a provision, criterion or practice applied by or on behaf of ... any physical feature of premises ... [that] places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled
And second, "affirmative actions" in the US are not federal statutes. What is "opportunity" here is very much a moot point.
The constitutional principle of equal protection is the prerequisite of civil rights enforcement in the US. That is a very vague standard in effect as the Constitution doesn't define what constitutes either advantage or disadvantage per se. Consequently, all laws and enforcement actions since Brown v BoE concern tort procedures to identify comparative delivery of publicly funded services and financial benefits as well as and private enterprise engaged in public commerce and employment EXCLUDING clubs and religious organizations. Civil litigation rarely "trickles up" to statutes. Each instance is a private battle and, in fact, settlement terms of such disputes is frequently subject to "gag" conditions to protect defendent's interests from prejudicial public response to the outcome.
The foundation of "affirmative action" in the US is an EO signed by LBJ --never revoked-- concerning executive agencies' enforcement of the Civil Rights Act with respect to federal business and employment practices. That guidance has resulted in "set aside" allocations of appropriations (for any federal programming) by Congress, so-called "quotas," state-, federal- and NGO-sponsored "leadership" programming, and much contemporary political vitriol against "racial preferences" and "reverse discrimination" perceived to determine allocation of government funds. Read: resentment of competition for "American Dream" benefits.
Accordingly, Mr Obama's promise "to continue efforts by previous administrations to add 100,000 employees with disabilities to the federal workforce" recognizes the limitations of his office and influence on the general private practices. Litigation is still essential to enforcement of prohibitions of discrimination, so compelling equal protection on a case by case basis, privately.
Under the original Title VII, EEOC has no authority to bring lawsuits of its own. However, private individuals may file actions in court and EEOC can recommend to the Department of Justice that it bring pattern and practice lawsuits.
Equal Employment Opportunity Act of 1972 amdended the Civil Rights Act in two very important ways. (1) identified specific types of commercial practices prohibited (e.g. housing discrimination); and (2) authorized EEOC investigatory powers to discover, determine, and certify a plaintiff's claim of discrimination, pursuant to civil litigation. Discovery is a very expensive project, when as suggested in the DDA a defendant claims ignorance of discriminatory practices.
The reality of these administrative conditions are assumptions of the HR Executive article you cite. For this reason I imagine the president of the American Association of People with Disabilities, an "issue advocacy" organization anticipating litigation of non-compliance with ADA, says
another Obama pledge [read: EO, agency memoranda on rule-making] would "touch an even bigger part of the economy." The president-elect promised to fully implement Section 503 of the Rehabilitation Act, which requires the government and federal contractors to "take affirmative action to employ and advance in employment qualified individuals with disabilities."
Today for all practicable purposes the EEOC is a (advisory) division of the office of the Attorney General of the USA in so far as the AG elects (as directed by the president) to prosecute class action complaints against a third party --or-- defend the US government in complaints brought by individual or class action suits. The latter point, I predict guarantee, will precipitate litigation of Social Security disability insurance benefits administration -- qualification of disability, determinations and appeals, claim processing, etc. -- and employers' dependencies. ADA advocates expect Mr Obama to direct agencies in facilitating such employee "entitlements."
ADA
(A) IN GENERAL- The term `employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this title, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person. (B) EXCEPTIONS- The term 'employer' does not include-- (i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or (ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986.
(B) EXCEPTIONS- The term 'employer' does not include--
(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986.
Don't hold your breath for "a sea change." Diversity is the key to economic and political evolution.
That has been my experience. Now, may I add this for practice, Ginsberg's dissenting opinion on Ledbetter v Goodyear, and to emphasize: Discovery is such an expensive project, plaintiffs in either the US or UK are easily discouraged from pursuing "rights." (Contrary to claims that the subsequent Ledbetter Act will produce "frivolous" lawsuits.) Whatever DDA prescribes must be provide material support for litigation by the "disadvantaged" who seek remedy of discrimination. In that sense the "market power" or resources of government may be marshaled for real "affirmative action."
Ginsberg notes
Title VII proscribes as an "unlawful employment practice" discrimination "against any individual with respect to his compensation ... because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. §2000e-2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days "after the alleged unlawful employment practice occurred." §2000e-5(e)(1). See ante, at 4; supra, at 2, n. 1. . . . In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black employees less than similarly situated white employees. 478 U. S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Id., at 390. Employees in the "Negro branch" were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390-391, 394-395. Nonetheless, "some pre-existing salary disparities continued to linger on." Id., at 394 (internal quotation marks omitted). ... [D]ifferent in kind from discrete acts," we made clear, are "claims ... based on the cumulative effect of individual acts." Id., at 115. The Morgan decision placed hostile work environment claims in that category. "Their very nature involves repeated conduct." Ibid. "The unlawful employment practice" in hostile work environment claims, "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct, "[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., at 117. ... The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts "easy to identify." A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext.
. . . In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black employees less than similarly situated white employees. 478 U. S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Id., at 390. Employees in the "Negro branch" were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390-391, 394-395. Nonetheless, "some pre-existing salary disparities continued to linger on." Id., at 394 (internal quotation marks omitted). ...
[D]ifferent in kind from discrete acts," we made clear, are "claims ... based on the cumulative effect of individual acts." Id., at 115. The Morgan decision placed hostile work environment claims in that category. "Their very nature involves repeated conduct." Ibid. "The unlawful employment practice" in hostile work environment claims, "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct,
"[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., at 117. ...
The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts "easy to identify." A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext.
There is indeed much to learn from US history of these matters. Diversity is the key to economic and political evolution.
