Faculty Bibliography

This essay addresses Ruth O'Brien's "Crippled Justice: The History of Modern Disability Policy in the Workplace" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions. Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.

This essay is part of a continuing research agenda proposing different approaches to the puzzle of why the overall employment rate of working-age individuals with disabilities has not increased since Title I's passage. After introducing the broad subject matter, Part II explicates and critiques studies asserting that employers can accommodate workers with disabilities inexpensively, and perhaps enjoy economic benefits as a result. Part III presents and evaluates the primary econometric investigations which find that the relative disabled employment rate has declined since the ADA's passage while wages have remained stable or improved. Both Parts II and III conclude that neither the conclusions reached by these studies, nor my ensuing critiques, are dispositive in the absence of additional empirical evidence. Lacking categorical evidence, Part IV operates from an interim working assumption that the studies examined in Parts II and III are correct. Consequently, it addresses the implications of each set of findings. Part IV(A) suggests that the accommodation cost studies, which appraise the utility of providing outlays, can be helpful in recalibrating the metric by which the economic efficiency of employees with disabilities is measured. This analysis will not result in all accommodations being seen as economically net-productive. Considering the impact of these benefits will, however, render a more balanced and appropriate calculus. Part IV(B) explores the attendant policy implications that can be addressed in light of assessments finding that Title I is causing a decline in workers with disabilities' relative employment levels. Part IV(B) asserts that continuing the status quo, eliminating the ADA, or replacing the statute completely with tax-and-spend subsidies all fail as viable options. Rather, subsidies should supplement the input costs of accommodations exceeding the reach of Title I's undue hardship standard. Finally, Part IV(C) suggests that future research assessing post-ADA employment effects can be enriched by exploring models of workforce participation outside the traditionally utilized labor market paradigm. Investigators should examine the influence that extra-legal (or "environmental") factors, such as the availability of health care insurance, have upon employment effects. They should also explore alternative metrics for success, for example the nontraditional employment experiences of entrepreneurs with disabilities.

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.

Empirical studies of post-ADA employment effects foreground a phenomenon that is puzzling. Although analyses suggest that employing workers with disabilities can be cost effective, and despite a burgeoning economy in which the unemployment rate for most categories of workers has plummeted, unemployment of working age individuals with disabilities appears not to have similarly diminished. From the point of view defined by scholars applying the neoclassical labor market paradigm to Title I, the clearest explanation of this phenomenon would seem to be that the studies reporting the cost effectiveness of employing the disabled are incorrect (even if only overstated). Following from this explication is the conclusion that selecting workers with disabilities over nondisabled workers is an inefficient practice. In what follows, I examine and assess the arguments made by proponents of the view that the inefficiency of employing workers with disabilities is a deterrent to their inclusion in the labor market. If these arguments are sound, then rational market forces appear to be inexorably at work to attenuate the strategy embodied by Title I of the ADA. To the contrary, however, I will identify a market failure that prevents certain employers from reaching rational labor market decisions by creating a "taste for discrimination" in which the costs of including people with disabilities in a workforce are perceived as being greater than they really are. Further, I will propose an improved manner for assessing the efficiency of employing workers with disabilities and consider what this method implies regarding the rationality of Title I's strategy. Finally, I will show that the failure of the existing neoclassical economic model, as well as the Title I critiques that rely on it, is attributable at least in part to societal misconceptions about people with disabilities being built into the model's assumptions. That is, far from being neutral or objective, these critiques sanction and perpetuate the very irrational biases the ADA was designed to correct.