Acts of legislation in the United States like the Americans With Disabilities Act frame disability as a civil crime; if you discriminate against a person with disabilities who is protected under the law, that person can take you to court to sue you for compensation. Likewise, the Department of Justice can choose to take action, particularly in cases involving multiple instances of systemic discrimination. This means, of course, that many people cannot afford to use the legal system to challenge discrimination, because you need to pay for legal representation in civil cases, and this is not an option for everyone. It’s also a particular problem with discrimination in the workplace, which can be insidious and hard to fight.
People with disabilities seeking employment can be discriminated against from the start in terms of employment decisions that mysteriously pass over all the disabled candidates. There will always be a perfectly reasonable explanation; someone with better qualifications, an employee who seemed like a better fit with the ethics of the company, something. Anything. Proving discrimination in these cases can be extremely difficult, especially for someone who may be searching for a job and doesn’t have time to deal with a suit, and also doesn’t want to be known as a ‘lawsuit-happy’ employment candidate; being involved in a civil case can make you unappealing to prospective employers who fear you will do the same to them.
Once actually in the workplace, discrimination can take a myriad of forms for disabled employees, and again, it’s hard to fight. It’s difficult to put your finger on it, to pin it down and say ‘this specifically is happening.’ Disabled employees are entitled to accommodations, but this requires asking for them, negotiating for them, working with staff to get them. In some workplaces, this is easier than others. Some are designed to be disability friendly and want to work with staff. Others are resistant, and find ways of making the workplace casually hostile.
Which means that disabled employees facing discrimination have tough decisions to make. They can keep going through the system, working on getting accommodations and talking with personnel about how to get them. Or they can consider a suit, in which case they need to ask if they have enough material to prove discrimination, can afford an attorney, can prove the case in court. Since there’s a myth that disabled people simply like to sue willy nilly, juries often look unfavorably on civil rights cases involving disability discrimination, which means the bar can be high for successfully proving a case.
A ready and clear instance of discrimination might not look like it to a jury, especially after the business owner gets on the stand and testifies about how difficult and unreasonable the requested accommodation was. The jury thinks, well, the disabled person was asking for something out of line, and it’s a pity, but that’s the way it is. The plaintiff shouldn’t have been working in that job at all, or the respondent was right to fire the plaintiff, who obviously didn’t fit in.
Disabled employees have few protections in the workplace, and this has huge consequences for them. In cases where it might be possible to file a suit and address an issue, there will always be lingering doubts; going to court might not be the best move, politically, for the individual, even if the case would be a slam dunk and has the support and endorsement of an attorney used to handling such cases. It might be more important to be known in the industry as someone easygoing and accommodating than to get a reputation as the kind of person who sues people.
At the end of the line, keeping your job, even if the working conditions aren’t very functional, could be more important than anything else. Especially when that job comes with benefits and protections, like health care to cover disability-related expenses that would be impossible to bear independently. Some disabled employees walk a fragile line, because they can’t afford health services on their own, and must either work to get benefits or earn enough to pay for them independently, or end up unemployed and able to access government assistance, which still won’t meet their needs. The fragility of existence for some workers can mean that the best option is to say nothing in the face of discrimination, to grit your teeth and bear it, because you need to survive.
Which, of course, means that employers get away with maintaining inaccessible workplaces, and don’t learn about how to make accommodations and deal with disabled employees. This is not the fault of people who don’t or can’t speak up about disability access needs, it’s the fault of a world where accessibility is deemed the responsibility of the individual, rather than the employer. Employers should have frameworks in place for handling accommodations requests and making sure disabled staff feel comfortable and welcome. They should hire consultants to discuss how to make their spaces more friendly. They should be ready to provide accessibility services to people with a range of disabilities, but they aren’t, and no one holds them accountable for this.
Because it’s a civil crime, which means that the victims of the violation are the ones tasked with enforcing it. And unless a case is large or complex, organisations that promote civil rights can’t take it on, because they need to use their resources as efficiently as possible. Fighting for one worker who needs an extra break to maintain good blood sugar levels isn’t worth it on the grand scale, doesn’t make enough of a difference for the community as a whole, so that employee is left out in the cold by framing accessibility as a personal responsibility, right down to the legal handling of accommodations requests and discrimination.
