What Disability Civil Rights Cannot Do
Introduction
In the US it is now evident that disability civil rights do not equate with a lowering of the disabled unemployment rate. Despite a growing economy—the best possible scenario for increasing the employment of disabled persons—and a low aggregate national official unemployment rate (4–5 percent) presiding over much of the nine years that the ADA employment provisions have been in effect, the unemployment rate for working-age disabled population has barely budged from its chronic state—hovering at 70 percent.1 […]
According to a recent study, while many Americans reaped higher incomes from an economy that created a record number of new jobs during seven years of continuous economic growth (1992–1998), the employment rates of disabled men and women continued to fall so that by 1998, they were still below the 1992 level.2 A Boston Globe headline news story, “Access and Closed Doors: Despite Federal Act, Number of Disabled with No Job is Rising,” noted that pollster Louis Harris & Associates found that 71 percent of people with disabilities who are of working age were unemployed in 1998, 5 percentage points higher than in 1986, when the study was first conducted.3
What does the empirical data show has happened to employment during the economic expansion of the 1990s with full implementation of the ADA’s employment provisions? The Congressional Research Service found that the employed share of eighteen-to-sixty-four-year-olds with disabilities who reported they were able to work grew from 70.2 percent in 1992 to 72.3 percent in 1996. Over the same period, the proportion of the non-disabled working-age population who were employed rose from 78.5 percent to 80.5 percent. The job prospects for the disabled population improved to the same degree as the non-disabled population, meaning the gap in employment rates did not narrow. Study author Linda Levine concludes, “this suggests that the ADA did not provide an extra boost to the employment situation of working-age adults with disabilities through the mid-1990s.”4
The disability rights movement (DRM) in the US has largely conceptualized disability as a minority group, which is disadvantaged and denied majority rights status.5 Identifying the source of disabled persons unemployment in discriminatory attitudes of employers and physical barriers in the work environment, the DRM has sought to alter the historical exclusion of disabled persons from the workforce through the establishment of individual legal rights and remedy under the liberal theory of “equal opportunity” to employment—which essentially means equal access to a job not available to all.
The ADA6 is both a civil rights bill intended to end employer discrimination and a labor economics bill, intended to increase the relative wages and employment of disabled persons. The Act states, “[T]he Nation’s proper goals regarding individuals with disabilities are to assure … economic self-sufficiency[.] Discrimination … costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”7 The ADA bans discrimination on the basis of disability through the establishment of constitutional law and regulations which are geared to “level the playing field” for disabled job applicants and to induce employers to accommodate impairments on the job. It gives disabled persons redress against work-based disability discrimination in the courts and through the Equal Employment Opportunity Commission (EEOC).
There is consensus, however, amongst scholars and analysts that the US courts have failed to enforce the ADA as civil rights proponents intended and that EEOC enforcement has fallen short. A study by the American Bar Association’s Commission on Mental and Physical Disability Law, for instance, shows that disabled workers bringing discrimination suits are unlikely to succeed in court.8 Of the more than twelve hundred cases filed under the employment provisions of the ADA from 1992 to 1998, disabled employees prevailed only 8 percent of the time. By 2000 employers prevailed 95 percent of the time. Another study by Ohio State University law professor Ruth Colker shows similar results, finding that employers successfully defend more than 93 percent of reported ADA employment discrimination cases at the trial court level and succeed in 84 percent of cases appealed.9
So far, disabled plaintiffs have faced great difficulty prevailing in court on key issues. The US Commission on Civil Rights notes that many disability experts ascribe the problem to judicial and administrative confusion over interpretation of the employment statutes.10 Professor Matthew Diller explains that legitimate plaintiff cases are being thwarted often for nonsensical reasons (such as medical conditions are not granted the legal standing of “disability” under the law), and that courts are resistant to both comprehending and accepting equal rights and reasonable accommodation as applied to disablement.11 Arlene Mayerson, an attorney with the Disability Rights Education and Defense Fund, characterizes ADA case law as “hyper technical, often illogical interpretations of the ADA,” which have generated a “disturbing trend” of court precedents.12 Robert Burgdorf Jr., one of the drafters of the ADA, concludes that “legal analysis has proceeded quite a way down the wrong road.”13 Burgdorf points to a judicial tendency to view ADA plaintiffs as seeking special benefits and treatment instead of equal rights.14 Bonnie Tucker theorizes that there is an inherent flaw in the civil rights paradigm when it comes to equal rights for disabled persons. She suggests that judges may be viewing the provision of reasonable accommodation as an “extra” requirement, an expansion of traditional civil rights concept and, consequently, rejecting the legitimacy of disability rights under equal rights principles.15
To explain such outcomes, I have sought to examine the relationship between politics, policy, and economics—particularly with regard to the interests of business. Disability scholars such as Victor Finkelstein, Michael Oliver, Colin Barnes, Paul Abberley, Nirmala Erevelles, Lennard Davis, Brendan Gleeson, and others have advanced the position that the capitalist system—particularly the commodification of labor—is a crucial contributing factor to the lack of economic advancement of disabled people. Going back to Marx’s theory of absolute impoverishment, Ernest Mandel clarifies Marx’s observation that capitalism “throws out of the production process” a section of the proletariat: unemployed, old people, disabled persons, the sick, etc.16 Marx calls these groups a part of the poorest stratum, “bearing the stigmata of wage labor.” As Mandel says, “This analysis retains its full value, even under the ‘welfare’ capitalism of today.”17
While others have made links between capitalism and disablement, my purpose has been to expose how modern capitalism perpetuates this substratum in the face of disabled people’s struggle for their place the US labor force. In this vein I have sought to expose systemic economic discrimination against disabled workers in a capitalist economy that the ADA cannot address or remedy and will return to this matter below. I have also argued that ADA court failures have been prompted by capitalist opposition made more powerful in a neoliberal era, where conservative forces have politically achieved a more laissez faire, deregulated economy, successfully targeting regulations they view as interfering with business for weakening or repeal.18 […]
The most recent evidence that these forces remain intact: the Supreme Court’s weakening of the ADA in Garrett, Sutton, Murphy, and Albertsons disability employment decisions; the striking down of the Age Discrimination Act in Kimel v. Florida Board of Regents; and the invalidation of the Violence Against Women Act in United States v. Morrison.
After years of dedicated civil rights activism in the 1950 and ’60s the American civil rights leader Dr. Martin Luther King Jr. outgrew the liberal view that economic justice for Blacks was possible through the enactment of civil rights laws geared to make race-based employment discrimination against the law. King realized that civil rights (even when coupled with economic expansion) could not solve the mass unemployment of Black Americans.
At the 1967 Southern Christian Leadership Conference convention Dr. King implored the movement to:
[A]ddress itself to the question of restructuring the whole of American society. There are 40 million poor people here. And one day we must ask the question, “Why are there 40 million poor people in America?” And when you begin to ask that question, you are raising questions about the economic system, about a broader distribution of wealth. When you ask that question, you begin to question the capitalistic economy …19
For King, the theme of job creation in a capitalist economy was an ongoing and primary part of his peoples’ struggle for justice. “We need an economic bill of rights. This would guarantee a job to all people who want to work and are able to work …”20 Today, almost 40 years since the passage of the Civil Rights Act of 1964, no economic rights have been enacted and Black unemployment remains twice (8 percent) that of the official national rate (4.2 percent). This is so even when civil rights have been accompanied by affirmative action measures designed to promote hiring and remedy past race discrimination. The ADA was not followed by affirmative action for disabled workers. There is no reason to believe disability civil rights outcomes will fare better.
In practice, civil rights, which primarily focus on attitudes and prejudice, have not given sufficient attention to the barriers that the economic structure and power relationships erect against the employment of disabled persons. This paper explores the shortcomings of the liberalist “equal opportunity” approach to employment. […] Class interests perpetuate the exclusion of disabled persons from the workforce through systemic business accounting practices and compulsory unemployment. If we conceptualize disablement as a product of the exploitative economic structure of capitalist society […] then it becomes clear that anti-discrimination legislation, by failing to acknowledge the contradictions of promoting equal opportunity in class-based (unequal) society, is insufficient to solve the unemployment predicament of disabled persons. Instead, the liberal rights model serves to forestall criticism of relationships of power at the center of the exclusion from employment and inequality that disabled persons face. This paper will offer such a criticism.
The Relevance of the Political Economy
Political economy is a term used for nearly three hundred years to express the interrelationship between the political and the economic affairs of the state. In terms of economics, liberals tend to believe that the current system is basically just, and that injustices and unemployment, low pay, inequality and poverty that occur within that system are mere unintended consequences of an otherwise beneficent economy. They are reformists who believe that gross inequalities can be leveled through legislation and other measures aimed at correcting “market failures.” In the US and elsewhere the DRM similarly has largely accepted the foundations of free market ideology by framing the terms of the justice debate as the rights of disabled people entitled to receive equal treatment from the existing labor market.21 In contrast, left political economy looks to the laws rooted in the ongoing reproduction and expansion of this system of material accumulation as the source of the ills. Radical economists believe that the economic system itself is the problem: the system of profit does not create hardship as the unfortunate mishap of an otherwise just social order; rather, the pain experienced by people under such a system is very much integral to that system, and is required by it in order to function. People, including many disabled people, are excluded from work in such a system, and thus poor and even destitute, not because the system is breaking down, but because it is working exactly as intended.
The notion of the US as a meritocracy where individual failings are deemed the result of personal shortcomings is a seductive ideological posture. The appeal to rugged individualism—that we can be anything we want if we persevere—is an American tradition and perhaps a comforting notion, but barriers to advancement and achievement are often unrelated to individual effort, ability, or motivation. Disability civil rights laws (or any civil rights) do not subject that assumption to a challenge. Civil rights, for instance, are based on the premise that the individual citizen is an equal actor in the judicial process with the legal power to redress injustice through court challenges to discrimination; but what if the individual, due to her class position, lacks the money to hire an attorney, or has not the education or circumstance to secure those rights? Gender and race are also known determinants of lack of access to the courts. Furthermore, rights depend upon court interpretation. What if the political climate of the courts is such that her rights are likely to be thwarted by judges acting in opposition to the ideological premise of those rights? What if rights are in direct class conflict; if for instance, the business class has amassed such political power that the civil right has essentially become moot through defeat after defeat in the courts and few attorneys will risk taking such cases because they have little prospect of winning (and getting paid)?
In these instances, individual action and individual “right” is blocked and annulled by class and politics outside the control of the individual.
[… when “rights-bearing persons”] lack the power and resources to properly “compete,” rights can do nothing but reinforce the status quo, as those left powerless can do nothing [but] make sporadic and/or symbolic claims.22
The economic system presents a similar set of obstructions. The founding principle for the dominant economic model of our day or “pure economics” (what is falsely referred to as neoclassical economics23) is “methodological individualism,” which treats society as nothing more than the apolitical aggregate of its component individuals, and strips the economic structure of any social dimension except the interaction of sole individual activity and projects. While both pure economic and left economic theories might allow that individuals can act independently and according to their wants, left economists recognize that behind these private wants stands an objective structure of reproduction whose requirements dominate the individual in the carrying out of her private interests. While the pure economists hold onto their theory that maximization of well-being occurs because of individual merit, left economists recognize that structural barriers dominate individual wants. As the economist Samir Amin, notes “real society, far from being built up out of direct encounters among individual behaviors, is an infinitely more complex structure combining social classes, nations, states, big businesses, collective projects and political and ideological forces.”24
A left economic perspective does not concede disablement as a socio-attitudinal construct that can be corrected by erasing incorrect attitudes or prohibiting prejudiced-based employment discrimination. It places a different set of questions at the apex of concern, as Dr. King posed. Why are there millions of persons both with and without impairments who are willing to work left unemployed in our economy? Why in the richest nation in the world are people still impoverished and working at below living wages, and why are “deserving” disabled persons severed from the means of making a livelihood and subjected to bare survival on at-or-below-poverty disability benefits? Left political economy reflects on the limits of the market as an institution for want satisfaction and that is the approach taken here.
Compulsory Unemployment
The capitalist economy inherently restricts the liberal application of “equal opportunity” to employment for all because unemployment is not an aberration of capitalism; rather, it is a built-in component of the market economy that requires many people be unemployed against their will.25 Not every person will be employed, not every person’s material needs will get met through employment. […] Large numbers of people are left jobless in part because mainstream economists believe that a threshold of unemployment is necessary to avoid inflation and maintain the health of the American economy.26
From 1999 to May 2000, for instance the Federal Reserve raised interest rates about two points. As Federal Reserve Chairman Alan Greenspan explained it, the economy was too healthy, unemployment had fallen too low, and wages had started to inch upward, thereby raising the specter of inflation.
Greenspan told congress:
At some point in the continuous reduction in the number of available workers willing to take jobs, short of the repeal of the law of supply and demand, wage increases must rise above even impressive gains in productivity. This would intensify inflationary pressures or squeeze profit margins, with either outcome capable of bringing our growing prosperity to an end.27
It became necessary, according to the view of the Federal Reserve, to raise the cost of borrowing money, thereby cooling off the expansion and hiring, and nudging the unemployment numbers back up to slow wage increases. This deserves repeating. The Federal Reserve sought to raise (not lower) the unemployment rate, to put a halt to both hiring and better wages for workers.
Why? Tight labor markets—a “labor shortage” or a smaller active reserve army—mean pressure for wage increases from labor; as unemployment goes down, labor costs go up because there is more pressure for wage increases. […]
Since full employment undermines labor discipline and the social position of management, political economist Michal Kalecki posits that capitalists accept unemployment “as an integral part of the normal capitalist system.”28 Economist Michael Piore explains government’s reluctance to pursue full employment objectives; they believe that such policies would create rising expectations among workers—expectations that would not be met and so result in social and political instability.29 Positive unemployment rates, then, become the outgrowth of class struggle over the distribution of income and political power.30 […]
How does this affect the disabled unemployment rate? The implications of a decision-making class engineered slowdown are perhaps greatest for disabled persons, whether one is seeking a job or already employed. The existence of an extremely tight labor market is generally a positive environment for previously unemployed populations to get a job. This is because a low supply of workers forces business to hire and train workers that they may not have been willing to hire or might have avoided at another point in the business cycle.31 A downturn of the economy, however, means that disabled workers who have a job may be laid off. […] Overall, persons with significant disabilities are hurt by negative changes in the economy evidenced by the fact that disability benefits claims rise during recessions.32 […]
Essentially, about twenty million working people are condemned, by federal anti-inflationary policies which ration employment, to either compulsory unemployment or employment at low wages. This demonstrates clearly that economic suffering, low wages and poverty are not the result of individual moral failings or a pathological “dependency” nor a decline in the Protestant work ethic, but rather, are built in to the structure of modern capitalism. It is easy to see why Nobel laureate William Vickrey, in his presidential address to the American Economic Association in 1993, called the “natural” unemployment rate “one of the most vicious euphemisms ever coined.”33 Pure economics rationalizes unemployment—as “voluntary”—without addressing the economic system or social relations that create it.
Microeconomic Matters: Capitalist Calculus
Mainstream economists have traditionally devoted (and limited) themselves to the “trade-offs” between equality and market efficiency. […] Liberal society promotes equality by establishing social and political rights that are, in theory, but rarely ever in reality, distributed equally and universally. That is individual rights are considered to be above the rules of the market. There is, however, an interrelationship between market institutions, inequality, and equal opportunity.
Policy makers are keenly aware that rights affect the functioning of the economy and at the same time, their operation is affected by the market. An entitlement, for instance, is more likely to be established as a right when it has a relatively low cost. When Congress enacted the ADA, it recognized that the traditional civil rights model would not serve to provide equal opportunities for disabled people in the labor force. The DRM articulated the need for accommodations in the workplace and Congress determined that the provision of a “reasonable accommodation” was a necessary component of civil rights for disabled persons in order that they might be integrated into mainstream employment.
Considerable discussion flowed during the ADA debates over the cost that equal rights for the disabled population posed. Senator Paul Simon stated during the congressional hearings, for instance, that Congress was going to “do the right and decent thing” by enacting the ADA despite the costs that would be incurred.34 Former President George Bush was intent upon “containing the costs that may be incurred.”35 Indeed, the right to a “reasonable accommodation” was watered down significantly with the injection of the “undue hardship” clause to alleviate business concerns. The employer is not mandated to pay for an accommodation if doing so would create “undue” financial hardship on the business; the disabled worker’s theoretical “right” is not a right, it is dependent upon the employer’s calculus. This and other exemptions in the ADA catering to the business class has led me to refer to the ADA as a free-market civil rights bill36 because the business owner’s right to property (wealth) is weighted more heavily than the disabled individual’s “right” to accommodation on the job and, hence, to employment.
Even so […] Paul Craig Roberts, a supply-side economist at the Center for Strategic and International Studies in Washington, warned on the day the Act was signed that “[the ADA] will add enormous costs to businesses that will cut into their profits.”37 […]
Capitalism is a system of social relations in which profit-maximization and a constant need to revolutionize the forces of production are basic and inescapable conditions of survival, as they have never been in any other social form. Capital is only interested in labor that will increase material wealth. […]
Pure economic theorists conclude then that if disabilities among the direct producers add to the cost of production without increasing the rate of profit, owners and managers will necessarily discriminate against them. Expenses to accommodate “disabled” persons in the workplace will be resisted as an addition to the fixed capital portion of constant capital.38 […]
Ruling for the employer-defendant in the Seventh Circuit in 1995, Judge Richard Posner relates the business schematic of cost/benefit analysis to the ADA:
If the nation’s employers have potentially unlimited financial obligations to forty-three million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt. We do not find an intention to bring about such a radical result in either the language of the Act or its history. The preamble actually “markets” the Act as a cost saver, pointing to “billions of dollars in unnecessary expenses resulting from dependency and nonproductivity” ß12101(a)(9). The savings will be illusory if employers are required to expend many more billions in accommodation than will be saved by enabling disabled people to work.39 […]
Civil rights laws have historically demanded equal treatment designed to remedy the “irrational” acts of employers. In the case of employment and disability, civil rights laws operate within a capitalist labor market where profit maximization is “rational.” Civil rights laws envision equal treatment, but do not acknowledge the full impact of competition and efficiency governing capitalist economies. The market transgresses on nearly every liberal right, including the right to a job accommodation. Furthermore, it needs to be recognized that productivity is at the center of capitalist accumulation. Capital holds labor as always, a priori, the retarding factor of productivity because labor can never produce fast enough or equivalently, at a low enough valued rate, to suit the expectation of an accelerating profit curve. Therefore, it is likely that impaired persons’ labor will continue to be perceived as less than what is desirable to maximize profit.
Equal opportunity laws such as the ADA must fall short of remedying disabled peoples’ employment predicament. For equal opportunity to be truly equal, biases (including economic biases) must be eradicated.40 However, historically, capitalism has not been a system of material production that has taken into account the human consequences of its development. It is unlikely that disability discrimination can be eradicated under the current mode of production.
Beyond Equal Opportunity
Some economic theorists,41 ignoring the damaging capitalist superstructure, have sought to alter the way neoclassical economics treats disability by attempting to show that it miscalculates the value of disabled workers. In this view, the capitalists need to “correct” their irrational (stereotypical) approach to avoid market failure. What galls these theorists is the “unfairness” of particular markets. They hope through information dissemination to employers to act rationally and create “fair” markets of perfect competition. However well intended, this seems a futile ploy in a fixed game where disabled workers are at the bottom of the competitive labor market and that labor market is, by design, structured to leave millions of workers underemployed and unemployed.
Further, says economist Amin, pure economics is not rational, it is a para-science (not a science as it claims to be), which needs replacing with a reality-based approach. Why give it any credence by persuading business they aren’t acting “rationally”? Politically, pure economics is based on a single preoccupation. Amin writes:
[Pure economics is] a preoccupation with showing that “the market” rules with the force of natural law, producing not merely a “general equilibrium” but the best of all possible equilibria, guaranteeing full employment in freedom, the “social optimum” and this preoccupation is nothing but the expression of a fundamental ideological need, the need to legitimize capitalism by making it synonymous with rationality—which, in conformity with bourgeois ideology, is seen as nothing more than the use of technically rational means for the individual pursuit of mercantile profit.42
By contrast, left political economy holds
no prior assumptions attributing to the system any tendency toward equilibrium. It does not hold that class struggles upset any really existing equilibrium, or even a really existing, yet provisional, disequilibrium. In sum, Marxist political economy is realistic—whereas there is no realism at all about pure economics, which abstracts from reality (classes, states, the global system) so that its discourse, emptied of reality, is left a mythical fable.43
The ADA and equal opportunity (a fable) is a “demand-side” solution for a capitalist society, wherein the disabled workers and would-be workers, by definition, do not have the social or political power to realize their economic wants. Power lies at production, with the owners of capital. Productive capital is privately owned and owners are not forced to make capital available for the employment of the labor of others. Denial of access, therefore, is an important property right of capitalists to which workers do not have an equal legal rebuttal, since there is no “right to a job.”
The failure of liberalism forces the need for a new discourse of liberation. We need a radically different approach. Disability, being a reflection of social class— in this instance, proletariats shoved out of the labor force—presents an opening to force a broader discussion about the legitimacy of the organization of work and our economy. We cannot ignore private ownership of the social economy. There is no “equal opportunity” when the most important economic decisions about investment, choice of technology, work processes, and the organization of work itself are in the hands of a tiny elite of corporate owners and monetary policy makers. Nor can economic (or any other) democracy be realized when this elite can effectively block progressive public policies by threatening or carrying out disinvestment from the progressive jurisdiction as has happened in the conservative US courts with the ADA employment provisions.
Both pure economics and liberal civil rights law remedies are based on the “atomistic individual” and as such need to be seen as products of bourgeois ideology.
Perhaps then disabled peoples’ struggle for an equal place in the realm of work will be met with the class consciousness necessary to challenge the current disabled unemployment predicament.