By Robyn Powell
The COVID-19 pandemic has highlighted the pervasive inequities experienced by historically marginalized communities, including people with disabilities.
Activists, legal professionals, scholars, and policymakers must critically examine the limitations of our current disability laws and policies, including the Americans with Disabilities Act (ADA), to elucidate why disabled people continue to endure these inequities, including those related to economic insecurity.
The relationship between disability and poverty is unmistakable. According to the U.S. Census Bureau, people with disabilities have low rates of employment, low median annual earnings, and high rates of poverty. According to the U.S. Department of Labor’s Bureau of Labor Statistics, in 2020, only 18% of disabled people were employed, compared to 62% of nondisabled. The income gap between people with and without disabilities is similarly staggering. Moreover, research indicates disabled people of color have decreased educational attainment and employment and increased levels of poverty, food insecurity, and medical debt.
Although disabled people have always experienced inequities concerning economic security, these disparities have grown substantially throughout the COVID-19 pandemic. During the early months of the pandemic, disabled people became unemployed at disproportionate rates, likely related to substantial employment declines in certain industries, such as retail and hospitality, where disabled people are overrepresented. People with disabilities also experienced difficulties getting hired because of health-related discrimination in the COVID-19 context. Additionally, some disabled people at heightened risk for severe illness from COVID-19 were denied opportunities to work from home as a reasonable accommodation. Unsurprisingly, disabled people of color are experiencing heightened economic inequities during the pandemic, including higher rates of unemployment.
The COVID-19 pandemic has exposed the shortcomings of our current disability laws and policies, particularly those related to economic insecurity. Notably, the employment rate of people with disabilities has not increased despite the ADA, which prohibits disability-based discrimination in the workplace. This is partly because many of the barriers to employment encountered by disabled people have nothing to do with employers’ actions. Indeed, many barriers to work for disabled people are outside the scope of the ADA, such as a scarcity of personal assistant services, a lack of assistive technology, and a shortage of affordable and accessible transportation.
Similarly, our health care system is a significant barrier to employment because most private health insurance companies do not cover critical supports for disabled people, such as personal assistant services. Further, safety net programs, such as Medicaid and Supplemental Security Income (SSI), have stringent rules that prevent people with disabilities from working while simultaneously forcing them to live in poverty.
The pervasive economic insecurity experienced by disabled people, especially during the COVID-19 pandemic, demonstrates the need for transformative legal and policy responses. Importantly, all legal and policy solutions must confront intersecting oppressions and embrace both cross-disability and cross-movement solidarity. In other words, legal and policy responses must take a Disability Justice approach.
Disability Justice has been called the “second wave” of the disability rights movement. It is an intersectional movement, theory, and praxis initially conceived in 2005 by queer, trans, gender non-conforming, and racialized disabled people. Disability Justice activists contend that the disability rights movement fails to recognize multiply marginalized disabled people and has largely overlooked the needs and experiences of people with intellectual and psychiatric disabilities.
Based on the tenets of Disability Justice, activists, legal professionals, scholars, and policymakers must ensure that future legal and policy efforts relating to economic security for disabled people seek to address ableism and dismantle the intersecting oppressions experienced by disabled people who live at the intersection of disability and other marginalized identities. Importantly, dismantling intersecting oppressions will require centering the needs and voices of multiply marginalized people with disabilities.
To achieve these aims, legal and policy responses must ensure that people with disabilities receive: livable wages, increased employment and education opportunities, accessible and affordable housing, universal health insurance, and accessible and affordable transportation. For example, implementing universal health coverage could enable people with disabilities to work while retaining necessary supports, such as personal assistant services. Additionally, employers must finally embrace remote work as a reasonable accommodation. While employers have traditionally denied disabled people remote work, the COVID-19 pandemic has demonstrated the potential for this reasonable accommodation. Indeed, remote work during the pandemic increased employment opportunities for many disabled people.
Moreover, legal and policy responses must tackle the roots of poverty among disabled people. One such approach would be to provide a universal basic income for all people, which experts say could facilitate people receiving the assistance they need without having to navigate many levels of bureaucracy. Moreover, replacing existing safety net programs, like SSI, with universal basic income would simplify the administration of these programs and shrink government spending. However, expanding safety net programs, such as SSI and Medicaid, would be important as an interim measure. Although universal basic income would remove the need for such programs, implementing it could take time, and changes to safety net program rules would help address disabled people’s needs in the short term.
Significantly, developing research suggests labor force participation may be rebounding at greater rates for people with disabilities than people without disabilities. Though a challenging labor market probably explains some of the growth in employment among disabled people, the prevalence and long consequences of COVID-19 is probably the most significant factor. Initial research indicates one-in-four non-hospitalized COVID-19 patients may experience symptoms for months (known as “long COVID”), and is even more prevalent among people who were hospitalized for COVID-19. In July 2021, the U.S. Departments of Justice (DOJ) and Health and Human Services (HHS) issued guidance indicating long COVID may be considered a disability. The U.S. Equal Employment Opportunity Commission (EEOC) has similarly stated employees with long COVID may be protected from discrimination in the workplace.
As the disabled workforce grows in light of the COVID-19 pandemic, the need to confront the pervasive inequities that they experience becomes all the more urgent. To do so, we must move beyond the prevailing approach to disability rights and instead adopt Disability Justice.
Robyn Powell is a Visiting Assistant Professor at Stetson University College of Law.
