First, thanks for reminding me, I could just get off my ass and look at DREDF's website. Anyway, below is an excerpt from one of the papers (http://www.dredf.org/symposium/waddington.html). I think it outlines part of the conflict over disability as a medical problem in social service delivery, and disability as a civil rights issue.
I am posting it to the list so that other people can see what we are talking about and gain some background. Chuck Grimes
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1. The Social Security Act
The disability benefit programs of the Social Security Act view disability as analogous to old age a condition that calls for long term or permanent excuse from any obligation to work and acts as a justification for social support. The proposal to add a disability program to the Act in the 1950s was highly contentious. Proponents argued that disability benefits constitute a form of early retirement for those whose health has broken down prematurely. As a result, eligibility for SSDI and SSI is predicated upon a finding that an applicant is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.[14] The law further states that an individual can only be found to meet this standard if he or she is not only unable to do his previous work but cannot, considering the individual's age, education and work experience, engage in any other kind of work which exists in the national economy.[15] In essence, benefits are available only to those who are incapable of performing both their past jobs and other jobs for which they would otherwise be qualified.
The Social Security Administration (SSA) administers these requirements through an elaborate process. Individuals must present extensive medical and often testimonial evidence about their impairments and functional limitations. In many cases, the process of establishing eligibility takes years. Because of the strict eligibility requirements and the administrative obstacles, a determination of eligibility for disability benefits is difficult to obtain.
Over the years, Congress has enacted a number of provisions intended to encourage disability benefit recipients to return to work, such as creating a trial work period in which an individual can work without jeopardizing his or her benefits. However, these provisions have had d little impact to date. It is not surprising that after requiring applicants to go through a torturous process to get benefits, few of those who succeed would risk the attempt to turn around and reenter the work force. President Clinton recently signed into law the Ticket to Work and Work Incentives Improvement Act of 1999, which expands the availability of health coverage and employment services for disability benefit recipients who seek to return to the work force. The impact of this new law is not yet clear.[16]
The disability benefit programs of the Social Security Act are rooted in the social welfare model. They are based on the assumption that the disabled are incapable of work and should be supported outside of the mainstream market economy. They are also predicated on the idea that disability is an objective medically determinable status, and rely on an elaborate sorting procedure to screen people into and out of the disability category. Although the expansion of programs and services to encourage and help benefits recipients return to the work force reflects an attempt to shift the social welfare paradigm, no transformation has yet taken place.
2. The Americans with Disabilities Act
Title I of the ADA prohibits employers from discriminating against people with disabilities. The Act defines discrimination as the denial of equal jobs or benefits to a qualified individual because of a known disability. It also establishes that the failure to provide reasonable accommodations for the known physical or mental limitations of an individual with a disability is a form of discrimination, unless an employer can show that the accommodation would impose an undue burden. The principal enforcement mechanism of the ADA is the civil law suit. In order to establish a case, an ADA plaintiff must demonstrate, among other things, that he or she is qualified for the job, meaning that he or she can with or without accommodations perform the essential functions of the job in question. Finally, the ADA defines disability as a physical or mental impairment that substantially limits one or more of the major life activities of the individual. This definition has been interpreted by the courts as a threshold requirement for protection under the Act Ð every plaintiff must show that he or she falls within this definition.[17] The ADA is based on the premise that discrimination is the central problem confronting people with disabilities in the area of employment. The preamble of the ADA states that "society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against people with disabilities continue to be a serious and pervasive social problem."[18] The Act only permits the conclusion that a person is unqualified for a job due to a disability after both the essential job functions and the possibility of altering the job to accommodate the disability have been examined.
As this description makes clear, the ADA is principally based on a civil rights model of disability policy. It seeks to integrate people with disabilities into the social mainstream and to break down barriers erected by prejudice.
3. Tensions Between the ADA and the Disability Benefit Programs
In the years following the ADA's enactment, it became clear that there were significant tensions between the civil rights approach of the ADA and the social welfare programs of the Social Security Act. Viewed together, the two policies send mixed messages about disability to the general public. Moreover, these tensions create dilemmas for people with disabilities.
The ADA promotes the idea that people with disabilities should be included in the workforce and should be viewed similarly to non-disabled workers. Underpinning this approach is the premise that people with disabilities are not that different from everyone else, and therefore do not need separate parallel social institutions. The ADA is based on the idea that the principal employment barriers faced by people with disabilities are misperception and stereotypes. The analysis which the law requires employers to undertake is designed to overcome these barriers.
At the same time, the disability benefit programs emphasize the differences between people with disabilities and the non-disabled, and suggest that medical screening can effectively sort people into two different categories. The disability benefit programs encourage people with disabilities and the non-disabled public to focus on all the things that disabled people cannot do, while the ADA seeks to shift the focus to their capabilities. Moreover, the disability benefit programs can be seen as excusing employers from the obligation to hire or retain people with disabilities, because they can reject or terminate disabled applicants with the assurance that the government will provide for them.
Two examples may illuminate the problems that result from these tensions.
In administering the disability benefit programs, the Social Security Administration uses a list of impairments, defined in clinical terms, that are considered disabling per se. Claimants whose conditions satisfy the terms of this Listing are automatically presumed unable to work, and therefore qualify for benefits.[19] Any private employer who used such a list in categorizing individuals as unable to work, however, would undoubtedly run afoul of the ADA, since the list does not reflect the individualized consideration of functional limitations that the ADA requires. On the one hand, the Listing is an archetype of the medical model: it is based on and perpetuates the assumption that decisions about an individual's employability can be based on clinical test results. On the other hand, the Listing makes it much easier for some people with disabilities to obtain benefits. Since claims can be allowed, but not denied, based on the Listing, it has the effect of expanding eligibility for the benefit programs. In addition, the Listing provides elements of predictability and consistency to the benefit application process. Thus, disability advocates in the early 1990s filed a class action lawsuit against the Social Security Administration because the agency had issued a narrow and under-inclusive Listing in relation to HIV infection. The plaintiffs claimed that the absence of a better listing caused delays and unpredictability in the benefit application process for people with AIDS and related diseases.
As this discussion suggests, the Listing confronts disability advocates with a dilemma. If the goal is to sweep away outdated assumptions about disability and to emphasize the abilities, rather than the limitations, of people with disabilities, the Listing is a ripe target for attack. On the other hand, the Listing undeniably helps many people, by creating an expedited and reliable means of getting benefits into the hands of people who need them.
A second example presents another variant on this same conundrum. With increasing frequency over the past five years, employers have sought to defend ADA cases by arguing that plaintiffs should not be able to sue under the ADA once they have sought and received disability benefits. Employers have argued that since eligibility for benefits is based on claiming the inability to work, benefits recipients should not be permitted to argue that they are qualified for their former jobs. Although many courts initially accepted this line of argument and held that benefit recipients were estopped from bringing or maintaining ADA cases, this reasoning was rejected by the United States Supreme Court in 1999.[20] The Court pointed out that under the terms of the two laws, an individual can be qualified for a job under the ADA, even though he or she satisfies the definition of disability under the Social Security Act. This overlap is possible for a number of reasons, the most significant of which is the fact that the SSA does not take into account the employer's obligation to provide accommodations under the ADA.
In holding that benefit applicants are not automatically barred from bringing ADA cases, however, the Supreme Court, did not foreclose the possibility that statements made during the benefit application process could be brought back to haunt ADA plaintiffs. The plaintiff can be required to explain why he or she could claim the inability to work on an application for benefits, and yet still be qualified for the job in question. The employer is still permitted to wave the benefits application in front of a jury, and may argue that the plaintiff is simply exploiting his or her disability and lying about the impact of his or her impairments.
In both of these instances, people with disabilities may be perceived as trying to have their cake and eat it too. In one form or another, the question inevitably arises that if the goal of civil rights legislation is to ensure a place for people with disabilities in the social mainstream, then why should society maintain a separate track that gives people with disabilities benefits that are not accorded to others? If the ADA embodies the idea that people with disabilities can participate in the mainstream labour market, then why should they not be required to do so? If the premises of the civil rights model are accepted, is there any room left for social welfare programs in a coherent overall disability policy?
(Lisa Waddington, Matthew Diller, `Tensions and coherence in Disability Policy: The Uneasy Relationship Between Social Welfare and Civil Rights Models of Disability in American, European and International Employment Law')