers to further our understanding of the “Issues” involved in allegations of discrimination derived from Charging Parties with LD when compared to other disability groups. First it is important to clarify what the Equal Employment Opportunity Commission (EEOC, the federal enforcement agency for the ADA) means when using the term “Issue.” Specifically, “Issues” consist of 41 different personnel actions which, if administered unlawfully, might constitute discrimination. Most people understand at face value what is meant by Issues such as hiring, firing, equitable pay, benefits administration, or discipline. But in this study we are mindful that there are 41 types of personnel actions that may involve discrimination. In simple terms ADA Title I requires that all personnel actions be unrelated to the existence or consequences of disability.
This understanding is sufficient to allow the reader to benefit from the balance of this article. This study is focused squarely upon the nature of the discrimination complaint as expressed in the original written allegation which results in an investigation by the EEOC. In particular, this article differentiates those Issues that are significantly more or less prevalent for LD vs. a general disability population. As such, we are observing Issues within disability-world: What makes workplace discrimination unique for persons with LD?
The following question with hypothesis stated in the null form has directed this study: Research Question: Do the discrimination Issues cited in the allegations filed by Charging Parties with LD differ from those filed by Charging Parties with other disabilities? Hypothesis: There are no differences between the types of discrimination Issues involved in allegations filed by Charging Parties with LD vs. Charging Parties with other disabilities.
Research methodology
Data collection
The variables used in this study and the manner in which these data were collected was recently described by McMahon and McMahon (2016) in their overview of the National EEOC ADA Research Project (NEARP). Inclusion and exclusion criteria are also explained. Application of these criteria resulted in a study dataset of 9,480 allegations of employment discrimination pertaining to individuals with LD; the target group. The comparison group consisted of the aggregation of all known impairment groups including physical, behavioral, or sensory disabilities but excluding neurological conditions such as autism, intellectual disabilities, brain impairment, paralysis, cerebral palsy, repetitive strain injuries, or other non-specific neurological disorders. The comparison group is subsequently referred to as “general disability” (GENDIS) and includes 313,480 allegations.
Study variables
This study concerns itself with one independent, nominal variable measured in units of frequency with one Issue per allegation. In EEOC parlance, this variable is referred to as an “Issue.” An Issue describes the nature of the unlawful personnel action alleged by the Charging Party (CP). There are 41 unique Issues which have some level of allegation activity ranging from 8 to 177,177 in the overall EEOC complaint database. In the order of frequency found in the NEARP Codebook (McMahon 2012), these 41 Issues include Discharge, Failure to Accommodate, Terms/Conditions of Employment, Disability Harassment, Hiring, Discipline, Constructive Discharge, Layoff, Promotion, Other Issues, Wages, Demotion, Suspension, Reinstatement, Job Assignment, General Benefits, Intimidation, Insurance Benefits, Recall, Training, Union Representation, Involuntary Retirement, Unfavorable References, Job Classification, Pension Benefits, Qualification Standards, Referral, Seniority, Testing, Segregated Unions, Posting Notices, Severance Pay, Tenure, Maternity Leave, Waiver of ADEA Rights, Early Retirement Incentive, Segregated Facilities, Apprenticeship, Record Keeping, Advertising, and Segregated Local Unions. It is worth noting that the top 5 Issues on this list account for 76% of all allegation activity. Four of these 5 have been thoroughly documented in special issues of peer-reviewed journals devoted to each (Hurley 2010; McMahon et al. 2006; McMahon et al. 2008; Roessler et al. 2010; Shaw et al. 2012; West 2008).
Analyses
In order to test the hypothesis, analyses were performed using Minitab 17 (2015). Non-parametric tests of proportion were used to examine the relationships between LD and GENDIS allegations in terms of frequencies expected and observed. This test statistic does not require independence of study data (some Charging Parties file more than one allegation), equivalent group sizes, or normality of distribution assumptions. Results of these analyses provided Z scores (distributed generally as X2) and 99% confidence intervals. In addition, multiple analyses of the same data were required. To minimize the likelihood of Type 1 errors, the significance (α) level was set at 0.01.
Findings and discussion
Table 1 illustrates the relative prevalence of the top 11 Issues for both LD and GENDIS groups. The top 11 Issues (there are 41 possibilities) capture 91.2% of all allegations for LD and 89.1% for GENDIS. This important finding suggests that effective ADA training regarding actual ADA implementation may be accomplished by limiting focus to a much smaller number of potential training issues than the universe of 41.
These are the “hot button” personnel activities in which Employers are most likely to make mistakes leading to actual complaint activity. The relative rankings for LD and GENDIS are identical for the top 6 Issues and vary by only 1 ranking position for places 7 through 10. Training is a top 10 Issue on the LD list only, and Layoff is a top 10 Issue on the GENDIS list only. With respect to the relative prevalence of “hot button” specific Issues, it might be said that LD presents a typical impairment profile.
The results of analyses using non-parametric tests are provided in Table 2, which provides information regarding statistically significant Issues only in order of Z-score value.
LD discrimination issues of greater prevalence than GENDIS
In a preliminary analysis of similar data involving the period 1992 to 2005, Conway (2009) found 5 statistically significant “more LD” Issues in this order of prevalence: Assignment, Testing, Harassment, Training, and Discipline. The current findings (data involving 1992 to 2011) involve seven “more LD” Issues and show the following departures from (and one similarity to) Conway (Hurley 2010): Harassment moves from rank of 3rd to 1st, and its “sister Issue” of Intimidation joins the “more LD” Training and Discipline move up to 3rd and 4th position rankings respectively. Testing remains the same in 2nd place rank. Assignment drops from the “more LD” number one position to a place of non-significance. Constructive Discharge and Promotion move from a places of non-significance to sixth and seventh respectively on the “more LD” list.
Furthermore, 6 of the 7 “more LD Issues” are matters of relatively low prevalence in either the LD or the GENDIS groups, ranging from 0.1% to 5.8% of their group size. This underscores the uniqueness of workplace discrimination Issues for LD. As a practical matter, Constructive Discharge is often grouped with Discharge, and Intimidation is grouped with Harassment in specific studies of these phenomena. With respect to Testing, Training, Discipline and Promotion, it is possible that Employers are less prepared to identify and adequately address the specificities intrinsic to LD. This may be due in part to a lack of knowledge regarding LD and its idiosyncratic manifestations.
The high levels of disability harassment endured by CPs with LD are particularly noteworthy. The increase in relative value of the proportion from GENDIS to LD is a matter of 35.7%. Conway (2009) suggested that perhaps disclosure (or exposure) of LD might be the problem. Even if the diagnosis remained hidden, its behavioral manifestations may not (see the case study which leads the article, a matter of both the “testing” and “qualification standard” Issues). Harassment consists of bothering, tormenting, troubling, ridiculing or coercing a person because of his or her disability. Hence, it is possible that both the higher proportion of allegations filed by younger workers with LD as well as the over-representation of harassment allegations may be due to the immaturity of equally young co-workers. Not coincidentally, Shaw discovered that the highest levels of disability harassment occur among those impairment groups whose comprehension and/or communication skills are compromised; i.e., intellectually disabled, brain injured, or hearing impaired persons (Shaw et al. 2012). It is a small leap from these to LD in terms of both functional limitations and prevalence of this insidious form of discrimination.
Another Issue deserving of more attention is that of Constructive Discharge. Roessler et al. (2010) performed an outstanding contribution to NEARP literature when he detailed the distinction between Discharge (you’re fired!) and the nuanced approach of Constructive Discharge which occurs when an employee is forced to resign because of the Employer’s discriminatory restrictions, constraints, or intolerable working conditions. An example would the deliberate assignment of an employee to unattractive working conditions, duties, or hours of work for special circumstances that are contrived in an effort to encourage resignation. Such unlawful acts often involve a conspiracy of sorts. Roessler et al. (2010) discovered that “ ... people with more highly stigmatized disabilities were more likely to allege discrimination regarding constructive discharge, suggesting that adverse treatment may have caused them to exit employment (p. 407).
Looking closer at the “more LD” Issues, all 7 can be perceived as punitive and exclusionary in their effects. Disability harassment and intimidation are 14.6% of LD allegations. Constructive discharge (a furtive type of firing) and discipline constitute 9% of LD allegations. Failure to provide access to promotions, training opportunities, or barrier free testing opportunities constitutes 4% of LD allegations. Although there is considerable variability in effect sizes (Z-scores), each of these experiences create an affront to one’s sense of competence and confidence in employment.
Because of these psychological consequences, the availability of Employee Assistance Programs in the workplace might be a useful job placement consideration. They also suggest that additional precautions regarding potential workplace violence might be in order (Beech 2006; Kiely & Pankhurst 1998).
It can also be very helpful to educate LD workers with respect to the nuances of constructive discharge (Roessler et al. 2010), disability harassment and intimidation (Shaw et al. 2012). These Issues are complex in both a legal and an enforcement sense because they are far more personal and inflammatory than other personnel actions. Finally, Employers have a higher risk ratio to receive charges of discrimination from persons with LD when matters of promotion, training, and employment testing are involved. Providers of technical assistance and training (such as the ADA National Network and the Job Accommodations Network) might find Employers more receptive to offers of guidance when HR programs of this nature are expanding.
LD discrimination issues of lower prevalence than GENDIS
Conversely, there is a positive side to the LD discrimination profile. Allegation activity is sometimes markedly less pronounced when derived from LD CPs where allegation levels are less than GENDIS. In particular, discriminatory practices in insurance, pension, and other employment benefits are less prevalent - only 0.9% of LD allegations. LD complaint activity with respect to layoffs, recall from layoff, or involuntary retirement are also suppressed – only 1.3% of LD allegations. Finally, the most prevalent discrimination Issues in general are moderately suppressed: failure to apply reasonable accommodation (17.4%) and overt, unlawful discharge (30.2%). This would suggest that when it comes to LD employees, Employers in general are not unduly baffled by accommodation challenges, nor are they experiencing inordinate performance problems.
Finally, it is worth noting that every top 11 Issue except one (testing) involves currently employed LD CPs. Testing is the only hiring-related Issue which is significantly higher for allegations derived from LD persons. One cannot help but suspect that this may be related to the reluctance of many LD applicants to disclose their condition or related accommodation needs, particularly in the job acquisition phase (Madaus et al. 2008). In conclusion, for purposes of career counseling, academic advisement, empowerment, or mentoring, individuals with LD should be provided with a level of ADA literacy training which will be rendered more efficient and effective if it focuses upon those Issues for which they are at greater risk: Disability Harassment and Intimidation, Employment Testing, Access to Training and Promotion, Constructive Discharge and Discipline.
Conflict of interest
The authors have no conflict of interest to report.