Backlash and Structural Inequality
Introduction
The Americans with Disabilities Act (ADA) is both a civil rights […] and an economics bill intended to increase the relative wages and employment of disabled people by “leveling the playing field.”1 However, just as the Civil Rights Act of 1964 produced a backlash by those who feared that minorities and women would take jobs away from them, the ADA has been subject to recent backlash by the public, our elected officials, and the courts.
The most prominent hostility towards the ADA has come from business, though this may not technically be a “backlash,” given that the business sector largely opposed the Act from the start. […] Ongoing resistance from business interests is nonetheless significant in that it exposes the economic nature of opposition to enforcement of the Act. The year the ADA was signed, the Cato Institute, a conservative think tank, called on President George H. W. Bush “to ask Congress to reconsider” the ADA since, from the standpoint of free enterprise, it represented a re-regulation of the economy that was harmful to business.2 […] Rick Kahler opined in a piece entitled “ADA Regulatory Black Hole” that “the ADA make[s] getting out of business look more profitable all the time,”3 while Trevor Armbrister wrote that the ADA “has produced spectacular injustice and irrationality.”4 In 1995, the director of regulatory studies at the Cato Institute wrote:
If Congress is serious about lifting the regulatory burden from the economy, it must consider major changes in, if not outright repeal of, the ADA. And if Congress is to undo the damage already done by the act, it should consider paying reparations to cover the costs that individuals, private establishments, and enterprises have suffered under the ADA’s provisions.5
This paper explores the backlash and hostility to the ADA by examining the relationship between politics, policy, and economics—particularly with regard to the interests of business. I argue that the backlash to the ADA has been prompted by capitalist opposition. This opposition has not only stifled any potential benefits that might have resulted from ADA enforcement, it has promoted the backlash among groups of workers who have become fearful that their own interests are in jeopardy as a result of the Act’s enforcement powers.
In making this argument, I claim that liberal policy explanations, whether in progressive or conservative form, fail to adequately create the conditions necessary for economic and social justice. In contrast, radical theory, which analyzes the sociohistoric process of the political economy under capitalism, asserts that capitalism cannot be directed (reformed) towards a social-ethical end (which to be ethical must be stable and redistributive/collective).6 To succeed in reforming disability discrimination, the economic system itself must undergo serious change. As will be explored here, the economic system is a crucial contributing factor to a backlash against civil rights laws (the ADA in particular), the poor enforcement of those laws, and the lack of economic advancement of disabled people.
Despite an expanding US economy, the neoliberal age has brought rising inequality, a decline in workers’ standard of living, greater job insecurity, and growing economic anxiety. Income and wealth disparities are at their highest levels since the Great Depression. Poverty and hardship remain a persistent blight on the American landscape. This paper will detail how the structurally flawed political economy, sustained by a self-serving decision-making class, perpetuates poverty, inequality, underemployment, and systematic compulsory unemployment. It will demonstrate that this flawed economy which does not provide for the material needs of all, in turn causes divisions amongst groups of workers locked in intense competition over the scarcity of decent paying jobs, health care, and shrinking benefits. And lastly, it aims to delineate why a different approach is vital to remedying the predicament.
Equal Opportunity Ideology and Persistent Wage and Employment Gaps between Groups of Workers
In the United States civil rights laws have been enacted to surmount obstacles faced by the less powerful and minorities—women, people of color, disabled people and others. Historically such groups have experienced vast differentials in pay, income, and employment opportunities.7 In the United States, seventeen million working-age people are identified as disabled.8 Since there are expectations that the ADA will foster economic parity for disabled workers, it is essential to examine whether more than thirty years of efforts to ensure civil rights for all have been able to bring about the expected wage and income equality and economic parity for minorities and women.
Women, minorities, and disabled people have experienced both employment and wage discrimination resulting in their confinement to the bottom of the socio/economic pyramid. Discrimination occurs when two groups of workers with equal average productivity earn different average wages9 or have different levels of opportunity for employment. Poverty is disproportionate amongst the 54 million Americans who have some level of disability. […] The 1998 National Organization on Disability/Harris Survey of Americans with Disabilities found that fully a third (34 percent) of adults with disabilities live in a household with an annual income of less than $15,000 compared to one in eight (12 percent) of those without disabilities.10 Furthermore, the gap between disabled and non-disabled persons living in very low-income households has remained virtually constant since 1986 (four years prior to passage of the ADA).11
But the NOD/Harris Survey annual income cutoff at $15,000 doesn’t paint a complete picture of the depth of poverty some disabled people endure. For example, since $720 is the average per month benefit that a disabled worker received in 1998 from Social Security Disability Insurance (SSDI) and $480 is the average federal income for the needs-based Supplemental Security Income (SSI), the real income of over ten million disabled people12 on these programs is between $5,000 and $10,000—far below the $15,000 mark.
Most analysts attribute these gaps largely to discrimination and seek to provide a remedy based on “equal opportunity,” or equal access to employment and pay. The Civil Rights Act of 1964,13 affirmative action, the Equal Pay Act of 1963,14 and the Americans with Disabilities Act15 were enacted to provide a legal means to eradicate sex, race, and disability discrimination in wage-setting and employment procurement systems.
Yet what does the data show at the end of the century? The Census Bureau’s Current Population Survey shows that the income gap was most recently altered for the Black population between 1993 and 1997, when Black median family incomes rose from 57 to 61 percent of white levels and the bottom 80 percent showed wage gains relative to the rest of the population.16 But the gap widened for Hispanic workers who saw their median family incomes fall from 69 to 60 percent of white levels between 1979 and 1997.17
Studies show that there were periods of substantial progress after passage of the Civil Rights Act of 1964 and adjunct affirmative action programs leading to declining racial discrimination between 1965 and 1975.18 But the movement toward racial equality stagnated and eventually weakened after the mid-1970s.19 From 1972 (the earliest year available) to 1999, the unemployment rate for Blacks has fluctuated between 7.1 percent and levels as high as 21.7 percent.20 During the same period, white unemployment ranged from a high of 10.2 percent to a low of 3.3 percent, while Hispanic unemployment ranged from 16.9 percent to 6.l percent.21 Blacks and Hispanics continue to experience higher levels of unemployment and receive lower wages than whites. While the median white worker earned $19,393 in 1997, the median Black earned only $15,348 and the median Hispanic even less, $13,150.22
Although the wage gap between men and women is shrinking, this change cannot be attributed to equal pay laws. Since 1973, much of the change in the wage gap has resulted from the fall in men’s real earnings; white and Black men’s earnings have gradually moved down while white women’s earnings have gradually risen, exceeding the earnings of Black men in 1991.23 The US Department of Labor reports that after the recession in the early 1990s, women’s earnings failed to show the steep gains exhibited during the 1980s in comparison to wages earned by men24 and concludes the movement towards pay equity has slowed. A telling measure of pay equity can be found in median hourly wages; the median woman earned $9.63 per hour in 1997, while the median man earned $14.39.25 Narrow or wide, the wage gap has persisted for more than forty-five years, during which the Equal Pay laws were active for thirty-six.26
Wage gap studies do not traditionally trace comparable data for disabled people, but unpublished data from John McNeil of the Census Bureau shows a negative association between earnings and disability. In 1995, workers with disabilities holding part-time jobs (disabled people are more likely to work part time) earned on average only between 72.1 percent and 72.6 percent of the amount non-disabled workers earned annually.27 Such wage differentials were observed for disabled people working full time. Median monthly income for people with work disabilities averaged between $1,511 (women) and $1,880 (men) in 1995—as much as 20 percent less than the $1,737 to $2,356 earned by their counterparts without disabilities.28
Of greater significance is the chronic unemployment of disabled people. A 1998 Harris Survey found that among working-age adults with disabilities (ages 18 to 64), three out of ten (29 percent) work full or part-time compared to eight of ten (79 percent) of those without disabilities—a gap of fifty percentage points.29 The unemployment rate for disabled people remains much higher than for the population as a whole, with only one-quarter of persons with severe disabilities working.30 The overall combined (severe and non-severe) disabled unemployment rate is 65–71 percent.31 Among disabled people who are not employed, 79 percent of working-age disabled people report that they would prefer to work.32 […]
Material progress for women and minorities appears to be incremental at best while wage inequality among similarly skilled workers, vast income disparities, wage gaps, and poverty persist. After thirty years of federal anti-discrimination legislation, it is valid to conclude that although there is evidence that the Civil Rights Act of 1964 did make a difference in the extent of racial and gender discrimination, neither civil rights laws nor successful affirmative action programs have produced the complete economic equality desired by advocates of employment rights.33 Proponents of affirmative action, who are today arguing against its abolition, say only that gains made will be eroded, not that the program has achieved economic parity for minorities. Affirmative action has not proven to be a major solution to poverty or a sufficient means to equality.34
Though only ten years have passed since the passage of the ADA, there is no reason to believe that disabled people will fare better in terms of outcomes after the ADA than did women and minorities following the passage of civil rights laws and affirmative action. The reasons are both similar and distinct.
Every redistributive measure, including civil rights laws, involves political compromise between the public and the powerful interests of big business and big government. The ADA in particular faces some extraordinary limitations as a direct result of the political climate in which it was produced and enacted.35 The philosophical momentum for social justice which spurred the Civil Rights Act and subsequent progressive court decisions in the 1960s was well into decline by the 1990s. For example, in the era following passage of civil rights laws in 1957, 1960, 1964, and 1968, the Republicans made dramatic inroads into democratic victories which forged the civil rights movement, established the Office of Economic Opportunity and initiated the war on poverty during the Great Society.36 Presidents Reagan and Bush dismantled the entire Community Services Administration, responsible for driving much of the 1960s social change agenda by advancing human services, occupational safety, consumer protection, and environmental laws.37
On the way out were civil rights and entitlements, replaced by a conservative thrust to reduce “big bad government.” The dominant agenda of the 1970s and 1980s was bolstered by corporate goals which emphasized globalization and political dominance of government.38 Increased international capital mobility and liberalized international trade have resulted in more power of management at the expense of labor.39 Conservative forces targeted regulations for repeal or rollback which, in their view, interfered with business.40 Economic policy in the post-1979 period “moved decisively toward creating a more laissez-faire, deregulated economy.”41 Industries such as transportation and communications have been deregulated. Social protections, including safety, health, and environmental regulations, the minimum wage, government transfer payments (welfare), and the unemployment insurance system all have been weakened. The ADA was no exception. It was watered down substantially to achieve congressional consensus and Bush’s presidential approval in 1990.42
A 1997 comparative study between the pre- and post-ADA state and federal disability anti-discrimination laws shows that civil rights laws have not produced the gains in employment rates, wage rates, or employment opportunities for disabled people that advocates expected.43 Nine years after the passage of the ADA, national employment surveys show no real statistical gain in employment. One study suggests that the proportion of working-age adults with disabilities who are employed has declined since 1986, when one in three (34 percent) were working.44
Positive outcomes from disability civil rights are further compromised by the lack of mandatory affirmative action following the ADA for disabled people. Though there is controversy over how much affirmative action contributed to the gains made by women and minorities, there is little doubt that when accompanied by adequate enforcement, affirmative action has had a positive impact in opening previously closed doors.45 This is especially pertinent given the plaintiffs’ overall lack of success in the courts where employers have been charged with disability discrimination. Studies show that in the first eight years, defendants (businesses) overwhelmingly prevailed in ADA employment cases at both the trial and appellate court levels.46 Law professor Ruth Colker states that this outcome is “worse than results found in comparable areas of the law; only prisoner rights cases fare as poorly.”47
To be truly “equal” all biases must be eradicated. […] Aside from the traditional biases or social influences that determine one’s access to the goods of society such as where one was educated, the family economic status, and the environment in which one was raised,48 workers with disabilities (as distinct from women and minorities) face economic bias and labor market discrimination due to business accounting practices which weigh standard (non-disabled) costs of labor against nonstandard (disabled) costs of labor. Such business accounting calculations foreshadow the continuation of a gap in pay and employment opportunities for disabled individuals.
Despite over thirty years of liberal reform via federal equal opportunity laws, substantial race, gender, and disability-based inequality remain in the American economy. Both racial and gender employment and earnings inequalities have declined since the enactment of civil rights legislation in the 1960s, but studies show that such reductions in inequalities have been uneven, incomplete, and unstable (i.e., reversible).49 On balance, the extent of inequality for women, people of color, and disabled people can be viewed as a measure of the political success of liberal ideology where the activities of the courts and government enforcement agencies either serve to advance or roll back liberal regulations promoting equality.
Competition: Labor Market and Structural Inequality
The common explanation given by mainstream economists for inequality of wages and employment opportunities between races and genders is twofold. First, individual workers experience differences in productivity-linked characteristics (called a human capital gap). Second, they experience differences in treatment due to discrimination. The dominant or human capital view is that individuals exhibit skill and educational differences due to skill-biased technological changes which cause the widening gap in pay, and that by increasing education and technological training, these differentials will be overcome.50
The neoclassical supply and demand theory of competition holds that the labor market will equalize pay and employment differentials. Pay inequality is explained as a natural result of the spread of information technologies (the computer revolution) which create differences in skills; those most trained in these new fields reap the benefits in pay from the transformation in the workplace while those without such training fall behind.51 Supply and demand theory asserts that this is so because the pressures of the marketplace, what Adam Smith called the “invisible hand,” direct the activities of individuals and serve as a self-regulating mechanism for wages, prices, and production. In practice, the demand for workers trained in technological fields will encourage more workers to seek such training, eventually equalizing wage differentials over the long run.
A substantial body of work challenges the notion that human capital, quality of education, and years of work experience can adequately explain the wage differentials and employment patterns which remain prominent in the economy.52 For instance, research by economists Lawrence Mishel, Jared Bernstein, and John Schmitt shows that skill-biased technological change cannot account for wage disparity. Throughout the 1990s, average starting wages for college graduates, the most technically advanced and computer-literate workers in the labor market, fell by 7 percent.53 New engineers and computer scientists were offered 11 percent and 8 percent less respectively in 1997 than their counterparts received entering the market in 1989.54 This flatly contradicts claims that more education and skill training will equalize pay differentials. Furthermore, productivity rates, which should be exploding if the computer revolution were generating huge returns for hightech skills, grew no faster in the 1990s than in the 1980s.55 Economists James Galbraith, Claudia Goldin, and Lawrence Katz show that the readjustment of incomes to a wider and more equal distribution of skill levels for the overall workforce failed to happen in the past and is not happening in today’s economy.56
Studies show that competitive market forces did not eliminate discriminatory practices in the decades leading up to the passage of the Civil Rights Act of 1964 (which remained until the federal adoption of anti-discrimination laws)57 and that discrimination has managed to sustain itself, both in the US and elsewhere, for generations at a time.58 Research by Martin Carnoy concludes that while Blacks narrowed the educational gap separating them from whites, they slid further behind in average earnings.59
Some analysts attribute inequality gaps not to individual ineptitude but in large measure to labor segregation. Estimates of the hard figures on inequality by James L. Westrich of the Massachusetts Institute for Social and Economic Research show that there is a hierarchical division of labor within the labor force. For example, women are numerous at the bottom of the economic pyramid and scarce at the top. While 23.7 percent of women earn less than $10,000 (a result of both low pay and part-time status), just 12.8 percent of men earn so little. While 58.7 percent of women earn under $23,000, the same is true for only 36.3 percent of men; and 9.9 percent of men earn over $75,000, compared to only 2.6 percent of women.60
A study by Donald Tomaskovic-Devey for the US Department of Labor’s Glass Ceiling Commission at Cornell University found that while part of the wage gap results from differences in education, experience or time in the workforce, a significant portion cannot be explained by any of those factors.61 His findings revealed that “differences in human capital, investments in education and training by individuals explain a small proportion of the gender gap and about a third of race/ethnic earnings inequalities, but substantial earnings inequalities are not a function of gender or race/ethnic differences in education, labor market experience or firm tenure.”62 Instead, these gaps are attributable to the social division of labor, systematic underpayment, and occupational segregation of people because of their sex or race.63
Tomaskovic-Devey shows that “not only is there racial and gender discrimination against individuals, but as a result of employment segregation, jobs that become associated with particular racial or gender categories tend to be organizationally stereotyped and valued accordingly.”64 As jobs become stereotypically female or minority, there is a tendency in many workplaces to provide lower wages and less opportunity for skill training and promotions. He concludes that the confinement of “many women of all ethnic backgrounds and minority men to lower quality jobs than they can perform” is a direct cause of gender and race/ethnic earnings inequalities.65
Economist James Galbraith challenges the supply and demand theory that people are, in fact, paid in proportion to the value of what they produce. Galbraith shows that power, and particularly market or monopoly power, changes with the general level of demand, the rate of growth, and the rate of unemployment.66 […] In this view, inequality is a product of differential power, rather than differential skill. This concept is consistent with Adam Smith who observed that “masters [capitalists] are always and everywhere in a sort of tacit, but constant and uniform combination, not to raise the wages of labor above their actual rate.”67 Smith keenly perceived the tendency towards monopoly power of capital, writing that “masters too sometimes enter into particular combinations to sink the wages of labor even below this rate.”68 […]
Marxist economic theory provides further insight. Marx’s theory of surplus value posits that profit lies in the ability of capitalists to pay less for labor power than the actual value the worker will impart to the commodities he or she helps to produce.69 Profit, as such, essentially resides in underpaid labor. Marx defines competition as a tendency toward equalization of profit margins, leading to monopolies as the consequence of competition rather than its antithesis.70
Marxist interpretations link economic competition to discrimination in the work place. As economists William Darity and Patrick Mason explain, “Race and gender exclusion are used to make some workers less competitive for the higher paying positions. This approach emphasizes that the major elements for the persistence of discrimination are racial or gender differences in the access to better paying jobs within and between occupations.”71 Racial inequality, then, can be traced to the economic system that generates it.72 Persons with disabilities encounter similar power differentials in the labor market. […]
In the neoclassical view, markets are efficient ethical generators and distributors of wealth. According to this theory, blame for the phenomenon of the wage gap falls on the individual himself. If one fails to keep up with changes in the workplace, the argument goes, it is because of the individual’s shortcoming rather than the functioning of the labor market. If workers are less productive, it is their fault and they do not deserve a minimum wage (and certainly not a living wage) for their labor. A materialist analysis contends that the labor market is a social construct where marginalization of certain groups works to the advantage of the business class. […]
The Business Backlash, Labor, and Profits
The US Commission on Civil Rights reports that one of the most persistent criticisms of the ADA has been that employers are forced to pay too high a price to comply with employment provisions.73 While it is clear that the disabled should not be denied civil rights simply because employers may incur costs while attempting to comply with the ADA, business objections are informative and reveal labor market mechanisms endemic to capitalism. Business practices demonstrate that the economic structure does generate obstacles to the employment of disabled people. Equal opportunity has failed in this aspect to provide a sufficient remedy for economic discrimination. […]
Whether real or perceived in any given instance, employers continue to express concerns about increased costs in the form of providing reasonable accommodations.74 […] In today’s highly competitive business climate, it can fairly be asserted that business managers and owners will not cut into their profits for moral, noble, or socially just purposes to lower the disabled unemployment rate. […]
Civil rights traditionally demand equal treatment, requiring that disabled people be treated the same as non-disabled people. In the case of employment and disability, however, the notion of civil rights within a capitalist paradigm envisions equal treatment but fails to acknowledge the reality of economic discrimination. This fatal oversight ensures that laws such as the ADA will necessarily fall short of accomplishing employment goals. For opportunity to be truly equal, biases (including economic biases) must be eradicated. A government committed to providing such opportunities could “level the playing field” to compensate for economic discrimination by employers. It could ensure ongoing health care for disabled people (preferably within a disability-sensitive universal health care system not linked to employment status), subsidize job accommodations, and allow other subsidies to reimburse businesses that hire or retain employees with disabilities. Government enactment of severe and immediate penalties on employers (including government employers) who balk at providing job accommodations in a timely manner could serve as a backup measure to further advance disabled workers’ access to jobs.
There is ideological tension between remedies which grant subsidies and civil-rights type remedies which legally mandate that employers comply with antidiscrimination statutes. Under the ADA, employers are required to provide access and accommodations as a matter of individual right.75 By contrast, subsidies provide a government offset to business costs based on the notion that it is in the government’s (and society’s) interest to see that disabled people are employed. Disability rights groups and activists (myself included) have favored the civil rights approach over subsidies, but given the economic discrimination inherent in capitalism, can we afford to remain fixed in our belief that civil rights will provide timely relief for those disabled people seeking employment redress in the courts? Will the courts initiate an economic revolution which forces business to provide accommodations? So far, disabled plaintiffs have faced great difficulty prevailing in court on key issues. […]
It is reasonable to view consistently negative court outcomes as an extension of the business backlash against the ADA, and a particularly harmful one at that. Employers remain victorious in court. The American Bar Association’s Commission on Mental and Physical Disability Law reports that while employers have complained the most of unfair treatment under the ADA, “the facts strongly suggest the opposite: employees are treated unfairly under the Act due to myriad legal technicalities that more often than not prevent the issue of employment discrimination from ever being considered on the merits.”76 Ruth Colker concludes that the courts are deploying strategies that result in “markedly pro-defendant outcomes under the ADA” by “abusing the summary judgment device”; judges are making decisions that should go to the jury.77 Procedurally, she explains, this results in pro-employer outcomes because juries, traditionally more hospitable to civil rights, are not hearing the cases.78
Others have written at length on these matters.79 To briefly explain here, legitimate plaintiff cases are thwarted when medical conditions are not granted the legal standing of “disability” under the law and when courts fail to comprehend equal rights as applied to disablement or to understand the purpose of reasonable accommodations.
Workers pay a heavy personal price when employers contest disablement or refuse badly needed access modifications, reasonable accommodations and/or removal of work barriers and choose instead to put up a fight in court. When, for example, an employee cannot work without an accommodation and the employer does not readily provide one, the worker is often unable to perform her job and is fired.80 Common sense would dictate that when the worker has a protracted court battle ahead of her to enforce her right to an accommodation but no paycheck in the mail, the last practical resort is to go onto disability benefits. Yet employers use a worker’s qualification for disability benefits to undermine discrimination cases against them. Under the Social Security Administration’s (SSA) definition of disablement, a worker is qualified for benefits if he/she cannot work; SSA does not consider whether the employee could continue to work if the employer provided a reasonable accommodation. The employer, contesting the worker’s discrimination suit, holds that if the worker claims he or she cannot work for purposes of claiming disability benefits, he or she cannot work and therefore the discrimination suit is moot.81
In the spring of 1999, this issue was brought before the Supreme Court in Cleveland v. Policy Management Systems.82 There, the plaintiff became disabled, asked for but was denied a reasonable accommodation, then lost her job due to failure to perform. The plaintiff subsequently successfully applied for Social Security disability benefits. The plaintiff sued the employer for failure to comply with the ADA. The Supreme Court granted certiorari to decide “whether an ADA plaintiff’s representation to the [Social Security Administration] that she was ‘totally disabled’ created a rebuttable presumption sufficient to judicially estop her later representation that, for the time in question, with reasonable accommodation, she could perform the essential functions of her job.”83
The justices ruled in Cleveland that application for and receipt of SSDI benefits does not automatically estop a recipient from pursuing an ADA claim or erect a strong presumption against the recipient’s ADA success.84 However, it held that to survive a summary judgment motion an ADA plaintiff cannot ignore her SSDI contention that she was too disabled to work, but must explain why that contention is consistent with her ADA claim that she can perform the essential functions of her job, at least with reasonable accommodation. Under this holding, therefore, both parties have the opportunity to present or contest the plaintiff’s explanation. Furthermore, a plaintiff may argue that her SSDI statement of total disability was made in a forum that does not consider the effect reasonable workplace accommodation would have on ability to work. She may also argue that such statements were reliable at the time they were made.85
The Supreme Court’s ruling in Cleveland is beneficial from the plaintiff’s perspective. It does not, however, preclude the employer from firing the worker first and does not guarantee a favorable outcome for the disabled employee. The court warned that “in some cases an earlier SSDI claim may turn out genuinely to conflict with an ADA claim.”86 It remains to be seen how workers with disabilities will fare in light of this ruling.
If Cleveland was a step forward, the Supreme Court took two steps back with rulings in the next three ADA employment cases: Sutton v. United Airlines, Inc.,87 Murphy v. United Parcel Service,88 and Albertsons, Inc. v. Kirkingburg.89 At issue in these cases was the meaning of disability under the ADA. Significantly narrowing the scope of the law by use of these three cases, the Court ruled that correctable physical limitations (such as near-sightedness or high blood pressure) do not qualify as disabilities under the ADA and do not entitle plaintiffs to sue under Title I, regardless of whether they were fired because of such conditions. The Court distinguished between workers whose disabilities can be mitigated through corrective equipment or medicine and those workers whose disabilities cannot.
But what does “mitigated” imply? The dissenting justices in Sutton did not overlook the possibility that the majority’s opinion in that case could be read to include the very people the Court maintained that the ADA protected.90 Joined by Justice Breyer, Justice Stevens suggested that under the majority’s ruling, the Act would not even protect people who had lost limbs in industrial accidents or while in armed service to their country. He pointed out that:
With the aid of prostheses, coupled with courageous determination and physical therapy, many of these hardy individuals can perform all of their major life activities just as efficiently as an average couch potato. If the Act were just concerned with their present ability to participate in society, many of these individuals’ physical impairments would not be viewed as disabilities … [and] many of these individuals would lack statutory protection from discrimination based on their prostheses.91
The dissenters accused the Court of making the ADA’s safeguards “vanish when individuals make themselves more employable by ascertaining ways to overcome their physical or mental limitations.”
Indeed, the majority opinion in Sutton presents workers with an unclear pathway for future employer/worker disputes. If one is not disabled because one’s condition is “correctable” with medication, wheelchairs, prostheses, hearing aids, insulin, etc., how can one expect to receive a reasonable accommodation which depends on being defined as “disabled”? Yet employers can continue to fire workers because of performance limitations caused by such un-accommodated “nondisabilities.” Additionally, employers may still conclude that a person is too disabled to work, even though under the law she is not disabled enough to be protected by the ADA. The ruling thus creates a Catch-22 for ADA plaintiffs: if one is disabled enough to sue, one is too disabled to work. The employer can fire the worker with a disability and the ADA is effectively withdrawn from those left under its auspices since if one is able to work, one has no grounds to sue.
The National Chamber of Commerce Litigation Center called the decision “a major victory for employers and the business community.”92 Business groups filing amicus curie briefs urged the Court to consider “the impact its decision in this case may have beyond the immediate concerns of the parties to the case.”93 The National Association of Manufacturers asserted that “like sexual harassment last year, disability discrimination is the major employment law issue on the Supreme Court’s docket this year. Manufacturers should not be forced to pay damages, including punitive damages, to individuals who can lead normal lives with medication or corrective lenses.”94 The American Trucking Associations and the Equal Employment Advisory Council (a nonprofit association made up of more than 315 major companies) joined the amicus brief.
Clearly, greater government intervention in this precarious period is not only justified but essential to achieve positive outcomes for workers with disabilities. Government provision of ongoing health care, reasonable accommodation costs, and other subsidies would simply remove the issue of added cost from the employer’s calculus when deciding to hire or retain disabled workers. Successful intervention promises to lessen the burden on disabled people otherwise forced to litigate in courts that are hostile to the rights of disabled individuals or that view “disability equal rights” as a subsidy to unfairly be paid by business.
However, these proposals must come with two qualifiers. First, such reforms would likely be stop-gap measures that could yield more job placement for disabled people but (as the next segments will show) cannot alone significantly impact disability unemployment in the overall political economy. Second, subsidies risk augmenting acrimony and division within the labor force. […]
Job Insecurity and the Fixed Pie Syndrome
According to a quarterly nationwide survey of US workers inaugurated in August 1998 by Rutgers University’s Heidrich Center for Workforce Development and the University of Connecticut’s Center for Survey Research & Analysis, some 59 percent of respondents say they are very concerned about job security for “those currently at work.”95 An additional 28 percent indicate they are “somewhat concerned.”96
Reports on US job trends show that workers have reason for concern. Workers appear less likely to be able to count on long-term employment which in the past provided steady wage growth, fringe benefits, and long-term job security. Jobs have grown more insecure in the 1990s as the share of workers in “long-term jobs” (those lasting at least ten years) fell from 41 percent in 1979 to 35.4 percent in 1996, with the worst deterioration having taken place since the late 1980s.97 Corporate mergers and downsizing have contributed to job cuts or company shutdowns which cost nearly 30 percent of US workers their jobs from 1990 to 1995.98 […]
Underemployment, a broader measure of lack of employment success in the labor market, hovered at 10.l percent for 1995.99 For some economists this is a much more troubling statistic because it represents part-time workers who could not find full-time jobs and “discouraged workers” who wanted jobs but had been discouraged by their lack of success, subsequently leaving the labor force and dropping off the unemployment rolls.
To understand job-loss anxiety, it is necessary to know what happens to a worker’s material reality when he or she is fired from a job. Workers have difficulties finding new employment, with more than one third still out of a job when interviewed one to three years after their displacement.100 Workers rarely regain the old wage and are often forced to take jobs with pay averaging about thirteen percent less than the old job.101 Others try to make ends meet with two or more part-time jobs. In 1995 more than 7.9 million people worked more than one job.102
In the 1990s the “contingent” workforce has grown; almost 30 percent of workers in 1997 were employed in situations that were not regular full-time jobs—independent contracting and other forms of self-employment such as temporary agency labor or day labor.103 The number of workers employed by temporary agencies almost doubled, rising from 1.3 percent in 1989 to 2.4 percent in 1997.104 Temporary workers on average earn less than workers with comparable skills and backgrounds who work in regular full-time jobs and are less likely to receive health or pension benefits.105
Displaced workers are facing increased job insecurity, lowered career expectations, lowered wages, and less control over their financial futures. Such economic trends have been linked to intergroup tensions. Increased intergroup disparities and divisiveness arise out of worsening economic conditions and increased competition for scarce resources.106 Job insecurity can convert to a scarcity mentality: that is, the thinking that “there is not enough to go around.”
Although employers are not required to hire disabled people under affirmative action, disabled people seeking work (as many as 7.8 million) and those potentially coming off public benefit programs under the Social Security Return-to-Work program represent an influx of new competition joining the ranks of labor. Women on welfare transitioning into jobs107 are similarly positioned, both as a group of potential workers moving from the surplus population to work and as an undereducated workforce.108
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996,109 which ended federal welfare entitlements and ensconced welfare-to-work as a primary goal of federal welfare policy, illuminates the backlash experience. Welfare reform can be viewed through the lens of the zero-sum game theory, holding that under US capitalism one group benefits absolutely at the expense of the other. When some workers gain, others will lose; when some workers get a job, others will be displaced. Radical or Marxist theory asserts that employers deliberately exploit existing racial tensions and to divide the workers, increase profits, and keep the wage floor down.110
Two years after the enactment of welfare reform, both worker displacement and increased worker exploitation are already having an impact. Jon Jeter reported that women coming off welfare are competing with, and in some cases, displacing other low-wage workers under the “subsidized employment” plan.111 Under this plan, the state pays a company to hire someone in the program at minimum wage. At the Omni Inner Harbor Hotel in Baltimore, for instance, social service workers placed thirteen jobless women into welfare-to-work jobs. During her ninety-day probation, each woman wipes, dusts, and vacuums on eight-hour shifts, five days a week, just as regular housekeepers paid $6.10 per hour. In return, she receives $410 a month in welfare benefits from the state and a $30 weekly stipend from the Omni Inner Harbor Hotel. The hotel saves the difference.112
According to Jeter, the entry of subsidized workers has increased coworker tension at the hotel where regular low-wage employees have formed a union among the 300 bellmen, housekeepers, doormen, and kitchen workers to improve their wages and benefits.113 Jeter explains the twofold threat to coworkers: not only can subsidized welfare workers undercut regular worker wages and possibly interfere with union goals of better wages and benefits, but they raise the question of whether management will hire the welfare recipient as a permanent worker and displace a regular employee.114 The welfare-to-work program has added even more uncertainty to an uneasy coexistence between groups of working poor in Maryland and across the nation, who fear the loss of their jobs to a cheaper workforce.
Welfare advocate Laura Riviera explains the effect of subsidized employment under the Wisconsin welfare-to-work program, called a model for welfare reform by the Clinton administration. “Women are introduced to other employees as ‘the W-2 [welfare-to-work] participant.’ Knowing that this person is required to work at the company for free, employees automatically feel threatened by this person,” says Riviera. “This sets up a situation where it is very difficult for that person to get along well with other employees no matter how hard she tries.”115
Riviera reports that she has heard from many women who were working and barely making ends meet until welfare reform began. “They were pushed out of their minimum wage jobs by these less expensive employees provided by the state and are now in the W-2 program.”116
Similar job displacement has occurred under the workfare grant program in New York City, where the recipient receives a predetermined amount of money and in turn must work in a “volunteer” position assigned by the caseworker. When Steven Greenhouse conducted interviews with more than 50 workfare workers and visited more than two dozen work sites, he found that many workfare participants had taken the place of city workers.117 He reports that:
In many municipal agencies, the city has shrunk its regular workforce and increased the number of workfare participants. The Sanitation Department’s workforce slid from 8,296 in 1990 under Mayor David N. Dinkins to 7,528 in early 1994, when Mr. Giuliani took office, then down 16 percent more last year, to 6,327. Today, the department employs more than 5,000 workfare laborers, who wear bright orange vests, sweeping streets and doing other tasks around the city.118
According to Greenhouse, workfare recipients are doing much of the work once performed by departed city employees. The 34,100 people in the city’s Work Experience Program constitute a low-cost labor force that does a substantial amount of the work that had been done by municipal employees before Mayor Rudolph W. Giuliani reduced the city payroll by about 20,000 employees, or ten percent.119
Jon Jeter reported similar conflicts in the Washington Post. In Baltimore, officials at Patterson High School decided last year not to renew the contract with the janitorial company that cleaned the building and are now looking for welfare recipients to do the work, in part because “their rates would be cheaper.”120 A job-training program in Alabama requires some welfare recipients to work for more than four months without pay for employers such as Continental Eagle, a cotton gin manufacturer near Montgomery.121
Other sources of workfare labor are being sought as well. In New York City, for example, the Giuliani administration plans to extend workfare to homeless shelters, making workfare and other requirements a condition of shelter for the 4,600 families and seven thousand single adults in New York City’s homeless shelter system.122
While the stated intent of welfare reform is to move those on welfare into work and thereby lower federal and city welfare outlays, participating businesses receive a net gain from welfare reform: having a captive workforce who can be pushed into lower wage jobs, whether permanently or temporarily, keeps wages low and increases business profit margins. An insidious fiscal benefit to government has also emerged—undercutting regular worker salaries cuts city service budgets and generates a surplus at the expense of the poorest parts of the workforce.123 […]
While the majority of reports focus on the initial success of welfare reform in terms of numbers of people dropped from the rolls, there is a growing realization amongst state and county officials that placing all recipients into jobs is unrealistic. […]
There are not enough living-wage jobs available for women being forced off welfare, and there will not be enough jobs for disabled people wishing to work or to transition from public benefits into a job. The welfare reform experience indicates that subsidies to business can elevate coworker tension, yet, in the case of disability and employment, subsidies for reasonable accommodations and health care will be necessary to level economic discrimination inherent in business accounting practices. Just as women coming off AFDC (Aid to Families with Dependent Children) create increasing competition for jobs and increasing job insecurity, disabled job seekers must be aware that they too can generate resentment amongst those lacking job security who may view subsidies to disabled workers as a threat to their employment.
Though many disabled people will be entering the workforce at lower pay levels akin to the welfare-to-work population (due in part to the fact that large numbers of disabled people lack access to higher education), the global economy makes job insecurity a factor in the traditionally more secure educated class as well. Evidence of change can also be found in the incidence of displacement within the elite workforce. The President’s Council of Economic Advisers reports that “further analysis shows that job displacement rates rose for more educated workers … although blue collar and less educated workers remain more likely to be displaced than others, displacement rates have clearly risen among those workers who had been previously immune from the threat of job dislocation.”124
Economists are beginning to see trends which indicate that white collar workers are no longer immune to neoliberal policies which emphasize free market production and increase the labor pool. As economists Anne Colamosca and William Wolman explain, globalization has produced an economy in which “the rapid worldwide spread of available skilled labor” is set “in head-to-head competition with their American counterparts.”125 Furthermore, the globalization of financial markets has served to lower the wage floor as employers search for low labor costs in far corners of the globe and American workers’ wages shrink in response. “Capital migrates to low wage areas and the only way that it can be kept in the developed world is if wages in the developed world are kept low.”126
Summary and Unresolved Solutions
In part, the ADA backlash stems from the design of our economic system. Differentials in pay, income, and employment opportunities persist in the labor market despite anti-discrimination laws. Civil rights, though still necessary to counter individual acts of prejudice and discrimination, have only the power to randomly distribute the maladies of unemployment and income and wage inequality throughout the population. If everyone were equally educated and trained for jobs and civil rights were strictly enforced, millions would remain unemployed and underemployed in any capitalist system. Anti-discrimination laws cannot bridge the systemic employment gap, and individual rights cannot reach the root of the parity predicament created by the economic structure. Neither the market nor civil rights laws can undermine the structure of inequality nor prevent its reproduction. […]
To be effective, any solution to the backlash must address the very nature of social relations.127 It must ask: What is work, who controls it, and what is its purpose? If work is controlled by the Federal Reserve, investors, and Wall Street, all looking to make ever-higher profits from people’s labor rather than trying to make the system work for all, the paradigm itself must be challenged. It then becomes imperative to ask what an economy is for—to support market-driven profits, or to sustain community bonds and elevate human participation?
To stem the tide of the backlash, which promises to grow as more workers are displaced in the global economy,128 it is essential to reassert the basic radical principle that an economy only works if it works for people; if it delivers health care, a living wage, and a secure livelihood and income for every person. The exclusion of even 3 percent of the population from employment in the liberal definition of “full employment” is simply intolerable.129 Since private industry views unemployment as an integral part of the “normal” capitalist system (which keeps wages and inflation low and makes unemployment compulsory), people must bypass private industry and insist that government recognize the fundamental right of each person to a livelihood (full employment at a minimum of a living wage and quality disability-sensitive universal health care). This must be the very cornerstone of our economic policy.
A government guarantee of full employment would require reorganizing the economy to allow everyone free choice among opportunities for useful, productive and fulfilling paid employment or self-employment. Base compensation must be set at a living real wage below which no remuneration for disabled or non-disabled workers is allowed to fall.
The wide variety and range of disablement means that some disabled people may never be hired by businesses but would nevertheless like to be productive in their communities. In order to bring more excluded persons into the workforce, it will be necessary to expand the work environment beyond the capitalist profit motive and ensure that federal and state governments act as the employers of last resort. In addition, those unable to work for pay or find employment must have a government entitlement to an adequate standard of living which rises with increases in the wealth and productivity of society.
Problems of Power
Gregory Mantsios writes:
[T]he class structure in the United States is a function of its economic system— capitalism, a system that is based on private rather than public ownership and control of commercial enterprises, and on the class division between those who own and control and those who do not. Under capitalism, these enterprises are governed by the need to produce a profit for the owners, rather than to fulfill collective needs.130
Inequality is traceable both to the economic system131 and to the interaction between private interests and government. Liberal remedies that seek change by requiring government to enact sustained full employment, raise the minimum wage, lower interest rates, and initiate price stability still rely on the premise that these controls can occur with capitalism intact in a democratic society, when hierarchical power relations remain a crucial impediment to realizing such positive outcomes.
Many have questioned the relationship between political power, monetary policy, and wealth inequality in our democracy. There is consensus amongst these theorists (some liberal, some radical) that government has failed to stop rising inequality and contributed to the decline of labor power because it has been derelict in its duty to exercise power over private capital. The degradation of workers occurs in this age of mergers and acquisitions, bolstered by the power of speculative capital and unregulated by government precisely because capital has control of government.132 The enormous power of private capital over government is evident in business’s backlash against the ADA, Federal Reserve inflation management strategies primarily aimed to benefit Wall Street, the millions of dollars spent by the insurance industry to prevent a universal health care program, and both the passage and content of welfare reform legislation passed by Congress and signed by President Clinton in 1996.
After several centuries of capitalism, our society still shows no signs of allowing sustained full employment. If history provides any guide, it is safe to assume that the decision-making class will never allow it. In the 1940s the US experienced the lowest unemployment rate in its history (one percent); directly on its heels came McCarthyism, an organized attack on socialist ideals of equitable distribution. In the 1970s, drops in wages and the standard of living occurred at the same time as a decline in the power of labor unions.133 Economist Michal Kalecki’s observation that labor must be kept weak to preserve profits and the class dictatorship of capital seems undeniable.134 Government enactment of full employment under capitalism can only result in an even greater crushing of labor so as to reinstate “stability” and reassert control over the economic lives of workers.
Capitalist measures—whether the type promoted by free market conservatives or that of welfare liberals—fail to respond to the discrimination faced by millions of disabled Americans. Only measures that account for the existence of systemic and long-standing economic inequality will provide the necessary protections against further workplace discrimination. The present reality, however, is that disabled people are the last legally protected class to enter the workforce. They seek economic equality at a time when unemployment levels are low and downsizing and market globalization are in full force. It is in such a “positive” economic environment, when business has obtained both the legal and political legitimacy necessary to discriminate in the name of workplace and market efficiency, that our battle for distributive justice becomes the toughest of all.