Meeting of October 25, 2005, Washington
D.C. on Emergency Preparedness and Individuals with Disabilities:
Is the Workplace Ready?
Chair Dominguez and Commissioners:
My name is Andrew Imparato and I am the President and Chief Executive Officer of the American Association of People with Disabilities (AAPD), the largest cross-disability membership organization in the U.S. AAPD pursues its mission of political and economic empowerment for children and adults with all types of disabilities through programs in the area of public policy advocacy and research, leadership development, mentoring and career exploration, and civic participation. AAPD works closely with a number of employers to increase employment opportunities for people with disabilities across the U.S. In my current position, I serve on the Executive Committee of the Leadership Conference on Civil Rights (LCCR), and as a member of the LCCR Employment Task Force, the Rights Task Force of the Consortium for Citizens with Disabilities, and the Civil Rights Committee for the National Council on Independent Living.
Prior to joining AAPD in 1999, I served as general counsel and director of policy at the National Council on Disability, special assistant to Commissioner Paul Steven Miller here at the EEOC, counsel to the U.S. Senate Subcommittee on Disability Policy, and staff attorney with the Disability Law Center in Boston, Massachusetts. My work in the area of disability rights is informed in part by my personal experience with bipolar disorder or manic depression.
Thank you for inviting me to provide testimony at today’s Commission Meeting exploring the extent to which the workplace is ready for emergency preparedness and individuals with disabilities. It is great to be back and see friends and former colleagues here at the Commission. Although I don’t consider myself an expert on emergency preparedness, I have enough experience with employment discrimination and disability policy more broadly to offer some advice on today’s timely topic.
Before focusing in on emergency preparedness issues, I would like to touch briefly on the broader context of today’s hearing, and look at the question of whether the workplace is ready and welcoming of individuals with disabilities in general. Earlier this month, the Cornell University Rehabilitation Research and Training Center on Disability Demographics and Statistics released a disability status report based on the annual American Community Surveys showing that the employment rate of working-age people with sensory, physical, mental, and/or self-care disabilities decreased from 40.8 percent in 2001 to 38.3 percent in 2004, in the U.S.1
In 2003, when Rutgers University conducted a survey of employers regarding their experience with disabled employees, only 26 percent of the employers responding indicated that they employed at least one person with a physical or psychiatric disability. In trying to explain possible reasons for the lack of representation of people with disabilities in their workforces, almost one third of the employers said that the nature of the work done by their company was not something that disabled people would be capable of doing.2
In 2004, EEOC issued a report on the state of equal employment opportunity in the federal workforce showing that the number of federal employees with "targeted disabilities" (a term that refers to people with more significant disabilities like blindness, deafness, paralysis, intellectual disabilities, psychiatric disabilities, etc.) had been steadily declining for the ten years from fiscal year 1994 to fiscal year 2003, resulting in a net loss of about 20 percent during that ten-year period.3 The EEOC report noted that by 2003, individuals with targeted disabilities were only one percent of the total federal workforce. Moreover, the report found that between 1999 and 2003, "the rate of decline for employees with targeted disabilities was more than eight and a half times greater than the rate of decline for the federal workforce as a whole."
These three recent studies combined paint the picture of a workplace that has not proven to be particularly welcoming or ready for employees with disabilities, notwithstanding the requirements of federal laws like the ADA and the Rehabilitation Act. The Rutgers finding that almost a third of employers felt that disabled people are unable to do the type of work that goes on in their companies shows that ignorance grounded in fears, myths and stereotypes about people with disabilities is alive and well in a disturbing number of American workplaces.
I begin my testimony with these sobering studies because I believe it is important that the issue of emergency preparedness and the workplace be thought about in this broader context. We don’t want an over-emphasis on emergency preparedness in the workplace to create additional reasons for employers to discriminate against qualified job applicants and workers with disabilities. I am hopeful that EEOC’s work in this area will be very careful to remind employers that their own fears about how a disabled employee would fare in an emergency will rarely if ever be a justification for failing to hire a qualified job applicant or terminating a qualified worker's employment.
EEOC's litigation in EEOC v. DuPont involving a disabled employee who was terminated based on the employer’s fears that she would be unable to evacuate safely in an emergency is a good example of how this issue can play out in a way that harms disabled employees. I commend EEOC for taking this case to trial and reinforcing the fact that a direct threat defense is a narrow defense and not something that an employer will be able to fall back on without compelling evidence of an imminent risk of substantial harm to the worker or others. I would encourage EEOC to pursue and publicize similar cases so that the employer community will be put on notice not to take the increased emphasis on emergency preparedness as a license to discriminate against qualified employees.
Moreover, I would encourage the Commission to consider issuing additional guidance on the limited nature of the direct threat defense, and the danger of employer paternalism with respect to job applicants or workers with disabilities in the aftermath of high-profile disasters. In this guidance, EEOC might want to point out the history of disabled people being excluded from lots of settings because of unfounded fears that they would be a “fire hazard” if they were allowed entrance. Employers should be warned not to exclude workers in the name of emergency preparedness anymore than they would exclude clients or customers on such a basis.
To the extent that EEOC wants to help employers become better prepared for emergencies, I would encourage the Commission to encourage employers to design evacuation policies and other emergency procedures that will account for contingencies beyond the needs of their current workforce. Policies grounded in a snapshot of the workforce at any point in time will undoubtedly miss issues that might arise with new hires, contract workers, employees with temporary disabilities, and/or visitors, clients and customers with disabilities.
Perhaps as a prelude to EEOC's fact sheet on obtaining and using employee medical information as part of emergency evacuation procedures, EEOC may want to caution employers that they are not likely to have such information on all of the people that might be on their premises in the event of an unexpected emergency, and their procedures need to account for these contingencies.
EEOC's fact sheet discusses examples involving disabilities that may affect an employee’s mobility in an evacuation context. I would encourage the Commission to point out other disability-related issues that may come up in an emergency, including items like communications access issues (e.g. visual alarms), assistance for people with intellectual disabilities and brain injuries, and issues for people with anxiety disorders and other mental health conditions in an emergency situation.
I appreciate the fact sheet statement that the "employer should not assume… that everyone with an obvious disability will need assistance during an evacuation." In general, following the lead of employees with disabilities in this arena is a good practice. In fact, EEOC might want to encourage employers to put together an advisory group of employees with disabilities to help evaluate and fine tune emergency procedures.
In addition to the work EEOC is doing with employers, I would encourage the Commission to produce materials for employees with disabilities so that they know their rights under the ADA and advocate effectively for their own interests. This would be helpful in the context of emergency preparedness, but it applies more broadly to the full range of disability-based employment discrimination issues. In general, there continues to be a strong need for user-friendly materials and training about the ADA and employment that can easily be understood by people in the protected class.
Much of EEOC's outreach work and trainings are targeted at attorneys and other professionals, many of whom can afford to pay to fly Commission staff to various locations to deliver such training. I appreciate the recent efforts of Chair Dominguez and the Commission staff to reach out to AAPD and other disability organizations and participate in our events and conferences where possible. To build on these efforts and reach more people, I would recommend that the Commission develop a policy of encouraging Commission staff to seek out opportunities to leverage these trips to reach out directly to disability organizations and offer free seminars or workshops for people with disabilities when they travel for professional speaking opportunities. I firmly believe that the best way to enforce civil rights laws is to have a well-educated protected class that knows its rights and how to access enforcement assistance when those rights are violated. EEOC can and should play a more proactive role in supporting education and training of disabled workers and job applicants, along with individuals in other protected classes, about their employment rights under federal civil rights.
Shortly after the ADA was enacted, EEOC teamed up with the U.S. Department of Justice (DOJ) to contract with the Disability Rights Education and Defense Fund to conduct a series of “train- the-trainer” trainings for individuals who could go on and conduct further trainings for people in the protected class and organizations in their local communities. I would encourage the EEOC to work with DOJ and other agencies to make these kinds of trainings available on an ongoing basis, and in multiple languages.
I want to thank you again for giving me this opportunity to testify. I appreciate the Commission's leadership in calling attention to disaster preparedness and some of the unique issues this topic brings up for workers with disabilities. I also want to acknowledge and appreciate the Chair’s leadership on a number of disability issues, and the Commission's critical role in pursuing justice for thousands of charging parties with disabilities every year. I look forward to working with all of you and EEOC’s talented staff to help make the ADA's vision of equality of opportunity a reality for the millions of working-aged Americans with disabilities.
1 See Cornell University's 2004 Disability Status Reports at www.disabilitystatistics.org.
2 See The Heldrich Center for Workforce Development, Rutgers University, “Restricted Access: Work Trends Survey of Employers About People with Disabilities” (March, 2003), at www.heldrich.rutgers.edu.
3 See US Equal Employment Opportunity Commission, Office of Federal Operations, "Annual Report on the Federal Workforce, Fiscal Year 2003," at www.eeoc.gov.
This page was last modified on October 25, 2005.
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