Employment Equity from the U.S. Perspective

Introduction:

Honoured guests, ladies and gentlemen;

Terry Fox, Steven Fonyo, Rick Hansen; these Canadians have clearly demonstrated to the world that determination and hard work can catapult so called handicapped people into great prominence.

Throughout much of The Hon. John B. Aird's term as the Lieutenant-Governor of the Province of Ontario, he emphasized the contribution that people with "special gifts" could give to society and to life in general. He spent many hours at Variety Village, the Bobby Orr Skate-a-thon, the Special Olympics, and the Bob Rumble Centre for the Deaf. He was always touched by what these people could do and when I had the privilege to be with him, I too was moved by their courage and determination.

Not so long ago anyone with a disability was all too quickly relegated to the back rooms of life.

Well, fortunately, in many ways, things have changed.

Much of life is accessible to those who previously found barriers both to physical and mental handicaps. While much has been done, much more can be accomplished to open society and business to all people.

In the United States, both governments (at all levels) and businesses, have been working together in a co-ordinated effort to make sure that all people have a right and opportunity to find employment regardless of their situation in life.

To help in this process, a Committee was established in 1947 by President Harry Truman to assist in the return of disabled veterans of World War If to civilian jobs. There were also many persons with disabilities who had found work for the first time during the labour shortage connected with the war. The President called for a citizen's movement to encourage business and industry to give these veterans and civilians an equal chance for employment and to open up new job opportunities to people with disabilities. Every succeeding president has continued to lend his name and support to this effort.

Our speaker today was to be Evan J. Kemp Jr., Chairman, U.S. Equal Employment Opportunities Commission. Unfortunately he had to cancel late last week.

On very short notice, Jean Mahoney, Program Manager, The President's Committee on Employment of People with Disabilities, agreed to fly up from Washington and to speak to us on a similar topic, namely: "Employment equity from the U.S. perspective."

Since graduating with a Bachelor of Science Degree in Social Sciences from Illinois State University in 1973, Jean Mahoney has had a varied career in politics and social services.

She has worked at the local, state and national levels of government. In 1984, she worked for Paul Simon in his bid for the U.S. Senate. Even in that job, her responsibilities included fundraising and concerns regarding disability issues.

Jean Mahoney, thank you for coming on such short notice and welcome to The Empire Club of Canada.

Jean Mahoney:

First of all I'd to say thank you so very much for allowing me to come up to Toronto. I can't tell you how much I love your city and I sincerely mean that. I used to be married to a man from Toronto, so when they said, "Would you like to go to Toronto?" I practically jumped out of my chair at the opportunity to come up here.

I'd like to tell you a story that I think reflects why we have the new legislation in the U.S. About 14 years ago, my husband and I went to a fabric store to choose some fabric to recover a headboard of a bed. Being a good Scottish person from Toronto he couldn't part with a dime. I, of course, would choose lovely fabrics and he'd want a tartan. So we went three different times to the store and we could never decide. Finally, the third time, we did choose a fabric that we both could live with. On our way to the store we had a little bit of an altercation with an older man who had parked in a parking space for the handicapped. I was raised in a family where you never, ever, would be disrespectful to an elderly person. My husband, however, was raised to challenge authority and to be an independent thinker. He went up to the man who was not disabled and didn't have license plates for the handicapped on his car, and he really gave him a hard time and said, "If I was not with my wife, you would have just prevented her from having access. You've taken the only parking place for a handicapped person." A terrible fight ensued, and I was upset. And my husband said, "How can you enforce other people's civil rights," (because that's what I was doing at the time) "but not your own?" "You're such a wimp."

I was pretty upset by that comment. So we went in the store to choose the fabric. He wandered off and I went to the counter and said to the woman behind the counter, "Excuse me, could you please tell me where I can find that ribbon that you put around fabric to finish it off, kind of like a bias tape?" And the woman looked at me and she said, "Gimp." And I couldn't believe that she called me that name. And I just sat there. So I asked the same question again. She looked right at me and said, "Gimp." So I turned my head. I thought, now if he wants to yell, he'd have a legitimate reason to yell at someone. I've done nothing to provoke this. And as I turned my head the woman said, "They call it Gimp."

I tried to regain my savoir-faire and the woman never understood what went on. It went right over her head, and I was very grateful. But going home in the car I realized where that term came from. We say, "He has a gimp leg." We talk about an objective fact. There's something wrong with that person's leg that inhibits that person's ability to run. Just as this little ribbon inhibits the fabric from running. And I understand now how we get these terms. They're not pejorative as they are used sometimes. They're objective facts. But what it boils down to is it's all a matter of perception and attitudes. That's what it all boils down to. And what we, who are disabled, are advocating and I think succeeding at is, we're having people realize that you look at abilities, not the disability.

I think the fact that the United States has just passed a landmark piece of legislation called the Americans With Disabilities Act is indicative of that fact. This law is so profound that we have had representatives from the U.S.S.R and Japan along with many, many other countries, especially your country, looking at us, asking us a multitude of questions. What in the world is the statute? It is beyond broad. There's no term to describe how all-encompassing it is.

I think, to begin with, I should just give you a brief overview of the statute. It has five titles. The first title covers employment discrimination. The second title covers state and local government. The third title covers public accommodations. The fourth is telecommunication relay services for the hearing and speech impaired. And the fifth is administrative. On top of having such a broad mandate covering so much, it also has four regulatory agencies which will enforce the statute. Obviously the first part, the employment, will be enforced by the Equal Employment Opportunity Commission, our main agency dealing with employment dis- crimination. Title two, state and local governments, will be enforced by our Department of Justice. Our title three, which is Public Accommodations, is the most complex and probably the most important of the Statutes. That too will be enforced by our Department of Justice. Title four, Telecommunication for Hearing and Speech Impaired Individuals, will be enforced by the Federal Communications Commission. My remarks today will primarily focus only on title one, our employment provisions and title three, public accommodations."

I think when you look at the ADA, as I will refer to it for shorthand purposes, it's an anti-discrimination statute. Some of our civil rights statutes are affirmative, some are non-discrimination. Just as when you look at the Ten Commandments, you have five do's and five don'ts, we have the same thing with our civil rights legislation. This is one of the don'ts. This is a "thou shalt not discriminate" statute. It's a conceptual, philosophical mandate. It is not a program. A lot of people are looking for the money to implement. I think we would undermine the intent and the spirit of the statute if we attached any monies to it. It has to be pure. It has to be a civil rights statute. Our congress understood that, and that is what passed. The employment part. It says any qualified individual shall not be discriminated against solely on the basis of disability. It mandates that we look at the abilities of the person. I work with private sector employers at the President's committee. That is my job. I have a great job. I probably have one of the best jobs in the United States because I work with Fortune 500 companies who have been doing a lot of the requirements of this law for fifteen years. They are model employers. They know how this works, and they are very supportive of this legislation. A lot of small employers are also very supportive of this legislation.

This statute will not apply to any employer who has fourteen or fewer full time employees. The first two years of its effectiveness will cover employers who have employees of twenty-five or more. In 1994, it will then cover employers having employees ranging from fifteen on up. In 1964, we passed the Civil Rights Act, our main granddaddy of civil rights legislation. This statute is predicated upon that law and a law we passed in 1973, called the Rehabilitation Act. It is an amalgam of those two. What it requires of employers is that you will review your policies, your procedures, your practices. You will remove those that intentionally or unintentionally may discriminate against qualified persons with disabilities. One of the best defences against not being sued under the statute, of course, is to develop position descriptions. Look at your jobs. What is it that you do? Because what the law requires, is that if someone is qualified to do your job and they need an accommodation to do the job, you have to accommodate that person in order to perform the essential functions of the job. It does require an accommodation.

This is a very hot topic with all employers. What in the world is an accommodation? Who pays for it? Where do I go to learn about them? I can honestly say that in my opinion, accommodations are not an issue. It will not be as burdensome as people perceive it to be. Studies in our country have determined that 70 percent of accommodations cost under $500. Thirty percent cost zero. So we're not talking about huge amounts of money. There are people who will be qualified to do jobs, who will require high-tech accommodations. But it's a very cost beneficial thing to do. Sixty-six percent of the people in the United States with disabilities between the ages of 16 and 64 are unemployed. Of that 66 percent, two thirds of them say if given an opportunity they would like to work. Of our Afro-American disabled people in the United States, 82 percent are unemployed. Of the 18 percent who are employed, 65 percent earn under $4,000 a year. We have huge unemployment among the ranks of disabled people. Only one in four disabled women work full time. We recognize there are problems. We recognize we have great rehabilitation, we have great educational opportunities.

There is a break-down somewhere. We have great state statutes to protect the rights of disabled people. We have great federal statutes to protect people on the basis of disability, if you receive federal financial assistance such as a hospital or a school, or if you're a contractor with the federal government receiving $2,500 or more. But this developed into patchwork and we needed some uniformity to bring it all together, hence this statute. Now to what extent does providing an accommodation to a really qualified individual become an undue hardship to an employer? When do you say, "Enough is enough"? With this statute everything is based on a common-sense approach. Everything is based on a case by case individual basis. And it's purposely designed that way--(a) to make sure we don't leave somebody out who should be protected; and (b) to look at the individual needs and requirements of the employer.

There are general criteria as to defining undue hardship, just as there are individual definitions of disability. We have a three-pronged definition. Who's covered by the statute? Firstly, someone who has an obvious disability, such as myself. Secondly, someone who has a history of disability, or has had cancer or had a mental breakdown and no longer has a disability, but still has a record of it. And as I'm sure everyone in this room knows, if you have a history of disability, it often does preclude you even though you may be qualified for the job.

Our third prong is a very interesting one, one that I really support, and that is, you're perceived as having a disability and you don't have one. An example of that is someone who perhaps has a severe facial disfigurement because of a burn. They might be qualified to do the job but maybe the employer doesn't want to hire that person because they're not nice to look at. I'm sure that person would be the first one to tell you they don't like looking in the mirror either, but why should they be denied employment because of something beyond their control. Also what about the person who was erroneously institutionalized for 18 years as schizophrenic and has no history of mental illness. They go for a job and the employer says, "Where have you been for 18 years? You don't have any work record." No they don't, but it was beyond their control. This law is designed to protect them as well.

The Public Accommodation section, title three, is amazingly complex It is taken from title two of the Civil Rights Act of 1964. As you probably can recall, in the early '60s there were some very brave Afro-American college students and others in our country who went to lunch counters to eat their lunch just to integrate lunch counters. To me they're among the true heroes of my country, because they never knew if they would leave those lunch counters alive. All they wanted to do was integrate. Because of those brave acts, they implemented title two of the Civil Rights Acts that said "public accommodations will be equal to all people regardless of race, creed, colour, sex, religion, national origin." That concept has been built into this statute saying "public accommodations will be accessible to and usable by disabled individuals." You might have heard President Bush say this--"A young woman in Seattle, Washington, who has severe Cerebral Palsy was denied access to her local movie theatre." In a local zoo, somewhere in the United States, a young man with Downs Syndrome was told he could not go to the zoo to see the animals because he would upset the monkeys. There are situations like this, so they built this in and rightly so.

How do you enforce something this broad? That's hard. Furthermore, one aspect of Public Accommodations is public transportation. So we have this legislation that ensures that all new public transportation purchased from certain dates forward shall be accessible and usable by persons who are disabled. What do we do with existing structures, existing transportation systems? Very complex. We have different sets of standards.

Our goal is not to retro-fit the world. We don't want to make anyone go broke. We don't want to put anyone out of business. The goal is a common-sense approach to making whatever goods and services you have to offer, to the maximum extent you can, accessible and usable by people who are disabled. It means that if you have a book store, you don't have to lower all the shelves for people in wheel chairs, but you train your staff to ask a person in a wheel chair, "May I be of assistance?" I've been in a wheel chair for almost 37 years, since I had polio. I have never in my life not had the utmost courtesy in every store I've ever entered, except one and he was a man from another country and I don't think understood what it was like--that you had to be nice to all people in my country. I think that he was afraid of me. So I think that this just institutionalizes what public service entities already do. If you have a restaurant it does not mean that all your menus have to be in braille. First of all that would be stupid because only three percent of blind people read braille. What it says is that you might train your staff to ask if a blind person would like the menu read, or perhaps you would have a few copies in large print for people with low vision. It encourages people to be creative and to think about how best to make their services accessible to and usable by people with disabilities. Another example is of a dry cleaner with one step into his establishment. I want to use his services but he can't put a ramp up because his doorway abuts on city property. What he can do is put a sign in his window encouraging me to use his services, saying, "Please ring the bell" or, "Knock on the window" and we'll be happy to bring our services to the door. That's how you make sure that you provide existing goods and services to people with disabilities in a non-discriminatory manner.

Now obviously we emphasize to the maximum extent possible that people try to have the most integrated setting. And as you renovate, and as you build, you must comply with architectural requirements to make it as accessible as possible. There are certain criteria in the draft regulations for this public accommodation. And that, as I said, is for all prospective, new or renovated architecture so that to the extent possible it will be barrier free. And for your existing structures you will attain the magic phrase in Washington right now, "readily achievable." That is the big buzz word right now. And readily achievable is defined as that which is easily accomplishable. You can imagine the employers on that one. Another requirement is that, to the extent you can, you have to provide auxiliary aids and services. Auxiliary aids and services are nothing more than a menu that's in large print--any other service in an alternative format or anything that would help someone who is disabled to use your services. You have to eliminate unnecessary eligibility standards or rules.

Obviously, how can you implement anything until you take a look at yourself. You have to use this readily achievable alternative measure standard against your services and you have to make sure that all your new construction complies with our new standards. I'd like to say also, that the federal government a couple of years ago, in its efforts to really demonstrate itself as the model employer, passed a law called Section 508. And what it said was that any equipment bought by the United States government for use by its employees--a fax machine, a telephone system, a computer system--has to be designed so that in the future if a person with a disability comes to work in that office that equipment or that mechanism can be adapted for use by disabled individuals. I think that was very forward-looking. They were saying buy something that's cost-effective. If we have to adapt it for somebody, we can. That concept too is found in this new statute. It says if you renovate, think about your hiring of a person with a disability in the future. It doesn't mean that you have to have a room full of adaptive devices for people, but think about that when you design. I think that these are very forward-looking and very good points to give to employers.

When we talk about the public accommodations, there are a couple of sentences in the regulations that I'd like to read because it helps to understand the Congress. The regulators realize this is a sensitive area. Employers are concerned about what their obligations are going to be. It says right in the regulations (these are draft regulations), "Barrier removal measures that are not easily accomplishable and are not able to be carried out without difficulty or expense are not required under the readily achievable standard, even if they do not impose an undue burden." So they realize they're not going to make people go broke, they're not going to hold them to a standard that's going to be very hard to prove in court. But they are going to make them show that they did try in good faith to achieve the maximum extent they could.

One of the unique points of the statute that I've not seen in other statutes is in the employment part. We have a provision that protects people who may be associated with a person who has a disability. The parent of a disabled child, the spouse of a disabled person, someone who has an affiliation with someone who has AIDS. This statute will protect those people from employment discrimination. It does not, however, allow those people to have reasonable accommodations, such as "I need time off to take my child who is disabled to the doctor." That will not be allowed. But if that person mentions in the interviewing process that they have a disabled child, that fact cannot be used to not hire them. In the public accommodations part, we have the same concept to protect people. You can't discriminate on the basis of association. Another interesting change is in the public accommodations part. There's a concept called 'direct threat.' You cannot discriminate against someone if they pose a direct threat to the health and safety of others. But it doesn't say anything of self. This is a very major change. I don't think people realized it when they first read the law and the implementing regulations. So it's a very unique little twist here. In providing public accommodation to a person with a disability and in so doing there's a potential of a direct threat to that person, you may have to provide the accommodation, because there's no exemption to that in the statute nor in the regulation.

I don't know how that's going to play out and we may have to go to case law for that. Obviously this is a new statute. These are proposed regulations from four different regulating agencies plus the guide-lines in architectural accessibility. Five different standards. Now we have to get our policies in place that come from investigations and of course we'll have to go through the courts to get case law to flesh this out. This will be very interesting. This doesn't really start until 1992. I look at the statute and I see the best of democracy. It is a classic example of a people recognizing a need. Gathering together at the grass roots level. Effectuating change.

Influencing their legislators. We now have law. We now are in the middle of our regulatory writing process. I think we have a lot of problems in the United States. I think we are the first to admit that. But I'm very proud to say that I serve and I am part of the longest lasting democracy in the history of the world. And this legislation brings this home to me. I think on behalf of all disabled people, it makes democracy more relevant to all of us. I thank you very much for the opportunity to speak to you today.

The appreciation of the meeting was expressed by Mary Byers, Author and Historian and a Director of The Empire Club of Canada.