Few changes expected as last part of disabilities act takes effect

July 26, 1994|By Kim Clark | Kim Clark,Sun Staff Writer

Starting today, 500,000 small businesses nationwide will be barred from discriminating against disabled job applicants and workers as the last provision of the 1990 Americans with Disabilities Act takes effect.

This time though -- unlike the summer of 1992, when the ADA's first job anti-discrimination provisions were applied to businesses with more than 25 employees -- employers are not issuing dire warnings of a litigation explosion. And advocates of the disabled aren't predicting a hiring rush.

Instead, two years of operation under the ADA has provided some important lessons for owners of businesses with 15-24 employees who face a new law today and for job applicants as well.

For one thing, employers have found they need to better document hiring and firing decisions, and be more flexible about equipment and work-rule changes.

But while the ADA is making it easier for disabled job seekers to get an interview, it hasn't resulted in widespread hiring of the approximately 35 million unemployed and disabled Americans.

"It certainly hasn't helped us in bringing more disabled people into our work force," said Robin Gaskill, vice president for human resources at Baltimore-based Wells Aluminum Co.

"It has made things more complicated," and increased legal costs at the 1,200-worker firm, she said.

A 1994 survey by the National Organization on Disability found that nearly half of the approximately 27 million disabled Americans between 21 and 64 did not have jobs this year, the same percentage of unemployment seen in 1986, four years before the ADA was enacted.

One key reason for the lack of an increase in disabled employment: health care.

The study showed that about 60 percent of the disabled people who would like to work feel they cannot because they need the unlimited health care and other benefits that government services would eliminate if they started working.

"Without health care, the disabled are not able to enter into the work force in any numbers. This is just about insurmountable," said Rick Douglas, director of the President's Committee on Employment of People with Disabilities.

Another reason for the lack of hiring: a soft economy.

In Maryland, the impact on employers and job seekers alike is expected to be comparatively small, since the state has for 25 years banned employers with more than 15 workers from discriminating against the disabled. That's helped to reduce the federal prosecution of ADA cases here in Maryland; so far, the Equal Employment Opportunity Commission has filed only one ADA suit against a Baltimore employer.

With today's advent of the federal law, however, local employment lawyers say small businesses will have to make a few important changes.

The ADA will force companies to "totally revise the hiring process," said Brad Warbasse, an employment lawyer at Gordon, Feinblatt, Rothman, Hoffberger & Hollander in Baltimore.

The federal law "significantly restricts what questions employers can ask. You cannot ask health-related questions. You cannot ask for a medical exam without making a conditional job offer," he explained.

One important change: employers must eliminate questions on application forms that ask about workers' compensation or illness history. Also, employers should keep good records in case they are asked to prove that a hiring or firing was not based on a person's disability.

Probably the most important change in Maryland, however, will be the new hammer the federal law gives disabled workers and job applicants to force small businesses to obey the anti-discrimination law.

Until now, disabled people who felt, for example, they had been fired from a small business because of their disability, could only ask the state's Human Relations Commission for reinstatement and no more than three years' back pay.

But the state agency, which has long been underfunded, has a big backlog of cases and little ability to enforce its rulings, said Ed Gutman, an employment lawyer at the Baltimore law firm of Blum, Yumkas, Mailman, Gutman & Denick.

Now, under the new federal law, victims of discrimination can file federal lawsuits on their own for up to $50,000 in punitive damages as well as lawyers fees from small businesses, Mr. Gutman said.

"If you thought twice before" about firing someone with a disability, "You should think three or four times now," Mr. Gutman said.

At the very least, the law has had a heartening effect on disabled people who are looking for jobs.

After two years of unemployment, Ronald Baxter, a recovering crack cocaine addict, plans to start sending out resumes this week.

He thinks the law, which protects recovering addicts but not drug users, "is a really good thing. Employers won't be able to discriminate against me based on my past."

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