The disability employment quota,between social policy and antidiscrimination

Introduction

Disability-related inequalities on the labour market are a major social policy issue globally. ¹ In the European Union (EU), the employment gap between disabled people and nondisabled people reaches 23 percentage points (47.9% vs 71.4%) (Grammenos, 2015: 46). Employment quotas, mandating that firms hire at least a certain percentage of disabled people, have been put in place in many countries to address this issue: their existence has been documented in two-thirds of Organisation for Economic Co-operation and Development (OECD) countries (Mont, 2004), and in 20 of 27 EU member states (Fuchs, 2014). Quotas may take on different, more or less constraining forms: while some countries only formulate recommendations, others enact legal obligations, with or without sanctions, notably by means of levies (Greve, 2009: 14). Disability quotas are a very old policy tool: the first quotas, targeting war veterans, were put in place in the aftermath of World War I, and a second generation of quota schemes followed in the second half of the 20th century (Brégain, 2016; Sargeant et al., 2018).

In spite of its widespread character, this policy tool has been subject to criticism within disability studies: typologies of disability policy developed by legal and policy scholars have tended to represent quotas as an outdated welfare measure, in opposition to other, more progressive employment policies such as those driven by an antidiscrimination approach (Heyer, 2005; Waddington, 1994). This contrasts with the way quotas have conversely been framed as a leverage against discrimination in other domains such as gender or racial inequalities, where quotas are seen as a form of affirmative action (Lépinard and Rubio-Marin, 2018; Stryker, 2001). Other strands of disability research have developed more nuanced accounts of the disability employment quota, pointing to its possible compatibility with an antidiscrimination policy framework (Degener, 2005; Doyle, 1995; Woodhams and Corby, 2007).

These theoretical debates, however, provide limited information on how policymakers in a given historical context perceive the quota system. The theoretical framing of the quota by legal and policy scholars as an outdated form of social protection was in fact strongly influenced by the rise of antidiscrimination policies: it is in the context of the development of these policies that scholars came to think of the quota in these negative terms. This calls for a more empirical and historical investigation of what the quota meant for the stakeholders involved prior to the rise of antidiscrimination policy. Then, existing research shows that the rise of an antidiscrimination approach did not necessarily translate, among policymakers in different countries, into a negative vision of the quota as an outdated measure. Whereas the quota system was suppressed with the adoption of antidiscrimination law in the United Kingdom, it was maintained in several other countries such as Japan, Turkey and most EU countries (Fuchs, 2014). The second sub-question raised by our interrogation on the meanings stakeholders give to the quota thus is whether and how the rise of an antidiscrimination approach changed these meanings.

An approach in terms of policy tools allows for an open investigation of these questions (Halpern et al., 2014; Lascoumes and Le Galès, 2005). Indeed, using as a point of departure a given policy device (in its material, technical dimension), it takes a step aside from policy typologies that tend to a priori associate given policy measures with specific policy orientations (such as disability quotas as being part of a social welfare approach to disability policy). An approach in terms of policy tools pays attention to the cognitive meanings associated with a given tool, but does not posit such associations a priori. Rather, it turns them into an object of investigation, opening the possibility of an account of the diverse, evolving and contested framings of a given policy tool throughout its uses.

France offers a case in point to study this evolution of the meaning of the disability quota for stakeholders. Indeed, in France, the quota system has been a cornerstone of disability employment policy since the aftermath of World War I. Post-war provisions were at the origin of a series of reforms extending and reinforcing the quota, in 1957, 1987 and 2005 – leading to the current 6% disabled worker quota imposed to private or public employers of 20 employees or more, as well as to the public sector. In a comparative perspective, it is worth stressing that the quota system in France is implemented, unlike what happened in the United Kingdom, for example (Woodhams and Corby, 2007: 558): private and public organizations currently declare their numbers of hired disabled workers, and do pay levies depending on how far they are from the 6% quota. Financial sanctions for noncompliance with the quota are relatively high in France compared to other European countries (Fuchs, 2014: 3). In 2020, 1,006,000 people in France were employed as part of the disability quota; 70% were in the private sector, where they represented 3.5% of the workforce in full-time equivalent in firms of 20 employees or more (Association for the Management of the Fund for the Professional Integration of Disabled People [AGEFIPH], 2021: 4–5).

To analyse the historical trajectory and the debates surrounding this policy tool, I mainly draw on the content analysis of the parliamentary debates preceding the adoption of the 1957, 1987 and 2005 laws, as well as on secondary historical sources regarding the first laws that were adopted during and after World War I.

After presenting the methods of this study and examining how disability research has variously characterized the meaning of the employment quota, I describe its major stages of development in France: its origin in the context of World War I, its reinforcement by means of the 1957 and 1987 laws, and its hybridization with antidiscrimination policy through the 2005 law. A discussion follows, drawing preliminary lessons from this study of the French case, and paving the way for further comparative analysis.

Methods

This article draws on the content analysis of parliamentary debates preceding the adoption of three main laws that established and reformed the quota system in France:

Paper-based parliamentary debates of the 1957 and 1987 laws were retrieved at the National Assembly and scanned. All the scanned documents are available on the dedicated project website. ² A manual, paper-based content analysis was then conducted: the debates were thoroughly read, taking notes on arguments being made in favour and against the quota system and the different options for its specification (paying attention to possible references to other countries or international influences), as well as systematically noting any reference to discrimination or antidiscrimination.

The parliamentary debates in preparation for the 2005 law are available online. ³ Given the length of these debates (employment was only one of the many topics covered by the law), a keyword search was performed to identify passages of the debates when the quota was discussed. These excerpts were then subjected to content analysis: here again, the concerned excerpts were read in full, focusing on the arguments in favour and against different options of reform of the quota system, as well as on possible connections to antidiscrimination policy. Research notes based on the content analysis of these three laws are available on the project website. ⁴

The analysis of these debates of the second half of the 20th century was complemented by secondary sources regarding previous quota laws targeted at war veterans that were adopted during and in the aftermath of World War I (notably Bette, 2006; Brégain, 2016; Omnès, 2015; Romien, 2005). These laws (1916, 1923 and 1924) are also listed on the project’s website.

The disability employment quota, a policy tool with contested meanings

The use of various forms of employment quotas (such as thresholds of employment, priority employment or reserved occupations) is an old and global practice of disability policy. Disability employment quotas have existed in many countries since the beginning of the 20th century, with an increased spread of this policy tool in the second half of the century (Fuchs, 2014; Mont, 2004; Sargeant et al., 2018).

Unlike more recently implemented quotas such as gender quotas, disability quotas were not initially framed in terms of antidiscrimination law, as a leverage towards equality, but as a form of social policy targeted at war veterans (in the context of World War I), and later extended to all disabled workers. This historical heritage contributes to explain why, when disability rights and policy scholars developed theoretical models or typologies of the general orientations and evolution of disability policies in the more recent context of the rise of antidiscrimination policy, they described quotas as a feature of the ‘welfare model’ which, based on an individual and medical definition of disability, channels disabled people into lower-level work positions and a diminished social status. By contrast, the ‘civil rights model’, based on the social model of disability, promotes equality and antidiscrimination (Heyer, 2005; Waddington, 1994). As stressed by Katharina Heyer (2005), ‘the rights model (. . .) opposes employment quotas as yet another stigmatized form of special treatment’ (p. 240). More specifically, this stigma is linked to assumptions that people with disabilities cannot enter the labour market without assistance or compete with able-bodied people on the basis of merit alone, and that employers will not hire them if they are not forced to do so (Sargeant et al., 2018). Another form of ‘paternalism’ involved in the quota system derives from the fact that only the state has a power of enforcement: individuals cannot file complaints, which limits individual empowerment (as opposed to antidiscrimination law that depends on individual rights activation) (Woodhams and Corby, 2007: 558).

In compliance with this theoretical opposition between quotas and an antidiscrimination approach, the United Kingdom abandoned its quota system when it adopted an antidiscrimination law (the Disability Discrimination Act [DDA]) in 1995; the United States, which has been a leader in antidiscrimination legislation with the adoption of the Americans with Disabilities Act (ADA) in 1990, does not have a quota system. Yet, many other national cases question the idea of a theoretical incompatibility between quotas and antidiscrimination law. In a 2020 scoping review, six of the seven European countries covered (Germany, France, the Netherlands, Slovakia, Poland and Romania) simultaneously had quotas and antidiscrimination laws (Bunt et al., 2020). Quota systems have been more recently put in place (e.g. in Lebanon in 2000, in Cyprus in 2009) or reinforced (France in 2005) in several countries, questioning the previously described image of the quota as an outdated social measure.

Indeed, quota research has also promoted more nuanced and in some respects positive views of this type of policy. Daniel Mont (2004) notes that quota systems rely on a more positive assumption regarding disabled people’s employability than alternative systems such as sheltered employment. Theresia Degener (2005) argues that the meaning of quotas has evolved in the context of the rise of antidiscrimination laws targeting other social groups: ‘With the rise of civil rights movements in the context of race and gender, quota policies gained a new equality-related dimension’ (p. 93). In this context, she analyses quotas as pertaining to ‘affirmative action [targeting] structural or institutional discrimination, which is one of the major obstacles to the equalization of opportunities for disabled people’ (Degener, 2005: 93). This reframing of the quota as targeting structural discrimination involves a significant shift in the (often implicit) rationale behind quota schemes. Quotas, in this perspective, are not meant to compensate for disabled people’s reduced work capacity or productivity, but to compensate for the discriminations they are faced with on the part of employers, notably based on these assumptions of a lack of competitiveness. ⁵ Reframed in this way, the quota scheme is in line with the social model of disability (Oliver and Barnes, 2012; Roulstone, 2004), and can indeed they be seen as a tool of affirmative action, an advanced form of antidiscrimination policy. It is following such logic, for example, that Carol Woodhams and Susan Corby argue in favour of the reinstatement of a mandatory quota system in the United Kingdom. While acknowledging that the quota scheme has some paternalistic aspects, they describe it as ‘a radical equality framework of employment practice’, through its promotion of equality of results beyond formal equality (Woodhams and Corby, 2007: 557). In a recent article on the implementation of quotas at the level of French firms, Lisa Buchter (2020) also characterizes quotas as a form of affirmative action – while showing how the policy has discriminating effects by favouring the selection of the disabled individuals who are the least in need of accommodations.

As illustrated by these debates, two main questions are addressed by the international scientific literature on disability quotas: first, a characterization of their symbolic meaning (is the quota system paternalistic, is it a form of charity, or on the contrary can it be thought of as a tool of antidiscrimination and a leverage of empowerment?), and second, the question of its actual, material effects in terms of facilitating disabled people’s employment. This contribution focuses on the meanings given to quotas, on their cognitive framing: what do they mean, what are they a symbol of, for the various stakeholders involved? Is the quota always seen as the expression of a form of paternalist social welfare intervention that would be opposed to an antidiscrimination approach, or can we observe more complex meanings and articulations between protection and equality (Waddington and Diller, 2002)? Since the articulation between quotas and antidiscrimination policy is at the heart of the questioning, two different historical periods (of very different lengths) will be distinguished based on the analysis of the French case. First, how was the quota perceived before the rise of antidiscrimination policy? Second, how did this rise change the meaning given to the quota system? Regarding the first question, since we have seen that it is in the context of the rise of antidiscrimination policy that quotas were theorized as an outdated measure, the assumption we will explore is the idea that prior to this context, quotas could be endowed with a more progressive meaning (H1). As for the second question, existing literature as summed up above leads to two possible opposite assumptions: The rise of antidiscrimination policy may have led to a framing of the quota as an outdated social measure (H2a), or as a form of affirmative action (H2b). The following sections discuss these assumptions based on an analysis of the historical trajectory of quota policy in France.

The rehabilitation of World War I veterans at the origin of the employment quota

In several European countries, employment quotas were put in place in the aftermath of World War I, notably under the influence of veterans’ organizations, and in the context of important transnational activism on this issue: for example, the 1920 inter-allies conference recommended an obligation of employment of injured veterans for both public and private employers (Brégain, 2016: 128). They were then conceived as one aspect of a broader social policy towards injured war veterans, which initially relied mainly on the allocation of war pensions. In France, in addition to the pension system defined on an insurance basis by the law of 31 March 1919, several laws promoted the professional reintegration of ‘war invalids’ through binding provisions (reserved employment or quota system) aimed at both public and private employers.

The law of 17 April 1916 gave disabled soldiers of the war then in progress a ‘right of preference’ for ‘reserved occupations’ which, in the public administration, had previously been reserved for military personnel who had completed at least 4 years of service. The law of 30 January 1923 extended the scope of this first law ⁶ and specified its application methods. The law of 26 April 1924 imposed an obligation to employ ‘war disabled’ (mutilés de guerre) in the private sector ⁷ : companies with more than 10 employees had to employ them up to 10% of their workforce, failing which they had to pay the Treasury a ‘fee’ of 6 francs per working day per pensioner. These fees fuelled a fund managed by the National Office for the war-disabled created in 1916.

These quota schemes were understood as a form of social policy. They were adopted as a result of a national consensus on the need to provide injured and disabled war veterans with a form of reparation, in a context where budgetary constraints, as well as the very large number of people concerned (more than 600,000), limited the possibility to increase the amount of pensions (Romien, 2005). Professional integration, promoted by veterans’ organizations, appeared to be a way of providing pensioners with additional income. Members of Parliament thus considered pension and employment as the two complementary pillars of the reparation due to war victims (Bette, 2006; Omnès, 2015).

While being in this respect in the continuity of another form of social welfare (pensions), employment quotas represented a departure from usual assumptions regarding the relation between disability and work. Indeed, these quota laws embody a major shift from a vision of disability as synonymous of work incapacity, to the promotion of a notion of rehabilitation, through which disabled people could be made to integrate the labour market (Stiker, 1999; Ville, 2010). Mingling quotas with a broad ‘social welfare’ perspective thus tends to omit how quotas actually differ, in their philosophy, from another common form of social policy towards disabled people, taking the form of pensions and benefits, and based on the idea of an incapacity to work.

Moreover, quotas represent an unusually coercive employment policy tool, and a tool that targets employers rather than jobseekers. The possibility for such type of intervention must be analysed in the context of a collective feeling of national debt towards disabled veterans, which called for some form of reparation. In a context where people disabled by the war were omnipresent in the public space, and also where veterans’ organizations were mobilized, the parliamentary debates reflected the feeling of national recognition and responsibility towards the victims (Romien, 2005). The strength of this reparation imperative explains in turn the choice of binding instruments for employers (reserved occupations in the public sector, quotas in the private sector).

However coercive, these employment policies were clearly not conceived as antidiscrimination policies – their horizon was not equality – but as reparation policies, the expression of a collective solidarity towards veterans. The employment obligation can thus be analysed as an ‘innovation in the conception of social assistance’ (Romien, 2005: 233), much more than as a tool for professional equality. This is evidenced in particular by the fact that the 1924 law provided for the possibility of pensioners being underpaid by 20–50% compared to other employees. These post-war provisions were at the origin of a series of reforms extending and reinforcing the quota, in 1957, 1987 and 2005.

The 1957 and 1987 laws and the reinforcement of the employment quota

While dealing with employment, the 1957 law ⁸ was also the first French law to refer to ‘disability’ as a category, introducing the notion of ‘disabled worker’ (travailleur handicapé). As such, it had a major framing effect, in terms of defining as a single-group people who had previously been targeted by separate policies and legislations depending on the origin of their impairment (work-related injuries, war veterans and other impairments). The debates on the perimeter of application of the employment quota are what led to such characterization, thus confirming its central role in French disability policy.

The law of 23 November 1957 defined a disabled worker as ‘any person whose possibilities of acquiring or keeping a job are effectively reduced as a result of an insufficiency or reduction in his physical or mental capacities’ (art. 1). The relationship to work is central to this definition of disability. It is not formulated in terms of incompatibility or incapacity, but in terms of ‘reduced opportunities’ to acquire or maintain employment. The legal definition of the disabled worker in 1957 thus formalized the turnaround initiated by the 1916 law (from inaptitude to work to work as a means of rehabilitation), by generalizing it regardless of the origin of the disability (whether it is related to war, work or other causes). The recognition of this status of disabled worker (Reconnaissance de la qualité de travailleur handicapé [RQTH]) was devolved to the Commission départementale d’orientation des infirmes (CDOI) (Departmental Commission for the Orientation of Disabled Persons).

In the parliamentary debates preceding the adoption of the 1957 law, there was a general consensus regarding the need for a form of active intervention on the part of the state to press employers to hire disabled people. The debate focused on the form of this intervention, between a logic of obligation of employment (pushed forward by the National Assembly and by disability organizations), and a logic of priority of employment, by which available positions would have to be declared to the workforce bureau, which would be able to impose, if needed, that the given company hire a disabled person on the vacant position. This last option was more favoured by the Conseil de la République (the equivalent of the Senate under the Fourth Republic). It is to be noted that the term ‘quota’ was generally not referred to, but the two different quota schemes were debated under the terms ‘percentage’ (referring to the general obligation of employment) and ‘reserved positions’ (referring to the individualized placement mechanism). Albert Gazier, the minister for social affair, defended this last option as the more ‘modern’ one:

percentages [. . .] are useful [. . .], but this technique is already largely outdated. The modern technique consists in having specific positions reserved in priority for certain categories of workers. ⁹

At the Conseil de la République, Marcelle Delanie, rapporteur on the draft law on the part of the family, population and public health commission, theorized a distinction between the old form of reserved occupations as defined in the context of World War I, which mainly aimed at redistributing the disabled workforce in subaltern jobs among different firms without any objective of turning them into competitive workers, and what she conceived as a more modern system of placement, seen as a temporary needed measure in the context of discriminatory attitudes on the part of employers, a measure that did not question the idea that without these discriminations, disabled people would be able to compete with nondisabled people on the labour market:

[This project] places the problem of placement on a rather different level from that on which the return to work of the disabled and war victims was undertaken in the past, which was most often only a distribution of the physically diminished among the enterprises. If rehabilitation and re-education really achieve their objective, which is to give disabled workers the same chances of obtaining and keeping a job as normal workers, the question of placement will be resolved at the same time, because the unquestionable professional value of the physically disabled will be appreciated and sought after by employers, who will then spontaneously proceed to direct hiring.

[. . .] Far from questioning, at the outset, the effectiveness of a carefully undertaken and pursued rehabilitation, [your Commission] has great confidence in it for the future. However, it recognizes very objectively that, in the immediate future, many obstacles remain to be overcome; employers, as well as the disabled worker’s co-workers, have yet to be persuaded that their fears and reticence are unjustified and unfriendly. For this reason, it admits that the authoritarian intervention of the public authorities, in the case of the failure of the personal attempt of this worker, is absolutely necessary. ¹⁰

She also referred to the parallel institutionalization of sheltered employment (the law officialized the creation of the Centres d’aide par le travail [CAT], sheltered employment centres) as an argument to stress that the disabled people remaining in the mainstream labour market had the work capacity and skills to compete with nondisabled people. Even though this does not necessarily reflect the dominant framing of this policy at the time, the argument this member of Parliament makes in favour of the quota scheme, prior to the rise of the notion of antidiscrimination for disabled people, in fact corresponds to an affirmative action rationale: the quota system is justified, not by disabled people’s reduced productivity, but as a short-term compensation for discriminations exerted by employers.

To ‘ensure the right to work for all disabled persons who are able to exercise a profession’, the law reserved ‘priority employment’ for disabled workers, in both the public and private sectors, up to a ‘certain percentage’ set by order of the Ministry of Labour (art. 10). The implementation of this employment priority was achieved through a system of job vacancy reporting by employers to the workforce bureau, which was to ensure the placement of disabled workers. The law provided that if this procedure was not followed, the employer would be subject to ‘a fee fixed, per working day and per missing beneficiary, at six times the amount of the SMIG [minimum wage]’ (art. 34). In continuity with the 1924 law, the quota was set at 10% for companies, including 7% for veterans and 3% for civils (Plaisance, 2009: 147). The law provided for the possibility of up to 20% pay cuts for disabled workers, within the limit of the minimum wage. A complex system of modulation of the percentage depending on the level of impairment was set up.

Limited to a procedural obligation, the law had little effect. Sheltered employment, however, developed very rapidly in the following years, with the number of employed disabled people practically doubling within 10 years after the adoption of the law (Blanc, 1999: 128–129), while mainstream employment grew only slightly.

This discrepancy was one of the motivations behind the next quota law, the 1987 law ¹¹ : since sheltered employment was more expensive for the public authorities than the promotion of mainstream employment, the aim was to reorient policy in favour of the latter (Velche, 2009). Thus, in 1987, a new law was passed ‘in favour of the employment of disabled workers’, imposing an obligation of result and not just of procedure. The ‘employment priority’ established by the 1957 law was replaced by an ‘obligation to employ disabled workers’ (Obligation d’emploi des travailleurs handicapés [OETH]). The scope of the OETH included workers who have obtained an RQTH, as well as victims of occupational accidents and diseases, recipients of civil or military disability pensions, and widows and orphans of war.

The employment quota, decreased from 10% to 6%, was intended to apply to companies as well as the public sector (from 20 employees or agents). However, non-compliance with the quota was only subject to financial sanctions (‘penalty’) for private companies. The amounts thus paid were collected by a newly created AGEFIPH, the purpose of which being ‘to increase the resources devoted to the integration of the disabled in mainstream employment’ (art. L 323-8-2). Yet, this promotion of mainstream employment was not unilateral: the law also provided that employers may contribute to the 6% quota by subcontracting to the sheltered employment sector (art. L 323-8). Be it in the parliamentary debates prior to the adoption of the 1957 or 1987 laws, no international influence can be traced.

The 2005 law: a hybridization of quotas and antidiscrimination law

The 2005 law ‘for the equal rights and opportunities, participation and citizenship of disabled persons’ ¹² was adopted in a very different context. In the meantime, antidiscrimination provisions had been adopted in several countries, with notably the adoption of the ADA in 1990 in the United States, and at the European level, the adoption of the Framework Employment Directive (no. 78/2000) (Vanhala, 2015; Waldschmidt, 2009). This directive promotes an ambitious concept of non-discrimination, incorporating, following the ADA, the notion of reasonable accommodation and the obligation for employers to provide for them (Lejeune, 2017). This ambitious view of antidiscrimination policy was transferred in French legislation in the 2005 law.

The French ‘translation’ (Stone, 2012) of the European directive in the context of the quota system led to a form of hybridization, a ‘hybrid policy’ as is often the case in contemporary disability policies notably under the influence of international organizations (Duygun, 2020: 305). Indeed, as was the case in several EU countries, the quota system was maintained parallel to the introduction of antidiscrimination provisions. How was this coexistence negotiated, and what were its effects on both provisions?

The introduction of an antidiscrimination approach did not entail any significant questioning of the quota system as such. While there are testimonies of a possible contradiction between the two systems being raised prior to the parliamentary debates (Velche, 2004), in the latter, the need for a quota system is almost never questioned. ¹³ There is a broad, unquestioned consensus on the need for such system, which is in fact reinforced by the 2005 law: sanctions in case of non-compliance are extended to the public sector, and the levies are increased. Here again, there are no references to foreign examples or international influences with regards to the evolution of the quota system.

Possible contradictions, however, were raised throughout the discussion of technical details of the quota. The parallel introduction of the principle of non-discrimination led to a questioning of the quota scheme on two main points. First, it was invoked to question the existence of exceptions in categories of positions taken into account in the calculation of the overall workforce of companies for the purpose of establishing the figure corresponding to the 6% quota: some categories of employment ‘requiring special conditions of aptitude’ were excluded from the count, which implied that they were inaccessible to disabled persons, contrary to the principle of non-discrimination. Despite being discussed, these exceptions however remained.

Second, the principle of non-discrimination was commonly perceived as being in contradiction with a pre-existing provision that enabled to modulate the count of disabled people employed according to the severity of their impairments and the limitations it induced on their work capacity. In the previous system, one disabled person, if their work capacity was considered severely reduced by their impairment, could be counted for as much as 5.5 ‘units’ in the number of disabled workers the firm declared to the AGEFIPH. In the parliamentary debates, several members of Parliament voiced concerns that the suppression of this weighing mechanism, decided in the name of non-discrimination, would entail increased discrimination against workers whose impairments more severely limited their work capacity, because firms would have less incentive than previously to hire them. Yet, this anticipation did not lead to a reframing of the count modulation as a possible leverage of affirmative action. Seeing the count modulation as incompatible with the principle of non-discrimination was a widely shared representation. This fear regarding the possible counterproductive effects of this suppression, nevertheless, led to the adoption of a principle of modulation of contributions paid to AGEFIPH for failure to comply depending on the severity of the impairment and its impact on work capacity on a given job. The following intervention of Anne-Marie Montchamp, Secretary of State in charge of disabled people, sums up this logic:

Indeed, it is not conceivable, in a bill for equal rights and opportunities, participation and citizenship of disabled people, that the modalities of counting disabled people in the company should follow any other principal than ‘one equals one’.

Marie Montchamp, Senate public hearing of 21 October 2004).

In this quote, the Secretary of state describes very literally (‘not conceivable’) the incapacity of government and members of Parliament to fully acknowledge the possibility of an antidiscrimination perspective that would include affirmative action. Antidiscrimination remains conceived in classical terms of formal equality (‘one equals one’). This is all the more surprising since, through the translation of the EU directive’s provision of reasonable accommodation, the 2005 law does also convey this more ambitious perspective on antidiscrimination which acknowledges that formal equal treatment does not necessarily do justice to disabled people (Minow, 1990). Through the principle of reasonable accommodation, the text of the 2005 law includes the possibility of affirmative action, in other words of a deliberately different treatment seen as a leverage to equality. But the fact that members of Parliament cannot transfer this logic to other arguments in the same law, including to safeguard pre-existing provisions that some of them would prefer to keep, reveals the limits of their appropriation of this principle. Even though the law in its text, through the translation of the EU directive, promotes a more ambitious vision of antidiscrimination, the common vision of antidiscrimination among public actors remains one of formal equality. This helps explain why the hybridization between quotas and antidiscrimination policy did not go so far as to reframe quotas as a tool of antidiscrimination policy through affirmative action.

Conversely, the fears commonly expressed in academic debates about quotas versus antidiscrimination policy (portraying disabled people as less capable, and as a burden to firms) were not significantly voiced in the parliamentary debates preceding the adoption of the 2005 law. The quota system was generally not portrayed as being in contradiction with the new logic of non-discrimination. In the aftermath of the adoption of the 2005 law, several studies showed the very limited the implementation of this new non-discrimination principle at the level of firms, whose activity regarding disability remains very centred on the implementation of the quota scheme (either through employment or through paying contributions to AGEFIPH) (Caron et al., 2016; Lejeune, 2017; Valdes, 2016). The employment of disabled people remains at a low level, and discriminations are widespread. More systematic studies are still needed to analyse the extent to which the quota system tames these widespread barriers to employment. Qualitative evidence points to ambivalent effects of the quota at the individual level: it functions as a leverage of access to employment in some cases, even though it also entails many ‘disclosure dilemmas’ (Richard and Hennekam, 2020: 2). Moreover, the absence of distinction between hiring and job retention in terms of how disabled workers are counted results in the quota being primarily used by firms as a means of job retention (targeting firm employees who become disabled) rather than as a leverage to hire new disabled people (Revillard, 2019).

On a more structural level, the case could be made that the pre-existence of the quota system may have contributed to provide favourable conditions for the implementation of antidiscrimination provisions in two ways. First, the implementation of the quota system had organizational consequences at the level of firms, leading to the early development of disability services, which can then provide organizational support for the implementation of antidiscrimination legislation (even though their appropriation of non-discrimination framework remains limited) (Bereni, 2018). Second, the existence of a national level fund to help pay for accommodations, the AGEFIPH, is likely to facilitate the implementation of the principle of reasonable accommodation, compared to a system where no such pre-existing fund would be available. Indeed, one of the difficulties in implementing antidiscrimination law is the reluctance of employers to fund such accommodations. In the French case, this potential obstacle is likely to be alleviated by the pre-existence of the quota system. In fact, the financing of facilities to enable the integration and job retention of disabled people has been at the heart of the AGEFIPH’s missions since 1987. ¹⁴

Discussion

The first striking conclusion of this historical overview is the existence of a form of obviousness of the quota as the main employment policy tool for disabled people in France: its use is almost never questioned, even in the context of the rise of antidiscrimination policy. While this could be analysed as a form of path dependency in the choice of policy tools (Pierson, 2004), a comparison with countries, such as the United Kingdom, where the quota system was suppressed after decades of existence, would be useful to specify the factors that favoured the persistence of the quota system in cases like the French one. In light of this historical account as well as secondary sources on the United Kingdom, the level of implementation appears as an important determinant, favouring both organizational path dependency and a positive perception of this tool by stakeholders, notably disability organizations (Doyle, 1995; Goss et al., 2000; Velche, 2004). More comparative work will be needed to understand why and how quota systems become so central in some countries as opposed to others. Moreover, in view of the global character of the employment quota as a policy tool, it is worth stressing that French parliamentary debates around the quota system are very French-centred: no reference to foreign examples or international influences is made. Based on the study of parliamentary debates, the reinforcement of the quota system, for example, cannot be linked to United Nations (UN) recommendations as in the case of Turkey (Duygun, 2020).

In terms of the meanings associated with quotas, this historical analysis nuances the classical association of quotas with a social welfare perspective that would be opposed to an antidiscrimination approach, and more generally confirms the limits of this dichotomy in the apprehension of disability policy (Waddington and Diller, 2002). Before the introduction of antidiscrimination provisions (1916–2005), quotas were indeed thought of as a form of social protection. Yet, they also differed from other more traditional forms of social intervention towards disabled people in two main ways, which endowed them with a more progressive dimension, confirming H1. First, the adoption of employment quotas in the aftermath of World War I embodied the shift from an assumption of incapacity to work to the promotion of rehabilitation and a belief in the possibility for war veterans (at the time) to work again. Quotas challenged the previous assumption of disability as being synonymous with work incapacity. Second, as of the 1957 law, quotas started embodying the promotion of disabled people’s work in mainstream as opposed to sheltered employment, in the context of the development of the latter. To be sure, these characteristics of the quota scheme are a far cry from antidiscrimination law, and they also reflect the limits of the opposition between social welfare and antidiscrimination policy to account for the complexities of the meaning associated with quotas. More fundamentally, this dichotomy misses a third reference that is central in the French context, that of solidarity and national obligation. Distinctly from private forms of charity, the employment of disabled people through quotas is conceived as a collective responsibility, initially deriving from a sense of national debt towards war veterans (the notion of reparation is then key), and later reframed in broader terms of solidarity.

The introduction of non-discrimination provisions in the 2005 law did not fundamentally change this general meaning given to the quota as a form of collective obligation of solidarity. In this respect, neither of the two assumptions we had formulated regarding the impact of the rise of an antidiscrimination approach (perception of quotas as an outdated measure [H2b] or as an advanced form of antidiscrimination [H2b]) were validated. The law, however, led to forms of hybridization between antidiscrimination policy and quotas. Without entailing much questioning of the quota system as such, the rise of antidiscrimination policy led to questioning several of its technical features, notably in terms of how disabled workers are counted as part of the quota scheme. On the other hand, several features and resources made possible by the pre-existence of the quota scheme, such as the development of disability services in firms and the existence of a national fund, may eventually be put to antidiscrimination use, facilitating support, equality training and the provision of reasonable accommodations. Even though recent reports point to a very limited diffusion of the notions of antidiscrimination and reasonable accommodations in firms, the situation may have been worse had these provisions connected to the quota scheme not previously been available. This ‘hybrid policy’ (Duygun, 2020: 305), as a result of the translation of antidiscrimination law in the French context, however, did go so far as to entail a radical reframing of the quota as an antidiscrimination tool aimed at compensating for structural inequalities. This reveals the very limited appropriation, in France, of an approach to antidiscrimination that goes beyond formal equality.

Conclusion

Following the trajectory of the disability employment quota in France through almost a century of policy and parliamentary debates introduces complexity in the classical narrative of the quota as an outdated social welfare policy tool in the context of the assertion of antidiscrimination policy.

The social welfare versus antidiscrimination dichotomy fails to account for another principle that is much more central in the French case, that of solidarity. Moreover, the historical analysis reveals all the nuances between these two poles. A Member of Parliament could, in the 1950s, develop an argument that boiled down to framing the quota as a tool of affirmative action (without using this term). On the contrary, the translation, in the 2000s, of an EU directive providing for an ambitious vision of antidiscrimination did not result in a reframing of the quota scheme as affirmative action and as a leverage of antidiscrimination policy. The common understanding of non-discrimination in strict terms of formal equality then led to the suppression of aspects of the quota scheme that could have been subject to an affirmative action argument.

By showing the complexity of meanings stakeholders give to the quota, beyond its conception as a social welfare measure opposed to antidiscrimination policy, this study paves the way for further analyses of the meanings associated with quota schemes. More comparative work is needed to better understand why quota schemes become central in some countries and not others, and how the meanings associated with them vary. In the French case, this study focusing on parliamentary debates would need to be complemented by an analysis of quota debates in other arenas, notably within the administration and among non-governmental organizations (NGOs). Further research is also needed on employees’ and employers’ perceptions of the quota system. Beyond the question of meanings, the quota as a policy tool is also in dire need of evaluation to assess its actual effects on the employment and professional fulfilment of disabled people. At a time when disabled people face major discriminations on the labour market and quota schemes remain widespread, conducting such empirical investigation is a pressing issue.