BETH RIBET
JUNE 22, 2012
UCLA DIVERSITY RESEARCH CONFERENCE –
BEYOND COUNTING
Health and Disability
in U.S. Employment as
a Measure of Diversity
Meanings of Diversity
 Numerical Presence
 Social & Structural Climate
 Distribution and Diffusion of Power
 Does diversity signal equity?
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)
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
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).
(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
Three Premises & Research Stimuli
1) Disability-friendly environments and policies can
promote workplace equity across vulnerable and
subordinated demographics
2) The contra-positive: High levels of hierarchy,
inequity and exploitation will likely predict
disability-hostile environments
3) Health and disability indicators: frequencies,
impact, and management of health problems and
disabilities reflect racial, gender, sexuality, class,
age, and citizenship disparities
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
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
 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
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
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
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
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

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.
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
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