Academic journal article Law & Society Review

Workers with Disabilities between Legal Changes and Persisting Exclusion: How Contradictory Rights Shape Legal Mobilization

Academic journal article Law & Society Review

Workers with Disabilities between Legal Changes and Persisting Exclusion: How Contradictory Rights Shape Legal Mobilization

Article excerpt

Disability sociolegal scholars have highlighted the emergence and diffusion, in the last 30 years, of a new legal approach to disability, based on the concept of antidiscrimination. According to this new model, people with disabilities should not be seen as physically and mentally impaired persons in need of protection but rather as people endowed with rights and entitled to be included in society on an equal footing with others (Heyer 2015; Kelemen 2011; Shakespeare 2006; Vanhala 2015). This evolution is seen as reflecting the move from a "medical" to a "social" conception of disability and from a "social protection" to an "antidiscrimination" model of disability policy. Heyer (2015), however, has observed that, in various countries, the emerging rights model has not fully replaced the preexisting model based on social welfare. This is true in many European states, where the antidiscrimination framework now coexists with previous legal arrangements, consisting in particular in social allowances, aimed at compensating the supposed disabled person's inability to work (social rights). What has been less noticed is that the protection traditionally offered in European welfare states by labor law to workers encountering health problems (labor rights) can also be relevant to the situation of people with disabilities. Moreover, existing literature has neglected how these three bodies of rights - antidiscrimination, social, and labor rights-which rely on different understandings of disability, interact and impact on the everyday experience of disability in the workplace and on potential legal mobilization. Belgium is a case in point to study these phenomena: it is a country with a strong tradition of social and labor rights that passed its first legislation prohibiting disability discrimination in 2003, in line with its obligations as an EU member state. Combining the viewpoints of a legal disability and a sociology disability scholar, our article examines how antidiscrimination rights interact with social and labor rights in the legal mobilization of disabled persons in the workplace in Belgium. It does this by focusing on the use of a specific legal tool emblematic of the new antidiscrimination model of disability policy: the right to reasonable accommodation.

To explore how contradictory rights shape legal mobilization, we first present our theoretical framework that crosses sociolegal studies and disability studies. Part II sets out the methodology and data collection technique used. Part III introduces our case study and describes the relevant features of the Belgian politicolegal context. Part IV analyzes how interactions between social, labor, and antidiscrimination rights shape concrete legal mobilization of persons with disabilities.

Beyond the "Shift of Paradigm" Thesis: How Coexistence of Old and New Rights Impacts on Legal Mobilization

Academic literature on law, society, and disability has so far developed along three main lines, which can be termed the "law and policy approach," the "social movements approach," and the "legal consciousness approach" to disability. Each of these has evolved with relative independence from the others, even if many law and society and disability scholars try to create bridges between these works. Our theoretical framework draws on these three approaches, while differing from each of them in several respects. While most of this scholarship insists that there has been a radical shift in the handling of disability within law and policy, we underline the persistence of previous models and explore how interactions between old and new rights shape legal mobilization.

The Law and Policy Approach to Disability

The first perspective we build upon, the law and policy approach to disability, includes political science and legal scholarship that has emphasized the development of a new model for laws and policies regarding disability. Legal and policy changes are said to reveal a "legal paradigm shift from welfare or social security law toward antidiscrimination or equality law" (Vanhala 2015: 840). …

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