When Congress passed the Americans with Disabilities Act (ADA) nearly a quarter of a century ago, many inside and outside the government saw it as the most important piece of civil rights legislation since the 1964 Civil Rights Act. However, since taking effect in 1992, employment among people with disabilities has declined. In 2012, just 18 percent of working age people with disabilities were employed compared to 64 percent of people without disabilities, while earnings among disabled workers have been largely stagnant over the last twenty years. People with disabilities make an average of 14,500 dollars less than persons without disabilities. It may seem perfectly reasonable to assume that the introduction of the legislation “caused” an overall decline in the economic well being of people with disabilities. However, as is often the case, the relationship between antidiscrimination legislation and labor market outcomes is far more complicated.
In a recent Law and Policy paper, “The Limitations of Disability Antidiscrimination Legislation,” Michelle Maroto and I review two opposing perspectives about the role of antidiscrimination legislation in influencing the economic well being of disadvantaged groups. Some argue that the ADA created disincentives for employers and thus explains the unintended harm in terms of undermining disability employment. Others have argued that the lack of implementation and enforcement—especially court rulings—had taken the bite out of the ADA. Notably, the two theories about the “failures” of the ADA assume that antidiscrimination legislation shapes employer attitudes and behaviors in different ways. The unintended harms argument assumes that employers would hire people with disabilities but for the ADA. Judicial resistance proponents argue that if not for the ADA, employment among people with disabilities would be far lower, and the reason employment has not increased is due to the courts rendering the ADA impotent.
Our analysis reveals a complex relationship between policymaking, enforcement, judicial interpretation, and labor market contexts. Thus, only examining employment and earnings patterns before and after the passage of the ADA in 1990 misses the way in which this institutional layering affects economic outcomes. Indeed, evidence suggests that employment rates were already declining prior to the enactment of the ADA and continued to decline after it took effect. We include various measures to capture this institutional layering, including the per capita charges brought to the Equal Employment Opportunity Commission (EEOC), the number of Supreme Court cases where the ruling was favorable to the disabled plaintiff, the number of lower court case settlements and consent decrees, as well whether states had enacted their own version of the ADA.
On the one hand, we find that both employment and earnings among people with disabilities were higher in states that had enacted ADA-like legislation early on, especially those including a reasonable accommodation provision. We take this as evidence against the unintended harm argument. On the other hand, we find that employment was negatively related to state-years with a greater number of ADA charges and larger payouts, which tends to support claims about unintended harm. We also find that lower court decisions had no effect on employment, but they did slightly increase earnings, while liberal Supreme Court cases –likely due to their visibility – had a negative effect on employment. Overall, this does not provide strong evidence in favor of the judicial resistance argument. Similarly, enforcement of the ADA appeared to have little effect on earnings, suggesting that enforcement may come into play more at the employment stage rather than post-employment.
Mixed support for these competing claims suggests a complex relationship between policymaking and implementation. It also highlights the importance of distinguishing the role of legislative branches from the roles of enforcement agencies and the courts in shaping the successes (or failures) of antidiscrimination legislation. Of course, employment and earnings are likely affected by other demand-side factors like occupational structures, norms, and employer preferences, in addition to common supply-side factors of employee preferences, education, and skills. We investigate this further in a forthcoming paper in Research in Social Stratification and Mobility. What is important to keep in mind is that increasing gaps in employment and earnings continue to contribute to economic inequality among a group that represents about 10 to 15 percent of the American population.
The paper is available in “early view” at: http://onlinelibrary.wiley.com/doi/10.1111/lapo.12024/abstract