The shift towards liberal legalities in the field of vocational integration of the disabled.
After World War II, the International Labour Office promoted a new policy of vocational rehabilitation of the disabled which clearly differed from its earlier policy (use of a system of quotas in public administrations and private companies to place the war-disabled, maintenance of integral wages). The policies of vocational rehabilitation shifted in a liberal-economic direction, and this shift is visible thanks to the adoption by the 38th International Labour Conference of the Vocational Rehabilitation (Disabled) Recommendation (n°99). Recommendation n°99 of the ILO promoted professional training, vocational guidance and selective placement for all disabled people who had a reasonable prospect of securing and retaining suitable employment, whatever the nature and the origin of their disability. This policy reorientation was facilitated by the leadership role of the United States and the United Kingdom within the International Labour Organisation (ILO).
The contents of the ILO vocational rehabilitation policy had been seriously discussed only from 1953, with the preparation of a new international standard on vocational rehabilitation by the International Labour Conference. During the 37th and 38th International Labour Conferences, the government representatives of the two power blocs promoted in their speeches labour measures inspired by their respective ideologies. During this period of cold war, the rehabilitation of disabled citizens became part of this ideological competition between the two power blocs within the ILO. The measures they promoted in their speeches reflected only a part of the measures that existed in the countries of each bloc; a few countries may have had very different experiences. Seeking qualified workers, the socialist governments strongly favoured the vocational rehabilitation of the disabled in order to quickly increase their available labour supply.
During the debates of the International Labour Conferences, the government representatives of socialist countries wanted the regulation on vocational rehabilitation to take the form of a convention, in order to guarantee the access to this benefit to all the disabled. But this proposal was overwhelmingly dismissed, the majority favoured the adoption of a recommendation, i.e. a sufficiently flexible regulation so that each country could act according to its economic conditions and its possibilities of development. Socialist countries defended the idea that all the disabled should have the right to access to vocational rehabilitation and employment, including the severely disabled, but this idea was rejected by the majority. Socialist countries’ representatives also required that this vocational rehabilitation be the exclusive responsibility of public authorities and be entirely free for the disabled.[ii] But many members of the committee on vocational rehabilitation were opposed to it and underlined the role of private organizations in their countries. The proposals of socialist countries as regards rehabilitation were in conformity with socialist ideology (free services, social security, right to employment, cooperatives, State control). The rejection of the socialist proposals was not a surprise, because the socialist countries were marginalized within the ILO.
During the development of standards on the vocational rehabilitation of the disabled, the United States, the representatives of other capitalist countries and the employers’ representatives succeeded in shifting international policies on vocational rehabilitation towards a more liberal economic policy. In accordance with the position defended by a number of capitalist countries (including the USA), recommendation n°99 limited the benefits of vocational rehabilitation to the disabled who had reasonable prospects of securing and retaining suitable employment. Most of all, ILO recommendation n°99 legitimated the exercise of a paid professional activity in the context of a liberal market economy. It institutionalized the selective placement of disabled workers in a competitive job market, legitimized the sheltered workshop as the employment solution for less-productive disabled, and symbolically depreciated the use of compulsory employment quotas (by submitting its adoption to “specific conditions” and by drowning it in a high number of different possible measures). The solutions to support the employment of the disabled, the implementation of which had been recommended in all the Member States of the ILO, were not very ambitious (promotion of the working capacities, improvement of the tools, exemption of the employers’ responsibility in case of a new accident, sheltered workshops, promotion of free-lance work).
The 38th International Labour Conference approved the following text unanimously:
Wherever appropriate in the national circumstances, and consistent with national policy, the employment of disabled persons should be promoted by means such as
(a) the engagement by employers of a percentage of disabled persons under such arrangements as will avoid the displacement of non-disabled workers;
(b) reserving certain designated occupations for disabled persons;
(c) arranging that seriously disabled persons are given opportunities for employment or preference in certain occupations considered suitable for them;
(d) encouraging the creation and facilitating the operation of cooperatives or other similar enterprises managed by, or on behalf of, disabled persons.[iii]
A largely moderated quota system resulted from the protest of employers and of a number of capitalist countries’ governments.
In fact, the Australian, American, Canadian, Norwegian and Finnish governments positioned themselves against measures for compulsory employment of the disabled. In the United States, the compulsory employment of disabled workers was perceived as counterproductive, discriminatory and in contradiction to the method of selective placement. Taking into account these disagreements, the ILO civil servants chose to moderate the content of the article in the draft recommendation. During the debates of the general assemblies of the International Labour Conference, the employers protest against the inclusion of the obligation to hire disabled people in the recommendation.
Those in favour of compulsory employment managed to keep it mentioned in the declaration, and the opponents managed to clearly moderate this idea with the following sentence: “Wherever appropriate in the national circumstances, and consistent with national policy,” and by the absence of the word “compelling.” The coercive solution did not disappear from the recommendation, but its adoption in a country was from now on subjected to the existence of specific circumstances in this country (without specifying these circumstances). Although the text did not clarify it, the general idea defended from 1955 by the ILO was that the application of this type of compulsory measure should be limited to public administrations and social security authorities, but should not affect private companies in order not to hurt the good will of employers, who were supposed to train and to accommodate the rehabilitated workers. However, the implementation of compulsory employment in private and public companies was allowed (at least temporarily) in the countries affected by a war.
The legitimation of selective placement and sheltered workshop.
This text dogmatized the practice of a remunerated professional activity in the context of a liberal market economy. It excluded less productive disabled workers from ordinary work placements and expected them to work in sheltered workshops, as free-lance workers or condemned them to the absence of remunerated activity. The development of sheltered employment was considered necessary for the employment of severely disabled and underproductive persons, and even disabled persons fit for competitive work but excluded from employment because of a high unemployment rate.[iv] The implicit idea of sheltered workshop was to help private companies and public administrations preserve their high standards of productivity by avoiding hiring severely disabled people, who were perceived as less productive.
According to prevailing ideas in English-speaking countries, this international text conveyed the idea of equal professional opportunity and implied complete freedom of action for the employer. This document favoured thus the defence of equal professional opportunities over the defence of the right to employment (advocated by socialist countries’ representatives). The representatives of capitalist countries favoured the solution of the selective placement of the disabled in private companies and public administrations. The selective placement method consisted of a careful selection of a placement in conformity with the capacities of the worker and the needs of the workplace. Only disabled persons who had reached the necessary standards of competence and productivity were allowed to enter the ordinary job market, in order not to impact the profits of the employers. According to the International Labour Organisation, this method widened the scope of professional opportunities for the disabled, while improving their personal capacities, and contributed to overcoming the prejudices employers might harbour regarding the capacities of disabled workers.
This ILO recommendation n°99 ratified the swing of the policies of vocational integration of the disabled towards liberal (in the economic meaning of the term) legalities. It included all the legal standards on the vocational integration of the disabled that exempted large private companies from their legal responsibility for organizing work based on solidarity, in order to maintain high profits in the hands of a minority of individuals.[v] These liberal legalities could take different forms: the first one disputed any form of compulsory employment (orthodox vision of liberalism defended by the American representatives), while the second accepted the adoption of compulsory measures as regards social security organizations and public administrations. Lastly, by extension, it appears relevant to us to add to the list of liberal legalities a third form: the legal standards which, although they included measures of quotas, did not include any strict control measures for their implementation (such as dissuasive fines) and/or incorporated devices aimed at guaranteeing a high rate of profits for large private companies (very strong tax exemptions, exclusion of disabled workers considered to be the least productive from compulsory employment chances, etc). Indeed, these softened measures in the introduction of quotas deconstructed its solidarity-based nature.
The first and second forms turned the legal duty of private companies to employ disabled workers into a mere moral duty. The International Labour Office favoured the second form, which was considered an inspiring example for private companies, and a way to offer job opportunities for the rehabilitated disabled. But the content and the form of the ILO recommendation n°99 were sufficiently flexible to be interpreted in a number of different ways by the actors (association representatives, employers’ representatives, etc.) at local level according to their strategic interests.
[i] Sandrine Kott, Joel Golb, “The Forced Labor Issue between Human and Social Rights, 1947–1957,” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 3, no. 3 (winter 2012) : 321-335.
[ii] Conférence internationale du Travail, 38e session, 1955, Compte rendu des travaux (Genève : BIT, 1956), 389.
[iii] ILO, Vocational Rehabilitation (Disabled) Recommendation, 1955 (No. 99).
[iv] ILO, The Training and Employment of Disabled persons. A preliminary Report (Montreal : ILO, 1945), 169.
[v] Produced by the author himself, this definition is inspired by the definition of cosmopolitan legalities by Boaventura de Sousa Santos and César A. Rodriguez-Garavito (ed.), Law and Globalization from below. Towards a Cosmopolitan Legality (New York: Cambridge Studies Press, 2005), 1-27.
More precisions : Gildas Brégain, « The ILO and the shift towards economic liberalization in the international professional rehabilitation policies of people with disabilities after World War II », in Monika Baar, Paul Van Trigt (dir.), Marginalized Groups, Inequalities and the Post-War Welfare State. Whose welfare ?, London and New York, Routledge Press (Routledge Studies in Modern History), 2020, pp. 49-68.