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Disability Inclusive Employment Policy RRTC
Disability Inclusive Employment Policy Rehabilitation Research and Training Center Newsletter

July 2023 - Issue 10

Welcome

Welcome to the tenth issue of the Disability Inclusive Employment Policy RRTC newsletter. The Rehabilitation Research and Training Center (RRTC) on Disability Inclusive Employment Policy (DIEP) is designing and implementing a series of studies to produce new data and evidence on policy levers to increase the employment rates of working age individuals with disabilities. The goal of the Center is to inform future employment policy and program development. The Center is a collaboration between researchers at Burton Blatt Institute at Syracuse University (BBI) and researchers at Harvard and Rutgers Universities. 

Invite others to receive this quarterly FREE newsletter to stay updated on the latest employment policy research related to advancing economic stability, and security for youth and adults with disabilities.

US Supreme Court Ruling on College Affirmative Action Programs: Potential Impact on the Workplace

On June 29th, the US Supreme Court issued a decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina.  The decision reverses past historical precedent regarding affirmative action in college admissions based on race as violating the Equal Protection clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964.

Although the decision does not directly address employer efforts to foster inclusive and diverse workforces, the Disability Inclusive Employment Policy Center (DIEP) is concerned about its longer-term impacts on disability, equity, inclusion, and accessibility (DEIA) programs. If employer DEIA programs are the next to come under attack because of their focus on race, it may undermine the ability of companies to maintain these programs and ultimately impact the ability of employers engage in any hiring preferences, including proactive hiring of people with disabilities.

The 6-3 majority decision authored by Chief Justice Roberts determined that the use of race-conscious admission processes does not pass the “strict scrutiny test” that needs to be applied whenever one person is favored over another because of their race. The majority opinion explains that “college admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.” This argument may or may not hold up in an employment case.

The decision does not address employment practices under Title VII of the Civil Rights Act or other federal civil rights laws like the Americans with Disabilities Act (ADA) governing employment. However, as a result of this decision, it is likely new legal challenges will come over into the employment arena challenging particular affirmative action and diversity, equity and inclusion (DEI) plans and policies of specific employers. Affirmative action programs required of federal contractors and monitored by the Office of Federal Contract Compliance Programs (OFCCP) should not be impacted by the Court’s decision.

The Equal Employment Opportunity Commission (EEOC) Chair, Charlotte A. Burrows, issued the following statement regarding the Court’s decision and makes it clear that “…It remains lawful for employers to implement diversity, equity, inclusion and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” Chair Burrows also stated “Today’s Supreme Court decision effectively turns away from decades of precedent and will undoubtedly hamper the efforts of some colleges and universities to ensure diverse student bodies. That’s a problem for our economy because businesses often rely on colleges and universities to provide a diverse pipeline of talent for recruitment and hiring. Diversity helps companies attract top talent, sparks innovation, improves employee satisfaction, and enables companies to better serve their customers.

The Disability Inclusive Employment Policy RRTC will in coming months continue to monitor the impact of the ruling on both college affirmative action programs and any related activities that impact employers and their efforts to create a diverse and inclusive workforce

** New Podcast Series**

Let’s Get to Work – Reimagining Inclusive Employment Policy Podcast Season 3 

View the podcast series webpage
Web: disabilityinclusiveemployment.org/podcase-series

This third round of the Let’s Get to Work Podcast offers insights and policy ideas from four subject matter experts with diverse backgrounds. Areas of focus include telework, artificial intelligence and algorithmic bias, inclusive apprenticeships, and the impact of covid-19 on employment of people with disabilities. All four speakers discuss the importance of changing systems, structures and supports throughout the life cycle of employment.

Listen to Lydia X.Z. Brown, Director of Public Policy at the National Disability Institute and the former Policy Council with the Privacy and Consumer Data Project at the Center for Democracy and Technology, discuss the emerging challenges of artificial intelligence (A.I.) and algorithmic-based tools used by employers that create bias and new discriminatory barriers to hiring and measuring performance of employees.

“We need to have comprehensive civil rights protections updated for the digital age. There are employers who are not knowingly or intentionally discriminating, but nonetheless are implementing policies or adopting AI-based tools that have a discriminatory impact on disabled people’s lives.” – Lydia X.Z. Brown

On May 12, 2022, the U.S. Equal Employment Opportunity Commission issued a technical assistance document that discusses how existing ADA requirements may apply to the use of software, algorithms, and AI to assess job applicants and employees. The guidance explains how an employer’s use of algorithmic decision-making tools might violate the ADA by providing examples of ways an employer might rely on a tool that intentionally or unintentionally screens out an individual with a disability even though that individual is able to do the job with reasonable accommodations.   See The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees [www.eeoc.gov/guidance]

Listen to Ari Ne’eman, a doctoral candidate in health policy at Harvard University, a member of the research team for the DIEP RRTC, and the former co-founder of the Autistic Self Advocacy Network (ASAN)discuss how Covid-19 induced expanded telework and made it more difficult for employers to argue that physical presence in the workplace is an essential component of job duties.  Using data from the Current Population Survey, his recent research examined employment trends for people with and without disabilities over the course of the pandemic and during the economic recovery that followed. This data indicates the expansion of telework in some occupations increased the employment rate of people with disabilities.

“ I believe the shift to telework has really changed the frontier of what is plausible, with respect to requesting a reasonable accommodation. Now, it’s also the case that many employers have chosen to maintain their workplace flexibility and maintain their telework as an option for everyone. The bottom line is that the broader scope of what you can ask for - a reasonable accommodation and the universal design element of more workplaces making telework available to everyone in certain jobs - benefits people with disabilities and may reflect structural changes that we hope will stick even after the economy cools down and labor market is less tight than it is today.” – Ari Ne’eman

To learn more please see the article authored by Ari Ne’eman and Dr. Nicole Maestas, How Has Covid-19 Impacted Disability Employment and View DIEP RESEARCH BRIEF: How has COVID-19 impacted disability employment? (PDF)

Listen to Nicholas Wyman, Executive Director of the Institute for Workforce Skills and Innovation (IWSA) discuss the advantages of apprenticeships for individuals with disabilities. He stresses the importance of employers customizing apprenticeship opportunities to reduce systemic barriers that prevent people with disabilities from participating in apprenticeships. Mr. Wyman describes the role that IWSI plays as an intermediary in a unique pilot program with the California Department of Rehabilitation (DOR) in Orange County. The pilot is creating mentorships and the supports needed for California DOR clients to succeed in diverse apprenticeship options such as medical billers and coders, pharmacy technicians, and dental assistants.

 

“The person is learning skills or an occupation in a real workplace. Importantly they are being paid to learn, so they are earning and learning. …The thing about an apprenticeship is that it is very customizable to the individual. When we are working with folks with disabilities, we build in structured mentoring support. We want to make sure that the person doesn’t just get the job, we want them to keep the job.” – Nicholas Wyman

To learn more about the apprenticeship pilot project in the allied health care sector through partnerships with local health care employers in Orange County, disability support service providers, the role of IWSI and California DOR, visit the readywillingable website. (www.readywillingable.us)

See also the policy brief authored by Nanette Goodman, Nick Canfield and Michael Morris: Disability Inclusion in Registered Apprenticeship Programs

To promote inclusion of more individuals with disabilities in apprenticeship programs, the US Department of Labor has set an aspirational goal that 7 percent of a sponsors registered apprenticeship programs consist of qualified individuals with disabilities. This goal is not a mandatory level to be reached. However, sponsors are required to make good faith efforts to reach this goal. See www.apprenticeship.gov/EEO to learn more about the equal employment opportunity (EEO) regulation for registered apprenticeship programs.

Listen to Mason Ameri, an Associate Professor at the Rutgers Business School in the Department of Management and Global Business and a member of the DIEP research team, as well as the RRTC on Employer Practices research anchored at Rutgers Universitydiscuss the importance of telework in increasing the employment of people with disabilities but highlights the fact that  people with disabilities are less likely to be in white collar, teleworkable jobs. He also shares with the listeners insights into groundbreaking study on hiring discrimination. He suggests future priority areas that need to be explored, particularly related to telework and reasonable accommodations.

To learn more about changing employment patterns and telework during the pandemic see Mason Ameri, Douglas Kruse, So Ri Park, Yana Rogers, Lisa Schur: Telework During the Pandemic: Patterns, Challenges and Opportunities for People with Disabilities

Syracuse, Harvard, and Rutgers universities' logos

DISCLAIMER The contents of this newsletter were developed under a grant from the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR grant number 90RTEM0006). NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this website do not necessarily represent the policy of NIDILRR, ACL, or HHS, and you should not assume endorsement by the Federal Government.”

 

About BBI

The Burton Blatt Institute (“BBI”) at Syracuse University reaches around the globe in its efforts to advance the civic, economic, and social participation of people with disabilities. Through program development, research, and public policy guidance, BBI advances the full inclusion of people with disabilities. BBI builds on the legacy of Burton Blatt, a pioneering disability rights scholar. BBI has offices in Syracuse, NY and Lexington, KY. Learn More about BBI