The Americans with Disabilities Act : A Note on Personnel Policy Impacts in State Government[*].

The Americans with Disabilities Act (ADA) is important legislation designed to prohibit discrimination against disabled persons, but most state and local governments covered by the Act were already prohibited from discrimination against the disabled by provisions of Section 504 of the Rehabilitation

Act of 1973. This article reports the results of a national survey designed to measure the perceptions of personnel managers from state government departments and agencies regarding the impact of the ADA on public personnel management practices given concurrent coverage of the Rehabilitation Act. A majority of the managers from organizations subject to the Rehabilitation Act reported that the ADA had no significant effects on their organizations. Substantial proportions of respondents agreed, however, that the ADA did have certain more narrowly defined effects on public personnel practices. Possible explanations for the perceived effects of the ADA despite coverage by the Rehabilitation Act are considered.

[*] An earlier version of this paper was presented at the Annual Meeting of the American Political Science Association, Boston, MA, September 3-6, 1998. This research was made possible by grants from the Carl Vinson institute of Government and the Office of the Vice President for Research at the University of Georgia. Special thanks go to Richard W. Campbell and Rebecca A. Hill.

The Americans with Disabilities Act (ADA) is fundamental and comprehensive civil rights legislation designed to protect disabled individuals from discrimination by public or private employers and to ensure that public facilities, services, and accommodations are accessible to the disabled.[1] Passage of the law in 1990 drew considerable attention, with advocates for the disabled applauding the Act and its provisions as a major accomplishment, while some in the business community expressed concern over projected costs of compliance.[2] In the intervening years, various aspects of the Act and its implementation have been reviewed and discussed by numerous practitioners and academicians concerned with the law's potential effects on public personnel management practices.[3]

The major provisions of the law with implications for public personnel management are widely known. In addition to banning discrimination by private employers, Title I of the ADA prohibits discrimination by state or local governments against qualified disabled persons in all stages of the employment process including application procedures, selection, training, promotion, compensation, and dismissal. Title II prohibits discrimination in the provision of public services, and for the purposes of enforcement, "public services" have been interpreted to include public employment.[4] When the law went into effect in 1992, the provisions of Title I applied only to employers with twenty-five or more employees, but coverage was extended to employers with fifteen or more employees two years later. However, employment practices of all state and local governments, regardless of the size of their work forces, were required to be in compliance with the law in 1992 because of the provisions of Title II.[5]

Federal government agencies were excluded from coverage of the ADA because anti-discrimination and affirmative action provisions of the Rehabilitation Act of 1973 already governed the federal sector. Section 501 of the Rehabilitation Act prohibited the federal government from discriminating against the disabled and required that federal agencies establish affirmative action plans for the hiring and advancement of disabled persons. Section 503 imposed similar requirements on federal contractors. Section 504 of the Rehabilitation Act prohibited discrimination against the disabled by any organization receiving federal financial assistance. The ADA was modeled after regulations implementing Section 504, and many of the terms and concepts contained within the ADA were previously articulated in those regulations.[6] As a result, the net effect of the ADA, in terms of legal requirements affecting public employment, is to apply anti-discrimination provisions similar to those of the Rehabilitation Act of 1973 to state and local governments regardless of the size of the governments or whether they receive federal assistance.[7]

As would be expected, in the years since the ADA became effective several government jurisdictions have had to contend with ADA-based legal challenges. In a 1995 study of this development, Augustus J. Jones, Jr. observed that as many as "460 ADA cases were filed in lower federal courts three years after the ADA's promulgation."[8] Jones reviewed all cases decided between February 1993 and March 1995 in which state or local government practices were contested under Title II of the Act. Most of the challenges involved issues pertaining to public services other than employment, but importantly, several cases addressed public personnel practices directly. In one such case, a police officer who had lost the use of his left arm and had been forced to take disability retirement sued to retain his job.

In another case, a county government refused to allow the use of vacation time to accommodate the absences of an employee who had exhausted available sick leave. The employee, who was eventually terminated, sued for reinstatement and the ability to use vacation time in the manner previously requested.[9] Of course, disabled plaintiffs, such as the individuals in these cases, do not always prevail (the police officer, for example, lost his claim), but the costs of litigating cases like this can be significant for the government involved, and the prospect of serious legal challenges makes compliance with the ADA all the more imperative.

It would appear, then, that the potential impact of the ADA on public personnel management in state and local government is significant. All state and local jurisdictions are covered by the Act. The law prohibits discrimination against "qualified" disabled individuals in virtually every aspect of employment. The ADA defines a qualified disabled person as "an individual with a disability who with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires."[10] A disability is defined as any physical or mental impairment that "substantially limits one or more of the major life activities" including walking, seeing, hearing, speaking, learning, caring for oneself, and working.[11]

Individuals who have had such an impairment in the past but are no longer impaired, as well as individuals who may be perceived as having such an impairment although they actually do not have it are also protected by the law. Employers are allowed to determine which job functions they believe are essential (and courts give great weight to employers' views on essential functions), but the organization is required to make reasonable accommodations for disabled persons who are otherwise able to perform those functions unless provision of such accommodations imposes an "undue hardship" on the employer. Undue hardship is defined relative to an employer's resources and capacity to implement accommodations.[12]

Nevertheless, whether the ADA has actually had a dramatic effect on personnel administration in state or local governments is an empirical question that has received relatively little systematic attention. Much of the existing research on the ADA has noted the likely impacts of the law but has not measured the degree to which those effects have occurred.[13] The question regarding the actual impact of the ADA arises and is important because state and local governments who receive federal financial assistance would already be covered by Section 504 of the 1973 Rehabilitation Act. Presumably, most state or local governments would fall into that category, and since the requirements of the ADA parallel those of the Rehabilitation Act, some doubt should remain as to whether the ADA has really brought dramatic change to public personnel management.

A recent study by Stephen E. Condrey and Jeffery L. Brudney, designed to examine implementation of the ADA, casts some light on this issue.[14] Condrey and Brudney found that administrators in large municipalities (those with 50,000 or more people) perceived the ADA as important legislation. A substantial proportion of those administrators reported that their cities had made accommodations for disabled persons, including some accommodations related to personnel practices such as modifying employee application forms and examinations and restructuring jobs. The authors also found that the larger municipalities generally made greater accommodations than smaller cities, but the possibility that some of those accommodations may have been part of earlier efforts designed to ensure compliance with the Rehabilitation Act was not specifically addressed.

The purpose of this current article is to present research designed to examine that issue directly by looking at public organizations covered by the Rehabilitation Act and asking about the impact of the ADA on their personnel procedures beyond the effects of the Rehabilitation Act itself. It could be expected that in many organizations covered by the Rehabilitation Act the ADA would not be seen as having significant effects. Whether that is true or not, however, this study should provide additional useful information regarding the actual extent and nature of impact of the ADA on personnel management in the public sector.

The ADA and Personnel Management: Reviewing Possible Effects

The range of personnel management procedures subject to ADA prohibitions on discrimination is, as has already been noted, quite extensive. The ADA requires, for example, that all practices related to employee selection be free from discrimination. Compliance will require, among other things, that the employer ensure that disabled persons have access to the employment application process. This requirement may mean that the employer will have to provide assistance in the completion of application forms as well as make certain that the physical facilities where applications are obtained are accessible. In addition, questions that inquire about medical conditions or impairments may not be included on the application form.[15]

The ADA also provides impetus for greater attention to examination validity. The concern here is similar to that which arises in relation to other laws prohibiting discrimination in employment, especially Title VII of the Civil Rights Act of 1964. Specifically, any employee examination process that disproportionately screens out individuals in a protected class (disabled individuals under the ADA) must be shown to be directly related to the job in such a way that there is a reasonable connection between performance on the examination and an applicant's subsequent ability to perform on the job.

An employer whose examination practices eliminate significantly larger numbers of disabled persons than non-disabled persons may be in violation of the ADA unless it can be demonstrated that the examination is valid in this sense. In other words, the examination may eliminate from consideration only those applicants who lack the skills, knowledge, or ability to perform tasks essential to the job.

The job interview is also subject to ADA requirements. Applicants who score well on an examination may be asked to interview with line managers or supervisors who ultimately may make the selection decision. But as is the case with other pre-employment inquiries, the ADA imposes restrictions on the kinds of questions that may be asked in the interview process. Questions regarding disabilities or the nature of apparent disabilities are not permitted. Employers may not ask about medical conditions or impairments for which the applicant has been treated in the past. Employers may inquire, however, as to whether or not the applicant can perform essential job functions with or without a reasonable accommodation and what accommodation may be necessary. To sensitize managers as to the kinds of questions permitted in the interview process, training on the ADA and its requirements may be necessary.

The ADA also prohibits pre-employment medical examinations, but medical examinations or medical inquires may be made after an offer of employment has been extended and before the applicant has assumed the responsibilities of the job. However, the medical examination or inquires must be shown to be job-related and all entering employees must be subjected to the same evaluation. Initial employment or continued employment may be conditioned on the results of this kind of medical inquiry only.

Other implications of the ADA for personnel management may involve job definitions and structuring along with job evaluation and the need to specify essential job functions. The law itself states that a reasonable accommodation for a disabled person may involve "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices," as well as "appropriate modifications to examinations, training materials, or policies."[16] Furthermore, because the need for accommodation is tied to the definition of essential job functions, job analysis, classification, and the nature of written job descriptions are important concerns. The ADA provides that "consideration shall be given to the employer's judgement as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."[17] Under these circumstances, the importance of having up-to-date and accurate job descriptions can hardly be overemphasized.

Data and Method

In order to determine whether the potential effects of the ADA on public personnel management practices have actually been realized, a questionnaire was mailed to a nation-wide random sample of 350 personnel managers located in state government agencies. Managers from all 50 states were included in the sample, and respondents were guaranteed anonymity. A postcard with return postage was included in the initial mailing with the survey instrument and a cover letter. Respondents were asked to return the postcard separately from the survey, and receipt of the returned postcard served as an indication that the questionnaire had been returned. Respondents and non-respondents could then be identified, but, of course, specific respondents could not be associated with specific returned questionnaires. To increase the response rate, non-respondents were sent follow-up postcard reminders about four weeks after the original mailing encouraging them to complete the questionnaire. About four weeks later, a second follow-up mailing with a replacement copy of the questionnaire and a letter urging participation in the study was distributed to those who had still not responded.[18] Through this process, 189 completed surveys were returned, generating a respectable response rate of 54 percent.

State agency personnel managers were targeted by the survey because it was believed that they would most likely be in a position to know the effects the ADA had on their organization. The survey was distributed early in 1994, approximately three-and-a-half years following passage of the law and eighteen to twenty months after it went into effect. By that point in time, the managers should have been keenly aware of the kinds of impacts the law was having on personnel practices. Responses were received from personnel managers in all 50 states. Women comprised 46 percent of the respondents, while 54 percent were men. All major racial/ethnic groups were also represented with 79.9 percent of the respondents being white, 12.8 percent African-American, 3.9 percent Hispanic, 1.7 percent Asian, and 1.7 percent Native American. The age of the respondents ranged from 32 to 68 years with a mean of 47. Forty-four percent held graduate degrees, 43 percent possessed bachelors degrees as their highest educational credential, and 13 percent had not graduated from college. Seventy-five percent of the respondents had ten or more years in personnel management, most having worked exclusively in the public sector. Respondents held positions with such titles as "Director of Personnel Division," "Human Resource Manager," "Personnel Manager," "Director of Personnel," and other related titles.

Results

Because the purpose of this research was to probe the impact of the ADA in organizations that may have already been covered by provisions of Section 504 of the Rehabilitation Act of 1973, the survey asked whether or not the respondent's agency was required to meet Rehabilitation Act standards prohibiting discrimination against the disabled. Slightly more than ninety-four percent of those responding (n = 160) indicated that their organizations were covered by the Rehabilitation Act. Approximately six percent (n = 10) said that their organization was not covered by the 1973 law. This result was expected since, as indicated earlier, provisions of the Rehabilitation Act extend to any organization receiving federal financial assistance. The implication is that nearly all of the organizations represented in the survey should have been meeting anti-discrimination requirements designed to protect the disabled prior to passage of the ADA.

The next question addressed was the extent to which these agencies may have altered established personnel practices in response to requirements of the ADA. To begin to investigate that issue, personnel managers were asked specifically whether they agreed or disagreed with the statement that "The ADA has had no significant impact on this organization because we are already covered by the Rehabilitation Act of 1973." Reactions to that statement by managers who also had indicated that their organization was covered by the Rehabilitation Act are summarized in Table 1.

Table 1. Perceptions of the Impact of the ADA in Organizations Covered by
the Rehabilitation Act

Survey Statement                                Agree    Neutral    Disagree
The ADA has had no significant impact on this
organization because we are already covered
by the Rehabilitation Act of 1973.               53.2%    10.7%       36.1%

As illustrated, 53.2 percent of these managers agreed that the ADA had "no significant impact" on their organization. This is an interesting finding, which suggests that the extent of impact of the ADA on public personnel management may have been somewhat more restricted than often acknowledged. A clear majority of the personnel managers from organizations covered by the Rehabilitation Act apparently believed that the ADA had not significantly affected their agency. Since all of these respondents were from organizations already prohibited from discrimination against the disabled, however, one might have expected that the percentage reporting no impact of the ADA would have been even higher. From this perspective, the more intriguing indication may be that almost 11 percent of the managers were neutral on this statement and more than 36 percent disagreed. One could assume, given this response pattern, that at least 36 percent of the respondents found that the ADA had significantly impacted their organizations despite preexisting coverage by the Rehabilitation Act.

In an effort to better understand reactions to this survey item, an attempt was made to correlate these responses (agreement, neutrality, and disagreement with the statement that the ADA had no significant impact) with selected agency characteristics. For example, it was expected that agency size would be associated with the response patterns. That is, respondents from small agencies were expected to be more likely to agree that the ADA had no impact on their organization than those from larger agencies because small agencies would be less likely to have sufficient resources to permit significant accommodations for the disabled or major changes to personnel procedures. No such statistical relationship was uncovered, however. There was no pattern in the responses to indicate that respondents from small agencies were less likely to see impact of the ADA than those from larger agencies. Similarly, the possibility that perceptions of the impact of the ADA were associated with pubic employee union strength within the agencies was also examined. The hypothesis was that managers from more unionized agencies would be more likely to disagree with the statement that the ADA had no significant effect because unions would work to see that the interests of the disabled were protected. But, again, no such pattern emerged. Apparently, the perceived impact of the ADA is unrelated to union strength. Other variables, including the size of the agency's budget were also examined, but no meaningful relationship was uncovered. No satisfactory statistical explanation for the distribution of responses on the item probing the general impact of the ADA could be found. What we do know, however, is that most managers (over 50 percent) did not see significant effects from the ADA. A smaller, but substantial proportion (36 percent), nevertheless, apparently did believe that the law had affected their agency significantly.

To gain insight into the types of specific impacts the law may have had, respondents were asked whether they agreed or disagreed with more narrowly defined statements regarding possible effects of the ADA. These statements were constructed in such a manner that agreement would indicate impact of the law rather that a lack of impact. Looking only at responses from organizations covered by the Rehabilitation Act, it is clear, as reported in Table 2, that substantial proportions of the managers agreed that the ADA had certain specific effects on their organizations. The data in Table 2 include three rows of responses for each statement. The first row reflects responses from managers who had earlier agreed that the ADA had no "significant" impact on their organization (as reported in Table 1). The second row contains responses from all managers regardless of their perception of the general impact of the ADA, and the third row consists of responses from those managers who had disagreed with the statement that the ADA had no significant impact on their organization.

Table 2. Reactions to Statements Describing Expected Effects of the ADA
(Responses from Managers in Organizations Covered by the Rehabilitation Act)

Survey Statements                                         Agree

The ADA has significantly altered the         [***]        26.5%
personnel selection process of this            [**]        32.1%
organization                                    [*]        43.9%

The ADA has affected pre-employment           [***]        23.4
job-skill testing                              [**]        31.3
                                                [*]        40.7

The ADA has affected pre-employment           [***]        20.3
medical screening                              [**]        23.7
                                                [*]        25.9

The ADA has forced, or will force, this       [***]        16.7
organization to hire individuals who           [**]        17.4
would not have been hired prior to              [*]        19.3
enforcement of the ADA

The ADA has resulted in job requirements      [***]        46.3
being redesigned                               [**]        45.7
                                                [*]        52.8

The ADA has forced this organization to       [***]        46.4
conduct job evaluations                        [**]        53.1
                                               [*]         63.2

The ADA has resulted in job descriptions      [***]        48.8
being rewritten                                [**]        55.3
                                                [*]        67.9

The ADA has resulted in job classifications   [***]        58.2
being reviewed                                 [**]        61.1
                                                [*]        63.5

The ADA has imposed administrative            [***]        46.4
burdens on this organization                   [**]        59.4
                                                [*]        82.5

Survey Statements                             Neutral   Disagree

The ADA has significantly altered the           7.2%      66.3%
personnel selection process of this            12.6%      55.3%
organization                                   10.5%      45.6%

The ADA has affected pre-employment            23.4       53.2
job-skill testing                              22.0       46.7
                                               18.5       40.8

The ADA has affected pre-employment            34.1       45.6
medical screening                              30.9       45.4
                                               25.9       48.2

The ADA has forced, or will force, this        11.8       71.5
organization to hire individuals who           15.0       67.6
would not have been hired prior to             14.0       66.7
enforcement of the ADA

The ADA has resulted in job requirements        3.7       50.0
being redesigned                                7.3       47.0
                                                7.6       39.6

The ADA has forced this organization to        19.0       34.6
conduct job evaluations                        20.6       26.3
                                               19.2       17.6

The ADA has resulted in job descriptions        3.7       47.5
being rewritten                                 3.9       40.8
                                                1.9       30.2

The ADA has resulted in job classifications     5.1       36.7
being reviewed                                  5.4       33.5
                                                3.8       32.7

The ADA has imposed administrative             15.5       38.1
burdens on this organization                   13.8       26.8
                                                7.0       10.5

[***] Responses from managers who agreed with the statement, "The ADA had no
significant impact on this organization because we are already covered by
the Rehabilitation Act of 1973." (N=84)

[**] Responses from managers in organizations covered by the Rehabilitation
Act of 1973 regardless of their response to the question about the general
impact of the ADA. (N=160)

[*] Responses from managers who disagreed with the statement, "The ADA had
no significant impact on this organization because we are already covered by
the Rehabilitation Act of 1973." (N=57)

Generally speaking, managers who had earlier implied that the ADA had a significant impact on their organizations (36.1 percent of those covered by the Rehabilitation Act) were much more likely to agree that certain specific effects of the ADA were present. For example, 82.5 percent of those managers agreed that "The ADA has imposed administrative burdens on this organization." By comparison, only 46.4 percent of those who saw no general significant impact of the ADA agreed with this statement, although that is obviously not an insignificant proportion. It is even more interesting to see that as many as 58.2 percent of the managers who had agreed earlier that the ADA had "no significant impact" on their organization found that the Act had led to the review of job classifications. Over 61 percent of all managers (regardless of their general impressions) and 63.5 percent of those that had earlier suggested that there were significant general effects of the ADA also agreed with that perception (see Table 2). In addition, large proportions of all groups agreed that the ADA had resulted in job requirements being redesigned, job evaluations being conducted, and job descriptions being rewritten. Smaller, but perhaps not inconsequential proportions (for example, 32.1 percent of all respondents covered by the Rehabilitation Act), agreed that the ADA had significantly altered the personnel selection process in their organization. The statement reflecting the possibility that the ADA had forced or will force organizations to hire individuals who would not have been hired previously garnered the least amount of support.

The survey also attempted to assess the extent to which personnel managers had the perception that the ADA had adversely or negatively affected personnel administration in their organizations. It is certainly true that the ADA placed constraints on personnel managers and diminished managerial flexibility.[19] Several items were included on the questionnaire to examine the possibility that negative impressions of the Act had been formed. Responses to those items are presented in Table 3. Generally speaking, the most striking characteristic of these responses is that noticeably fewer of the personnel managers surveyed agreed that these types of impacts (as opposed to those listed in Table 2) actually occurred. The item that generated the most agreement was the statement that "The ADA has imposed requirements upon this organization which are unduly intrusive into personnel issues." But only 17.5 percent of all respondents covered by the Rehabilitation Act agreed with that statement while 30.6 percent were unsure and over 50 percent disagreed. Another item probed the issue of whether the ADA may have reduced the agency's ability to screen applicants. Only 15.6 percent of all respondents agreed with that statement. Significantly fewer (11.2 percent overall) agreed that the ADA had caused concern among employees that they would be exposed to communicable diseases, and fewer still (8.7 percent overall) apparently believed that the ADA will lead to the hiring of individuals who are not qualified to work in the agency. On balance, these results indicate that the potential for the kinds of negative effects illustrated in Table 3 is relatively small, but as might be expected, respondents who had previously disagreed with the statement that the ADA had no significant impact (see Table 1) were more likely to agree that these specific effects had occurred than were those who had earlier reported no significant general effects of the ADA.

Table 3. Reactions to Statements Describing Possible Adverse Effects
of the ADA on Personnel Practices

(Responses from Managers in Organizations Covered by
the Rehabilitation Act)

Survey Statements                                         Agree

The ADA has reduced our ability to           [***]         8.3%
screen employees during the                   [**]        15.6%
selection process                              [*]        22.8%

The ADA has forced, or will force, this      [***]          7.1
organization to hire individuals who are      [**]          8.7
not qualified to work in this organization     [*]         10.5

The ADA has caused concern among             [***]          9.5
employees that they will be exposed to        [**]         11.2
communicable diseases in the work place        [*]         15.8

The ADA has imposed requirements             [***]         13.1
upon this organization which are              [**]         17.5
unduly intrusive into personnel issues         [*]         24.6

Survey Statements                            Neutral   Disagree

The ADA has reduced our ability to             10.7%      81.0%
screen employees during the                    11.9%      72.5%
selection process                               7.0%      70.2%

The ADA has forced, or will force, this          6.0       86.9
organization to hire individuals who are         6.9       84.4
not qualified to work in this organization       5.3       84.2

The ADA has caused concern among                16.7       73.8
employees that they will be exposed to          25.6       63.2
communicable diseases in the work place         31.5       52.7

The ADA has imposed requirements                26.2       60.7
upon this organization which are                30.6       51.9
unduly intrusive into personnel issues          28.0       47.4

[***] Responses from managers who agreed with the statement,
"The ADA had no significant impact on this organization because
we are already covered by the Rehabilitation Act of 1973." (N=84)

[**] Responses from managers in organizations covered by the
Rehabilitation Act of 1973 regardless of their response to the
question about the general impact of the ADA. (N=160)

[*] Responses from managers who disagreed with the statement,
"The ADA had no significant impact on this organization because
we are already covered by the Rehabilitation Act of 1973." (N=57)

Responses to other items on the questionnaire also produced intriguing results. For example, one item addressed the impact of the ADA on the provision of employee accommodations. As indicated in Table 4, only 14 percent of the total sample of personnel managers in organizations covered by the Rehabilitation Act of 1973 indicated that ADA requirements had "no" impact on employee accommodations. More that 70 percent of these managers responded that the ADA had "some" impact on employee accommodations, and 15.3 percent found that the law had resulted in "extensive" impact on accommodations for employees with disabilities. Once more, despite the fact that these respondents were from organizations that should have already been in compliance with anti-discrimination regulations designed to protect the disabled, there is a relatively strong suggestion that the ADA has nevertheless been influential.

Table 4. Impact of the ADA on the Provision of Employee Accomodations
(Responses from Managers in Organizations Covered by the
Rehabilitation Act)

Survey Statements                               Percent Saying Yes

ADA requirements have had no impact     [***]      20.5%
on employee accommodations               [**]      14.0%
                                          [*]       0.0%

ADA requirements have had some impact   [***]      71.1
on employee accommodations               [**]      70.7
                                          [*]      74.5

ADA requirements have had extensive     [***]       8.4
impact on employee accommodations        [**]      15.3
                                          [*]      25.5

[***] Responses from managers who agreed with the statement, "The ADA had no
significant impact on this organization because we are already covered
by the Rehabilitation Act of 1973." (N=84)

[**] Responses from managers in organizations covered by the Rehabilitation
Act of 1973 regardless of their response to the question about the
general impact of the ADA. (N=160)

[*] Responses from managers who disagreed with the statement, "The ADA
had no significant impact on this organization because we are already
covered by the Rehabilitation Act of 1973." (N=57)

Personnel managers were also asked to respond to an open-ended question inquiring about any additional impacts, which the ADA may have had on their agencies. Thirty-nine managers gave responses to this item with comments ranging from a statement that the ADA has resulted "mostly in state-wide worry and expense since the Rehabilitation Act already required good practices," to one manager's expressed fear that the ADA would adversely affect the ability of supervisors to discipline employees for poor performance. By far the most frequently observed comments, however, centered on the idea that the ADA had led to an increased need for employee and supervisor training. Sixteen of the thirty-nine personnel managers responding to this item specifically mentioned training needs and several noted that considerable resources had been expended to make certain that the necessary training in ADA requirements was provided.

Summary and Conclusion

In general terms, this research has presented two basic findings. The first is that among personnel managers from state government agencies covered by the Rehabilitation Act of 1973, a large proportion, indeed a majority, report that the ADA had no significant impact on their organizations. This finding should in no way diminish the overall importance of the ADA, however. Provisions of the law imposing requirements on private sector employers without government contracts and sections of the Act addressing public transportation and public accommodations do represent dramatic developments. The impact of the law on public personnel practices has, nevertheless, apparently been limited.

The second basic finding is that while impact of the ADA on public personnel management has been constrained, it has obviously occurred in a number of state organizations. The most frequently reported impacts of the law are focused in the areas of job evaluation, classification, and job descriptions. Typically, more than half of the personnel managers agreed that these types of effects were present. Over 53.1 percent of managers in organizations covered by the Rehabilitation Act agreed that the ADA resulted in their organizations conducting job evaluations, and 55.3 and 61.1 percent respectively reported that job descriptions had been rewritten and job classifications had been reviewed. That the impact of the ADA would be concentrated to some extent on these kinds of concerns is not surprising given the need for organizations to consider job restructuring and the nature of essential job functions as they contemplate employment accommodations for the disabled. There is also considerable evidence, however, of impact of the ADA in other areas of personnel management. Approximately one-third of the same respondents reported that the ADA had significantly altered the personnel selection process in their agency or had affected pre-employment job testing. A significant number also believed that the law resulted in changes in policies regarding pre-employment medical screenings.

This reported magnitude of impact of the ADA in organizations already subject to legal prohibitions on discrimination against the disabled is interesting. The question that comes to mind, given these responses, is why so many of these managers find that the ADA has been influential. This puzzle would be more easily understood if it could be shown that provisions of Section 504 of the Rehabilitation Act were relatively weak compared to those of the ADA. That does not appear to be the case, however. The legal requirements of Section 504 were (and are) no less stringent than those available under the ADA with respect to government employers. A state agency that violated Section 504 could face the loss of federal financial assistance, restrictions on future assistance, or civil litigation that could bring injunctive and equitable relief to an individual plaintiff including reinstatement and back pay for employees wrongly denied job opportunities. Compensatory damages for intentional discrimination were also a possibility.[20] Litigation under the ADA can result in essentially the same penalties. Injunctive and equitable relief are available, and since November of 1991, when the Civil Rights Act of 1991 became effective, plaintiffs have been able to recover compensatory damages under the ADA for intentional discrimination.[21] Under both the ADA and the Rehabilitation Act, the courts may allow plaintiffs who prevail to recover reasonable attorney's fees.[22]

Because the legal remedies for discrimination under Section 504 prior to 1992 and the remedies associated with the ADA are not substantially different when a government employer is involved, one must look for other explanations for the apparent impact of the ADA in public organizations covered simultaneously by the Rehabilitation Act.[23] The most probable explanation may be related to the symbolism associated with the ADA and the wide publicity that accompanied its implementation. The ADA pushed the concerns of the disabled to a prominent position on our national agenda. There was extensive coverage of the law by virtually all news organizations at the time of its enactment. This was not surprising given that many of the law's provisions regarding the private sector and public services were quite remarkable, but as has already been noted, implications of the law for most state or local governments, at least in terms of new legal mandates, were limited. Nevertheless, it seems likely that the Act and the publicity surrounding it further sensitized state personnel managers to the needs of disabled individuals and to the kinds of legal ramifications their organizations could face unless efforts were made to protect the disabled from discrimination. Greater awareness of these issues may have, in turn, led to a redoubling of efforts by state government agencies to ensure compliance with nondiscrimination mandates. It may well be that, with respect to personnel management in state agencies, the impact of the ADA has been determined as much by the attention the law generated as by the substance of its provisions.

Notes

[1] U S. Office of the Federal Register, United States Statutes at Large, Vol. 104, pp. 327-378, (Washington D.C.: Government Printing Office, 1990).

[2] For discussion of these issues, see Julie Rovner, "Discrimination Bill Advances Despite Cost Concerns," Congressional Quarterly Weekly Almanac, March 10, 1990, (Washington DC.: Congressional Quarterly Press), p. 752; and Julie Rovner, "Promise, Uncertainties Mark Disabilities Rights Measure," Congressional Quarterly Weekly Almanac, May 12, 1990, (Washington D.C.: Congressional Quarterly Press), pp. 1477-1479.

[3] Examples from this literature include Peter C Bishop and Augustus J. Jones, "Implementing the Americans with Disabilities Act of 1990: Assessing the Variables of Success," Public Administration Review Vol. 53, No. 2 (March/April 1993), pp. 121-128; Harvey R. Boller and Douglas Massengill, "Public Employers' Obligation to Reasonably Accommodate the Disabled Under the Rehabilitation and Americans with Disabilities Acts," Public Personnel Management Vol. 21, No. 3 (Fall 1992), pp. 273-300; Stephen E. Condrey and Jeffery L. Brudney, "The Americans with Disabilities Acto of 1990: Assessing Its Impact in America's Largest Cities," American Review of Public Administration Vol. 28, No. 1 (March 1998), pp. 26-42; James G. Frierson, Employers' Guide to the Americans with Disabilities Act, (Washington D.C.: Bureau of National Affairs, 1992); Paul S. Greenlaw and John P. Kohl, "The ADA: Public Personnel Management, Reasonable Accommodation and Undue Hardship," Public Personnel Management Vol. 21, No. 4 (Winter, 1992), pp. 411-427; J. Edward Kellough and Robert C. Gamble, "The Americans with Disabilities Act: Implications for Public Personnel Management." in Steven W. Hays and Richard C. Kearney, eds. Public Personnel Administration: Problems and Prospects, (Englewood Cliffs, New Jersey: Prentice Hall, 1995), pp. 247-257; Jeffrey A. Mello, "Employment Law and Workers with Disabilities: Implications for Public Sector Managers and Human Resource Practices," Public Personnel Management Vol. 24, No. 1 (Spring 1995), pp. 75-87; and Thomas D. Schneid, The Americans with Disabilities Act: A Practical Guide for Managers, (New York: Van Nostrand Reinhold, 1992).

[4] Bonnie P Tucker, Federal Disability Law in a Nutshell, (St. Paul, Minnesota: West Publishing Company, 1994), pp. 65-66.

[5] Schneid, p 161; and Tucker, p. 65.

[6] Regulations implementing Section 504 of the Rehabilitation Act are found in Title 45, United States Code, Part 84 Especially relevant portions are found in Subparts A and B.

[7] Boller and Massengill, p 274 and Kellough and Gamble, p. 250. It should be noted that the ADA does not impose affirmative action requirements as contained in Sections 501 and 503 of the Rehabilitation Act.

[8] Augustus J Jones, Jr., "Federal Court Responses to State and Local Claims of 'Undue Burden' in Complying with The Americans with Disabilities Act," Publius: The Journal of Federalism, Vol. 25, No 3 (Summer 1995), pp. 41-54.

[9] These cases are discussed by Jones, op cit., on pages 48 and 51. The case involving the police officer is Champ v. Baltimore County, 884 F. Supp. 991 (1995). The second case discussed is Dutton v. Johnson County Board of County Commissioners, 859 F. Supp. 498 (1994).

[10] United States Statutes at Large, Vol 104, p. 331.

[11] Ibid

[12] Tucker, pp 73-74.

[13] For example, see Boller and Massengill, 1992; Greenlaw and Kohl, 1992; and Kellough and Gamble, 1995

[14] Condrey and Brudney, "The Americans with Disabilities Act of 1990"

[15] United States Statutes at Large, Vol 104, p. 333 and Schneid, pp. 36-37. Other implications for personnel management subsequently discussed may, of course, also be referenced in these sources.

[16] United States Statutes at Large, Vol 104, p. 331.

[17] Ibid

[18] This procedure is outlined in Don A Dillman, Mail and Telephone Surveys: The Total Design Method, (New York: John Wiley and Sons, 1978).

[19] Don A Cozzetto, "Implications of the ADA for State and Local Government: Judicial Activism Reincarnated," Public Personnel Management Vol. 23, No. 1 (Spring 1994), pp. 105-116. See also, Stephen L. Percy, "ADA, Disability Rights, and Evolving Regulatory Federalism," Publius: The Journal of Federalism Vol. 23, No. 4 (Fall 1993), pp. 87-105.

[20] Tucker, pp 90-93.

[21] Punitive damages against a government organization are not available under either law (see Tucker, 90-97)

[22] Tucker, p 97

[23] It should be noted that following enactment of the Rehabilitation Act Amendments of 1992, it was required that Section 504 and the ADA be interpreted in an identical fashion with regard to employment See, U.S. Office of the Federal Register, United States Statutes at Large, Vol. 106, p. 4428 (Washington D.C.: Government Printing Office, 1992). See also, Tucker, p. 65.

J. Edward Kellough
Department of Political Science
University of Georgia
Athens, Georgia 30602
kellough@arches.uga.edu

J. Edward Kellough is Associate Professor of Political Science at the University of Georgia. His principle research interests are in the areas of public personnel administration. Specific interests include anti-discrimination law, equal employment opportunity and affirmative action programs, job classification and compensation systems, and civil service reform. He has been published in a number of scholarly journals.