Disability Rights and Labor: Is This Conflict Really Necessary?

Source: Samuel R. Bagenstos, University of Michigan Law School, Public Law Research Paper No. 509, June 15, 2016

From the abstract:
The relationship between the American labor movement and identity-based social movements has long been a complicated one. Organized labor has often been an ally of civil rights struggles, and major civil rights leaders have often supported the claims and campaigns of organized labor. Recall the reason Dr. Martin Luther King was in Memphis on the day he was assassinated — to lend his support to a strike by unionized sanitation workers. But unions and civil rights groups have found themselves on the opposite sides of intense battles as well. The relationship between the labor movement and the disability rights movement is just as complicated. Organized labor has often been an ally of disability rights efforts. But in some of the highest stakes battles for workers and individuals with disabilities, many unions and disability rights groups have opposed each other. Although many commentators have written about the tensions and collaborations between labor unions and civil rights groups promoting race or sex equality, the very similar dynamics of the relationship between unions and disability rights groups have largely escaped comment.

In the past several years, though, the tensions in the labor-disability relationship have become especially acute. As unions (particularly the Service Employees International Union) have pushed for increased wages and benefits for direct-care workers who provide home and community-based services, and state Medicaid cuts have placed pressure on the budgets available to pay those workers, many disability rights activists have worried that labor’s agenda will lead to the (re-)institutionalization of people with disabilities. This tension stood in the background of the litigation in Harris v. Quinn, in which the Supreme Court addressed the collective bargaining system some states had set up for personal-assistance workers. And the dispute between unions and (some) disability rights activists broke out in a particularly sharp and nasty way in response to the Department of Labor’s recent rules expanding Fair Labor Standards Act protections for home care workers. Although some disability rights groups supported the new rules, which had been a major priority of organized labor, particularly vocal and influential activist groups opposed them. These tensions are nothing new. Disability rights activists have long challenged the paternalism of those assigned to “help” or “care” for them, and the unions that represent those workers are thus a natural target for suspicion if not antagonism. And many (though not all) elements of the American labor movement have strongly opposed the deinstitutionalization of people with mental disabilities. The current labor-disability tensions cannot be understood outside of the context of that history.

This essay, which was presented as the Stewart Lecture on Labor and Employment Law at the Indiana University Maurer School of Law in April 2016, attempts to do two things. First, it puts the current labor-disability controversy into that broader context. Second, and perhaps more important, it takes a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, this essay argues both that those workers have a compelling normative claim to full FLSA protection — a claim that disability rights advocates should recognize — and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement. As to the broader tensions, the essay argues that disability rights advocates go wrong, both normatively and pragmatically, in treating the interests of individuals with disabilities as inevitably superordinate to those of individuals who do the work of providing community-based services and supports. Although this wrong turn is completely understandable in light of the history of paternalist subordination of people with disabilities at the hands of the helping professions, today’s situation calls for an accommodation of the legitimate claims of each side.