Americans With Disabilities Act Case Study

Option 2 The Americans with Disabilities Act (ADA) was passed, in effort, to protect the hiring rights of disabled persons in the workforce. It sought to make the bigotry and prejudice that faced disabled people in the hiring process illegal and, also, to lesson the economic burden put on firms to accommodate disabled persons needs in the office by making it illegal to refuse to hire and accommodate to save money. The logic was that if all businesses must, then no business can gain a competitive advantage, which nullifies the economic reasons to not hiring them. It’s obvious that the ADA was passed to resolve an inequality of opportunity, but the kind of inequality which it seeks to rectify is a much more difficult question. By analyzing Cohen’s
“Why Not Socialism?” and select passages from Rousseau’s “Discourse on the Origin of Inequality” we find that the ADA, while seemingly aiming to fix an inequality from both bourgeois and socialist equalities of opportunity, actually only fits into bourgeois equality. To start, we will clearly define Cohen’s equalities, so that no arguments can be made on definition. Then, analyze which equality, or equalities, the inequalities addressed by the ADA falls under. Next, we’ll analyze Rousseau’s argument on innate inequality and, finally, apply it to the case at hand. In Cohen’s second chapter of “Why Not Socialism?” he lays out three levels of equality of opportunity, which he does as a way of defining what he understands socialism to be. So to begin, we must clarify these types of equalities. Specifically, we focus on the inequalities that each attempts to address. The first is Bourgeois Equality of Opportunity. This is centered around the removal of formal and informal status restrictions on life chances (Cohen 15). Jim crow laws, only men being legally allowed to vote, or wealth restrictions on voting are examples of formal status restrictions. Prevalence of societal racism, sexism, or Islamophobia are examples of informal restrictions. Second, Left-Liberal Equality of Opportunity. This version includes bourgeois equality, but also seeks to rectify the boundaries to opportunity brought by social standing and upbringing. Inequalities that arise from “those circumstances of birth and upbringing that constrain not by assigning an inferior status to their victims, but by nevertheless causing them to labour and live under substantial disadvantages” (Cohen 16). Poorer access to education and networking due to where one was born and what their parents could afford, for example. And third, Socialist Equality of Opportunity. Which includes the previous two, but also addresses the inequalities that arise from differences in natural ability, which Cohen believes are a further injustice since they are no more chosen than that of one’s social background they are born into. In this society, differences of outcome reflect nothing but one’s own taste and choice (Cohen 17-18). For example, a football player makes much more money than me, but I do not possess the same natural ability to have be a football player, which is unequal. In practice, this would be a society that pays the same hourly wage for all occupations (regardless of how well the job is done) and has communal ownership over their means of production, successfully addressing the inequalities of those who have less-employable innate talents. So now that the terms are clear, we have the means to address which type of equality, more practically inequality, the ADA seeks to address.
This is where the case at hand gets less simple. One can argue that the ADA seeks to fix not one, but two kinds of very different inequalities. First, is the prevalence of ableism, societal prejudice towards those who are disabled. Second, the fact that an employer can gain a competitive advantage by not hiring, and having to provide reasonable accommodation for, the disabled. The former, clearly falls into a bourgeois equality of opportunity society because it is addressing the injustice of having a predisposed prejudice to a group of people and can be compared easily to the prevalence of racism or sexism in a society, i.e. it’s an informal status restriction. No one, I believe, can argue that the discrimination based solely off disliking someone for being disabled is any different than disliking someone based on race or gender or sexuality. The later, dealing with competitive advantage, can be argued to fall into a socialist equality of opportunity. An employer being legally forced to hire someone with a disability, regardless of the financial strain presented by having to accommodate their business for them, is closely related to a society that implements equal pay for all work and provides communal owns of production rather than left-liberal equality or bourgeois equality. It seems as though this is addressing the fact that a
person no more chooses to be disabled, whatever the specifics, than one chooses to be born with certain innate strengths or weaknesses. Therefor, it could be argued, this falls into the unchosen inequalities, i.e. natural ability, that Cohen seeks to fix with his definition of socialism. Now, we will address Rousseau’s argument in his famed “Discourse on the Origin of Inequality”. The Discourse largely starts by defining what he believes to be man’s state of nature, which he gives a large amount of the book to because his view differs radically far from that of his contemporaries and predecessors. To give a brief summary of his argument, he concludes: Man in the state of nature had no notion of society, language, need for fellow man, war, or even family. He felt only carnal needs of sex and hunger, he could not communicate a discovery if, by chance, one was made, and progress was nonexistent; “the species was already old, and man remained ever a child (Rousseau 41). This argument is unimportant to the case at hand, but it is necessary to understand the argument he brings up immediately after. That a vast majority of the “inequalities” many consider to be innate, or natural, are rather soccially brought up by one’s background and habits. “Thus a robust or delicate temperament, and the strength or weakness that depend on it, frequently derives more from the harsh or effeminate way in which one has been raised than from the primitive constitution of bodies.” (Rousseau 42) He argues the same for what education does for mental powers. This proves, to him, that even if there are innate differences in human ability the differences that arise from social background and how one was raised are vastly more influential. With this, Rousseau practically dismisses the entirety of Cohen’s idea of a socialist equality and moves the inequalities sought to be addressed there into Cohen’s left-liberal equality. Which begs the question: can we consider a disability to be a product of social upbringing like left-liberal equality seeks to address? This is what I will try to answer in my next paragraph. Finally, in light of Rousseau’s observation I think its helpful to split innate differences into two separate categories, which I call variable and non-variable. I will use these definitions to show how the economic burden of accommodating for the disabled falls into equality and not socialist equality. Variable natural differences are abilities that that can vary in their intensities and value based on one’s own habits and how one was raised. These are those that Rousseau argues against the legitimacy of and include things like physical strength, mental ability, musical talent, etc... These are natural abilities that we can train and strengthen and even if one is born with more natural talent, one can feasibly surpass someone with natural talent with practice, hard-work, and dedication. We can dismiss these. Non-variable natural differences, however, are those that you are born with that can not change through one’s habits or how they are raised. Like the color of one’s skin, one’s biological sex, or being LGBTQ. It seems logical to me then, that being born with a disability falls firmly into the category of non-variable natural differences, which I would like to argue are a basis of inequalities of status. For status restrictions involve, for the most part, factors that one cannot change, like sexism or Government-sanctioned race-based slavery. To engage my argument, I would like to compare the economic burden aspect of hiring the disabled to equal pay for equal work. Cohen’s bourgeois equality must provide for equal pay for equal work even though there is a clear economic strain, at the beginning, on the companies that all of a sudden have to pay all its workers equally. With this in mind, I liken it to the competitive advantage inequality the ADA seeks to address. I argue that non-variable natural inequalities must be addressed fully, formally and informally, for a society to be considered to have a bourgeois equality of opportunity. The absence of formal laws protecting one’s ability to be hired or paid equally, regardless of economic burden, disqualify a society from meeting this requirement. So not the economic aspect of this argument does not address innate inequality of natural talent, but rather it provides the laws needed for there to be no formal status restriction on the disabled. To close, we defined the types of equality presented by Cohen, we saw how the ADA could be argued to seek to rectify both a status inequality and an innate inequality, and finally we applied Rousseau’s argument to the case and examined how it could bring about clarity into the argument.
The type of inequality the ADA seeks is in not akin to the inequality both socialist and bourgeois seek to fix, but only bourgeois. The first aspect of the ADA addresses the informal, while, I believe it’s now clear, the second addresses the
formal.