|
Russell, Marta. (2003). Backlash, the Political Economy and Structural
Exclusion. In Linda Krieger, (ed.), Backlash Against the Americans with
Disabilities Act: Reinterpreting Disability Rights: Corporealities, Discourses
of Disability. University of Michigan Press.
Backlash, the Political Economy, and Structural Exclusion
By Marta Russell
The Americans with Disabilities Act (ADA)1 is both a civil rights bill
passed by Congress with the intent of ending employer discrimination and
a labor economics bill, intended to increase the relative wages and employment
of disabled persons by “leveling the playing field.”2 However,
just as the Civil Rights Act of 1964 produced a backlash by those who
feared that minorities and women would take jobs away from whites and
men, the ADA has been subject to backlash by the public, our elected officials,
and the courts.
The most pronounced hostility toward the ADA has come from business. Of
course, one might not think of this as a “backlash,” given
that organized business interests opposed the act from the start. The
National Association of Manufacturers, the Chamber of Commerce, the American
Banking Association, and the National Federation of Independent Businesses
all publicly voiced opposition to the ADA.3 Ongoing resistance from business
interests is nonetheless significant, in that it exposes the economic
nature of opposition to effective ADA enforcement. The year the ADA was
signed, the Cato Institute, a Libertarian think tank, called on President
George Bush to ask Congress to reconsider the ADA, since from the standpoint
of free enterprise, it represented a re-regulation of the economy that,
in their view, was harmful to business.4 Paul Craig Roberts, a supply-side
economist at the Center for Strategic and International Studies in Washington,
warned on the day the Act was signed that “[the ADA] will add enormous
costs to businesses that will cut into their profits”.5 Rick Kahler
opined in a piece entitled “ADA Regulatory Black Hole” that
“the ADA make[s] getting out of business look more profitable all
the time,”6 while Trevor Armbristor wrote that the ADA “has
produced spectacular injustice and irrationality.”7 In 1995, the
director of regulatory studies at the Cato Institute wrote, “If
Congress is serious about lifting the regulatory burden from the economy,
it must consider major changes in, if not outright repeal of, the ADA.
And if Congress is to undo the damage already done by the act, it should
consider paying reparations to cover the costs that individuals, private
establishments, and enterprises have suffered under the ADA's provisions.”8
This paper explores the backlash against and hostility toward the ADA
by examining the relationship between politics, policy, and economics
- particularly with regard to the interests of business. I argue that
the backlash against the ADA is a product of capitalist opposition. This
opposition has not only stifled the many benefits that might have resulted
from effective ADA enforcement, it has promoted negative attitudes toward
the ADA among groups of workers who have become fearful that their own
interests will be jeopardized by the act’s employment provisions.
In making this argument, I claim that liberal policy proscriptions will
necessarily fail to create the conditions required to achieve economic
and social justice. Moreover, I argue, explanatory theories based in social
or economic liberalism cannot adequately account for this failure. To
account for the ADA backlash phenomenon, on must look to radical theory,
which analyzes the sociohistoric process of the political economy under
capitalism and asserts that capitalism cannot be directed toward social-ethical
ends.9 To effectuate economic and social justice, an economic system must
be redistributive and collectivist in nature. Discrimination in general,
and discrimination against disabled people in particular, will not be
eliminated until the economic system itself is changed.
The capitalist economic system, I will argue, is a crucial contributing
factor to a backlash against civil rights laws in general and the ADA
in particular, to the poor enforcement of those laws, and to the lack
of economic advancement of the various groups the laws aim to protect.
Despite an expanding U.S. economy, the neoliberal era has brought rising
inequality, a decline in workers’ standards of living, greater job
insecurity, and growing economic anxiety. Income and wealth disparities
are at their highest levels since the Great Depression. Poverty and hardship
remain a persistent blight on the American landscape. This paper will
detail how the structurally flawed political economy, sustained by a self-serving
decision-making class, perpetuates poverty, inequality, underemployment,
and systematic, compulsory unemployment. It will demonstrate that this
flawed economy, which does not provide for the material needs of all,
engenders divisions among groups of workers locked in intense competition
over a scarcity of decent paying jobs, health care, and shrinking benefits.
Lastly, it aims to delineate why a different approach is vital to remedying
the predicament in which we find ourselves.
Equal Opportunity Ideology and Persistent Wage and Employment Gaps
In the United States, civil rights laws have been enacted to remove obstacles
faced by subordinated groups, such as women, people of color, and disabled
people. Historically, such groups have experienced vast negative disparities
in pay, income, and employment opportunities.10 In the United States,
seventeen million working-age people are identified as disabled.11 The
ADA was enacted amid broad expectations that it would vastly increase
economic opportunities for disabled workers. To consider whether these
expectations were realistic at the outset, or are realistic today, it
is useful to examine whether more than thirty years of civil rights protection
has brought about similar income equality and economic parity for minorities
and women.
Women, minorities, and disabled persons have all experienced both employment
and wage discrimination, resulting in their confinement to the bottom
of the socioeconomic pyramid. Discrimination occurs when two groups of
workers with equal average productivity earn different average wages12
or have different levels of opportunity for employment. Poverty is disproportionate
among the fifty-four million Americans who have some level of disability.
Census Bureau data from 1997 estimates that 28 percent of those ages twenty-five
and older with severe disabilities lived in poverty, compared with 10
percent of those with disabilities considered not severe, and 8 percent
of people with no disability.13 A 1998 National Organization on Disability/Harris
Survey found that disabled persons are almost three times as likely as
non-disabled persons to live in households with total incomes of $15,000
or less (29 percent compared to 10 percent).14 Furthermore, the gap between
disabled and nondisabled persons living in very low income households
has remained virtually constant since 1986, four years before passage
of the ADA.15
But the NOD/Harris Survey annual income cutoff at $15,000 does not paint
a complete picture of the depth of poverty many disabled persons endure.
For example, since $759 is the average per month benefit that a disabled
worker received in 2000 from Social Security Disability Insurance (SSDI),
and $373 is the average federal income for the needs-based Supplemental
Security Income (SSI), the real income16 of persons on these programs
is more likely to be between $4,500 and $10,000 - far below the $15,000
mark.
Most analysts attribute these gaps largely to discrimination and seek
to provide a remedy based on “equal opportunity,” or equal
access (but not a right) to employment and pay. The Civil Rights Act of
1964,17 affirmative action requirements included in various federal regulatory
schemes, the Equal Pay Act of 1963,18 and the Americans with Disabilities
Act 19 were enacted eradicate sex, race, and disability discrimination
in wage-setting and employment procurement systems.
Yet what does the data show at the end of the century? The U.S. Census
Bureau’s Current Population Survey (March 1998) shows that the income
gap was altered for the black population between 1993 and 1997, when black
median family incomes rose from 57 to 61percent of white levels, and the
bottom 80% showed wage gains relative to the rest of the population.20
But the gap widened for Hispanic workers, who saw their median family
incomes fall from 69 to 60 percent of white levels between 1979 and 1997.21
Studies show that there were periods of substantial progress after passage
of the Civil Rights Act of 1964 and adjunct affirmative action programs,
leading to declining racial discrimination between 1965 and 1975.22 But
the movement toward racial equality stagnated and eventually weakened
after the mid-1970s.23 From 1972 (earliest year available) to 1999, the
unemployment rate for blacks has fluctuated between 7.1 percent and levels
as high as 21.7 percent of the population.24 During the same period, white
unemployment ranged from a high of 8.1 percent to a low of 3.3 percent,
while Hispanic unemployment ranged from 16.9 percent to 6.4 percent.25
Blacks and Hispanics continue to experience higher levels of unemployment
and receive lower wages than whites. While the median white worker earned
$19,393, the median black earned only $15,348 and the median Hispanic
even less, $13,150.26
Although the wage gap between men and women did shrink, this change cannot
be attributed to equal pay laws. Since 1973, much of the change in the
wage gap has resulted from the fall in men's real earnings; white and
black men's earnings have gradually moved down while white women's earnings
have gradually risen, exceeding the earnings of black men in 1991.27 The
U.S. Department of Labor reports that after the recession in the early
1990s, women’s earnings failed to show the steep gains exhibited
during the 1980s in comparison to wages earned by men.28 Young women workers
had come to within 95 percent of their male counterparts in 1993, helping
to narrow the overall gap significantly but by 1999, the ratio of young
women's earnings to young men's had slipped back to 92 percent.29 Narrow
or wide, the wage gap has persisted for over forty-five years, during
which Equal Pay laws were active for thirty six.30
Wage gap studies do not traditionally trace comparable data for disabled
people, but unpublished data from John McNeil of the Census Bureau suggest
a negative association between earnings and disability. In 1995, workers
with disabilities holding part time jobs (disabled persons are more likely
to work part time) earned on average only 72.4 percent of the amount non-disabled
workers earned annually.31 Such wage differentials were observed for disabled
persons working full time. Median monthly income for people with work
disabilities averaged about $1,511 and $1880 in 1995 - as much as 20 percent
less than the $1,737 to $2,356 earned by their counterparts without disabilities.32
Of greater significance is the chronic unemployment of disabled people.
Studies show that disabled persons experience lower labor force participation
rates, higher unemployment rates and higher part-time employment rates
than non-disabled persons.33 The US Current Population Survey suggests
that in 1998, only 30.4 percent of those disabled people between ages
16 and 64 were in the labor force, while 82.3 percent of same age non-disabled
persons were either employed or actively seeking work for pay.34 A 2000
NOD/Harris Survey found that only 32 percent of disabled people of working
age (18-64) work full or part-time compared to 81 percent of the non-disabled
population, a gap of forty-nine percentage points. More than two-thirds
of those not employed say they would prefer to be working.35
Material progress for women and minorities appears to be incremental at
best. Wage inequality among similarly skilled workers, vast income disparities,
wage gaps, and poverty persist. Thirty-plus years after passage of federal
anti-discrimination legislation, we can soundly conclude that, although
the Civil Rights Act of 1964 did make a difference in the extent of racial
and gender discrimination, neither civil rights laws nor affirmative action
programs have produced the conditions of complete economic equality desired
by employment rights advocates.36 Proponents of affirmative action say
only that, if affirmative action is eliminated, gains made will be eroded,
not that affirmative action has ushered in an era of economic parity for
minorities and women. Affirmative action has not proven to be a major
solution to poverty or a sufficient means of effectuating economic or
social equality.37
Though only ten years have passed since the passage of the ADA, there
is no reason to believe that disabled people will fare better post- ADA
than did women and minorities following the passage of civil rights laws
and affirmative action. The reasons are both similar and distinct.
Every redistributive measure, including civil rights laws, involves political
compromise between the public and the powerful interests of big business
and big government. The ADA in particular faces some extraordinary limitations
as a direct result of the political climate in which it was produced and
enacted.38 The philosophical momentum for social justice which spurred
the Civil Rights Act and subsequent progressive court decisions in the
1960s and 1970's was well into decline by the 1990s. For example, in the
era following passage of civil rights laws in 1957, 1960, 1964, and 1968,
the Republicans made dramatic inroads into Democratic victories that forged
the civil rights movement, established the Office of Economic Opportunity,
and initiated the War on Poverty during the Great Society. Presidents
Reagan and Bush dismantled the entire Community Services Administration,
responsible for driving much of the 1960s social change agenda by advancing
human services, occupational safety, consumer protection, and environmental
protection laws.39
On the way out were civil rights and economic entitlements, replaced by
a conservative thrust to reduce "big bad government." The dominant
agenda of the late 1970s and 1980s was bolstered by corporate goals which
emphasized globalization and political dominance of government.40 Increased
international capital mobility and liberalized international trade have
resulted in the transfer of more power to management, at the expense of
labor.41 Conservative forces targeted protective regulations for repeal
or rollback, which, in their view, interfered with business.42 Economic
policy in the post-1979 period moved decisively toward a more laissez-faire,
deregulated approach.43 Industries like transportation and communications
have been largely deregulated. Social protections, including safety, health,
and environmental regulations, the minimum wage, government transfer payments
(welfare), and the unemployment insurance system all have been weakened.44
The ADA was no exception. It was watered down substantially to achieve
Congressional consensus and Bush’s presidential approval in 1990.45
A 1997 comparative study between the pre-ADA state and federal disability
anti-discrimination laws shows that civil rights laws have not produced
the gains in employment rates, wage rates, or employment opportunities
for disabled people that advocates expected.46 One study suggests that
the proportion of working-age adults with disabilities who are employed
has declined since 1986, when one in three (34%) were working.47 Historical
disability employment data from Census data (1991 to 1997) show no statistically
meaningful changes.48 Another study suggests that while many Americans
reaped higher incomes from an economy that created a record number of
new jobs during seven years of continuous economic growth (1992-1998),
the employment rates of disabled men and women continued to fall so that
by 1998, they were still below the 1992 level.49
Efforts to advance the civil rights of disabled people are further hampered
by the absence of affirmative action programs for the disabled. Though
the extent to which affirmative action contributed to the gains made by
women and minorities remains controversial, there is little doubt that,
when accompanied by adequate enforcement, affirmative action requirements
have a positive impact.50 The absence of affirmative action programs for
disabled persons is particularly significant, given ADA plaintiffs’
overall lack of success in the courts. In the first eight years after
the ADA’s passage, defendant employers prevailed in ADA employment
cases over ninety percent of the time, at both the trial and appellate
court levels.51 Professor Ruth Colker of the Ohio State University College
of Law states that this pattern of outcomes is “worse than results
found in comparable areas of the law; only prisoner rights cases fare
as poorly.”52
For true equality to be achieved, all forms of bias must be eradicated.
Aside from the traditional biases or social influences that determine
one’s access to social goods, such as where one was educated, one’s
family economic status, and the environment in which one was raised,52
disabled workers (as distinct from women and minorities) face economic
bias and labor market discrimination due to business accounting practices,
which weigh standard (non-disabled) costs of labor against nonstandard
(disabled) costs of labor. Such business accounting calculations foreshadow
the continuation of a gap in pay and employment opportunities for disabled
individuals.
Despite over thirty years of liberal reform through federal equal opportunity
laws, substantial race, gender, and disability-based inequities remain
in the American labor economy. Both racial and gender employment and earnings
inequalities have diminished since the enactment of civil rights legislation
in the 1960s, but such reductions have been uneven, incomplete and unstable.53
On balance, the extent of inequality suffered by women, people of color
and disabled persons can be viewed as a measure of the political success
of liberal ideology, where the activities of the courts and government
enforcement agencies either serve to advance or to roll back formal legal
rules promoting equality.
Competition: Labor Market and Structural Inequality
Mainstream economists commonly explain inequality of wages and employment
opportunities between races and genders in two ways. First, individual
workers differ with respect to productivity-linked characteristics. The
resulting condition is referred to as a human capital gap. Second, workers
experience differences in treatment due to discrimination. The dominant
or human capital view holds that individuals exhibit skill and educational
differences due to skill-biased technological changes. These differences,
the account proceeds, cause the widening gap in pay. By increasing education
and technological training, these differentials will be overcome.54
Neo-classical supply and demand models posit that the labor market will
equalize pay and employment differentials. Pay inequality is explained
as a natural result of the spread of information technologies (the computer
revolution), which creates differences in marketable skills. Those best
trained in these new fields reap the benefits in pay from the transformation
in the workplace, while those without such training fall behind.55 Supply
and demand theory asserts that this result obtains because the pressures
of the marketplace, what Adam Smith called the “invisible hand,”
direct the activities of individuals, and serve as a self-regulating mechanism
for wages, prices, and production. In practice, the demand for workers
trained in technological fields will encourage more workers to seek such
training, eventually equalizing wage differentials over the long run.
In direct contradiction to this neo-classical model, a substantial body
of research challenges the notion that differences in human capital, quality
of education, and years of work experience can adequately explain the
wage differentials and employment patterns that remain prominent in the
economy.57 For instance, research by economists Jared Bernstein and Lawrence
Mishel shows that skill-biased technological change cannot account for
existing wage disparities. Throughout the 1990s, average starting wages
for college graduates, the most technically advanced and computer-literate
workers in the labor market, fell by 7 percent.58 New engineers and computer
scientists were offered 11 percent and 8 percent less respectively in
1997 than their counterparts received entering the market in 1989.59 This
flatly contradicts claims that more education and skill training will
equalize pay differentials. Furthermore, productivity rates, which should
be exploding if the computer revolution were generating huge returns for
high-tech skills, grew no faster in the 1990s than in the 1980s.60 Economists
James Galbraith, Claudia Goldin and Lawrence Katz show that a readjustment
of incomes to a wider and more equal distribution of skill levels for
the overall workforce failed to happen in the past and is not happening
in today’s economy.61
Competitive market forces obviously did not eliminate discriminatory practices
in the decades leading up to the passage of the Civil Rights Act of 1964.62
In fact, discrimination managed to sustain itself, both in the U.S. and
elsewhere, for generations at a time.63 Research by Martin Carnoy concludes
that while blacks narrowed the educational gap separating them from whites,
they slid further behind in average earnings.63
Some analysts attribute inequality not to individual ineptitude but in
large measure to labor segregation. Estimates of the hard figures on inequality
by James L. Westrich, of the Massachusetts Institute for Social and Economic
Research show that there is a hierarchical division of labor within the
labor force. For example, women are numerous at the bottom of the economic
pyramid and scarce at the top: while 23.7 percent of women earn less than
$10,000 (a result of both low pay and part-time status), just 12.8 percent
of men earn so little. While 58.7 percent of women earn under $23,000,
only 36.3 percent of men do; and 9.9 percent of men earn over $75,000,
compared to only 2.6 percent of women.64
A study by Donald Tomaskovic-Devy for the U.S. Department of Labor’s
Glass Ceiling Commission at Cornell University found that while part of
the wage gap results from differences in education, experience, or time
in the workforce, a significant portion can not be explained by any of
those factors.65 His findings revealed that differences in human capital,
investments in education and training by individuals explain a small proportion
of the gender gap and about a third of race/ethnic earnings inequalities,
but that substantial earnings inequalities are not a function of gender
or race/ethnic differences in education, labor market experience or firm
tenure.66 Instead, these gaps are attributable to the social division
of labor, a systematic underpayment and occupational segregation of people
because of their sex or race.67
Tomaskovic-Devy shows that “not only is there racial and gender
discrimination against individuals, but as a result of employment segregation,
jobs that become associated with particular racial or gender categories
tend to be organizationally stereotyped and valued accordingly.”69
As jobs become stereotypically female or minority, there is a tendency
in many workplaces to provide lower wages and less opportunity for skill
training and promotions. He concludes that the confinement of “many
women of all ethnic backgrounds and minority men to lower quality jobs
than they can perform” is a direct cause of gender and race/ethnic
earnings inequalities.69
Economist James Galbraith challenges the theory that people are, in fact,
paid in proportion to the value of what they produce. Galbraith shows
that power, and particularly market or monopoly power, changes with the
general level of demand, the rate of growth, and the rate of unemployment.70
He explains that “in periods of high employment, the weak gain ground
on the strong; in periods of high unemployment, the strong gain ground
on the weak.”71 In this view, inequality is a product of differential
power, rather than differential skill. This concept is consistent with
Adam Smith who observed that “masters [capitalists] are always and
every where in a sort of tacit, but constant and uniform combination,
not to raise the wages of labour above their actual rate.”72 Smith
keenly perceived the tendency towards monopoly power of capital, writing
that “masters too sometimes enter into particular combinations to
sink the wages of labour even below this rate.”73 Smith understood
capitalists generally to have greater power over wages than workers, but
saw that the relationship changes with the employment rate. For example,
Smith asserts that “the scarcity of hands occasions a competition
among masters, who bid against one another in order to get workmen, and
thus voluntarily break through the natural combination of masters to not
raise wages.”74 A shortage of labor forces capitalists to raise
wages.
Marxist economic theory provides further insight. Marx’s theory
of surplus value posits that profit lies in the ability of capitalists
to pay less for labor power than the actual value the worker will impart
to the commodities they help to produce.75 Profit, as such, essentially
resides in underpaid labor. Marx defines competition as a tendency toward
equalization of profit margins, leading to monopolies as the consequence
of competition rather than its antithesis.76
Marxist interpretations link economic competition to discrimination in
the work place. As economists William Darity and Patrick Mason explain
“race and gender exclusion are used to make some workers less competitive
for the higher paying positions. This approach emphasizes that the major
elements for the persistence of discrimination are racial or gender differences
in the access to better paying jobs within and between occupations.”77
Racial inequality, then, can be traced to the economic system that generates
it.78
Disabled persons encounter similar power differentials in the labor market.
Richard Epstein, a leading economist in the Law and Economics school,
admits that disabled persons “have been subject to unfair treatment
in the marketplace” but holds that this is due to government interference
with the control of their labor in the competitive process.79 Epstein
argues that, “the disabled should be allowed to sell their labor
at whatever price, and on whatever terms, they see fit” and sees
the free market as the appropriate mechanism. He states that, “the
minimum wage laws and various kinds of ostensible safety and health regulations
can impose a greater burden on them [disabled persons] than on others.
Repeal those laws as well.”80 Epstein believes that in a deregulated,
competitive market, disabled peoples’ labor would fall below minimum
wage because it is worth less.
This idea is not novel. Section 504 of the Rehabilitation Act of 1973
provided that federally-financed institutions are required to pay a "fair"
or “commensurate” wage to disabled workers, but under the
Act, employers are not required to meet even minimum wage standards.81
The traditional sheltered workshop is the prototype for below-minimum
wage work for disabled persons. The sheltered workshop model is based
on the notion that disabled workers are not able to keep up with the average
widget sorter. Under federal law, any nonprofit employer is allowed to
pay a sub-minimum wage to disabled employees, so long as the employer
can show that the disabled worker has "reduced productive capacity."82
Republican legislator Scott Baugh latched onto the sub-minimum wage concept
for disabled workers by drafting legislation in 1996 that would allow
employers to hire disabled workers at a "special minimum wage"
without the minimal and very subjective "protection" of having
to show that the prospective employee is "less productive" than
a non-disabled one.83 Any disabled person could be considered "less
productive," and theoretically, a sub-minimum wage or wage below
non-disabled in any pay category could be used to lower the wage floor,
while women and minorities are used to hold it down.
In the neo-classical view, markets are efficient, ethical generators and
distributors of wealth. According to this theory, blame for the wage gap
falls on the individual worker himself. If one fails to keep up with changes
in the economy, the argument goes, it is because of his or her shortcoming
rather than the functioning of the labor market. If a worker is less productive,
it is her fault, and she does not deserve a minimum wage (and certainly
not a living wage) for her labor. A materialist analysis, in contrast,
posits that the labor market is a social construct, where marginalization
of certain groups works to the advantage of the business class.
In the next three segments, I will examine some structural mechanisms
that permit or encourage discriminatory practices. Specifically, I explore
how “disability” is socially created, that is, how workers
with disabilities are made less competitive by capitalist business practices,
how the capitalist system reproduces unemployment, and how workers competing
in such a labor market are pitted against one another in ways that undermine
the collective power of labor.
The Business Backlash, Labor and Profits
Two years after the ADA was signed into law, economist Richard Epstein
devoted an entire chapter of his neoclassical analysis, Forbidden Grounds,
to opposing the concept of civil rights for disabled persons.84 Starting
from the premise that the ADA constitutes redistributive interference
with the market, he concludes that the ADA should be repealed.85 Epstein’s
sentiments echo those emanating from the business sector at large.
In a report on the performance of the Equal Employment Opportunity Commission,
charged with enforcing ADA Title I, which prohibits discrimination in
employment, the U.S. Civil Rights Commission concludes that enforcement
of the ADA has fallen short in several important areas. 86 The Commission’s
explanations for the difficulties include high workloads, insufficient
resources, huge backlogs of cases, lack of staffing, failure to monitor
underling agencies and lack of policy clarification of heavily disputed
clauses in the ADA. The Commission also pointed out that successful implementation
has been inconsistent and in some instances, elusive.
A 1998 study by the American Bar Association’s Commission on Mental
and Physical Disability Law shows that disabled workers bringing discrimination
suits are unlikely to succeed in court. Of the more than 1,200 cases filed
under Title I of the ADA since 1992, employers prevailed 92% of the time.87
By 2000 employers prevailed more than 95% of the time.88 Another study
by Law Professor Ruth Colker shows similar results, finding that employers
successfully defend more than 93% of reported ADA employment discrimination
cases at the trial court level and succeed in 84% of cases appealed.89
The U.S. Civil Rights Commission reports that one of the most persistent
criticisms of the ADA has been that employers are forced to pay too high
a price to comply with the statute’s employment provisions.90 While
it is clear that disabled workers should not be denied civil rights simply
because employers may incur costs while attempting to comply with the
ADA, business objections are informative and reveal labor market mechanisms
endemic to capitalism. Business practices demonstrate that the economic
structure does generate obstacles to the employment of disabled people.
Equal opportunity law has failed in this aspect to provide a sufficient
remedy for economic discrimination.
The goal of business is to make a profit. The basis of capitalist accumulation
is the business use of surplus labor, extracted from the work force of
skilled labor in a way which generates profits.91 Typical business accounting
practices weigh the costs of employment against the profits to be made.
Productive labor, or exploitation of labor, means simply that labor is
used to generate a surplus value based on what business can gain from
the worker productivity against what it pays in wages, health care, and
benefits (the standard costs of having an employee).92 The surplus-value
created in production is then appropriated by the capitalist.93 The worker
receives wages, which in theory cover socially necessary labor, or what
it takes to reproduce labor-power every working day.94
Operating within this system, an employer will resist any operation cost
that is viewed as extraordinary or nonstandard. From a business perspective,
the hiring or retaining of a disabled employee represents nonstandard
additional costs when calculated against a company’s bottom line.
Epstein endorses this view, stating that the employment provisions of
the ADA constitute a disguised subsidy”95 and that “successful
enforcement under the guise of ‘reasonable accommodation’
necessarily impedes the operation and efficiency of firms.”96
Whether real or perceived in any given instance, employers continue to
express concerns about increased costs in the form of providing reasonable
accommodations,97 anticipate extra administration costs when hiring nonstandard
workers, and speculate that a disabled employee may increase worker’s
compensation costs in the future.98 Employers, if they provide health
care insurance at all,99 anticipate elevated premium costs for disabled
workers.100 Insurance companies and managed care health networks often
exempt “pre-existing” conditions from coverage, or make other
coverage exclusions based on chronic conditions, charging extremely high
premiums for the person with a history of such health care needs.101 Employers,
in turn, tend to look for ways to avoid providing coverage to cut costs.102
In addition, employers characteristically assume that they will encounter
increased liability103 and lowered productivity from a disabled worker.104
Prejudice-based disability discrimination, stemming from employer assumptions
that a disabled person cannot do the job or from a generalized aversion
to hiring a blind, deaf, mobility or otherwise impaired person, undoubtedly
contributes to the high unemployment rate of disabled people.105 Disabled
workers, however, also face inherent economic discrimination within the
capitalist system, stemming from employers’ expectations of encountering
additional nonstandard production costs when hiring a disabled worker
as opposed to hiring a worker with no need for accommodation in the form
of interpreters, environmental modifications, or readers, extra liability
insurance, maximum health care coverage (inclusive of attendant services)
or even health care coverage at all.
Using this analysis, the prevailing rate of exploitation determines who
is "disabled" and who is not. Disability thus represents a social
creation, which defines who is offered a job and who is not. An employee
who is too “costly” (significantly disabled) will not likely
become (or remain) an employee at all. Census data tends to support his
view. For working-age persons with no disability, the likelihood of having
a job is 82.1%.106 For people with a non-severe disability, the rate is
76.9%. The rate drops to 26.1% for those with a significant disability.107
In today’s highly competitive business climate, it can fairly be
asserted that business managers and owners will not cut into their profits
for moral, noble or socially just purposes in order to lower the disabled
unemployment rate.
In liberal capitalist economies, redistributionist laws which, if enforced,
will cost business, are necessarily in tension with business interests,
which resist such cost-shifting burdens. Writing for the 7th Circuit in
1995, Judge Richard Posner relates the business schematic of cost/benefit
analysis to the ADA:
If the nation's employers have potentially unlimited financial obligations
to 43 million disabled persons, the Americans with Disabilities Act will
have imposed an indirect tax potentially greater than the national debt.
We do not find an intention to bring about such a radical result in either
the language of the Act or its history. The preamble actually "markets"
the Act as a cost saver, pointing to "billions of dollars in unnecessary
expenses resulting from dependency and nonproductivity." ß12101(a)(9).
The savings will be illusory if employers are required to expend many
more billions in accommodation than will be saved by enabling disabled
people to work.108
Civil rights laws traditionally demand equal treatment. In the case of
employment and disability, however, civil rights laws, operating within
a capitalist paradigm, envision equal treatment, while failing to acknowledge
the full nature and extent of economic discrimination. This fatal oversight
ensures that laws such as the ADA will fall short of accomplishing their
employment-related goals. For equal opportunity to be truly equal, biases
(including economic biases) must be eradicated. A government committed
to providing such opportunities could “level the playing field”
to compensate for economic discrimination by employers. It could ensure
ongoing health care for disabled persons (preferably within a disability
sensitive universal health care system not linked to employment status),
subsidize job accommodations, and allow other subsidies to reimburse businesses
that hire or retain employees with disabilities. Government enactment
of severe and immediate penalties on employers (including government employers)
who balk at providing job accommodations in a timely manner could serve
as a backup measure to further advance disabled workers’ access
to jobs.
There exist strong ideological tensions between laws that grant subsidies
and civil rights based remedies, which legally mandate that employers
comply with anti-discrimination principles. Under the ADA, employers are
required to provide access and accommodations as a matter of individual
right.109 By contrast, subsidies provide a government offset to business
costs based on the notion that it is in the government’s (and society’s)
interest to see that disabled persons are employed. Disability rights
groups and activists (myself included) have favored the civil rights approach
over subsidies, but given the economic discrimination inherent in capitalism,
can we afford to remain fixed in our belief that civil rights will provide
timely relief for those disabled persons seeking employment redress in
the courts? Will the courts initiate an economic revolution that forces
employers to provide accommodations?
So far, disabled plaintiffs have faced great difficulty prevailing in
court on key issues. The U.S. Commission on Civil Rights notes that many
disability experts ascribe the problem in judicial and administrative
confusion over interpretation of Title I’s provisions.110 Legal
and policy experts within the disability rights movement have observed
that ADA enforcement is proving problematic. Arlene Mayerson, an attorney
with the Disability Rights Education and Defense Fund, characterizes ADA
case law as “hyper technical, often illogical interpretations of
the ADA” which have generated a “disturbing trend” of
court precedents.111
Robert Burgdorf, Jr., one of the ADA’s drafters, concludes that
“legal analysis has proceeded quite a way down the wrong road.”112
Burgdorf points to a judicial tendency to view ADA plaintiffs as seeking
special benefits and treatment instead of equal rights.113 Whatever the
reasons for this judicial backlash, courts are clearly thwarting Congressional
intent by turning away disabled persons who seek judicial remedies. The
interests of business and conservative, anti-regulatory factions appear
to have the upper hand.
It is reasonable to view consistently negative court outcomes as an extension
of the business backlash against the ADA. The American Bar Association’s
Commission on Mental and Physical Disability Law reports that, while employers
have complained the most of unfair treatment under the ADA, “the
facts strongly suggest the opposite: employees are treated unfairly under
the Act due to myriad legal technicalities that more often than not prevent
the issue of employment discrimination from ever being considered on the
merits.”114 Ruth Colker concludes that the courts are deploying
strategies that result in “markedly pro-defendant outcomes under
the ADA” by “abusing the summary judgment device.” In
other words, judges are making decisions that should be made by a jury.
115 This, Colker explains, results in pro-employer outcomes because juries,
traditionally more hospitable to civil rights, are not deciding the cases.116
Legitimate claims are systematically being thwarted, as medical conditions
found not to constitute “disabilities” within the meaning
of the ADA, and as courts fail to understand how the concept of equality
maps onto the problem of disablement and the provision of reasonable accommodations.
Workers pay a heavy personal price when employers contest disablement
or refuse badly needed access modifications, reasonable accommodations
and/or removal of work barriers, and choose instead to put up a fight
in court. When, for example, an employee cannot work without an accommodation
and the employer does not readily provide one, the worker is often unable
to perform her job, and is fired.117 Common sense would dictate that when
the worker has a protracted court battle ahead of her to enforce her right
to an accommodation but no paycheck in the mail, the last practical resort
is to go onto disability benefits. Yet frequently, employers use a worker’s
application for disability benefits to undermine discrimination cases
against them. Under the Social Security Administrationís (SSA)
definition of disablement, a worker is qualified for benefits if he/she
cannot work; SSA does not consider whether the employee could continue
to work if the employer provided a reasonable accommodation. The employer,
contesting the worker’s discrimination suit, holds that if the worker
claims he or she cannot work for purposes of claiming disability benefits,
he or she is not qualified within the meaning of the ADA.118
In the spring of 1999, this issue was brought before the Supreme Court
in Cleveland v. Policy Management. Systems Corp.119 There, the plaintiff
became disabled, asked for but was denied a reasonable accommodation,
then lost her job due to failure to perform. The plaintiff subsequently
successfully applied for Social Security disability benefits. The plaintiff
sued the employer for failure to comply with the ADA. The Supreme Court
granted certiorari to decide:
“whether an ADA plaintiff 's representation to the [Social Security
Administration] that she was ëtotally disabledí created a
rebuttable presumption sufficient to judicially estop her later representation
that, for the time in question, with reasonable accommodation, she could
perform the essential functions of her job.”120
The justices ruled in Cleveland that application for and receipt of SSDI
benefits does not automatically estop a recipient from pursuing an ADA
claim or erect a strong presumption against the recipient's ADA success.
However, it held that to survive a summary judgment motion an ADA plaintiff
cannot ignore her SSDI contention that she was too disabled to work, but
must explain why that contention is consistent with her ADA claim that
she can perform the essential functions of her job, at least with reasonable
accommodation.121 Under this holding, therefore, both parties will have
the opportunity to present or contest the plaintiffís explanation.
Furthermore, a plaintiff may argue that her SSDI statement of total disability
was made in a forum that does not consider the effect that a reasonable
workplace accommodation would have on ability to work. She may also argue
that statements were reliable at the time they were made.122
If Cleveland was a step forward, the Supreme Court took a few steps back
with its rulings in the next four ADA employment cases: Sutton v. United
Airlines, 123 Murphy v. United Parcel Service,124 Albertsonís v.
Kirkingburg125 and Trustees of the University of Alabama v. Garrett.126
At issue in the first three cases was the meaning of disability under
the ADA, and in the last, whether workers can file employment discrimination
suits for damages against state governments under ADA’s Title I.
Significantly narrowing the scope of the law in the first three cases,
the Court ruled that correctable physical limitations (such as monocular
vision, nearsightedness, or high blood pressure) do not qualify as disabilities
under the ADA and do not entitle plaintiffs to sue under Title I, regardless
of whether they were fired because of such conditions. The Court distinguished
between workers whose disabilities can be mitigated through corrective
equipment or medicine and those workers whose disabilities cannot.
But what does “mitigated” imply? The dissenting Justices in
Sutton did not overlook the possibility that the majority’s opinion
in that case could be read to include the very people the Court maintained
that the ADA protected.127 Joined by Justice Breyer, Justice Stevens suggested
that under the majority’s ruling, the Act would not even protect
people who had lost limbs in industrial accidents or while in armed service
to their country. He pointed out that
“[w]ith the aid of prostheses, coupled with courageous determination
and physical therapy, many of these hardy individuals can perform all
of their major life activities just as efficiently as an average couch
potato . . . [but] [i]f the Act were just concerned with their present
ability to participate in society, many of these individuals’ physical
impairments would not be viewed as disabilities . . . [and] many of these
individuals would lack statutory protection from discrimination based
on their prostheses.” 127
The dissenters accused the Court of making the ADA's safeguards “vanish
when individuals make themselves more employable by ascertaining ways
to overcome their physical or mental limitations,” adding that "many
of these individuals would lack statutory protection from discrimination
based on their prostheses.” 128
Indeed, the majority opinion in Sutton presents workers with an exasperating
Catch-22. If one is not disabled because one’s condition is “correctable”
with medication, wheelchairs, prostheses, hearing aids, insulin, etc.,
how can one expect to receive a reasonable accommodation which depends
on being defined as “disabled”? Yet employers can continue
to fire workers because of performance limitations caused by such unaccomodated
“non-disabilities.” Additionally, employers may still conclude
that a person is too disabled to work, even though under the law they
are not disabled enough to be protected by the ADA. Here is the Catch-22
for ADA plaintiffs: if one is disabled enough to sue, one is too disabled
to work. If one is not too disabled to work, one does not have a disability
within the meaning of the ADA and is denied statutory protection from
discrimination.
The National Chamber of Commerce Litigation Center called the decision
“an incredibly significant victory for the business community."
Business groups filing amicus curie briefs urged the Court to consider
“the impact its decision in this case may have beyond the immediate
concerns of the parties to the case.”130 The National Association
of Manufacturers asserted that, “like sexual harassment last year,
disability discrimination is the major employment law issue on the Supreme
Court’s docket this year. Manufacturers should not be forced to
pay damages, including punitive damages, to individuals who can lead normal
lives with medication or corrective lenses.”131 The American Trucking
Association and the Equal Employment Advisory Council (a nonprofit association
made up of more than 315 major companies) joined the amicus brief.
By far, the ruling that most clearly reveals where the Supreme Court conservative
majority stands of a disabled person’s right to be treated equally
under the 14th Amendment’s Equal Protection Clause is University
of Alabama v. Garrett, decided in the early months of 2001.132 Usurping
Congressional authority to address and provide remedies for discrimination,
the Court in Garrett barred state employees from suing a state for damages
for disability discrimination in employment. After Garrett, states are
immune to private civil actions seeking damages for disability discrimination
under ADA, Title I.
Refusing to defer to Congressional judgment that a state pattern of employment
discrimination against the disabled population in fact existed, the Garrett
Court found the ADA’s employment provision unconstitutional, as
an abridgment of the State of Alabama’s right to sovereign immunity
under the 11th Amendment. The Court’s majority opinion, which completely
avoids any consideration of the merits of the plaintiff’s claim
against the State, held that whatever state discrimination did exist did
not meet the test of being “irrational,” and the remedy provided
by Congress, suits for damages, was not proportional to the harm such
discrimination inflicts.
In so holding, the Court elevates institutional economic concerns over
an individual’s civil rights. Though the Court suggests that disabled
workers still have a remedy through injunctive relief,133 if the Court’s
logic is followed, injunctive relief may not be worth much to the disabled
State worker. There is no Constitutional right of action under the 14th
Amendment’s Equal Protection Clause for "rational" disability
discrimination. If disability discrimination is economically rational,
excluding disabled people from state employment could be used to save
funds that would otherwise be spent to modify state facilities. The Garret
majority wrote “it would be entirely rational (and therefore constitutional)
for a state employer to conserve scarce financial resources by hiring
employees who are able to use existing facilities, the ADA requires employers
to “mak[e] existing facilities used by employees readily accessible
to and usable by individuals with disabilities.”
Further, the Garrett majority questions the Constitutional foundation
for Congress having provided disabled workers a remedy under the ADA ís
“reasonable accommodation” provision. Writes Justice Rehnquist:
The ADA does except employers from the "reasonable accommodation"
requirement where the employer can demonstrate that accommodation would
impose an “undue hardship” upon it, Section 12112( b)( 5)(
A), but, even with this exception, the accommodation duty far exceeds
what is constitutionally required.134
Since Congress specifically found substantial discrimination against disabled
persons “costs the United States billions of dollars in unnecessary
expenses resulting from dependency and nonproductivity”135 and sought
through the ADA to reduce unnecessary dependency and unrealized productivity,
the Garrett decision stands at direct odds with Congressional intent.
Garrett not only weakens the disabled worker’s position in securing
or retaining state employment, it also opens the door to private-sector
employer challenges to the ADA. This illustrates the contradiction that
disablement exposes in capitalism: the same decision making class which
desires to end disability “dependency,” as they define it,
does not want to do what it takes to bring disabled people into the workforce.
The governing elite cannot offer solutions to the problem in anything
but the liberal terms of equal rights, but in capitalist economies, redistributionist
laws like the ADA run head on into conservative cost/efficiency rationales.
The Garrett decision amplifies the political economy of disability anti-discrimination
legislation and raises substantial concerns about this conservative Supreme
Court’s political agenda. Justice Breyer underscores the political
issues, stating “The Court . . . improperly invades a power that
the Constitution assigns to Congress.”136 The Court seems to have
adopted a careful incremental approach to returning the nation to the
Lochner era, when no legislation could be passed which would actually
constrain corporate power or fight discrimination. The 5-4 majority is
steeped in core conservative economic cost/efficiency theory and intent
upon undoing existing legislation as it relates to the 14th Amendment’s
Equal Protection Clause. The evidence: the weakening of the ADA in Garrett,
Sutton, Murphy and Albertson’s discussed here; the striking down
of the Age Discrimination Act in Kimel v. Florida;137 and the invalidation
of the Violence Against Women’s Act in United States v. Morrison.138
The favoritism the Court exhibits towards employers is also evident in
Circuit City Stores, Inc. v. Adams 139 which held that workers have no
right to sue for on-the-job discrimination and harassment if the employer
includes a boilerplate arbitration provision in the employment application.
The decision, in effect, assigns private lawsuits to compulsory arbitration,
removing the worker’s right to a jury trial. The present political
reality underscores the dangers of relying on legislative remedies to
assure social and economic justice, when they are subject to conservative
court intervention. In contrast to fifty some years ago, the current Supreme
Court can not be relied upon to be the main guarantor of liberal rights.
For these reasons, greater non-judiciary government intervention in this
precarious period is not only justified but essential to achieve positive
outcomes for workers with disabilities. Government provision of ongoing
health care, reasonable accommodation costs, and other subsidies would
remove some of the added cost from the employer’s calculus when
deciding to hire or retain disabled workers. Successful intervention promises
to lessen the burden on disabled workers otherwise forced to litigate
in courts that are hostile to the rights of disabled individuals. Mandated
Affirmative Action as a follow up to the ADA seems ever more necessary
to change the present course.
However, these proposals come with two qualifiers. First, such reforms
would, at most constitute stop-gap measures, which, could yield more job
placement for disabled persons in the short run, as the next segments
will show, cannot alone significantly affect disability unemployment in
the overall labor economy. Second, subsidies risk augmenting acrimony
and division within the labor force.
The Job Gap: Compulsory Unemployment
Traditionally, disabled people have been placed in that unemployable category
of people James O’Connor refers to as the “surplus population,”
irrelevant to the current political/economic system140 Now that more disabled
people can work, provided that economic employment disincentives and Social
Security work penalties are removed and adequate quality health care made
available, there exists the potential for many to join what Marx calls
the “reserve army of labor.”141 This includes the official
unemployed and all those parts of the population, whether part of the
work force at a given time or not, who might become part of the work force
if the demand for them grew. The surplus population and reserve army overlap;
the slums of Mexico City are part of the U.S. reserve army of labor -
and they are also a surplus population.
The liberal notion of "equal opportunity" presents the illusion
that it can resolve the unemployment issue; if civil rights can rid the
world of discrimination then everyone can get a job, work hard, and make
it to the top. But the American capitalist paradigm creates the reserve
army of labor and the surplus population by design, leaving large numbers
of people unemployed and in poverty. Economists believe that a threshold
of unemployment is necessary to avoid inflation and maintain the health
of the American economy. Nobel laureate William Vickrey, in his presidential
address to the American Economics Association in 1993, called this "one
of the most vicious euphemisms ever coined, " the so-called 'natural'
unemployment rate."142
The theory of a natural rate of unemployment, or nonaccelerating inflation
rate of unemployment (NAIRU) has dominated macroeconomics for nearly 25
years.143 Its effects can also be observed on Wall Street. When news of
the creation of 705,000 jobs in February 1996 hit the press, the Dow Jones
industrial average tumbled 3 percent in a matter of hours.144 The Wall
Street Journal clarified matters, explaining that "fears that employment
data will confirm that the economy is growing at a faster rate than central
bankers find acceptable continue to weigh on the market ..."145
The number of people affected by the “natural unemployment rate”
must be made a significant part of the discussion about unemployment.
The Bureau of Labor Statistics puts official unemployment at 5.5 million
(2000),146 but another 3.1 million people work part-time when they would
rather have a full time job, and 4.4 million who need jobs are omitted
from the analysis entirely because they gave up looking for work and are
therefore, not counted. 147 The real jobless rate is closer to 13 million
or 8.9 percent of the population -- more than twice the official rate.148
How many disabled persons are poised to join the active reserve army?
149 The Economic and Social Research Institute finds 2.3 million unemployed
disabled people could be working, with accommodations. 150 But this figure
appears to underestimate the disabled reserve army. There are 17 million
working-age disabled persons, 5.2 million of whom are working.151 This
leaves 11.8 million either officially unemployed or not in the labor force.
Seven out of ten disabled persons age 16-64 who are not employed say that
they would prefer to be working.152 Thus, as many as 8.3 million workers
could be enlisted in the active reserve army. Further, there are indications
that disabled persons may be significantly underemployed, preferring to
work full-time when they are only employed part-time. Between 1981 and
1993, the proportion of disabled persons working full-time declined by
8 percent, while the number working part-time for both economic and noneconomic
reasons increased disproportionately.153
Essentially, about 20 million working people are condemned, by federal
anti-inflation policy, either to compulsory unemployment or to employment
at low wages. Keynesian scholars, such as Robert Eisner, William Vickrey
and James Galbraith argue, however, that a policy of full-employment is
necessary to equalize the wealth of society. In Created Unequal: the Crisis
in American Pay, Galbraith shows that the less-than-full-employment strategy
has resulted in greater inequality (low wages)154 and a dangerous polarization
within society. Galbraith concludes that, while many commitments are necessary
to maintain full employment, maintenance of low, stable interest rates
is fundamental. As long as the Federal Reserve sees interest rates as
a weapon in the war against inflation, full employment will be sacrificed.155
In order to reduce inequality, Galbraith argues for “sustained full
employment, stable and low interest rates, a higher minimum wage, and
reasonable price stability,”156 all of which he (and others) believe
can be accomplished by means other than the current Federal Reserve strategy.157
For our purposes, it suffices to understand that whether the unemployment
rate is at 4 percent, 6 percent, or 10, percent the capitalist system
necessarily produces joblessness: the reserve army of labor buoys, or
provides an underpinning of support, for those who are employed. Radical
theory maintains that this can only cause, directly or indirectly, greater
job insecurity and divisions amongst the working class, because the economy
fails to meet peoples material needs.158
Job Insecurity and the Fixed Pie Syndrome
According to a 1998 quarterly nationwide survey of U.S. workers conducted
by Rutgers University's Heldrich Center for Workforce Development and
the University of Connecticut's Center for Survey Research & Analysis,
some 59 percent of respondents say they are very concerned about job security
for ``those currently at work.159 An additional 28 percent indicate they
are “somewhat concerned.”160
Reports on U.S. job trends show that workers have reason for concern.
Workers appear less likely to be able to count on long-term employment,
which in the past provided steady wage growth, fringe benefits and long-term
job security. Jobs grew increasingly insecure in the 1990s, as the share
of workers in "long-term jobs" (those lasting at least 10 years)
fell from 41 percent in 1979 to 35.4 percent in 1996, with the worst deterioration
having taken place since the late 1980s.161 Corporate mergers and downsizing
have contributed to job cuts or company shutdowns which cost nearly 30
percent of U.S. workers their jobs from 1990 to 1995.162 Merger-related
layoffs soared in 1998 to nearly double the level of 1997, reflecting
a slew of high-priced mergers and acquisitions.163 Job cuts resulting
from mergers totaled 73,903 in 1998, up 99.6% from the 1997 total of 37,033.164
A new round of layoffs began in 2000. According to the Bureau of Labor
Statistics (BLS), the total number of people laid off that year was more
than 1.8 million. In January 2001, the BLS reported that the unemployment
rate rose to 4.2 percent the highest level in 15 months.165 Further, there
are more mass-layoffs planned by blue chip companies.166 General Electric
is promising to shed 75,000 workers; Verizon is eliminating 10,000 jobs;
DaimlerChrysler is getting rid of 20% of its workforce; 167 Disney is
cutting 4,000 jobs worldwide;168 Delphi Automotive Systems Corporation
plans to eliminate 11,500 jobs;169 and DuPont is cutting 4,000 jobs, or
about 4 percent of its work force, as well as 1,300 contract workers.170
Amazon.com is laying off 15 percent of its workforce, BarnesandNoble.com
16 percent, Cnet Networks 10 percent. Xerox, JC Penney, Textron, Lucent
Technologies, Toshiba America Inc. and AOL Time Warner are all firing
workers.171
To understand job-loss anxiety, it is necessary to know what happens to
a worker’s material reality when he or she loses a job. Workers
have difficulties finding new employment, with more than one third still
out of a job when interviewed one to three years after their displacement.172
Workers rarely regain their old wage and are often forced to take jobs
paying about 13 percent less than the old job.173 An increasing percentage
of workers are working part-time jobs, from 13 percent of all jobs in
1957 to more than 19 percent, or nearly 20 million people, in 1993.174
Others try to make ends meet with two or more part-time jobs. In 1997
more than 7.9 million people worked more than one job.175
In the 1990s the “contingent” workforce grew substantially;
almost 30 percent of workers in 1999 were employed in situations that
were not regular full-time jobs - including independent contracting and
other forms of self-employment, such as temporary agency labor or day
labor.176 The number of workers employed by temporary agencies almost
doubled, rising from 1.3 percent in 1989 to 2.4 percent in 1997.177 Temporary
workers on average earn less than workers with comparable skills and backgrounds
who work in regular full-time jobs and are less likely to receive health
or pension benefits.178
Displaced workers are facing increased job insecurity, lowered career
expectations, lowered wages, and less control over their financial futures.
Such economic trends have been linked to intergroup tensions. Increased
intergroup disparities and divisiveness arise out of worsening economic
conditions and increased competition for scarce resources.179 Job insecurity
can convert to a scarcity mentality, the thinking that “there is
not enough to go round.”
Although employers are not required to hire disabled people under affirmative
action programs, disabled persons seeking work and those potentially coming
off public benefit programs under the social Security Return-to-Work program
represent an influx of new competition joining the ranks of labor. Women
on welfare transitioning into jobs 180 are similarly positioned, both
as a group of potential workers moving from the surplus population to
work and as an undereducated workforce.181
The Personal Responsibility and Work Opportunity Reconciliation Act of
1996, which ended federal welfare entitlements and ensconced welfare-to-work
as a primary goal of federal welfare policy, illuminates the backlash
phenomenon. Welfare reform can be viewed through the zero-sum game paradigm:
under U.S. capitalism, one group benefits absolutely at the expense of
the other. When some workers gain, others will lose; when some workers
get jobs, others will be displaced. Radical or Marxist theory asserts
that employers deliberately exploit the least powerful workers (minorities)
to increase profits and to divide workers and keep the wage floor down.182
Two years after the enactment of welfare reform, both worker displacement
and increased worker exploitation are already having an impact. Jon Jeter
reported that women coming off welfare are competing with, and in some
cases, displacing other low wage workers under the "subsidized employment"
plan.183 Under this plan, the state pays a company to hire someone in
the program at minimum wage. At the Omni Inner Harbor Hotel in Baltimore,
for instance, social service workers placed 13 jobless women into welfare-to-work
jobs. During her 90-day probation period, each woman wipes, dusts and
vacuums on eight-hour shifts, five days a week, just as regular housekeepers
paid $6.10 per hour. In return, she receives $410 a month in welfare benefits
from the state and a $30 weekly stipend from the Omni Inner Harbor Hotel.
The hotel saves the difference.184
According to Jeter, the entry of subsidized workers has increased co-worker
tension at the hotel, where regular low-wage employees have formed a union
among the 300 bellmen, housekeepers, doormen and kitchen workers to improve
their wages and benefits .185 Jeter explains the twofold threat to co-workers:
not only can subsidized welfare workers undercut regular worker’s
wages and possibly interfere with union goals of better wages and benefits,
but they raise the question of whether management will hire the welfare
recipient as a permanent worker and displace a regular employee.186 The
welfare-to-work program has added even more uncertainty to an uneasy coexistence
between groups of working poor in Maryland and across the nation, who
fear the loss of their jobs to a cheaper workforce.
Welfare advocate Laura Riviera explains the effect of subsidized employment
under the Wisconsin welfare-to-work program, called a model for welfare
reform by the Clinton administration. “Women are introduced to other
employees as the ‘W-2 participant’. Knowing that this person
is required to work at the company for free, employees automatically feel
threatened by this person,” says Riviera. “This sets up a
situation where it is very difficult for that person to get along well
with other employees no matter how hard she tries.”187
Riviera reports that she has heard from many women who were working and
barely making ends meet until welfare reform began. “They were pushed
out of their minimum wage jobs by these less expensive employees provided
by the state and are now in the W-2 program.”188
Similar job displacement has occurred under the workfare grant program
in New York City, where the recipient receives a predetermined amount
of money and in turn must work in a “volunteer” position assigned
by the caseworker. When Steven Greenhouse conducted interviews with more
than 50 workfare workers and visited more than two dozen work sites, he
found that many workfare participants had taken the place of city workers.189:
In many municipal agencies, the city has shrunk its regular work force
and increased the number of workfare participants. The Sanitation Department's
work force slid from 8,296 in 1990 under Mayor David N. Dinkins to 7,528
in early 1994, when Mr. Giuliani took office, then down 16 percent more
last year, to 6,327. Today, the department employs more than 5,000 workfare
laborers, who wear bright orange vests, sweeping streets and doing other
tasks around the city.190
According to Greenhouse, workfare recipients are doing much of the work
once performed by departed city employees. The 34,100 people in the city's
Work Experience Program constitute a low-cost labor force that does a
substantial amount of work that had been done by municipal employees before
Mayor Rudolph W. Giuliani reduced the city payroll by about 20,000 employees,
or about 10 percent. 191
Jeter reported similar conflicts in the Washington Post. In Baltimore,
officials at Patterson High School decided last year not to renew the
contract with the janitorial company that cleaned the building and are
now looking for welfare recipients to do the work, in part because "their
rates would be cheaper."192 A job-training program in Alabama requires
some welfare recipients to work for more than four months without pay
for employers such as Continental Eagle, a cotton gin manufacturer near
Montgomery.193
Other sources of workfare labor were sought as well. New York City rules
introduced by the Giuliani administration in 1995 extended workfare to
homeless shelters, making workfare and other requirements a condition
of shelter for the 4,600 families and 7,000 single adults in New York
City's homeless shelter system. The poor and homeless receive their subsistence
benefits only on condition that they accept workfare jobs at the equivalent
of minimum wage rates in city clerical jobs and other positions which
would normally be filled by civil service workers earning two or three
times their wage, plus benefits. 194 While the stated intent of welfare
reform was to move those on welfare into work and thereby lower federal
and city welfare outlays, participating businesses receive a net gain
from welfare reform: having a captive workforce which can be pushed into
lower wage jobs, whether permanently or temporarily, keeps wages low and
increases business profit margins. An insidious fiscal benefit to government
has also emerged - undercutting regular worker salaries cuts city service
budgets and generates a surplus at the expense of the poorest parts of
the workforce. 195
Welfare reform may result in an overall lowering of the cost of labor.
The Economic Policy Institute warns that the low-wage labor market is
already suffering greatly; proposals to put welfare recipients to work
will drive the wages of the working poor down further. It estimates that
to absorb all the welfare workers, the wages of the bottom third of the
labor force would have to fall by 11 percent nationally.196 Former Labor
Secretary Alexis Herman explained that disabled workers can be put to
such a purpose as well. “As President Clinton has said: The last
big group of people in this country who could keep the economy going strong
with low inflation are Americans with disabilities ... who are not in
the workforce.” 197 President Clinton made the macroeconomic link
between welfare workers and disabled people when he told CNBC “...
you can bring more people from welfare or from the ranks of the disabled
into the work force [to keep inflation (wages) down]...”198
While the majority of reports focus on the initial success of welfare
reform in terms of numbers of people dropped from the rolls, there is
a growing realization among state and county officials that placing all
recipients into jobs is unrealistic for myriad reasons. There is also
evidence that those dropped from the rolls may not be faring so well.
A Wisconsin study of the transition period conducted by John Pawasarat
of the University of Wisconsin at Milwaukee, found that 75 percent of
those hired lost their jobs within nine months.199 Only 28 percent sustained
projected annual earnings of $10,000 for two consecutive quarter. Such
work was often part-time, low-paying and quick to end.200 When the Children's
Defense Fund and the National Coalition for the Homeless reevaluated the
status of former welfare recipients in 1998, they found that only about
50 to 60 percent of those who leave welfare are working, and that those
who work typically earn less than $250 per week - too little to lift a
family out of poverty.201
There are not enough living wage jobs available for women being forced
off welfare, and there will not be enough jobs for disabled persons wishing
to work or to transition from public benefits into a job. The welfare
reform experience indicates that subsidies to business can elevate co-worker
tension, yet, in the case of disability and employment, subsidies for
reasonable accommodations and health care will be necessary to level economic
discrimination inherent in business accounting practices. Just as women
coming off AFDC create increasing competition for jobs and increasing
job insecurity, disabled job seekers must be aware that they too can generate
resentment amongst those lacking job security, who may view subsidies
to disabled workers as a threat to their employment.
Though many disabled people will be entering the workforce at lower pay
levels, akin to the welfare to work population (due in part to the fact
that large numbers of disabled people lack access to higher education),
the global economy makes job insecurity a factor in the traditionally
more secure, educated class as well. Evidence of change can also be found
in the incidence of displacement within the elite workforce. The President’s
Council of Economic Advisers reported that, “further analysis shows
that job displacement rates rose for more educated workers, so that while
blue collar and less educated workers remain more likely to be displaced
than others, displacement rates have clearly risen among those workers
who had been previously immune from the threat of job dislocation.”202
Economists are beginning to see trends indicating that white collar workers
are no longer immune to neoliberal policies that emphasize free market
production and increase the labor pool. As economists Anne Colamosca and
William Wolman explain, globalization has produced an economy in which
“the rapid worldwide spread of available skilled labor [is set]
in head-to-head competition with their American counterparts.”203
Furthermore, the globalization of financial markets has served to lower
the wage floor, as employers search for low labor costs in far corners
of the globe and American workers’ wages shrink in response. “Capital
migrates to low wage areas and the only way that it can be kept in the
developed world is if wages in the developed world are kept low.”204
Some Unresolved Problems
In part, backlash against the ADA stems from the design of our economic
system. Differentials in pay, income, and employment opportunities persist
in the labor market, despite anti-discrimination laws. Civil rights, though
still necessary to counter individual acts of prejudice and discrimination,
have only the power to randomly and partially redress the maladies of
unemployment, income and wage inequality existing throughout the labor
market. If everyone were equally educated and trained for jobs, and if
civil rights laws were strictly enforced, millions would remain unemployed
and underemployed in any capitalist system. Anti-discrimination laws cannot
bridge the systemic employment gap, and individual rights cannot reach
the root of the parity predicament created by capitalism. Neither the
market nor civil rights laws can undermine the structure of inequality
nor prevent its reproduction.
After years of dedicated civil rights activism, Dr. Martin Luther King,
Jr. came to a similar conclusion. At the 1967 Southern Christian Leadership
Conference convention Dr. King implored the movement to “address
itself to the question of restructuring the whole of American society.
There are 40 million poor people here. And one day we must ask the question,
‘Why are there 40 million poor people in America?’ And when
you begin to ask that question, you are raising questions about the economic
system, about a broader distribution of wealth. When you ask that question,
you begin to question the capitalistic economy...”205
To be effective, any solution to the ADA backlash problem must address
the very nature of social relations. Any workable solution must wrestle
with the following question: What is work, who controls it, and what is
its purpose? If work is controlled by the Federal Reserve Bank, by investors
and Wall Street, all looking to make ever higher profits from people's
labor rather than trying to make the system work for all, the paradigm
itself must be challenged. It then becomes imperative to ask what an economy
is for - to support market-driven profits, or to sustain community bonds
and elevate human experience?
To stem the tide of the larger civil rights backlash, which promises to
grow as more workers are displaced in the global economy,206 it is essential
to reassert the basic, radical theoretical principle that an economy is
only working if it works for people, if it delivers health care, a living
wage, and a secure livelihood and income for every person. The exclusion
of even 3 percent of the population from employment in the liberal definition
of “full employment” is simply intolerable.207 Since private
industry views unemployment as an integral part of the “normal”
capitalist system (which keeps wages and inflation low and makes unemployment
compulsory), people must bypass private industry and insist that government
recognize the fundamental right of each person to a livelihood, meaning
full employment at a minimum living wage, and quality, disability-sensitive
universal health care. This must be the cornerstone of our economic policy.
A government guarantee of full employment would require reorganizing the
economy to allow everyone free choice among opportunities for useful,
productive, and fulfilling paid employment or self-employment. Base compensation
must be set at a living real wage, below which no remuneration for disabled
or non-disabled workers should be allowed to fall.
The wide range of disablement means that some disabled persons may never
be hired by businesses, but would nevertheless like to be productive in
their communities. In order to bring more excluded persons into the workforce,
it will be necessary to expand the work environment beyond the bounds
set by the capitalist profit motive and ensure that federal and state
governments act as the employers of last resort. In addition, those unable
to work for pay or to find employment must have a government entitlement
to an adequate standard of living, which rises with increases in the wealth
and productivity of society.
Problems of Power
Gregory Mantsios writes that “the class structure in the United
States is a function of its economic system - capitalism, a system that
is based on private rather than public ownership and control of commercial
enterprises, and on the class division between those who own and control
and those who do not. Under capitalism, these enterprises are governed
by the need to produce a profit for the owners, rather than to fulfill
collective needs.”208 Inequality is traceable both to the economic
system209 and to the interaction between private interests and government.
Liberal remedies that seek change by requiring government to enact sustained
full employment, raise the minimum wage, lower interest rates, and initiate
price stability still rely on the premise that these controls can occur
with capitalism intact in a democratic society, when hierarchical power
relations remain a crucial impediment to realizing such positive outcome.
Many have questioned the relationship between political power, monetary
policy and wealth inequality in our representative democracy. There is
consensus among these theorists (some liberal, some radical) that government
has failed to stop rising inequality and has contributed to the decline
of labor power, because it has been derelict in its duty to exercise power
over private capital. The degradation of workers occurs in this age of
mergers and acquisitions, bolstered by the power of speculative capital
and unregulated by government precisely because capital has control of
government.210 The enormous power of private capital over government is
evident in business’s backlash against the ADA, in Federal Reserve
inflation management strategies primarily aimed to benefit Wall Street,
in the millions of dollars spent by the insurance industry to prevent
the development of a universal health care program, and in both the passage
and content of welfare reform legislation passed by Congress and signed
by President Clinton in 1996.
After several centuries of capitalism, our society still shows no signs
of allowing sustained full employment. If history provides any guide,
it is safe to assume that the decision-making class will never allow it.
In the 1940’s the U.S. experienced the lowest unemployment rate
in its history (1 percent); directly on its heels came McCarthyism, an
organized attack on socialist ideals of equitable distribution. In the
1970s, drops in wages and the standard of living coincided with a regressive
decline in the power of unions, noticeable over the past few decades.211
Economist Michel Kalecki’s observation that labor must be kept weak
to preserve profits and the class dictatorship of capital seems undeniable.
Government enactment of full employment under capitalism can only result
in an even greater crushing of labor, so as to reinstate “stability”
and reassert control over the economic lives of workers.212
Capitalist measures--whether the type promoted by free market conservatives
or by welfare liberals--fail to respond to the discrimination faced by
millions of disabled Americans. Only measures that address systemic and
long-standing economic inequality will provide the necessary protections
against further workplace discrimination. The present reality, however,
is that disabled people are the last legally protected class to enter
the workforce. They seek economic equality at a time when unemployment
levels are low, and when downsizing and labor market globalization are
in full force. It is in such a "positive" economic environment,
when business has obtained both the legal and political legitimacy necessary
to discriminate in the name of work-place and market efficiency, that
our battle for distributive justice becomes the toughest of all.
1 42 U.S.C. ß12101-12213 (1994).
2 ì[T]he Nationís proper goals regarding individuals with
disabilities are to assure . . . economic self-sufficiency[.] Discrimination.
. . costs the United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity.î 42 U.S.C. ß12101(a)(8)-(9)
(1994).
3 See Nursing Homes, Others Want Exemptions from ADA Access, Disability
Rag, July-Aug. 1991, at 8; Disability Issues could become political footballs,
Rep. Disability Programs, June 22, 1995, at 104; It Could Happen, Disability
Rag, Jan.-Feb. 1991, at 17. 18. For a fuller discussion of the ADA and
business, see Marta Russell, Beyond Ramps: Disability at the End of the
Social Contract 109-43 (1998).
4 See Read ëEm and Weep, Disability Rag, July-Aug. 1992, at 28.
5 Robert Shogun, Halt Bush's Tilt to Left, Conservatives Tell GOP, L.A.
Times, July 14, 1990, at A26.
6 Rick Kahler, ADA Regulations Black Hole, Rapid City J., Apr. 2, 1995,
at C10. Kahler later published a retraction to this piece.
7 Trevor Armbrister, A Good Law Gone Bad, Readerís Digest, May
1998, at 145,155.
8 Edward L. Hudgins, Handicapping Freedom: The Americans with Disabilities
Act 18 Regulation Magazine, The Cato Review of Business and Government
Vol 2 (1995).
9 See Howard Botwinick, Persistent Inequalities: Wage Disparity Under
Capitalist Competition (1993). See generally, Robert Cherry et al (Eds.),
The Imperiled Economy: Macroeconomics from a Left Perspective (1987);Paul
Baran & Paul M. Sweezy, Monopoly Capital: An Essay on the American
Economic And Social Order (1966).
10 See 42 U.S.C. ß12101(a) (1994) (delineating, in introducing the
purpose of the Americans with Disabilities Act, Congressional findings
regarding the historical isolation and segregation of disabled persons).
11 Louis Harris & Assoc., National Organization on Disability/1998,
Harris Survey of Americans with Disabilities (1998) (commissioned for
the National Organization on Disability) [hereinafter NOD/1998 Harris
Survey].
12 The wage gap is a statistical indicator often used as an index of the
status of women's earnings relative to men's. It is also used to compare
the earnings of people of color to those of white men. Wage gap statistics
can be found in U.S. Bureau of the Censusí study, Money Income
in the United States: 1997, (last modified Oct. 28, 1999) <http://www.census.gov/hhes/www/income.html>
or from Census Bureau Current Population Reports, Series P-60, U.S. Commerce
Department.
13 1997 is latest year available. http://www.census.gov.
14 NOD/2000 Harris Survey.
15 Other Census data confirms that there has been no improvement in the
economic well being of disabled persons. In 1989, for instance, 28.9%
of working age adults with disabilities lived in poverty; in 1994, the
figure climbed slightly to 30.0%. H. Stephen Kaye, Is the Status of People
with Disabilities Improving, Disability Statistics Abstract (Disability
Statistics Center, San Francisco, Cal.), May 1998, at 2.
16 6,212,000 persons receive Supplemental Security Income and 4 million
receive Social Security Disability Insurance. Social Security Administration
Basic Facts About Social Security (visited February, 8, 2000) http://www.ssa.gov/pubs/10080.html>;
1998 SSI Annual Report, available through the Social Security Administrationís
[SSA] website by searching for the ì1998 Annual Reportî at
<http://www.ssa.gov/search/index.htm> (visited Feb. 8, 2000).
17 Title VII of the Civil Rights Act of 1964 prohibits wage and employment
discrimination on the basis of race, color, sex, religion, or national
origin. 42 U.S.C. ß2000e-2 (1994).
18 Pay equity demands that the criteria used by employers to set wages
must be sex and race neutral. The Equal Pay Act of 1963 prohibits unequal
pay for equal or "substantially equal" work performed by men
and women. 29 U.S.C.A. ß206(d) (1994). Title VII of the Civil Rights
Act of 1964 prohibits wage and employment discrimination on the basis
of race, color, sex, religion, national origin. 42 U.S.C. ß2000e-2
(1994). In 1981, the Supreme Court made it clear that Title VII is broader
than the Equal Pay Act and prohibits wage discrimination even when jobs
are not identical. See County of Washington v. Gunther, 452 U.S. 161,
177-81 (1981).
19 Title I of the Americans with Disabilities Act prohibits disability
discrimination in employment. 42 U.S.C. ß12101-117 (1994).
20 U.S. Census Bureau, Current Population Survey (March 1998) (visited
Feb. 8, 1999) < http://www.census.gov/hhes/www/income98.html> [hereinafter
U.S.C.B., Current Population Survey]; Historical Income Tables -Families,
Table F-5, Race and Hispanic Origin of Householder - - Families by Mean
and Median Income, 1947-1998 (last modified Nov. 10, 1999) <http://www.census.gov/hhes/income/histinc/f05.html>
[hereinafter U.S.C.B.,Historical Income Tables]. For a discussion of empirical
evidence on earnings gaps and discrimination for Hispanics, see Gregory
DeFreitas, Inequality at Work: Hispanics in the U.S. Labor Force (1991).
21 U.S.S.B., Current Population Survey, supra note 20; U.S.C.B., Historical
Income Tables, supra note 20.
22 For a time-series discussion of black/white earnings ratios, see John
Donohue & James Heckman, Continuous Versus Episodic Change: The Impact
of Civil Rights Policy on the Economic Status of Blacks, 29 J. Econ. Literature
1603 (1991); Peter Gottschalk, Inequality, Income Growth, and Mobility:
The Basic Facts, 11 J. of Econ. Persp. 21, 28-29 (Spring 1997). Gottschalk
demonstrates that the earnings gap between blacks and non-blacks narrowed
between the early 1960ís and 1975, but progress ceased after this
point.
23 William A. Darity Jr. & Patrick L. Mason, Evidence on Discrimination
in Employment: Codes of Color, Codes of Gender, 12 J. of Econ. Persp.
63, 76 (Spring 1998).
24 See U.S. Bureau of Labor Statistics, Labor Force Statistics from the
Current Population Survey, (last modified Feb. 1, 1999) <http://www.bls.gov/webapps/legacy/cpsatab.2.htm>
[hereinafter U.S.B.L.S., Labor Force Statistics]. The Census does not
count the prison population as unemployed. 70% of the prison population
is black. Adding in the incarcerated population as unemployed - almost
8% of all black adult males - changes the unemployment rate for black
men from the reported 6.7% in December 1998 to 16.5%. Angela Davis, Speech
at California State University, Fullerton (Mar. 23, 1999). Cf. Robert
Cherry, Black Men Still Jobless, Dollars and Sense 43, 43 (Nov.-Dec. 1998).
25 See U.S.B.L.S., Labor Force Statistics, supra note 24.
26 See U.S. Census Bureau, Historical Income Tables - People, Table P-4:
Race and Hispanic Origin of People (both sexes combines) by Median and
Mean Income: 1947 to 1998, (last modified Nov. 10, 1999) <http://www.census.gov/hhes/income/histinc/p04.html>.
27 See Womenís Bureau, U.S. Depít of Labor, Facts on Working
Women: Earnings Differences Between Women and Men, (visited Dec. 28, 1999)
<http://www.dol.gov/dol/wp/public/wb_pubs/wagegap.2.htm>.
28 Id. Between 1980 and 1990 the ratio of hourly earnings climbed by 13.1
percentage points; between 1990 and 1997 it climbed by only 2.9 points.
Between 1980 and 1990 the annual ratio climbed by 11.4 points, but between
1990 and 1996 the ratio climbed by only 2.2 percentage points. “Between
1980 and 1990 the weekly earnings ratio climbed by 7.5 percentage points;
between 1990 and 1997 the ratio climbed 2.5 percentage points.”
Id.
29 Heather Boushey, EPI economist quoted in Lisa Girion, Wage Gap Continues
to Vex Women: The Disparity Is Growing Despite Gains in Education, Employment,
Los Angeles Times, February 11, 2001 at W-1.
30 See Women’s Bureau, supra note 27.
31 H. Stephen Kaye, supra note 15, at 2.
32 Id.
33 Edward Yelin, The Employment of People With and Without Disabilities
in an Age of Insecurity, 549 Annals of the American Academy of Political
and Social Science 1997, 117-128; R.L. Bennefield, & J.M.McNeil, Labor
Force Status and Other Characteristics of Persons with a Work Disability:
1981 to 1988.,Current Population Reports, Series P-23, No. 160, Washington,
DC: U.S. Bureau of the Census (1989).
34 Individuals are considered to be in the labor force if they are employed
or are not employed but are actively seeking work for pay. United States
Current Population Survey (1998) at <http://www.census.gov/hhes/www/income98.html>
35 NOD/2000 Harris Survey at http://nod.org/hsevent.html#Harris2000. See
generally Laura Trupin et al., Trends in Labor Force Participation Among
Persons with Disabilities, 1983-1994, Disability Statistics Report (June,
1997) (Disability Statistics Ctr., San Fran., Cal).
36 See Jonathan S. Leonard, The Impact of Affirmative Action Regulation
and Equal Employment Law on Black Employment, J. Econ. Persp. at 47, 47-63
(Fall 1990); John Donohue III & James Heckman, Continuous Versus Episodic
Change: The Impact of Federal Civil Rights Policy on the Economic Status
of Blacks, 29 J. Econ. Literature 1603 (1991).
37 See, e.g., Cornel West, Race Matters 95 (1993).
38 For conservative opposition to government regulation see R. P. O'Quinn,
The Americans With Disabilities Act: Time for Amendments, Cato Institute
Policy Analysis No. 158 (Aug. 9, 1991); Brian Doherty, Unreasonable Accommodation,
Reason Magazine 18 (Aug.-Sept. 1995).
39 See Nicholas Lemann, The Promised Land 218 (1992); Michael Parenti,
Democracy for the Few 99-119, 271 (1995).
40 Russell, supra note 3, 109-16.
41 These objectives were accomplished, in part, through the promotion
of policies such as the North Atlantic Free Trade Agreement and General
Agreement on Tariffs and Trade. See Parenti, supra note 43, at 67-75,
80. See generally Jeff McMahan, Reagan and the world: Imperial policy
in the New cold War (1984).
42 See generally Lawrence Mishel et al., The State of Working America
1998-1999 (Economic Policy Institute 1999); William Wolman & Anne
Colamosca, The Judas Economy: The Triumph of Capital and the Betrayal
of Work (1997).
43 See generally Michael Parenti, Democracy for the Few (1995); Hudgins,
supra note 8.
44 Mishel et al., supra note 42, at 25.
45 See Russell, supra note 3, at 113-21.
46 See Walter Y. Oi, Employment and Benefits for People with Diverse Disabilities,
Disability, Work and Cash Benefits, in J.L. Mashaw, V.P. Reno, R.V. Burkhauser
& M. Berkowitz (Eds.) p. 103. Michigan: W.E. Upjohn Institute for
Employment Research. (1996); S. A. Moss & D.A. Malin, Note, Public
Funding for Disability Accommodations: A Rational Solution to Rational
Discrimination and the Disabilities of the ADA, Harvard Civil Rights-Civil
Liberties Law Review 33, 1998, at 197-198. For an analysis on the impact
of state and federal civil rights legislation on the employment and wages
of disabled persons, see Nancy Mudrick, Employment Discrimination Laws
for Disability: Utilization and Outcome, Annals Am. Acad. Pol. & Soc.
Sci., Jan. 1997, at 53, 53-70.
47 1998 NOD/Louis Harris Survey, supra note 11; see also National Institute
on Disability and Rehabilitation Research, U.S. Depít of Education,
Trends in Labor force Participation among Persons with Disabilities, 1983-1994
(Disability Statistics Report 10).
48 US Census Bureau, Disability Employment, Earnings, and Disability Tables
from the Survey of Income and Program participation at http://www.census.gov/hhes/www/disable/dissipp.html.
49 Peter Budetti, Richard Burkhauser, Janice Gregory, & H. Allan Hunt,
Ensuring Health and Security for an Aging Workforce, W.E. UpJohn Institute
for Employment Research, (2001).
50 An important study revealing the near unanimous opinion among economists
of the positive impact of government anti-discrimination programs on income
of African-Americans can be found in John Donohue & James Heckman,
supra note 39, at 1603-43. Richard B. Freemanís paper, Changes
in the Labor Market for Black Americans, 1948-72, 1 Brookings Papers on
Econ. Activity 67, 67-120 (1973), was among the first to identify government
anti-discrimination programs as a source of progress.
51 See Ruth Colker, The Americans with Disabilities Act: A Windfall for
Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 100 (1999).
52 Id.
53 See Gregory Mantsios, Class in America: Myths and Realities, in Paula
S. Rothenberg, Race, Class, and Gender In the United States 210-13 (1998).
54 See Donald Tomaskovic-Devy, Race, Ethnic, and Gender Earnings Inequality:
The Sources and Consequences of Employment Segregation, (visited Dec.
29, 1999) <http://www.ilr.cornell.edu/GlassCeiling/14/14front.html>.
55 Scholars such as Robert J. Samuelson, William E. Becker, Donald A.
Hicks, and William J. Baumol are representative of this point of view.
56 See Robert Topel, Factor Proportions and Relative Wages: The Supply-side
Determinants of Wage Inequality, J. Econ. Persp. 55, 69 (Spring 1997).
Topel states that: Wage inequality has risen in modern economics because
rising demands for skills have made talented people more scarce. As in
other market situations, this ìproblemî of a demand-driven
rise in price contains the seeds of its own solution. Supply is more elastic
in the long run than in the short run. Rising returns to skill encourage
people to invest in human capital, which in the long run will increase
the proportion of skilled workers in the labor force. See also Robert
Z. Lawrence, Single World, Divided nations?: International trade and OECD
labor markets 129 (1996).
57 See, e.g., Darity & Mason, supra note 23, at 2; James K. Galbraith,
Created Unequal: The Crisis in American Pay (1998). See generally Jared
Bernstein, Where's the Payoff?: The Gap Between Black Academic Progress
and Economic Gains (Economic Policy Institute 1995). For an economist’s
explanation of why blacks have narrowed the human capital gap between
blacks and whites, yet slid further behind in average earnings see Martin
Carnoy, Faded Dreams: The Politics of Economics and Race in America (1994).
58 See Mishel et al., supra note 45, at 162.
59 Id. at 30.
60 Id. at 26-27, 198.
61 Galbraith, supra note 58, 50-88 (1998). There was no systematic change
in skill premiums within industries during the period 1920 to 1947, despite
a large increase in the supply of educated labor during this time. See
Claudia Goldin & Lawrence Katz, The Decline of Non-Competing Groups
(1995); Claudia Goldin & Lawrence Katz, The Origins of Technology-Skill
Complementarity (1996).
62 Darity & Mason, supra note 23, at 83-84.
63 Carnoy, supra note 58.
64 Letter from James L. Westrich, Massachusetts Institute for Social and
Economic Research, to Marta Russell 1 (Apr. 23, 1999) (on file with author).
65 Tomaskovic-Devy, supra note 55.
66 Id.
67 Id.
68 Id; see also Paula S. Rothenberg, Race, Class, and Gender In the United
States 234-235 (1998).
69 Tomaskovic-Devy, supra note 55 (emphasis added).
70 Galbraith, supra note 58, 37-49.
71 Id at 266. Two mainstream economists have produced evidence that -
all things being equal - unemployment depresses wages. See David Blanchflower
& Andrew Oswald, The Wage Curve (1994); see also Heather Boushey,
Unemployment, Pay, and Race, Left Bus. Observer 3, 3 (July 1998).
72 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of
Nations 28 (J. Shield Nicholson ed. 1901) (1776).
73 Id.
74 Id.
75 See Karl Marx, 1 Capital 270-80 (Ben Fowkes trans., Vintage Books 1st
ed. 1977) (1867).
76 Id. at 929
77 Darity & Mason, supra note 23, at 86-87.
78 See West, supra note 40; Oliver Cromwell Cox, Caste, Class, and Race:
A Study in Social Dynamics (1948).
79 Richard Epstein, Forbidden Grounds: the Case Against Employment Discrimination
Laws 484 (1992).
80 Id. at 484.
81 See Richard K. Scotch, From Good Will to Civil Rights: Transforming
Federal Disability Policy 102 (1984).
82 Fair Labor Standards Act [i.e. 29 USC Sec. 214(c)] allows DOL to issue
certificates authorizing rates below the statutory minimum wage. The program
is described in 29 CFR Part 525.
83 Russell, supra note 3, at 137.
84 Epstein, supra note 81, at 480-94.
85 Id. at 494.
86 United States Commission on Civil Rights, Helping Employers Comply
with the ADA: An Assessment of How the United States Equal Employment
Opportunity Commission Is Enforcing Title I of the Americans with Disabilities
Act III (1998).
87 Study Finds Employers Win Most ADA Title I Judicial and Administrative
Complaints, 22 Mental and Physical Disability L. Rep. 403, 404 (May-June
1998). They concluded that of the 760 decisions in which one party or
the other prevailed, employers prevailed in 92.11% of those cases. Id.
88 As reported in the Mental and Physical Disability L. Rep. May-June
2000.
89 Ruth Colker, supra note 52, at 99-100.
90 U.S. Commission on Civil Rights, supra note 90, at 4-5.
91 See Marx, supra note 77, at 270-80.
92 See id. at 293-306.
93 See id. at 293.
94 See id. at 274-75.
95 Epstein, supra note 81, at 485.
96 Id. at 484.
97 69% of employers that provided accommodations spent nothing or less
than $500, 9% spent between $2,001 and $5,000, and 3% spent over $5,000.
Presidentís Committee on Employment of People with Disabilities,
Costs and Benefits of Accommodations (last modified July 1996) <http://www50.pcepd.gov./pcepd/pubs/ek96/benefits.htm>.
98 See Marjorie Baldwin, Can the ADA Achieve Its Employment Goals? Annals
Am. Acad. Pol. & Soc. Sci. 42, 49 (Jan. 1997).
99 One in five workers are uninsured. The primary reason workers are not
insured is because health care benefits are not offered by employers.
The coverage rate has decreased in the past decade, dropping from 73%
in 1989 to 67% in 1996. Kaiser Family Foundation, “Employer Health
Benefits 1999 Annual Survey,î p. 30.
100 See U.S. Commission on Civil Rights, supra note 90, at 134-35.
101 See William Johnson, The Future of Disability Policy: Benefit payments
or Civil rights?, Annals Am. Acad. Pol. & Soc. Sci. 171 (Jan. 1997);
see also Baldwin, supra note 102, at 47.
102 Employers have been abandoning responsibility for providing healthcare.
See Olveen Carrasquillo et al., A Reappraisal of Private Employerís
Role in Providing Health Insurance, New Eng. J. Med. 1999, 109, 109-114.
Disabled persons may be classified and written up as a ìriskî
in private insurance. See 42 U.S.C.A. ß12111(c) (1994). Disabled
persons may be deemed a “direct threat,” or a significant
risk to the health or safety of others that cannot be eliminated by reasonable
accommodation. The direct threat defense is spread out over several sections
of the ADA, and can be used as a defense to certain Title I (employment
discrimination) and Title III claims (for discrimination by public accommodations).
See Baldwin, supra note 102, at 46-47.
The ADA is patterned on the minority group model of prejudice. See Chai
R. Feldblum, Employment Protections, Milbank Q. 82 (Winter 1991); 42 U.S.C.A.
ß12101(a)(7) (1994) and Harlan Hahn, Towards a Politics of Disability:
Definitions, Disciplines and Policies, Social Science Journal 22 (4) (1985)
87-105.
John M. McNeil, Americans With Disabilities: 1994-95 > (visited Dec.
29, 1999) <http://www.blue.census.gov/hhes/www/disable/sipp/disab9495/oldasc.htm>.
See also National Institute on Disability and Rehabilitation Research,
Chartbook on Work and Disability in the United States (1998) (visited
Dec. 29, 1999) <http://www.infouse.com/disabilitydata/workdisability_1_2.html>.
See McNeil, id.
Vande Zande v. State of Wisconsin Depít. of Admin., 44 F.3d 538,
543 (7th Cir. 1995) (ruling in favor of employer-defendant).
There are exceptions, such as when compliance would create an “undue
hardship” on the businessís finances. 42 U.S.C.A. ß12112(b)(5)(a).
U.S. Commission on Civil Rights, supra note 87, at 5-6 (September 1998).
Arlene B. Mayerson, Restoring Regard for the ìRegarded Asî
Prong: Giving Effect to Congressional Intent, 42 Vill. L. Rev. 587, 587,
612 (1997).
Robert Burgdorf, Jr., ìSubstantially Limitedî Protection
from Disability Discrimination: The Special Treatment Model and Misconstructions
of the Definition of Disability, 42 Vill. L. Rev. 409, 585 (1998).
See Id. at 413-414.
Study Finds Employers Win Most ADA Title I Judicial and Administrative
Complaints, 22 Mental & Physical Disability L. Rep. 403, 404 (1998).
Ruth Colker, supra note 51, at 101.
Id. at 101-102.
See, e.g., Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights
Model, 21 Berk. J. Emp. Lab. L. 1 (2000).
See Matthew Diller, Dissonant Disability Policies: The Tensions Between
the Americans with Disabilities Act and Federal Disability Benefit Programs,
76 Tex. L. Rev. 1003, 1007-08 (1998).
526 U.S. 795 (1999).
Id. at 974.
Id. at 977-78.
Id. at 977.
527 U.S. 457 (1999) (corrective lenses and myopia).
527 U.S. 516 (1999) (medication-controlled hypertension).
527 U.S. 555 (1999) (monocular vision).
531 U.S. 356 (2001) Board of Trustees of the University of Alabama et
al., v. Garrett et al. Decided February 21, 2001.
527 U.S. 457, 471 (Stevens, J., dissenting).
Id. at 473.
Id.
Brief Amici Curiae of the Equal Employment Advisory Council, the U.S.
Chamber of Commerce, and the Michigan Manufacturers Association in support
of respondents, at 4.
NAM Urges Court Not to Expand the Americans with Disabilities Act, NAM
News Release (Natíl Assín Mrf., Wash., D.C.), Mar. 24, 1999,
at 1.
531 U.S. 356 (2001).
Id at 16.
Id at 3.
42 U.S.C. Section 12101(9).
Supra Note 135 at 14.
528 U.S. 62 (2000). Kimel et al., v. Florida Board of Regents.
529 U.S. ___ (2000). United States v. Morrison et al., No. 99-5. Decided
May 15, 2000.
532 U.S. ____ (2001). Circuit City Stores, Inc. v. Adams. Decided March
21, 2001.
James O'Connor, The Fiscal Crisis of the State 161 (1973).
Marx, supra note 77, at 589-592, 600-601; see also Karl Marx, The Grundrisse
491 Penguin edition, transl. Martin Nicolaus, 1973 (trans. 1858) (1973).
The reserve army of labor has historically included women and minority
workers.
Sheila D. Collins et al., Jobs for All, A Plan for the Revitalization
of America 10 (1994) (quoting Vickrey).
See Milton Friedman, The Role of Monetary Policy, Am. Econ. Rev. 1, 1-17
(Mar. 1968); see also Michael Perelman, The Pathology of the U.S. Economy:
The Costs of a Low-Wage System, 40 (1993).
Suzanne McGee, Anxiety That Jobs Data Will Show Economy is Growing at
Healthy Clip Weighs on Traders, Wall St. J., June 5, 1996, at C22 (quoting
a U.S. Bureau of Labor Statistics Report).†
Id.
See Davis, supra note 26.
The figure is adjusted for the official definition of ìemployed.î
Under current U.S. definitions of employment, one must be actively looking
for work to count as unemployed. People are classified as unemployed if
they meet all of the following criteria: they had no employment during
the reference week; they were available for work at that time; and they
made specific efforts to find employment sometime during the 4-week period
ending with the reference week. If one has given up the search for work
as hopeless, he is not counted as jobless. In addition, U.S. unemployment
statistics may tend to undercount the poor and unemployed more than most
European statistics. The BLS uses headcount rather than full-time equivalent
(FTE) to account for employment. Since a person who is employed only 10
hours a week counts the same as one who is employed 40 hours a week, significant
numbers of the under-employed can skew the employment rates upward as
compared to the FTE approach. See David Dembo & Ward Morehouse, The
Underbelly of the U.S. Economy: Joblessness and the Pauperization of Work
in America 13 (1995).
In 1997, 16.8 million worked full-time, year round, yet earned less than
the official poverty level for a family of four. This represents 18% of
full time workers. Roughly one in four women and one in seven men who
had full-time jobs year-round earned less than the poverty level for a
family of four. These estimates are calculated from the U.S. Census Bureau,
supra note 12, at 38-41.
Workers only marginally attached to the labor force-like the 10 million
disabled persons on disability benefits - don't enter into the unemployment
calculation. The Current Population Survey focuses on the civilian noninstitutional
population over age 16. If a person fits this criteria, CPS determines
if they are in the labor force or not in the labor force (NLF). If they
are in the labor force, then they are employed or unemployed. If they
are neither employed nor unemployed (but still in the civilian noninstitutional
population over age 16) they are considered NLF. The NFL population is
not, however, separately identified on the basis of their disability status,
so the only estimate available of how many disabled people might join
the labor force comes from a survey such as NOD/Harris.
Jack A. Meyer & Pamela J. Zeller, Kaiser Commín on Medicaid
and the Uninsured, Profiles of Disability: Employment and Health Coverage
9 (1999).
10.8 million people with disabilities are not currently in the labor force.
Trupin et al., supra note 33.
NOD/1998 Harris Survey, supra note 11.
Edward Yelin & Patricia Katz, Making Work More Central to Work Disability
Policy, 72 Milbank Q. 593-619 (1994).
When unemployment is high, inequality rises, when unemployment is low,
inequality tends to fall. Galbraith, supra note 58, at 148. See generally
Doug Henwood, Wall Street: How It Works and for Whom (1997); Dean Baker,
The Impact of mis-Measured Inflation on Wage Growth (Economic Policy Institute
1998).
See Henwood, supra note 149, at 219; Wolman & Colamosca, supra note
45, at 141-166.
See Wolman & Colamosca, supra note 45, at 213.
For Galbraithís solutions, which are too involved to outline here,
see id. at 263-270.
For insecurity and polarization of the working class see generally O'Connor,
supra note 135; Michael Perelman, The Pathology of the U.S. Economy: The
Costs of a Low-Wage System (1993); Sheldon Danziger & Peter Gottschalk,
America Unequal (1996).
Gene Koretz, Economic Trends: Which Way Are Wages Headed?, Bus. Wk, Sep.
21, 1998, at 26.
Id.
See Mishel et al., supra note 45, at 7.
Cognetics Annual Report on Job Demographics, Council on International
and Public Affairs, 2 (Winter 1997).
Aaron Bernstein, Is the Job Engine Starting to Sputter?, Bus. Wk. (Oct.
5, 1998).
Id.
Press Statement of Katherine G. Abraham, Commissioner Bureau of Labor
Statistics, Feb. 2, 2001
BLS Daily Report, Wednesday, Feb. 21, 2001.
George Szamuely, The New York Press, Feb. 13, 2001.
http://www.nytimes.com/2001/03/28/business/28DISN.html
Keith Bradsher, 11,500 Jobs Are Being Cut at Big Maker of Auto Parts,
New York Times, March 30, 2001
Claudia H. Deutsch, DuPont to Cut 4,000 Jobs, New York Times, April 3,
2001.
Szamuely, supra note _____.
Mishel et al., at 8.
Id.
Id.
Thomas Amirault, Characteristics of Multiple Jobholders, 120 Monthly Lab.
Rev. Online, (Mar. 1997) (visited Feb. 8, 2000) <http://www.bls.gov/opub/mlr/1997/03/art2exc.htm>.
Ken Hudson, No Shortage of Nonstandard Jobs, briefing paper from the Economic
Policy Institute, Dec. 1999 at http://fog.lights.com:8765/epinet/static.html.
Mishel et al., supra note 45, at 21.
See generally U.S. Gen. Accounting Office, GAO Report no. hrd-91-56, Workers
at Risk: Increased Numbers in Contingent Employment Lack Insurance, Other
Benefits (1991).
See Sheryl L. Lindsley, Communicating Prejudice in Organizations, in Communicating
Prejudice 187-205 (Michael L. Hecht et al. eds., 1998).
Since January 1993, the number of people on welfare rolls has fallen 48%
to 7.3 million nationally with three-quarters of the drop coming since
the measure became law in 1996. Clinton Asks Business to Hire More From
Welfare Rolls, Aug. 3, 1999, (visited Feb. 8, 2000) <http://cnn.com/ALLPOLITICS/stories/1999/08/03/welfare/>.
42.7% of disabled persons enrolled in highschool do not graduate. U.S.
Dept. of Education, H. Stephen Kaye, ìEducation of Children with
Disabilities,” Disability Statistics Abstract No. 19 July 1997 at
p 2. Only 6.3% of all students enrolled in undergraduate post-secondary
institutions (1992-1993) had a disability. Of these, 46.3% were attending
school full time (compared to 52.9% of nondisabled students. See Thomas
D. Snyder, National Center for Education Statistics, 96 The Digest of
Educ. Stat. 133 (1996).
John E. Roemer, Divide and Conquer: Microfoundations of a Marxian Theory
of Wage Discrimination, 10 Bell J. Econ. 695, 695-96 (1979).
Jon Jeter, Room for Working Poor In Welfare's New Deal?, Wash. Post, Mar.
15, 1997, at A01.
Id.
Id.
See Id.
Electronic mail from Laura L. Riviera to Thomas Kruse (June 1, 1998) (on
file with author).
Id.
Steven Greenhouse, Many Participants in Workfare Take the Place of City
Workers, N.Y. Times, Apr.13, 1998; see also Steven Greenhouse, Union to
Sue Giuliani Administration Over Use of Welfare Recipients in Jobs, N.Y.
Times, Feb. 4, 1999.
Id.
Id.
Jon Jeter, Room for Working Poor In Welfare's New Deal? Wash. Post, Mar.
15, 1997, at A01 (referring to statement by the building's custodian).
Id.
194 Later in early 2000, New York State Supreme Court ruled that New York
may not force homeless adults to accept workfare jobs in exchange for
city shelter (on appeal) and increasingly city workfare contractors which
place welfare recipients into private-sector jobs have come under scrutiny
for questionable practices. Nina Bernstein, City’s Rules for Shelters
Held Illegal, N.Y. Times, Feb. 23, 2000 at B1.
One example: the Pataki administration has quietly built up a $500 million
surplus in Federal welfare money over the last two years as a result of
the dramatic decline in the number of people on public assistance, and
expects that sum to grow to $1.4 billion. Raymond Hernandez, New York
Gets Big Windfall From Welfare, N.Y. Times, Feb. 9, 1999. The surplus
can then be converted into tax breaks for special interest lobbies such
as housing developers.
Lawrence Mishel & John Schmitt, Cutting Wages by Cutting Welfare:
The Impact of Reform on the Low-Wage Labor Market 1 (Economic Policy Institute
1995).
Alexis M. Herman, U.S. Secretary of Labor, Remarks Before the National
Council on Independent Living, the National Association of Protection
and Advocacy, and the National Council on Disability (June 24, 1999).
Interview by Ron Insana, CNBC, with President Bill Clinton, Waterfield
Cabinet Company, Clarksdale, MS (July 6, 1999).
Jason DeParle, Flaws Emerge in Wisconsinís Welfare-to-Work Plan,
N.Y. Times, Oct. 18, 1998, A1.
Id. See generally Joel Dresan, W-2 Work or Else; Food Charities Face Bigger
Loan Under Wisconsin Works, The Milwaukee J. Sentinel, July 21, 1988,
at 2.
Childrenís Defense Fund, After Welfare, Many Families Fare Worse
(visited Nov. 19, 1999) <http://www.childrensdefense.org/release981202.html>.
Council of Economic Advisors, Job Creation and Employment Opportunities:
The United States Labor Market, 1993-1996 (visited Feb. 8, 2000) <http://whitehouse.gov/WH/EOP/CEA/html/labor.html>.
Wolman & Colamosca, supra note 45, at 87-138 (1997).
Id. At 5 3, 141-166. See generally Bennett Harrison, Lean and Mean: The
Changing Landscape of Corporate Power in the Age of Flexibility (1994).
A Testament of Hope: The Essential Writings of Martin Luther King, Jr.,
25- (James M. Washington) ed. 1991) (quoting from Kingís 1967 SCLC
presidential address, Where Do We Go From Here).
See John Dewey, Democracy is Radical, in The Later Works 1925 - 1953,
296 296-99 (JoAnn Boydston ed. 1987). Dewey argues against the Lockean
notion of Atomic individualism, suggesting instead that political philosophy
must take seriously the social as a category. The invidual, he says can
only be properly understood in the context of society, and must be understood
this way to achieve progress.
See Dean Baker, Robert Pollin, Gerald A. Epstein (Editors).
For an example of what a radical democratic planned future might look
like see Dewey, supra note 196, at 296-99; Martin Carnoy & Derek Shearer,
Economic Democracy (1980); Daniel Singer, Whose Millennium? (1999).
Gregory Mantsios, Class in America: Myths and Realities, in Paula S. Rothenberg,
Race, Class, and Gender in the United States 212 (1998).
Political economist Bennett Harrison posits that income polarization is
a ìby-productî of the post-industrial society. See Bennett
Harrison, Lean and Mean: The Change Landscape of Corporate Power in the
Age of Flexibility (1997).
See Wolman & Colamosca, supra note 45, at 144-145 (1997).
See Michael Yates, Why Unions Matter 135-140 (1998).
Collected Works of Michal Kalecki, Capitalism: Business Cycles and Full
Employment (Jerzy Osiatynski ed.,1990).
|
