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In his fiscal 2001 budget, President Clinton proposed a new Office of Disability for the Department of Labor. The Presidential Task Force on the Employment of Adults with Disabilities recommended the creation of the office, which would receive approximately $43 million in fiscal 2001. The stated purpose of this new office is to provide disabled adults with greater access to employment services. The proposal is intended to supplement the recently enacted Work Incentives Improvement Act and the Workforce Investment Act. The Work Incentives Improvement Act was designed to allow individuals with disabilities to take jobs without losing their healthcare benefits. The Workforce Investment Act established a system of one-stop career centers throughout the country and funding for job training programs. The new Office of Disability would attempt to ensure that all services of the one-stop centers are accessible to persons with disabilities. President Clinton’s proposed budget also includes a 15 percent increase in funding for the Equal Employment Opportunity Commission. Approximately $10 million of that would be used by the agency to promote equal pay for women, including funding for employer training programs and a public relations campaign. In making the proposal for a new disability office, the Labor Department continues to target for assistance disabled individuals who have not benefited from today’s strong economy. Labor Secretary Alexis M. Herman is quoted as saying, “We will continue to build a strong, competitive workforce that can respond to a rapidly changing economic environment, and one way to do that is to bring into the workforce the people who have been struggling to get there.” Presidential Task Force Executive Director Becky Ogle said that creating the office “demonstrates the commitment to put people with disabilities to work.” Despite the high praise from Administration officials for these budget initiatives, the Republican Party’s response was, perhaps not surprisingly, not as positive. After the proposed budget was released in February, House Education and Workforce Committee Chairman Bill Goodling, R-Pa, said, “The Clinton-Gore Administration’s workforce initiatives remain flawed. The emphasis on stepped up enforcement and training by the Equal Employment Opportunity Commission is a thinly veiled attempt to create a more litigious approach to dealing with employment issues.” That, in fact, is the possible pitfall of Clinton’s proposal for a new Office of Disability. The proposed office certainly has the potential for creating enhanced employment opportunities for disabled individuals, but only if it is designed and implemented properly. If the office only serves to polarize employers and disabled individuals, it would be a waste of money and resources. The Americans With Disabilities Act (ADA) became effective in 1992. The statute was enacted under the previous Bush Administration and was clearly long overdue. Like the proposed Office of Disability, the ADA was designed to enhance the employability of individuals with disabilities. Eight years later, there have been many instances where individuals, claiming they are disabled, have unjustifiably lashed out at their employers under the auspices of the ADA. The benefits of the ADA of course far outweigh the detriments. The point is, however, that any new initiative aimed at assisting individuals with disabilities must not only focus on individuals who are truly disabled, but must be designed as a cooperative effort between employers and the disabled. In Sutton v. United Airlines, Inc., [FOOTNOTE 1]the Supreme Court estimated that with the use of corrective measures (i.e., eyeglasses, medication, etc.), the number of Americans who could be considered “disabled” under the ADA is approximately 43 million. [FOOTNOTE 2]This estimate apparently does not take into account individuals who have not yet reached working age or have retired, are unable to work in any capacity, or are unemployed for other reasons. Regardless, the number of Americans who potentially could invoke the ADA’s anti-discrimination provisions is staggering. A new Office of Disability cannot possibly address the needs of these millions of potentially disabled Americans. If any such disability office is to succeed, it must be aimed at a segment of the American workforce which remains relatively untapped even with the strong economic gains over the past decade–individuals with severe disabilities. Otherwise, the proposed office is doomed to fail. Disabled individuals who are truly deserving of assistance would not benefit from such an initiative if the Office is spread thin. Other potential problems with this proposal are evident. The new Office must not be designed to penalize employers who either decline to accept the Office’s proposals, or to participate at all in its programs. For instance, what happens if an employer decides that an accommodation proposed by the Office is not reasonable? Will the employee affected by this decision be able to use the decision against the employer in an ADA action for failure to accommodate? Will an employer’s declination to participate in the Office’s programs entirely be used against the employer? Will the Department of Labor be able to impose penalties against employers who decline to either participate in its programs or accept the Office’s proposals? Answers to these questions will determine the success of this initiative. Stated simply, if the proposed Office of Disability only serves to intensify the adversarial relationship between employers and disabled individuals, it will not succeed. CONCLUSION The Administration’s proposal to create a new Office of Disability is a good one, but only if it is designed and implemented as a cooperative effort between employers, the disabled, and the Department of Labor. All parties involved in such an initiative must work toward the common goal of increasing productivity of both disabled individuals and businesses as a whole. Employers in today’s tight labor market certainly stand to gain from having greater access to a pool of potentially qualified applicants. If structured properly, the proposed Office of Disability may be judged as a huge success in years to come. This article is excerpted with permission from CCH’s Journal of Employment Discrimination Law, Spring 2000 Edition. Martin K. LaPointe, a shareholder in the Chicago law firm of Burke, Warren, MacKay & Serritella, PC, heads up Burke’s Labor and Employment Practice Group. He has represented employers nationwide in employment litigation at the trial court level, as well as on appeal in the various U.S. Courts of Appeals. Mr. LaPointe is a former law clerk for the Honorable Charles R. Norgle, Sr. of the U.S. District Court for the Northern District of Illinois. He received his law degree from IIT Chicago-Kent College of Law. FOOTNOTES: FN1119 S. Ct. 2139 (1999). FN2Sutton limited the scope of the ADA by ruling that corrective measures must be taken into account in deciding whether an individual is disabled. � 2000, CCH INCORPORATED. All Rights Reserved.

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