Invisible disabilities and legislation

In many industrialized countries, such as the United States, Canada, Australia, Europe, and the United Kingdom, employees with disabilities are protected by disability legislation. In general terms the aim of this type of legislation is to prevent discrimination against employees with disabilities. This protection requires employers to provide reasonable accommodation to their employees with disabilities so that they can still be in the workforce.

When one thinks about making the workplace more accessible to employees living with disabilities, the focus is typically on accommodations like elevators and ramps as many associate disabilities with physical limitations. This issue is highlighted in the way disability prevalence data is collected with many measures focusing on physical limitations (Santuzzi et al., 2014). However, legislation on disabilities like the Americans with Disabilities Act Amendments Act of 2008 (ADAAA, 2008) or the Equality Act (2010) have been expanding to include both physical and mental impairments. Underupdated legislation, many conditions perhaps not typically associated with disability, which are invisible, are now covered.

The United States enacted the Americans with Disabilities Act of 1990 (ADA, 1990) with the intent of providing individuals with disabilities equal opportunities to work. However, following a series of Supreme Court decisions, the intent behind this act was significantly limited due to evernarrowing interpretations of the Act. This led to the Americans with Disabilities Act Amendment Act (ADA A A, 2008). Changes in the 2008 Act broaden the scope to apply to individuals with physical or mental impairments that significantly impact major life activities and goes on to clarify that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” (ADAAA, 2008). The 2008 Amendment Act further clarifies that major life activities also include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions” (ADAAA, 2008). In the ten years preceding this amendment, an average of 16,371 charges related to disabilities were brought to the US Equal Employment Opportunity Commission (EEOC), compared to 25,655 cases per year in the ten years since the enactment of the ADAAA (EEOC, 2019). Under this act employers must provide “reasonable accommodation” to employees with disabilities up to the point of “undue hardship” for known disabilities with specific mention that accommodation may include “job restructuring, part-time or modified work schedules” (ADAAA, 2008).

Similarly, the United Kingdom implemented the Disabled Persons Employment Act in 1944, which required all organizations with 20 or more employees to maintain a 3% quota of individuals registered as having a disability. This was replaced by the Disability Discrimination Act (DDA, 1995). An interesting feature of this legislation was the requirement under the Code of Practice that employers try to ascertain the existence of a disability if one was likely to exist (Woodhams & Corby, 2007). The DDA (1995) was most recently replaced by the Equality Act (2010). Though the Equality Act (2010) does not provide a list of examples similar to those found in the ADAAA (2008), it similarly applies to individuals with “physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” (Equality Act, 2010, p. 4). Another similarity is the responsibility of the employer to provide accommodation to the point of undue hardship, which is referred to as a duty to make adjustments. The Equality Act (2010) is enforced by Employment Tribunals.

Despite the increased legal protections afforded to individuals with invisible disabilities related to employment and the expansion of protections to include invisible disabilities; individuals living with disabilities continue to be disproportionately excluded from the workforce (Markel & Barclay,

2009). The dearth of research examining the impact of accommodations on the employment circumstances of individuals with invisible disabilities may in part explain the continued discrepancy in employment rates for individuals with and without disabilities. As of the most recent US census information (US Census Bureau, 2018), 81% of individuals without a disability were in the workforce compared to only 41.2% of individuals living with a disability. These statistics may imply that the current accommodation practices are insufficient in supporting workers with disabilities, particularly invisible disability, at work.

Current legislation may also be limited to a narrow focus on accommodation of individuals with disabilities. In a broader context, there is a movement to a more inclusive view (see, for example, the United Nations report, United Nations General Assembly (UNGA), 2018), which encourages the full participation of individuals with disabilities in the workplace. It is likely legislation will increasingly adopt this perspective.