Wednesday, February 13, 2013

Porter on Accommodating Caregiving

Just up on SSRN: Nicole B. Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities.  The abstract:
This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.

In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.

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1 Comments:

Blogger Bonnie Smith said...


Why were the laws written? Who were they written for? Special treatment Stigma?
The reason we have to have a Special Treatment Stigma is because of the human being flaw. I say flaw because “one mans ceiling is another mans floor” what I see as a disability another person will see as normal. I have seen companies whose owners will hire a family member or friend who is pregnant or has family care giver obligations but will “let go” another employee who may have the same exact needs as their family member. It is a matter of who the employer deems as worthy of Special Treatment.
If it is put into law person who do not want to follow that law will find many ways around it…legally.
Look at affirmative action; even though this law is in place employers have found many ways around it. Example hire minorities especially African Americans and before their probation period is over they are let go. Then the company just hires another African American thus keeping them out of trouble with affirmative action but not honoring the letter of the law, repeating this process on and on.
Persons with disabilities did not ask to become disabled; people choose to become pregnant. Now if a parent has a child born with a disability I can see where supports need to be put into place. But to compare pregnancy and family obligations to a person with a disability is failed logic.
It is the same failed logic that placed thousands of immigrants into State Mental Institutions because the professional that evaluated them didn’t understand they spoke a different language. Or perhaps the professional only had “book sense” but no real life experience meeting someone that had a seizure or was deaf.

This is the same failed logic that opened the flood gates to the Individuals with Disabilities Education Act for not only students with Developmental Disabilities who it was originally written ,because of Congressman Humphreys experience with his granddaughter who was a person with mild Down Syndrome, but to any student within the “thirteen disability Criteria” thus taking away the needed support and financial funding for students with Developmental Disabilities; again placing them on the bottom rung of the educational feeding chart. Deeming them unworthy of the time and the money spent.The problem with adding all of the other students into Special Education; it caused a flood of over identifying students in Special Education burdening a system that was built originally for students with Developmental Disabilities thus freeing up all of the Title I dollars, which is being misspent across the nation. When I say misspent I mean it is not being spent on the millions of children with learning disabilities because they have now been placed in Special Education, it is being spent on what ever the local education agencies deem necessary since there is no accountability on what it is being spent.
Using failed logic to prove a claim will always give you what you are looking for but will it give you the answer you need?...

9:22 PM  

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