The Americans with Disabilities Act as Welfare Reform
Samuel R. Bagenstos
University of Michigan Law School
William and Mary Law Review, Forthcoming
When Congress enacted the Americans with Disabilities Act (ADA) in 1990, disability rights supporters hailed the law as a radical shift in our nation's policy toward people with disabilities. Today, however, the statute's impact, at least in the employment area seems anything but radical. Many explain this disconnect as resulting from a "backlash" against the ADA and particularly a set of judicial decisions in which courts have imposed their own retrograde views of the proper response to disability on a statute that decisively rejects those views. This article challenges that explanation. While many of the disability rights advocates who assisted in drafting and lobbying for the statute shared a basic commitment to society's responsibility to alter its institutions to make all opportunities accessible to all - a commitment that the courts have not well assimilated - those who urged passage of the statute relied to a significant extent on a distinct argument that rests in some tension with that commitment. Throughout the extensive consideration of the ADA, the bill's supporters consistently argued that the statute was necessary to reduce the high societal cost of dependency by moving people with disabilities off of the public assistance rolls and into the workforce. If the "basic premise" of the ADA is seen as the imperative to reduce the cost of dependency of people with disabilities, then many of the courts' restrictive decisions begin to make sense. Roughly put, those decisions limit the statute's protections to individuals who would be largely unable to work without them, and they limit required accommodations to those that are necessary to move those individuals into the workforce in a reasonably cost-effective manner.
The point of this article is not to endorse those restrictive decisions but rather to unearth the avoiding-dependency basis for the ADA and begin the process of demonstrating its inadequacy as a guide to disability employment policy. To the extent that the ADA has failed to bring more people with disabilities into the workforce, that failure has as much to do with its own inherent limitations as with judges' refusal to accept the statute's basic premises. While civil rights protections for people with disabilities are essential to serve many purposes, they are not and cannot be the exclusive means of assuring meaningful employment for the maximal number of people with disabilities. The issue remains an important one because disability rights advocates' reliance on avoiding-dependency arguments in lobbying for the ADA was not merely a tactical decision that had some unfortunate effects. Those arguments drew directly on a set of ideas, indigenous to the disability rights movement, that served a crucial purpose both in obtaining wider public support for the disability rights movement and in creating a disability rights movement in the first place. As the restrictive development of ADA case law makes clear, however, framing disability rights arguments in terms of avoiding dependency comes at a cost, for it may provide insufficient justification for the significant government interventions necessary to improve employment prospects for people with disabilities.
Number of Pages in PDF File: 90
Keywords: Disabilities, Employment Discrimination, Americans with Disabilities Act
JEL Classification: J71Accepted Paper Series
Date posted: June 23, 2002
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