Publications Detail

Disability and the Social Contract

In Frontiers of Justice: Disability, Nationality, Species Membership (Frontiers of Justice), philosopher Martha Nussbaum demonstrates the power of her capabilities approach for political theory by proposing to bring three often-disregarded groups safely within the scope of justice. Like animals and economically underdeveloped nations, she contends, people with disabilities are excluded from traditional social contract theory.

Read Full Article

Disability Human Rights

Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations General Assembly will soon adopt a disability-based human rights convention. This Article examines the theoretical implications of adding disability to the existing canon of human rights, both for individuals with disabilities and for other under-protected people. It develops a “disability human rights paradigm” by combining components of the social model of disability, the human right to development, and Martha Nussbaum’s version of the capabilities approach, but filters them through a disability rights perspective to preserve that which provides for individual flourishing and modifying that which does not. This Article maintains that Nussbaum’s capabilities approach provides an especially fertile space within which to understand the content of human rights. However, because her scheme excludes some intellectually disabled individuals and conditions the inclusion of others, it falls short of a comprehensive framework. Amending Nussbaum’s capabilities approach to develop the talents of all individuals results in a disability human rights paradigm that recognizes the dignity and worth of every person. This Article also argues that a disability rights paradigm is capable of fortifying human rights in two ways: first, it can reinforce protections afforded to groups already protected, such as women; and second, it can extend protections to people currently not protected, such as sexual minorities and the poor. Ultimately, the disability rights paradigm indicates that human rights protection can progress from a group to an individual basis. Repositioning disability as an inclusive concept embraces disability as a universal human variation rather than an aberration.

Read Full Article

Beyond Disability Civil Rights

About 10% of the world’s population, some six hundred million   people, has a disability.  Disabled persons nevertheless account for 20%  of the world’s poorest individuals, a phenomenon that exists across   developing and developed countries. These impoverished conditions   persist despite efforts by American and international disability rights   advocates to ensure the equality of people with disabilities, as evidenced   by the growing number of countries that have enacted disability-related   legislation. Unfortunately, the continuing economic inequities and social   exclusion of disabled persons worldwide severely calls into doubt the   efficacy of these efforts. It also begs the question of whether any country   adequately protects its disabled citizens.

Historically, disability rights advocates have used the social model of   disability to fight for equal treatment. At the forefront of this endeavor,  American advocates expressed the social model of disability through a   civil rights prism whose tenets paralleled earlier advocacy on behalf of   people of color and women. Their most significant result was the 1990   promulgation of the Americans with Disabilities Act (“ADA”),  prohibiting disability-based discrimination. As an exemplar of the social   model, the ADA has played a leading role in developing disability law outside the United States, with more than forty countries adopting formulations of the statute. Yet despite its laudable achievements, the ADA contains design and implementation shortcomings. The legislation is unable to adequately protect Americans with disabilities in many aspects of their lives. Even ADA proponents admit that the statute has not engendered noteworthy improvements in the employment sphere. Consequently, people with disabilities remain socially marginalized and mired in poverty. Perhaps most trenchantly, as a practical matter, disabled Americans continue to be excluded from the fundamental right of voting. In sum, despite many positive affects American disability civil rights legislation has not—and structurally cannot—bring about equality on their own.

Furthermore, the exclusive focus of American disability rights advocates on the civil rights aspect of disability law and policy is ultimately counter-productive. The efficacy of any law depends on considerations beyond its mere existence. This is especially true for civil rights laws seeking to prevent discrimination against a targeted group; legislation needs to transform society’s institutional structures and attitudes towards marginalized individuals if they are to be treated equally. Because the ADA does not account for exogenous affects, the civil and political rights of disabled Americans, including those contained in the ADA, are far from protected.

Nevertheless, American legal scholarship on disability law and
policy remains almost exclusively grounded in traditional civil rights discourse. Establishing disability’s role within the larger canon of antidiscrimination law is a commendable form of advocacy. American courts and legal commentators continue to resist the notion that the ADA is the same in kind as more traditional civil right legislation, notably Title VII of the Civil Rights Act of 1964 (Title VII).

Read Full Article

Disability, Disparate Impact, and Class Actions

Following Title VII’s enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group’s social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both
legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act (ADA), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disabilitybased disparate impact law. Moreover, the class action device has been virtually nonexistent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions in which individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA’s potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts on challenging race- and sexbased discrimination.

Read Full Article

Generalizing Disability

Published in 1949, Joseph Tussman and Jacobus tenBroek’s article The Equal Protection of the Laws has exerted longstanding influence on subsequent Fourteenth Amendment scholarship. Insightfully, Tussman and tenBroek identified a paradox: although the very notion of equality jurisprudence is a “pledge of the protection of equal laws,” laws themselves frequently classify individuals, and “the very idea of classification is that of inequality.” Notably, classification raises two sometimes concurrent varieties of inequality: over-inclusiveness and under-inclusiveness. Of these, over-inclusiveness is a more egregious equal protection violation due to its ability to “reach out to the innocent bystander, the hapless victim of circumstance or association.”...

Read Full Article

Under The Empirical Radar: An Initial Expressive Law Analysis of the ADA

HILE enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an “emancipation proclamation” for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated…

Read Full Article

Same Struggle, Different Difference

The Americans with Disabilities Act (ADA) was heralded as an “emancipation proclamation” for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA‘s Employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with perceived atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA‘s transformative agenda.

Read Full Article

The Law and Economics of Disability Accommodations

The Americans with Disabilities Act provides a clear mandate that disabled workers be provided with “reasonable” accommodations, but does not meaningfully articulate the standards by which reasonableness ought to be measured. Until now, neither courts nor commentators have provided a systematic model for analyzing accommodation claims. This Article articulates an initial law and economics framework for analyzing disability-related accommodations. In doing so, it demonstrates how accommodations span a cost continuum that can be divided into areas of Wholly Efficient and Semi-Efficient Accommodations to be funded by private employers, Social Benefit Gain Efficient Accommodations where the costs should be borne by the public fisc, and Wholly Inefficient Accommodations that ought not be provided. It also delineates the boundaries between each category, and explains why the entities designated should bear the accommodation costs assigned to them. The analysis of disability accommodations uses, questions, and at times goes beyond the neoclassical economic model of the labor market, and also engages arguments from the jurisprudence of social justice. By utilizing both these fields, this Article stakes out a unique perspective on disability accommodations, and provides an avenue for continued discussion and debate over how disability accommodations ought to be measured.

Read Full Article

© 2008 The President and Fellows of Harvard College. All rights reserved.

Site Map  Accessibility  Contact  Photography and Credits