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Disability and the Right to Work

Published online by Cambridge University Press:  13 January 2009

Gregory S. Kavka
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Extract

It is, perhaps, a propitious time to discuss the economic rights of disabled persons. In recent years, the media in the United States have re-ported on such notable events as: students at the nation's only college for the deaf stage a successful protest campaign to have a deaf individual ap-pointed president of their institution; a book by a disabled British physicist on the origins of the universe becomes a best seller; a pitcher with only one arm has a successful rookie season in major league baseball; a motion-picture actor wins an Oscar for his portrayal of a wheelchair-bound person, beating out another nominee playing another wheelchair-bound person; a cancer patient wins an Olympic gold medal in wrestling; a paralyzed mother trains her children to accept discipline by inserting their hands in her mouth to be gently bitten when punishment is due; and a paraplegic rock climber scales the sheer four-thousand-foot wall of Yosemite Valley's El Capitan. Most significantly, in 1990, the United States Congress passed an important bill – the Americans with Disabili-ties Act – extending to disabled people employment and access-related protections afforded to members of other disadvantaged groups by the Civil Rights Act of 1964.

Type
Research Article
Information
Social Philosophy and Policy , Volume 9 , Issue 1 , January 1992 , pp. 262 - 290
Copyright
Copyright © Social Philosophy and Policy Foundation 1992

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Footnotes

*

I am grateful to Eric Cave, Tyler Cowen, Ellen Frankel Paul, the members of the Moral and Political Philosophy Society of Orange County (MAPPS), and other contributors to this volume for helpful comments on earlier versions of this paper.

References

1 Holmes, Steven A., “House Approves Bill Establishing Broad Rights for Disabled People,” New York Times, May 23, 1990, pp. A1, A10.Google Scholar In July 1990, President Bush signed into law the Americans with Disabilities Act (104 Statute 327, Public Law 101–336, 101st Congress, second session, United States Statutes at Large) which bars discrimination against the physically and mentally disabled in public accommodations, private employment, and government services, and which also requires most businesses, transportation systems, public accommodations, and telecommunications systems to make changes in their plants and equipment to facilitate access for the handicapped.

2 In a recent article, Susan Wendell writes: “I decided to delve into what I assumed would be a substantial philosophical literature in medical ethics on the nature and experience of disability. I consulted The Philosopher's Index, looking under ‘Disability,’ ‘Handicap,’ ‘Illness,’ and ‘Disease.’ This was a depressing experience. At least 90% of philosophical articles on these topics are concerned with two questions: Under what conditions is it morally permissible/right to kill/let die a disabled person and how potentially disabled does a fetus have to be before it is permissible/right to prevent its being born?” (“Toward a Feminist Theory of Disability,” Hypatia, vol. 4, no. 2 [Summer 1989], p. 104).

3 See, for example, my own Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986), pp. 215–16, 242.

4 Holmes, “House Approves Bill,” p. A10.

5 The employment need not be with a profit-making firm. Paid work in governmental, nonprofit, or charitable organizations could serve the purpose. Even unpaid employment might vindicate a disabled person's right to work if (1) the job is seen by the person and others as tied to the person's skills and abilities, and thus can play a role in promoting self-respect (see Section II of this essay), and (2) the person has adequate financial resources from other sources (for example, from family or government programs).

61 say “relatively” uncontroversial because certain hard-line libertarian views might imply otherwise. The position expressed in Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar, which never mentions the disabled, seems to fall in this category.

7 See, for example, Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971)CrossRefGoogle Scholar; Goodin, Robert, Reasons for Welfare (Princeton: Princeton University Press, 1988)Google Scholar; and Braybrooke, David, Meeting Needs (Princeton: Princeton University Press, 1987).Google Scholar

8 Green, S. J. D., “Competitive Equality of Opportunity: A Defense,” Ethics, vol. 100, no. 1 (October 1989), p. 24.Google Scholar

9 Goodin, Robert (“Stabilizing Expectations,” Ethics, vol. 100, no. 3 [April 1990], pp. 532–53)CrossRefGoogle Scholar offers a different sort of argument against income maintenance for the long-term disabled, which might be applied also to the right to work. He writes, “Those who have been permanently incapacitated would be living a lie to persist with their same plans, just as before.… Whatever value we see in people's framing plans and projects for themselves is conditional upon their being realistic plans and projects, appropriate to the person's circumstances” (pp. 548–49). This argument overlooks the fact that what plans are “realistic” or “appropriate” in a disabled person's circumstances depends partly upon the level and types of social resources (for example, income, training, job opportunities) available to that person. Hence, it simply begs the normative question at issue to deny resources to the disabled on the grounds that it is unrealistic for them to expect to achieve the goals those resources would help them achieve. A similar point is made in Roemer, John E., “Egalitarianism, Responsibility, and Information,” Economics and Philosophy, vol. 3, no. 2 (October 1987), pp. 242–43.Google Scholar

10 Wendell (“Feminist Theory of Disability,” pp. 113–15) discusses why the presence of the disabled makes people uncomfortable.

11 Because employers cannot count on hiring disabled workers at pay much below the level of their guaranteed stipends, the possibility of large entrepreneurial profits may be greatly diminished.

12 See, e.g., Moore, G. E., Principia Ethica (London: Cambridge University Press, 1962), pp. 209–10.Google Scholar

13 Brandt, Richard, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979).Google Scholar

14 Rawls, Theory of Justice, pp. 30–32.

15 Wendell (“Feminist Theory of Disability”) characterizes and discusses this stigmatization of the disabled as a form of oppression.

16 Rawls, Theory of Justice, pp. 440–46.

17 One might wonder whether the self-respect argument for a right to work applies less strongly to disabled women, since social respect for women has traditionally been less tied to their activities in the world of paid employment. But given the increasingly active role of women in the work forces of modern advanced societies, and the difficulties that disabilities pose for women fulfilling other roles (for example, caretaker within the family), this argument seems to apply to disabled women with virtually equal force.

18 Kavka, Hobbesian Theory. On the relationship between Rawlsian and Hobbesian contractarianism, see especially ch. 5.

19 On predominant egoism, see ibid., pp. 64–80. In chapters 2 through 4 of that work, I argue that it is unclear whether Hobbes himself was commited to pure egoism, but that the weaker and more plausible doctrine of predominant egoism suffices to ground his famous argument against anarchy.

20 See Gauthier, David, “The Social Contract: Individual Decision or Collective Bargain,” eds. Hooker, C. A., Leach, J. J., and McClennen, E. F., Foundations and Applications of Decision Theory (Dordrecht: Reidel, 1978), vol. 2, pp. 47–67 CrossRefGoogle Scholar; and Hampton, Jean, “Contracts and Choices: Does Rawls Have a Social Contract Theory?” Journal of Philosophy, vol. 77, no. 6 (June 1980), pp. 315–38.Google Scholar

21 In 1988, 8.6% of the U.S. population aged 16–64 years (and 22.3% of the population aged 55–64) was “work disabled,” according to the Bureau of the Census. See their Statistical Abstract of the United States: 1989 (Washington: U.S. Government Printing Office, 1989), 109th edition, table no. 592.

22 There are even worse outcomes—for example, being disabled so badly that one is in-capable of any meaningful participation in society, regardless of the social resources devoted to one's rehabilitation. But there is little society can do to ameliorate these outcomes, other than provide for welfare needs.

23 Would social respect go along with the government-subsidized, affirmative-action jobs for the handicapped advocated in this paper? This important question is taken up in Section V below.

24 Arneson, Richard E., “Liberalism, Distributive Subjectivism, and Equal Opportunity for Welfare,” Philosophy & Public Affairs, vol. 19, no. 2 (Spring 1990), pp. 158–94.Google Scholar

25 Ibid., pp. 185–94. A similar view is put forward in Cohen, G. A., “On the Currency of Egalitarian Justice,” Ethics, vol. 99, no. 4 (July 1989), pp. 906–4.Google Scholar Both Arneson and Cohen approach the issue from an explicitly egalitarian perspective.

26 Arneson, “Liberalism, Subjectivism, and Equal Opportunity,” p. 190.

27 See ibid., p. 188, where Arneson discusses other aspects of measurability but unaccountably ignores this one.

28 Thus, Arneson (ibid., p. 194) is wrong that “the only possible justification for discriminating in the treatment of physical handicaps and other expensive preferences is a perfectionist knowledge of human good.” One justification derives from an awareness that other people believe that they have such perfectionist knowledge, and act on these beliefs in raising their children.

29 Arneson discusses a version of the laborer example. See ibid., pp. 189–90.

30 For a brief, but highly charged, discussion of this issue, see Flew, Antony, The Politics of Procrustes (Buffalo: Prometheus Books, 1981), pp. 101–2.Google Scholar

31 One of the characteristic features of libertarianism is that it extends this line of argument to cover economic, as well as personal, life.

32 I use the term “intelligence” to refer in general to complex mental capacity, without assuming that mental capacity is a unitary (rather than multi-dimensional) competence, or that standard intelligence (I.Q.) tests are a good measure of it. For some problems concerning I.Q. testing, see Block, N. J. and Dworkin, Gerald, “IQ: Heritability and Inequality, Part 1,” Philosophy & Public Affairs, vol. 3, no. 4 (Summer 1974), pp. 331–409.Google Scholar

33 Arneson, “Liberalism, Subjectivism, and Equal Opportunity,” p. 176.

34 Currently, in civil law suits, private attorneys will sometimes try to establish that particular handicapped people are responsible for their own handicaps, in order to reduce or eliminate the liability of their own clients. But, at least in doing so, they are not acting as representatives of society as a whole.

35 My own employer–the University of California–has affirmative action programs that include the disabled, and I have heard of at least one case on my own campus in which a disabled person was hired as a faculty member under such a program. On the other hand, two recent reports issued by the University (Report of the 1990 All-University Faculty Conference on Graduate Student and Faculty Affirmative Action; and Justus, Joyce Bennett, Freitag, Sandra B., and Parker, L. Leann, The University of California in the Twenty-First Century: Successful Approaches to Faculty Diversity, Spring 1987)Google Scholar contain voluminous data on women and minori-ties and many recommendations concerning their recruitment and training, but not a single mention of the disabled.

36 See, e.g., Simon, Robert, “Preferential Hiring,” Philosophy & Public Affairs, vol. 3, no. 3 (Spring 1974), pp. 312–20Google Scholar; and Fullinwider, Robert K., “On Preferential Hiring,” eds. Vetterling-Braggin, Mary, Elliston, Frederick A., and English, Jane, Feminism and Philosophy (Totowa, N.J.: Littlefield, Adams, & Co., 1977), pp. 210–24.Google Scholar

37 I remain noncommittal on how strong some of these objections are; my primary con-cern is with their comparative force in the case of the handicapped.

38 The Americans with Disabilities Act does exempt small businesses from certain requirements. See Holmes, “House Approves Bill,” p. A10.

39 In addition to this macro-allocation issue, there are also micro-allocation issues about how resources designated for aiding the disabled are to be used and distributed among people with different types and degrees of disability.

40 See Rawls's discussion of his analogous “difference principle” (Theory of Justice, pp. 75–83).