Disability, Employment Policy, and the Supreme Court

29 Pages Posted: 12 Nov 2002

See all articles by Michael Ashley Stein

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Abstract

This essay addresses Ruth O'Brien's "Crippled Justice: The History of Modern Disability Policy in the Workplace" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions.

Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.

Suggested Citation

Stein, Michael Ashley, Disability, Employment Policy, and the Supreme Court. Available at SSRN: https://ssrn.com/abstract=337722 or http://dx.doi.org/10.2139/ssrn.337722

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

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University of Pretoria Faculty of Law, Centre for Human Rights ( email )

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