ABILITY APARTHEID AND PAID LEAVE.

• Author: Nelson, Ryan H.
• Position: Annual Book Review Issue

ABLEISM AT WORK: DISABLEMENT AND HIERARCHIES OF IMPAIRMENT. By Paul David Harpur. Cambridge: Cambridge University Press. 2020. Pp. xxi, 225. $110.

INTRODUCTION

Two ripple effects of the COVID-19 pandemic are on a collision course. Lockdowns, quarantines, and plummeting consumer confidence have forced millions of American workers into unemployment (1) and compelled others to hold onto jobs that they would have left but for the pandemic. (2) This high supply and low demand for labor affords the business community virtual carte blanche in selecting which workers to hire and retain, as well as significant leeway in how they are treated. At the same time, interpersonal losses due to death and sickness, combined with massive societal disruption from social distancing and quarantining, presage an "imminent mental health surge" that mental health care professionals are calling "another 'second wave.'" (3) For instance, one study from the summer of 2020 indicated a pronounced increase in the prevalence of symptoms of various mental disorders, such as anxiety disorders, depressive disorders, and trauma- and stressor-related disorders, as well as increased substance use and suicidal ideation, attributable to the pandemic. (4) Combining these two phenomena foments the perfect storm for de facto workplace sanism--that is, prejudice against individuals with psychosocial disabilities (5)--to thrive: a material increase in mental impairments (6) coupled with employers primed to marginalize workers with a psychosocial disability who they deem to be dangerous, inefficient, unworthy of legal protection, socially unacceptable, or just not worth the effort (pp. 1, 9-10, 103, 126, 133).

Paul David Harpur's new book, Ableism at Work: Disablement and Hierarchies of Impairment, (7) offers a potential salve for these issues by exposing and critiquing the de jure sanism perpetuated by the employment laws of many common-law jurisdictions, including our own. It also lays the groundwork for progressive law reform to allay at least some of the unique harms endured by workers with psychosocial disabilities. Harpur's primary thesis is that employment laws writ large entrench a pernicious hierarchy of impairments in the workplace--privileged physical impairments on top; mental impairments marginalized below--born out of bias against workers with psychosocial disabilities (pp. 1-2). Reform-minded legislators, regulators, and scholars can use this evidence of systemic sanism to combat the de jure subjugation of workers with a psychosocial disability at a time when de facto bias against them is certain to flourish.

While legal scholarship increasingly addresses ableism--a value-based essentialism of human beings--few legal scholars or jurists have focused their work on sanism in particular. (8) This is despite the striking fact that approximately half of all Americans will be diagnosed with a mental disorder at some point in their lives. (9) For many, that disorder is acute. In a study of 2015 data, for example, the Center for Behavioral Health Statistics and Quality found that roughly ten million American adults had experienced a "serious mental illness" that year. (10) The paucity of attention paid by legal scholars to sanism juxtaposed against the ubiquity of mental impairments in America, even before the COVID-19 pandemic, highlights the exigence of Ableism at Work. Thus, in Part I, we examine and elucidate Harpur's claims of employment laws' wide-ranging sanism, supplement them with examples of our own, and argue that his assertions are convincing.

Although American medical-leave laws are prime examples of sanism, they are only briefly addressed in Ableism at Work. Part II expands Harpur's thesis by digging into the sanism of the Family and Medical Leave Act of 1993 (FMLA), recent federal paid leave laws (e.g., the Families First Coronavirus Response Act's (FFCRA) Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act), and the bevy of state and municipal paid leave laws spreading across the nation. More specifically, we highlight the sanism resulting from these laws' "temporal thresholds" and repercussions stemming from medical certifications permitting the inclusion of the employee's diagnosis.

Subsequently, in Part III, we assess the implications of Ableism at Work's global contentions on the impending battle in the United States over paid leave. To that end, we make the case for modest amendments to the Democrats' currently favored paid leave vehicle, the Family and Medical Insurance Leave Act, (11) that would minimize workplace sanism without causing repercussions for employers or radically departing from the FMLA's familiar statutory terrain. We consider this application of Harpur's scholarship to be especially timely for several reasons. Foremost, the recent change in presidential administration, paired with a more progressive Congress, has rendered such workplace law reforms a realistic possibility. Furthermore, the COVID-19 pandemic has not only increased the propensity for sanism in the workplace but also rendered the need for federal paid leave legislation even more apparent, as millions of Americans have been terminated after catching the virus or forced into the catch-22 of quitting or working a job that puts them at increased risk of contracting it. (12)

In light of all these factors, we seek to build upon the groundwork laid by Harpur at this unique time in American history, excoriate the sanism of well-intentioned law reforms before they inflict needless harm on workers with psychosocial disabilities, and facilitate the equitable treatment of workers with all disabilities.

1. ABILITY APARTHEID OF EXTANT EMPLOYMENT LAWS

   Employment laws sometimes explicitly impose sanism. Infamously, the Americans with Disabilities Act of 1990 (ADA) excludes many mental disorders and mental impairments from the scope of "disability" (13) that have long been acknowledged by medical science. (14) And even when employment laws do cover recognized mental impairments, they often relegate workers with psychosocial disabilities to a lesser caste than those with physical disabilities vis-a-vis the burden or quantum of proof required to secure legal rights or the quality and duration of such rights. (15) Of greater import than explicit sanism is Harpur's recognition that, far more commonly, employment laws exhibit sanism implicitly, as with facially neutral laws that adversely affect workers with psychosocial disabilities unjustly. (16) This Part explicates such effects, focusing on Harpur's examples and adding our own to argue that Harpur's farreaching assessment is correct.

   Harpur sets out to prove his thesis by focusing first on the international treaties, agencies, and mechanisms that combat sanism. His general assertion is that prior to the 2006 adoption of the Convention on the Rights of Persons with Disabilities (CRPD) by the United Nations, (17) international laws and standards relating to employment, including those promulgated by the International Labour Organization (ILO), were essentially sanist and insufficiently considered the needs of workers with psychosocial disabilities (pp. 26-27). By contrast, the CRPD opposes hierarchies of impairments at work and has supplanted the ILO's standards as the leading international standard on how disability is to be mediated and incorporated into the workplace. (18) Harpur supports these assertions through a textual analysis of the CRPD, as well as an analytical reading of employment-related Concluding Observations issued by the Committee on the Rights of Persons with Disabilities, the body of experts tasked with enforcing the treaty (pp. 42-46).

   Turning next to domestic laws, Harpur aptly criticizes national employment laws for predominantly following the minority group approach instead of the universalist approach (p. 86). In the minority group approach, workers are slotted into one of two buckets based on their "pan-disability" identity: disabled or not disabled. (19) Advocates of this approach generally contend that "the specific diagnosis [i]s not what matter[s]. What matter[s is] that people with all of these different diagnoses face[] exclusion from physical and social structures as a result." (20) In contrast, the universalist approach contends, at its apogee, that "all of us are disabled in some ways and for some purposes," (21) implying that the disability rights movement's focus should be coalitional in nature, based "on removing barriers to ability equality" without designing laws requiring a determination of who is "able" and who is "disabled" (p. 87). Finally, as yet another alternative, one may acquiesce in the minority group approach's line drawing out of necessity (e.g., for administrative purposes) but focus instead on universally opposing ableism regardless of which side of that line the victim falls. (22)

   Before turning to Harpur's criticism of the minority group approach and why he favors the universalist approach, it is worth briefly reflecting on one of its key shortcomings. Universalizing a group of individuals tends to erase constituents' individuality, which inflicts both a psychic harm (e.g., feeling that you do not exist as you see yourself) and a tangible harm (e.g., having interests unique to your constituency relegated to the back burner in service of the interests that maximize utility for the most constituents within the group). Universalizing a group can also inflict political harm by reducing the salience and moral authority of claims to civil and human rights protections as appropriate responses to historical and continuing exclusions from social participation. (23) For example, the gay rights movement, a name already hinting at such erasure, has recognized that a "universalizing definition of bisexuality"--the idea that "[e]veryone is bisexual" to a degree, just as universalist disability rights advocates contend that...