Beyond disability civil rights

Hastings Law Journal

Volumn 58, Issue 6, 2007, Pages 1203-1240

  Stein, Michael Ashley ^a   Stein, Penelope J S ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 34547944171     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (223)

1. THE SECOND ANNUAL REPORT ON THE IMPLEMENTATION OF THE USAID DISABILITY POLICY 2 (2000), available at http://pdf.dec.org/pdf_docs/PDABT610.pdf.
2. Id.
3. See Theresia Degener & Gerard Quinn, A Survey of International, Comparative and Regional Disability Law Reform, in DISABILITY RIGHTS LAW AND POLICY: INTERNATIONAL AND NATIONAL PERSPECTIVES 3, 122-24 (Mary Lou Breslin & Sylvia Yee eds., 2002) (providing a catalogue).
4. See generally JACQUELINE VAUGHN SWITZER, DISABLED RIGHTS: AMERICAN DISABILITY POLICY AND THE FIGHT FOR EQUALITY (2003).
5. 42 U.S.C. § 12101 (2000).
6. See Degener & Quinn, supra note 3.
7. See generally THE DECLINE IN EMPLOYMENT OF PEOPLE WITH DISABILITIES: A POLICY PUZZLE (David C. Stapleton & Richard V. Burkhauser eds., 2003) (providing econometric studies and policy essays).
8. For example, the 2005 employment rate among working age people with disabilities was 38%, and the poverty rate among the same group was 25%. CORNELL UNIV., REHAB. RESEARCH AND TRAINING CTR. ON DISABILITY DEMOGRAPHICS AND STATISTICS, 2005 DISABILITY STATUS REPORTS, at Summary, available at http://www.ilr.cornell.edu/edi/disabilitystatistics/StatusReports/2005-pdf/ 2005-StatusReports_US.pdf?CFID=21113391&CFTOKEN=85573403.
9. See Michael Waterstone, Civil Rights and the Administration of Elections-Toward Secret Ballots and Polling Place Access, 8 J. GENDER RACE & JUST. 101, 104 (2004) (arguing that Americans with disabilities do not have equal access to a "secret and independent ballot, and voting in a polling place," which are "hallmarks of an effective and informed right to vote").
10. This assertion can be verified by comparing the thousands of articles published by United States law journals on various aspects of the ADA to the relative handful that address comparative issues.
11. 42 U.S.C. § 2000e (2000).
12. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579, 585 (2004) (arguing that ADA accommodations are an appropriate, reasonable, and well allocated antidiscrimination device).
13. See, e.g., Eric A. Besner, Comment, Employment Legislation for Disabled Individuals: What Can France Learn from the Americans with Disabilities Act?, 16 COMP. LAB. L.J. 399, 412-20 (1995);
14. Katharina C. Heyer, The ADA on the Road: Disability Rights in Germany, 27 LAW & Soc. INQUIRY 723, 723 (2002).
15. Most prominently by United Nations soft laws and resolutions that contain aspirational statements but lack legal enforceability. See Michael Ashley Stein, Disability Human Rights, 95 CAL. L. REV. 75, 82-83 (2007).
16. G.A. Res. 61/106, U.N. Doc. A/RES/61/106 (Jan. 24, 2007). The treaty was adopted by general consensus at the United Nations on December 13, 2006, and became open for signatures by States parties on March 30, 2007. Id. Updated information about the treaty is available at http://www.un.org/esa/ socdev/enable/index.html. The text of the Convention on the Rights of Persons with Disabilities [hereinafter UN Disability Rights Convention] is available at http://www.un.org/esa/socdev/enable/documents/tccconve.pdf.
17. Broadly stated, first generation rights are thought to include prohibitions against State interference with rights that include life, movement, thought, expression, association, religion, and political participation. They are often referred to as "negative rights." Second generation rights focus on basic standards of living that States must ensure, such as the availability of employment, housing, and education. These are frequently thought of as "positive rights."
18. See Kenny Fries, INTRODUCTION TO STARING BACK: THE DISABILITY EXPERIENCE FROM THE INSIDE OUT I, 6-7 (Kenny Fries ed., 1997) (noting that "this view of disability... puts the blame squarely on the individual");
19. LAIRE H. LIACHOWITZ, DISABILITY AS A SOCIAL CONSTRUCT II (1988) (averring that the "medical/pathological paradigm" of disability, which stigmatizes the disabled by conditioning their inclusion only "on the terms of the ablebodied majority").
20. As explained by one of the originators of the theory, the social model is based on three major postulates: (1) the primary problems faced by disabled persons stem from social attitudes rather than from functional limitations; (2) all facets of the man-made environment are shaped or molded by public policy; and (3) in a democratic society, public policies represent prevailing public attitudes and values.
21. Harlan Hahn, Feminist Perspectives, Disability, Sexuality, and Law: New Issues and Agendas, 4. S. CAL. REV. L. & WOMEN'S STUD. 97, 105 (1994).
22. SUSAN WENDELL, THE REJECTED BODY: FEMINIST PHILOSOPHICAL REFLECTIONS ON DISABILITY 39 (1996).
23. See Anita Silvers, Formal Justice, in DISABILITY, DIFFERENCE, DISCRIMINATION: PERSPECTIVES ON JUSTICE IN BIOETHICS AND PUBLIC POLICY 13, 75 (Anita Silvers et al. eds., 1998).
24. Id.
25. See, e.g., Samuel R. Bagenstos, "Rational Discrimination," Accommodation, and the Politics of (Disability) Civil Rights, 89 VA. L. REV. 825, 830 (2003) (equating, on moral grounds, intentional disability exclusion with other forms of disparate treatment);
26. Stein, supra note 12 (demonstrating that disability-based exclusion is based on many, previously defeated, social conventions regarding women and people of color).
27. See generally Robert L. Burgdorf Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409, 417-18 (1997) (describing attempts to amend Title VI and Title VII of the Civil Rights Act of 1964 to include a prohibition against discrimination on the basis of physical or mental disability).
28. The title of sociologist Richard Scotch's classic story of the disability rights movement concisely sums up this dynamic: RICHARD K. SCOTCH, FROM GOOD WILL TO CIVIL RIGHTS (2d ed. 2001).
29. 29 U.S.C. § 794 (2000).
30. Richard K. Scotch, Making Change: The ADA as an Instrument of Social Reform, in AMERICANS WITH DISABILITIES: EXPLORING IMPLICATIONS OF THE LAW FOR INDIVIDUALS AND INSTITUTIONS 275, 275 (Leslie Pickering Francis & Anita Silvers eds., 2000).
31. 42 U.S.C. § 12101(a)(2), (9) (2000) (emphasis added).
32. See, e.g., G.A. Res. 37/53, ¶ 11, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/37/53 (Dec. 3, 1982) (declaring 1983-1992 as the International Decade of Disabled Persons); G.A. Res. 37/52, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/37/52 (Dec. 3, 1982) (announcing 1981 as the International Year of the Disabled).
33. Most significantly, the General Assembly adopted a World Programme of Action concerning Disabled Persons to encourage the development of national programs directed at achieving equality for persons with disabilities. G.A. Res. 37/52, ¶ 1, U.N. GAOR, 37th Sess., Supp. No. 51, U.N. Doc. A/37/52 (Dec. 3, 1982).
34. G.A. Res. 48/96, ¶ 1, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/48/96 (Dec. 20, 1993). Enacted in the same year as the Standard Rules, and also worthy of note, is the Vienna Declaration and Programme of Action, which broadly defines prohibited barriers as any "physical, financial, social or psychological" obstacles that "exclude or restrict full participation in society." World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, ¶64, U.N. Doc A/CONF. 157/23 (July 12, 1993).
35. See Degener & Quinn, supra note 3, at 20-21.
36. Congress summarized its conclusions as to this evidence in the ADA'S Findings section. 42 U.S.C. § 12101.
37. Id. §12101(a)(5), (7).
38. Id. §12101(a)(3).
39. See generally Harlan Hahn, Toward a Politics of Disability: Definitions, Disciplines, and Policies, 22 SOC. SCI. J. 87 (1985).
40. But see Adam M. Samaha, What Good is the Social Model of Disability?, 74 U. CHI. L. REV. (forthcoming 2007) (averring that the social model "has no policy implications").
41. Parenthetically, one group of academic commentators claims that, from a legal point of view, nothing can be done regarding entrenched workplace culture and attendant race- and sex-based biases in the United States. See, e.g., Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. REV. 701, 705 (2006) (arguing that disparate impact theory has only proven useful in a limited universe of testing cases);
42. Kathryn Abrams, Cross-Dressing in the Master's Clothes, 109 YALE L.J. 745, 758 (2000) (book review) (suggesting that employment discrimination law cannot "actually alter the dominant norms of most workplaces or the kinds of roles that men and women play within them").
43. But see Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 DUKE L.J. 861, 865 (2006) (arguing that the ADA, which has not been systemically applied to workplace culture issues, has positive but untapped potential). It is worth noting that the sceptics operate within traditional civil rights boundaries.
44. For discussions confined within the disability-specific context, see generally SELWYN GOLDSMITH, UNIVERSAL DESIGN: A MANUAL OF PRACTICAL GUIDANCE FOR ARCHITECTS (2000) and ROBERT IMRIE, INCLUSIVE DESIGN: DESIGNING AND DEVELOPING ACCESSIBLE ENVIRONMENTS (2001).
45. Christine Jolis, Commentary, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642, 643 (2001). Ironically, both legal commentators and judges so deeply subscribe to the opposite point of view-that ADA accommodations raise disabled workers above a level equilibrium-one commentator has termed this prevailing but erroneous perspective as "canonical." Id. at 643-44.
46. For a comprehensive treatment of what constitutes "reasonable," see Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 DUKE L.J. 79, 81 (2003).
47. For example, the United States government could provide funding for the differential cost between reasonable and extra-reasonable accommodations.
48. Michael Ashley Stein, Empirical Implications of Title I, 85 IowA L. REV. 1671, 1685 (2000).
49. A clever exception is Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 9 (2004), which suggests that second generation type provisions be construed as part of the ADA'S reasonable accommodation mandate.
50. Scotch, supra note 26, at 276 ("Using the Civil Rights Act of 1964 as a legislative template, the ADA seeks to eliminate the marginalization of people with disabilities through established civil rights remedies to discrimination.").
51. See Stein, supra note 39, at 174-77 (describing Social Benefit Gain Efficient Accommodations in which individual workers and society at large, but not necessarily employers, benefit in a Kaldor-Hicks manner from employing workers with disabilities).
52. See Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. & MARY L. REV. 921, 926-27 (2003) (noting that disability rights advocates sold the ADA to Congress in large measure as a means of increasing employment and thus decreasing public benefit dependence).
53. See, e.g., Ticket to Work Incentives Improvement Act of 1999, 42 U.S.C. § 1305 (2000);
54. Workforce Investment Act of 1998, 20 U.S.C. § 1901 (2000). But cf. Noah Zatz, Welfare to What?, 57 HASTINGS L.J. 1131, 1132 (2006) (questioning the salience of welfare to work initiatives in the absence of a clear understanding of what comprises "work"). Information on the Ticket to Work and Work Incentives Improvement Act and the Workforce Investment Act is available at http://disability.law.uiowa.edu/index.htm.
55. Bob Dole, Are We Keeping America's Promises to People with Disabilities?-Commentary on Blanck, 79 IOWA L. REV. 925 (1994).
56. See, e.g., Workforce Investment Act of 1998, 42 U.S.C. § 9201.
57. This is because the statute focuses on key (urban) stations, and allows for progressive implementation as well as alternative paratransit systems. 42 U.S.C. § 12112 (2000).
58. This point was noted almost a decade ago by Richard V. Burkhauser, Post-ADA: Are People with Disabilities Expected to Work?, 549 ANNALS AM. ACAD. POL. & SOC. SCI. 71, 75 (1997).
59. See supra note 8.
60. See, e.g., Henry Korman, Clash of the Integrationists: The Mismatch of Civil Rights Imperatives in Supportive Housing for People with Disabilities, 26 ST. LOUIS U. PUB. L. REV. 3, 40 (2007) ("There is ... a substantially higher rate of poverty among disabled families of color compared to white disabled households.").
61. See, supra note 15 and accompanying text.
62. See generally Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, 17 HARV. HUM. RTS. J. 137 (2004).
63. G.A. Res. 41/128, Annex, U.N. GAOR, 41st Sess., Supp. No. 53, U.N. Doc. A/RES/41/128/Annex (Dec. 4, 1986) [hereinafter Human Right to Development].
64. See, e.g., Philip Alston, Making Space for New Human Rights: The Case of the Right to Development, 1 HARV. HUM. RTS. Y.B. 3, 3 (1988);
65. Anne Orford, Globalization and the Right to Development, in PEOPLES' RIGHTS 127, 178 (Philip Alston ed., 2001).
66. See Alan Rosas, The Right to Development, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK 247, 248
67. (Asbjorn Eide et al. eds., 1995) (averring that the human right to development gave developing nations a moral basis in which to ground their demands for more equitable distribution of worldwide resources from more developed nations). The United States cast the only dissenting vote to the Declaration on the Right to Development. In 1993, however, it committed in principle to the right to development at the Vienna Second UN World Conference on Human Rights. See generally Arjun Sengupta, The Human Right to Development, 32 OXFORD DEVELOP. STUD. 179 (June 2004).
68. Notably, the Office of the High Commissioner on Human Rights maintains a research unit whose goal is to coordinate development tasks within the United Nations system using this approach. G.A. Res. 48/141, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/48/141 (Dec. 20, 1993).
69. JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS 25 (2d ed. 1998).
70. Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, Annex, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/180/Annex (Dec. 18, 1979).
71. Id. at arts. 1-2 (requiring States "to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise"), art. 5 (mandating that States parties modify behavior patterns arising from stereotyped notions of either sex as inferior or superior);
72. see also HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 197 (2d ed. 2000) (adding that "[t]he formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in political life").
73. STEINER & ALSTON, supra note 61, at 852;
74. see also Brad R. Roth, The CEDAW as a Collective Approach to Women's Rights, 24 MICH. J. INT'L L. 187, 203 (2002) ("[A] line between 'direct' and 'indirect' interferences with the range of chosen activity seems not only arbitrary, but potentially obfuscatory, absolving politics of responsibility for the greater part of the real impediments to chosen activity, and characterizing as 'free' a polity in which individuals are as effectively constrained, perhaps, as those in an 'unfree' polity.").
75. See Human Right to Development, supra note 55;
76. see also STEINER & ALSTON, supra note 61 at 247 ("The interdependence principle ... reflects the fact that the two sets of rights can neither logically nor practically be separated in watertight compartments.").
77. See generally Sengupta, supra note 57;
78. Margot E. Salomon, Towards a Just Institutional Order: A Commentary on the First Session of the UN Task Force on the Right to Development, 23 NETH. QUART. HUM. RTS. 409 (2005).
79. See generally PETER UVIN, HUMAN RIGHTS AND DEVELOPMENT (2004) (arguing against this notion by pointing out that human rights and development agendas have similar and overlapping goals).
80. Put in practical terms, a key challenge in implementing the human right to development lies in States striking the right balance between negative and positive rights. Take, for example, the European Union's Framework Directive prohibiting discrimination in employment on the basis of disability. Council Directive 2000/78, 2000 O.J. (L 303) 16 (EU). The Directive requires individual employers to take "appropriate measures" to provide reasonable accommodations. Id. at art. 5. However, it is neutral as to whether Member States may support disabled employment through "specific measures" (i.e., equity modifiers). Id. at art. 7. An undetermined issue is how Member States with pre-existing programs-such as the employment quota system operated in Germany-will respond to the Directive's purely antidiscrimination mandate.
81. See generally Lisa Waddington, Implementing the Disability Provisions of the Framework Employment Directive: Room for Exercising National Discretion, in DISABILITY RIGHTS IN EUROPE: FROM THEORY TO PRACTICE 107 (Anna Lawson & Caroline Gooding eds., 2005) (setting forth the Directive's requirements and assessing its implementation);
82. Fiona Geist et al., Disability Law in Germany, 24 COMP. LAB. L. & POL'Y J. 563 (2003).
83. United Nations High-Level Task Force on the Implementation of the Right to Development, C.H.R. Res. 2004/7, ¶ 9. U.N. Doc. CHR/RES/2004/7 (Apr. 13, 2004).
84. UN Millennium Development Goals, http://www.un.org/millenniumgoals (last visited Apr. 20, 2007).
85. See U.N. Econ. & Soc. Council, Comm'n on Human Rights, Working Group on the Right to Dev., Right to Development, E/CN.4/2005/25 (Mar. 3, 20005). The absence of disability awareness may have been a consequence of the lack of consultation with disability NGOs in the process.
86. The efficacy of United Nations human rights treaty monitoring bodies is a subject that far exceeds this Article. Briefly, the most recent attempt at overhauling the system was given impetus by the Secretary-General's second reform report of 2002, which calls for more coordination among monitoring bodies, greater standardization of reporting requirements, and increased monitoring at the national level. The Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, delivered to the General Assembly, U.N. Doc. A/57/387 (Sep. 9, 2002).
87. See, e.g., MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006); AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999);
88. Amartya K. Sen, Development as Capability Expansion, in HUMAN DEVELOPMENT AND THE INTERNATIONAL DEVELOPMENT STRATEGY FOR THE 1990s 94 (Keith Griffin & John Knight eds., 1990). Nussbaum's framework is harmonious with much of what Sen argues, but also differs in several significant ways.
89. An elaboration of the underlying differences is provided by David Crocker. David Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, Part II, in WOMEN, CULTURE, AND DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 153 (Martha C. Nussbaum & Jonathan Glover eds., 1995);
90. David A. Crocker, Functioning and Capability: The Foundations of Sen's and Nussbaum's Development Ethic, 20 POL. THEORY 584 (1992).
91. Thus, women in a particular country may decline educational opportunity and abide by their nation's traditional norm of home-based care giving.
92. Admittedly, because the capabilities approach (as well as the disability human rights paradigm discussed below) operate from the realm of ideal theory, neither can satisfy technical questions raised in the context of limited resource rationing.
93. See MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 56 (2000) (laying out the "principle of each person as end").
94. See MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 33 (1999) (explaining that merely inquiring into average GNP figures fails to "ask about other constituents of life quality, for example, life expectancy, infant mortality, education, health, and the presence or absence of political liberties, that are not always well correlated with GNP per capita").
95. Comparing results published in the United Nations Development Programme's annual Human Development Report series illustrates this point. Without fail one can find countries with substantially identical per capita GNP figures whose rates of female literacy vary wildly. Yet one would be hard pressed to argue that the women in countries with lower individual literacy live well in relation to those in higher individual literacy States, despite the equivalence in average (seemingly gender-neutral) GNP determinants. One also cannot determine from the aggregate GNP figures how much resource distribution any particular woman in any given State requires to achieve literacy. See generally UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORTS, http://hdr.undp.org/ reports/default.cfm (last visited Apr. 20, 2007).
96. See NUSSBAUM, Supra note 74, at 78. Sen describes capabilities as "what a person can, in fact, do or be," distinguishing the distribution of goods from the capability to use them. AMARTYA SEN, INEQUALITY REEXAMINED 37 (1992). He acknowledges that some individuals, including disabled persons, have both fewer resources and less ability to convert resources to capabilities. Id. at 37-38. The result is that some persons require more resources than others. Id. Hence a uniform entitlement scheme has the potential to be both under- and over-inclusive. Id. at 113.
97. Sen has declined to form or support a capabilities list, believing that such a catalog would undercut democratic political discourse. He has, however, assisted in the design of the United Nations Development Program's Human Development Reports, which are notable for failing, thus far, to address the situation of disabled persons. See Martha C. Nussbaum, Poverty and Human Functioning, in POVERTY AND INEQUALITY 47, 47-48, 61 (David B. Grusky & Ravi Kanbur eds., 2006).
98. Nussbaum's ten central capabilities are as follows: life (the faculty to live one's full lifespan); bodily health (having good health, including reproductive capability); bodily integrity (freedom of movement and bodily sovereignty); senses, imagination, and thought (cognizing and expressing oneself in a "truly human" way); emotions (loving, grieving and forming associations); practical reason (critical reflection and conscience); affiliation (self-respect, empathy and consideration for others); other species (being able to co-exist with other species and the biosphere); play (the ability to enjoy recreation); and control over one's political environment (via meaningful participation) and material surroundings (through property ownership and holding employment). See NUSSBAUM, supra note 74, at 78.
99. See NUSSBAUM, supra note 71, at 35, 71.
100. The requirement is based on a State's desire for legitimacy. See FRANCIS M. DENG ET AL., SOVEREIGNTY AS RESPONSIBILITY: CONFLICT MANAGEMENT IN AFRICA 33 (1996) (arguing that when states do not adequately protect their citizens, they in turn lose their moral arguments that sustain sovereignty).
101. NUSSBAUM, supra note 74, at 81, 85.
102. Id. at 97.
103. NUSSBAUM, supra note 71, at 181. This is a deeply troubling point in Nussbaum's scheme, and so worthy of elaboration. She consistently avers, following Kantian norms, that the capabilities approach values every individual as an end and as worthy of full dignity. Nevertheless, in order to set a limit on who should receive State resources, the qualities of living a dignified human life are defined by a list of central capabilities.
104. See NUSSBAUM, supra note 74, at 78-80.
105. Consequently, individuals who fall below those markers are tragic cases and, according to Nussbaum, in that respect not fully human. Nussbaum makes this point in several places, including her evaluation of the life of Sesha, Eva Kittay's severely intellectually disabled daughter. Because Sesha cannot attain threshold capability levels needed to live a "fully human life," two possibilities arise. "[E]ither we say that Sesha has a different form of life altogether, or we say that she will never be able to have a flourishing human life, despite our best efforts." NUSSBAUM, supra note 71, at 187. Since Sesha is not vegetative and displays human qualities of affection and affinity, Nussbaum concludes that she is not a different form of life. Id. Rather, Sesha is someone for whom a "flourishing human life" that is "worthy of human dignity" is out of the question. Nussbaum's determination is in direct conflict with traditional human rights theory that rejects the idea of gradation among humans. As explained by Jack Donnelly, "Human rights are, literally, the rights that one has simply because one is a human being. . . . Human rights are equal rights: one either is or is not a human being, and therefore has the same human rights as everyone else (or none at all)." JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE 10 (2d ed. 2003).
106. For example, society must channel funds "through a suitable arrangement of guardianship" for many people with intellectual disabilities. NUSSBAUM, supra note 71, at 193;
107. see also id. at 195-211 (providing domestic and international examples of guardianship that "maximize autonomy"). In reaching this determination, Nussbaum may be relying on rationality because of her Aristotelian leanings.
108. See generally Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992);
109. Martha Nussbaum, Nature, Function, and Capability: Aristotle on Political Distribution, OXFORD STUD. IN ANCIENT PHIL. 145 (Supp. 1988). As to other lower functioning individuals without intellectual disabilities-consider the socially inadroit or the sexually impotent-under this definition, the full implications exceed the boundaries of this Article, but it bears noting that the same logic applies to persons beyond the severely intellectually disabled persons who are prominently featured.
110. Undergirding this notion is a prevailing normative assumption that in a just society everyone should have the ability, if they so choose, to interact with and take part in general culture because "individuals cannot flourish without their joining with other humans in some sort of collective activities." Anita Silvers, People with Disabilities, in THE OXFORD HANDBOOK OF PRACTICAL ETHICS 300, 318 (Hugh LaFollette ed., 2004). Jacobus tenBroek and Floyd Matson first made this assertion in the context of welfare benefits by arguing that meaningful social participation means not only caring for those who are unable to work through the welfare system, but more importantly, assuring that disabled persons are able to engage in society at large.
111. Jacobus tenBroek & Floyd W. Matson, The Disabled and the Law of Welfare, 54 CAL. L. REV. 809, 840 (1966)
112. NUSSBAUM, supra note 71, at 80-81.
113. Specifically, Nussbaum asserts that Sesha Kittay lives a more socially participatory life at a segregated facility than she did in her parent's home. See supra note 83. That may well be true, and if so, Sesha has benefited. However, one can interpret the capabilities approach (even to Nussbaum's consternation) to permit people with severe intellectual disabilities to live in group homes that (unlike Sesha's) are also completely segregated from mainstream society so long as the residents interact with their peers and carers in a respectful and non-humiliating manner.
114. The concept of normal species functioning is derived from bioethicist Norman Daniels, who argues that a universal right to health care must be circumscribed to instances of ensuring or revising the "normal species functioning" necessary for individuals to arrive at the "normal opportunity range" of function within their respective societies. NORMAN DANIELS, JUST HEALTH CARE 26-35 (1985);
115. Norman Daniels, Health-Care Needs and Distributive Justice, 10 PHIL. & PUB. AFF. 146, 158-60 (1981).
116. As applied, Nussbaum uses species typicality both factually and normatively. The baseline is not only the level of capability that humans typically enjoy, but also the threshold level demanded for a life of human dignity. We thank Anita Silvers for pointing out the possibly insurmountable difficulties of invoking species typicality as a standard without also stigmatizing and excluding individuals who cannot be brought up to that level. See Silvers, supra note 85, at 306.
117. To illustrate, Nussbaum's capabilities approach does not provide resource distribution to child prodigies or savants to enable either group to exceed a species typical norm by developing their special talents. This is because resources to these individuals (assuming they were otherwise capable of attaining the ten capabilities) would stop being distributed at the point that they achieved an average human functioning level.
118. That people would choose not to achieve their own full potential raises a concern to Nussbaum, namely that of preference deformation. This concept posits that circumstances exist in which people's basic preferences (which they would recognize if unimpeded) are negatively influenced by external social forces, such as traditional hierarchies or religious beliefs. Some scholars rely on the existence of truly universal values that are common to all cultures and faiths, even if expressed in different ways. See, e.g., HANS KÜNG, A GLOBAL ETHIC FOR GLOBAL POLITICS AND ECONOMICS (1998);
119. HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (Abdullahi Ahmed AnNa'im ed., 1992). Other scholars, however, decry these universal concepts as potentially culturally invasive.
120. See, e.g., WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 97-99 (1995); Michael Ignatieff, Human Rights as Idolatry, in HUMAN RIGHTS AS POLITICS AND IDOLATRY 53 (Amy Gutman ed., 2001).
121. Consider, for example, the debate over cochlear implants. Some hearing impaired individuals prefer their status and would not use cochlear implant technology. This is especially true for those who consider themselves part of the Deaf community. But once the technological capability exists to enable deaf people to access aural communication, social pressure is brought to bear on their using this technology rather than relying on sign language interpreters. See, e.g., Canadian Association of the Deaf, Cochlear Implants, http://www.cad.ca/en/issues/cochlear_implants.asp (last visited Apr. 20, 2007).
122. See generally Owen M. Fiss, A Theory of Fair Employment Laws, 38 U. CHI. L. REV. 235 (1971) (arguing that a duty to remedy past exclusion exists when the amelioration is readily achievable).
123. See Stein, supra note 12 (explaining why ADA workplace accommodations are an appropriate, reasonable and properly allocated civil rights remedy).
124. See supra Part II.
125. See generally MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991);
126. ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT (1988); Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights, 19 HARV. WOMEN'S L.J. 89 (1996).
127. This point is made persuasively by feminist theorist Christine Koggel who avers that equality "asks what moral persons embedded and interacting in relationships of interdependency need to flourish and develop" instead of "limiting itself to an account of what individuals need to flourish as independent autonomous agents." CHRISTINE M. KOGGEL, PERSPECTIVES ON EQUALITY: CONSTRUCTING A RELATIONAL APPROACH xi (1998).
128. A. BELDEN FIELDS, RETHINKING HUMAN RIGHTS FOR THE NEW MILLENNIUM 76-77 (2003). For ways that disability theory can learn from both feminist and communitarian theory, see Carlos A. Ball, Looking for Theory in All the Right Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 OHIO ST. L.J. 105 (2005).
129. See, e.g., Jennifer Nedelsky, Reconceiving Autonomy: Sources, Thoughts and Possibilities, 1 YALE J.L. & FEMINISM 7, 12 (1989) ("[R]elatedness is not, as [the liberal] tradition teaches, the antithesis of autonomy, but a literal precondition of autonomy, and interdependence a constant component of autonomy.").
130. See supra, note 15 and accompanying text.
131. In pertinent part, the UN Disability Rights Convention's purpose is "to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities," by reaffirming "the universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without
132. Id. at arts. 4, 33.
133. See, e.g., JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 63-101 (1991) (exploring the connection between work and citizenship);
134. Vicki Schultz, Life's Work, 100 COLUM. L. REV. 1881, 1886 (2000) (noting the importance of work as "constitutive of citizenship").
135. The unemployment rate for disabled persons is estimated to be two to three times higher on average than the relative non-disabled rate in industrialized States. See Ann Elwan, POVERTY AND DISABILITY: A SURVEY OF LITERATURE 1990, at 12 (The World Bank, Social Protection Discussion Paper Series No. 9932, 1999), available at http://siteresources.worldbank.org/DISABILITY/Resources/ 280658-1172608138489/PovertyDisabElwan.pdf.
136. In the Asia Pacific region, for example, the disabled unemployment rate is roughly twice that of other citizens, and has been reported to be as high as 80 percent. Debra A. Perry, Vocational Rehabilitation and Employment: From Principles to Practice, http://www2.ilo.org/public/english/region/asro/ bangkok/ability/vrefpp.htm (last visited Apr. 20, 2007). Typically, individuals with intellectual disabilities, women, and the poor are among the most vulnerable segments of the disabled population, and experience the greatest levels of social exclusion.
137. For example, the International Labour Organization recently estimated the cost of socially excluding disabled workers as $1.9 trillion per year. Press Release, International Labour Organization, ILO Welcomes New UN Convention on Rights of People with Disabilities (Dec. 14, 2006), available at http://www.ilo.org/global/About_the_ILO/Media_and_public_information/ Press_releases/lang-en/WCMS_080627.
138. See UN Disability Rights Convention, supra note 15, at arts. 24, 26, 27.
139. Id. at art. 27 (endorsing "the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities").
140. Id. at art. 27, para.1(h).
141. The term habilitation references general educational training, including that geared towards employment. In this sense, it need not be restricted to people with disabilities. Historically, rehabilitation has referenced activities directed at assisting (often newly) disabled persons to re-enter society. Although a term of art, some disability rights activists dislike its usage because they feel it reflects a retrogressive notion that the disabled have to be "cured"-or at least trained-to re-enter society. Political scientist Ruth O'Brien calls this perception the "whole man" schema. RUTH O'BRIEN, CRIPPLED JUSTICE: THE HISTORY OF MODERN DISABILITY POLICY IN THE WORKPLACE 7 (2001).
142. For example, about 80% of disabled Chinese persons are rural residents. Yutaka Takamine, Disability Issues in East Asia: Review and Ways Forward 6 (World Bank, Working Paper No. 29299, 2004), available at http://go.worldbank.org/CPKPUFEC20. Notably, in Heilongjang province, 40% of rural disabled people could work, but lacked adequate training to do so.
143. See INT'L LABOUR OFFICE, Green Certificate Training Project, China, Raising Scorpions to Raise Income and Reduce Poverty-Integrating People with Disabilities into Agricultural Training in Rural China, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC 112, 112 (Debra A. Perry ed., 2003) [hereinafter Green Certificate Training Project].
144. See Green Certificate Training Project, supra note 110, at 112-19.
145. See id. at 112.
146. Id.
147. Id. at 115-16.
148. Id. at 112.
149. Id.
150. Id. at 116.
151. Id.
152. Id.
153. See Population & Soc. Integration Section, U.N. Econ. & Soc. Comm'n for Asia & the Pacific, Mushroom Production for People with Disabilities, in PATHFINDERS: TOWARDS FULL PARTICIPATION AND EQUALITY OF PERSONS WITH DISABILITIES IN THE ESCAP REGION, U.N. Doc. ST/ESCAP/2170 at 57, available at http://www.unescap.org/esid/psis/publications/spps/02/spps02.pdf.
154. See id. at 58.
155. Id. at 59.
156. Id. at 60.
157. Id. at 61.
158. Id. at 63, 65-69.
159. See DEBORAH WAN, TRAINING AND EMPLOYMENT OF PEOPLE WITH DISABILITIES: HONG KONG SAR 2002 29-34 (2004), available at http://www.ilo.org/public/english/region/asro/ bangkok/ability/download/hongkong-final.pdf;
160. see also INT'L LABOUR OFFICE, Self-Help Integrated Placement Service, Hong Kong SAR, Promoting Themselves-Preparing People to Find Jobs in Hong Kong SAR, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 175, 175 [hereinafter Promoting Themselves].
161. See Promoting Themselves, supra note 126, at 176-77, 179.
162. Id. at 175.
163. See INT'L LABOUR OFFICE, Japan Association for Employment of Persons with Disabilities, Japan, Policy Can Make a Difference-But Employers Sometimes Need Help Following the Laws in Japan, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 167, 167-74.
164. Id. at 170.
165. Id.
166. See id.; see also IKEDA TSUTOMU & HATTORI KANETOSHI, THE STATUS OF TRAINING AND EMPLOYMENT POLICIES AND PRACTICES FOR PEOPLE WITH DISABILITIES IN JAPAN 58 (Dec. 2002) (draft), available at http://www.ilo.org/public/english/region/asro/bangkok/ ability/download/japan.pdf.
167. See DEBORAH COHEN, THE WAR COME HOME: DISABLED VETERANS IN BRITAIN AND GERMANY, 1914-1939 (2001) (historical account of European quota practices). For a contemporary overview, see LISA WADDINGTON, DISABILITY, EMPLOYMENT, AND THE EUROPEAN COMMUNITY 219-53 (1995).
168. See Japan Organization for Employment of the Elderly and Persons with Disabilities, The Levy System for Employing Disabled Persons, http://www.jeed.or.jp/english/a-3.html (last visited Apr. 20, 2007) [hereinafter JEED];
169. see also Int'l Disability Network, Japan, in INTERNATIONAL DISABILITY RIGHTS MONITOR 2005: REGIONAL REPORT OF ASIA 78, 78-79 (2005) [hereinafter Japan IDRM]. 135.
170. See Japan IDRM, supra note 134, at 78.
171. JEED, supra note 134.
172. Id.
173. Japan IDRM, supra note 134, at 79.
174. JEED, supra note 134.
175. INT'L LABOUR OFFICE, ILO INFOCUS PROGRAMME ON SKILLS, KNOWLEDGE & EMPLOYABILITY, JAPAN COUNTRY PROFILE, EMPLOYMENT OF PEOPLE WITH DISABILITIES: THE IMPACT OF LEGISLATION (ASIA AND THE PACIFIC) 25 (2003) [hereinafter JAPAN COUNTRY PROFILE], available at http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi? article=1193&context=gladnetcollect.
176. Jpan IDRM, supra note 134, at 78;
177. see also DPI-Japan, Position Paper on Self Help Groups app. B-5 (Oct. 2006), http://www.worldenable.net/agents2006/paperdpijapan.htm (describing the efforts of DPI-Japan Advocacy Center in lobbying for the release of 9.040 Tokyo companies in default of their quota obligations).
178. See Japan IDRM, supra note 134, at 78-79.
179. Id. at 81-82
180. (citing JAPAN COUNTRY PROFILE, supra note 140).
181. Japan IDRM, supra note 134, at 78.
182. In March 2005, Professor Michael Stein testified to a Japan Diet Committee on the implications of adopting an antidiscrimination statute. See Michael Ashley Stein, Americans with Disabilities Act Policy Implications for Reforming Japanese Disability Employment Law, Proceedings of a Presentation to the Japan Diet, JAPAN DISABILITY F. BULL. (Apr. 2005) (Japanese translation).
183. See INT'L LABOUR OFFICE, Marketing Consultancy Office, Hong Kong, Opportunity in Numbers-A Progressive Government Initiative in Hong Kong SAR Creates an Alliance of NGOs to Adopt to a Changing Economy, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 208, 208-09.
184. Id. at 208.
185. Id. at 211.
186. Id. at 213-14. Further information on Marketing Consultancy Office and SEPD is available at http://www.info.gov.hk/mcor/english/sepd/profile.html.
187. See WAN, supra note 126, at 50.
188. Id.
189. See Peter D. Blanck et al., Emerging Workforce of Entrepreneurs with Disabilities: Preliminary Study of Entrepreneurship in Iowa, 85 IOWA L. REV. 1583, 1594 (2000).
190. See INT'L DISABILITY NETWORK, Vietnam, in INTERNATIONAL DISABILITY RIGHTS MONITOR 2005: REGIONAL REPORT OF ASIA 136, 136-39 (2005) [hereinafter Vietnam IDRM].
191. Id. at 138.
192. Id. at 138-39.
193. See INT'L LABOUR OFFICE, Alleviating Poverty Through Peer Training, Cambodia, Transferring Skills Villager to Villager-Alleviating Poverty Through Peer Training in Cambodia, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 85, 85-93 [hereinafter Transferring Skills];
194. see also INT'L LABOUR OFFICE, REPORT OF THE DIRECTOR-GENERAL, DECENT WORK IN ASIA: REPORTING ON RESULTS 2001-2004, FOURTEENTH ASIAN REGIONAL MEETING 73-74 (2005).
195. Transferring Skills, supra note 156, at 89.
196. Id. at 87, 91.
197. See id. at 89.
198. Id.
199. The focus on gender, as well as other information relating to ILO AbilityAsia projects is provided on the International Labour Organization, Regional Office for Asia and the Pacific homepage, http://www.ilo.org/public/ english/region/asro/bangkok/.
200. Information is provided by the Marketing Consultancy Office (Rehabilitation), Social Welfare Department, and The Government of the Hong Kong Special Administrative Region. See SOCIAL WELFARE DEP'T, THE GOV'T OF THE HONG KONG SPECIAL ADMINISTRATION REGION, GUIDE TO ENHANCING EMPLOYMENT OF PEOPLE WITH DISBILITTES THROUGH SMALL ENTERPRISE PROJECT, at 2-3 (2003), available at http://www.swd.gov.hk/dc/ rehab/3Eguide04e.pdf.
201. See INT'L LABOUR OFFICE, Rehabilitation Alliance Hong Kong, Hong Kong SAR, A Convenience for Everyone-People with Disabilities Open a 7-11 Store in Hong Kong SAR, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC 123, 123-26 (Debra A. Perry ed., 2003).
202. Id. at 123-28.
203. See DAL YOB LEE, THE STATUS OF TRAINING AND EMPLOYMENT POLICIES AND PRACTICES FOR PEOPLE WITH DISABILITIES IN THE REPUBLIC OF KOREA 52 (Dec. 2002), available at http://www.ilo.org/public/english/region/asro/bangkok/ability/download/korea. pdf.
204. See Mindy Bruton, Touchpoints: Massage and Politics in South Korea, MASSAGE THERAPY REVIEW, Feb. 2007, at 4, www.cortiva.com/pdf/deepMTR-Feb-2007.pdf.
205. The practice of setting aside massage for blind individuals can be traced back to the Japanese occupation in 1913. Id.
206. The massage offered by blind practitioners differed from that provided by sighted massage workers. Id.
207. See Damien Carrick, The Law Report: Level Playing Field or Blind Alley (Australian National Broadcasting Corporation Broadcast July 11, 2006) (transcript available at http://www.abc.net.au/rn/lawreport/stories/2006/ 1681412.htm.).
208. The decision drew an angry response from disability activists, in large part because of the generally limited employment options. Hundreds protested at the parliament building, and an extreme case committed suicide. See Hyo-sik Lee, Blind Calling for Exclusive Rights in Massage Business, KOREA TIMES, June 1, 2006;
209. A Blow for the Blind, THE ECONOMIST, June 22, 2006. The National Assembly returned the exclusive niche to the blind via a regulation that is now once more being contested in the Constitutional Court.
210. Bruton, supra note 166.
211. For example, following lobbying by disability advocates, the South Korean legislature passed a law requiring the government to preferentially purchase certain material goods, including trash bags, from people with disabilities. See INT'L LABOUR OFFICE, Eden House, Republic of Korea, Cleaning Up and Creating Work-How Trash Bags Raise the SElf-Esteem and Incomes of People with Multiple and Severe Disabilities in the Republic of Korea, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILTTIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 63, 65.
212. See INT'L LABOUR OFFICE, Bizlink, Singapore, Support Doesn't Always Mean Welfare-A Unique Community Service in Singapore Promotes Independence of Citizens with Disabilities, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 157, 157-66 [hereinafter Bizlink].
213. See generally Justin Tan-hong Tuen, Effects of the Economic Crisis on the Placement of People with Disabilities in Singapore, 2 ASIA & PAC. J. ON DISABILITY 1 (1999) (discussing the role played by the Bizlink Centre of Singapore).
214. See Bizlink, supra note 171, at 161.
215. Id. at 161, 164-65.
216. Id.
217. Id. at 165.
218. INT'L LABOUR OFFICE, Kanagawa Regional COuncil of the Japanese Electrical, Electronic and Information Union, Japan, Commitment to Community Service-A Trade Union Helps Open the Employment Field to People with Disabilities in Japan, in MOVING FORWARD: TOWARD DECENT WORK FOR PEOPLE WITH DISABILITIES: EXAMPLES OF GOOD PRACTICES IN VOCATIONAL TRAINING AND EMPLOYMENT FROM ASIA AND THE PACIFIC, supra note 110, at 221, 221-22 [hereinafter Kanagawa Regional Council].
219. Bizlink, supra note 171, at 165.
220. Id.
221. Kanagawa Regional Council, supra note 177, at 221, 224-26.
222. Id. at 222.
223. Id. at 224-26.