Discrimination in the hiring process deprives people of the right to employment solely because of their age, gender, pregnancy, disability, genetic information, race, national origin or religion (Discrimination by type, 2012). The practice results in the marginalization of certain groups of people in society and contradicts the principles of human rights (Seiner, 2012). As such, employment discrimination has led to laws and a regulatory body which ensure that the act is punished. Such laws include the Equal Employment Opportunity Act (EEOA), which gave rise to the Equal Employment Opportunity Commission (EEOC), and the Americans with Disabilities Act (ADA). Both laws are within the mandate of the EEOC and have had a positive impact on employment discrimination in the health care industry although current data shows that in general much still needs to be done to address the issue.
The health care industry is considered the largest in the economy providing almost a fifth of the total number of domestic jobs (Questions and answers, 2007). It is expected to grow further at a much rapid pace as an increasing number of Americans age and their projected demand for health care stimulates the supply of services. Hence, a significant part of government efforts to regulate employment practices will be expected in the health care sector at present and in the coming years. Currently, the majority of employment discrimination cases in this sector involve disability with a few occurring during hiring as most take place during employment. Based on EEOC’s press releases in the second half of 2012, there were 20 cases involving nursing and rehab, home health, hospice, clinics, medical centers and community hospitals that were either filed in court or mediated, 14 of which were for disability (EEOC press releases, 2013). Only one involved an incident in hiring.
In the said case, the employer was Osceola Community Hospital (OCH) which bypassed an applicant to the position of child care worker because she had cerebral palsy though she was found to be more qualified because of her years of experience in child care compared to the person actually hired but who had no disability (EEOC sues Osceola, 2012). The EEOC explored the possibility of a settlement with the OCH but the latter was not amenable so the case went to the court. Besides monetary compensation for lost wages and damages, the EEOC is also seeking to have the company formulate a policy preventing discrimination in hiring (EEOC sues Osceola, 2012).
An example of a discrimination-in-hiring case that reached settlement involved John Muir Health’s withdrawal of its job offers to 7 nurses because of their latex allergies determined during a pre-employment health screening (John Muir, 2011). In addition to monetary compensation, JMH was also required to create and impose policies that will prevent future disability discrimination based on latex allergies. One policy was to have prospective employees undergo evaluation for allergies to find out if restrictions in work are necessary, and the other was to train HR personnel in assessing if candidates with latex allergies can be reasonably accommodated (John Muir, 2011).
Based on the above cases, the effect of the EEOC on the health care industry is that it generates external pressure for employers to desist from discriminatory hiring practices. However, how strong this pressure actually is in decreasing employment discrimination of persons with disabilities remains a question considering that a disparity continues to exist between those with disabilities and those without with only 39.5% of the former noted to have jobs while it is 79.9% of the latter (Bruyere et al., 2010). Though guilty employers are required to pay punitive damages as punishment for breaking the law which also sends a message to the public that the act is illegal (Seiner, 2012), majority of discrimination-in-hiring cases were being found to have no merit because of technicalities which favor the employer (McMahon et al., 2008). Thus, even if discrimination did occur, redress is not always possible.
The disparity reflects the need for vigorous and organized efforts to reduce discriminatory hiring practices and emphasizes that the problem cannot be solved through litigation alone but should be combined with changes in organizational culture (Shapiro, 2010). The EEOC being the agency tasked with ensuring equal employment opportunities provides mechanisms for the protection of the rights of persons with disabilities. It investigates charges of discrimination and if evidence exists, will initiate either mediation between employer and prospective employee or a lawsuit on behalf of the latter (Overview, 2012). More importantly, it also initiates policy changes within organizations so that future incidences of employment discrimination will not occur again. These commonly entail expanding the role of human resources personnel, formulating guidelines related to accommodations and work restrictions and equal opportunity hiring procedures. Such changes subsequently lead to an organizational culture committed towards nondiscrimination.
Moreover, the EEOC advocates for the prevention of incidents of discrimination in general and disability in particular rather than taking retroactive and litigious responses. By helping organizations who have not yet faced hiring discrimination charges before evaluate their policies and practices and adhere to the EEOA and the ADA, costly litigation can be avoided. For this reason, the EEOC provides many resources such as technical assistance, referrals, and on-site education and outreach program to assist in prevention and in dealing with actual cases (Outreach, 2013). These resources are particularly helpful given that smaller companies usually do not have the capacity to hire HR specialists to deal with discrimination issues and would therefore rely on outreach education and training (Bruyere et al., 2010).
As a result of increased awareness of employment discrimination and the avenues available for exercising rights to equal opportunity, more employers are expected to hire persons with disabilities. I know of a person in my community who has a well-managed psychiatric illness who was able to get a job. She was diagnosed with bipolar disorder but, however, had a degree in education coupled with some years of experience teaching in high school plus a master’s degree. She was hired as a teacher in the local public high school though it took her sometime to finally land a job since her diagnosis. This is because of procedures in hiring which often require disclosure of psychiatric illnesses and related treatments.
The fact that the laws uphold the right of persons to employment under the ADA has encouraged many people with medical or mental conditions to seek gainful employment. For persons recovering from such conditions, being employed helps them regain their self esteem and independence as well as helps dispel the larger society’s many misconceptions about them (Russinova et al., 2011). However, discrimination based on psychiatric disability is still the norm today rather than the exception based on employment data and the stated difficulties of persons with such disabilities in securing jobs in their field of expertise (Hausman, 2012). Thus, the EEOC still has much to do in addressing the loopholes or so-called technicalities that allow employers to avoid the legal consequences of employment discrimination.
In conclusion, employment discrimination in hiring remains a common occurrence. In the health care industry, the EEOC has been successful in mediating and elevating to the courts actual cases of discriminatory hiring proving that this sector is not exempt from the law. Undoubtedly, these cases serve as a warning to employers in the industry about the need to reconsider hiring practices and comply with the law or else face the consequences and as a result encouraged more people with disabilities to join the labor force. However, though the EEOA and the ADA which uphold individuals’ rights to nondiscriminatory and equal opportunity hiring have been implemented, a disparity is still observed in the rates of employment between persons with and persons without disabilities. Areas that need looking into are the technicalities that allow employers to evade charges of discrimination.
References
Bruyere, S.M., von Schrader, S., Coduti, W., & Bjelland, M. (2010). United States employment disability discrimination charges: implications for disability management practice. International Journal of Disability Management, 5(2), 48-58
Discrimination by type (2013). Retrieved from http://www.eeoc.gov/laws/types/index.cfm
EEOC sues Osceola Community Hospital for disability discrimination (2012, Sept. 28). Retrieved from http://www.eeoc.gov/eeoc/newsroom/release/9-27-12q.cfm
Hausman, D. (2012). How Congress could reduce job discrimination by promoting anonymous hiring. Stanford Law Review, 64(5), 1343-1369.
John Muir Health settles EEOC disability lawsuit (2011, March 16). Retrieved from http://www.eeoc.gov/eeoc/newsroom/release/3-16-11b.cfm
Jolls, C., & Prescott, J.J. (2012). Disaggregating employment protection: the case of disability discrimination. Harvard Public Law Working Paper No. 106, Harvard Law and Economics Discussion Paper No. 496. Retrieved from
http://ssrn.com/abstract=580741
Jones, D.R. (2012, July 5). The urban agenda. The New York Amsterdam News, p.5.
McMahon, B.T., Hurley, J.E., West, S.L., Chan, F., Roessler, R., & Rumrill, P.D. (2008). A comparison of EEOC closures involving hiring versus other prevalent discrimination issues under the Americans with Disabilities Act. Journals of Occupational Rehabilitation, 18(2), 106-111
Outreach, education and technical assistance (2013). Retrieved from http://www.eeoc.gov/eeoc/outreach/index.cfm
Overview (2013). Retrieved from http://www.eeoc.gov/eeoc/index.cfm
Press releases (2013). Retrieved from http://www.eeoc.gov/eeoc/newsroom/index.cfm
Questions and answers about health care workers and the Americans with Disabilities Act (2007). Retrieved from http://www.eeoc.gov/facts/health_care_workers.html
Russinova, Z., Griffin, S., Bloch, P., Wewiorski, N.J., & Rosoklija, I. (2011). Workplace prejudice and discrimination towards individuals with mental illnesses. Journal of Vocational Rehabilitation, 35(2011), 227-241
Seiner, J.A. (2012). Punitive damages, due process, and employment discrimination. Iowa Law Review, 97(2), 473-518.
Shapiro, T.R. (2010, Oct. 21). Paul S. Miller, 49, disability-rights expert fought employment discrimination. Washington Post. Retrieved from http://www.washingtonpost.com/wp- dyn/content/article/2010/10/21/AR2010102100334.html
