Autism Spectrum Disorders & ADA Title I Workplace Discrimination

1. Autism Spectrum Disorders & ADA Title I Workplace Discrimination Todd Van Wieren, Ph.D. Indiana University of Pennsylvania (Disability Support Services) & The National EEOC ADA Research Project (based out of Virginia Commonwealth University)

2. Purpose of Study? • Exploring the nature, scope and dynamics of ADA Title I discrimination charges brought to the Equal Employment Opportunity Commission (EEOC) by workers with Autism Spectrum Disorders (ASDs) • (1) Describe the most prevalent characteristics (or profile) of ASD charges • (2) Compare the profile of ASD charges against those of other disability groups (to learn how ASD charges are unique or similar to these other groups)

3. Need for Study? • As a group, individuals with ASDs tend to experience difficulty, in general, with obtaining and maintaining employment • However, almost no evidence-based research has been available until recently for the more specific issue of employment discrimination against individuals with ASDs. • Most of today’s ASD research focuses on either childhood issues or medical/psychological treatment of ASDs • Need for more practical research to assist working-age adults with ASDs in adapting to and functioning within their environments

4. Reasons for Employment Difficulties? • Social & cognitive demands of today’s workplace • Invisible nature of many ASDs • Underemployment • Limited vocational support

5. Review of ASD Employment Outcome Studies • 1943 (Leo Kanner) to present: • Most empirical outcome studies have examined employment as one of but several “life functioning” indicators • Most have used relatively small samples, “poor” diagnostic criteria, and non-standardized measures (Howlin et al., 2004) • Overall, though, most studies commonly find that: • 1.) higher IQs tend to fair better than lower IQs, & • 2.) only a minority engaged in regular competitive employment • No empirical studies until recently have focused on the more specific issue of employment discrimination

6. General Disability Employment Discrimination Prior to obtainment of EEOC’s database, studies were limited to examining data at the charge level Findings can be misleading though, because ~ 4/5 of all charges are eventually found to lack merit Most disability-related discrimination studies simply examine employer perceptions of disability Consistent findings of employer preference research = mental or behavioral disabilities are generally perceived more negatively than physical disabilities

7. Ecological Adaptation Model

8. The EEOC • “Front-line” federal agency charged with enforcing the six diff’t laws prohibiting various forms of workplace discrimination: • Title VII of the Civil Rights Act of 1964 • Equal Pay Act of 1963 • Age Discrimination in Employment Act of 1967 • Civil Rights Act of 1991 • Sections 501 & 505 of the Rehabilitation Act of 1973 • Title I & V of the ADA

9. Title I of the ADA • Illegal for private-sector employers, employment agencies & labor unions, with 15 or more employees, to discriminate against qualified individuals with disabilities in all facets of employment

10. Filing an ADA Title I Charge with the EEOC • Individual with disability, or advocate, files charge with EEOC • EEOC initiates investigation • At any point, Charging Party (claimant) & Responding Party (employer) may settle case or agree to mediation process • If investigation reveals no violation of law (i.e., non-merit), charge is dismissed and claimant may pursue their own private law-suit against employer • If investigation reveals discrimination (i.e., merit), EEOC will attempt a conciliatory remedy between the two parties • May also award compensatory/punitive damages for the claimant • EEOC may directly bring a law-suit against the employer, or may give claimant the “right to sue” on their own behalf

11. ADA Title I federal court cases by workers with ASDs • Patricia Taylor, as guardian of Gary Taylor, a minor, Plaintiff vs. Food World, Inc., Brunos, Inc., Defendants (1996) • Complaint: Plaintiff alleged that the defendant (a grocery store) hired him as a bagger, but then later discharged him for discriminatory reasons. • United States District Court for the Northern District of Alabama, Northeastern Division; No. CV95-H-2384-NE; 1996 • In favor of defendants with costs taxed against plaintiff. • United States Court of Appeals for the Eleventh Circuit; No. 97-6017; 1998 (Decided) • District court’s granting of summary judgment was reversed and the case was remanded for further proceedings. • To date, there are no records available for any further federal proceedings pursued in this case.

12. ADA Title I federal court cases by workers with ASDs • Kathleen Comber, Plaintiff v. Prologue, Inc., Defendant (2000) • Complaint: Plaintiff alleged that the defendant (a non-profit organization providing residential and day programs for adults with mental illnesses) hired her to work with their clients with mental illnesses, but then later discharged her for discriminatory reasons. • United States District Court for the District of Maryland; No. JFM-99-2637; 2000 • Motion for summary judgment filed by defendant was granted and judgment was entered in favor of defendant.

13. ADA Title I federal court cases by workers with ASDs • Joseph Connolly, III, Plaintiff, v. Entex Information Services, Inc., Defendant (2001) • Complaint: Plaintiff alleged that the defendant hired him a senior customer engineer, but failed to provide reasonable accommodations, discriminated against him in work assignment, and then later discharged him for discriminatory reasons. • United States District Court for the District of Oregon; No. CV 99-00082 • Motion for summary judgment filed by defendant was granted and judgment was entered in favor of defendant. • United States Court of Appeals for the Ninth Circuit; No. 00-35534; 2001 • Previous district court’s decision to grant summary judgment in favor of employer was affirmed. • Supreme Court of the United States; No. 01-1345; 2002 • Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit was denied.

14. ADA Title I federal court cases by workers with ASDs • Daniel Lee Merrill, Sr., Plaintiff-Appellant, v. Burke E. Porter Machinery Co., Defendant (2005) • Complaint: Plaintiff alleged that the defendant hired him as a mechanical project engineer, but then later discharged him for discriminatory reasons. • United States District Court for the Western District of Michigan • Motion for summary judgment filed by defendant was granted and judgment was entered in favor of employer. • United States Court of Appeals for the Sixth Circuit; No. 04-2188; 2005 • Previous district court’s decision to grant summary judgment in favor of employer was affirmed. • United States Supreme Court; No. 05-1565; 2006 • Petition for writ of certiorari to the U.S. Court of Appeals for 6th Circuit denied • United States Supreme Court; N. 05-1565; 2006 • Petition for rehearing denied

15. ADA Title I Employment Discrimination Charges to EEOC at Near Record Levels • Over 93,000 charges filed with the EEOC in 2009 • Allegations of disability bias reached highest levels ever • 10% increase over 2008 • Damages recovered by claimants exceeded $376 million • Why? EEOC suggests: • Recent economic conditions • Increased workforce diversity • Greater employee awareness of their rights and streamlined EEOC filing procedures

16. Have ASD Title I charges increased too? • 1997 = 2 (0.0%) • 1998 = 8 (0.0%) • 1999 = 4 (0.0%) • 2000 = 4 (0.0%) • 2001 = 8 (0.0%) • 2002 = 6 (0.0%) • 2003 = 14 (0.1%) • 2004 = 7 (0.0%) • 2005 = 12 (0.1%) • 2006 = 14 (0.1%) • 2007 = 16 (0.1%) • 2008 = 25 (0.1%) • 2009 = 36 (0.2%)

17. Low # of ASD charges relative to other disabilities • 170 resolved ASD charges (as of 9/30/08) • Some example comparison disability groups: • Back Impairment = 45,560 • Diabetes = 14,515 • Hearing Impairment = 11,421 • Speech Impairment = 2,028 • Brain/Head Injury = 2,686 • HIV = 5,025 • Learning Disability = 6,717 • Intellectual Disability = 1,459 • Perhaps the most significant observation in this study • Why so few ASD charges relative to other disability groups?

18. EEOC Research Data • In 2003, an interagency personal & confidentiality agreement was formed between EEOC & Dr. Brian McMahon (VCU) • Created “The National EEOC ADA Research Project” • Includes all cases of ADA Title I charges received, investigated and fully resolved by the EEOC from 7/27/92 through 9/30/08 • Several studies conducted and published to date, primarily focusing on individual disability groups, including: • asthma, cancer, cerebral palsy, cumulative trauma disorders, deafness & hearing impairment, diabetes, disfigurement, HIV/AIDS, mental retardation, missing limbs, multiple sclerosis, speech impairment, spinal cord injury, traumatic brain injury, & visual impairment.

19. Study Database:Claimant Demographics • Disability • 44 distinct groups/categories • EEOC definition of Autism (ASDs) = • “Neurological disorder[s] affecting the functioning of the brain; characterized by such symptoms as speech and language disorders and profound differences in the manner of relating to people, objects and events.” • Age • Gender • Race • Asian/Pacific Islander • African American • American Indian/ Alaskan Native • Hispanic/ Mexican • White • “Other”

20. Study Database:Employer Characteristics • Industry • The 10 primary Standard Industrial Classification (SIC) categories: • Agriculture, forestry & fishing • Mining • Construction • Manufacturing • Transportation & Utilities • Wholesale Trade • Retail Trade • Finance, Insurance & Real Estate • Services • Public Administration • Size (# of employees) • 15 – 100 • 101 – 200 • 201 – 500 • 501+

21. Study Database:U.S. Region • Six Categories: • (1 – 4) Four major U.S. Census track regions: • Northeast • Midwest • South • West • (5) U.S. Territories • (6) Foreign Non-U.S. (U.S. employers operating abroad with American employees)

22. Study Database:Discrimination Charges (Allegations) • 40 distinct types of ADA Title I charges • These can be sorted into four thematic categories: • (1.) Charges related to job obtainment or membership (9 types) • e.g., advertising, prohibited medical inquiry, etc. • (2.) Charges related to job conditions or circumstance (18 types) • e.g., benefits, discipline, harassment, etc. • (3.) Charges related to job maintenance or preservation (9 types) • e.g., discharge, involuntary retirement, layoff and reinstatement, etc. • (4.) Other/miscellaneous charges (4 types) • e.g., failure to post required notices

23. Study Database:Case Resolutions • 14 distinct types of EEOC-resolved categories • These can be sorted into two thematic categories: • Merit resolutions (in favor of claimant) – 4 types • e.g., settled with benefits to the CP • Non-Merit resolutions (in favor of employer) – 10 types • e.g., no cause finding

24. Unit of Study • CHARGES of direct disability-related ADA Title I discrimination • not the specific individuals or people who filed the charges • Other federal statutes of disability discrimination excluded from study (ADA Title V, and Rehab Act of ’73) • Charges of retaliation excluded from study • Secondary (i.e., “record of, or regarded as”) and tertiary (i.e., “related to, or associated with”) definitions of ADA disability excluded from study

25. Primary Population Studied: ASD • Primary population of interest = ASD charges • N = 170 (resolved as of Sept. 30, 2008) • No specific information concerning type of ASD diagnosis or severity of such

26. Comparison Population #1: General Disabilities • General compilation of ADA Title I charges made by individuals who reported other physical, sensory and/or neurological disabilities: • allergies, Alzheimer’s disease, asthma, back impairment, cancer, cardiovascular impairment, cerebral palsy, chemical sensitivity, cumulative trauma disorder, cystic fibrosis, diabetes, disfigurement, dwarfism, epilepsy, gastrointestinal impairment, hearing impairment, HIV, kidney impairment, learning disability, mental retardation, missing digits or limbs, multiple sclerosis, non-paralytic orthopedic impairments, other blood disorders, other neurological impairments, other respiratory impairments, paralysis, speech impairment, tuberculosis & vision impairment. • N = 211,985 (resolved as of Sept. 30, 2008) • Utilized by almost all of the other National EEOC ADA Research Project studies conducted to date. • Includes disabilities that are different in nature, from the ASDs

27. Comparison Population #2: Intellectual Disabilities • ADA Title I charges made by individuals who reported an intellectual disability • N = 1,459 (resolved as of Sept. 30, 2008) • “Mental-behavioral” disability group • ID may, in particular, share some vocational issues in common with ASD (e.g., lack of awareness concerning discrimination or ability to file charges on their own behalf, “malemployment”, etc.)

28. Limitations • Generalizability • Only individuals who were aware of discrimination and/or were able to file a charge with the EEOC • Broad definition for each disability group (no specific information about severity) • Broad industry/job information • Unit of Study • Charges, as opposed to specific individuals/people • Relatively small # of cases in the primary group of interest (ASD)

29. Characteristics of ASD chargesAge • Average = 33 years

30. Characteristics of ASD chargesGender • Male 77.6% • Female 22.4%

31. Characteristics of ASD chargesRace • White 64.9% • African American 17.6% • Hispanic/Mexican 8.4% • Other* 9.1% * comprised of EEOC categories: Asian, Native American/Alaskan Native, Mixed Ethnicity & Other Ethnicity

32. Characteristics of ASD chargesIndustry • Retail Trade 18.7% • Manufacturing 15.0% • Educational Services 14.3% • Accomm/Food Services 10.4% • Information 8.3% • Health Care & Social Services 8.3% • Public Administration 7.5% • Arts/Entertainment/Recreation 6.0%

33. Characteristics of ASD chargesIndustry Sectors • Primary 0% • Secondary 15% • Tertiary 85%

34. Characteristics of ASD chargesEmployer Size (# of employees) • 15-100 40.1% • 501+ 37.5% • 101 – 200 11.2% • 201 – 500 11.2%

35. Characteristics of ASD chargesU.S. Region • South 43.5% • Midwest 31.8% • West 16.5% • Northeast 8.2% • U.S. Territory 0% • Foreign 0%

36. Characteristics of ASD chargesAllegations • Conditions/circumstances 47.6% • Maintenance/preservation 39.4% • Obtainment/membership 10.6% • Other/miscellaneous 2.4%

37. Characteristics of ASD chargesEEOC Resolutions • Non-merit 71.2% • Merit 28.8%

38. Differences in Merit vs. Non-merit ASD charges? • Gender: • Male = 3X more likely (merit) • Industry: • Retail Trade = 2X more likely (merit) • Educational Services = 2.5X more likely (merit) • Art/Entertainment/Recreation = over 7.5% more likely (merit) • Accommodations/Food Services = 4X more likely (merit) • Allegation: • Obtainment/ Maintenance = almost 3.5X more likely (merit)

39. Characteristics of ASD charges- Summery Statement - • A typical ASD charge: • Claimant • 33 years old • Male • White • Employer • Manufacturing, Retail Trade, Health Care/Social Services, or Accommodations/Food Services industries • Smaller (5 -100 employees) or Larger (501+ employees) • Region • South or Midwest • Allegation • Conditions/Circumstances or Maintenance/Preservation • EEOC Case resolution • Non-meritorious • ASD charges more likely to be ruled as meritorious by EEOC: • Claimant • Male • Employer • Retail Trade, Educational Services, Arts/Entertainment/Recreation, or Accommodations/Food Services • Allegation • Obtainment/ Membership

40. Comparing ASD with General Disabilities Similar characteristics Different characteristics Age Younger avg. 33 years vs. 44 years Gender Male almost 3X more likely Industry Retail Trade 2X more likely Educational Services 2.5X more likely Arts/Entertainment/Recreation Serv. over 7.5X more likely Accommodations/Food Services 4X more likely • Race • Employer size • U.S. region • Charges • Resolutions

41. Comparing ASD with Intellectual Disabilities Similar characteristics Different characteristics Age Younger avg. 33 years vs. 36 years Gender Male almost 2X more likely Industry Information over 3.5X more likely Educational Services almost 3.5X more likely Arts/Entertainment/Recreation Serv. over 4X more likely • Race • Employer size • U.S. region • Charges • Resolutions

42. Implications? • Need for an ecological approach to preventing and resolving discrimination, with the aim of helping both workers with ASDs and their work environments to adapt to each other • Supported employment & positive behavioral support models lend themselves well to this approach • Training of advocates/supporters of workers with ASDs • Need to be aware of unique trends of ASD charges • In particular, younger males in “Tertiary” sector jobs • Importance of helping employee and employer to better understand and effectively relate to each other (i.e., developing positive “frames of reference” and “response tendencies”) • Importance of advocating on behalf of clients with ASDs in potentially discriminatory circumstances • Training and assisting individuals with ASDs to recognize discrimination and to self-advocate

43. Implications? • Importance of transition planning to adult working age • (e.g., structured work or internship experiences prior to moving permanently into adult workforce) • Educational & training efforts by EEOC, focusing especially on “Tertiary” sector industries • Research studies that focus on why the number of ASD charges are extremely low, relative to other disability groups.