From RAND, Santa Monica, CA, and the Harvard School of Public Health, Boston, MA.
Received for publication September 24, 2001; accepted for publication March 24, 2002.
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ABSTRACT |
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civil rights; disabled persons; employee grievances; HIV; jurisprudence; prejudice
Abbreviations: Abbreviations: ADA, Americans with Disabilities Act; AIDS, acquired immunodeficiency syndrome; EEOC, Equal Employment Opportunity Commission; FEPA, Fair Employment Practices Agency; GBP, general baseline population; HCSUS, HIV Cost and Services Utilization Study; HIV, human immunodeficiency virus; OR, odds ratio; SBP, specific baseline population.
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INTRODUCTION |
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The goal of safeguarding persons with the human immunodeficiency virus (HIV) from discrimination figured prominently in the genesis of the ADA (3). An early recognition that existing legal protections were inadequate for Americans with HIV/acquired immunodeficiency syndrome (AIDS) meant that the Act held special promise for this growing segment of the US population (4). Persons with HIV are considered to be especially vulnerable to discrimination because of the stigma associated with their disease, (unfounded) fears about transmissibility, and the association of HIV infection with other vilified traits, such as homosexuality (5). Consolidation of the AIDS epidemic in marginalized groups has compounded this vulnerability (6, 7).
Although drafters of the ADA apparently intended that the legislation would protect persons with HIV and AIDS (8) and this was reinforced in interpretive guidelines (9), courts in the mid-1990s began to cast doubt on whether asymptomatic HIV continued to meet the definition of a disability under the Act (10). In 1998, the United States Supreme Court resolved this question in the affirmative (11).
For persons living with or perceived to have disabilities such as HIV/AIDS, the workplace presents special risks. The hierarchical structures, imbalances in power, and close personal interactions common to most employment situations create abundant opportunities to discriminate. Title I of the ADA targets the workplace. "Qualified" persons are protected from discrimination on the basis of disability in the job application process, hiring, firing, advancement, compensation, job training, and in any terms, conditions, or privileges of employment (12). The ADA mandates that employers provide reasonable accommodation to qualified persons with disabilities, provided that the accommodation does not impose an "undue hardship" on the employers business (13).
After nearly a decade of ADA enforcement, little empirical information exists about how the Act has actually been used by its intended beneficiaries to redress discrimination. Previous studies have addressed enforcement (14), litigation outcomes (15, 16), patterns of employment discrimination complaints (17), and the impact of the Act on wages and employment opportunities (18, 19). Moss et al. (20, 21) used data on discrimination charges to describe the adjudication process for Title I, overview charge statistics, and contrast outcomes of charges involving psychiatric and nonpsychiatric disabilities. However, no research to date has measured the extent to which persons with disabilities actually make use of the protections available to them under the ADA.
The purpose of this study was to investigate a specific use of the ADA. We analyzed all charges under the ADA filed with the Equal Employment Opportunity Commission (EEOC) between 1992 and 1999 alleging HIV discrimination in the workplace. After describing the charges, we examined the epidemiology of charging behavior by comparing the characteristics of persons who brought charges with a nationally representative sample of workers with HIV.
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MATERIALS AND METHODS |
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Persons who believe they have been discriminated against in their employment begin by filing an administrative charge at an EEOC or FEPA office. If, after investigation of the charge, the agency determines that there is reasonable cause to believe that discrimination has occurred, the charge is classified as having merit, and the agency will attempt to facilitate a voluntary resolution between the "charging party" (the employee) and the employer. If such resolution is not possible, the EEOC may bring a lawsuit against the employer in federal court. Title I allows aggrieved persons to pursue their own lawsuits in federal court, but only after they have exhausted the administrative remedies and the EEOC has issued a "right-to-sue" letter (22). Remedies available to charging parties under the ADA include hiring, promotion, reinstatement, reasonable accommodation, and compensatory damages such as back pay, front pay, legal expenses, and any other money deemed necessary to make the employee "whole."
Data on all charges filed with the EEOC and FEPAs are collected in the Charge Data System, a database maintained by the EEOC. Officials enter information about the charge, including date of receipt, date of the alleged violation, controlling statute, and details of the allegation. The Charge Data System also tracks administrative data on the charging party (e.g., residence, gender, race, and date of birth), the respondent (e.g., location and Standard Industrial Classification code), and the outcome (e.g., type of award, amount of any monetary award, and date of closure).
Workers with HIV: general baseline population (GBP)
We calibrated EEOC charge data against information gathered in the HIV Cost and Services Utilization Study (HCSUS) (23). HCSUS used multistage, national probability sampling techniques to develop a nationally representative sample of adults with HIV infection. Persons were eligible for sampling if they had a known HIV infection and had made at least one visit for health care to a facility other than a military, prison, or emergency department facility during a 2-month population definition period in early 1996. The design and methods used to attain national representativeness in HCSUS have been described in detail elsewhere (2325).
HCSUS interviews began in January 1996 with a baseline interview; two follow-up interviews were spaced approximately 9 months apart. Of the 4,042 eligible patients in HCSUS, 71 percent completed a standard baseline interview, yielding an overall coverage rate (i.e., the ratio of the population represented divided by the population that would have been directly represented if there had been complete responses at all levels) of approximately 68 percent (25). Eighty-six percent of baseline respondents completed a first follow-up interview, and 79 percent completed a second follow-up interview. Trained interviewers used computer-assisted personal interviewing for in-person sessions lasting about 90 minutes.
In this analysis, we classified all HCSUS interviewees who reported having jobs at baseline or at either follow-up interview as workers. Together, these persons comprised the GBP used in comparative analyses. Thus, the GBP consisted of persons working full time, working part time, and on temporary leave from their jobs.
Subsample "at risk" of discrimination in the workplace: specific baseline population (SBP)
HCSUS interviewees were not directly asked whether they had experienced discrimination in the workplace. Responses to such a question would have been difficult to interpret, in any case. However, 16 question-response combinations in the HCSUS surveys are consistent with, although not necessarily indicative of, the respondent having suffered an episode of employment-related HIV discrimination.
Because no one response or combination of the responses conclusively indicated a discriminatory experience, we used a probabilistic approach to demarcate a narrower baseline population, SBP. It comprised persons within the GBP whose responses suggested an elevated "risk" that they had experienced an episode of discrimination in the workplace related to their HIV status. The influential study of responses to discrimination by Bumiller (26) adopted a similar "ostensible victim" perspective to identify discriminatory experiences from survey data.
Three attorneys with expertise in disability and discrimination law independently assigned a weight of one, two, or three to each question, based on their subjective judgment about the degree to which it was potentially indicative of a discriminatory experience. (These were holistic judgments, not strict legal determinations about the merits of a discrimination charge; the latter would have required more information (e.g., employers defenses) than was available in the survey data.) The median weight from the three judgments was assigned to each question.
We classified persons as being "at risk" of having suffered discrimination in the workplace if they scored on at least one question in the work-related section and attained a cumulative total of three or more from all sections combined. The threshold of three was chosen a priori. To test the sensitivity of study results to it, regression analyses were repeated using subsamples of the baseline population derived from a range of alternative thresholds.
Income imputation
We imputed household income for persons in both the EEOC and baseline samples by combining their five-digit ZIP codes with data from the 1990 Census. To take advantage of available sociodemographic information in addition to ZIP code, each person was assigned the midpoint of the income range for the median household within that persons ZIP code, age, and racial group (27). All income estimates were then inflated to 1995 dollars and categorized by reference to the federal poverty level for a four-person family in 1995 ($15,150) (28).
Analysis
We used descriptive statistics and multivariate logistic regression to compare charging parties to 1) all workers in the general HIV population (GBP) and 2) workers in the more specific at-risk subsample (SBP). The baseline samples were weighted to represent the reference population. The dependent variable in both versions of the logistic regression model was an indicator variable signaling inclusion in the charge or baseline group. The independent variables were gender, race (White, Black, other), age (<25, 2534, 3544, 4554, and 55 years), and income (
$15,150, $15,151$30,300, $30,301$45,151, $45,451$60,600, and >$60,000).
The HCSUS sampling design did not provide state or regional representativeness. Therefore, geographic comparisons were limited to an unadjusted comparison of charging parties by census region (Northeast, Midwest, South, and West) using HIV/AIDS prevalence estimates from the Centers for Disease Control and Prevention as the baseline data. In general, a lack of congruent variables across the datasets thwarted opportunities to examine a number of other potentially interesting comparisons, such as occupation, industry, and stage of illness.
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RESULTS |
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HIV discrimination charges
Of the 3,520 HIV discrimination charges filed through December 31, 1999, 18.0 percent (n = 634) were judged on the evidence available to have merit, and 14.1 percent (n = 497) received monetary compensation (table 1). Employers in the retail industry, especially in food stores, were the most frequent target of charges. Compared with charges made against other employers in the leading group of respondent industries, those against retail employers were also the most likely to result in meritorious findings (21.5 percent). In addition, they received the largest mean monetary awards (mean = $35,530) except for public administration employees, although there is considerable variability across awards against all industries.
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Nearly 60 percent of all charges alleged discriminatory discharge from employment. The next most common allegations were discrimination in the terms or conditions of employment (19.0 percent ), harassment (12.9 percent), and failure to provide a reasonable accommodation (10.7 percent). Although they accounted for less than 4 percent of the HIV caseload, charges alleging discrimination in the provision of health or disability insurance were the most likely to be judged meritorious, and they also returned the largest mean monetary award.
Baseline populations
The GBP comprised 47.6 percent (n = 1,364) of HCSUS respondents. The employment history of this group was fairly choppy. A majority of the working HIV population (59.2 percent) held employment at the time of the baseline and not thereafter. Fewer than 10.0 percent reported stable employment through the course of interviews. However, 31.7 percent reported having a full- or part-time job in two consecutive interviews in the three-interview series. Missing data made it necessary to drop seven workers from the GBP, leaving 1,357 for further analysis.
Table 2 summarizes the questions used to screen HCSUS respondents into the SBP based on their risk of having suffered discrimination and divides the questions into three sections: 1) work related; 2) insurance related; and 3) migration related. The three attorneys who weighted each question-response combination on a scale of 13 had perfect agreement 37 percent of the time; at least two concurred in every case, and the third differed by more than a point in only two instances.
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Comparison of charging parties with baseline populations
The unadjusted statistics shown in table 3 reveal no significant gender, race, age, or income differences between all charging parties and the subset whose charges were judged meritorious, although the proportion of successful charges was higher in the Northeast and lower in the West. In other words, the full group of those who filed charges resembled the subgroup of filers that was ultimately successful. However, there were a number of significant differences between the characteristics of the charging parties and the baseline populations.
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In comparisons with the SBP, racial differences observed between the charging parties and the GBP did not persist, but the gender, age, and income differences were magnified. First, women remained underrepresented: There were 40 percent fewer women among charging parties than in the SBP. Second, the age differences solidified, with a disproportionately low frequency of charge filing by workers aged less than 35 years and a relatively high frequency of filing among older workers. Specifically, workers aged 3544 years were 25 percent more likely to file than their representation in the SBP would suggest, whereas workers aged less than 25 years and those aged 2534 years were 67 and 24 percent less likely, respectively. Third, persons in the wealthiest income category were nearly three times more likely to file charges than their representation in the SBP would suggest.
Multivariate odds of filing an HIV discrimination charge
The multivariate results shown in table 4 confirm that working women with HIV were significantly underrepresented among charging parties relative to their prevalence in the GBP (odds ratio (OR) = 0.79, p < 0.01). Workers aged less than 25 years were approximately one third as likely as those aged 3544 years to file charges (OR = 0.36, p < 0.01), and those aged 2534 years were three fourths as likely (OR = 0.77, p < 0.01). Neither the racial nor the income differences observed in unadjusted comparisons with the GBP are statistically significant.
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Sensitivity analysis
We tested the sensitivity of our results to alternative specifications of the comparison groups in two ways. First, on the charges side, we restricted the multivariate comparisons to only those charges judged to have merit (n = 634). The same significant gender, age, and income differences were observed in comparisons of this group with the GBP and the SBP, an anticipated result given the similarity between the profiles of meritorious charging parties and all charging parties previously noted (table 3).
Second, on the baseline side, we tested the robustness of our regression analyses to different configurations of the SBP. Repeating the multivariate comparison using thresholds ranging from 2 to 4 produced subsamples ranging in size from 244 to 215 persons and also produced statistically significant coefficients of a magnitude similar to those shown in table 4 for the key variables: age less than 25 years, ages 2534 years, and income greater than $60,600. At a threshold of two, female gender had borderline significance (OR = 0.37, p = 0.07). At a threshold of five, the baseline sample dropped to 161 persons (with none in the age category 55 years), the confidence intervals for most variables widened significantly, and, although the age and income variables had similar coefficients, they were no longer statistically significant.
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DISCUSSION |
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A lack of detailed information about the incidence of discrimination in the baseline population of this study precluded close investigation of the first possibility. By using a probabilistic approach to demarcate a group whose experiences were consistent with having suffered discrimination, however, we tested the second possibility. The results of this focused comparison lend weight to the suspicion that young workers systematically underclaim; they do not confirm that women are underrepresented among charging parties, but household income more than four times the poverty level is correlated with higher-than-expected rates of claim filing.
Etiology of underclaiming
Workers who "underclaim" are of particular policy interest because even the strongest antidiscrimination laws may not protect persons who do not take advantage of the remedial opportunities such laws provide. What gives rise to a low proclivity to use legal protections and seek remedies?
Legal scholars have given some theoretical consideration to why certain persons may never come to "name" their loss, "blame" the responsible party for it, and "claim" remedies through the legal system (29). The transformation of grievances has been conceptualized as a "dispute pyramid," with the base layer consisting of all experiences that might be labeled injurious, the pinnacle consisting of fully blown legal disputes, and the layers in between characterized by factors such as recognition of the injury and voicing of the grievance (30, 31). Available data suggest that extensive censoring of grievances occurs through the intermediate layers of the dispute pyramid (32, 33) and that discrimination, in particular, may be more prone to such censoring than are most other types of harm (30, 34). Yet, virtually nothing is known about how these selection effects may vary across different types of disputants.
Previous research has described characteristics and motivational factors of persons who emerge at the highest layer of the pyramid by bringing, or seeking to bring, claims (3539). However, only a few studies have used epidemiologic methods to expand analyses of claiming behavior to include both persons who initiated legal action and those who experienced potentially actionable events but did not seek redress (27, 4043). Two studies from the latter group, both focused on medical malpractice, went further still: They compared sociodemographic characteristics of suers and nonsuers and found that underclaiming was concentrated among poor and elderly patients who sustain injuries due to negligence (27, 43). As one likely explanation, investigators pointed to the economic incentives that plaintiffs attorneys face when selecting clients (27).
Because most discrimination charges are initiated without attorney involvement and many seek nonmonetary benefits, the factors that mediate access to remedies under the ADA should differ from the tort system. Our findings certainly diverge from those in the malpractice domain (27, 43): Young, rather than older, claimants appeared to underuse the dispute resolution system available; low income was not associated with underclaiming, although, conversely, high income was associated with relatively higher rates of charge filing. In addition, a gender difference arose.
There are several potential explanations for these findings. One is that awareness about ADA protections and relief may differ systematically across groups of employees. The ADA compels employers to post notices informing job applicants, employees, and members of labor organizations about their rights under the ADA (44). However, the Act does not prescribe a specific penalty for failing to do this, and no data are available to indicate how frequently or well employers meet their notification obligations. If younger workers were systematically more likely to hold positions or work in industries that provide relatively poor information about antidiscrimination laws, ignorance may be quite an important rationale for underclaiming. The fact that our analyses do not control for firm-level variables, such occupation or industry type, leaves open this possibility.
A related explanation concerns differential access to information about and assistance with antidiscrimination protections from external sources. The EEOC has actively sought to educate employees throughout the country about their rights under the ADA (45). However, in certain locations, young workers or women with HIV may still be deprived of the sort of guidance that is available to their older, male counterparts from a well-established network of support and advocacy groups such as gay mens organizations.
Perhaps the most powerful potential explanation for the differences observed concerns the nature of participation in the labor force. There is ample evidence to suggest that both younger workers (4648) and women (49, 50) have weaker attachments to specific jobs. Job "churning" among young workers is common; the average 30-year-old worker in the United States has held more than half a dozen jobs and is likely to have been in a current job for less than 2 years (51, 52). Of course, this mobility is a function of both worker-initiated (quit) and firm-initiated (laid off) action. Women are generally more prone to both (53, 54). Thus, the transient nature of their employment may make workers with these age and gender characteristics less inclined to assert their legal rights (55). Rather than give voice to objections over discriminatory experiences, exiting the firm may be the preferable option when the employee has relatively little personal investment in the job (56).
Study limitations
There were several challenges and limitations in marrying the charge and baseline datasets in this study. First, both administrative and survey data collected for other purposes come with a number of constraints. For example, the EEOC records the industry involved in a charge, whereas HCSUS collected data only on occupations. This made it impossible to include either of these important variables in the calibration.
Another obvious gap was the inability of HCSUS data to provide direct, detailed information about the discriminatory experiences of persons in the baseline population, necessitating the inference of a "discriminated" subgroup through probabilistic means. None of the question-response combinations we used dispositively mark discrimination. Like previous analyses of claiming propensity (3033), our scoring approach compiles only circumstantial evidence about a group of persons more likely to have been suitable candidates for charge filing than others in a wider population.
Second, charges do not capture the universe of employment-related discrimination claims nationwide. An ADA claim through the EEOC is the conventional and predominant avenue for resolving such disputes, but it is not the only one. Some aggrieved employees may pursue non-ADA actions under state laws that will not be captured in the EEOC database. Federal employees use alternate procedures (57). In addition, the ADA protections apply only to employers with 15 or more employees. The charging behavior we observed may not be generalizable to workers in those settings.
Third, the baseline population was drawn from workers with HIV who were receiving care for their illness (23), whereas any workers with HIV could have brought a charge. This disparity is mitigated somewhat by our focus on workers, although employment is certainly no guarantee of access to health care services in the United States (58, 59).
Study implications
The ADA was introduced to reduce the vulnerability of all persons with disabilities to discrimination and to arm them with means of redress when it occurs. Those who suffer discrimination and do not take advantage of the legal protections available to them remain vulnerable. The differences we have identified between charging parties and the baseline HIV population should help to target dissemination, guidance, and support services around antidiscrimination laws toward the groups of workers who need them most. As improved treatments continue to erode the barrier HIV poses to a persons capacity to work, the number of Americans who stand to benefit from effective safeguards against discrimination grows larger (60).
More generally, this study helps to illustrate the significant potential for epidemiologic methods to be applied toward understanding the complex interaction of claimants and potential claimants with the legal system. The fact that few such analyses have been conducted to date probably reflects a degree of apathy among legal scholars in pursuing this kind of empirical research (61). However, the difficulty of obtaining the necessary data, especially baseline information on episodes that do not manifest as disputes in courts or other adjudication forums, remains a major challenge.
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ACKNOWLEDGMENTS |
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The author thanks Martha Mankewicz for programming assistance. Drs. Jay Bhattacharya, Troyen Brennan, Atul Gawande, Dana Goldman, Daniel McCaffrey, and Michelle Mello provided helpful comments on earlier drafts of the paper. Scott Burris and Wendy Parmet also gave helpful suggestions. The author is especially grateful to John Schmelzer at the Equal Employment Opportunity Commission in Washington, DC, for his invaluable assistance in assembling and interpreting the EEOC data.
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NOTES |
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REFERENCES |
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