Obama to tackle disability inequalities?

by In Wales
Thu Jan 29th, 2009 at 02:30:25 AM EST

The world is watching Obama. There is analysis aplenty of his first few days as President, let alone of the first 100, when we come to that. We are all waiting to see what new standards his administration will set, not just for America but for the rest of world that is looking his way.

In a way it feels to me that we are waiting to see how brave he will be, how far the Overton Window will shift and how quickly our Governments will follow up with their own action, that they should have had the guts to take a long time ago. Just the basic fair and just society stuff, that shouldn't be so damn hard to squeeze out of our leaders as it is.

Obama has been teetering on the edge of a number of gay rights issues, we are not quite sure of him there. But he's set off on the first steps to ending Guantánamo, he's making the right noises and signing the right things in a number of other areas. But I'm especially pleased to read this:

With salaries lower and unemployment levels higher for people with disabilities, Obama pledged efforts to break down workplace barriers. A key aspect of that mission will involve the EEOC, which has been hampered by increasing workloads and, until last year, a lack of budget funding.


When I have visited the US, I've been impressed by how accessible it appeared to be, from the Washington Metro, to the wide flat kerbs that drop in the right places, to access to buildings and so on. Far more advanced than the UK and most areas of Europe I have visited. So accessible. I wondered why America is so much better given their really quite appalling track record with other areas of social justice. Was it Izzy that pointed out to me that America is the most litigious society on Earth? Is that really it? What are attitudes really like towards disability?

President Barack Obama has pledged that his administration will make the employment of people with disabilities a priority.

During the campaign, Obama's team said the employment rate for people with disabilities is 40 percentage points lower than for those who do not have disabilities, and that non-disabled Americans earn an average income of $65,400, while those with disabilities make $36,300.

"These dismal statistics offer evidence of severe shortcomings in our country's efforts to break down the barriers that exclude people with disabilities and deprive them of true equality of opportunity and independence," the Obama camp said.

Hmmm. That is a similar situation to the UK, where disabled people are far less likely to be in employment, and there is a clear pay gap too. But despite the significant disadvantage that disabled people in the UK face, at least there is a safety net. At least attitudes are improving.

I can't help but think of the stories we hear about the treatment of war veterans who come back to the US with mental health problems, missing limbs, disabling injuries and find themselves homeless and cast out. It ties in with Izzy's and others accounts of the horrors of navigating health insurance for illness and disability. Basically, America is not a good place to be a disabled person. The American Dream isn't for you and that's your own fault. Somehow.

Wiki tells me:

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964[3], which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Disability is defined as "a physical or mental impairment that substantially limits a major life activity."
and,

The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, worker's compensation, job training, and other terms, conditions, and privileges of employment.

The Americans with Disabilities Amendment Act came into force this month and clarifies the definition of disability (overturning some restrictive case law).

For comparison lets see the UK's Disability Discrimination Act (which was late coming in in 1995 considering equal pay legislation has been around since 1970):

The Disability Discrimination Act (DDA) 1995 aims to end the discrimination that many disabled people face. This Act has been significantly extended, including by the Disability Discrimination Act 2005. It now gives disabled people rights in the areas of:

employment
education
access to goods, facilities and services, including larger private clubs and transport services
buying or renting land or property, including making it easier for disabled people to rent property and for tenants to make disability-related adaptations
functions of public bodies, for example issuing of licences

Since the 2005 Amendment, The Act requires public bodies to promote equality of opportunity for disabled people. This promotion of equality is the big and crucial difference to our legislation. It takes things further than just not discriminating against (often difficult to prove when taking a case) and now places a duty on public bodies to promote equality for disabled people (and also on the grounds of gender and race). So failure to promote equality will lead to sanctions, as well as being found to discriminate, directly or indirectly.

So where am I going with this?

On the surface, there are many similarities between the US and the UK in terms of legislation but also the outcomes, with employment being the particular example here. There appears to have been this type of civil rights legislation in existence in the US for longer than the UK as well as the existence of the US Equal Employment Opportunity Commission since 1965:

Equal Employment Opportunity Commission - Wikipedia, the free encyclopedia

The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency charged with ending employment discrimination. The EEOC investigates discrimination complaints based on an individual's race, color, national origin, religion, sex, age, disability and retaliation for reporting and/or opposing a discriminatory practice. The Commission is also tasked with filing suits on behalf of alleged victim(s) of discrimination against employers and as an adjudicatory for claims of discrimination brought against federal agencies.

The UK has the Equality and Human Rights Commission, formed in 2007 following the merger of 3 bodies, the earliest formed being the Equal Opportunities Commission focusing on gender, set up some 10 years after the EEOC. The Equality and Human Rights Commission has a significantly wider remit than the EEOC.

About us

The previous commissions – the Equal Opportunities Commission,  the Commission for Racial Equality, and the Disability Rights Commission – have made enormous advances, changing Britain into a fairer place. But much remains to be done.

The new commission is building on their legacy to achieve change to benefit some of the most disadvantaged and voiceless people in our society.

The new commission brings together the work of the three previous equality commissions and also takes on responsibility for the other aspects of equality: age, sexual orientation and religion or belief, as well as human rights.

The Equality and Human Rights Commission acts not only for the disadvantaged, but for everyone in society, and can use its new enforcement powers where necessary to guarantee people’s equality. It also has a mandate to promote understanding of the Human Rights Act.

So what is it that is striking me here, what is the difference? The America that I have seen is one of monuments reflecting all the things that America should be proud of. It gives us messages such as;
Franklin D. Roosevelt quotes

“The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little.”

and yet the country has no real welfare state.

America aspires to be great, and for people to achieve the American Dream and yet it won't support those who for no fault of their own, are not in a position to do this.

Then the patriotism;
Pledge of Allegiance - Wikipedia, the free encyclopedia

"I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands: one Nation under God, indivisible, With Liberty and Justice for all."

But where is the justice in this hugely unequal nation? What kind of liberty is only for a select few?

So what is my point?
I sincerely hope that Obama changes this.

Human Resource Executive Online - Story

During the campaign, Obama committed to continue efforts by previous administrations to add 100,000 employees with disabilities to the federal workforce.

Such a promise sits well with Andrew Imparato, president of the American Association of People with Disabilities in Washington.

But he says, another Obama pledge would "touch an even bigger part of the economy." The president-elect promised to fully implement Section 503 of the Rehabilitation Act, which requires the government and federal contractors to "take affirmative action to employ and advance in employment qualified individuals with disabilities."

Slightly different language but a similar principle to the promoting equality emphasis of the new generation of equality legislation in the UK. Without enforcing a proactive approach, nothing will ever change.
The disadvantage that disabled people face is HUGE. Insurmountably huge. It requires a complete change of approach to address this. It isn't just about disability, it is about a sea change for the whole of society. Can Obama do this in America?

I really hope so.

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Given the overwhelming support that Obama received, does he have enough of the right 'type' of people on the ground and in Government to support the progressive change he aims to make?  

Do these people now have more of a voice and a greater chance to actually push society in the direction they've been striving for?

Ad astra per aspera

by In Wales (inwales aaat eurotrib.com) on Thu Jan 29th, 2009 at 02:40:35 AM EST
In France, the working laws force companies to recruit disabled persons up to a given percentage of the workforce or to pay a fine each year, which is used to promote disabled persons work.

Nevertheless, we have an appalling history for access to buildings, and progress is very slow in this area.

A free fox in a free henhouse!

by Xavier in Paris on Thu Jan 29th, 2009 at 06:45:14 AM EST
UK legislation doesn't make such a requirement.  The equality bill will require transparency in the form of published stats on the percentage of disabled/ethnic minority/women workers and for the gender pay gap to be published.  It also clarifies what is already possible under European legislation around positive action but this was met with uproar and 'white men can't get jobs now' headlines.

If the UK tried to force a minimum percentage of disabled workers (even in large companies - I assume the French legislation covers workplaces over a certain size??) then the public backlash would be immense.  How is that legislation perceived in France?

Ad astra per aspera

by In Wales (inwales aaat eurotrib.com) on Thu Jan 29th, 2009 at 08:30:10 AM EST
[ Parent ]
From around 1965 through the 70's there was a burgeoning of legislation to make accessible not only public buildings, but also businesses to citizens with special needs. In addition there was legislation to include special needs students within the "mainstream," providing appropriate education within the regular school system. Funding was also made available to implement the mandates.

Reagan initiated the rollback of funding and the reduction in public services - "lower taxes and less guvment." The mandates remained, but the funding dried up. Schools began to change how they identified "special needs" students. Particularly hard hit were the children who are "retarded" or "developmentally delayed." They were seen as "functioning to their fullest," therefore, no special services need be provided. Imo, this justified allowing these children to fail in the regular school system. How many completed their basic education and graduated from high school?

To complicate matters, each state interprets the mandates a bit differently and sets different standards. Each school district determines the tests for identifying "special needs" students. A kid who moves from one school district to another within a state may find they have changed from being "special" to not being "special," losing supplemental services. Crossing state lines can also result in loss of services.

A friend's son is developmentally delayed. He lives at home and works at a local grocery store, part of a chain. He stocks shelves and bags groceries. He gets to and from work on his bike - a reliable employee, participating as fully as possible. The regular customers know him, as do many in the small community. He is accepted.

Now if the grocery chain considers the "bottom line," they might reduce costs by putting in "self service" checkouts. Fewer cashiers and fewer baggers, or perhaps none at all. So my friend's son would be out of a job.

Does the government have a role in preventing this from happening? If so, in what way? I don't know.

Here in the U.S. the discrepancy between the talk and the walk in regards to the importance of people is a chasm.

 

by tampopo on Thu Jan 29th, 2009 at 10:21:17 AM EST
It's a bit sad that so often in our societies the only realistic way to be involved in community is through earning money for someone else.

Un roi sans divertissement est un homme plein de misères
by linca (antonin POINT lucas AROBASE gmail.com) on Thu Jan 29th, 2009 at 10:44:37 AM EST
[ Parent ]
There are other stories which sometimes get exposure. I read about a man who was injured, needing to use a wheelchair, no longer able to do the work he once did. He takes himself every morning to the curb and waves and smiles to drivers passing by. In turn, the drivers/passengers wave and toot horns. The man considered what he was doing a public service, as did those who drove by.

In the U.S. in the widely defined "middle class," ones employment is considered a very significant part of the answer to, "Who are you? - Who am I?" The distortion caused by the value placed on earnings and earning power is toxic. I have read pleas to contribute money to political candidates written as, "Send them some love."

From what I have observed locally, one of the things that increases the membership and power of churches is the acceptance and inclusion of many who are "different." Not all by any means. I cannot imagine gays being accepted as there is a lot of "hate the sin, love the sinner" talk. However, often efforts are made to include those with disabilities with an expectation that they will contribute to the church community. So there is an active interest in discovering talents and abilities that they may be put toward the benefit of the community.

by tampopo on Thu Jan 29th, 2009 at 11:41:19 AM EST
[ Parent ]
Two important difference I see between UK and US statutes is that the DDA undertakes to define explicitly and extensively discrimination and discriminatory practices. That is standards-setting to complement "equality" that US civil rights enforcement does not establish. For example

a provision, criterion or practice applied by or on behaf of ...
any physical feature of premises ... [that] places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled

And second, "affirmative actions" in the US are not federal statutes. What is "opportunity" here is very much a moot point.

The constitutional principle of equal protection is the prerequisite of civil rights enforcement in the US. That is a very vague standard in effect as the Constitution doesn't define what constitutes either advantage or disadvantage per se. Consequently, all laws and enforcement actions since Brown v BoE concern tort procedures to identify comparative delivery of publicly funded services and financial benefits as well as and private enterprise engaged in public commerce and employment EXCLUDING clubs and religious organizations. Civil litigation rarely "trickles up" to statutes. Each instance is a private battle and, in fact, settlement terms of such disputes is frequently subject to "gag" conditions to protect defendent's interests from prejudicial public response to the outcome.

The foundation of "affirmative action" in the US is an EO signed by LBJ --never revoked-- concerning executive agencies' enforcement of the Civil Rights Act with respect to federal business and employment practices. That guidance has resulted in "set aside" allocations of appropriations (for any federal programming) by Congress, so-called "quotas," state-, federal- and NGO-sponsored "leadership" programming, and much contemporary political vitriol against "racial preferences" and "reverse discrimination" perceived to determine allocation of government funds. Read: resentment of competition for "American Dream" benefits.

Accordingly, Mr Obama's promise "to continue efforts by previous administrations to add 100,000 employees with disabilities to the federal workforce" recognizes the limitations of his office and influence on the general private practices. Litigation is still essential to enforcement of prohibitions of discrimination, so compelling equal protection on a case by case basis, privately.

Under the original Title VII, EEOC has no authority to bring lawsuits of its own. However, private individuals may file actions in court and EEOC can recommend to the Department of Justice that it bring pattern and practice lawsuits.

Equal Employment Opportunity Act of 1972 amdended the Civil Rights Act in two very important ways. (1) identified specific types of commercial practices prohibited (e.g. housing discrimination); and (2) authorized EEOC investigatory powers to discover, determine, and certify a plaintiff's claim of discrimination, pursuant to civil litigation. Discovery is a very expensive project, when as suggested in the DDA a defendant claims ignorance of discriminatory practices.

The reality of these administrative conditions are assumptions of the HR Executive article you cite. For this reason I imagine the president of the American Association of People with Disabilities, an "issue advocacy" organization anticipating litigation of non-compliance with ADA, says

another Obama pledge [read: EO, agency memoranda on rule-making] would "touch an even bigger part of the economy." The president-elect promised to fully implement Section 503 of the Rehabilitation Act, which requires the government and federal contractors to "take affirmative action to employ and advance in employment qualified individuals with disabilities."

Today for all practicable purposes the EEOC is a (advisory) division of the office of the Attorney General of the USA in so far as the AG elects (as directed by the president) to prosecute class action complaints against a third party --or-- defend the US government in complaints brought by individual or class action suits. The latter point, I predict guarantee, will precipitate litigation of Social Security disability insurance benefits administration -- qualification of disability, determinations and appeals, claim processing, etc. -- and employers' dependencies. ADA advocates expect Mr Obama to direct agencies in facilitating such employee "entitlements."

ADA

(A) IN GENERAL- The term `employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this title, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

(B) EXCEPTIONS- The term 'employer' does not include--

(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or

(ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986.

Don't hold your breath for "a sea change."

Diversity is the key to economic and political evolution.

by Cat on Thu Jan 29th, 2009 at 12:13:27 PM EST
Really interesting, thanks for the addition.

Ad astra per aspera
by In Wales (inwales aaat eurotrib.com) on Fri Jan 30th, 2009 at 05:14:57 AM EST
[ Parent ]
You're welcome.

That has been my experience. Now, may I add this for practice, Ginsberg's dissenting opinion on Ledbetter v Goodyear, and to emphasize: Discovery is such an expensive project, plaintiffs in either the US or UK are easily discouraged from pursuing "rights." (Contrary to claims that the subsequent Ledbetter Act will produce "frivolous" lawsuits.) Whatever DDA prescribes must be provide material support for litigation by the "disadvantaged" who seek remedy of discrimination. In that sense the "market power" or resources of government may be marshaled for real "affirmative action."

Ginsberg notes

Title VII proscribes as an "unlawful employment practice" discrimination "against any individual with respect to his compensation ... because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. §2000e-2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days "after the alleged unlawful employment practice occurred." §2000e-5(e)(1). See ante, at 4; supra, at 2, n. 1.

. . . In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black employees less than similarly situated white employees. 478 U. S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Id., at 390. Employees in the "Negro branch" were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390-391, 394-395. Nonetheless, "some pre-existing salary disparities continued to linger on." Id., at 394 (internal quotation marks omitted). ...

[D]ifferent in kind from discrete acts," we made clear, are "claims ... based on the cumulative effect of individual acts." Id., at 115. The Morgan decision placed hostile work environment claims in that category. "Their very nature involves repeated conduct." Ibid. "The unlawful employment practice" in hostile work environment claims, "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct,

"[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., at 117. ...

The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts "easy to identify." A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext.

There is indeed much to learn from US history of these matters.

Diversity is the key to economic and political evolution.

by Cat on Fri Jan 30th, 2009 at 01:07:41 PM EST
[ Parent ]
The disadvantage that disabled people face is HUGE. Insurmountably huge. It requires a complete change of approach to address this. It isn't just about disability, it is about a sea change for the whole of society. Can Obama do this in America?

I really hope so.

Some fine comments from several people -as usual, MarketTrustee has encyclopedic information. Thanks.

There's another aspect of the problem faced by the disabled, and the quote above comes close to it.
I'm gonna just hit the high spots, because I'm sick today, and have no patience.

Laws are, in part, a reflection of public attitudes. Sometimes the law is a reflection of who we'd LIKE to be, rather than who we really are. And sometimes the "law" is a vengeful, hate-filled assault weapon aimed at those who EXERCISE THEIR RIGHT TO CHOOSE to be different- or, through no act of volition, ARE different.
Twenty years ago I was struck by the high quality care that disabled people got in France, but also at their isolation- no matter what the law says. It's improving. Finally the Down's syndrome kids are becoming integrated into the regular schools, after an avalanche of good studies showing it's good for both groups, but there's a lot of concealed resentment that "little darling" must endure the realities of drool and agression, of occasional disruption.

Disabled people are frightening. We remind all you "normals" of your own mortality- your own fragility.

The Bush administration went to great lengths to hide the evidence of the ultimately disabled resulting from the attempt to plunder Iraq-- the dead-- and to wall away the other disabled from public view. I think also from their own view -- and the American people enabled this--acquiesed in this fraud. Think about the Lancet study, and it's complete disappearance from main stream media. That's because we WANT it that way.
Chomsky speaks of the "Unworthy victims", and many who read his blazing, cold condemnations of what NEEDS to be condemned miss the fact that a huge swath of the social "us" can, by the magic of disability and the fear it brings, become transformed into the "them". From "Them", it's only a short step to becoming an "unworthy" "them".
The churches do mold behavior into kinder channels, but I think this is more because a commercial, market-based cultural model is BY IT'S NATURE, predatory and mean, of needs blind to the softer side- and many people have a better side to their natures-- perhaps most people. (Dons flame suit, checks oxygen level)
Laws and churches enable that kinder side-- provide an environment in which the aggressive, zero-sum executive can be a softer sort of person.
Without a social frame to enable and support empathy, you have only laws-- that fail.
Support from the human heart, one-on-one, is essential for the law to support the rights of the disabled--and all rights.  

Grabbing what you can, as John Ruskin said, isn't any less wicked when you grab it with the power of your brains than with the power of your fists.

by geezer in Paris (risico at wanadoo(flypoop)fr) on Fri Jan 30th, 2009 at 10:16:51 AM EST


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