Speaking from his wheelchair, Michael Stein, an associate professor at the Marshall-Wythe School of Law at The College of William and Mary, outlined his schematic for reassessing the employment process for disabled workers before an audience of about 100 Thursday.
Stein said his research, which will appear in the forthcoming issue of the Duke Law Journal, arose from vague language in the Americans with Disabilities Act of 1990. Atlhough the act charges employers to provide a "reasonable accommodation" for disabled workers, courts have not provided sufficient guidance as to what accommodations are and are not "reasonable," he said.
"In summary judgments, judges tend to say they deny or they grant [enforcement of] an accommodation," Stein said. "There's not even a brief, let alone prolonged, discussion on why an accommodation might or might not be 'reasonable.'"
Stein also explained that judges have not been overly sympathetic toward the disabled as is sometimes alleged. Judges have decided 92 percent of cases filed by disabled workers involving employment issues in favor of the employer.
Meanwhile, the ADA also cites "undue hardship" on the employer as sufficient basis for refusing disabled worker accommodation--a turn of phrase that Stein says remains overly vague.
"'Undue hardship' is this magical, hard-to-define level at which it is too hard for the employer," Stein said. "There's just no guidance."
He defined two types of costs for employers of disabled workers: hard costs-- physical and structural accommodations such as wheelchair ramps--and soft costs--changes in job functionality, such as having an employee who can reach higher than one in a wheelchair restock items on a shelf.
But the bulk of these costs, Stein said, are eminently affordable. Stein cited the work of Peter Blanck, a professor at the University of Iowa's College of Law, which found that 72 percent of accommodations changes proposed in court would be free and that only 1 percent would cost more than $1,000.
After outlining a handful of cases on disability employment law, Stein launched into his schematic, which uses neoclassical economics to divide employment scenarios into five archetypes of cost-effectiveness: a model wherein hiring a disabled person is "wholly efficient;" two models wherein the hiring is "semi-efficient;" a model wherein the hiring is a "social benefit;" and a model wherein the hiring is "wholly inefficient."
Driving the mathematics, Stein stressed, is the fundamental truth that a disabled worker is on average as productive as a physically sound one.
The most common disinclination toward workplace accommodation, Stein said, comes not from outright prejudice but from information asymmetries, as firms frequently overestimate the costs of hiring disabled workers.
Two solutions Stein proposed were granting an employee an absolute right to the accommodative benefit but allowing the employer to sue back, which would reverse the onus of action; and creating an accommodation bank to provide an independent source of accommodation funds.
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