At a conference sponsored by the National Association of College and University Attorneys (NACUA) earlier this year, Cornell University lawyer Wendy Tarlow displayed a graph that was stunning in its simplicity and startling in the message it conveyed. The graph, taken from a paper by economists Wendy A. Stock and Kathleen Beegle published in Contemporary Economic Policy in 2004, shows that roughly one out of every four 60-year-old American workers suffers from a disability severe enough to affect job performance. (See Figure 1.)
The proportion of disabled workers, which rises almost imperceptibly from entry into the work force through mid-career, accelerates steeply as workers pass their 50th birthdays and continue working into their 60s and 70s.
According to the National Science Foundation (NSF), the percentage of faculty members who have reached the traditional retirement age of 65 has tripled—from 2 percent to almost 6 percent—in the last generation. At Harvard University, 30 percent of all faculty members are over the age of 55 and, for the first time in that institution's history, faculty members over 60 now outnumber those under 50. With faculty (and staff) growing steadily older, statistics confirm what our instincts and powers of observation tell us: In the next few years, our institutions are likely to face more claims under the Americans with Disabilities Act (ADA) than at any time since Congress enacted the ADA more than two decades ago.
From the perspective of colleges and universities, an aging and increasingly disabled workforce could not come at a more inconvenient moment. Congress recently amended the ADA to extend its protections to more potential claimants. The ADA Amendments Act of 2008 was explicitly meant to undo a series of what Congress considered to be misguided interpretations of the ADA by the Equal Employment Opportunity Commission (EEOC) and the Supreme Court. By enacting the ADA Amendments Act, Congress intended to expand the law's protection.
For the foreseeable future, colleges and universities confront a statutory and regulatory regime that encourages disability discrimination claims. The 2008 act substantially broadens the statutory definition of "disability" so that it applies to workers with illnesses or injuries affecting their ability to read, to concentrate, to think, and to communicate—activities that go to the heart of service as a faculty member or college administrator.
The Obama administration has picked forceful champions of disability causes to head federal enforcement agencies like the Education Department's Office for Civil Rights, the Justice Department's Civil Rights Division, and the EEOC, which have enlarged their investigative and prosecutorial staffs. Emboldened by the liberalized language in the amended ADA, plaintiffs are bringing lawsuits on new bases or bases not aggressively asserted in the past, such as visual impairment, emotional disability, learning disability, personality, and physical appearance.
Almost all institutions have disability support service offices responsible, among other tasks, for designing and implementing accommodations that address the needs of disabled employees and students. Boards should ensure that these offices at their institutions are adequately staffed and budgeted. Organizations like the Association on Higher Education and Disability (AHEAD) and the National Council on Disability (NCD) are valuable sources of benchmarking information. Better service for our disabled workers is a moral imperative. And even a small investment of institutional resources will pay substantial dividends if it deters an ADA complaint.