Disability, Priority, and Social Justice(published in Americans with Disabilities: Exploring the Implications of the Law for Individuals and Institutions, ed. by Leslie A. Francis and Anita Silvers [London: Routledge, 2000])Richard J. Arnesonversion 7/27/99Is having a disability more like being a member of a racially stigmatized group or like lacking a talent? Both analogies might be apt. The Americans with Disabilities Act stresses the former analogy. The framing thought is that people with disabilitieII. Prioritarianism1Disability, Priority, and Social Justice(published in Americans with Disabilities: Exploring the Implications of the Law for Individualsand Institutions, ed. by Leslie A. Francis and Anita Silvers [London: Routledge, 2000])Richard J. Arneson version 7/27/99Is having a disability more like being a member of a racially stigmatized group orlike lacking a talent? Both analogies might be apt. The Americans with Disabilities Actstresses the former analogy. The framing thought is that people with disabilities areobjects of prejudice and prejudiced behaviors which wrongfully exclude them fromparticipation in important social practices such as the labor market. Think for example ofa blind person whose job applications are always automatically rejected because she isblind and without any consideration of her aptitude for this or that specific job. Such aperson suffers wrongful discrimination and is denied equality of opportunity.A further thought along the same line is that a longstanding pattern ofdiscrimination can alter the shape of institutions and practices, so that even if individualsnow are chosen for jobs strictly on the basis of their likely productivity, currentproductivity may reflect past discriminatory practices, so equality of opportunity properlyunderstood can be violated even if no employers currently are acting from prejudice. Anexample would be a factory in which for many years only men have been hired for skilledjobs, and the workplace is designed for their convenience with bathrooms regularlyspaced. Now women are hired and retained for skilled jobs along with men acording toproductivity, but women systematically produce less than men because at the skilledwork site bathrooms for women are few and far between. In this example an investmentin bathrooms would create a level playing field for men and women to compete on fairterms.This case and others we might invent suggest the need to analyze the ideals ofnondiscrimination and equality of opportunity. Another type of case would featureidentical output productivity on the part of blacks and whites, but labor by whites wouldbe preferred by an unprejudiced rationally profit-maximizing employer who sells hisproduct to prejudiced consumers who are unwilling to buy products that have been builtby the labor of blacks if the blacks are employed in skilled jobs. (We suppose thatconsumers can readily obtain information about what sort of workers are employed inwhat sort of jobs that produce the products they are reviewing for possible purchase.) Inthis setting a rational business decision by the employer would produce a workforce thatis segregated by race, with whites only performing all skilled jobs. Yet in some clearsense blacks and whites in this example do not enjoy equal employment opportunities.This essay distinguishes some possible ideals of equality of opportunity construedas a nondiscrimination norm. Stated baldly, my conclusion is that any and all versions ofsuch norms are at best incomplete accounts of the substance of social justice, and at worstflawed by making a moral fetish of talent and by falsely supposing that a perfectmeritocracy in which all with the same ambition and talent would have the sameexpectation of lifetime rewards would be a just society. What we owe to one another byway of social justice requirements goes beyond meritocratic nondiscrimination. In myjudgment the provisions of the Americans with Disabilities Act (hereafter: ADA) cannotbe fully justified by appeal even to the most plausible versions of the nondiscriminationideal. That suggests not a criticism of the ADA but rather the imperative of exploringwhat beyond nondiscrimination we owe to one another. I sketch a prioritarian responseto this question and describe how this approach handles difficult issues of disability and2justice. Once we are liberated from thinking of the problem of disability exclusivelywithin the antidiscrimination framework, the way is open to consider other types ofappropriate remedies for the condition of the disabled as viewed from the standpoint ofsocial justice.I. Nondiscrimination and Equality of OpportunityEquality of opportunity is a powerfully resonant norm in contemporary societieswith histories of racial exclusion and pervasive discrimination against women. Thissection surveys several candidate conceptions of equality of opportunity. To limit thediscussion I focus on equality of opportunity as it might be interpreted to apply to thelabor market and more broadly the economic market place.1. Contract at will. Perhaps the simplest equal opportunity ideal is absence ofgovernment constraint (such as legal enforcement of Jim Crow segregation or apartheid)in the relationship between employers and employees. An employer may hire as shepleases and a potential employee is free to accept or reject any offer and once anemployment relationship is established, either party may terminate the relationship atwill. Each individual under this regime has equal opportunity to initiate any offer ofemployment or service and to accept or reject any offer that is tendered. During thespecified duration of a contract, one is bound to carry out the agreed terms, but if thecontract is breached, specific performance may not be demanded as reparation for breach,but only compensation for the money’s worth of the breached terms to the party who isdamaged.1Under contract at will, all employers might refuse on any ground whatsoever tohire women, blacks, or deaf and blind people for any skilled job. This policy couldrepresent nothing more than a collective whim or deep-seated prejudice on the part ofemployers against women, blacks, the deaf, or the blind. Hence many people will findthis interpretation of equal opportunity to be too weak.2. Careers open to talent. On this construal, equal opportunity obtains when jobsare open to all applicants and applicants are judged solely on their