Norfolk Southern to pay $2.5M to settle disability bias suit
Dive Brief:
- Norfolk Southern Corporation and Norfolk Southern Railway Company will pay $2.5 million to settle a disability bias lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) that accused the railway of a wide range of unlawful behavior against employees and job applicants under the Americans with Disabilities Act (ADA). Thirty-seven workers will receive monetary relief (EEOC v. Norfolk Southern Corp. et al., No. 2:17-cv-01251 (W.D. Pa. July 22, 2020)).
- The railway's medical department "disqualified workers from employment based on a range of actual or perceived disabilities, or a history of such disabilities" that had been disclosed in pre-employment or return-to-work evaluations, EEOC said in a press release. The employer failed to consider how workers' conditions would affect their ability to perform their work safely, the commission alleged.
- "The agreement resolves a matter initiated by the EEOC well over a decade ago. We are confident no disability discrimination took place, but moving forward and focusing instead on our business and best-in-class employment practices is a better use of everyone's time and resources," a Norfolk Southern spokesperson said in a statement emailed to HR Dive.
Dive Insight:
The ADA is 30 years old, but as this case and others illustrate, the federal law remains relevant. The ADA is clear that employers generally need to accommodate workers and job applicants with disabilities. The law requires employers with 15 or more employees to provide reasonable accommodations for employees and job applicants with disabilities unless the employer would suffer an undue hardship as a result.
Undue hardship means that, taking into account the employer's size, financial resources and business needs, the accommodation would be "too difficult or too expensive to provide," EEOC says in guidance.
But accommodations don't need to be expensive or elaborate, and they can take many forms. Something as simple or inexpensive as a chair for an employee with a back problem or a nearby container of orange juice for a worker with diabetes may be enough. The EEOC clearly takes the position that modifying a workplace policy because of an employee's disability can be a reasonable accommodation, it has explained. Another reasonable accommodation may involve additional leave time beyond what is otherwise provided.
Once an employee has requested an accommodation, experts recommend employers engage in an interactive process to identify possible solutions. Because the ADA does not require that accommodation requests be in writing or that specific language be used, experts say employers should develop a system that helps managers and supervisors recognize accommodation requests.
After the accommodation has been put into place, supervisors should follow up to make sure that it's working. If not, a new one should be pursued, David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, has said.
How the Americans with Disabilities Act transformed a country
This groundbreaking civil rights legislation—signed into law in 1990—was “the world's first declaration of equality for people with disabilities.”
More than 2,000 disability rights advocates gathered on the South Lawn of the White House in Washington, D.C., on a hot summer day. It was July 26, 1990, and they’d come together to witness one of the most momentous civil rights victories in decades: President George H.W. Bush signing the Americans with Disabilities Act (ADA) into law.
During the signing ceremony—days after the Fourth of July—Bush admitted that the United States hadn’t always lived up to its founding principles of freedom and equality. “[T]ragically, for too many Americans, the blessings of liberty have been limited or even denied,” he said. “Today’s legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty, and the pursuit of happiness.”
The ADA not only provided comprehensive civil rights protections for people with disabilities for the first time in the nation’s history, but it also marked a sea change in the nation’s attitudes toward disability rights. Here’s how the landmark statute came to be, and how it transformed the country.
The disability rights movement gains steam
Throughout history, people with disabilities were feared and ridiculed for their perceived defects and pushed to the margins of society. By the 1960s, that discrimination had been codified. People with disabilities were excluded from public schools, involuntarily sterilized, sent to live in state-run institutions, and even denied the right to vote. Some U.S. municipalities even had so-called “ugly laws” prohibiting people with “unsightly or disgusting” deformities in public places.
It was a world designed not to include people with disabilities. Government buildings and private businesses alike lacked ramps and elevators, while public transportation rarely provided accommodations for people with mobility or visual impairments. Having a disability was considered a medical problem to be solved rather than an identity to be protected under non-discrimination laws.
But things began to change in the 1970s. Inspired by the civil rights movement of the 1960s, disability rights advocates became more vocal in their demands that their rights ought to be guaranteed as well. Disability had also become more noticeable as wars in Vietnam and Korea returned thousands of soldiers with lasting injuries. In 1973, advocates won the passage of Section 504 of the Rehabilitation Act, which prohibited programs receiving federal funding from discriminating against people with disabilities. It was the first piece of legislation to use the term “discrimination” to describe the limitations that these Americans face.
For the law to go into effect, the government would have to issue regulations defining who qualifies as a person with a disability and what constitutes discrimination in the disability context. The Department of Health, Education, and Welfare put off issuing those regulations for four years as they wrestled over the terms. Impatient with the delay—and worried it meant the regulations would be weakened—advocates organized protests around the country. In April 1977 they launched a sit-in at a federal building in San Francisco that would last for 28 days—
With Section 504, the American public began to understand that making accommodations for people with disabilities was a civil right rather than a welfare benefit. It also galvanized a growing disability rights movement that won several other important victories in the 1970s and 1980s—including legislation that guaranteed a free public education to children with impairments and prohibited housing discrimination on the basis of disabilities.
Yet discrimination persisted. In 1979, the Supreme Court ruled that the nursing school at Southeastern Community College in Whiteville, North Carolina, was not required by Section 504 to accommodate a hearing-impaired applicant. In other circumstances, regulations were simply not well enforced. For example, transit authorities were left to decide for themselves how accessible they needed to be. (A skull discovered in Spain suggests that early humans cared for disabled children.)
In the mid-1980s, advocates came to the conclusion that the critical next step was to push for comprehensive civil rights legislation for people with disabilities. The National Council on Disability commissioned a report on the need for such a law, while its vice chair Justin Dart—who would later become known as the “Godfather of the ADA”—embarked on a national tour to discuss disability policy with local officials and gather stories of the discrimination people with disabilities faced.
These advocacy efforts made an impression on both sides of the political aisle. Disability rights had become a bipartisan issue thanks to years of changing public perceptions. In 1988, Senators Lowell Weicker, a Republican from Connecticut, and Tom Harkin, a Democrat from Iowa, introduced the Americans with Disabilities Act. After years of revisions, amendments, and negotiations, the bill was passed, and on that July day Bush—who had made civil rights legislation for people with disabilities a campaign promise in 1988—signed it into law with Dart by his side.
Why the ADA matters
The Americans with Disabilities Act was a sweeping piece of legislation that banned discrimination on the basis of disability in employment, public accommodations, public services, transportation, and telecommunication. It finally afforded people with disabilities the same protections that the Civil Rights Act of 1964 had provided on the basis of race, color, religion, sex, and national origin.
"It is the world’s first declaration of equality for people with disabilities," Dart wrote after the ADA was passed. "It will proclaim to America and to the world that people with disabilities are fully human; that paternalistic, discriminatory, segregationist attitudes are no longer acceptable; and that henceforth people with disabilities must be accorded the same personal respect and the same social and economic opportunities as other people."
The ADA launched the process of building a more accessible world by ensuring that buildings, schools, and public spaces were equipped with ramps, elevators, and curb cuts. It made travel easier by requiring operators to make accommodations, such as offering wheelchair lifts, airport shuttle service, and rental cars with hand controls. It also led to the rise of interpreters and closed captioning in public communications. (These five coastal areas have made accessibility a priority.)
Crucially, this legislation has also become a model for lawmakers and activists around the world seeking to end discrimination against people with disabilities in their countries. Since 2000, more than 180 countries have passed legislation inspired by the ADA.
The law is limited, however. The ADA has been criticized for failing to increase employment among people with disabilities—only 19 percent are in the workforce today compared with 66 percent of those without disabilities. People with disabilities are still disenfranchised. Accommodations at polling places across the nation are inadequate; in 2016, a government report found that 60 percent of the polling places it examined had one or more potential impediments, such as ramps that were dangerously steep or paths in poor condition. Meanwhile, 39 states and Washington, D.C., have incompetence laws that allow judges to strip the vote from people they deem incapable of participating in the democratic process, such as people with mental impairments. Stigma and discrimination persist throughout society too.
The ADA may not be perfect, but as Dart wrote in 1990, it “is only the beginning. It is not a solution. Rather, it is an essential foundation on which solutions will be constructed.”
5 Ways To Avoid An Accessibility Fail
To start with, for disabled people inaccessibility is discrimination. This is one of the core insights of the disability rights movement. With disability, it’s not enough to want or intend to do right. Your feelings about disabled people aren’t much help. You have to do actual things to ensure disabled people have equal access and opportunity. Sometimes, you have to change familiar practices. You may have to do more for a disabled person in order to treat them equally. And you may have to make physical changes to your buildings and facilities in order to ensure your door really is open to disabled people, both literally and figuratively.
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The Americans with Disabilities Act (ADA) celebrated its 30th birthday this July. Three decades ago, the ADA represented a huge step forward for the rights of people with disabilities. In 2020, it's time to advance even further.