The Arc of Texas, an organization dedicated to inclusion, advocacy and disability rights, is hiring a new CEO. Their job announcement, as originally posted, made one thing clear: Disabled people need not apply.
Towards the bottom of the application, a strange list of criteria under the headline, “Physical and Mental Requirements,” included “Seeing, Hearing/Listening, Clear speech, Ability to move distances between offices and workspaces, Driving.” The next post, for another well-paid leadership position, added “manual dexterity, lifting up to 25 pounds, carrying up to 25 pounds” to the list, making it even more restrictive.
What’s a disability rights organization doing pre-emptively discriminating against disabled individuals in their most important hiring? And is this kind of language — which can be found in job postings from the tech sector, the non-profit world, and countless academic jobs — even legal?
Samuel Bagenstos, now an expert on disability law at the University of Michigan and a former Principal Deputy Assistant Attorney General for Civil Rights at the US Department of Justice, called The Arc posting “a pretty blatant violation of the Americans with Disabilities Act.”
“I really thought it was a bad joke, not a serious job advertisement,” he wrote me in an email. “The ADA prohibits employers from adopting selection criteria that screen out classes of individuals with disabilities unless the criteria are job-related. There is no strong business reason why the CEO or the advocacy director should have to be able to see, hear, drive, lift or carry. These aren’t manual-labor jobs.”
When disabled people are excluded from applying for jobs, the disability community suffers and businesses cheat themselves out of potential great employees. Jay Ruderman, President of the Ruderman Family Foundation, which advocates for the full inclusion of people with disabilities into society, told me, “people may not know that people with disabilities are the largest minority in our country and the poorest segment of our population. It is fundamentally unjust that 70 percent of people with disabilities are unemployed and excluded from inclusion in the daily aspects of life most of us take from granted.”
Ruderman cited the benefits of hiring people with disabilities, noting that employers get, “a loyal, hard-working employee [and] their entire workforce is energized through their engagement in a socially just workplace.” Statistics from the Department of Labor confirm Ruderman’s assessment. Only 19.2 percent of people with disabilities participate in the labor force, as opposed to 68.1 percent without disabilities. The unemployment rate overall is 4.6 percent, but for people with disabilities, it’s 10.3 percent.
Disabled Americans are well aware of the problem. Lauren Appelbaum, Director of Communications at RespectAbility, a non-partisan organization focused on empowerment for the disabled, told me that when polling disabled voters in the 2014 election cycle, “58 percent of the disability community rank a candidates’ position on the economy, jobs and wages as the No. 1 issue when asked to rank their top 3 issues.” That pattern continues in the current electoral cycle.
Why is it so hard for disabled Americans to find work? Obviously, some people are prevented from doing some kinds work due to their disabilities. Others are heavily reliant on government benefits, which often limit the number of hours or level of income one can achieve without jeopardizing those benefits.
That said, too often the problem is a failure of imagination. Perhaps some employers deliberately discriminate against disabled job candidates, but job ads like The Arc of Texas’ suggest persistent, pernicious ableism. These clauses appear regularly in higher education jobs as well. I found around 60 current advertisements, including faculty, staff and administrative positions, at diverse types of universities. At many institutions, every job posting receives one of these clauses, despite many positions being perfectly suited to individuals with all types of bodies, senses and minds.
The University of Arkansas – Little Rock regularly inserts the following clause into their jobs, taken here from an application for a French professor:
Sedentary Work - Exerting 10 pounds: Occasionally, Kneeling: Occasionally, Climbing (Stairs, Ladders, etc.): Occasionally, Lifting 10-25 lbs: Occasionally, Carrying 5-10 lbs: Occasionally, Pushing/pulling 5-10 lbs: Occasionally, Sitting for long periods of time: Occasionally, Standing for long periods of time: Occasionally, Speaking; Essential, Hearing: Essential, Vision: Ability to distinguish similar colors, depth perception, close vision: Essential, Walking - Short Distances: Frequently
The Director of First Year writing at University of Texas at Arlington must “climb stairs.” A Development Officer at Clarion University Foundation is required to lift 25 pounds, one of the most common ways that disabled people are pre-emptively excluded. It’s reasonable for a job involving manual labor to require lifting. Making that 25-pound standard universal, though, excludes a huge class of people.
Here’s the worst: The Director of Diversity and Inclusion at Tarrant County College District, an office that includes oversight over disability issues, must be able to meet “physical demands” such as the need to “sit; use hands to finger, handle, or feel objects, tools, or controls; reach with hands and arms; and talk or hear.” What’s more, the employee is “occasionally required to stand; walk; climb or balance; stoop, kneel, crouch, or crawl; and taste or smell,” as well as “frequently lift and/or move up to 10 pounds and occasionally lift and/or move up to 25 pounds.” And “Specific vision abilities required by this job include close vision, distance vision, color vision, peripheral vision, depth perception, and the ability to adjust focus.”
Every category in the Director of Diversity posting is listed as essential, even the ability to taste or smell. Sam Crane, Director of Public Policy at the Autistic Self Advocacy Network and a disability rights lawyer, told me, “based on the job description that I’m seeing here, I’d say that’s illegal.” An employer cannot simply list categories that exclude wide swathes of disabled Americans without a very strong reason.
How does this happen? Perhaps Human Resource managers just slap boilerplate lists of requirements into all postings, never thinking about all the disabled individuals whom they are pre-emptively excluding. That’s certainly what both Kyle Piccola, Director of Government Affairs for The Arc of Texas, told me, and Peter V. Berns, CEO of The Arc’s national office, confirmed. Piccola added, in an email, “We recognize this mistake and have taken action to fix the problem.” They subsequently replaced the clause with an Equal Employment Opportunity statement.
I called Human Resources at the University of Arkansas – Little Rock and Tarrant County College District, identified myself as writing for Al Jazeera America, and asked to speak to the appropriate person about these clauses and their rationales. As instructed, I left detailed messages. At the time of publication, I had not received a response to my queries.
These examples are just the tip of the iceberg. Go to your favorite job site and search for “25 pounds.” I suspect you’ll be shocked at how many non-manual-labor jobs have lifting requirements. Think about how many extremely qualified, dedicated, workers won’t even bother applying, even though in fact they would do the job as well as anyone else.
Unintentional discrimination is still discrimination. Boilerplate clauses keep disabled people from even applying for jobs. “Requirement creep,” likely put in place by HR professionals eager to avoid trouble, exacerbates discrimination and could, if someone had the time and money, lead to legal trouble. Without deliberate change, unemployment will continue to be the biggest problem facing Americans with disabilities. It’s time for employers to take a hard look at their hiring practices.