Employment law related to disabilities is an important issue that affects millions of people around the world. In the U.S., 21.3% of people with a disability were employed in 2021, up from 19.1% in 2021. According to the U.S. Bureau of Labor Statistics, persons with disabilities make up 12% of the civilian noninstitutional population.1 With a significant portion of the workforce considered disabled, it is important for human resources professionals and managers to understand the barriers employees with disabilities face related to employment and retention, as these barriers can often lead to discrimination, inequality, and exclusion in the workforce.
Understanding what the barriers are is an important first step to finding practical solutions. Additionally, understanding the employment laws that affect workers with disabilities can help ensure that workplace policies around hiring and retention are effective, legal, and beneficial to people with disabilities.
Barriers to Employment and Retention for Employees with Disabilities
The U.S. Bureau of Labor Statistics states that people with disabilities are much less likely to be employed than those without disabilities, regardless of age.1 This is in part because people with disabilities face multiple barriers to employment and retention, including:
- Prejudice and Discrimination: Employers may hold a negative attitude about or stereotype people with disabilities, which can lead to discriminatory practices during the hiring process and in the workplace.
- Accessibility: Workplaces may not be physically accessible, making it difficult for workers with disabilities to access the workplace, move around within the workplace, or use essential equipment and technology.
- Lack of Accommodations: Figuring out how to provide reasonable accommodations to enable workers with disabilities to perform their job duties may be challenging.
- Limited Job Opportunities: Many people with disabilities are restricted to low-skilled, low-paying jobs, and may not have access to training and development opportunities.
- Fear of Losing Benefits: Many disabled workers are concerned about losing their benefits if they start working or increase their hours.
While this list is not exhaustive, these barriers have a negative impact on people with disabilities and their families. Better understanding how these barriers are holding people back can help us come up with practical solutions to lead to better employment and retention outcomes and opportunities.
Employment Laws Related to Disability
U.S. employment laws provide important protections and support for workers with disabilities, helping to ensure that they are not discriminated against in the workplace and have equal access to employment opportunities.
Under the laws listed below, employers are prohibited from discriminating against qualified individuals with disabilities in all aspects of employment, including hiring, training, promotion, compensation, and termination.2 Employers are also required to provide reasonable accommodations to enable individuals with disabilities to perform the essential functions of their jobs, unless doing so would cause undue hardship.
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws related to disability discrimination in the workplace.3 Individuals who believe they have experienced disability discrimination can file a charge of discrimination with the EEOC, which will investigate and attempt to resolve the matter through mediation or litigation.
Americans with Disabilities Act (ADA)
The ADA prohibits discrimination against individuals with disabilities in employment, housing, public accommodations, and other areas of daily life. Employers that must follow the ADA’s requirement to provide reasonable accommodations include private businesses, educational institutions, employment agencies, labor organizations, and state and local government entities with 15 or more employees.2
The Rehabilitation Act authorizes funding for disability-related activities, including state vocational rehabilitation programs, independent living programs, training, and research.2 This law prohibits discrimination against individuals with disabilities by federal agencies, government contractors, and recipients of federal financial assistance.
Workforce Innovation and Opportunity Act (WIOA)
The WIOA provides funding for job training, education, and other employment-related services for individuals with disabilities.4 Section 188 of this act forbids discrimination against individuals with disabilities who apply for, participate in, or are employees of a program that receives federal financial assistance under WIOA.2
Fair Labor Standards Act (FLSA)
The Fair Labor Standards Act (FLSA) is a federal law that was enacted in 1938 to establish minimum wage, overtime pay, recordkeeping, and child labor standards for covered workers, including workers with disabilities. The FLSA has been amended several times since its inception, but its core provisions remain in effect.
FSLA 14(c) Certificate
The FLSA requires covered employers to pay non-exempt employees at least the federal minimum wage, which is currently $7.25 per hour.4 Employers are also required to pay non-exempt employees overtime pay at a rate of one and a half times their regular rate of pay for all hours worked over 40 in a workweek. However, the FLSA includes an exemption for individuals with disabilities who work for certain employers under a special certificate issued by the U.S. Department of Labor. This certificate is known as a 14(c) certificate and allows employers to pay workers with disabilities less than the federal minimum wage.5
Under the 14(c) certificate, employers can pay workers with disabilities a subminimum wage based on their productivity compared to the productivity of workers without disabilities performing similar tasks.5 Critics of the 14(c) certificate argue that it perpetuates a system of discrimination and low wages for workers with disabilities. They contend that workers with disabilities should be paid the same wages as workers without disabilities for performing the same job duties. Proponents, on the other hand, contend that the certificate provides employment opportunities for individuals with disabilities who might not otherwise have access to the workforce. They believe the certificate allows workers with disabilities to earn a wage and gain valuable work experience, which can lead to increased independence and improved quality of life.
In recent years, there has been a growing movement to phase out the 14(c) certificate and transition to a system of competitive integrated employment, which emphasizes the inclusion of workers with disabilities in the general workforce and pays them the same wages as workers without disabilities. Several states and organizations have already phased out the 14(c) certificate, and others are considering doing so in the future. The states that have phased out 14(c) are Alaska, Maine, Maryland, New Hampshire, Oregon, Washington, Hawaii, Colorado, California, Delaware, Tennessee, South Carolina, Rhode Island.6
Remove Barriers in the Workplace With Effective Policies and Practical Steps
When drafting workplace policies around workers with disabilities, companies need to ensure that they are in compliance with disability discrimination laws. This is the baseline. In order to go above and beyond, policies should also be drafted around reasonable accommodations, accessibility, confidentiality, inclusivity, and training and education.
Policies around accommodations should include the process for requesting accommodations, the methods of engaging in an interactive process after an accommodation has been requested, the types of accommodations that may be provided, and the factors that will be considered when determining whether an accommodation is reasonable.
When it comes to accessibility, policies shouldn’t be limited to access to physical spaces. While policies should ensure that buildings, workstations, and other physical spaces are accessible to individuals with mobility impairments, vision impairments, and hearing impairments, we also want to make sure that we are inclusive regarding communication and work processes. Policies around inclusive communication include providing accessible formats for written materials, using plain language, and ensuring that meetings and events are accessible to individuals with disabilities.
In addition to policies, employers can take practical steps to remove barriers in the workplace for workers with disabilities. These steps are not only important to staying on the right side of the law, but to ensure that all workers are valued and included.
Employers should consider the following practical solutions:
- Collaborate with disabled workers to identify and provide reasonable accommodations that enable them to perform their job duties
- Ensure that the workplace is physically accessible, with ramps, lifts, and accessible bathrooms
- Offer flexible work arrangements, such as telecommuting or flexible scheduling, to enable workers with disabilities to balance their work and personal responsibilities
- Provide disability awareness training to all staff to help them understand disability issues and how to support workers with disabilities
- Create an inclusive culture by promoting diversity and inclusion, and by encouraging staff to respect and support each other
Tackle Employment Legal Challenges With Pitt Law
Employment law is crucial to ensure that workers with disabilities have equal access to employment and are not discriminated against in the workplace. Want to make a difference? Grow your legal knowledge and grow as a leader in your career with Pitt Law’s Online Master of Science in Law (MSL) program and the Human Resources Law specialization. This 30-credit graduate degree program pairs core courses that give you a foundation in a wide range of legal topics with your chosen specialization. Or, choose the standalone Online Human Resources Law Certificate program for a shorter, 15-credit path to hone in on HR law topics.
As you consider Pitt Law’s Online MSL program or one of our online graduate certificate programs, know that our Admissions Advisors are on standby to answer your questions, clarify admissions requirements, and discuss what this degree can do for you. Schedule a call today.