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July 24th, 2013 by

Bobby Silverstein Photo


July marks the 23rd anniversary of the passage of the Americans with Disabilities Act (ADA).  EARN spoke with Bobby Silverstein, one of the “behind the scenes architects” of the Americans with Disabilities Act, to hear his perspective on the implementation of the ADA, and the implications for employers as well as people with disabilities. Mr. Silverstein has more than 40 years of experience in the public policy arena, and is currently a principal in the law firm of Powers Pyles Sutter & Verville, PC. He is also the Director of the Center for the Study and Advancement of Disability Policy (CSADP), which conducts research and analysis of public policy issues affecting people with disabilities and their families. CSADP also provides education, training and technical assistance to a variety of stakeholders.

EARN:  As you reflect on almost 25 years of ADA implementation, what are some of the most important results of the legislation?

B. Silverstein:  The most important contribution the ADA has made is to change the expectations and mindset of employers and people with disabilities that discrimination on the basis of disability is no longer permitted — equal employment opportunity is now the law of the land.

Two provisions of the ADA are of particular significance. The first is the provision that prevents employers from making pre-employment inquiries about a person’s disability. Prior to the ADA, an employer could ask an applicant whether he or she had a disability and disqualify the individual without seriously considering the individual’s qualifications. Those with hidden disabilities now have the protection of the law to make certain that their application will be considered on the merits.

The second provision of particular significance is the requirement to provide reasonable accommodation unless it would result in an undue hardship. This provision eliminates artificial barriers that sometimes deny people with disabilities a meaningful and effective opportunity to be hired and advance in employment.

EARN: Some people have claimed that the ADA has not had as much of an impact as they had hoped. How do you respond to those critics?

B. Silverstein:  The ADA hasn’t fallen short – people just thought it could do more than was intended.  It was intended to give qualified people with disabilities an equal employment opportunity i.e., make it illegal to discriminate on the basis of disability.  In my opinion and based on national data sets, the ADA has indeed had a positive effect on the employment rate of people with disabilities who are qualified to perform the essential functions of a job with or without reasonable accommodation, but who historically were excluded from employment, particularly those with hidden disabilities who are no longer required to self-disclose prior to being offered a job on a conditional basis.

The ADA, on the other hand, is not intended to increase the employment rates for individuals who are not able to perform essential functions of the job, with or without reasonable accommodation. Other provisions of our national disability policy are designed to increase employment opportunities for these individuals, including supported employment, customized employment, and center-based employment through programs like AbilityOne and State Use programs. There continues to be an important role for community rehabilitation providers and private sector employers in making employment opportunities available for people with the most significant disabilities under these critical programs.

EARN: In your opinion, why are there still so many barriers to employment for people with disabilities?

B. Silverstein:  As they say; ‘what is measured, is what counts’.  We have not provided clear goals and timetables for employers regarding the hiring of individuals with disabilities, as we have for women and minorities.  Until companies are required to focus attention on increasing the employment rate of people with disabilities, the non-discrimination provisions of the ADA will not be enough.  You need both non-discrimination enforcement and affirmative action to make a difference for people with disabilities who are currently out of the workforce.  My expectation is that leaders in the business community will embrace hiring goals related to people with disabilities under Section 503 of the Rehabilitation Act and other employers will follow their lead. It is critical that employers embrace accountability for management outcomes, in this case taking proactive steps to increase the recruitment, hiring, retention, and advancement of people with disabilities.

EARN:  What impact do you think the ADA Amendments Act has had?

B. Silverstein:  When the ADA was written, I had a good grasp of the original intent due to my role as the chief Senate staffer working on the legislation.  The ADA Amendments Act simply restores the original congressional intent, rather than expanding the population that is covered by the ADA.  The focus of the ADA was always on including an expansive definition of disability but still requiring that an individual prove that he or she is qualified and that he or she has been subjected to discrimination on the basis of disability.

From the perspective of employers, the ADAAA is noteworthy in part because it clarifies that only people with a physical or mental impairment that substantially limits one or more major life activities or have a history of impairment that substantially limits a major life activity are entitled to a reasonable accommodation.  Employers are not required to accommodate people who are only ‘regarded as’ or ‘perceived’ as having a disability.

EARN:  What is your overall reflection on the implementation of the ADA?

B. Silverstein:  The ADA opens the door of opportunity—it is up to individuals with disabilities to gain the education, experience, and expertise to become qualified and then insist that they be treated fairly by employers. It is up to employers to treat people with disabilities as valued employees. What steps should employers take? Employers need to learn from their peers.  There is a body of literature identifying best, promising, and emerging practices used by employers regarding the recruitment, hiring, retention,  and advancement of people with disabilities, including materials presented on the EARN website. Employers need to adopt these practices; and if they do, it is very likely that they will have little or no problem “complying” with the ADA.

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