美国残疾人法案作为福利改革

S. Bagenstos
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引用次数: 29

摘要

当国会于1990年颁布《美国残疾人法案》(ADA)时,残疾人权利支持者称赞这项法律是我国对残疾人政策的一个根本转变。然而,今天,法令的影响,至少在就业领域似乎一点也不激进。许多人将这种脱节解释为对《美国残疾人法》的“强烈反对”,特别是对一系列司法判决的“强烈反对”,在这些判决中,法院将自己对残疾的适当回应的倒退观点强加给了一项坚决拒绝这些观点的法规。本文对这种解释提出了质疑。虽然许多协助起草和游说该法规的残疾人权利倡导者都有一个基本的承诺,即社会有责任改变其制度,使所有人都能获得所有的机会——法院并没有很好地吸收这一承诺——但那些敦促通过该法规的人在很大程度上依赖于一种与该承诺有些矛盾的独特论点。在对《美国残疾人法》的广泛审议过程中,该法案的支持者一直认为,通过将残疾人从公共援助名单中移出,进入劳动力市场,这项法规对于降低依赖他人的高额社会成本是必要的。如果《美国残疾人法》的“基本前提”被视为降低残疾人依赖成本的必要条件,那么许多法院的限制性决定就开始有意义了。粗略地说,这些决定将法规的保护限制在那些没有法律就无法工作的人身上,并将所需的便利限制在那些以合理的成本效益方式将这些人转移到劳动力市场所必需的条件上。本文的重点不是支持那些限制性的决定,而是揭示《美国残疾人法》的避免依赖基础,并开始证明其作为残疾人就业政策指南的不足之处。从某种程度上说,《美国残疾人法》未能让更多的残疾人进入劳动力市场,这种失败既与法官拒绝接受该法规的基本前提有关,也与它自身固有的局限性有关。虽然保护残疾人的公民权利对于实现许多目的至关重要,但它们不是也不可能是确保尽可能多的残疾人获得有意义就业的唯一手段。这个问题仍然是一个重要的问题,因为残疾人权利倡导者在游说《美国残疾人法》时依赖于避免依赖的论点,这不仅仅是一个战术决定,会产生一些不幸的影响。这些论点直接引用了残疾人权利运动的一套思想,这些思想在为残疾人权利运动争取更广泛的公众支持和首先创建残疾人权利运动方面发挥了至关重要的作用。然而,正如《美国残疾人法》案例法的限制性发展所表明的那样,从避免依赖的角度来构建残疾人权利的论点是有代价的,因为它可能无法为改善残疾人就业前景所需的重大政府干预提供充分的理由。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The Americans with Disabilities Act as Welfare Reform
When Congress enacted the Americans with Disabilities Act (ADA) in 1990, disability rights supporters hailed the law as a radical shift in our nation's policy toward people with disabilities. Today, however, the statute's impact, at least in the employment area seems anything but radical. Many explain this disconnect as resulting from a "backlash" against the ADA and particularly a set of judicial decisions in which courts have imposed their own retrograde views of the proper response to disability on a statute that decisively rejects those views. This article challenges that explanation. While many of the disability rights advocates who assisted in drafting and lobbying for the statute shared a basic commitment to society's responsibility to alter its institutions to make all opportunities accessible to all - a commitment that the courts have not well assimilated - those who urged passage of the statute relied to a significant extent on a distinct argument that rests in some tension with that commitment. Throughout the extensive consideration of the ADA, the bill's supporters consistently argued that the statute was necessary to reduce the high societal cost of dependency by moving people with disabilities off of the public assistance rolls and into the workforce. If the "basic premise" of the ADA is seen as the imperative to reduce the cost of dependency of people with disabilities, then many of the courts' restrictive decisions begin to make sense. Roughly put, those decisions limit the statute's protections to individuals who would be largely unable to work without them, and they limit required accommodations to those that are necessary to move those individuals into the workforce in a reasonably cost-effective manner. The point of this article is not to endorse those restrictive decisions but rather to unearth the avoiding-dependency basis for the ADA and begin the process of demonstrating its inadequacy as a guide to disability employment policy. To the extent that the ADA has failed to bring more people with disabilities into the workforce, that failure has as much to do with its own inherent limitations as with judges' refusal to accept the statute's basic premises. While civil rights protections for people with disabilities are essential to serve many purposes, they are not and cannot be the exclusive means of assuring meaningful employment for the maximal number of people with disabilities. The issue remains an important one because disability rights advocates' reliance on avoiding-dependency arguments in lobbying for the ADA was not merely a tactical decision that had some unfortunate effects. Those arguments drew directly on a set of ideas, indigenous to the disability rights movement, that served a crucial purpose both in obtaining wider public support for the disability rights movement and in creating a disability rights movement in the first place. As the restrictive development of ADA case law makes clear, however, framing disability rights arguments in terms of avoiding dependency comes at a cost, for it may provide insufficient justification for the significant government interventions necessary to improve employment prospects for people with disabilities.
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