Studies On The Legal Issues Of Anti-Employment Discrimination Against Disabled Persons In The United States

The disabled persons have always exist since the dawn of human-being.However,in any country in the whole world,the disabled was once be excluded from the mainstream and was not able to have the same rights and treatments as other citizens did.Once being disabled,people are labeled as "Incompetence" which cannot be wiped during their whole lives.They not only have to overcome the inconvenience due to their own body condition,but also have to struggle against the tough social reality.What's more,the latter is just the biggest obstacle that the disabled should face in their social lives.The disability rights movements have spread vigorously among the whole world since the 1960s.The U.S.disabled activists began to call for individuality and refused to be discriminated under the black civil rights movement' spiritual encouragement of pursuing the equal rights.The The Americans with Disabilities Act(ADA),which is passed in 1990,has realized the long-cherished wishes of American disabled rights activists and political lobbyists and it becomes the first most comprehensive and widely-applied legal document of disability rights protection.ADA guarantees the disabled has the equal opportunity,fully-participated rights,independence of living and self-sufficiency of economy.As a result,it is named the Emancipation Proclamation for the U.S.disabled.However,after the enactment of ADA,the disabled failed to have the equal rights and gain their deserved legal remedy as the lawmaker once wished.The Supreme Court explained the definition of"disabled" in a narrowed and limited way in plenty of cases of disability discrimination.In 2008,in order to restore the original intention of legislation,the congress enacted the The ADA Amendments Act of 2008(ADAAA)and clarified the definition of "disability" and further extended the scope of protected disabled people.After almost 30 years' practice,under the framework of the ADA and the ADAAA,the U.S.has formed a unique legal system of prohibiting the disability employment discrimination.The protected party and its related evaluation standard are different from the traditional anti-discrimination legal system and the improved protective measures have enriched the system of the employer obligation and the connotation of the employer responsibility.Thanks to advancement of the ADA,it has become the blueprint of the Convention on the Rights of Persons with Disabilities which is drafted by the United Nation.The core issue that the U.S.legal system of prohibiting the disabled employment discrimination should solve firstly is the scope of the disabled that the law protects.The protected party must fulfill two premises.First,he or she must fulfill the definition and its related evaluation standard of the disabled.It is the "major premise".According to ADA&ADAAA,there are three kinds of disabled persons.The first type is the individual with a physical or mental impairment that substantially limits one or more major life activities of such individual.The second type is the individual who has a record of such an impairment.The third type is the individual who is being regarded as having such an impairment.The U.S.Equal Employment Opportunity Commission(EEOC)and the court then explain the core factors in the above definition as specific and operable evaluation standard.However,it is not enough that the victim of disability employment discrimination just matches any kind of the evaluation standard and they are not protected by the law.The ADA and the AD AAA do not protect any kind of disability with no distinction.They just offer equal employment opportunities to the qualified individual who can perform the essential functions of the employment positions that such individual holds or desires and ensure they can receive the reasonable accommodations.It means that possessing eligibility of employment is the "threshold of qualification" and "minor premise" for the disabled to pursuing the legal remedies against employment discrimination.The law forbids the employer from discriminating against a qualified individual on the basis of disability in regard to job application procedures,the hiring,advancement,or discharge of employees,employee compensation,job training,physical examination,and other terms,conditions,and privileges of employment.When facing the issue of the disabled employment,the employer's obligations of prohibiting discrimination are of two kinds:negative obligation and positive obligation.The negative obligation means the obligation of nondiscrimination.It prohibits the employer from considering factors such as disability(information that related to disability)that have nothing to do with job performance into the employment decisions in order to avoid behaviors of disparate treatment,disparate impact and relationship discrimination.Besides the negative obligation,the employer should actively communicate with the qualified individual to realize the environmental obstacles that they encounter during the work and offer reasonable and effective accommodations such as comprehensive hardware measures,flexible working system and human assistance to assist the qualified individual to perform the essential functions of job positions.If the employer violates negative obligation or positive obligation,the victim of disability employment discrimination has the right to seek administrative remedy and judicial relief,and the employer shall bear the corresponding legal liabilities.At the same time,in order to encourage employers to hire more people with disabilities,the state has the duty to actively provide necessary technical guidance and fiscal incentive policies.Since their enactment,ADA and AD AAA have been placed great expectations.However,the implementation of the law increases recruitment and dismissal costs for people with disabilities in the short term,which may hinder employment of disabled persons to some extent.In the long run,ADA and AD AAA will still play an active role in promoting employment of persons with disabilities.However,the legislation of anti-employment discrimination against disability and the present situation of its implementation in China reflects shortcomings of the legal regulations,insufficiency of judicial application and some issues of providing reasonable accommodations.In order to further improve the equal employment system for the disabled in China,we can learn from the advanced experience of American law.We need to establish social/right mode of disability;expand disability definition and protect "regard as" type of disabled people;properly integrate of the basic idea of "qualified individual";equitably distribute the burden of proof and promote judicial application;specify the position of anti-employment discrimination against disabilities;establish multiple cohesion security mechanism of the disabilities.At the same time,to promote employers to perform its positive obligation which is providing reasonable accommodations,on the one hand,the state should refine barrier-free working environment standard.On the other hand,government must play a necessary role in providing professional guidance and services,and discussing with employers to establish a rational standard of reasonable accommodations,and using fiscal subsidy,tax credits and other economic incentives to help employers perform its obligations actively.