Eroding the Employment-At-Will Doctrine
Opportunities to make revolutionary change sometimes go unrecognized and are missed. When too few people fully grasp the potential of what is before them there is a failure to present a powerful societal force to secure reform. As Vijay Prashad noted (Welfare in CT / May 17)
Andre Gorz makes a distinction between "reformist reform" and "non-reformist reform." The former simply shores the system, allows capitalism to function more and more effectively while “non-reformist reform” in a cumulative fashion tends to transform the system. “Non reformist reform” writes Prashad is “the form of social engagement which also has the potential to put the existing social structure into crisis.” The Americans with Disabilities Act (ADA) presented one such opening in its conception of “reasonable accommodation” which challenges the terminate at-will principle dominating labor relations today.
Though not often presented as such, the ADA is a labor economics bill intended to increase the employment of workers with disabilities. The struggle for employment of disabled workers is, at base, one between capital and labor.
Traditionally, disability has been recognized as a legitimate consideration in employment decisions, often the reason for firing a worker or not hiring one from the onset. Employers have been free to employ and dismiss anyone at will. The long held doctrine of at-will employment is the crowning glory of our capitalist system. Employers can dismiss, fire, terminate without cause any worker they wanted in any absurd or arbitrary way. Workers who contest such firings under wrongful discharge have often found that a lack of warning or notice, sloppiness in the supervisor's evaluation of their performance or even personal favoritism gives no basis for relief.
Medical conditions are definitely not a plus in the view of employers. Paraplegics, diabetics, persons with a host of other conditions have been regularly terminated upon their employers' learning of their impairments. Now come disability civil rights telling these businesses that they must accommodate a worker instead of unloading them as a matter of due course. So, the ADA impinges on the long held doctrine of at-will termination by requiring employers to provide a disabled worker with a reasonable accommodation on the job.
The focus of the ADA is on equalizing the playing field for disabled workers, so they have the same opportunities to participate in employment as others do. However, the ADA goes beyond traditional civil rights in that it recognizes that in order for disabled persons to achieve equality, there is need for a reasonable accommodation.
Employers are required to alter job requirements in response to an individual's disability. Since the workplace has been primarily designed to suit nondisabled workers (which excludes the disabled members of our society), the ADA is intended to remediate that situation by telling employers they must treat disabled persons differently from nondisabled workers by making workstations accessible, providing assistive technology and interpreters where needed, modifying the job, etc. Employer discrimination is defined in the ADA, in part, as a failure to make reasonable accommodations.
So where is the potential for a crisis of the existing economic order?
The threat the ADA poses to business as usual has not gone unnoticed by the courts or by business. Law and Economics icon Judge Richard Posner ruling for the employer-defendant explains the business schematic of cost/benefit analysis to the ADA:
“If the nation's employers have potentially unlimited financial obligations to 43 million disabled persons, the Americans with Disabilities Act will have imposed an indirect tax potentially greater than the national debt. We do not find an intention to bring about such a radical result in either the language of the Act or its history. The preamble actually "markets" the Act as a cost saver, pointing to "billions of dollars in unnecessary expenses resulting from dependency and nonproductivity." The savings will be illusory if employers are required to expend many more billions in accommodation than will be saved by enabling disabled people to work.” (Vande Zande v. State of Wisconsin Dep't. of Admin., 44 F.3d 538, 543 (7th Cir. 1995)
In this case, Posner denied the disabled worker a $150 modification that would have allowed her to continue to perform her job.
The courts, which these days act as the hirelings of capital, have been overtly hostile to the ADA employment provisions. In employment discrimination cases which have been taken to court, employers prevail 95% of the time. Employers remain victorious in court. The American Bar Association's Commission on Mental and Physical Disability Law reports that while employers have complained the most of unfair treatment under the ADA, “the facts strongly suggest the opposite: employees are treated unfairly under the Act due to myriad legal technicalities that more often than not prevent the issue of employment discrimination from ever being considered on the merits.”
Law Professor Ruth Colker concludes that the courts are deploying strategies that result in “markedly pro-defendant outcomes under the ADA” by “abusing the summary judgment device.” Judges are making decisions that should go to the jury. Procedurally, she explains, this results in pro-employer outcomes because juries, traditionally more hospitable to civil rights, are not hearing the cases.
Robert Burgdorff, Jr., one of the drafters of the ADA, points to a judicial tendency to view workers as seeking special benefits and treatment instead of equal rights. Chief U.S. District Judge Terrence W. Boyle, nominated by Bush for the 4th Circuit Appeals Court, stated outright in an opinion “the ADA is not remedial legislation; it singles out a class for special treatment...[because] the ADA demands entitlement to achieve its goals.” (Brown et al. v. North Carolina Division of Motor Vehicles, No. 5:96-CV-689-BO(1)).
Courts are clearly thwarting the congressional intent of the ADA by turning away disabled persons who seek judicial remedies. Further, the Supreme Court has reduced the numbers of persons who can claim protection under the ADA by narrowing the definition of disability and by ruling it unconstitutional for a state employee to sue the state for damages under the federal law.
Economist Richard Epstein has called for the repeal of the ADA because it represents a “disguised subsidy” which interferes with business.
Business, in fact, lobbied fast and furiously against the ADA and one provision congress granted to calm concerns was the “undue hardship” clause. An employer is not mandated to provide an accommodation if to do so would create an “undue hardship” on the business. Because there are costs involved in making the workplace equally accessible to a disabled person, the civil right comes into conflict with the employers' property right. Ultimately the ADA did not break the long standing dominance of the capitalists' right to accumulate above all else; profit still supersedes the disabled worker's right to accommodation on the job.
But by-passing the “undue hardship” shortcoming and the failure of the courts to effectively enforce the ADA, what does reasonable accommodation imply for workers overall? There was a breakthrough with the reasonable accommodation provision which promised to pave the way beyond “reform” and drastically threaten the current power relationship between workers and business owners. It is revolutionary to mandate business to accommodate individual workers. What if the disabled worker's right to accommodation were to spill over into other groups' needs? What if employers were required to rearrange work schedules for single moms or dads, for instance, so they could better attend to their parental responsibilities? What if workers were to gain the power to make employers responsive to human needs; to treat workers as individuals, not solely as tools for extracting the greatest profit from their labor as possible? The ADA, by getting a foot in with the reasonable accommodation requirement, opened the door to an erosion of the employment at-will doctrine. Perhaps Gorz would agree that weakening that doctrine would be a “non-reformist reform” and rate on the capitalist rector scale as a crisis. The interests of business and conservative anti-regulatory factions, however, appear to have the upper hand while what is being lost does not appear on the public radar screen at all
Marta Russell is author of Beyond Ramps: Disability at the End of the Social Contract. She can be reached at email@example.com www.disweb.org.