Navigating between antidiscrimination, labor, and social rights. The legal mobilization of workers with disabilities in Belgium: Law & Society Review 53(4), 2019
Aude Lejeune and Julie Ringelheim
Wheel chair access call point, Royal Court of Justice, London (Aude Lejeune)
Americans with Disabilities Act (1990), European Union Employment Directive (2000), United Nations Convention on the rights of persons with disabilities… In the last thirty years, all over the world, legal instruments have been adopted reflecting a new approach to disability. Previous policies were based on the idea that people with disabilities are poorly adapted to mainstream society. Thus, they aimed at compensating for, or mitigating, their exclusion through the provision of social allowances, the creation of separate institutions (like sheltered workshops), or special modes of access to employment (like quotas). Anchored in antidiscrimination law, the new legal framework, by contrast, posits that disabled persons are entitled to equal opportunities and inclusion within the wider society. One important component of these new legislations is the recognition of a right for persons with disabilities to benefit from reasonable accommodation, in particular in employment. Moreover, the understanding of disability itself has changed: rather than a medical condition intrinsic to the person, disability is now seen as socially constructed, resulting from the interaction between disabled persons and a physical, social and institutional environment that is not adapted to their needs. Yet, previous disability policies have not necessarily been abolished. They now coexist with this new framework.
In our study “Workers with Disabilities between Legal Changes and Persisting Exclusion: How Contradictory Rights Shape Legal Mobilization”, we explore how the coexistence within the law of different approaches to disability influences the everyday experience of disability in the workplace and potential legal mobilization. Based on interviews with workers with disabilities who mobilized the law to obtain reasonable accommodation in Belgium combined with an analysis of evolving Belgian legal schemes relating to disability, this article explores how interactions between social, labor and antidiscrimination rights shape legal mobilization of persons with disabilities in the workplace. Three main findings emerge from our study.
First, we contest the commonly shared idea that a new, uniform, model of disability policy based on the antidiscrimination framework is now in place. We show that in Belgium preexisting models of disability policies based on social protection, which are still in force, continue to influence individuals’ experience of disability in the workplace and legal mobilization. Moreover, our study also reveals the persisting significance, in the Belgian context, of labor rights for workers with disabilities. This has important implications for the process of identification with disability: whereas social law does recognize the notion of disability, although relying on a more restrictive definition than antidiscrimination law, labor law ignores this notion. Instead, it only acknowledges the category of “workers unable to perform their work”. This complexifies further the question of law’s impact on the process of identification with disability.
Second, regarding the process of legal mobilization, we find that individual’s initial self-identification as workers or persons with disabilities influences how they frame their claim and the kind of legal norms they refer to in a first stage but that both their identification and their rights consciousness evolve through the course of legal mobilization as they interact with various professionals and navigate between the different concepts and rights available to them in current law.
Third, as to the effects of legal mobilization upon the individuals concerned, we observe that after their experience of mobilization, a majority of our interviewees were skeptical about the power of the law to improve the situation of disabled persons in employment. In this regard, we emphasize that our study only concerns low-scale mobilization, initiated by individual workers seeking to improve their personal situation. Compared with other studies focusing on collective mobilizations supported by activist organizations, this observation suggests that individual disputes without support from organizations with clear political objectives and without sustained group bonds are less likely to transform the feeling of disempowerment of those involved in the mobilization.