By now you’ve probably heard that the pandemic has hit certain groups more than others. Women, particularly women of color, have lost a historic number of jobs, which has a ripple effect on the wage gap and the global economy overall. What’s less well known is that between March and August 2020 a million workers with disabilities lost their jobs, and by December, unemployment among this cohort climbed to 12.3%—which is about twice the national average.
One in four U.S. adults (61 million) has some type of disability. The Americans with Disabilities Act (ADA) offers federal protection for these individuals to prohibit employers from discriminating against them on the basis of disability, just as Title VII mandates that an employer can’t discriminate based on race, origin, color, religion, or sex. That legislation didn’t pass without a long, drawn-out battle, and other laws are still rife with loopholes that allow companies to discriminate. For instance, the eight-decades-old Fair Labor Standards Act has an exemption that allows employers to pay workers with disabilities “special” minimum wages because they can’t perform the job as an able worker would.
It’s a great illustration of how individuals with any kind of disability have been reduced to the bias—conscious or unconscious—that they’re somehow not whole and mentally and physically capable of doing the work.
Bias as old as the U.S. itself
This bias is as old as the U.S. itself. According to the ADA National Network, in colonial times:
“Fear, shame and lack of understanding led some families to hide or disown their disabled members or allow them to die.” A system of “farming out” those individuals whose families were unable or unwilling to support them to people who received public assistance to provide for their room, board, and care “survived until the latter part of the 19th century.”
Around 1820, institutionalization of those with mental and/or physical disabilities was common, but public perception started to erode the practice, in part because abuse and neglect were rampant. The other reason was that in order to “protect” the individuals, these institutions did nothing to encourage self-sufficiency. As the ADA National Network opined, “The loss to these individuals and to society of their freedom and contributions cannot be calculated. As a result many individuals who could have contributed to society and lived productively have been isolated and segregated.”
1920s-1960s: The impact of industrialization and war
Two things hastened change between the 1920s and the 1960s. One was the rise in industrial accidents, and the other was the return of veterans from World Wars I and II and the Korean War. Getting these people back to work was an initiative that spurred federal legislation that is widely considered the forerunner to our current law. And the advances in medicine and rehabilitation modalities made it easier for those who had mental and physical disabilities to reenter the workforce.
“An increasing humanization of certain classes of disabled people based on qualities of deservedness, normalcy and employability and a move from total societal indifference to a recognition that the remaining ‘unfortunates’ must receive some level of minimal care” characterized this era, which took a page from the playbook of the civil rights movement.
1973: Section 504 of the Rehabilitation Act
As Arlene Mayerson noted in her article chronicling the history of the ADA for the Disability Rights Education & Defense Fund, a “profound and historic shift” in public policy happened when Section 504 of the 1973 Rehabilitation Act was passed.
For the first time, Mayerson wrote:
“The exclusion and segregation of people with disabilities were viewed as discrimination. Previously, it had been assumed that the problems faced by people with disabilities, such as unemployment and lack of education, were inevitable consequences of the physical or mental limitations imposed by the disability itself. Enactment of Section 504 evidenced Congress’ recognition that the inferior social and economic status of people with disabilities was not a consequence of the disability itself, but instead was a result of societal barriers and prejudices. As with racial minorities and women, Congress recognized that legislation was necessary to eradicate discriminatory policies and practices.”
The other thing Section 504 made clear was that those with disabilities were seen as a whole minority group facing discrimination rather than separate, with differing needs based on diagnoses.
1980s: Progress on the fight against employment discrimination
On the employment front, in a historic case—Consolidated Rail Corporation v. Darrone, 465 U.S. 624 (1984)—the Supreme Court found that employment discrimination was prohibited by Section 504 and formed the basis of the ADA. Other cases in the 1980s pushed the definition of disabilities to include infectious diseases, which would eventually offer protection for those with HIV/AIDS.
Soon after, in 1988, Senator Lowell Weicker and Representative Tony Coelho introduced the first version of the ADA at the 100th Congress, inspired by a draft bill prepared by the National Council on Disability. A joint hearing was held that September in which dozens of witnesses whose lives had been touched by disability testified.
Several more years went by as congressional committees debated under the pressure of business associations which Mayerson noted “had rallied their members to oppose or weaken the bill.”
1990: The ADA passes
It would take a new administration to pass the legislation. Title III of the ADA, covering public accommodations, and Title II of the ADA, covering state and local government passed, on January 26, 1990. The employment provisions in Title I of the ADA passed months later, on July 26, 1990.
Revisions and additions have been made over the years, but basically, the ADA prohibits employers with 15 or more employees from discriminating against applicants or employees with disabilities in hiring, pay, promotion, termination, etc. It also protects employees from retaliation when they enforce their rights under the law.
There is plenty of nuance beneath these broad strokes. (You can read the full text of the legislation here.) For example, even though postpartum depression qualifies as a condition that affects a major life activity and is therefore covered by the ADA, the Equal Employment Opportunity Commission (EEOC) sued an employer that fired an employee suffering from postpartum depression. That case was settled out of court.
Overall, though, “the ADA is based on a basic presumption that people with disabilities want to work and are capable of working, want to be members of their communities and are capable of being members of their communities and that exclusion and segregation cannot be tolerated,” Mayerson wrote. “Accommodating a person with a disability is no longer a matter of charity but instead a basic issue of civil rights.”
CORRECTION: An earlier version of this article misstated when the ADA was signed into law. The correct date is July 26, 1990.