Returning Veterans and Disability Law

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. …