Reserved employment: can global policies to improve employment opportunity for people with disabilities work in the United States?

Reserved Employment: Can Global Policies to Improve Employment Opportunity for People with Disabilities Work in the United States? (Could Gender Quotas Lead the Way to Quotas for Disabled Persons?) Kabrina Krebel Chang Clinical Associate Professor Business Law and Ethics Associate Dean for Diversity, Equity, and Inclusion Questrom School of Business Boston University California is testing the limits of diversity quotas for boards of publicly listed companies. SB 826 was passed to address gender inequity on corporate boards in the state by establishing a qutoa system depending on the number of directors. Nationally, only 28% of corporate board members are women. A conservative activist group sued alleging the law violated the equal protection clause of the California constitution because it unlawfully relied on gender-based classifications. The court held that California failed to meet its burden to identify a compelling state interest served by the law. Specifically, the court held that the connection between women on boards and improved corporate performance was inconclusive and that the state legislature could amend existing laws to focus on diversifying corporate boardrooms more narrowly. California has appealed. Despite the law being struck down, the average share of women on boards in California rose from 12.9% in 2016 to 23.2% in 2020 . In Europe, eight countries have adopted mandatory gender quotas for boards, while ten more have taken a more liberal approach using a range of measures and initiatives. Since 2011, the share of women on company boards has risen by over 36% in those countries with mandatory quotas, and just over 30% in those countries taking a more liberal approach. In January, 2022, European Commission President Ursula von der Leyen announced an effort to unblock legislation from 2012 that would require 40% of non-executive board seats be filled by women. Gender isn’t the only identity supported by employment quotas in the EU and beyond. Globally, the employment ratio of people over 15 years old with a disability is almost half of that of persons without a disability. To improve employment for disabled people, 99 countries have adopted a quota system: depending on their size, employers must employ a certain number or percentage of persons with a disability. Typically, the percentage ranges from 1%-15%. Often a quota is combined with a levy system for companies that do not comply. The funds collected finance measures used to promote employment of those with disabilities . Like the US, in many other countries national constitutions guarantee the right of disabled persons to work, and the majority have laws prohibiting discrimination in employment and pay. Is it time for private sector business in the US to try a quota system for disabled workers? In the US, across all age groups and education levels people with disabilities are much less likely to be employed than those without a disability. The jobless rate for people with a disability is twice as high as the rate for able-bodied workers. Those that are employed are more likely to be self-employed than those without a disability. This, despite the existence of the Americans with Disabilities Act. Would a quota for disabled workers pass constitutional scrutiny in the United States? Unlike gender, under the 14th amendment disability related discrimination remains the weakest of all protected classes. In City of Cleburn, Texas v Cleburn Living Center, the US Supreme Court held that a mental disability is not a quasi-suspect class requiring heightened scrutiny. According to the Court, a state statute related to mental disability need only be rationally related to a legitimate state interest to pass constitutional scrutiny . Even if a law establishing a disabled worker quota could pass constitutional muster, what social and ethical barriers would such a bill face in the United States? Examination of stakeholders at an individual level (disabled workers), group level (team dynamics at work), organizational level (structural issues in a business that might disadvantage disabled workers), and a macro level (do we struggle to see disabled workers as leaders?) may indicate why there is a lack of progress. Several countries have decided to change behavior first and hope that inclusion follows.