4 min read
Posted on 04.29.11
  • 4 min read
  • Posted on 04.29.11

Guest blog by David Newburger, the City's Commissioner on the Disabled:

Governor Jay Nixon will veto a bill ' SB 188 ' that is intended to make it easier for employers to discriminate against employees based on their disability, race, color, religion, national origin, ancestry sex, or age.

I write today as the Mayor's commissioner on the disabled about how this bill would have affected people with disabilities. More than 450,000 working age people in the Missouri, including many of our neighbors in St. Louis, are disabled.

For them, getting and retaining a job can be a herculean task. The Bureau of Labor Statistics tells us the unemployment rate hovers round 9%. For individuals with disabilities it is even worse 'more than 15%.

Looked at the other way around, the Census Bureau tells us that about two-thirds of the general working age population have jobs. Only about one-third of working age individuals with disabilities have jobs.

The City of St. Louis is working hard with cooperating employers to get more people with disabilities hired and retained.

Making it easier for employers to discriminate against people with disabilities, as SB 188 would do, would make the situation worse. That is why I am asking state legislators to sustain the governor's veto.

Some ask, do people really discriminate against the disabled? It is pretty hard to imagine someone hating another, or throwing a rock through his window, because he is disabled.

True enough. The discrimination we with disabilities face actually comes from people's thoughtless preconceived notions. The server asks my wife, "What does he want for lunch," because I have rolled in my wheelchair. She thinks I cannot make my own decisions. The old phrase "deaf and dumb" came from people thinking that those who cannot hear also cannot think. Nothing can be further from the truth!

And today we face a host of preconceptions in the employment environment. Bosses often think, "If I hire that person with cerebral palsy, I will not be able to get straight financial records," even though I know such a person who successfully keeps such records. Or, "Now that Sally has been diagnosed with Multiple Sclerosis, she will stop being a good teacher," even though I know a successful teacher with MS. Or, "We cannot have a manager be using a wheelchair if we are to maintain our image," even though I know many who successfully manage from their wheelchairs.

A very important aspect of the current law is that a person with a disability can prove discrimination by showing that his or her disability was one of the considerations in firing or some other adverse action.

An employer can often find an excuse for firing a person ' he violated a minor regulation, she had one more absence than the policy allowed, his work was not up to par, her attitude irritated customers. All of those could be good reasons to fire or discipline someone.

But, if they are used to cover up a discriminating attitude ' for example a belief that a blind person cannot be productive in the call center ' they are guilty of illegal discrimination.

Some given blind person may not be productive and, if so, should be moved or fired. But, I know blind people who have been productive in call centers. Other blind people should be given a chance.

The employer should fire or otherwise act on the facts of a given instance. I frankly think employers too often do not discipline disabled employees as they would anyone else.

But the employer should not act on the preconceived notion that nobody with "that kind of disability" can do "that kind of job." People are often amazed at what we disabled people can do.

SB 188 would have changed that. It would say that the employee has to prove that the decision to fire or otherwise discipline was motivated by the employee's disability. Proving motive is always difficult. Imagine having to prove it when the employee also had one unexcused absence or had one disagreement with a customer or committed some other conduct that was slightly outside the rules, even though the employer would not take the same action for other employees.

Proving employment discrimination is always difficult. The U.S. Equal Opportunity Commission estimates that fewer than 20% of cases brought result in positive outcomes for the employee. Making it harder to win such cases in Missouri is not fair.

Other aspects of SB 188 were equally unfair. Others will address these issues elsewhere.

The bottom line is SB 188 would have been bad policy for Missourians and St. Louisans. The General Assembly should sustain the governor's veto.