Back in a high school civics course, I learned the Latin phrases de jure and de facto during a unit covering the Civil Rights Movement and racial segregation in the United States. It must have been a somewhat common piece of knowledge passed along in that context. When you start typing one of those terms into Google search, your computer’s autofill function will add the other along with suggestions for additional refining keywords like “segregation” and “discrimination.” Farlex’s free online legal dictionary considers the two phrases part and and parcel of each other, and cites the example of Jim Crow laws that prevented ethnic minorities from voting in southern states to illustrate the point.
Much like the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 provides a basis for laws that protect citizens against both intentional (de jure) discrimination and the byproducts of circumstantial (de facto) discrimination that result in unequal opportunity. For individuals with disabilities, these protections are most visible in the structural changes to make commercial businesses and other public spaces accessible. While no reasonable observer expected our society to achieve full inclusion in the blink of an eye — some aspects of compliance are just now being phased in, more than 20 years later — it has been fairly well established that lack of accommodation is a form of discrimination that runs afoul of legal guidelines.
Unless you happen to work for, or subscribe to, the viewpoint of the Center For Corporate Equality (CCE), that is. The nonprofit organization published A Review of OFCCP Enforcement Statistics Related to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (PDF) last month; and, as noted yesterday, it suggests that the U.S. Department of Labor’s proposed new rule for making federal contractors more accountable for recruiting, hiring, and retaining people with disabilities was not necessary. “[D]iscrimination against protected veterans and individuals with disabilities, especially with regard to hiring, is not a frequent finding by OFCCP and may not support the major shift in policy that the proposed regulations would necessitate,” reads the last sentence of the conclusion.
Part of the CCE’s mission statement says the organization strives “to create workplaces free from bias and unlawful discrimination,” yet when reviewing OFCCP data on settlements of discrimination cases brought against federal contractors, the report authors, David Cohen and Amanda Shapiro, separate the instances of accommodation violations from individual discrimination. “The vast majority of […] settlements were technical violations (e.g., record-keeping), rather than violations indicating systemic discrimination,” they write in the executive summary, then elaborate with the following two, non-record keeping examples on page 10:
[I]n one of the conciliation agreements […] the violation states that the contractor failed to ‘provide access for mobility-impaired applicants and potential employees seeking employment’. The remedy was to modify the entrance to its Human Resources office to provide access for individuals with mobility disabilities; the estimated modification cost was $385. OFCCP has coded this cost as a financial remedy even though the amount was not paid to an individual or class of victims. In another example, the contractor received a violation where the remedy included building modifications such as doorbells and restroom modifications to provide access for individuals with mobility disabilities. These changes were estimated to cost $20,512.08. Again, this conciliation agreement did not include monetary retribution for victims of discriminations, but rather building modifications and technical violations.
In short, because the rulings alleviated instances of de facto discrimination, the CCE somehow felt they were not indicative of the need for federal contractors to work harder to achieve inclusion of people with disabilities; here’s hoping the OFCCP considers the history and keeps a broader perspective on how best to help these underserved people get fair employment opportunities.
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Image by Elliott Brown, used under its Creative Commons license.