Workplace discrimination allegations and outcomes involving charging parties with multiple sclerosis and other disabilities under Title I of the Americans with Disabilities Act Amendments Act: A causal comparative analysis

Abstract

BACKGROUND:

The purpose of this study was to investigate the patterns in allegations of workplace discrimination by individuals with multiple sclerosis (MS).

OBJECTIVE:

To describe the discrimination, both actual and perceived, that has occurred against individuals with MS in comparison to a group of individuals with other disabilities (GENDIS) through analysis of the United States Equal Employment Opportunity Commission (EEOC) Integrated Mission System (IMS) database.

METHODS:

An ex post facto, causal-comparative quantitative design was used to examine Americans with Disabilities Act Amendments Act (ADAAA) Title I complaints received by the EEOC from people with MS from 2009 through 2016 (n = 4,000) in comparison to the GENDIS group over the same time period (n = 139,728).

RESULTS:

The MS group was less likely to allege discrimination regarding discharge but more likely to allege discrimination regarding reasonable accommodation, constructive discharge, discipline, insurance benefits, and demotion. Charging parties with MS were more likely to be female, younger, and Caucasian and less likely to identify as African American, Hispanic/Mexican, or Asian. The EEOC was more likely to evaluate allegations by adults with MS as having merit than those filed by the GENDIS group. Implications for vocational rehabilitation practice include the need for consultation regarding recognition of on-the-job discrimination and procedures for filing allegations consistent with EEOC guidelines; greater use of physical and occupational therapy; and development of cognitive support technology strategies to aid in job performance.

Keywords

Multiple sclerosis workplace discrimination

1. Introduction

The phenomenon of workplace discrimination is a recurring theme in research examining the low rate of labor force participation among Americans with multiple sclerosis (MS). A recent survey revealed that 98% of people with MS have employment histories and more than 80 percent were still working at the time of diagnosis (Roessler, Rumrill, Li, & Leslie, 2015), yet the current employment rate for people with MS in the United States and abroad languishes at around 40 percent (Roessler et al., 2015; Schiavolin et al., 2013). In a 2003 survey of 1,310 adults with MS from 10 states and Washington, DC, Roessler et al. (2003) found many respondents citing unfair treatment in the workplace on the part of employers and co-workers as a major job retention barrier. Two of the four most prominent themes of dissatisfaction with the employment situation facing people with MS included implementation and enforcement of the Americans with Disabilities Act (ADA) and employers’ unwillingness to provide reasonable accommodations and other considerations. More recently, Rumrill et al. (2015) found workplace discrimination and the implementation of the ADA to be high-priority concerns among a sample of more than 1,900 Americans with MS.

Between 1999 and 2013, the authors of this article offered employment assistance and career counseling services to more than 2,800 adults with MS using an electronic telehealth service delivery platform. Known as the Kent State University MS Employment Assistance Service, this program was staffed by nationally Certified Rehabilitation Counselors who provided a wide range of vocational services via telephone and the Internet. More than two-thirds (70.3%) of inquiries to the program from employed people with MS sought assistance regarding workplace accommodations, disclosure of disability, and/or strategies for redressing workplace discrimination. Doogan and Playford (2014) indicated that more than half of their respondents with MS had experienced some form of on-the-job discrimination. Nissen and Rumrill (2016) went so far as to describe workplace discrimination as the unifying feature of the employment experience among Americans with MS.

Indeed, workplace discrimination is well established as a major problem facing people with MS as they attempt to continue their careers. Less is known about the process by which people with MS redress perceived employment discrimination under the ADA and the ADA Amendments Act (ADAAA) within the United States Equal Employment Opportunity Commission’s (EEOC’s) investigatory process. It is also unclear how the workplace discrimination experiences of Americans with MS compare to those of people with other disabilities (Nissen & Rumrill, 2016).

The National EEOC ADA Research Project (NEARP) is an exhaustive data-mining effort that relies upon the Integrated Mission System (IMS) database used by the EEOC to track investigations of workplace discrimination. NEARP investigators seek to develop disability or industry-specific profiles of employment discrimination, explore the contentious issues involved in workplace discrimination, document the interface of disability with other demographics, evaluate extant theories of stigma, and predict EEOC investigatory outcomes (McMahon et al., 2005).

As reported by McMahon and McMahon (2016), the IMS database is used as a management tool to monitor workflow, performance, trends, and outcomes for EEOC field office investigators. The NEARP team was the first to utilize this database for research purposes under the scrutiny of multiple university IRBs and the EEOC Office of Research, Information, and Planning. Since its inception, NEARP has obtained data on 823,536 closed allegations spanning from the effective date of ADA Title I on July 26, 1992, through December 31, 2016. This study sought, as part of NEARP, to use the IMS database to examine patterns in the discrimination allegations made by individuals with MS from the initial effectuation date of the ADAAA on January 1, 2009, through the end of Calendar Year 2016.

1.1 Rationale for and purpose of the present study

Although people with MS frequently cite workplace discrimination as a major concern, the specific types of allegations that people with MS file with the EEOC under Title I of the ADAAA need to be better understood. So, too, do the outcomes or resolutions of the EEOC’s investigatory process in allegations filed by people with MS. Moreover, understanding the unique workplace discrimination experiences of Americans with MS in comparison to those experiences of Americans with other disabilities will aid rehabilitation professionals in developing tailored interventions to reduce the incidence and impact of discriminatory conduct against this experienced-yet-often-disenfranchised group of workers. Therefore, the purpose of this study was to increase the body of knowledge regarding the workplace discrimination experiences of individuals with MS by exploring their discrimination allegations under the ADAAA as part of the NEARP. The IMS database enabled the researchers to examine the types of discrimination that were alleged to have occurred, the characteristics of the individuals experiencing the discrimination (e.g., age, gender, race/ethnicity), and whether the discrimination was deemed to have legally taken place (merit resolution) or was deemed to be a case of perceived discrimination that did not meet the legal standard (non-merit resolution). Once profiled in descriptive terms, the workplace discrimination experiences of individuals with MS were compared to the experiences of individuals with other disabilities in the IMS database.

1.2 Research questions

This investigation addressed the following research questions:

What are the patterns in allegations of workplace discrimination filed by Americans with MS in terms of the types of allegations filed, characteristics of charging parties, and case resolutions or outcomes of the EEOC’s investigatory process?

Do patterns in workplace discrimination allegations filed by Americans with MS differ from those in allegations filed by Americans with other disabilities in terms of the types of discrimination that is alleged to have occurred?

Do patterns in workplace discrimination allegations filed by Americans with MS differ from those in allegations filed by Americans with other disabilities in terms of charging party characteristics?

Do patterns in workplace discrimination allegations filed by Americans with MS differ from those in allegations filed by Americans with other disabilities in terms of the rate of merit case resolutions?

2. Method

The research team implemented an ex post facto, causal-comparative quantitative design (Rumrill & Bellini, 2018) that included both descriptive and inferential analyses. The over-arching purpose of the study was to gain a thorough understanding of the workplace discrimination experiences of Americans with MS.

2.1 Participants

To answer the research questions, researchers utilized the entire population of ADAAA Title I complaints received by the EEOC from people with MS from 2009 through 2016 (n = 4,000). The comparison group, known hereafter as GENDIS (n = 139,728), included a variety of physical, neurological, and sensory impairments. Specifically, the GENDIS group was comprised of the NEARP codebook categories of allergies (n = 1,799), asthma (n = 4,951), back impairment (n = 27,925), chemical sensitivities (n = 794), HIV/AIDS (n = 2,505), cancer (n = 10,849), diabetes (n = 15,046), disfigurement (n = 588), nonparalytic orthopedic impairment (n = 27,234), gastrointestinal impairment (n = 4,374), heart/cardiovascular impairment (n = 11,058), brain/head injury (n = 3,608), cumulative trauma disorder (n = 408), epilepsy (n = 4,278), paralysis (n = 971), other neurological impairment (i.e., Parkinson’s Disease, hydrocephalus, narcolepsy, sleep apnea, and muscular dystrophy; n = 11,297), cystic fibrosis (n = 115), tuberculosis (n = 79), other respiratory or pulmonary impairment (i.e., emphysema and acute bronchitis; n = 3,801), speech impairment (n = 1,418), and vision impairment (n = 6,630).

2.2 Instrument and variables

The primary unit of measure in this study was an allegation of employment discrimination filed by a person with MS or another disability (GENDIS) with the EEOC since the effectuation of the ADAAA on January 1, 2009. Each allegation was treated as one distinct data point in the IMS system; if one individual filed more than one allegation with the EEOC under Title I of the ADAAA, each allegation was investigated and adjudicated separately. The number of allegations is greater than the number of charging parties in the IMS database because many charging parties file more than one allegation. In EEOC parlance, allegations are referred to as ‘Issues.’ An Issue describes the nature of the unlawful personnel action alleged by the Charging Party (CP). There are 41 unique Issues that have some level of allegation activity ranging in frequency from 10 to 260,572 in the overall EEOC ADAAA Title I complaint database.

In order of frequency found in the NEARP Codebook (McMahon & McMahon, 2016), 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 five issues on this list account for 76% of all allegation activity. Four of these five issues have been thoroughly documented in special issues of peer-reviewed journals devoted to each (Hurley, 2010; McMahon, West, & Hurley, 2006; McMahon, Hurley, West, Chan, Roessler, & Rumrill, 2008; Roessler, Hurley, & McMahon, 2010; Shaw, Chan, & McMahon, 2012; West, 2008).

2.2.1 Characteristics of charging parties

As stated above, the characteristics of CPs include gender (female/male), race/ethnicity, and disability type. Disability type (i.e., MS or GENDIS) served as the two-level independent or grouping variable for all inferential comparisons in this study.

2.2.2 Resolution

This refers to the final EEOC determination as to whether or not discrimination actually occurred. For purposes of this study, Resolutions were dichotomously 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 not occur).

2.3 Procedure

Under an Interagency Personnel Agreement (IPA) involving the EEOC, Professor Brian T. McMahon, and Virginia Commonwealth University, a nationwide project was begun in 2003 to utilize the IMS for research purposes in order to provide evidence-based answers to the questions regarding discrimination allegations under the ADA. Dr. McMahon and his colleagues proceeded to extract and refine the IMS database in order to retrieve, verify, and examine closed ADA allegations.

To conduct this investigation, the researchers, via NEARP, secured permission to access the IMS database with proper protections for the CPs (applicants or employees) and Respondents (employers). Information that served as the basis for this study pertained to the types and numbers of complaints of employment discrimination under Title I of the ADA filed by individuals with MS and the GENDIS comparison group, as well as the manner in which the EEOC resolved those complaints. From approximately three million records involving all allegations of employment discrimination, a study dataset was extracted to include only those variables related to the research questions regarding the comparability of the two disability categories of MS and GENDIS. To protect the identity of Charging Parties and Respondents, the extraction process adhered to the following specific guidelines:

The unit of study was an allegation; it was not an individual CP, nor an individual respondent. A single CP 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 were included in the study dataset.

To maximize confidentiality, all identifying information regarding CPs and Respondents were purged except for age, race/ethnicity, gender, and disability status of CPs.

Study data were strictly limited to allegations brought under Title I of the ADAAA. 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 also were 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 had been closed by the EEOC during the study period, defined as January 1, 2009 (first effective date of ADAAA) through December 31, 2016, 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).

Application of these inclusion and exclusion criteria resulted in a study dataset of exactly 4,000 allegations of employment discrimination pertaining to the target group, individuals with MS. The previously described comparison group, GENDIS, included 139,728 allegations.

2.4 Statistical analysis

Data were imported into the Statistical Package for the Social Sciences (SPSS) version 21 for all analyses. Descriptive statistics such as means, standard deviations, ranges, frequencies, and percentages were used to illustrate the distribution of scores within and between the two groups on all independent and dependent variables. For each categorical dependent variable (i.e., issues, gender, race/ethnicity, and resolution), a Pearson chi-square test was first utilized to test the homogeneity of proportions across the disability groups. If the Pearson chi-square test indicated the existence of significant proportional differences, standard residuals greater than an absolute value of 2.0 were used to specify those statistically significant differences. This test statistic does not require independence of study data (some Charging Parties filed 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. For the continuous dependent variable of age, a t-test for independent samples was used to compare means between the two groups. To minimize the likelihood of Type 1 errors, the significance levels were set at.01 for all inferential analyses (i.e., parametric and non-parametric).

3. Results

Findings are presented in both descriptive and inferential terms to illustrate the distribution of scores across the two referent groups. As noted in the Method section, the researchers applied primarily nonparametric statistics to answer the research questions.

3.1 Types of alleged discrimination

The first analysis explored the specific types of circumstances under which the alleged discriminatory actions occurred (also known as issues) as reported by people with MS, in comparison to the issues alleged by members of the GENDIS group. Table 1 presents a comparison of the issues in EEOC Title I allegations for both groups. The * symbol denotes statistically significant differences between the two groups in the proportions of allegation type.

Table 1
Issues Involved in ADA Title I Allegations: 2009-2016

Charging Party Issue	MS (n = 4,000)		GENDIS (n = 139,728)
Charging Party Issue	%	n	%	n
Discharge *	28.4	1,138	30.7	42,943
Reasonable Accommodation *	24.9	994	22.9	31,949
Terms/Conditions	10.5	420	10.2	14,222
Harassment	8.2	326	8.8	12,245
Discipline *	6.9	277	6.0	8,335
Constructive Discharge *	2.8	113	2.3	3,157
Assignment	2.4	97	2.3	3,240
Hiring	2.4	94	2.7	3,705
Demotion *	1.6	65	1.2	1,672
Promotion	1.5	60	1.2	1,734
Suspension *	1.2	49	1.8	2,571
Wages	1.2	47	1.3	1,854
Other	1.1	43	1.1	1,594
Intimidation *	1.0	40	1.4	2,022
Benefits Insurance *	0.9	35	0.6	798
Layoff *	0.8	32	1.2	1,705
Benefits	0.6	25	0.8	1,118
Posting Notices	0.6	23	0.4	578
Training	0.4	17	0.4	549
Prohibited Medical Inquiry	0.4	16	0.4	594
Reinstatement	0.4	15	0.5	745
Union Representation	0.4	14	0.2	325
Involuntary Retirement	0.2	9	0.2	265
Recall	0.2	9	0.2	226
Exclusion/Segregated Unions	0.2	8	0.2	345
Benefits: Pension	0.2	7	0.2	212
Job Classification	0.2	6	0.2	228
Seniority	0.1	5	0.1	112
Record Keeping Violation	0.1	4	0.1	74
Referral	0.1	3	<0.1	69
Severance Pay	0.1	3	<0.1	61
References Unfavorable	0.1	2	0.1	156
Qualification Standards	0.1	2	0.1	93
Testing	<0.1	1	0.1	118
Waiver of ADEA Suit Rights	<0.1	1	<0.1	20
Tenure	0.0	0	<0.1	34
Early Retirement Incentive	0.0	0	<0.1	19
Apprenticeship	0.0	0	<0.1	13
Maternity Leave	0.0	0	<0.1	13
Segregated Facilities	0.0	0	<0.1	10
Advertising	0.0	0	<0.1	3
Segregated Union Locals	0.0	0	<0.1	2

Note. ^*=p < 0.001.

As can be seen in (Table 1), the most common allegations filed by people with MS during the 2009-2016 retrospective observation period involved discharge (28.4%), reasonable accommodation (24.9%), terms and conditions (10.5%), harassment (8.2%), discipline (6.9%), constructive discharge (2.8%), assignment (2.4%), hiring (2.4%), demotion (1.6%), and promotion (1.5%). Readers will note that the five most common types of issues filed by people with MS (n = 3,155) comprised 78.9 percent of the total number of allegations filed by that group. The most common allegations in the GENDIS group involved discharge (30.7%), reasonable accommodation (22.9%), terms and conditions (10.2%), harassment (8.8%), discipline (6.0%), hiring (2.7%), assignment (2.3%), constructive discharge (2.3%), suspension (1.8%), and intimidation (1.4%). Similarly, the five most common types of issues in the GENDIS group (n = 109,694) comprised 78.5 percent of that group’s total allegations.

A chi-square analysis revealed statistically significant differences in the pattern of issues alleged by people with MS in comparison to the pattern of issues alleged by the GENDIS group (X² (42, N = 143,728) = 82.881, p < 0.001). Specifically, people with MS were more likely than the GENDIS group to allege discrimination related to reasonable accommodation, discipline, constructive discharge, demotion, and benefits-insurance. People with MS were less likely than the GENDIS group to allege discrimination related to discharge, suspension, and intimidation.

3.2 Characteristics of charging parties

Do patterns in workplace discrimination allegations filed by Americans with MS differ from those in allegations filed by Americans with other disabilities in terms of charging party characteristics?

The second set of analyses concerned the demographic characteristics of ADA Title I CPs who have MS and how they differ from the demographic characteristics of the GENDIS comparison group. The three demographic characteristics considered in this investigation were age, gender, and race/ethnicity. The mean age for charging parties with MS was 44.57 years (SD = 10.163), whereas the mean age for charging parties in the GENDIS group was 47.73 years (SD = 11.419). A t-test revealed that charging parties with MS were, on average, significantly younger than charging parties in the GENDIS group (t (131,893) = 59.717, p < 0.001).

With regard to gender, charging parties with MS were 64.5 percent female and 35.5 percent male, whereas the GENDIS group was composed of 55.5 percent females and 44.5 percent males. A chi-square analysis revealed that the MS group had a significantly higher proportion of females than did the GENDIS comparison group (X² (1, N = 134,024) = 119.032, p < 0.001).

As can be seen in (Table 2), the racial/ethnic profile of the MS group was 69.6 percent Caucasian, 26.0 percent African American, 2.1 percent Native American/Alaskan Native, 1.8 percent Hispanic/Mexican, and 0.5 percent Asian. The GENDIS group was 61.2 percent Caucasian, 31.1 percent African American, 3.9 percent Hispanic/Mexican, 2.0 percent Native American/Alaskan Native, 1.7 percent Asian, and less than 0.1 percent Other. A chi-square analysis revealed that the MS group had proportionally more individuals who identified as Caucasian and as Other, and proportionally fewer individuals who identified as African American, Hispanic/Mexican and Asian than did the GENDIS comparison group (X² (5, N = 123.539) = 135.118, p < 0.001).

Table 2
Charging Party Race/Ethnicity Involved in ADA Title I Allegations: 2009-2016

Race	MS (n = 4,000)		GENDIS (n = 120,079)
Race	%	n	%	n
Caucasian *	69.6	2,407	58.7	73,482
African American *	26.0	901	24.1	37,342
Nat. Amer./Alaska Native	2.1	72	2.0	2,444
Hispanic *	1.8	61	3.9	4,707
Asian *	0.5	19	1.7	2,083
Other	0.0	0	<0.1	21

Note. ^*=p < 0.001.

3.3 Rate of merit case resolutions

The final comparison in this study involved the legal outcomes or Resolutions of the EEOC investigatory process with respect to allegations brought by Charging Parties with MS and by the GENDIS group. For purposes of comparison, the research team collapsed all case resolutions into two categories, merit resolutions, and non-merit resolutions. Merit resolutions include withdrawal with benefits, settlement with benefits, successful conciliation, and conciliation failure. Non–merit resolutions include no cause and administrative closures. Less than one-third (27.5%, n = 1,101) of allegations by people with MS were resolved with merit and 72.5 percent (n = 2,899) were non-merit resolutions. For the GENDIS group, the proportions of merit and non-merit resolutions were 25.4 percent (n = 35,437) and 74.6 percent (n = 104,291) respectively. A chi-square analysis revealed that people with MS were significantly more likely than the GENDIS group to have their allegations result in a merit-based case resolution (X² (1, N = 143,728)=9.601, p < 0.01).

4. Discussion

4.1 Rate of merit case resolutions

Although a high rate of non-merit decisions is characteristic of both sub-samples (approximately three-fourths of the allegations), people with MS prevailed significantly more often in allegations made under Title I of the ADAAA than did those with other disabilities. This merit resolution difference may be attributable, in part, to the fact that MS is considered a “presumptive disability” under the ADAAA, which negates any argument that the employee in question is not a person with a disability and, therefore, not eligible for protections under the Act (Dorrian, 2014). Denial of coverage for those in the GENDIS group, therefore, may occur more frequently in that presence of a disability may be arguable, in which case a non-merit resolution could ensue.

In addition, adults with MS represent a group of employees who are well educated and therefore more likely to work in higher level jobs. As a result, they have the skills to recognize discriminatory practices and document specific instances consistent with EEOC guidelines. Even so, it is surprising that employees with MS have maintained a higher level of merit closures given that they report experiencing types of discrimination that are subtle and difficult to substantiate (e.g., discipline, constructive discharge, demotion).

On the other hand, several plausible reasons exist for the low rates of merit resolutions in both the MS and GENDIS groups. In the case of many disabilities and particularly MS, individuals must cope with multiple and varied symptoms coupled with the uncertainty regarding their progression and day-to-day variation. Performing essential functions of a position becomes increasingly difficult given the range of physical, cognitive, and psychological symptoms involved, which affects the employee’s status as “otherwise qualified” for the position. In some cases, employers may have no recourse other than to render negative decisions regarding the person’s continued employment. In other instances, low merit resolution rates may stem from the fact that some adults with disabilities lack the knowledge and consultation needed to a) clearly describe examples of employment discrimination, b) collect adequate documentation over time of that discrimination, and c) report supportive evidence consistent with EEOC guidelines.

4.2 Types of alleged discrimination

In absolute terms, the most commonly alleged types of discrimination are quite similar for both the MS and GENDIS groups. Consistent with past trends in EEOC data (Neath, Roessler, McMahon, & Rumrill, 2007), the top three allegations — discharge, reasonable accommodations, and terms/conditions — are the same for both the MS and GENDIS groups, making up 63.8% of all allegations in both groups. The top five allegations are also similar in the MS and GENDIS groups.

Viewing the types of discrimination alleged by people with MS and other disabilities more closely, however, reveals a number of proportional differences. Statistically significant between-group differences in the frequencies of types of discrimination were seen in 9 of the 41 issues. Among the ten most commonly alleged issues, individuals with MS were significantly more likely to allege discrimination in the areas of reasonable accommodation, discipline, constructive discharge, demotion, and benefits-insurance, whereas the MS group was significantly less likely to allege discrimination in the areas of discharge. The nature of MS and of the responses it elicits may have some bearing on the relative differences in allegation patterns reported by the two groups.

4.2.1 Discharge

Beginning with the most prevalent allegation category for both groups, discharge-related complaints were filed proportionally less often by people with MS than they were by other ADAAA charging parties (28.4% to 30.7%, respectively). This finding that people with MS are less likely to allege unlawful termination may result from the fact that a diagnosis of MS establishes a status of “presumptive disability,” which means that CPs with MS are automatically accorded Title I protection (Dorrian, 2014). Thus, they can move promptly to arguing the merits of their cases rather than enduring the delay and frustration of needing to verify that they have a disability, and employers may be less likely to summarily discharge them because employers know that MS is automatically considered a disabling condition under the law. In addition, higher education levels among adults with MS may also result in their ability to secure better jobs with fewer physical demands, which bodes well for their continued high level of performance, thereby decreasing the likelihood that employers could argue that their disability is preventing them from performing essential functions of the job in a satisfactory manner (Halper, 2007).

4.2.2 Reasonable accommodation

Given the types of symptoms and the unpredictability of those symptoms associated with MS, it is possible that adults with MS may require more frequent on-the-job accommodations, resulting in employer resistance to their requests, which is then experienced as discrimination on the employee’s part. In their research with three groups of adults with MS (those who had quit work, those who had cut back on hours and/or duties, and those reporting no change in employment status), Smith and Arnett (2005) found that work status was closely related to the broad range of physical and neurological symptoms associated with the illness, which, when serious enough, called for reasonable accommodations on the job. When appropriate accommodations were not provided, adults with MS were more likely to be in the not working group and presumably inclined to file allegations of discrimination. Simmons, Tribe, and McDonald (2010, p. 934) argued that loss of work due to unaccommodated limitations is a potent argument for “appropriately timed and advocacy-supported disclosure” and “gradual accommodation of emergent symptoms.” Unfortunately, their survey research also suggested that too many employees with MS compounded their problems by delaying their requests for accommodations until it was too late. This delay in resolving work-related problems may represent another explanation for the large number of discrimination allegations pertaining to employer provision of reasonable accommodations that was observed in this study. They recommended that employees with MS, early in the diagnostic phase, complete educational programs about advocacy supported disclosure and accommodation request strategies to address emerging symptoms that affect their job performance. In a similar vein, many adults with MS who are already on the job view the process of disclosing their disability and requesting accommodations as a very risky process during which they would appreciate consultation from a rehabilitation counselor, an on-site work specialist, or an occupational therapist (Sweetland, Riazi, Cano, & Playford, 2007). Both of these interventions have the potential to decrease the tendency for some employees with MS to wait until it is too late to make accommodation requests, which would increase the likelihood of a favorable response from employers and decrease the potential of an allegation of discrimination.

4.2.3 Discipline

In her discussion of factors affecting employment of adults with MS, Vickers (2012) mentioned the types of employer reactions that can follow disclosure of MS and a request for reasonable accommodation. In general, respondents with MS in her qualitative research study commented on the wariness of employers following their requests for reasonable accommodations. Common employer attitudes that respondents encountered following their requests for accommodation included fears of (a) not being able to make money with an employee with MS, (b) the employee’s inability to do his or her job in the future, and (c) excessive requests for accommodations and supports. As a consequence, allegations of discrimination related to discipline may have their origin in employer attitudes and actions that make the workplace uncomfortable in subtle ways rather than resulting in outright discharge of the employee.

4.2.4 Constructive discharge

The EEOC distinction between discharge and constructive discharge is significant in the context of this study given the fact that employees with MS alleged circumstances pertaining to constructive discharge more frequently than did CPs in the GENDIS group. According to the EEOC, discharge involves the involuntary termination of employment on a permanent basis while constructive discharge refers to a less overt act by an employer that forces the person to quit or resign. Reminiscent of the previous discussion of discipline allegations, examples of less overt acts consistent with constructive discharge reported by employees with MS include unfair rules related to working conditions, different or harsher standards of performance, restriction to a certain type of job, and receiving excessive supervision or oversight on the job (Roessler et al., 2011). Imposition of such conditions in the workplace by employers could provoke allegations of discrimination and may have some relationship to the social stigma attached to MS (Vickers, 2012).

A stigmatized chronic illness such as MS may prompt subtle discriminatory practices on the part of employers, supervisors, and/or co-workers in greater amounts than some health conditions included in the GENDIS group. Schur, Kruse, and Blanck (2005) noted that negative stereotypes about employees with disabilities can be associated with biases regarding the person’s potential to perform adequately in the future, inaccurate (i.e., lower) evaluations of performance, and avoidance of social contact and therefore early discussions of accommodations needed or of other changes in performance that would increase the probability of job retention. Some types of treatment related to allegations of discrimination falling under the heading of “constructive discharge” are consistent with what Garland-Thompson (2011) referred to as “disability oppression.” In this mode of prejudicial thinking, the person with a disability is viewed as a “misfit,” resulting in efforts to force the person from the setting, in this case, the workplace. According to Garland-Thompson, disability and equal rights movements such as the ADAAA exist to create more accepting environments with broader tolerances and opportunities so that “fits” can occur.

4.2.5 Demotion

Research indicates that people with disabilities, particularly individuals with MS, experience high levels of underemployment and unemployment (Vickers, 2012). Adults with MS are not only more frequently unemployed than non-disabled adults, but they are also more likely to be employed part-time if working (Moore et al., 2013). This common condition of underemployment may, in part, result from expectations that employers have of employees with MS because of the stigmatizing nature of the illness. Vickers characterized employers’ hesitancy about supporting employees with MS as emanating from beliefs that retention of employees with MS in their current positions would not be beneficial for the organization. Certainly, allegations of discrimination pertaining to demotion could result from such views of members of the workforce.

It is also true that two of the most common MS symptoms, namely, fatigue and cognitive limitations (Honan, Brown, & Batchelor, 2015; Moore et al., 2013) are both progressive and problematic with respect to effective interventions. Consequently, manifestations of each of these symptoms can negatively affect job maintenance (Krause, Kern, Hortrich, & Ziemssen, 2013; Simmons et al., 2010) and possibly result in demotion. Based on qualitative research, McFadden et al. (2012) noted that, in addition to physical and cognitive symptoms, employees with MS identified the nature of the business’ working environment and organizational structure, the social aspects of the work environment, and the psychological demands of working as reasons for changes in their employment status.

Based on their research, Smith and Arnett (2005) reported that fatigue was the most important reason that workers with MS had cut back on their hours and/or responsibilities. In some cases, this cutting back may have been voluntary; in other cases, it occurred at the behest of the employer (i.e., demotion) which the worker experienced as discriminatory. To address fatigue in the workplace, researchers have stressed the importance of occupational therapy to build the strength and stamina of employees with MS (Julian et al., 2008) as well as manageable on-the-job accommodations such as improved accessibility, flexible work hours, more frequent work breaks, time off when needed, assistance with physically demanding jobs, and utilization of adaptive technology (Johnson, Amtmann, Klasner, & Kuehn, 2004; Uccelli et al., 2009). Again, it is possible that some employers might resist these requests for accommodation, followed by the demotion of the individual to a position with fewer responsibilities and demands.

Cognitive limitations associated with MS (e.g., limitations in memory, attention, concentration, and information processing speed; Krause, Kern, Hortrich, & Ziemssen, 2013; Smith & Arnett, 2005; VanDenand, 2006) significantly affect work performance and are difficult to remediate. Consequently, efforts to demote employees with MS may result from unaccommodated performance limitations consistent with the cognitive impact of MS simply because efforts were not made to better support the worker. Julian et al. (2008) suggested that these types of cognitive limitations be addressed in rehabilitation settings via specific job and coping skills training. However, rehabilitation professionals continue to stress the need for improved cognitive interventions and supports. The Cognitive Support Technology module (CST) developed in research with adults with traumatic brain injury is one such promising cognitive support applicable to the needs of employees with MS (Minton et al., 2017).

CST utilizes state-of-the-art electronic devices such as the iPad and mobile applications or “apps,” which supplement the ability of individuals to schedule and set reminders for meetings, organize their work, record notes during meetings at work, and follow a structured approach to completing task assignments (Adya, Samant, Scherer, Killeen, & Morris, 2012; Bodine & Scherer, 2006; Minton et al., 2017; Nardone et al., 2015; Scherer, 2012; Scherer & Bodine, 2006; Scherer, Hart, Kirsh, & Schulthesis, 2005). Accessing these “apps” via the iPad and the internet represents a reasonable accommodation to help employees overcome the cognitive limitations associated with MS. The wide range of electronic devices and internet supports enables rehabilitation personnel to individualize a CST approach that meets the needs of an individual worker based on the results of a job analysis.

4.2.6 Benefits-insurance

It is not surprising that CPs with MS were more likely than CPs in the GENDIS group to allege discrimination related to insurance benefits. People with MS have long bemoaned the inadequacy and inaccessibility of health insurance coverage as a major employment barrier, singling out limited understanding of the Affordable Care Act as their number one employment concern in the national survey conducted by Rumrill et al. (2015). Given the wide range of symptoms associated with MS and the unpredictable course the disease usually follows, people with MS must interact with a variety of health care providers and specialists as part of their treatment regimens (Kalb, 2016). This fact undoubtedly increases the complexity involved in submitting claims for health insurance coverage, possibly leading to higher levels of dissatisfaction with the insurance benefits that their employers offer them and by extension to the comparatively higher rate of benefits-insurance allegations filed by CPs with MS in the present study (Nissen & Rumrill, 2016).

4.3 Characteristics of charging parties

Findings varied such that there were significant differences in the gender, age, and ethnic status distributions of CPs with MS relative to those with other disabilities. Individuals alleging discrimination in the MS group were significantly younger and more likely to be female relative to those in the GENDIS group. Regarding ethnicity, those in the MS group were more likely than the GENDIS group to identify as Caucasian, whereas those in the GENDIS group were more likely than the MS group to identify as African American, Hispanic/Mexican, or Asian.

Much of the difference in demographic characteristics between the two groups is a function of known population parameters for the MS community. For example, three-quarters of people with MS worldwide are women (Murray, 2017), so it is not surprising that 64.5 percent of allegations filed by CPs with MS in this study were leveled by women. Moreover, some research indicates that women with MS frequently experience premature unemployment, which may suggest that they encounter more discrimination on the job than either females or males in other disability groups (McFadden et al., 2012). Women with MS have multiple roles to play (employee, mother, home manager, community member, family member, and friend; VanDenand, 2006), which influences their on-the-job performance, thereby causing some employers to perceive or at least expect barriers to their continued employment and possibly resulting in discriminatory action on the employer’s part. It is also well established that MS is much more common among people of European extraction than it is among non-Caucasians (Kalb, 2016), a fact that explains the higher proportions of Caucasians and lower rates of non-Caucasians in the group of allegations filed by people with MS.

That said, vocational rehabilitation interventions to help people with MS identify and redress workplace discrimination must consider gender and cultural influences on individual approaches to self-advocacy, conflict resolution, and utilization of rehabilitation services. For example, Loveland (1999) found that women with MS were more likely than men to discuss feelings of inadequacy regarding their abilities to support co-workers, whereas men were more likely to express anger and frustration with the limitations associated with MS. Boosman et al. (2011) reported evidence that men benefited more than women from an educational intervention designed to help adults with MS manage chronic pain.

In terms of age, both groups of CPs were predominantly middle-aged, with CPs with MS being significantly younger (approximately 44 years old on average). Given that MS usually manifests itself between the ages of 30 and 50 (Murray, 2017), vocational rehabilitation interventions for this group of workers, including those related to workplace discrimination, must reflect the career maintenance stage of vocational development (Super, 1980) that is typically associated with an adult-onset condition such as MS. This developmental orientation also underscores the importance of reasonable accommodations that address age-related changes in the person’s health and functioning that could bear on his or her ability to continue working.

4.4 Limitations

One limitation of the present study lies in the fact that the available CP demographic data are mostly nominal in nature, which restricts the types of statistical analyses that can be used to non-parametric statistics. Also, there are many demographic characteristics that have been shown to be relevant to both employment and MS outcomes that were not available in the database including marital status, sexual orientation, overall health status, motivation, resilience, locus of control, socioeconomic status, and urban-rural-suburban residency (Kalb, 2016; Murray, 2017). The data on the nature of CPs’ MS are limited, as well. Specific data regarding the courses of MS with which CPs were diagnosed, severity and prognosis, duration of illness, and treatment received were unavailable, yet they may have had important implications for CPs’ employment and workplace discrimination experiences. It should also be noted that the manner in which the database codes ADA Title I allegations is based upon primary disability, and it does not take into account co-occurring conditions. This means that a person who has MS but who also has a substance use disorder might file his or her allegation using substance use disorder as the primary disability; this person’s allegation would not be part of the present study even though he or she has MS. Lastly, this study was strictly limited to allegations brought under Title I of the ADAAA, thus it is likely that the study population does not represent the entirety of Americans with MS who experience workplace discrimination. People with MS who experience unfair treatment in the workplace often choose not to report their experiences to anyone (Nissen & Rumrill, 2016), and those who do choose to file complaints may do so under other employment-related legislation such as the Rehabilitation Act of 1973, the Civil Rights Act, the Equal Pay Act, or the Age Discrimination in Employment Act. Allegations by this population could also have been filed on the basis of race or gender with the EEOC, as the alleged discrimination may not have occurred exclusively as a result of MS (McMahon & McMahon, 2016).

5. Conclusion

Workplace discrimination continues to be a frequently cited barrier to the career maintenance prospects that await people following MS diagnoses. People with MS in the present study, in comparison to people with other disabilities, were revealed to have different experiences in the EEOC’s ADAAA investigatory process regarding the types of discrimination that was alleged to have occurred, the characteristics of charging parties, and case resolution patterns. Understanding the recent discrimination experiences of people with MS in absolute terms and in comparison to people with other disabilities will enable vocational rehabilitation professionals to tailor interventions that assist people with MS in identifying and redressing unfair treatment in the workplace, which in turn has the potential to increase labor force participation among this experienced and well-educated group of workers.

Author note

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

Conflict of interest

None to report.

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