Returning veterans and disability law.

• Author: Waterstone, Michael E.

Federal laws and policies as they relate to the employment of people with disabilities are at war with themselves. Antidiscrimination law, primarily through the Americans with Disabilities Act, is premised on the empowering idea that people with disabilities can and should work once discriminatory societal barriers are removed. But antidiscrimination law does not work alone. There is a separate sphere of social welfare policies that provides more affirmative forms of assistance to people with disabilities. These older programs contain significant work disincentives and are often conditioned on detachment from the labor force. These divergent views of disability and employment have contributed to the low success rate in moving and keeping people with disabilities in the workforce.

The federal laws and programs for veterans with disabilities demonstrate that a more coherent policy is possible. Federal employment policy for veterans with disabilities is more integrated and encourages workforce participation through both antidiscrimination law and social welfare policies. The occasion of the largest wave of returning veterans with disabilities in recent history, combined with the renewed need to create employment opportunities for all groups in light of rising unemployment rates, creates a unique opportunity to analyze what can be learned from this more coherent framework.

INTRODUCTION I. THE INCONSISTENT STRATEGIES OF EMPLOYMENT POLICY FOR PEOPLE WITH DISABILITIES II. DIFFERENT POPULATIONS AND A TWO-TIERED LEGAL AND POLICY SCHEME A. Different Populations B. Two-Tiered Employment Policy C. Two-Tiered Results? III. LOOKING AHEAD CONCLUSION INTRODUCTION

These are interesting times in disability law. Disability has not always occupied center stage in the struggle for civil fights. Yet with the return of veterans with disabilities from Iraq and Afghanistan--the largest such wave in recent history--the disability experience is much more in the public consciousness. The outrage over conditions at the Walter Reed Medical Center was an expression of public support for the cause of wounded veterans. (1) Similarly, anyone reading the newspaper or listening to the radio recognizes the large number of human interest stories of veterans with disabilities trying to reintegrate into society.

This focus on disability comes at an important moment. In the current economic climate, policymakers will be focusing renewed attention on increasing the national employment rate. This is therefore a crucial time to be considering how to remove barriers that keep people with disabilities out of the workforce. The Americans with Disabilities Act of 1990 (2) (ADA) has certainly created a more accessible society that has made people with disabilities a more visible presence in public life. But there is near uniform consensus that insofar as the ADA was intended to increase employment levels for people with disabilities, it has failed. This is the biggest current challenge in disability law and policy. (3)

The ADA, of course, does not stand alone. The federal government's policy scheme relating to the employment of people with disabilities also contains a host of social support programs that provide cash payments, access to healthcare and medical goods, and job training programs. Yet the ADA and social support programs operate from very different premises. The ADA, like most employment discrimination statutes, rests on the assumption that many people with disabilities can and should work. (4) It stakes out the normative ground that disability is socially constructed, and focuses on removing discriminatory barriers that keep people with disabilities out of the workplace (and other spheres of public life). Federal social support policies, in contrast, start from a different place. As older programs, they tend to treat people with disabilities through a medical model, seeking to objectively evaluate whether their medical situation entitles them to governmental benefits. As a result of this gatekeeping function, many of these programs are linked to an inability to work or some level of separation from the labor market. Because their underlying ideas about disability and employment are so different, antidiscrimination law and social support programs can actually work at cross purposes. As a simple example, antidiscrimination law can make it unlawful for an employer to refuse to hire someone with a disability, but the federal government will only provide benefits (including health care, support payments, and job training) if the person does not work.

Veterans (5) with disabilities are a subset of the general population of people with disabilities. They have always had greater popularity amongst the public and enjoyed greater political clout (at least in the short term) than the general population of people with disabilities. (6) Since the founding of our nation, the federal government has had a stated commitment to care for its wounded warriors. One manifestation of this commitment is a more integrated policy scheme for the employment of veterans with disabilities. The laws and programs for veterans with disabilities avoid many of the work disincentives that exist in the general policy scheme, while providing additional support and resources to keep veterans with disabilities in the workforce. These policies are therefore worthy of careful study, and can offer guidance to policymakers and advocates on how a more integrated policy system might improve the employment prospects of people with disabilities. These programs may also offer a glimpse into the future, as the history of this and other countries demonstrates that programs that start as being just for veterans with disabilities can, over time, become extended to the larger population of people with disabilities.

But their status as the "deserving disabled" has not meant that employment-based strategies for veterans with disabilities have worked perfectly. Veterans with disabilities have not been able to escape many of the problems that have infected the general disability landscape. Veterans programs and commitments are chronically underfunded, administration is poor, and bureaucracies are inefficient. Veterans with disabilities do not escape stigma and suspicion. There is a sad reality at work here: the neglect of veterans with disabilities by policymakers has historically outlived the public's immediate embrace of their service and sacrifice. This convergence with problems in the general disability legal and policy scheme helps demonstrate the serious challenges confronting policymakers in the coming years. Yet it also offers opportunities for shared advocacy for veterans and nonveterans with disabilities.

This Article proceeds in three parts. In Part I, I discuss the conflicting aims of disability antidiscrimination law and social support systems, showing how the two systems often work at cross currents. In Part II, I examine the two-tier system of disability law and policy in this country: one system for veterans with disabilities and one for the general population of people with disabilities. The former offers a model of what a united system--that is, one that encourages people to work through both affirmative social support programs and antidiscrimination law--might look like. A rough comparison between employment levels of the general population of people with disabilities and veterans with disabilities suggests that this more integrated approach might be yielding some positive results. In Part III, I critique social welfare programs for veterans with disabilities, noting that they contain many problems that will look familiar to disability rights advocates. The fact that these problems exist even within this "favored population" demonstrates, I suggest, just how vexing these issues are. But this convergence of interests also offers opportunities for the communities of veterans with disabilities and nonveterans with disabilities to benefit from each other's efforts and advocacy.

1. THE INCONSISTENT STRATEGIES OF EMPLOYMENT POLICY FOR PEOPLE WITH DISABILITIES

   Federal disability policy for people with disabilities is multifaceted. Antidiscrimination law protects a person with a disability from an employer or other actor taking an adverse job action based on their disability. (7) Said differently, statutes like the ADA express the right to be treated equally without regard to disability. Separate from antidiscrimination law, there are also more direct forms of assistance that the government provides. Categorized loosely as a "social safety net," "social welfare policy," or even "positive rights," the focus is on affirmative ways the government can help people with disabilities. (8) These federal laws and programs either directly or indirectly provide goods and services to certain people with disabilities, including cash payments, job training, and medical goods and services.

   Although there are certainly many goals of federal disability policy, one of the most prominent--if not the preeminent--priorities is to create conditions under which people with disabilities can work. This goal expressed itself powerfully in the passage of the ADA, the most complete federal statement on the rights and lives of people with disabilities. Moving people with disabilities into the labor force was a proposition that had support on both sides of the political aisle. (9) The importance of employment to a previously marginalized group is a bedrock principle of antidiscrimination law generally, and is a proposition that has gathered popular academic support. (10) The new administration appears to actively embrace this goal. (11)

   In terms of antidiscrimination law, in passing the ADA, Congress noted that people with disabilities had been continually discriminated against in employment, which had contributed to their isolation and political powerlessness. (12) Title I of the ADA attempted to remedy...