52 Pages Posted: 14 Jan 2004
In its recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act, and specifically the questions of who should be protected under the ADA, and what such protection requires. In the wake of the Court's decisions, workers have found it increasingly difficult to assert and protect their right to be free of disability-based discrimination in the workplace. Given the widespread influence of John Rawls in contemporary discussions of social, political and economic justice, his recent and final formulation of his theory of distributive justice presents a significant and promising philosophical foundation for evaluation of Title I of the ADA and the cases interpreting it.
In particular, the two parts of Rawls's second principle of justice - the Principle of Fair Opportunity and the Difference Principle - reflect and reinforce the ADA's prohibition of both irrational and rational disability-based discrimination. The Principle of Fair Opportunity shares strong links to the ADA's protection of people with disabilities where the disability is not relevant to job performance, including protection of workers regarded as disabled or workers with a history of disability. The Difference Principle raises the issue of people with disability as least advantaged in the Rawlsian sense, and shares strong links to the ADA's protections where the disability does affect job performance, including actually disabled workers and the reasonable accommodation requirement.
Using Rawls's methodology to evaluate recent ADA jurisprudence in light of the structure and content of the ADA indicates that many of these cases are not correctly decided, and suggests a better approach informed by values of distributive justice as well as the language and stated purposes of the ADA. Although Rawls does not take us as far as we want to go, his theory has significant value for understanding and advancing the interests of workers with disabilities, and perhaps those without disabilities as well.
Keywords: Disability, ADA, John Rawls, Employment, Employment Discrimination, Reasonable Accomodation, Principle of Fair Opportunity, Difference Principle
JEL Classification: J70, J71, J78
Suggested Citation: Suggested Citation
Pendo, Elizabeth, Substantially Limited Justice?: The Possibilities and Limits of a New Rawlsian Analysis of Disability-Based Discrimination. St. John's Law Review, Vol. 77, No. 225, 2003. Available at SSRN: https://ssrn.com/abstract=481262