The Limitations of Disability Antidiscrimination Legislation: Policymaking and the Economic Well‐being of People with Disabilities

• DOI: http://doi.org/10.1111/lapo.12024
• Date: 01 October 2014
• Author: Michelle Maroto,David Pettinicchio
• Published date: 01 October 2014

The Limitations of Disability Antidiscrimination

Legislation: Policymaking and the Economic

Well-being of People with Disabilities

MICHELLE MAROTO and DAVID PETTINICCHIO

Although Congress passed the Americans with Disabilities Act (ADA) to

address, in large part, the declining economic well-being of people with

disabilities—twenty years later—the trend has not reversed. To shed light on this

puzzle, we use multilevel models to analyze Current Population Survey data from

1988 through 2012 matched with state-level predictors. We take a more nuanced

approach than previous research and consider institutional factors related to the

creation, enforcement, and interpretation of legislation, as well as individual

demographics and employment situations. Our results show continual gaps in

employment and earnings by disability status connected to the enactment of

state-level antidiscrimination legislation, the number of ADA charges brought to

the Equal Employment Opportunity Commission, and the results of ADA court

settlements and decisions. Our findings suggest a complex relationship between

legislative intent and policy outcomes, showcasing the multilayered institutional

aspects behind the implementation of disability antidiscrimination legislation.

When Senators Weicker and Larkin first introduced the Americans with

Disabilities Act (ADA; Public Law No. 101–336 [1990]) in 1988, only 30

percent of people with disabilities in the United States were employed. Title I,

the section of the ADA pertaining to employment discrimination, sought to

address this persistent nonemployment among people with disabilities. The

law served to extend antidiscrimination provisions of the Rehabilitation Act

of 1973 (Public Law No. 93–112 [1973]) to the private sector and to clarify

congressional intent on disability rights. As former Representative Tony

Coelho, a cosponsor of the ADA, stated in a 2008 congressional hearing:

America and Congress, when it passed the ADA, proposed a true model to the

rest of the world—because of our goal and dedication to the full inclusion of all

Americans into the mainstream of life. This includes our understanding and

belief that people who have disabilities are fully capable of working in

Address correspondence to Michelle Maroto, University of Alberta—Sociology, 6-23 Tory

Building Edmonton Alberta T6G2H4, CN. Telephone: 780.492.0478; E-mail: maroto@

ualberta.ca.

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LAW & POLICY, Vol. 36, No. 4, October 2014 ISSN 0265–8240

© 2014 The Authors

Law & Policy © 2014 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12024

competitive employment and being productive members of society. (US House.

Committee on the Judiciary 2007).

Since Coelho gave this statement, however, employment for people with

disabilities has declined. In 2008, employment was at 23 percent. By 2012,

twenty years after the ADA took effect, just 18 percent of working age people

with disabilities were employed, compared to 64 percent of people without

disabilities (US Bureau of Labor Statistics [BLS] 2013). Additionally, when

people with disabilities do work, they occupy lower-level positions, work

fewer hours, and earn less money than people without disabilities (She and

Livermore 2007; Unger 2002; Haveman and Wolfe 1990).

The continuing labor market disparities for people with disabilities have

prompted much research into the topic organized around two main streams.

One stream offers multiple individual- and occupational-level explanations

for the limited employment of people with disabilities. These explanations

include the simple inability to work, a lack of human capital, the nature of the

work, the role of occupational norms and practices, the extension of disabil-

ity benefits, and employer discrimination, to name a few. A second stream of

more policy-focused research has revolved around two dominant perspec-

tives: unintended harm and judicial resistance. The former suggests that the

ADA inadvertently created disincentives for employers in hiring people with

disabilities, while the latter argues that policy enforcement and conservative

court decisions have limited the ADA’s efficacy. Although these explanations

highlight different mechanisms supporting the relationship between policy

and labor market outcomes, both are premised on the ability of antidiscrimi-

nation legislation to shape public perceptions and both allude to certain

limitations associated with disability antidiscrimination policy (see Lee 2003;

Russell 2002; Acemoglu and Angrist 2001).

Despite a general interest in the employment and earnings of people with

disabilities, few studies have attempted to integrate multiple explanations

when investigating these outcomes. Many policy-oriented approaches have

ignored supply and demand-side factors at the individual and organizational

levels, and studies have also narrowed their analyses of policy effects to the

ADA, overlooking other institutional factors and state legislation (Kruse and

Schur 2003; Acemoglu and Angrist 2001; DeLeire 2000). The few state-level

analyses, like that of Beegle and Stock (2003) and Jolls and Prescott (2004),

have casted some doubt on the unintended harm thesis, showing that people

with disabilities fared better in states that enacted disability antidiscrimina-

tion laws early on. However, many studies have not adequately considered

the relationship between federal and state-level policymaking and variation

in policy enforcement, given the limited number of years in their analyses, nor

have they provided an integrated framework for understanding the link

between multiple institutions and labor market outcomes (see Donahue,

Stein, and Griffin 2011 for a critique). Finally, it remains unclear whether

antidiscrimination policies at the federal and state levels should affect

Maroto and Pettinicchio THE LIMITATIONS OF DAL 371

© 2014 The Authors

Law & Policy © 2014 The University of Denver/Colorado Seminary

barriers to employment and workplace conditions, including earnings, in the

same way.

We address these limitations by linking individual and occupational

factors with more institutional arguments to ascertain how these components

have shaped employment and earnings outcomes for people with disabilities

over the past twenty-five years. While our article contributes to existing

empirical work on disability employment trends by incorporating more

recent data, we also take a more nuanced approach that considers institu-

tional factors related to specific pieces of legislation, enforcement through the

Equal Employment Opportunity Commission (EEOC), and court decisions,

as well as individual demographics and employment situations. This

approach allows us to demonstrate how policymaking and enforcement at

the state and federal levels shape employment outcomes, while accounting

for individual capacities, demographics, and employment characteristics.

Few studies have offered such an integrated analysis of individual, occupa-

tional, and institutional factors at multiple levels.

Using this integrated approach, we investigate two main research ques-

tions: How much do individual-level factors, the availability of government

assistance, employment situations, and state-level variation explain trends in

employment and earnings for people with disabilities over the past twenty-

five years? And, which federal and state-level institutional factors of legisla-

tion, EEOC complaints, and court cases explain disparities in employment

and earnings by disability status since the introduction of the ADA? In

addressing these questions, our article contributes both theoretically and

empirically to existing work on disability antidiscrimination policy and labor

market outcomes.

We begin this article by reviewing the contributions and limitations of previ-

ous research on the effects of the ADA. We then discuss different levels of

explanations for disparities in earnings and employment by disability status.

Because we seek to integrate multiple levels of analysis, we use multilevel models

to analyze Current Population Survey (CPS) data from 1988 through 2012

matched with state-year-level predictors. Accounting for institutional layering,

which includes the complex relationship between congressional intent, executive

branch regulation, judicial interpretation, and state-level policymaking, pro-

vides a useful framework for specifying how certain policy-oriented explana-

tions affect labor market inequalities net of individual and occupational factors.

After describing our analytical framework, we present results that help to dis-

entangle the effects of policy interventions on removing barriers to employment

on the one hand, and improving workplace conditions on the other.

EXPLAINING DISABILITY LABOR MARKET DISPARITIES

Although the ADA sought to address discrimination and persistent unem-

ployment among people with disabilities, like many policies, it did not specify

372 LAW & POLICY October 2014

© 2014 The Authors

Law & Policy © 2014 The University of Denver/Colorado Seminary