Bodies in Revolt

Gender, Disability, and a Workplace Ethic of Care

Ruth O'Brien

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135393311
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

Bodies in Revolt argues that the Americans with Disabilities Act (ADA) could humanize capitalism by turning employers into care-givers, creating an ethic of care in the workplace. Unlike other feminists, Ruth O'Brien bases her ethics not on benevolence, but rather on self-preservation. She relies on Deleuze's and Guttari's interpretation of Spinoza and Foucault's conception of corporeal resistance to show how a workplace ethic that is neither communitarian nor individualistic can be based upon the rallying cry "one for all and all for one."

Chapter 1
A Subversive Act

Introduction

In 1990, the U.S. Congress and President passed a law—the Americans with Disabilities Act (ADA)—that included revolutionary employment provisions. By providing workplace accommodations, the ADA’s employment provisions make employers take into account the ongoing needs of their workers with traditional and nontraditional disabilities alike. The law defines a physical or mental impairment by virtue of what a person cannot do rather than in terms of a specific medical condition or disease. It is not that Jane has epilepsy, but what she cannot do as a result of how this disease specifically affects her unique mind and body.

This definition of disability is vast, expansive, and indeed almost universal. It transforms disability from a medical category that involves a limited group of people into one that describes the human condition. Over the course of a lifetime, a physical or mental impairment or condition such as cancer, high blood pressure, or pregnancy, will affect most people at one time or another. Hence, the ADA turns disability into an open-ended category that is nonessential, ever-evolving, and socially constructed.

Offering an expansive view of disability is nothing new. In the 1970s, Irving Zola suggested that everyone was temporarily able-bodied.¹ Thirty years later, the feminist disability theorist Rosemarie Garland-Thomson argues that disability is about identity. Instead of creating a new identity group, she contends that disability is a fundamental aspect of our human identity.² What Garland-Thomson, and other disability theorists such as Mariam Corker and Eve Sedgwick maintain is that disability offers us a “universalizing view”; or in Simi Linton’s words, it constitutes “a prism through which one can gain a broader understanding of society and human experience.”³

What is new in this book is that by recognizing the breadth of the ADA’s new definition of disability, its employment provisions could undermine one of the most basic tenets of capitalism. American business rationality generally dictates that employers use profits, not human need, to determine who receives better work conditions. By contrast, the ADA’s employment provisions, which require employers to make reasonable accommodations, take into account human need. These provisions therefore have the capacity to humanize the face of capitalism. No other provisions within labor law or civil rights law compel employers to pay heed to the individuality of their employees.

Mandating that employers address workers’ needs alters the logic underlying American business rationality not just because of the particular accommodations that those workers receive. As workers with disabilities engage with their employers in what the ADA calls an “interactive process,” requests for reasonable accommodations could undermine managerial prerogative power. The interactive process mandates that workers negotiate over the essential and nonessential tasks of a position to determine accommodations, thereby challenging what their employers (and employees without disabilities) perceive as a “normal” workplace. Employees with disabilities can scrutinize a position’s duties and responsibilities, gaining insight into workplace rules and regulations that other employees do not have. Requests for accommodations can help persons with disabilities understand the logic behind the operations of an entire workplace, something that most employers prefer to keep ambiguous.

What is more, nothing prevents employees with either permanent or temporary disabilities from sharing this perspective with other employees. Accommodating one person could well set a precedent for another. Recognizing the physical or mental individuality of a person does not mean accommodations must be constructed for each individual. For example, the scanner, designed for someone with severe vision problems, need not be reinvented for everyone who cannot see. Hence, the ADA’s employment provisions could help employees bridge the classic divide between individual rights and collective action. While unions sometimes work for the collective good at the expense of the individual, requests for accommodations further the individual and the collective good.

Finally, tying human needs to accommodations individualizes the workplace and challenges what Max Weber described as the force of rationalization in modernity.⁴ In the twentieth century, the labor process became increasingly formalized and standardized. Time–motion studies, initiated by scientific management during mass industrialism in the early twentieth century, have continued to affect more employees under Fordism during postindustrialism after World War II, and beginning in the mid-1980s, neo-Fordism within global capitalism. Whether it is on the assembly line, at a chain restaurant that sells hamburgers, or an office providing a service such as insurance, employers have created more and more precise rules and regulations that govern the work performance of the self-disciplined “standardized” body. If employers accommodate their employees, taking into account the individual peculiarities of their bodies, these employers would be undercutting the standardization of the workplace.⁵

What should concern employers is that technology has now changed so that making standardization in the workplace is no longer necessary. While management may still seek standardization, computers help managers compile data that evaluate each employee’s performance. The number of keystrokes an employee makes, for instance, can be monitored on a minute-by-minute basis. Computers can gather so much information that what distinguishes neo-Fordism from Fordism is that these machines can replace the managers. Employers, however, still demand that the individual conform to the workplace. The ADA’s employment provisions could turn this around, making the workplace conform to the individual.

The Radical Potential of the ADA

While the revolutionary character of the ADA’s employment provisions was little noticed during the legislative debate, the federal courts spotted it immediately. The courts observed that these provisions undermined the discretionary power of an employer’s right to manage. Between 1992 and 1998 almost 94 percent of all litigation was decided in favor of employers.⁶ In many rulings the federal courts emphasized how the employment provisions unnecessarily interfered with managerial prerogative power.⁷ Then, in 1999, the Supreme Court handed down three rulings that upheld and extended the lower federal court decisions, curbing the ADA’s capacity to transform the workplace.⁸ These federal courts did so, however, not by disturbing the logic or the workings of the interactive process, but by ensuring that few people fell under the ADA’s jurisdiction. In 2002, the Supreme Court rendered three more decisions that limited the scope of the employment provisions.⁹

What, then, is the point of studying a revolutionary yet extremely ineffectual law, a law that is itself largely unavailable to persons with disabilities? This book argues that the ADA should be viewed as an ideological law in the tradition of critical legal studies, one that is constitutive and reflective of a system of values and beliefs. Feminist legal theorists and critical race theorists regard law as an ideology in an approach that has become known as “perspective” scholarship. As Martha Fineman explains in her path-breaking book, The Neutered Mother, this type of scholarship shows us how to challenge “the traditional notion that law is a neutral, objective, rational set of rules, unaffected in content and form by the passions and perspectives of those who possess and wield the power inherent in law and legal institutions.”¹⁰ Perspective scholarship criticizes the dominant ideology underlying American law. Fineman, for instance, examines existing family law, arguing that it is based upon a sexual bond between husbands and wives when it should be premised upon children and those who nurture them, whether they be male or female, blood relatives or not. Perspective scholarship like this tries to speak for, at least in theory, “certain groups that have been unrepresented (or underrepresented).”¹¹

Placing the ADA in perspective scholarship, this book shows that it is a unique piece of civil rights legislation in that it recognizes a fluid identity. To be covered under the ADA one must have a substantial impairment that rises to the level of a disability, and given how a person’s health can change, this identity is not based on a static or staid category. To qualify for this category, the person in question must be individually assessed. This person’s status is altered if his or her condition changes. The ADA is therefore similar to other civil rights laws in that it is based on someone’s identity. However, it departs from these laws because the identity of a person is fluid and individual rather than static and part of a group. With both common and statutory law relying on analogies, the precedent that the ADA sets in terms of creating a fluid identity may affect those with fluid or multiple identities, such as transsexual, intersexual, or multiracial individuals. Also, medical procedures like cloning, surrogacy, abortion, and in vitro fertilization question the most basic issue of identity: what constitutes a human being. Late twentieth and early twenty-first century science focuses not on the whole body, but on its ever-changing components.

The ADA is also the first civil rights law that is not based upon a traditional rights orientation. These provisions interject a dynamic concept of need into the workplace. They make employers take into account the individuality of their employees, and by so doing, the employment provisions rest on a feminist morality—an ethic of care. Essentially, the focus on need turns employers into “caregivers,” albeit unwilling ones, who must negotiate with their employees regarding reasonable accommodations. Moreover, as employers are obliged to maintain negotiations that acknowledge the organic character of the mind and body, this care is ongoing given the changing and potentially perpetual nature of disability.¹²

Women indeed could use the ADA as a means of feminizing the workplace. In many places of employment, pregnancy is already treated like an illness or a short-term disability, allowing women to take leave with pay. This leave policy, however, does not alter the workplace culture, quite aside from raising women’s concerns about having pregnancy labeled a sickness or disability. By contrast, an expansive definition of disability recognizes the organic nature of the human mind and body, and would include most women (and men who have physical or mental needs), offering them a means of pursuing justice in the workplace. Under the ADA, many employees could negotiate over work conditions based on concrete considerations of human needs. Using a broad conception of disability would simultaneously help minimize the stigma and bias that persons with traditional disabilities face.

Studying the ADA sheds new light on the limitations of both civil rights law and labor law. Title VII of the Civil Rights Act does not get to the heart of employment discrimination. It gives women no mechanism like the ADA’s interactive process that could change the male-dominated workplace culture. Also Title VII has faced a backlash of opposition because it prevents employers from discriminating against people in specific categories. Safeguarding a group—a protected class—from discrimination does not take an individual into account, making this protection vulnerable to criticism when it is unnecessary or should be more inclusive of those who fall outside of the class.

While the National Labor Relations Act (NLRA), which is based on the majority rule principle, offers workers the ability to fight for better work conditions with collective bargaining, this legislation has failed to foster difference in the workplace.

Organized labor has not served women well.¹³ This stems in part from the fact that labor laws require that individuals who join unions that bargain on their behalf surrender their identity. Union leaders gain concessions for a group of employees or the collectivity with no respect for the employees’ individuality, including their gender.

Rationality, Morality, and Animality

As it is neither based on individual rights nor collective bargaining, the ADA nevertheless offers both persons with disabilities and women a new means of humanizing the workplace. If able-bodied workers could either overcome misconceptions they have about disability or the resentment they harbor against employees who receive accommodations, they would discover that the ADA gives them a means of gaining concessions for an entire work force that civil rights and labor laws under the limited American welfare state have failed to provide. Yet to do so, the able-bodied work force must recognize its own mental and physical vulnerability. A more universal notion of the organic mind and body or “animality” should be substituted for the concept of disability in the ADA.¹⁴

Whereas an ethic of care interjected morality into the discussion about an ethic of rights based on rationality, animality introduces the mind and body into the debate. Animality underscores that Homo sapiens, the human being, is made up of flesh and blood and that needs can be derived from this. Laws, in turn, can be based upon fulfilling these needs.

By substituting the term “animality” for “disability,” this book purports that there is no such thing as a normal healthy mind and body. This image does not reflect reality. Nor should a normal mind and body constitute an ideal to which members of society should aspire. Creating such an ideal turns human needs into weaknesses.¹⁵ It transforms physical and mental needs into aspects of one’s frailty or vulnerability, rather than one’s humanness. Armed with a vision of the ideal normal healthy mind and body, the American state and society then judges all those who fall short of it, categorizing them as subnormal or abnormal. It reveals one’s inferiority as a human being.

Starting with the premise that people have physical and mental needs turns this proposition around. The te...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• TABLE OF CONTENTS
• Preface
• Foreword: Averaging at the Edges
• 1. A Subversive Act
• 2. The Life of the Body
• 3. An Alternative Ethic of Care
• 4. The Body at Work
• 5. Unmasking Control
• 6. Unions: Bridging the Divide
• 7. Critical Care
• Endnotes
• Index