The Uneasy Relationship Between Social Welfare and Civil Rights Models of Disability in American, European and International Employment Law
Lisa Waddington[1] and Matthew Diller[2]
Introduction
For a number of years disability activists in both North America and many parts of Western Europe have argued for a re-evaluation of the concept of disability and the thinking behind disability policy.[3] They have sought a re-conceptualization of the notion of disability, based on both a recognition of the role which physical and attitudinal barriers play in excluding people with disabilities (a key tenant of the civil rights model of disability), and a rejection of the assumption that medical impairments automatically result in disadvantage and exclusion (an assumption inherent in the social welfare model of disability). In many cases the key demand of disability activists has been the adoption of disability anti-discrimination legislation, and these campaigns have not been without success.[4] The adoption of disability anti-discrimination legislation also reflects the acceptance by policy-makers of the civil rights model of disability.
However, this recognition of the civil rights model has not resulted in a complete overhaul of disability policy. Instead newer policy instruments, inspired by the civil rights model have been added to existing and older instruments, such as the long-established social security schemes, segregated education and housing programs, and employment quotas which were originally inspired by the social welfare model. As a result, disability-related instruments which ostensibly have the same goals, such as promoting employment or education, have completely different starting points and send out conflicting messages about the abilities of people with disabilities. This problem is compounded by the fact that, in some cases, the disability activists and policy-makers who support a civil rights model of disability and anti-discrimination legislation also support the extension and strengthening of some elements of disability policy, such as social security schemes and employment quotas, that traditionally have been motivated by a social welfare model of disability.
The purpose of this paper is to examine the relationship between the social welfare and civil rights models in disability policy, and to consider whether the tension between the two models can be resolved or lessened, and indeed, to what extent the tension is problematic. We also consider whether, in the alternative, a new conception of disability policy is needed which can achieve coherence amongst existing practices and instruments that are incompatible when viewed in terms of the established models. In making this examination we shall confine ourselves to the area of employment; however, these tensions and issues are also evident in many other areas of disability policy and our conclusions are also relevant for these areas.
Following a brief outline of the two established models, we discuss existing situations through case studies focussing on the United States and Western Europe. In addition we consider whether the tension between the two models can also be identified at the international level. After this analysis we reflect on whether support for people with disabilities, such as affirmative action policies, can be reconciled with the civil rights model. We conclude by considering whether an alternative understanding of disability and disability policy could achieve the coherence which is currently lacking.
I. The Social Welfare and Civil Rights Models of Disability Policy
On both sides of the Atlantic, countries have struggled to deal with the dilemmas clustered around the intersection of work and disability. At root, the choice is one between a strategy of exclusion, that views disability as both an excuse from the obligation to work and a ground for denying employment, or a strategy of inclusion, that creates an expectation that people with disabilities continue in the workforce and a requirement that employers accept them. Because neither one of these polarities fully captures the complexity of societal views about disability and work, neither offers a complete and satisfying response. Not surprisingly, both the United States and the nations of Western Europe have dealt with the problem through a series of policies that frequently fail to add up to a coherent whole. More often than not, both employers and people with disabilities are given mixed signals concerning the expectations that society places on them. In various ways, people with disabilities are told they should work, but are simultaneously encouraged to stay home or shunted into segregated work settings. Employers are instructed to provide jobs, and yet are excused from doing so.
Nonetheless, there are commonalities among these mixed signals. These commonalities stem from the fact that the basic ways of viewing disability transcend national borders. In both Europe and the United States, the medical model, which conceives of disability as a medical defect in the individual, has had an enormous influence on policy. In both regions, a civil rights model, which focuses on the societal response to disability, has gained strength and influence in recent years. Moreover, on both sides of the Atlantic the two models have established an uneasy coexistence.[5] However, because of differences in social and cultural contexts, the particular policies which emerge from these models are sometimes quite different. This section identifies the social welfare and civil rights models that form the core assumptions upon which disability policy is based, and examines the tensions between the two models.
A. Models of Disability Policy
Disability policies are rooted in core assumptions about the nature of disabilities and the obligations of both individuals and society. These core assumptions can be grouped into a number of distinct models that inform and animate particular policies. In this paper, we will focus on two of these models: the social welfare model and the civil rights model.
1. The Social Welfare Model
Under the social welfare model, disability is seen as a defect in an individual that renders him or her unable to work or function in society in a conventional way. In this approach, social institutions such as employment and public services are designed to meet the needs of the non-disabled. Rather than adapting these institutions to accommodate disabilities, people with disabilities are directed toward a separate parallel track that provides income and services apart from the institutions that serve the non-disabled majority. In the area of employment, people with disabilities are either pensioned off, or placed in segregated jobs for the disabled. This two track approach can also be seen in education, transportation and other areas.
The social welfare model has proven dominant because it poses no threat to mainstream institutions. It permits society to establish public services and social institutions without regard for people with disabilities, since it adopts the premise that medical limitations will inevitably render people with disabilities unable to participate. The exclusion of people with disabilities is thus accepted as an inevitable natural consequence of medical realities.
At the same time, people with disabilities are not completely ignored. Instead, policies and programs are developed to address what the non-disabled perceive as basic needs. People with disabilities may be offered income support such as public assistance or pensions, housing, schooling, and even special jobs. This parallel track is an essential component of the social welfare model, because it justifies the failure to include people with disabilities in mainstream institutions. It allows society to exclude people with disabilities with a clear conscience. Nonetheless, the social welfare model is not necessarily or inherently begrudging or miserly. Indeed, non-disabled people may view the parallel set of institutions that serve the disabled as generous and desirable.
In the end, regardless of its justifications or how people feel about it, the social welfare model must place heavy emphasis on sorting and labelling. It inevitably relies on mechanisms to determine which track any given individual should be directed to. In the context of income support and pension programs, individuals screened out of the disability category are expected to become part of the labour force, while those found to be "disabled" are exempted from work. Definitions of disability in these programs define the nature and extent of the social obligation to work.[6] Seen in this light, they are part and parcel of a nation’s policies concerning labour and employment.
In general, the more generous the package offered to people with disabilities, the more stringent and exacting the screening mechanism. When the disability track is seen as generous, fears arise that people will seek to exploit the status of disability.[7] Generosity therefore brings with it a certain suspicion or a fear that people will pose as disabled in order to gain certain benefits.
The social welfare model inevitably comes to rely on some notion of the truly disabled, the idea that there is in fact an identifiable category of people that can be treated apart from the mainstream of society.[8] In situations in which separate treatment is viewed as advantageous, enormous energy and resources may be spent in identifying the truly disabled and protecting the category from perceived malingerers and shirkers. This sorting process is most often viewed as an inquiry into medical fact rather than a moral or social judgment. This approach stems from and reinforces the idea that disability is a discrete medically determined status.
The sorting process is always problematic. There is no clear way of disaggregating the impact of a medical impairment from the other characteristics of an individual.[9] The impact of an impairment inevitably varies depending on the age, education and work experience of an individual, as well as economic and other conditions in the area or region where the individual resides. Deciding which of these factors to take into account, and how to do so requires making a series of judgments about employment policy and the labour market which are distinct from, and yet inherent in evaluating the impact of a medical impairment.
2. The Civil Rights Model
The civil rights model rejects the premise that social exclusion is an inevitable consequence of disability. Under this view, people with disabilities have historically been excluded from social institutions because those institutions have failed to adapt to the needs of the disabled, even as they routinely adapt to the needs of others. Proponents of the civil rights model posit that this failure to accommodate flows from both conscious and unconscious aversions to people with disabilities. Seen in this light, the problem is one of discrimination, rather than the need to address the inherent medical limitations imposed by disability.[10] Under the civil rights model, the goal of disability policy is to reform mainstream social institutions to include people with disabilities, rather than to maintain a parallel track.[11] Moreover, as the non-disabled majority gain increasing contact with people with disabilities, prejudice may abate and the necessity for legal intervention may diminish.
B. Tensions Between the Two Models
The mere description of these two models makes evident the tension between them. The two models stem from extremely different assumptions and tend toward conflicting objectives.[12] The social welfare model views disability as a medically determined status. In contrast, under the civil rights model, the limitations relating to medical conditions are the result of an interaction between the condition itself and the social context that gives significance to the condition. Accordingly, under the civil rights model, there is no objectively fixed status of disability.
A number of consequences flow from this disparity in assumptions. First, the social welfare model is built on the idea of separation, while the civil rights model focuses on inclusion. The civil rights model is directed at abolishing separate institutions for people with disabilities, and integrating the latter into the social mainstream. As the social welfare model removes people from the mainstream, the civil rights model seeks to return them. Second, the emphasis on labeling and sorting that characterizes the social welfare model emphasizes the inabilities of people with disabilities, rather than their areas of competence and capability. Mechanisms designed to identify the truly disabled require individuals to validate their status as disabled by proving various functional inabilities. Indeed, it compels people with disabilities to confess their inabilities in order to gain entry to the separate disability track. This process thereby reinforces stereotypes about the incompetence of people with disabilities. In contrast, the civil rights model emphasizes the capabilities of people with disabilities, and reluctantly accepts the conclusion that an individual cannot perform a given task only after examining whether the task itself can be re-structured.[13]
In these ways the two models work at cross purposes. Support for those institutions based on the social welfare model can be seen as undercutting efforts to advance the civil rights model. Moreover, the civil rights model can be seen as a threat to institutions which provide benefits to people with disabilities through a separate track.
This discussion suggests that the social welfare and civil rights models cannot coexist. And yet, many nations have policies and programs based on both of these models, and in some instances, on a mixture of the two. A number of views can be advanced to attempt to reconcile these divergent policies and programs, or at least to blunt their contradictions. Two of these approaches are outlined here.
First, the coexistence of both models can be rationalized on the ground that the two models serve different people. Under this view, a subcategory of people with disabilities are seen as conforming to the assumptions of the social welfare model, while others are seen through the lens of the civil rights model. Some individuals are classified as severely disabled and tracked into a separate social welfare system while others are viewed as less impaired and encouraged to join the social mainstream. Given the broad and amorphous nature of disability, this solution has a certain appeal as it acknowledges the heterogeneous nature of disability. It depends, however, on some method of sorting individuals into these two subcategories. There is no clear way of drawing such a line, absent reliance on the social welfare model’s medical approach. Moreover, this approach still involves establishing a category of people with disabilities that is segregated into a separate track. Thus, at root it relies on the outlook of the social welfare approach.
Second, people with disabilities can be given the option of choosing for themselves whether to avail themselves of civil rights policies or social welfare programs. The advantage of this approach is that it does not require formal tracking into one system or another. Moreover, it acknowledges the individual nature of disability and accords respect for the autonomy of those most affected. The question is whether societies will accept this approach, as it accords people with disabilities a range of choices that are not provided to others. Most members of society are subject to a social obligation to work, rather than an option.
In practice it is therefore very difficult to reconcile the two divergent models of disability. For this reason it is not surprising to find that there has frequently been no attempt to develop a logical and coherent policy. Newer policy instruments, such as anti-discrimination laws that are based on the civil rights model of disability, have been added to existing policy instruments inspired by the social welfare model. In this way numerous layers are developed in an ad hoc approach to policy development. Rarely do policy makers have the time or the inclination to take a step back and consider the coherence and logic of disability policy.
II. Disability Policy in Practice – An Examination of the Tension Between the Social Welfare Model and the Civil Rights Model at the National Level
It has been noted above that disability policy is frequently based on a confused and conflicting set of assumptions and beliefs. In this section, and the following one, we will examine how the tension between the social welfare model and the civil rights model of disability manifests itself in specific national and international policies. In particular, we consider the strained relationships between anti-discrimination legislation and social security provisions in the United States, and between anti-discrimination legislation and employment quotas in Europe.
A. United States Case Study: The Relationship between Anti-discrimination Legislation and Social Security Provisions
The experience of the United States sharply illustrates the tensions between the social welfare and civil rights approaches to disability. Since the 1950s, the largest and most well funded programs dealing with disability have been the pension programs of the Social Security Act. Beginning in 1956, the Social Security Disability Insurance (SSDI) Program has provided income support to workers who demonstrate that they are unable to work due to medical impairments.[14] In 1972, SSDI was joined by the Supplemental Security Income (SSI) program which provides monthly payments to the disabled poor who do not have sufficient work records to qualify for SSDI.[15] With the enactment of the Americans with Disabilities Act of 1990 (ADA), civil rights protections were added to these public pension programs as a basic part of US disability policy. The ADA prohibits employers from discriminating against people with disabilities in hiring, promotion and other aspects of employment.
At the time the ADA was enacted, scant attention was paid to the relationship between these two approaches. To the extent the issue was considered, it was simply assumed that the ADA’s emphasis on employment would reduce expenditures on income support. As the ADA took effect, however, it became clear that the interaction between the ADA and the disability benefit programs was far more complex, and in many ways, quite troubling.
1. The Social Security Act
The disability benefit programs of the Social Security Act view disability as analogous to old age – a condition that calls for long term or permanent excuse from any obligation to work and acts as a justification for social support. The proposal to add a disability program to the Act in the 1950s was highly contentious. Proponents argued that disability benefits constitute a form of early retirement for those whose health has broken down prematurely. As a result, eligibility for SSDI and SSI is predicated upon a finding that an applicant is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.[16] The law further states that an individual can only be found to meet this standard if he or she is not only unable to do his previous work but cannot, considering the individual’s age, education and work experience, engage in any other kind of work which exists in the national economy.[17] In essence, benefits are available only to those who are incapable of performing both their past jobs and other jobs for which they would otherwise be qualified.
The Social Security Administration (SSA) administers these requirements through an elaborate process. Individuals must present extensive medical and often testimonial evidence about their impairments and functional limitations. In many cases, the process of establishing eligibility takes years. Because of the strict eligibility requirements and the administrative obstacles, a determination of eligibility for disability benefits is difficult to obtain.
Over the years, Congress has enacted a number of provisions intended to encourage disability benefit recipients to return to work, such as creating a trial work period in which an individual can work without jeopardizing his or her benefits. However, these provisions have had d little impact to date. It is not surprising that after requiring applicants to go through a torturous process to get benefits, few of those who succeed would risk the attempt to turn around and reenter the work force. President Clinton recently signed into law the Ticket to Work and Work Incentives Improvement Act of 1999, which expands the availability of health coverage and employment services for disability benefit recipients who seek to return to the work force. The impact of this new law is not yet clear.[18]
The disability benefit programs of the Social Security Act are rooted in the social welfare model. They are based on the assumption that the disabled are incapable of work and should be supported outside of the mainstream market economy. They are also predicated on the idea that disability is an objective medically determinable status, and rely on an elaborate sorting procedure to screen people into and out of the disability category. Although the expansion of programs and services to encourage and help benefits recipients return to the work force reflects an attempt to shift the social welfare paradigm, no transformation has yet taken place.
2. The Americans with Disabilities Act
Title I of the ADA prohibits employers from discriminating against people with disabilities. The Act defines discrimination as the denial of equal jobs or benefits to a qualified individual because of a known disability. It also establishes that the failure to provide reasonable accommodations for the known physical or mental limitations of an individual with a disability is a form of discrimination, unless an employer can show that the accommodation would impose an undue burden. The principal enforcement mechanism of the ADA is the civil law suit. In order to establish a case, an ADA plaintiff must demonstrate, among other things, that he or she is qualified for the job, meaning that he or she can — with or without accommodations — perform the essential functions of the job in question. Finally, the ADA defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of the individual. This definition has been interpreted by the courts as a threshold requirement for protection under the Act – every plaintiff must show that he or she falls within this definition.[19] The ADA is based on the premise that discrimination is the central problem confronting people with disabilities in the area of employment. The preamble of the ADA states that “society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against people with disabilities continue to be a serious and pervasive social problem.”[20] The Act only permits the conclusion that a person is unqualified for a job due to a disability after both the essential job functions and the possibility of altering the job to accommodate the disability have been examined.
As this description makes clear, the ADA is principally based on a civil rights model of disability policy. It seeks to integrate people with disabilities into the social mainstream and to break down barriers erected by prejudice.
3. Tensions Between the ADA and the Disability Benefit Programs
In the years following the ADA’s enactment, it became clear that there were significant tensions between the civil rights approach of the ADA and the social welfare programs of the Social Security Act. Viewed together, the two policies send mixed messages about disability to the general public. Moreover, these tensions create dilemmas for people with disabilities.
The ADA promotes the idea that people with disabilities should be included in the workforce and should be viewed similarly to non-disabled workers. Underpinning this approach is the premise that people with disabilities are not that different from everyone else, and therefore do not need separate parallel social institutions. The ADA is based on the idea that the principal employment barriers faced by people with disabilities are misperception and stereotypes. The analysis which the law requires employers to undertake is designed to overcome these barriers.
At the same time, the disability benefit programs emphasize the differences between people with disabilities and the non-disabled, and suggest that medical screening can effectively sort people into two different categories. The disability benefit programs encourage people with disabilities and the non-disabled public to focus on all the things that disabled people cannot do, while the ADA seeks to shift the focus to their capabilities. Moreover, the disability benefit programs can be seen as excusing employers from the obligation to hire or retain people with disabilities, because they can reject or terminate disabled applicants with the assurance that the government will provide for them.
Two examples may illuminate the problems that result from these tensions.
In administering the disability benefit programs, the Social Security Administration uses a list of impairments, defined in clinical terms, that are considered disabling per se. Claimants whose conditions satisfy the terms of this Listing are automatically presumed unable to work, and therefore qualify for benefits.[21] Any private employer who used such a list in categorizing individuals as unable to work, however, would undoubtedly run afoul of the ADA, since the list does not reflect the individualized consideration of functional limitations that the ADA requires. On the one hand, the Listing is an archetype of the medical model: it is based on and perpetuates the assumption that decisions about an individual’s employability can be based on clinical test results. On the other hand, the Listing makes it much easier for some people with disabilities to obtain benefits. Since claims can be allowed, but not denied, based on the Listing, it has the effect of expanding eligibility for the benefit programs. In addition, the Listing provides elements of predictability and consistency to the benefit application process. Thus, disability advocates in the early 1990s filed a class action lawsuit against the Social Security Administration because the agency had issued a narrow and under-inclusive Listing in relation to HIV infection. The plaintiffs claimed that the absence of a better listing caused delays and unpredictability in the benefit application process for people with AIDS and related diseases.
As this discussion suggests, the Listing confronts disability advocates with a dilemma. If the goal is to sweep away outdated assumptions about disability and to emphasize the abilities, rather than the limitations, of people with disabilities, the Listing is a ripe target for attack. On the other hand, the Listing undeniably helps many people, by creating an expedited and reliable means of getting benefits into the hands of people who need them.
A second example presents another variant on this same conundrum. With increasing frequency over the past five years, employers have sought to defend ADA cases by arguing that plaintiffs should not be able to sue under the ADA once they have sought and received disability benefits. Employers have argued that since eligibility for benefits is based on claiming the inability to work, benefits recipients should not be permitted to argue that they are qualified for their former jobs. Although many courts initially accepted this line of argument and held that benefit recipients were estopped from bringing or maintaining ADA cases, this reasoning was rejected by the United States Supreme Court in 1999.[22] The Court pointed out that under the terms of the two laws, an individual can be qualified for a job under the ADA, even though he or she satisfies the definition of disability under the Social Security Act. This overlap is possible for a number of reasons, the most significant of which is the fact that the SSA does not take into account the employer’s obligation to provide accommodations under the ADA.
In holding that benefit applicants are not automatically barred from bringing ADA cases, however, the Supreme Court, did not foreclose the possibility that statements made during the benefit application process could be brought back to haunt ADA plaintiffs. The plaintiff can be required to explain why he or she could claim the inability to work on an application for benefits, and yet still be qualified for the job in question. The employer is still permitted to wave the benefits application in front of a jury, and may argue that the plaintiff is simply exploiting his or her disability and lying about the impact of his or her impairments.
In both of these instances, people with disabilities may be perceived as trying to have their cake and eat it too. In one form or another, the question inevitably arises that if the goal of civil rights legislation is to ensure a place for people with disabilities in the social mainstream, then why should society maintain a separate track that gives people with disabilities benefits that are not accorded to others? If the ADA embodies the idea that people with disabilities can participate in the mainstream labour market, then why should they not be required to do so? If the premises of the civil rights model are accepted, is there any room left for social welfare programs in a coherent overall disability policy?
These questions go to the heart of the tension between the two models of disability, and reveal why this problem is of more than merely academic interest. They are considered in more detail in the conclusion to this paper.
B. European Case Study: The Relationship between Anti-discrimination Legislation and Employment Quotas
1. European Employment Quotas
An examination of European disability employment policy reveals similar tensions. For the greater part of the previous century, quotas, whereby employers are encouraged or obliged to employ persons with a disability as a set percentage of their total workforce, were the main plank of disability employment policy in Western Europe.[23] Notwithstanding recent interest in disability (employment) anti-discrimination legislation in Europe, quotas continue to be seen as the key tool for securing the employment of people with disabilities in many countries.
The early quota systems had their origins in the post-First World War period, and only covered disabled veterans. These quotas were based on the idea that society owed a duty to those who had been disabled whilst serving their country, and by the end of 1923 Germany, Austria, Italy, Poland, and France had all adopted such systems.[24] In contrast, some countries shied away from imposing an employment obligation on employers, and instead sought to encourage employers to voluntarily take on disabled veterans.[25] The high unemployment levels amongst disabled veterans during the inter-war years, and the lack of success of the voluntary approach, led most European countries to turn to the obligation based quota system in the post-Second World War period. These second generation quotas were eventually extended to cover the disabled civilian population. A consequence of this extension was that the concept of a quid pro quo societal duty, which had existed when the systems were exclusively targeted at veterans, was lost, and the new quotas became part of overall national social-welfare policy. Today ten of the fifteen Member States of the European Union have some form of quota system,[26] and quotas can also be found in many European countries which are at present not members of the Union.[27] All quota systems direct employers to hire disabled workers as a set percentage of their work force, but within this general framework there is a great deal of scope for variety, and for this reason one cannot speak of a uniform European quota system. Instead European quota systems can be divided into the following three basic models:
i. Legislative Recommendation
Under this approach, employers are not obliged to employ a set percentage of workers with disabilities, but it is recommended that they do so.[28] Such quotas are voluntary and the legislation does not provide for the imposition of sanctions in the event of employers failing to meet the quota.
Not surprisingly experience suggests that a voluntary quota, which imposes no legal obligation upon employers and provides for no sanctions, has little impact on the numbers of people with disabilities in open employment.[29]
ii. Legislative Obligation But No Effective Sanction
A second approach does rely on legislation to oblige employers to employ a quota of people with disabilities; however this obligation is either not backed up with any effective sanction or the sanction is not actually enforced. This model is typified by the quota system adopted in Britain after the Second World War under the Disabled Persons (Employment) Act (DPEA) of 1944. In Britain this form of quota was not successful in promoting the employment of disabled people, and each year progressively fewer employers met their quota obligation. There were a number of reasons for the failure of the British quota system, but it is submitted that the most important one was the unwillingness or inability of successive governments to enforce the quota through strict policing of the granting of exemption permits and prosecuting errant employers.
Evidence from Britain clearly shows that it is insufficient to simply legislate an obligation on employers to employ people with disabilities. The bare imposition of a quota system does little more than rely on the goodwill of employers, and does not greatly increase employment opportunities for covered individuals in the open labour market. The quota was finally abolished in Britain on 2 December 1996, when the employment provisions of the new disability anti-discrimination law, the Disability Discrimination Act of 1995, came into force.
iii. Legislative Obligation Backed Up By Sanction (Levy-Grant System)
Under this model, employers are obliged to either meet their quota target or pay a fine or levy, which usually goes into a fund to support the employment of people with disabilities. Germany provides one of the earliest examples of such a system, and its quota has since served as a model for other countries, such as France.
Such quotas are based on the principle that all employers above a certain size should contribute to the economic integration of workers with a severe disability. Ideally this integration should occur through the actual provision of employment for such workers, but where this is not the case, a contribution should be made via the levy procedure.
The German quota system has undoubtedly made a greater contribution to promoting the employment of people with disabilities than either of the two systems described above. However in recent years the German quota has become progressively less effective, and has proved itself incapable of maintaining the targeted level of employment for workers with a severe disability during periods of economic recession. Economic difficulties combined with a relatively low levy seem to make payment a more attractive option for employers than taking the perceived risk of hiring a worker with a severe disability.
2. European Anti-Discrimination Legislation
The adoption of disability anti-discrimination legislation (in the field of employment) is a fairly recent phenomenon in Europe. Today three European countries have some form of civil law designed to combat disability discrimination (the United Kingdom,[30] Sweden[31] and Ireland[32]). A number of other countries are considering adopting such legislation. In addition some national constitutions have been amended in recent years to specifically include a reference to disability in an equality clause (Germany, Finland[33] and Austria). Of most significance from a continental perspective is a recently adopted European Community Directive designed to combat employment discrimination on a number of grounds,[34] including disability. As a result of the Directive, all European Union Member States are obliged to adopt employment anti-discrimination legislation specifically addressing disability by the end of 2006 at the latest. This legislation must cover direct and indirect discrimination, as well as discrimination in the form of harassment. In addition the legislation must impose an obligation to make reasonable accommodations for people with disabilities, unless the making of such an accommodation would impose a “disproportionate burden” on the employer.
3. Tensions Between Employment Quotas and Anti-Discrimination Legislation
European quota systems are clearly inspired by the social-welfare model of disability, since medical limitations are seen as the explanation for an individual’s inability to obtain employment in a conventional manner. By creating quotas, States have sought to establish an alternative labour market which is only open to those people who are labeled as disabled, albeit those finding work via this route (should) work side by side with their non-disabled counterparts. Such quotas are based on the following assumptions:
- people with disabilities are able to work in the open labour market;
- employers should hire a set percentage of people with a disability; and
- a large number of people with disabilities are neither able to compete for jobs with their non-disabled counterparts on an equal basis nor win jobs on their own merit, thus rendering legislative intervention necessary.
The quota system therefore sends out mixed and confusing messages to both employers and people with disabilities. On the one hand employers and people with disabilities are told the latter’s employment in the open labour market is desirable and achievable, whilst on the other hand, they are told that workers with a disability cannot compete for jobs in a truly open labour market. In short, the message sent out is that most workers with a disability are less valuable economically and less productive, and that, if such workers are to be integrated in the (semi-)open labour market, employers need to be obliged to hire them. Given this inherent contradiction it is not surprising that European quota systems have in fact made little direct contribution to the employment of people with disabilities.
In contrast, European anti-discrimination laws, like their American counterpart (from which, in many cases, inspiration was drawn during the drafting processes) are inspired by the civil rights model of disability, and are based on the assumption that people with disabilities are able to compete for and win jobs on their own merit, as long as they are provided with equal opportunities. This recent addition to the European legislative arsenal of tools designed to promote the employment of people with disabilities therefore raises an interesting question: Can anti-discrimination legislation, inspired by the civil rights model of disability, exist side by side with quota systems, inspired by a social-welfare model of disability, or do the two approaches inevitably undermine and contradict each other in the European context?
In fact the question is not so pressing as it may seem at first sight, or at least not at present. Of the three European countries which currently have disability employment anti-discrimination legislation: Sweden has never had a quota system; Ireland’s quota system is confined to the public sector and largely ignored; and the United Kingdom abolished its ineffective quota at the same time as it adopted anti-discrimination legislation. However, the British decision to abolish the quota was not inspired by the desire for a theoretically coherent set of policy instruments, but rather by pragmatic reasons: the quota was seen as ineffective and there was no will on the part of the government to enforce the quota law. The adoption of the Disability Discrimination Act of 1995 in Britain provided a good political opportunity to abolish the old system. Many disability activists in fact argued for the simultaneous adoption of anti-discrimination legislation and the retention and effective enforcement of the quota scheme.
However, the Community anti-discrimination Directive referred to above will result in the adoption and implementation of disability anti-discrimination legislation in all European Community Member States. This will lead to an ineluctable clash between social welfare quotas and civil rights anti-discrimination legislation in those countries, such as Germany and France, where there is a strong commitment to the levy-grant quota system. At a theoretical level, it seems that the only way to resolve the tension between anti-discrimination legislation and quotas in Europe is to direct the instruments at two discrete groups. In such a scenario, anti-discrimination legislation would be targeted at people who can compete for and obtain jobs on their merit in a situation of equality of opportunity, whilst quotas would be targeted at people who are capable of working in the open labour market, but require more than a non-discriminatory environment in order to obtain that employment. In practice, as we have seen, it is impossible to separate people with disabilities into two such groups, quite apart from the question of whether this would be desirable. It therefore seems that as long as disability policy is conceived in terms of the social welfare or civil rights models, tensions between the two types of policy instruments will be inevitable, at least in those European countries that have a well established levy-grant form of quota.
Ironically, in practice the two approaches may actually complement each other in some respects – at least with regard to the financing of the adaptions or accommodations needed in order to employ some people with disabilities, a condition something which is usually required by disability anti-discrimination legislation. Money raised through the charging of levies on employers who do not meet their quota obligations could be used to finance “expensive” accommodations, thus reducing the number of cases in which employers would be able to argue that the employment of a particular individual would result in their assumption of a disproportionate burden because of the cost of the accommodation required. This point is considered in the recently adopted Community Directive which provides that the making of a reasonable accommodation for a person with a disability will not amount to a disproportionate burden where that burden is “sufficiently remedied by measures existing within the framework of the disability policy in the Member State concerned” .[35] The resulting relationship between the civil rights and social welfare models may therefore be uneasy, but it may also have some positive elements.
III. Disability Policy in Practice – The Tension Between the Social Welfare Model and the Civil Rights Model at the International Level
The previous section revealed the extent to which elements of both American and European national policies designed to promote the employment of people with disabilities are based on conflicting and contradictory models of disability. In this section we will examine if such contradictions also present themselves in some of the key international human rights instruments which address employment (and disability). Until relatively recently, international human rights texts generally adopted one of two approaches towards disability: universal instruments, such as the International Covenant on Economic, Social and Cultural Rights of 1966, tended not to specifically mention people with disabilities, whilst specialist instruments, such as the UN Declaration on the Rights of Mentally Retarded Persons (1971) and the Declaration on the Rights of Disabled Persons (1975), were specifically targeted at people with disabilities.[36] As we have seen above, this development of separate instruments, and even at times a separate parallel approach for people with disabilities, was also reflected in policies created at the national level in Europe and America.
However, the last decade has seen notable changes in disability policy at the international level. This has resulted in the development of new disability-specific instruments, such as the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which are clearly based on the civil rights model of disability, and the re-interpretation of at least one long-standing universal instrument which does not specifically mention disability: the International Covenant on Economic, Social and Cultural Rights of 1966.
In the following section we note how key universal human rights instruments (focussed on or applicable to employment) have traditionally failed to specifically mention people with disabilities, even as a parallel set of instruments targeting people with disabilities have developed. We will consider why the international community has adopted this approach for so long and note recent changes. In conclusion we will reflect on whether international instruments are less troubled than their national counterparts by the tension between the social-welfare and civil rights models of disability.
A. Universal Instruments
A number of important universal human rights instruments specifically address employment. For example, the Universal Declaration of Human Rights adopted by the UN General Assembly in December 1948 provides for the right to work, as well as a number of other related rights (Article 23). Furthermore, according to Article 2(1) of the Declaration:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other social status.
Clearly no specific mention is made of disability in this clause, nor indeed, elsewhere in the Declaration.
A further key international human rights instrument covering inter alia employment is the International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). The Covenant does not refer to people with disabilities and, most notably, disability is again not mentioned in the anti-discrimination provision contained in Article 2(2). Various other employment related rights are covered, including the “right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts …” (Article 6(1)). States are to implement this right through steps such as “technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development …” (Article 6(2)). In addition states are to recognize “the right of everyone to the enjoyment of just and favourable conditions of work”, including the equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence” (Article 7, 7(c)).
It has always been clear that the norms contained in the UN Declaration and ICESCR apply to all individuals, including people with disabilities. However, as Philip Alston has noted with regard to the ICESCR: “The relevant norms were in fact interpreted and applied for many years in a way which tended to overlook or even entirely ignore [disabled persons].” Alston continues:
Indeed, there was often an unstated assumption that in the case of persons with disabilities a significant range of otherwise applicable human rights was for some reason mysteriously suspended or rendered inapplicable.[37]
Given that the Covenant was adopted in 1966, and finally came into force in 1976, it is not altogether surprising that the state parties failed to specifically address the situation of people with disabilities. As noted above, both national and international policy makers rarely attempted to integrate people with disabilities into mainstream policies at this time, and failed to recognize the role which discrimination played in excluding this group.
Numerous general instruments concerning employment policy and employment discrimination have also been adopted under the auspices of the International Labour Organization (ILO). These include Convention 111 on Discrimination (Employment and Occupation) (1958), Convention 122 on Employment Policy (1964), and two Recommendations on Employment Policy (Recommendation 122 (1964) and Recommendation 169 (1984). Like the ICESCR, none of these instruments specifically refer to people with disabilities, and disability is not included in the (at times) closed list of grounds covered in specific anti-discrimination clauses.[38] At the same time as the ILO adopted these general instruments which failed to refer explicitly to persons with disabilities, they adopted a number of Conventions and Recommendations which specifically targeted this group (see below). This again reflected a segregated approach to policy making.
B. Targeted Instruments
As noted above, the general neglect, or at least separate treatment, of people with disabilities in universal human rights texts was paralleled by a tendency to adopt specialized and targeted instruments dealing only with disability. One early such document was Recommendation 99 of the ILO on Vocational Rehabilitation (Disabled) (1955). This Recommendation is very much based on the social welfare model of disability. The preamble to the Recommendation notes that there are many and varied problems concerning those who suffer disability, and the rehabilitation of such persons is essential in order that they be restored to the fullest possible physical, mental, social, vocational, and economic usefulness of which they are capable. The emphasis is therefore on adapting the individual with a disability, rather than on seeking the elimination of disability discrimination and the barriers which hamper the participation of people with disabilities. Even though integrated employment and training are the preferred options under the Recommendation, the role of specialized guidance services (Article 3), training provisions (Article 8), placement services (Article 10), and sheltered employment (Article 32 to 35) are also emphasized.
Two other international texts which focus exclusively on persons with disabilities are the UN Declaration on the Rights of Mentally Retarded Persons (1971) and the UN Declaration on the Rights of Disabled Persons (1975). The latter Declaration, even though it contains a definition of disability that is based on the social welfare model (any disadvantages are identified as being caused by the “deficiency … in … physical or mental capabilities”: Article 1), also emphasizes the need to both respect the human rights of people with disabilities (Articles 3 and 4) and to protect disabled persons “against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature” (Article 10).
C. Reassessing Universal Instruments
In the 1970s and 80s the disability civil rights movement brought pressure to bear on some national policy makers. This was particularly the case in the United States; and by the 1990s a similar movement could clearly be identified in many parts of Europe. This pressure was also felt in the corridors of the United Nations, and on 12th March 1984 the UN Commission on Human Rights adopted a resolution[39] recommending that the Sub-Commission on Prevention of Discrimination and Protection of Minorities appoint a Special Rapporteur to report on the connection between disability and serious violations of human rights and fundamental freedoms. The report by Leandro Despouy,[40] which was published in 1993, revealed the extent to which the human rights of people with disabilities, including employment related rights, were being overlooked and abused, and greatly increased the international community’s awareness of its previous neglect of this group.
In relation to the ICESCR, the most significant result of this new awareness of the rights of people with disabilities was the General Comment[41] on People with Disabilities, adopted in 1994 by the Committee on Economic, Social and Cultural Rights. The General Comment emphasizes inter alia the applicability of the employment provisions of the Covenant, noting for example that the right to the opportunity to gain a living by work which is freely chosen or accepted (stated in Article 6(1)) “is not realized where the only real opportunity open to disabled workers is to work in so-called ‘sheltered’ facilities under substandard conditions” (Para. 21). Significantly the General Comment also notes the role which discrimination and physical barriers, such as inaccessible transportation and work places, play in excluding people with disabilities, and calls on governments to take action to remove such barriers and reasonably accommodate the needs of disabled workers (Para.22).
The General Comment also notes the absence of a specific reference to disability in the Covenant, which is attributed to a previous lack of awareness of the need to protect and promote the human rights of persons with disabilities through general, as well as specially designed, laws, policies and programs. This reflects the newer approach to disability policy at the international level which has been inspired by the civil rights model.
D. Developing New Targeted Instruments
In 1983, influenced by the UN International Year of Disabled Persons (1981) and the recognition that rehabilitation policy had advanced, the ILO adopted Convention 159 on Vocational Rehabilitation and Employment (Disabled Persons). It is clear from the Convention that the ILO had considerably advanced its understanding of disability since 1955, when Recommendation 99 on Vocational Rehabilitation had been adopted. The newer Convention encouraged States to ensure that “appropriate vocational rehabilitation measures are made available to all categories of disabled persons,” and promoted “employment opportunities for disabled persons in the open labour market” (Article 3). The Convention emphasized that policy “shall be based on the principle of equal opportunity” (Article 4). This emphasis on equality is not found in the earlier ILO Recommendation.
Undoubtedly the most far-reaching and modern international instrument targeted at people with disabilities is the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities, adopted by the General Assembly of the United Nations in 1993. The Rules were conceived as a substitute for a binding international treaty,[42] and aim to set the standard for national (and international) disability policy and laws.[43] The Standard Rules are very much based on a rights-based approach to disability, and address the role which discrimination, in its many forms, plays in disadvantaging people with disabilities. The Rules are critical of the way in which the terms “disability” and “handicap” have been used in the past, stating that “[t]he terminology reflects a medical and diagnostic approach, which ignored the imperfections and deficiencies of the surrounding society.”[44] One of the areas targeted in the Standard Rules for Equal Participation is employment (Rule 7). This Rule provides that:
1. Laws and regulations in the employment field must not discriminate against persons with disabilities and must not raise obstacles to their employment
2. States should actively support the integration of persons with disabilities into open employment… .
3. States’ action programmes should include:
(a) Measures to design and adapt workplaces and premises in such a way that they become accessible to persons with different disabilities; …
7. The aim should always be for persons with disabilities to obtain employment in the open labour market. For persons with disabilities whose needs cannot be met in open employment, small units of sheltered or supported employment may be an alternative… .
This relatively modern instrument of disability policy therefore places a significant emphasis on the equal rights of people with disabilities and fully embraces the rights-based concept of disability.
E. The Influence of the Social-Welfare and Civil Rights Models of Disability at the International Level
The failure to refer to disability in (earlier) universal human rights texts, and the use of weaker non-binding instruments for those measures which targeted people with disabilities, is evidence that the international community believed that people with disabilities were not a group that was particularly vulnerable to human rights abuses. While policy-makers could not have doubted that people with disabilities were disadvantaged, this was attributed to the existence of physical or mental impairments (i.e., in accordance with a social welfare model of disability), and not seen as the result of discrimination and inadequate respect for human rights (i.e., in accordance with a civil rights based model of disability). In light of pressure from disability NGOs and some State parties, as well as the authoritative Despouy Report, the international community has revised its out-dated view of disability and increasingly come to accept the civil rights model of disability. However, this has not resulted in the re-drafting of long established universal instruments such as the ICESCR. Given the difficulty of reaching agreement on such universal texts in the first place, and the familiarity and recognition which such instruments have now achieved, such re-drafting could not be expected. Instead, through General Comments and other texts and statements used in the interpretation of universal instruments, the international community has made it clear that such instruments are to be interpreted as applying to people with disabilities. This kind of interpretive re-direction has been possible because these instruments have never expressly intended to exclude people with disabilities, and have usually purported to be universal, for example, through the inclusion of non-discrimination/equality clauses which emphasize that the relevant rights are to be enjoyed by all. By facilitating a “re-interpretation” of the instruments, universality has become more of a reality.
Newer disability-specific instruments have also updated and effectively revised the standards which the international community are expected to meet. Older instruments, inspired by a medical and social-welfare model of disability, have not been repealed, but on the whole, they have not been perceived as contradicting the newer approach. The older instruments often contain fairly general requirements, and – in the case of employment measures – have the broad aim of promoting employment for people with disabilities. Since newer instruments share this general goal, they can be seen as simply reflecting a greater understanding of, and further developing solutions for, the problems which were raised and addressed in earlier texts.
These comments suggest that although tension can be identified between the social-welfare and civil rights models of disability in international instruments, these tensions have not proved to be as problematic as they have been at the national level. This is partly because of the proclaimed universality of many instruments, which is open-ended enough to allow for the recent emphasis on the equal rights of people with disabilities, but also because of the general (and at times vague) nature of many of the provisions contained in international instruments. Furthermore such instruments, unlike the national provisions examined earlier, are addressed to signatory states rather than individuals (such as people with disabilities or employers). As a result, those who are actually responsible for making decisions concerning the employment of people with disabilities at the grass roots level are unlikely to (directly) receive any mixed messages sent out by international instruments.
IV. Reconciling Support for People with Disabilities with the Civil Rights Model
In the previous sections we have seen how certain measures ostensibly designed to promote the employment of people with disabilities, and that are based on the social welfare model of disability, sit uneasily with anti-discrimination legislation inspired by the civil rights model. In this section and the conclusion, we will consider whether all forms of employment-related support targeted exclusively at people with disabilities raise the tension described above, or whether some forms of support can be reconciled with the civil rights model. In doing so we will consider the justification for such targeted intervention. We will also draw inspiration from measures directed at other groups which have been traditionally disadvantaged in the labour market, such as women and ethnic minorities, for whom the civil rights model has long been accepted.
Before turning to these issues, we consider one possible solution which would obviate the need to reconcile the two approaches: outright abolition of the social welfare model and the programs inspired by it. Such an approach has the great advantage of achieving immediate coherence and consistency. It simply casts aside the outdated social welfare model and its manifestations. However, such a solution could only be based on an analysis that reduces disability policy to a binary choice between the two approaches; it fails to address many of the problems faced by people with disabilities and overlooks the complexity and nuance of societal views of disability.
Civil rights legislation, by itself, is not an adequate response to the issues raised by disability. It provides only a limited solution for many people with disabilities. First, although civil rights legislation prohibits discrimination, discrimination nonetheless persists. Discrimination is too ingrained to be dispelled by the simple passage of legislation. Moreover, individual litigation is a time consuming, anxiety producing, and costly means of redress. Civil suits by individual victims of discrimination cannot be expected to solve the problem.
Second, civil rights legislation is limited in scope. The duty to provide accommodations to people with disabilities is qualified by the proviso that employers need not provide accommodations that impose undue or disproportionate burdens. Thus, even if all employers complied with disability anti-discrimination legislation, many workers could still be rejected or terminated based on their disabilities. Furthermore the possibility exists that courts will adopt a narrow interpretation of the concept of “disability,” and so exclude many people from the scope of protection of any legislation. This has occurred with regard to the Americans with Disabilities Act, which has been interpreted so as to exclude many individuals whose medical impairment has formed the basis for an adverse employment decision. In Sutton v. United Airlines,[45] the United States Supreme Court emphasized that the ADA defines disability as a substantial limitation on the ability to perform a major life activity; consequently they endorsed the view that some impairments which would prompt employers to refuse to hire individuals for jobs that they seek, may nonetheless be considered insubstantial for the purposes of the ADA. The recently adopted European Directive allows Member States to introduce their own definition of disability when adopting national anti-discrimination law, and it is quite possible that narrow definitions or interpretations will be developed in at least some Member States once the Directive is implemented.
Third, anti-discrimination legislation focuses on discrimination by the employer based on a particular trait or characteristic of the job applicant, in this case his or her disability. It does not address other aspects of the employment decision, even though these aspects may be related to disability, either causally or as correlates.[46] Decisions which at first sight may appear to be motivated by non-discriminatory factors, such as rejections based on inadequate training, qualifications or work experience, and which would not be open to challenge under anti-discrimination legislation, may in fact hide patterns of earlier discriminatory treatment which denied individuals with a disability the opportunity to gain the relevant skills. Employers therefore remain free to reject applicants with disabilities as lacking in skills or experience, even though these deficits may be connected with historical unfair treatment connected to an individual’s disability.
There is also a further negative consequence of disability policy inspired by the civil rights model. Since this model focuses exclusively on removing discrimination which has come to be associated with disability, it provides no grounds for continuing to provide preferential treatment to people with a disability who, even in the ideal non-discriminatory environment created by the transformation of this model into policy and fact, might be unable to take up employment. One probable and logical consequence would be that unemployed people with disabilities would receive the same financial support as unemployed non-disabled people. The result would be even more poverty amongst a group that is often subject to heavy medical expenses, little choice with regard to insurance, and various other economic disadvantages.
Given the continuing need for programs based on the social welfare model, the central challenge is to derive common principles that can form the basis of both civil rights and social welfare protections. Two such possibilities are discussed below.
A. Broadening Notions of Equality
One possible means of reconciling preexisting social welfare programs with the civil rights model is to reconceive such programs as part of a comprehensive civil rights policy. Such a reconception could be effected by broadening the concept of equality underpinning the civil rights model, so that it embraces key aspects of social welfare programs as well. While not wishing to venture too far into an investigation of the concept of equality, one can argue that anti-discrimination legislation is typically based on a narrow notion of equality of opportunity. This notion assumes that all job applicants have had an equal chance to prepare themselves before applying for the job, and that once all elements of discrimination are removed from the recruitment process, the best and most qualified person will be appointed. To use the well known analogy to a foot race, all competitors have an equal opportunity to prepare for and win the race. If one accepts this view, then no additional intervention is permitted to advantage any particular competitor, and the mission of civil rights law is simply to remove the element of discrimination from the calculus, so that members of disadvantaged groups receive the same treatment as others.
However, alternative views of equality, which are perhaps more realistic from the point of view of the situation of people with disabilities, also exist. Indeed, civil rights legislation that embraces the concept of reasonable accommodation draws on the idea that some adjustments in the workplace may be necessary in order to place people with disabilities on an equal footing. These requirements constitute a recognition that treating people the same does not always constitute equal treatment.[47] Reasonable accommodation requirements, however, reflect only a small expansion of the traditional civil rights model. Such requirements only compel employers to treat a disabled employee differently if the departure from what they would otherwise do does not imposes a significant burden or hardship. In a sense, the requirement mandates little more than a somewhat deeper consideration of whether an individual can really perform the critical functions of a job, thereby preventing employers from relying on reflexive judgments based on stereotypes and preconceived notions.
A broader understanding of equality which would allow for further intervention therefore seems necessary. Some of the problems and tensions identified in this paper might be capable of resolution if a broader notion of equality were accepted. This could take into account the history of disadvantage, and the lack of education, training and work experience that can be its result for some people with disabilities. These deficits hamper many individuals even when employers do not discriminate based on disability, and even when employers reasonably accommodate the impact of medical impairments.
Moreover, people with disabilities may encounter barriers to many public services and institutions that others in the labour market take advantage of routinely. For example, they may have limited access to housing and transportation, two vital prerequisites to work. Similarly, a broader notion of equality might recognize that reasonable accommodation requirements do not place many people with disabilities on an equal footing because the requirements fail to recognize or respond to the full range of restrictions caused by a physical of mental impairment, some of which may be very difficult or impossible to fully accommodate. The very concept of “reasonable accommodations” actually allows social institutions and structures to continue to be based on some fictional non-disabled “norm,” as long as minimal adaptions are made where necessary for specific individuals with a disability.
A notion of equality that takes into account the full range of disadvantages experienced by many people with disabilities would, of necessity, call for policies that extend far beyond traditional civil rights legislation and the notion of reasonable accommodation. Under this vision of equality, many advantages provided to people with disabilities appear not as a form of publicly mandated charity, but as pieces of a larger policy intended to move toward equality. Thus, benefits such as job training, income supplements and affirmative action requirements, may all be thought of as tools for overcoming or redressing the full range of disadvantages experienced by people with disabilities.
In Europe, such employment advantages are common vehicles for helping disadvantaged groups, and are not necessarily seen as problematic. European Community law specifically allows Member States to adopt certain forms of positive action to promote the employment of disadvantaged groups.[48] Canadian law goes even further. Under the Canadian Human Rights Act courts can order employers to adopt positive action programs in order to address systemic patterns of discrimination[49] and the Canadian Supreme Court has noted:
The goal [of the Canadian Human Rights Act] is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears.
…
When the theoretical roots of employment equity programs are exposed, it is readily apparent that, in attempting to combat systemic discrimination, it is essential to look to the past patterns of discrimination and to destroy those patterns in order to prevent the same type of discrimination in the future.[50]
Even quota systems could be reconceived to fit within the civil rights model of disability as long as the latter is based on a broadened concept of equality. Some American commentators,[51] for example, have argued for the adoption of numerical employment targets alongside the Americans with Disabilities Act. They argue that anti-discrimination legislation alone is insufficient to replace a long history of disadvantage and exclusion that has frequently resulted in educational and social deprivations that have long term effects on employment possibilities. Positive or affirmative action is therefore required in order to address the disadvantaged position of at least some people with disabilities on the labour market.[52] Seen in this light, quotas could be rendered compatible with the civil rights model of disability.
However, given the history and development of European quota policies, the task of reshaping them into civil rights instruments appears daunting. They have come to stand for the proposition that (some) workers with a disability are inferior and are unable to compete for jobs in the open labour market. Given the long-standing European experience, it is questionable if quota systems can be successfully re-envisioned as instruments of civil rights policy.
In contrast with Europe, broader visions of equality have proven extremely controversial in the U.S. The debate over affirmative action for racial minorities shows the deep ambivalence that Americans have toward broad views of equality. Indeed, even the reasonable accommodation requirement of the Americans with Disabilities Act has been harshly criticized as transforming a civil rights measure into a mandated benefits program.[53] Under this view, the reasonable accommodation requirement is seen as a social welfare program for people with disabilities whose costs have been foisted on employers. This perception may, in fact, contribute to the narrow and begrudging interpretations of the Act that have dominated in the courts.[54]
Nonetheless, recent policy initiatives in the United States have sought to draw connections between the disability benefit programs of the Social Security Act and policies designed to integrate people with disabilities into the work force. The recently enacted American Ticket to Work and Work Incentives Improvement Act of 1999 links older social welfare programs with the more recent legislative emphasis on inclusion in the work force. It can be seen as an effort to co-opt pre-existing components of the social welfare approach into the newer civil rights based model.
B. A New Synthesis – A Model of Social Justice
Just as broad notions of equality may defuse the tension between civil rights and social welfare based disability policies, broader thinking about social welfare also may permit a reconciliation of the two approaches. The traditional social welfare model relies on disability as a means of sorting individuals into categories based on judgments about their ability and obligation to work. The implicit purpose of this sorting is to compel people that are found to be not disabled to remain in the work force. At heart, the social welfare model rests on a deep rooted suspicion of the poor. Those found to be not disabled are excluded from the social welfare model, often harshly, as a means of enforcing the general obligation to work.
Re-examination of this basic assumption could have a major impact on disability policy. Absent this suspicion of the poor, social welfare policies could be reconceived to accord the poor both reasonable income assistance and a range of supports to help achieve entry and success in the job market. A different system could replace the idea of social welfare with a concept of social and economic rights. Under this framework, the benefits provided to people with disabilities would appear as simply one form of recognizing the right of each individual to economic security and full participation in society.[55] In such a system, the process of sorting people into and out of the disability category would be much less important as meaningful assistance would be available in either event. The provision of various forms of assistance to people with disabilities would not appear exceptional, as all individuals who face barriers to full economic and social participation in society would have a positive claim for assistance in overcoming such barriers. In sum, a system based on a broader notion of social justice that stressed the right of each individual to a basic income and opportunity for economic success would move social policy beyond the basic dichotomy between social welfare and civil rights based policies. Policies associated with the social welfare approach, such as income support programs, and those associated with the civil rights model, such as nondiscrimination legislation, would be complementary components of a larger set of economic and social rights that are grounded on principles of respect for human dignity.
Conclusion
In many countries disability policies have been layered on top of each other. As new ways of thinking about disability have gained ascendence, new policies have been adopted, frequently without the replacement or revision of preexisting approaches. The result is a confusing jumble of policies and instruments that often have failed to add up to a coherent whole. Further, this layering stems in part from the fact that the new policies do not fully address the needs met by the earlier policies and programs.
More specifically, in a number of countries anti-discrimination policies based on a civil rights model of disability have been superimposed on pre-existing income support and quota policies that are grounded on a social welfare view. The social welfare and civil rights models are based on very different , and in some respects conflicting, views about the difficulties that people with disabilities face in the labour market. The civil rights model, however, is too limited and restricted by itself to address all of the issues related to disability. Indeed, even with anti-discrimination laws in place, people with disabilities will continue to face distinct barriers that will make it far too early to simply close down all pre-existing programs based on the social welfare model. Reconciling policies based on the social welfare model with those based on the civil right model is therefore a central challenge in disability policy today.
We suggest two possible means of achieving this aim. First, by broadening the notion of equality beyond the scope of many nondiscrimination requirements, policies traditionally viewed in social welfare terms may be recast as aspects of civil rights policy. Second, the problem could be addressed by abandoning many of the premises of the social welfare model in favor of a social justice model that emphasizes the rights of each individual to participate fully in the economic and social mainstream of society. In such a system all individuals would be entitled to assistance to overcome barriers to equal participation, and any benefits accorded to people with disabilities would not appear as unusual or extraordinary. Such an approach would remove the emphasis on sorting and labeling that currently dominates the social welfare model and fuels many of its conflicts with the civil rights approach.
[1] Associate Professor in Law, Maastricht University, The Netherlands and Legal Adviser to the European Disability Forum. This article was written in a personal capacity. Work on this article was commenced in Maastricht and completed at the University of British Columbia, Vancouver, Canada. Lisa Waddington would like to thank the Faculty of Law at the University of British Columbia for hosting her during her sabbatical and the Human Rights Research School of Maastricht University for providing financial support for the duration of the sabbatical. Both authors are very grateful to DREDF for having taken the initiative in organising the conference “Principles to Practice” and to the financial backers of the Conference. We are particularly grateful to the conference participants whose helpful comments were of immense assistance in completing the paper.
[2] Professor, Fordham University School of Law.
[3] We recognize that similar advocacy efforts have been and are taking place in many other parts of the world, but numerous factors have influenced us to focus this paper on the geographic areas mentioned.
[4] One thinks of the campaigns to secure the adoption of the Americans with Disabilities Act of 1990, the inclusion of a general non-discrimination clause within the revised Treaty of the European Community (the Amsterdam Treaty) and the adoption of the British Disability Discrimination Act 1995.
[5] This trend is also notable in parts of Africa, Australia, South America and Asia.
[6] Matthew Diller, Entitlement & Exclusion: The Role of Disability in the Social Welfare System, 44 UCLA L. Rev. 361, 386-92 (1996).
[7] Id. at 393-94. When benefits are provided on harsh and punitive terms, these concerns may be more muted and the boundaries of the disability category may be less zealously guarded. Id.
[8] See Deborah A. Stone, The Disabled State (Philadelphia, Pa.: Temple University Press, 1984).
[9] Diller, supra note 4, at 388 (discussing the problematic role of causation in definitions of disability).
[10] See Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Times Books, 1993).
[11] See Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy (Philadelphia, Pa.: Temple University Press, 1984).
[12] See Matthew Diller, Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Disability Benefit Programs, 76 Texas L. Rev. 1003 (1998).
[13] Id.
[14] For histories of SSDI, see Edward Berkowitz, Disabled Policy: America’s Programs for the Handicapped (Cambridge; New York: Cambridge University Press, 1987); Matthew Diller, UCLA, supra note 4; Stone, supra note 6.
[15] SSDI is only available to individuals with a substantial work record who become disabled within five years of when they stop working. It thus envisions disability as an acquired status. The SSDI program has no means test.
[16] 42 U.S.C. §423(d).
[17] 42 U.S.C. § 423(d)(2)(A).
[18] The new law is discussed further infra., at the end of section IV. A.
[19] The ADA also prohibits discrimination against individuals perceived as disabled as well as those who satisfy the actual definition of disability.
[20] 42 U.S.C. 12101(a)(2).
[21] The List is set out in Part 404, Subpart P, App. 1 of the Social Security Act regulations: 20 C.F.R. §404.1520. Claimants who do not meet the terms of a Listing are not automatically denied benefits. Rather SSA then evaluates the impact of the individuals functional limitations in light of his or her age, education and work experience.
[22] See Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).
[23] The Scandinavian countries form an exception to this general rule.
[24] Madhav R. Kulkarni, Quota Systems and the Employment of the Handicapped. Experiences in three countries. University Center for Institutional Rehabilitation, (Michigan State University, undated), 10.
[25] This was the approach adopted in the United Kingdom.
[26] Portugal, the United Kingdom and the three Scandinavian Member States do not have a quota system.
[27] Such as Poland, see Law on Employment and Vocational Rehabilitation of Disabled People (consolidated text) (Dz. U. No 46, item 201) published in Disability: Problems and Solutions, Bulletin: Special Edition 1994 Centre for Europe Warsaw University, Information and Documentation Unit on the Council of Europe 8.
[28] For an example see the Dutch Handicapped Workers Employment Act of 1986 (WAGW). This Act has now been replaced by the Law on the (Re)Integration of the Work Disabled (REA). One could argue that the REA provides for an indirect quota, since employers whose workforce consists of at least 5 per cent of employees with a disability are exempted from paying certain social security premiums.
[29] For further information see Waddington’s commentary on the Dutch Handicapped Workers Employment Act of 1986 (WAGW) in, Legislating to Employ People with Disabilities: The European and American Way, 1(4) maastricht J. Eur. & Comp. Law, 367 (1994).
[30] The Disability Discrimination Act 1995, 1995, ch. 50.
[31] Law prohibiting Discrimination in Working Life on Grounds of Disability 1999, SFS 1999:132.
[32] Employment Equity Act 1998 and Equal Status Bill (revised) 1998.
[33] FIN. CONST. (731/1999), ch. II, s. 6.
[34] Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, O.J. 2000, L 303, p. 16.
[35] Article 5.
[36] Such targeted instruments were naturally also directed towards other groups (See e.g., International Convention on the Elimination of All Forms of Racial Discrimination (1965) and the Convention on the Elimination of All Forms of Discrimination against Women (1979)) – however, these other groups tended to also receive attention in universal instruments (for example, in the general non-discrimination / equality articles contained in the instruments), and the targeted instruments which were directed at them tended to have a higher legal status than the Declarations, Resolutions and Recommendations which addressed disability.
[37] Philip Alston, Disability and the International Covenant on Economic, Social and Cultural Rights in HUMAN RIGHTS AND DISABLED PERSONS: ESSAYS AND RELEVANT HUMAN RIGHTS INSTRUMENTS 94, 98 (Theresia Degener and Yolan Koster-Dreese eds.) (Dordrecht; Boston; London: Martinus Nijhoff Publishers, 1995).
[38] See for example, Article 1(a) of ILO Convention 111 Discrimination (Employment and Occupation), though Article 1(b) indicates that individual Member States can determine for themselves whether additional distinctions, exclusions or preferences may constitute discrimination within their own state.
[39] Resolution 1984/31, U.N. ESCOR 1984, Supp. No. 4, at 67, U.N. Doc. E/1984/14-E/CN.4/1984/77 (1984).
[40] Leandro Despouy, Human Rights and Disabled Persons, HUMAN RIGHTS STUDY SERIES 6 (New York: United Nations, 1993).
[41] Report on the Tenth and Eleventh Sessions, U.N. ESCOR, 1995, Supp. 2 [according to U.N. Doc. E/1995/22/Corr.1-E/C.12/1994/20/Corr.1 of 14 July 1995], at 99, U.N. Doc. E/1995/22- E/C.12/1994/20 (1995).
[42] In 1987, The 3rd Committee of the General Assembly considered the recommendations that had been made by the “Global Meeting of Experts to Review the Implementation of the World Programme of Action Concerning Disabled Persons at the Mid-Point of the United Nations Decade of Disabled Persons.” Among the recommendations was a proposal for an international convention on the elimination of all forms of discrimination against disabled persons. The Italian delegate raised and supported the possibility of such a convention (U.N. Doc. A/C.3/42/SR.16 (1987)), but numerous objections to such a convention were raised in subsequent meetings by various countries (ex., U.K. and Japan were concerned about financial implications, while Germany and the Nordic countries believed that the rights of disabled persons were protected by existing universal human rights documents such as the ICESCR – see U.N. Docs. A/C.3/42/SR.17 to A/C.3/42/SR/19). Eventually, the 3rd Committee adopted a resolution on disabled persons that did not recommend the drafting or implementation of a binding convention on eliminating discrimination against disabled persons (U.N. Doc. A/C.3/42/L.25). The possibility of a convention was raised again by Sweden in 1989, and once again failed to garner sufficient support, but this later initiative did lead to the eventual establishment of the Rules. See also Theresia Degener, Disabled Persons and Human Rights: The Legal Framework, in HUMAN RIGHTS AND DISABLED PERSONS 9, 12, supra note 35.
[43] Note however Preamble 14 to the Introduction of the Standard Rules which states that “[a]lthough the Rules are not compulsory, they can become international customary rules when they are applied by a great number of States with the intention of respecting a rule in international law.”
[44] Introduction, Preamble 19.
[45] 119 S.Ct. 2139 (1999).
[46] See Frederick C. Collignon, The Role of Reasonable Accommodation in Employing Disabled Persons in Private Industry, in DISABILITY AND THE LABOR MARKET: ECONOMIC PROBLEMS, POLICIES, AND PROGRAMS 196, 232 (Monroe Berkowitz & M. Anne Hill, eds,) (Ithaca, New York: ILR Press, 1986): Noting that “the principal correlates of failure in job finding for disabled individuals have fairly consistently turned out to be lack of past work experience and characteristics other than the type or severity of the disability itself such as the individual’s youth, poor education, or minority or female status”.
[47] See Matthew Diller, Judicial Backlash, The ADA & the Civil Rights Model, 21 BERKELEY J. EMPLOYMENT & LABOR 19 (2000).
[48] See Article 2(4) of Council Directive 76/207/EC of 9 February 1976 on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions, O.J. 1976, L39, p. 40; Article 7 of the Framework Employment Directive, supra note 32; and Article 5 of Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, O.J. 2000, L 80, p. 22. The latter Article for example reads: “With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin”.
[49] See Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.
[50] Id. at 1143, 1145.
[51] Mark Weber, Beyond the Americans with Disabilities Act: A National Employment Policy for People with Disabilities, 46 Buff. L. Rev. 123 (1998). Weber argues both for remedial affirmative action to overcome discrimination in the form of employment targets. He also argues for more rigid quotas modeled on European models, but does not view the quotas as a remedy for discrimination.
[52] Many of the arguments used to support affirmative action as a means of overcoming racial discrimination in the United States are readily applicable to the issue of disability. See Christopher Edley, Not all Black and White: Affirmative Action, Race and American Values (New York: Hill & Wang, 1996); Charles Lawrence & Mari Matsuda, We Won t Go Back: Making the Case for Affirmative Action (Boston: Houghton Mifflin, 1997).
[53] See, e.g., Sherwin Rosen, Disability Accommodation and the Labor Market, in DISABILITY AND WORK: INCENTIVES, RIGHTS, AND OPPORTUNITIES 18, 29 (Carolyn Weaver, ed.) (Washington, D.C.; Lanham, MD: AEI Press; Distributed by University Press of America, 1991).
[54] See Diller, BERKELEY, supra note 45.
[55] See Carlos Ball, Autonomy, Justice and Disability, 47 UCLA L. REV. 599, 644-648 (2000): arguing that fundamental respect for human autonomy requires provision of assistance to people with disabilities.