by Ani B. Satz
“Abstract: Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons.
I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike.
Interpreting Martha Fineman’s theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law.
1. Situating Vulnerability Theory Within Existing Antidiscrimination Critique
Before applying Fineman’s vulnerability thesis to disability, it is necessary to place her theory within the existing critique of the civil rights approach to disability discrimination. Fineman does not address disability directly. Rather, she provides a more general critique of the formal equality or antidiscrimination approach to human vulnerability. Fineman is critical of a formal equality approach, which focuses on equal treatment, on three grounds. First, sameness treatment does not consider or address structural inequalities; people are treated in a like manner under existing laws and practices that entrench inequalities. Second, formal equality results in a “withering state,”74 as corporate and other private interests limit the role and ability of the government to address inequalities. As Fineman states, under the formal equality paradigm “the state minimally supervises . . . institutions in fulfilling their essential role in providing assets that give us resilience in the face of vulnerability.” Third, formal equality excludes those with vulnerabilities who are not part of a protected class. Additionally, Fineman cautions that expanding the protected class may serve as “a justification for abandoning the pursuit of substantive equality,” or addressing the structural issues contributing to disadvantage. While this is an empirical claim, it underscores the possible dangers of addressing disability discrimination by sameness treatment.
Disability scholarship discussing the inherent limitations of the civil rights approach identifies similar issues, though not necessarily in Fineman’s terms. Formal equality for disabled individuals under the ADA means being treated like individuals who do not have a disability. While this may involve accommodation, scholars and activists recognize that formal equality does not address the structural inequities that limit disabled individuals in work and civic life.
Further, commentators acknowledge the “withering state” in a narrow sense, namely, the ADA and its supporting regulations limit the federal government’s role in promoting equality because the reasonable accommodation provision is interpreted as an antidiscrimination mandate. There is little to no federal funding of accommodations, and the federal government generally does not interfere with the accommodations made by state and local governments or private parties so long as they are reasonable.
Scholarship focused on extending the protected class and the AAA purport to address the arguments contained within Fineman’s last critique: the exclusion of those with vulnerabilities from legal protections. As I argue in Part II.A, however, expanding the protected class cannot resolve some of the limitations of the identity category approach to addressing discrimination. Individuals with vulnerabilities from impairments that do not rise to the level of disabilities will remain unprotected.
2. Applying Fineman’s Vulnerability Theory to Disability
Fineman’s theory has clear applications to the disability context, both in terms of thinking about the disabled subject and the state’s response to vulnerability to impairment. To begin, a vulnerable subject may become a disabled subject. Vulnerability to disability (and other impairments) is universal and constant; we are all one curb step away from disability. We are susceptible to disability as part of the human condition.
An individual becomes disabled when certain vulnerabilities are realized. A disabled individual remains vulnerable to further disability and may experience particular vulnerabilities more acutely: “[u]ndeniably universal, human vulnerability is . . . particular [and] is experienced uniquely by each of us . . . .” Thus, the vulnerable subject differs from the dominant conception of a liberal subject, who is viewed as a normal, fully functioning adult. The vulnerable subject exists at various life stages and with a spectrum of possible abilities, including impairments to functioning.
Fineman’s conception of the vulnerable subject reveals that the current approach to disability discrimination based on protected class membership ignores the possible shared benefits of facilitating a variety of means of functioning. The ADA focuses on independence rather than dependence or interdependence (shared dependence) of individuals.
The reason for this may be the ADA’s concentration on an
independence–(inter)dependence rather than a vulnerability–resilience dichotomy. While some commentators in disability studies view interdependence as a beneficial way to view the implications of disability, others view it as potentially harmful to speak of disability in terms of interdependence, as it may invoke pity and other negative sentiments. Focusing on shared vulnerability and resilience advances the discussion.
Appealing to universal vulnerabilities removes the stigma of needing assistance and improves protections for all, eliminating backlash by those who would otherwise fail to receive protections. In contexts such as health care and employment, it may not make sense to speak of a protected class.Consider the similar vulnerabilities of disabled, minority, and at-will employees, in terms of heightened vulnerability to termination and barriers to re-entering the workforce.An even stronger analogy may be made between individuals with impairments that do not rise to the level of disability and the vulnerabilities of individuals in these other categories. As Matthew Diller notes, “[I]f the plaintiffs’ impairments do not appear serious enough, then there is no basis for distinguishing them from the general mass of workers who are subject to the vicissitudes of at-will employment and [for] grant[ing] [plaintiffs] the ‘benefit’ of accommodation and protection from discharge.” Similar arguments may be made in the health care context, as everyone benefits from broad, affordable coverage, given universal vulnerability to illness and other impairments requiring medical attention.
Perhaps most importantly, however, Fineman argues for a strong state to address universal vulnerabilities. This view sheds light on a current limitation of disability scholarship: disability literature focuses much attention on the role of the employer, but not the state, in addressing the vulnerabilities of disabled workers. The impact of the state is assumed as a constant, and immense pressure is applied to employers to address structural inequalities affecting disabled employees.
This approach seems both a Sisyphean effort and an unjust request. It is Sisyphean because employers are asked to change their practices within a system that privileges employers in terms of influence on workplace practices and wealth. It may be, as Catherine Albiston and others argue, that small alterations from the ground up in employment will address some (local) structural inequalities for disabled workers, but this seems unlikely to bring about effective, systemic change. Further, it may be unjust, as some conscientious employers may bear an immense burden to address structural inequalities, while others gain economically from not improving practices. If the state restructures its legal institutions to consider adequately the universal vulnerabilities of disabled employees, employers will share the same obligations. A topdown approach also affords uniformity in practice.
While Fineman’s theory seeks to present an alternative to an antidiscrimination approach such as the ADA, it provides insights about how a civil rights model might be improved. Fineman’s conceptualization of vulnerability supports the argument that it does not make sense to view the vulnerabilities associated with disability as arising within discrete environments under any paradigm. Vulnerability does not end when one leaves a movie theater, a workplace, or a commuter train; vulnerability based on impairments to functioning is universal and constant. Part II examines the limits of the current antidiscrimination approach to disability, focusing on the requirement of protected class membership and the fragmentation of disability protections by a civil rights approach that views vulnerability as situational.”
Ani B. Satz, Disability, Vulnerability, and the Limits of Antidiscrimination, 83 Wash. L. Rev. 513 (2008).
Available at: https://digitalcommons.law.uw.edu/wlr/vol83/iss4/6/.