Introduction

In recent years, a number of important investigations from the field of human resources management have been increasingly relevant to our understanding of disability and employment. There is perhaps no better example of this than a study by Huffcutt et al. [1] involving a meta-analysis of employment interviewing. These researchers developed a taxonomy of interviewing constructs reflecting the priorities of employment interviewers. In order of overall effect size, the importance of these to employers was as follows (high to low): mental capability, job knowledge and skills, basic personality tendencies, applied social skills, interests and preferences, organizational fit, and physical characteristics including both general and job-related physical attributes. The authors went on to discover that there was a positive relationship between the more valid job constructs and employer emphasis, particularly by employers who used structured interview protocols. Reflecting on the findings by McMahon et al. [2] regarding the relative paucity of hiring allegations by Americans with disabilities, these findings may provide a partial explanation.

An equally compelling study was provided by Posthuma et al. [3] who exhaustively reviewed interviewing research and made eleven recommendations for future research. Among other important considerations, the authors called for more research that addresses disabilities, procedural justice, actual applicant outcomes (not just employer outcomes, attitudes, and reactions), and avoidance of single survey instruments.

With respect to the critical area of disabilities, a number of studies published in the 1990s were reviewed including Arvonio et al. [4], Cesare et al. [5], Charisiou et al. [6], Christman and Branson [7], Gething [8], Hayes and Macan [9], Hebl and Kleck [10], Henry [11], Herold [12], Nordstrom et al. [13], Macan and Hayes [14], Marchioro and Bartels [15], Miceli [16], Reilly et al. [17], Wright and Multon [18]. The reviewers observed [3]:

… mixed results for the influence of disabilities on applicant ratings. Applicant voluntary disclosure of non-apparent disabilities and acknowledgement of apparent disabilities may increase ratings of employability (p. 77).

And so research surrounding hiring continues, and as it applies to persons with disabilities it appears that the old axiom that “Hiring is the most invisible process in the world” [19] has assuredly given way to the reality that hiring is markedly more complex. Researchers are now studying multifaceted psychological mechanisms, decision-making, the effects of applicant and interviewer training, contextual variables inside and outside of the organization, and non-traditional (e.g., electronic) interview formats. Yet the volume of vocational rehabilitation studies specific to hiring appears to be decreasing. Most are still analogue studies which relate to employer attitudes, selection bias, the applicant’s impairment status, or the attribution of the applicant’s impairment (e.g. [20–22]).

The U.S. Equal Employment Opportunity Commission (EEOC) was established by the Civil Rights Act of 1964, Title VII, with a mission of eradicating discrimination in the workplace. The U.S. Equal Employment Opportunity Commission (EEOC) is charged with the enforcement of a number of civil rights laws dedicated in whole or in part to the elimination of workplace discrimination in America. These include Title VII of the Civil Rights Act; the Equal Pay Act of 1963; the Age Discrimination in Employment Act of 1967 (ADEA): the Rehabilitation Act of 1973, Sections 501 and 505; the Civil Rights Act of 1991; and Titles I and V of the Americans with Disabilities Act of 1990 (ADA).

The ADA requires, in brief, that all personnel actions must be unrelated to the existence of or consequence of disability. The National EEOC ADA Research Project (Project) maintains a database of 369,231 allegations of workplace discrimination under the ADA. These allegations represent 100% of the population of interest to the Project and do not include charges of retaliation or charges which are investigated by various state Fair Employment Practices Agencies. Allegations in the Project database may involve one of 41 distinct personnel issues. In the interest of parsimony, however, Project researchers have limited this investigation to the five most prevalent issues which collectively include 75.6% of all allegations. These issues, frequencies, and definitions are outlined in Table 1.

Table 1 Target and comparison issues and their definitions
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“Closure” refers to the resolution of an allegation after a complete investigation by the EEOC has been conducted. A Merit Resolution closure is a resolution which indicates the EEOC’s conclusion that the allegation had merit; i.e., workplace discrimination did indeed occur. Merit Resolution closures favor the Charging Party; i.e., the individual who initiated an allegation of discrimination. A Non-Merit Resolution closure is a resolution which indicates that the EEOC did not find sufficient evidence of discrimination, or the complaint was closed on the basis of an administrative technicality. Non-Merit Resolution closures favor the Employer. Table 2 depicts the total range of closure statuses used in this study: The first four rows constitute Merit Resolution closures; the remaining rows constitute Non-Merit Resolution closures.

Table 2 Types of closure statuses and their definitions
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The goal of the present study is to answer the following research questions:

  1. 1.

    Is there a difference between the rate of Merit Resolution closures for as compared to the same rate for the comparison group consisting of the four other most prominent discrimination issues (Non-Hiring)?

  2. 2.

    If such a difference exists, what factors are associated with this difference including:

    1. a.

      Subcategories of Merit or Non-Merit Resolution?

    2. b.

      Charging Party characteristics such as age, gender, or broad category of impairment?

    3. c.

      Employer characteristics such as size of workforce, industry designation, or geographic location?

Project Design and Methods

The EEOC raw data were transferred to the Project from the EEOC via zip disk. Data needed to answer the research questions were extracted, coded, refined, and formatted in Microsoft Access using the a standard extraction criteria [23]. The result was a study-specific dataset in which the underlying unit of measure is the frequency of allegations, a ratio level of measurement. The design includes a number of variables:

  • Closure Status of the Allegations involving the target issue, Hiring, vs. the comparison group issues, an aggregation of Discharge and Constructive Discharge; Reasonable Accommodation; Disability Harassment and Intimidation; and Terms and Conditions of Employment allegations as listed in Table 1. Target group issues are known as “Hiring” and the comparison group issues are known as “Non-Hiring.”

  • Types of Closure Status, as defined in Table 2, include 4 types of Merit Resolutions and 10 types of Non-Merit Resolutions. Each type describes a final EEOC determination as to whether or not discrimination actually occurred.

  • All closure status indicators are nominal variables.

Data were analyzed to answer stated research questions. Analyses included descriptive statistics and non-parametric tests of proportion on both allegations and Merit Resolutions using MINITAB.

Results

The findings pertinent to the direct comparison of closure types are presented in Table 3. First, the overall proportion of Merit Resolutions is markedly higher for Hiring allegations than for Non-Hiring allegations (26% vs. 20.6%). This suggests that all other factors being equal, a Charging Party has a 26% greater likelihood of prevailing in his/her charge of discrimination when the issue in question is Hiring.

Table 3 Closure status, hiring vs. non-hiring allegations
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There exist four types of specific Merit Resolution closure codes. The first row suggests that Employers tend to “dig in” around Hiring in that fewer allegations are withdrawn with benefits by the Charging Parties (4.7% Hiring vs. 5.8% Non-Hiring). This suggests that an independent settlement is achieved less often when the personnel issue in question is Hiring. However, when the EEOC is involved in mediating a settlement, there is no discernable difference in proportions for this type of Resolution (8.7% Hiring vs. 8.6% Non-Hiring).

The higher overall Merit Resolution rate for Hiring is driven almost entirely by “for cause” or conciliation findings, whether the employer accepts the Resolution and proposed remedies for breach (successful conciliations: 5.4% Hiring to 2.1% Non-Hiring) or the Employer does not accept the Resolution (non-successful conciliations: 7.2% Hiring vs. 4% Non-Hiring). In the latter instance, the Charging Party is given a “right to sue letter” by the EEOC and may pursue the case in civil court. It is also possible that the EEOC may join the Charging Party as a partner in that litigation. This markedly high level of Employer defensiveness (unsuccessful conciliations) suggests that many employers are confident in the legitimacy of their hiring decisions despite the findings of the EEOC.

Merit Resolution findings and Non-Merit Resolution findings are mutually exclusive in a proportional dataset such as Table 3. If Merit Resolution findings are ‘up” for Hiring, it follows that Non-Merit Resolution findings would be “down” for Hiring. And so it is that the key type of Non-Merit Resolution finding, “no reasonable cause,” is markedly lower in the Hiring group of allegations. Stated differently, Employers are far less likely to be vindicated for allegations derived from the Hiring category than for the comparison group of other primary discrimination issues (59% Merit Resolution vs. 68% Non-Merit Resolution).

There exist a handful of administrative/technical closure categories which show significant differences. The following Non-Merit Resolution categories favor the Employer and show significantly higher proportions in the Hiring group: Charging Parties that are uncooperative cannot be located, or do not accept relief; lack of EEOC jurisdiction; and precipitous withdrawal. In brief, several types of closures involving administrative technicalities are more common among allegations related to hiring, with the exception of referral to litigation.

A word about effect sizes is in order. In order to examine more closely the magnitude of the effect, Cohen’s d is provided for all variables which in every instance is “small.” This makes it difficult to say with certainty that these are appreciable real-world effects. However, extreme values in Cohen’s d (high or low) are not unusual in population level data such as these, and small differences in proportion may have substantial impact. Each discriminatory event is an insidious violation of civil rights with serious psychological, financial, career, and integrity consequences to all parties concerned. A proportional difference of 26.0% vs. 20.6% translates to 1054 such events.

Furthermore, the most aggressive end users of these findings include agencies such as the National Network of ADA Centers and the EEOC itself. They are charged with reducing and someday eliminating workplace discrimination. When considered as an odds ratio, a Hiring Resolution is 1.26 times more likely than other issues to reflect actual (vs. perceived) discrimination. Is this a difference that can be ignored when substantial resources are being allocated for training, outreach, technical assistance, or investigation? The target group proportion is not a percentage out of 100%; it must be contrasted with the comparison group proportion to achieve meaning.

Conclusion

As with all issues involved in workplace discrimination, the Resolution of allegations tends to favor the Employer, especially when administrative closures are classified as Non-Merit Resolution closures, as occurs in the Project. (It is worth noting that the Merit Resolution rate under the ADA is similar to that for protected classes under the Civil Rights Act.) With respect to the first research question, the overall Merit Resolution rate for Hiring of 0.260 is 26% higher for Hiring than for other prevalent forms of discrimination (0.206). This magnitude of difference is both statistically and pratically significant. Desribed in terms of odds ratios, it indicates that a Hiring allegation is 1.26 times more likely to be meritorious than an allegation involving other prevalent discrimination issues. This also suggests that the hiring process is more transparent than historically believed. From the business perspective, employers are at greater risk for an unsuccessful outcome when the issue is Hiring.

With respect to the second research question involving subcategories of Merit Resolution and Non-Merit Resolution closures, employers are less likely to settle claims of Hiring discrimination without mediation. Employers are also less likely to accept the remedies recommended by the EEOC when hiring discrimination has been determined.

Naturally, employers favor Non-Merit Resolution closures. An examination of these subcategories reveals that employers are less likely to be involved with administrative closures (technicalities) involving Hiring, but more likely to prevail in these subcategories than when Non-Hiring issues are involved. Most important, the frequency of Employer vindications (no reasonable cause) is lower on Hiring issues by a margin of 0.589–0.675%, a substantial difference of 8.6%. Again, this demonstrates that employers who believe it is more difficult for charging parties to prove an allegation of hiring discrimination are very wrong.

To some extent, these findings provide comfort both to employers and to providers of training and technical assistance regarding the ADA. First, the level of complaint activity under the ADA related to Hiring is very modest, with less than 1,500 allegations processed by the EEOC each year. By any measure, all projections of a “flood of allegations” related to Hiring around the enactment of the ADA were, to be kind, hysterical. But note should be taken that hiring is far more transparent than it was decades ago, and when Hiring allegations are brought under the ADA they have a tendency to “stick” at a higher rate than for other employment actions. As graduation rates increase for high school and college students with disabilities, and as imminent worker shortages unfold, more applicants with disabilities will be forthcoming. Employers would do well to maintain a focus on abilities and qualifications, and give thorough consideration to reasonable accommodations when necessary to expedite worker-job fit.