Health and Disability in U.S. Employment as a Measure of Diversity

1. Health and Disability in U.S. Employment as a Measure of Diversity Beth Ribet June 22, 2012 UCLA Diversity Research Conference – Beyond Counting

2. Meanings of Diversity • Numerical Presence • Social & Structural Climate • Distribution and Diffusion of Power • Does diversity signal equity?

3. Disability • Social, Legal, and Medical Definitions • Broad spectrum of illness, injury, and impairment • Changing legal landscape • Americans with Disabilities Act & ADA Amendments Act of 2008 (ADAAA) • United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)

4. Relationships Between Disability and Diversity • Disability is comparatively, an afterthought, in rhetoric and analysis of diversity • Disability is generally perceived as discrete from other vectors of diversity, such as race and gender • Disability “diversity” programs, like disability civil rights, are complicated by issues of structural access and accommodation • Integration of people with disabilities into the paid workforce has remained weak, almost static, since the passage of the ADA

5. Challenges of Disability Diversity Who Pays? Disability employment initiatives tend to break down when “accommodations” require structural change or expense Disability diversity requires a deliberate fusion of civil rights and social welfare entitlements - Sam Bagenstos, (2004), “The Future of Disability Law”, Yale Law Journal 114(1).

6. (Basic) Insights from Critical Disability Theory • Disability is a continuum, not a discrete, static basis for class membership • Disability discrimination is a social production, not a natural outgrowth of the physiology, psychology or cognition of persons with disabilities • “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” – UNCRPD, Article 1

7. Three Premises & Research Stimuli • Disability-friendly environments and policies can promote workplace equity across vulnerable and subordinated demographics • The contra-positive: High levels of hierarchy, inequity and exploitation will likely predict disability-hostile environments • Health and disability indicators: frequencies, impact, and management of health problems and disabilities reflect racial, gender, sexuality, class, age, and citizenship disparities

8. Reframing Disability in Diversity Research • Disability is not simply a discrete or intersecting vector of discrimination, or a defining characteristic relevant to diversity agendas • Disability can be an embodied consequence of discrimination, based on race, gender, sexuality, citizenship, religion, age, and class. • “Emergent Disabilities”: disabilities which would not exist, or would not be as substantial, but for social stratification and inequality

9. Contexts that Produce Emergent Disabilities • Incarceration • Colonization • Displacement & Immigrant & Refugee Exploitation • Ethnic Cleansing & Genocide • Commercial Sexual Exploitation & Human Trafficking • Labor Exploitation, Overwork, Unsafe Working Conditions

10. The absence of meaningful provisions for disability inclusion, access, and support in employment degenerates and detracts from efforts to realize diversity and employment equity across vulnerable populations • Realizing disability equity in employment requires developing a complex conception of the elements of work and labor that can be disabling, and can alienate or harm workers with disabilities

11. The Case of Family and Medical Leave Law • Basic provisions of the FMLA • Employers with 50 workers or more • Minimum year of employment • Protected forms of leavetaking: parental, medical, family caregiving • 12 weeks unpaid leave, no loss of benefits, and right to return to work • Most leavetaking (52.4%) is for illness or disability (self) • An additional 30.9% involves caregiving for a family member who is ill or disabled

12. Family & Medical Leave Law is Facially Race & Gender Neutral, But… • The FMLA works least effectively for eligible workers with: • Fewer financial safety nets • Sole caregiver responsibilities (e.g. single parents) • Limited healthcare access • Vulnerability to compound discrimination • Family & Medical Leave Law doesn’t work at all for ineligible workers: • Most migrant labor • Domestic and transitional employment • Casual and temporary workers

13. Consequences of Inadequate Leave Access • Negative Recovery or Immediate Health Outcomes • Inability to Return to Work • Decreased Productivity & Performance  Reduced Retention & Advancement • Family Deterioration and Economic Crisis • Longer-term health deterioriation • Development of co-morbid conditions • Premature mortality • Community economic and health deterioration

14. Attempts to Litigate FMLA rights • Preliminary review of compound Title VII and FMLA claims: • The more complex the discrimination and retaliation, the less likely that the court will acknowledge the relationship between vulnerability and employer action: • The Nebulous Causation and Intent Problem: the more potential bases for discrimination, the less likely that any will be substantiated • ‘Plaintiffs are just using every law to try to make something stick.’ • More ‘credible’ claims involve simple patterns of discrimination

15. Revisiting a Premise * Disability-friendly environments and policies promote workplace equity across vulnerable and subordinated demographics: Expanded, disability-friendly policies in the arena of family and medical leave will likely have disproportionately beneficial consequences for workers of color, particularly women workers of color, and for communities of origin.

16. Challenges to Diversity and Rights Framing • Highlight health as a social justice imperative • Center health as a diversity measure and agenda • Comprehend disability as a complex, directed social production, rather than a “personal”, medical happenstance. “Disability diversity” is in part about the inclusion and treatment of people injured or sickened by social inequity. • Conceive of “disability rights” based on a heightened conception of employer, and state accountability for public, worker, and family health

17. Acknowledgments • Research is partially supported by the Robert Wood Johnson Foundation • Thanks to: Dr. Leslie Bunnage at Seton Hall University -- Department of Sociology, the Public Health Law Research Program at Temple University School of Law, and Vice-Provost Christine Littleton