By Katherine Macfarlane
Disability discrimination negatively impacts the health of people with disabilities, yet disability law often overlooks discrimination’s health consequences. A health justice framework does not. It recognizes that discrimination impacts health, and then goes a step further, highlighting how legal systems are complicit in perpetuating health injustice. That wider lens better captures the lived experiences of those who experience discrimination, including people with disabilities.
My own work explores disability law’s insistence that disability be confirmed through medical examination. Without confirmation from a health care provider, disability does not exist, and reasonable accommodations need not be provided. A health justice framework has deepened my understanding of the harm those encounters impose. Identifying the full scope of the harm people with disabilities endure is the first step toward dismantling the systems that cause it.
Health Justice as Health Care Resistance, Even at Work
Emily Benfer has explained that a health justice framework recognizes that legal systems cause poor health through, inter alia, “the enactment of laws that perpetuate poor health.”
Seen through this lens, disability law, and the systems that enforce it, perpetuate poor health through their endorsement of ableist notions about people with disabilities.
For example, the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with disabilities to ensure their equal opportunity in the workplace. If disabled employees are accommodated, then they can perform their workplace duties. In theory, accommodations perpetuate good health by keeping people with disabilities gainfully employed and free of the negative health consequences of unemployment. But the ADA is applied in a way that renders the accommodations process so oppressive that it creates negative health consequences.
Consider an employee with a mobility impairment who needs to occasionally sit while working a convenience store’s cash register. A chair would suffice, permitting the employee to continue their work. As I contend in Disability without Documentation, to obtain reasonable accommodations — even a chair — employees with disabilities need medical proof of disability, obtained through an examination administered by a health care provider. The Equal Employment Opportunity Commission (EEOC) endorses this approach, and did not waive it at the height of the COVID-19 pandemic, when high-risk employees with disabilities sought accommodations to work from home.
The documentation requirement is cumbersome and potentially cost-prohibitive. It also forces people with disabilities into coercive health care encounters that their nondisabled peers need not endure. During those encounters, people with disabilities may be questioned, prodded, and studied before their disability is confirmed, if it is confirmed at all. This is disparate treatment with health consequences, including pain and stress.
A health justice approach would confront how ableism has influenced the development of reasonable accommodations law. Tying accommodations to medical documentation, for example, is consistent with the ableist belief that people with disabilities are faking, a phenomenon Doron Dorfman describes as fear of the disability con. Describing documentation’s ableist origins might persuade courts that documentation should not be a part of every accommodations decision.
Health Justice in the Workplace: Looking Ahead
Identifying how disability discrimination and legal systems create health injustice is the first step toward eliminating it. What comes next? A health justice framework also explores how to fight cultural bias, like ableism.
Robyn Powell has recently theorized that the health justice framework, “which recognizes that health is shaped by the conditions in which we live and work,” provides an “ideal foundation” for addressing discrimination and inequities experienced by people with disabilities. She has also highlighted the role health justice can play in meaningfully addressing forced sterilizations of people with disabilities. In Confronting Eugenics Means Finally Confronting Its Ableist Roots, Powell explains that understanding the lived experiences of people with disabilities means that forced sterilizations must be examined in the context of ableist beliefs that people with disabilities should not have children or sexual agency. Because health justice focuses on “the social, economic, and environmental factors that affect the health and well-being of socially marginalized communities,” in the context of eugenics, health justice recognizes ableism’s full impact.
In the context of workplace accommodations, health justice could force a rejection of ableism’s insistence that people with disabilities lie. Once they are no longer suspected of lying about their disabilities, people with disabilities could be permitted to self-attest to their disabilities’ existence. Self-attestation has played a role in recent COVID-19 vaccine protocol. Following the Centers for Disease Control and Prevention’s recommendation that people with compromised immune systems receive an additional COVID-19 vaccine, the additional dose was made available to those who self-attested to their need. My own experience with vaccine eligibility self-attestation was freeing.
Self-attestation is consistent with a health justice framework. It recognizes that people with disabilities are best suited at describing their own disabilities and the disabilities’ impact on their lives. Coupled with a more nuanced understanding of the negative impact of medically dependent accommodations, disability law might be one step closer to shedding its ableism, at least in the workplace.
Katherine Macfarlane is an associate professor of law at the Southern University Law Center and is Chair-Elect of the AALS Section on Disability Law.
