Am I My Brother's Keeper: Disabilities, Paternalism and Threats to Self

Abstract:     
The "direct threat defense" is a defense to a valid claim of disability discrimination. The EEOC's regulation allows an employer to fire or refuse to hire an individual with a disability based solely on the basis that the individual's disability poses a threat to an individual's own safety, assuming a reasonable accommodation cannot eliminate or reduce the threat. In 2002, the United States Supreme Court held that this EEOC regulation was a valid exercise of the EEOC's power delegated to it under the ADA. This holding allows employers to treat people with disabilities differently from other minorities even though the courts and society have refused to allow overprotective rules against women. However, this paper will show that the Court has allowed employers to claim they know what is best for individuals with disabilities and to continue to keep individuals with disabilities as a subordinate class. As reflected in the
jurisprudence of the courts, society generally allows adults to decide for themselves what risks are too great to take in choosing where to work. However, when it comes to people with disabilities, the Court has held that disabled individuals cannot make decisions about what risks are too great in their employment.

The "threat-to-self" defense under the ADA is a paternalistic infringement on the right of a person with a disability to make the decision to work in a dangerous environment. This restriction infringes on the right of a person with a disability to have full control and autonomy to make decisions about what is in his best interest. The ADA was enacted to bring people with disabilities out of their subordinated class and onto the same level as others in society. However, the Court's decision in Echazabal seems to counteract this initial purpose by continuing to subordinate people with disabilities. Because people with disabilities are viewed as existing in a subordinate state, they are denied the right to sell their labor skills in the market in the same manner as other autonomous adults. Denying this right to people with disabilities denies them the right to "alienate" their labor skills as they choose, while nondisabled people are allowed to alienate their labor skills far more freely. Through these paternalistic rules under the ADA, people with disabilities are robbed of their right to be truly free. Nondisabled adults in society are allowed to work in inherently dangerous jobs. Police officers, fire fighters, window washers, and scientists working with contagious diseases or hazardous materials are just a few of the dangerous occupations that nondisabled adults are allowed to choose for themselves without intervention from society. Society even allows adults to decide to discontinue their lives under certain circumstances. Echazabal, however, holds that adults with disabilities are not allowed to decide for themselves what employment situations are too dangerous for them to undertake. As a result of this paternalism, society continues to subordinate people with disabilities.

Keywords: disability, paternalism, threats to self, autonomy,

JEL Classifications: J70, J71, J78

Accepted Paper Series