The Disability–Employability Divide: Bottlenecks to Equal Opportunity

Bradley A. Areheart* & Michael Ashley Stein**

Bottlenecks: A New Theory of Equal Opportunity. By Joseph Fishkin. Oxford and New York: Oxford University Press. 2014. Pp. 1, 257. $35.

Equal opportunity might appear to comprise a relatively simple question: Do similarly situated persons have an equal chance to attain a particular goal, or do obstacles irrelevant to their qualifications or to the desired goal preclude achievement? But equal opportunity is complicated.[1] There are descriptive and prescriptive dimensions to this question. Nuances exist when determining who is similarly situated, whether those individuals have the same opportunity, what goals we care about equalizing, and whether the ultimate aspiration is equality of opportunity or equality of outcome. Moreover, what means should we employ to remove obstacles, are these means likely to be successful, and do the cultural means justify the societal ends? And some readily apparent factors leading to inequalities of opportunity seem inexorable, including our individual genetic makeup, the environments in which we are raised, and our overall social circumstances. These considerations have prompted some scholars to argue that equality of opportunity is possible only if both law and government are committed to achieving it.[2]

To discuss equal opportunity in a coherent way often requires focusing on specific domains.[3] One field in which equal opportunity has special resonance is employment. Societal support exists both for the descriptive idea that racial discrimination poses an obstacle to equal opportunity and for the prescriptive idea that such an obstacle ought to be overcome. Accordingly, a law like Title VII of the Civil Rights Act of 1964 conveys something specific about what opportunities are important (work), what obstacles are inappropriate (discrimination), and what type of equality of opportunity is desired (race, color, sex, religion, and national origin). Such antidiscrimination laws generally enjoy strong support in the United States.[4]

Joseph Fishkin’s new book, Bottlenecks: A New Theory of Equal Opportunity,[5] reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side (p. 13). A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities.[6] This Review applies Fishkin’s theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability policy’s opportunity structure features a conceptual disability–employability divide that ultimately prevents people with disabilities from reaching a wider array of opportunities. Fishkin’s book, in concert with this Review, introduces new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.

Part I provides an overview of Fishkin’s arguments, including his theory of opportunity pluralism, which he advances as a theoretical framework for broadening the opportunity structure. Part II then applies Fishkin’s theory to administrative disability policy to address and evaluate the disability–employability divide as a bottleneck. In particular, this Part explores how people with disabilities are frequently unable to pass through certain bottleneck policies to reach productive employment on the other side. Part III then proffers several policy solutions that could enable people with disabilities to move through or around the bottlenecks that keep them from accessing productive work opportunities.

*      Associate Professor of Law, University of Tennessee College of Law.

**      Executive Director, Harvard Law School Project on Disability, and Visiting Professor of Law, Harvard Law School; Professor of Law, William & Mary Law School.

[1].     See, e.g., James S. Fishkin, Justice, Equal Opportunity, and the Family 132 (1983) (arguing that equal opportunity principles produce a fundamental conflict between liberty and equality once we account for the role of the family in preparing children to take advantage of opportunities); Michel Rosenfeld, Substantive Equality and Equal Opportunity: A Jurisprudential Approach, 74 Calif. L. Rev. 1687, 1689 (1986) (“A coherent and comprehensive concept of equal opportunity must rely on a theory of substantive equality.”).

[2].     See, e.g., Joseph William Singer, Original Acquisition of Property: From Conquest & Possession to Democracy & Equal Opportunity, 86 Ind. L.J. 763, 777 (2011).

[3].     “Otherwise,” asks Fishkin, “where would we begin?” It would be impossible, and not necessarily desirable, to equalize all opportunities for all people all of the time. P. 4.

[4].     See, e.g., Bruce Ackerman & Anne Alstott, The Stakeholder Society 1 (1999) (discussing Americans’ belief in equal opportunity).

[5].     Joseph Fishkin is an Assistant Professor of Law, University of Texas School of Law.

[6].     The book ably demonstrates how discrimination creates bottlenecks, pp. 20–21, 110–11, but there are only a few references to disability or reasonable accommodations. Pp. 22, 105–06, 168–69, 252.

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