Silvia Yee
Introduction
In many ways, this collection of papers on the burgeoning field of national, regional and international instruments directed towards the redress of disability discrimination is really about the existence of disability prejudice. Most of the papers focus on practical or theoretical issues raised by the laws themselves, or the jurisprudential, social and political choices that shape the drafting and enactment of laws. Nonetheless, every paper is built on the conviction that disability prejudice is a fundamental force behind the exclusion of people with disabilities from a myriad of social and economic opportunities, and one author in particular writes in detail about the personal and systemic consequences of persistent disability prejudice and stereotypes.[1] This paper certainly does not dispute the existence of disability prejudice, but it does seek to take a direct look at disability prejudice to argue that the phenomenon of disability prejudice is not widely understood or truly accepted among the political, legal and social institutions that are counted upon to put anti-discrimination laws into practice.
It is my claim that disability prejudice has been viewed through the lens of prejudices such as anti-Semitism, racism, feminism and homophobia – intolerances that may not be pre-existing, but have been generally recognized and theorized earlier in time. While many prejudices may share certain elements of behaviour or even a common trajectory of development, they are not equivalent in their historical, social or psychological dynamics. To assume that they are equivalent poses a theoretical straitjacket on prejudices, allowing us to fall into the habit of believing that perpetrators of prejudice all act and think a certain way, and victims of prejudice share inherent characteristics. We confidently set legal and social prohibitions on the former in order to protect the latter, and we are then surprised to learn that there is a disjunction between the goals we set for disability discrimination laws and the experiences of prejudice that people with disabilities continue to undergo.
The claim that modern society is unfamiliar with disability prejudice may seem incredible in the face of governmental findings, the reports of non-governmental organisations (NGOs) and United Nations (UN) bodies, and the enactment of national and international disability anti-discrimination laws. In the United States, the Americans with Disabilities Act of 1990[2] (ADA) declares that the “continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis . . . and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non- productivity.”[3] Even prior to the enactment of the ADA, the United States Supreme Court stated that:
By amending the definition of “handicapped individual” [in the Rehabilitation Act] to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.[4]
This seemingly unambiguous understanding that people with disabilities are bereft of social, educational and economic opportunities not because of individual medical conditions, but because of external social conditions is reiterated throughout numerous international instruments as well.[5] In 1993, a major UN Conference on human rights found that:
The place of disabled persons is everywhere. Persons with disabilities should be guaranteed equal opportunity through the elimination of all socially determined barriers, be they physical, financial, social or psychological, which exclude or restrict full participation in society.[6]
The work of such NGOs as Mental Disability Rights International (MDRI), which has documented the wide-spread and commonly overlooked denial of the most basic human rights of people with mental disabilities in numerous countries,[7] has provided further evidence of discrimination and prejudice against people with disabilities.[8] With the new millennium, the denunciation of disability prejudice and discrimination in all aspects of life has advanced beyond an exercise in political rhetoric and moved towards the enactment of national laws and international instruments. The first binding regional convention concerning discrimination against people with disabilities finally entered into force last year,[9] and the United Nations (UN) General Assembly has just convened an Ad Hoc Committee to actively investigate and set proposals for a binding international instrument concerning discrimination against people with disabilities.[10]
Even international human rights tribunals have shown a corresponding willingness in recent years to interpret general human rights instruments in a way that recognizes the failure to extend human rights to people with disabilities as a clear violation of international law, and not simply an unfortunate consequence of an individual’s impairment. Both the Organization of American States’ (OAS) Human Rights Commission[11] and the European Court of Human Rights[12] have denounced the prejudicial mistreatment and particularly high potential for the denial of human rights faced by people with disabilities in situations of involuntary confinement. In the European case, the Court specifically noted that there was “no evidence in this case of any positive intention to humiliate or debase the applicant,” but nonetheless found a violation of the Convention: “to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet and keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”[13] In the face of such escalating activity and official acknowledgment, how can it be asserted that disability prejudice is unheard of?
In fact, I do not believe that disability prejudice is unheard of, at least in modern Western society, and all over the world, nations are paying attention to the reality of discrimination claimed by people with disabilities. I do, however, believe that the precise inability or unwillingness of many people, including people who have suffered from other kinds of prejudices themselves, to truly grapple with the what and why of disability prejudice lies at the heart of much of the resistance and backlash that disability discrimination legislation and policies have recently faced in the United States.[14] While this paper certainly does not purport to supply final answers to such critical questions as what disability prejudice is, how it operates and is communicated, and how to combat it, I hope to initiate a closer examination of the many assumptions inherent in the way we currently answer these questions.
The first part of my paper will look briefly at the development of disability studies with regard to the idea of prejudice. Second, I will examine how studies of prejudice as a social, psychological and cultural phenomenon have evolved since the area’s first large influx of work in the post-World War II period. These fields of study can inform one another, but they have so far generally failed to do so. This part will also focus on some of the complicating social and historical factors that make disability prejudice such a complex topic of study as an area of prejudice. The failure to study or even to see this theoretical gap threatens the future of disability anti-discrimination, because laws and policies are only effective in so far as they are maintained, enforced and accepted by a society that understands the underlying need for such laws. Finally, I will review how the historical emergence of disability rights awareness and its specificity as an area of prejudice has influenced the social and legal acceptance of disability prejudices. A short conclusion will consider areas for future development.
A. Prejudice in Disability Studies
The idea that society fails to perceive disability prejudice is hardly news to anyone who has or has had experience living with a disability. The increasing unification, political identity and self-advocacy of people with disabilities has occurred with remarkable momentum over the last four decades, and a key component in this swift progression has been the re-conceptualization of disability as a product of relations between people and not as an individual characteristic. One critical turning point in this process of re-conceptualization occurred in 1976 with the work of the Union of the Physically Impaired Against Segregation (UPIAS) in Britain. UPIAS clearly distinguished between impairment, which it defined at the time as “lacking part of or all of a limb, or having a defective limb, organism or mechanism of the body,” and disability: “the disadvantage or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities.”[15] The resulting view of disability as a socially created mandate was later coined the “social model of disability” by Michael Oliver, a leading British disability academic.[16]
If the gravamen of disability is located in contemporary social organisation, then it logically follows that society holds perceptions about people with impairments[17] – whether subconscious or cognitive, socially or psychologically caused, individually communicated or culturally preserved – that appear to justify the exclusion of people with disabilities. If these perceptions, often deeply imbedded and naturalised over time, are based on over-generalisation or myth or stereotype, or fail to accord with reality or the actual experiences of people with disabilities, then the result is aptly called prejudice.
Interestingly, disability studies have tended to focus on discrimination and stereotype far more than what could be considered the more primary study of disability prejudice. That is, the focus has been on re-interpreting overt acts that exercise control over the options available to people with disabilities, rather than on theorisation of the attitudes presumed to be behind the actions.[18] I posit at least two reasons for this. First, people with disabilities were living lives that were always imminently and profoundly circumscribed by social rules established by people without disabilities; regardless of attitudes, people with disabilities needed the rules to be changed before they could hold any hope for a future free from prejudice. Second, people with disabilities are historically one of the last groups to come to a sense of self-conscious political and social awareness.[19] An abundant academic and theoretical discourse concerning the nature and effects of prejudice and its root role in the social oppression of ethnic and racial minorities, as well as women and gay people, already existed and continues to grow. Rather than contribute to this often psychologically focused exploration of the types of individuals who hold prejudice, people with disabilities concentrated on recognizing commonalities between their own experiences of oppression and those of other minority groups, and on revealing the social treatment of people with disabilities as discrimination, and not simply as something objectively and inescapably dictated by the physical, mental or cognitive conditions of people with disabilities.
This is the approach taken by Paul Hunt, a first-generation disability activist, who in the 1960s chose to write:
… largely in terms of our relation with others, our place in society. This is essentially related to the personal aspect of coping with disablement, which I hope it will at the same time illuminate, since the problem of disability lies not only in the impairment of function and its effects on us individually, but also, more importantly, in the area of our relationship with “normal” people. If everyone were disabled as we are, there would be no special situation to consider.[20]
Hunt was discussing his own specific situation of being a person with a physical impairment that is commonly considered severe, and identified five distinct facets of this situation: society considered people with such impairments as “unfortunate, useless, different, oppressed and sick.” In his experience, people without disabilities believed that people with disabilities were “unfortunate” because the latter led “cramped lives” in which they were deprived of such things as freedom of movement, independence and the enjoyment of material goods. People with disabilities were also considered “useless” because they were “unable to contribute to the economic good of the economy.” Both of these aspects contributed to the assessment that people with disabilities were “different” – “abnormal, marked out as members of a minority group.” Hunt drew an analogy to the situations of other minorities, among which he included Jews, Blacks, homosexuals and the mentally disabled, who also feel the “constant experience of the pressure towards unthinking conformity.” He also explicitly evokes a correlation to the better-recognized racial and ethnic minorities when he concludes that the fact of being “different” subjects people with disabilities to “prejudice which expresses itself in discrimination and oppression.” The final aspect of being considered “sick” arose from disability’s uncomfortably close association with such things as depression, pain, loneliness, poverty and other aspects of tragedy and the unknown in the minds of non-disabled people.[21]
By linking disability prejudice with both general cultural expectations for such things as material goods and employment, and social perceptions concerning the inability of people with disabilities to achieve such expectations, Hunt was one of the first activists to cast an alternative light on the social segregation and lack of life alternatives hitherto assumed endemic in the mere fact of having an impairment. In Britain, where Hunt continued his work with UPIAS colleagues in the 1970s, disability studies developed as an independent academic area that conceived of disability as “a complex and sophisticated form of social oppression or institutional discrimination on a par with sexism, heterosexism and racism,”[22] and criticised disciplines such as medical sociology that “have been unable to distinguish between illness and disability and have proceeded as if they are the same thing.”[23]
Building on the powerful and liberating idea that disability discrimination is based on larger social relations rather than individual impairment, British academics – many of whom had disabilities and a number of whom were sociologists – drew heavily on Marxist materialist theories to trace disability oppression to the historical emergence of modern capitalist society and the cultural ideology of industrialism. According to Michael Oliver, capitalist ideology’s emphasis on individual entrepreneurship and achievement, aided by “peripheral ideologies associated with medicalisation and underpinned by personal tragedy theory, have presented a particular view of the disabled individual.” The social construction of disability as “dependence” is not derived from “functional limitations on [people with disabilities’] capacities for self-care,” but because dependence is shaped by “politicians, planners and professionals who have to manage (control) this dependency in accord with current social values and economic circumstance.”[24] Later British academics such as Tom Shakespeare have taken a somewhat different approach to studying the role of culture in the social construction of disability, focusing on discursive practices related to disability and cultural representation of disability “in the broader linguistic and artistic environment.”[25] Regardless of the precise emphasis, British academics and scholars are united in their conviction that impairment is disabling because a social and physical environment historically created by non-impaired people makes it so.
U.S. accounts of disability equally refute the individual, impairment-based medical model of disability in favour of a social model, but the most powerful and well-known of these accounts tend to accomplish this refutation through the immediacy of experiential narrative rather than the direct exposition of social theory.[26] One of the first disability studies scholars, the political scientist Harlan Hahn, writes of people with disabilities as subject to “the pervasive sense of physical and social isolation produced not only by the restrictions of the built environment but also by the aversive reactions of the nondisabled that often consign them to the role of distant friends or even mascots rather than to a more intimate status as peers, competitors, or mates.”[27] Jenny Morris, a successful political activist and feminist when she became disabled as an adult, argues that the lack of an inclusive forum in which people with disabilities can express their views of themselves and their social relationships enables the medical model’s view of impairment to be self-perpetuating. “Disabled people – men and women – have little opportunity to portray our own experiences within the general culture . . . [and t]his lack of a voice, of the representation of our subjective reality, means that it is difficult for non-disabled [people] to incorporate our reality into their research and their theories, unless it is in terms of the way the non-disabled world sees us.”[28]
How do we determine what is interesting, what is “newsworthy” or significant? In the late 1980s, journalists increasingly began to give press coverage from the viewpoint of people with disabilities. The journalist Joseph Shapiro recounts that in 1988, a public relations woman from the National Multiple Sclerosis Society called him with a story about how New York’s lack of accessability had forced the Society to take extraordinary measures just to get their “Man of the Year” from his hotel room across the street to the club where he was to be honoured. Shapiro declined, asserting that was seeking a story “with broad national significance, something important that was happening in the lives of all disabled people throughout the country.” The woman then told him about the efforts of something called the disability rights movement, and about an upcoming meeting in Washington, D.C. to consider a bill called the Americans with Disabilities Act. Shapiro went to Washington to watch as “an utterly anonymous presidentially appointed council” put together “dreamy, pie-in-the-sky legislation.” He found the council’s impassioned discussion about rights, and the irony of a sweeping civil rights bill being proposed by a council that had been appointed under then-President Reagan, not known for his support of civil rights causes, “interesting” but was still “not sure that [he] saw a story.” Later, standing in line for a taxi after checking out of his Washington hotel, Shapiro witnessed a taxi driver make an abrupt U-turn to avoid picking up the next person in the queue, a well-dressed young man in a wheelchair. Shapiro writes:
His face showed no anger, no emotion at all, as if getting passed by cabdrivers was an everyday occurrence. I was reminded of the MS Society’s Man of the Year, unable to cross the street in one of the world’s most modern cities, stranded without transportation. … If not for cabs, how would this man get back to his office or to his home? Few buses in Washington had wheelchair lifts. The subway system was accessible, assuming the elevator at his stop was working. But the subway reached only some parts of the city. Access to transportation, then, would circumscribe where the man lived and where he worked, or if he even worked at all. If people like him were precluded from working, then they would depend on welfare. If a society expected its disabled people not to work and instead need public assistance, would it even try to give them a decent education? Back at my office, I began writing my first story about disability as a rights issue.[29]
Shapiro eventually found the interesting and significant story he was looking for, but doing so was not a matter of unearthing more facts about the disability rights movement. Rather, it was a process of re-evaluating facts that were already before him. He grew to understand the logical social connection between the story of one person being unable to cross the street and systemic problems of transportation, employment, education and social expectations for people with disabilities. Ultimately then, U.S. experiential writings point squarely, as do the British sociological studies, to the interaction between people with disabilities and those without as the place where (lack of) understanding of disability is socially created, defined and maintained.
U.S. accounts of disability that are less experiential or narrative, and more directly theoretical or oriented toward historiography have tended to focus on specific institutional or policy aspects of disability, rather than to offer broad structuralist critiques of capitalism.[30] As such, they may not be written with the express goal of exposing systemic prejudice and stereotype, although they usually acknowledge the presence of such.[31] In the last decade, U.S. scholarship on disability has also grown increasingly cross-disciplinary as academics from fields as diverse as philosophy, ethics, literary criticism, archaeology, and cultural anthropology have joined sociologists in examining disability as a formed and forming aspect of modern culture.[32] The resulting body of disability-related work has provided rich and thought-provoking support for the claims of the social model of disability.
Certain fields, such as cultural anthropology, are particularly adept at illustrating how disability is a function of cultural and social understanding rather than a self-evident state of being, since the discipline must disassociate itself from medical or technical understandings of disability that are not by any means universally embraced or understood. The method of cultural juxtaposition requires anthropologists to “relate concepts of disability to notions about power and bodies, normality and order, individual capacity and social existence,” and further demands the understanding that cultural concepts “are not just ‘found in’ cultural analysis. They are asserted by the media, the clergy, health personnel, and development agencies; they are negotiated by parents, represented in ritual, contested or ignored by people with impairments.”[33]
Other seemingly more distant disciplines such as literary criticism or cultural studies add valuable insight by virtue of the fact that social assumptions and beliefs are in large part communicated through visual, literary and popular culture. Thus Rosemarie Garland Thomson examines the mid-19th– to 20th-century American “Freak Show,” sentimental fiction and black women’s liberatory writings to reveal the “critical gap between disabled figures as fashioned corporeal others whose bodies carry social meaning and actual people with atypical bodies in real-world social relations,” because she recognises that “representation informs the identity – and often the fate – of real people with extraordinary bodies.”[34] Other humanities scholars bring into question language itself, especially those discursive practices commonly used to describe the difference of disability. Lennard J. Davis provides a compelling portrait of how modern ideals of “normalcy” and the “normal” body are less a constant feature of the human condition than “a configuration that arises in a particular historical moment.[35] It is part of a notion of progress, of industrialization, and of ideological consolidation of the power of the bourgeoisie.” From the appearance of words such as “norm,” “average,” and “abnormal” into the English language in the mid-19th century, through to the normalizing plot devices, character development and very structure of 19th– and 20th-century novels, the “hegemony of normalcy” extends its influence to “the very heart of cultural production.”[36] Davis traces this path to show that “the ‘problem’ is not the person with disabilities; the problem is the way that normalcy is constructed to create the ‘problem’ of the disabled person.”[37]
With the close scrutiny of administrative disability categories, and the addition of cross-disciplinary techniques, disability studies have grown increasingly sophisticated in tracing the often subtle ways in which cultural rules, norms, language and social institutions create disability as different and lesser. Nonetheless, the first major insights of disability studies still hold. Even if one were bored by philosophy, disinclined to read anthropology or cultural studies texts, and preferred the comics over political editorials, the connection drawn by Shapiro outside his Washington hotel room is truly not that obscure. Do people without disabilities simply not notice or understand that accessibility is linked to social and economic opportunities, the lack of which leads to poverty, physical isolation and political powerlessness, with these in turn becoming a “naturalized” status quo for people with disabilities? When a persons with a wheelchair is halted by a single step at a public place or university lectures are given without sign language or transcripts for the Deaf, people with disabilities are substantively excluded. On the other hand, if the implications of a built and technologic environment that excludes people with disabilities are truly “inescapable,” as Anita Silvers maintains, why is it that “nondisabled people appear sincerely to regret these profoundly marginalizing outcomes, yet they do little to avoid them”?[38]
Furthermore, even if a nondisabled world is apathetic about the “incidental” (that is, non-intentioned) exclusion of people with disabilities, the current failure to take account of the subjective expression of individuals with disabilities requires at least some measure of active avoidance. Irrespective of theorizing, and as any chronicle of the disability civil rights movement shows, people with disabilities have been growing increasingly active and vocal about encountering inacessibility every day in all aspects of their lives.[39] Obviously, people with various kinds and levels of disabilities are capable, willing and desirous of communicating their personal experiences, and the historical absence of records of the lives, feelings and experiences of people with disabilities is obviously not an inevitable or “natural” consequence of impairment. Therefore, any continuing lack of these voices in mainstream social or political agendas can not logically be attributable to the mere fact of disability, so much as to an assumption that people with disabilities have little to say and even less to share. This longstanding stereotype, like most stereotypes about people with disabilities, has long gone unquestioned in the nondisabled world, even though it has been factually disputed by people with disabilities time and again.
Various explanations have been advanced for the origin and persistence of stereotypes about people with disabilities in contemporary society. Barnes looks to history and the roots of Western culture in ancient Greek civilization’s “obsession with bodily perfection, as evidenced in Greek myth, competitive sport and the practice of infanticide for children with impairments.”[40] Others hypothesize a deeper, psychological rationale for stereotypes in stating that for the nondisabled, people with disabilities are a threatening reminder of the ever-present possibility of accident, impairment, helplessness.[41] One author asserts that irrational prejudice against the mentally disabled occurs “because we fear the unknown, and we fear the possibility that we may become mentally ill. To make the world less indeterminate, we simplify via stereotypes that simultaneously demonize and infantilize. And we continue to irrationally conflate mental illness with dangerousness.”[42] Other academics point out how the 19th century provided a particularly fertile breeding ground for stereotypes: “[a]s we locked up, isolated, and segregated people, the perception of their lives became one of speculation and mystery rather than based [sic] on fact and experience. As the curve of social isolation increased, so did misunderstanding.”[43]
Disability scholars have addressed issues of stereotyping and discrimination, but the factor of prejudice is usually asserted without a similar degree of systematic theorization. From an experiential viewpoint, such theorization is unnecessary. What else could possibly account for the world’s refusal to acknowledge or care that its institutions, social rules and cultural expressions ignore both the needs and capacities of people with disabilities? How can prejudice not be present when the mere fact of a disability or impairment can not objectively explain pervasive differences of treatment? The experience of a profound gap between what people with disabilities feel and believe their lives and their worth to be, and the way in which they are persistently excluded, assessed and portrayed – so similar in many ways to the experience described by Jews, Blacks, women, gay people – is held in common by victims of discrimination. Like those other victims, people with disabilities turn to prejudice as the root explanation for the misperception, damaging stereotyping and discrimination that marks their lives[44].
Hunt expressed something of this feeling of affinity with other minorities when he wrote:
Maybe it is invidious to compare our situation with that of racial minorities in any way. The injustice and brutality suffered by so many because of racial tension makes our troubles as disabled people look very small. But I think there is a connection somewhere, since all prejudice springs from the same roots.[45]
Attempts to compare the sufferings of people with disabilities and racial minorities might be of arguable worth,[46] but Hunt’s general understanding of all prejudices sharing common roots remains essentially unchallenged in disability studies. In the 1960s, when Hunt wrote these words, he would have found virtually uniform agreement among scholars of intolerance and prejudice. This is no longer the case. For immediate victims of intolerance and discrimination, this academic splintering may seem of little moment, but anyone with a stake in how our society analyzes, judges, punishes or combats the consequences of prejudice in general, and disability prejudice in particular, will find it worthwhile to further investigate the junction of prejudice and disability.
B. Disability in Prejudice Studies
Prejudice as an independent topic of scholarly investigation in the Western world came into its own after the Second World War. Studies in Prejudice, a five-volume series of social science enquiry into anti-Semitism, intolerance and intergroup conflict, was commissioned in the U.S. by the American Jewish Committee as a serious attempt to understand and avoid the forces that allowed the Holocaust to occur.[47] While experientially based literary and historical accounts from within the Black community as victims of prejudice were also being written during this period, these usually were not focused on the broad subject of prejudice in and of itself.[48] In the 1950s, rising social awareness of intolerance and violence in U.S. race relations provoked a corresponding increase in the academic theorisation of prejudice as a seemingly inescapable ingredient in all human relations.
Gordon Allport’s seminal The Nature of Prejudice[49] is the most widely quoted and classic English study of prejudice in the post-World War II era. Allport sought to provide a thorough review of scholarly work that had been undertaken to date, but even more importantly, a “framework” for the future investigation of prejudice in all its manifestations. Innumerable college texts have adopted not only Allport’s definition of prejudice, usually formulated as “prejudice is an unjustified attitude, positive or negative, directed toward others because of their membership in a social category or group,”[50] but also his entire approach to studying the subject. Endemic in this approach is both a conceptual conviction that despite prejudice’s various manifestations, “the basic causes and correlates are essentially identical,”[51] and a professional faith in the social sciences as a means of easing and solving the dilemma of intergroup conflict. Both themes are evident in the following:
in recent years men in large numbers have become convinced that scientific intelligence may help us solve the conflict [of group rivalry and hatred]. … Men are saying, “Let us make an objective study of conflict in culture and industry, between people of different color and race; let us seek out the roots of prejudice and find concrete means for implementing men’s affiliative values. Since the end of the Second World War universities in many lands have given new prominence to this approach under various academic names: social sciences, human development, social psychology, human relations, social relations. Though not yet securely christened, the infant science is thriving. …
The present volume does not pretend to deal with the science of human relations as a whole. It aims merely to clarify one underlying issue – the nature of human prejudice. But this issue is basic, for without knowledge of the roots of hostility we cannot hope to employ our intelligence effectively in controlling its destructiveness.[52]
Allport’s belief in the transforming power of the social sciences probably strikes most contemporary readers as naive, but his understanding of the essentially singular nature of prejudice generally has remained entrenched in subsequent studies, albeit with increasing emphasis on the unlikelihood that the social sciences will ever succeed in finding one unified theory of prejudice.[53]
Allport himself used various “lenses” – historical, psychological, cultural, economic – to view the phenomenon of prejudice, and endorsed specific techniques ranging from field interviews to psychoanalysis. Nonetheless, results obtained from interview/questionnaire studies in particular led him to state that “[o]ne of the facts of which we are most certain is that people who reject one out-group will tend to reject other out-groups. If a person is anti-Jewish, he is likely to be anti-Catholic, anti-Negro, anti any out-group.” This in turn fueled his conclusion “that prejudice tends to be a general trait in personality,” a “generalized attitude.”[54] In further support, he notes “[t]he fact that scapegoats of different breeds are so often harnessed together [in verbal condemnations] shows that it is the totality of prejudice that is important rather than specific accusations against single groups.” In this regard, Allport built on the earlier work of Theodor Adorno and his fellow Marxist social theorists in their development of the “F-scale,” a measure for tendencies and personality traits that exhibited an affinity with fascism (authoritarianism).[55] These concepts, of an “authoritarian personality,” a “generalized attitude” behind prejudice, of ethnocentrism in which hostility is more or less “naturally” directed towards anyone who falls outside of one’s self-defined “in-group,” all reinforce the understanding of prejudice as a unitary phenomenon.
In the last couple of decades, theories concerning prejudice have grown increasingly diverse in their approach, but these theories often continue to present the many manifestations of prejudice as rooted in a single thing, whether that thing is fear of the unknown, dislike of the unknown, competition for scarce resources, or hierarchical social structures.[56] Similarly, different disciplines advance theories that present prejudice in terms of evolution (sociobiological roots), group interactions (structural roots), individual tendencies (social-psychological roots), or the ways in which people communicate through symbols (roots in linguistics, rhetoric, discourse, and historical power relations),[57] with the implicit premise that any given theory is equally applicable to any particular manifestation of prejudice. After thoroughly reviewing and analysing the strengths and weaknesses of numerous representative examples of prejudice studies from each of these four conceptual frameworks, Michael Hecht and John Baldwin propose “that intolerance can exist at various levels and be expressed in different ways. . . . we argue that although there may be an underlying, global, or unifying construction of prejudice, there also are various intolerances; even ethnic intolerances can be expressed differently toward one group than toward another.”[58]
A glance at the British and American disability writings reviewed in Part A of this paper reveals a fairly fluid appropriation of various of these theoretical approaches. In other words, disability writers have not sharply distinguished between presenting disability prejudice as fear of difference and the unknown, as a consequence of capitalist ideology and an individualistic culture, or as the product of hegemonic cultural and representational norms. As might be expected in an emerging field of study that is prominently marked by strong narrative and personal accounts of actual experiences of disability, disability scholars have not felt compelled to maintain watertight compartments of prejudice theory. Nor, however, has any disability scholar explicitly rejected the implication that disability prejudice shares the same roots and course of development as other prejudices.
In fact, the adoption of terms like “disablism”[59] and “sanism”[60] advances an implicit premise that disability prejudice is a prejudice “like the others” – for example, prejudices such as anti-Semitism, racism, and sexism[61] that have gained earlier popular, academic and cultural recognition. The term “disablism” is useful in many ways. It instantly connotes a relationship of prejudice and social oppression, and by doing so serves as a rallying point for members of the disability community. “Isms” are publicly recognized as a civil rights issue requiring legal action and policy redress. On the other hand, the use of the term also necessarily invites comparison between victims of disability prejudice and victims of other kinds of prejudice, as well as a search for conceptual correlation in the motives and actions of those who harbour disability prejudice and those who display other prejudices. Ultimately, I believe this process of comparison does a disservice to the unique social dynamics and evolution of disability prejudice, and obscures the operation and purpose of disability anti-discrimination measures. Without discounting the possibility of similarity to other prejudices, I agree with recent theoretical assertions that there are prejudices rather than prejudice, each with its own internal logic, historical subtleties and political issues.
Elisabeth Young-Bruehl, one of the strongest critics of the “unitary prejudice” idea, presents a multi-pronged and deeply theorized approach to prejudices, specifically anti-Semitism, racism, sexism and homophobia. In the remainder of this section, I would like to discuss aspects of her approach that could prove particularly relevant to our understanding of disability prejudice.
1. Prejudices in Act and in Interpretation
In The Anatomy of Prejudices,[62] Young-Bruehl begins by describing an incident wherein a number of white varsity wrestlers at her university were overheard discussing the rising number of young Asian-American wrestlers on the team. Their apparent apprehension over this fact was collectively and laughingly dispersed by mutual assurances that the new Asian team members would not “be much of a threat in the competition for girls, because they have such small penises. . . . condom manufacturers could make a killing if they designed a condom just for these small penises.”[63] The gist of this locker room conversation was reported by the campus newspaper, provoking a wide range of reactions from outrage to casual dismissal. Young-Bruehl describes the furor as follows:
Like most publicized instances of prejudice, this one had two stages: one of word or deed, and one of interpretation. Prejudices manifested in slurs, acts of discrimination, attacks, are followed by prejudices – not necessarily the same ones – manifested in rationalizations, self-serving descriptions, denials, commentaries, often ones designed to discredit the victims’ truthfulness or belittle their pain. Prejudices have histories, and the second stage commonly involves a reference to history or an argument about the applicability of history: this episode is like or unlike that one in kind or degree or intention. Theoretical or interpretive prejudices or spins, which can, of course, serve rawer forms of prejudice, come into play. There are wars, and there are culture wars.
This insight has particular significance for disability prejudice, and indeed, any intolerance that has achieved public and legal recognition after the traditional “troika” of racism, sexism, classism. The economic exploitation and abuse of socially lower classes has led to various civil wars and revolutions in many cultures and nations when those classes sought better treatment. After World War II, the horrific revelations of the Holocaust were a brutal picture of ethnic intolerance. In the U.S., Blacks were subjected to racial prejudice long after the abolition of slavery, exhibited in forms ranging from social and legal segregation to mob violence. No doubt, there are still rare individuals who actually deny these events, or look back upon them and “interpret” them as rational or at least justifiable actions taken by divinely-appointed rulers, a politically oppressed nation, a superior race. For most people, however, these examples serve as unequivocally clear instances of prejudice in action. And they are models not only for the acts of prejudice themselves, but for our intellectual and emotional interpretation of acts of prejudice.
We recognize an act as one motivated by prejudice when it takes lives that we believe are innocent – that is – when victims have been targeted and acted against on the basis of differences that we know are either totally irrelevant or simply created in the imaginations/needs of the majority. We acknowledge prejudice in the actions of others and ourselves when we have sought utter exclusion, extermination or complete control. Or perhaps when our reaction to an objectively discernable difference is utterly disproportionate or unreasoning. In any event, we want an action by which we can judge the motivation. Prejudice against people with disabilities has taken the form of “purposeful unequal treatment,” but it has also included forms such as “discriminatory effects” from an inaccessible built environment, the “failure to make modifications” and subjection to judgements “based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.”[64] While the U.S. Congress has recognized these as discrimination, and they are certainly experienced as such by people with disabilities, they lack the prototypical indicia of prejudice. “Average” able-bodied Americans may follow Davis’ argument about the hegemony of normalcy, but they can do so without agreeing that prejudice is involved. They may feel sympathy and even empathy for people with disabilities, but they will not feel culpable. The dissemination of experiential minority writings and feminist theory may increase our appreciation for the subtlety of prejudices in their modern forms, but the bulk of that appreciation is still likely to be credited towards groups that have been traditionally subjected to the extremes of discrimination noted above.
2. Feminism, Consciousness Raising, and “Victimhood”
The familiarity of academic references to “racism, sexism, classism” may give the impression that the history of prejudice is one that encompasses equal scholarly consideration of each element of the troika. In fact, this has not been the case, especially in the “melting pot” of the U.S. where racial tensions among peoples of colour have exploded so violently and recurrently since the 1960s. As Young-Bruehl observes: “[a]ntisemitism, the prejudice over which social psychology had its immediate postwar flourishing, has disappeared from ‘the social psychology of prejudice.’ . . . [w]hile race prejudice has become Prejudice, sexism, like antisemitism has had its own books. But sexism has its own books without ever having been, historically, included in the Studies of Prejudice traditions.”[65] The evolution of sexism, both as a term and as a socially and legally recognized prejudice, is of particular interest to disability studies because of certain parallels in the situation of women and people with disabilities as oppressed groups.
In reviewing the American feminist literature of the 1970s, Young-Bruehl remarks on “the emphasis on ‘consciousness raising'”:
The first thing that the writers, most of them middle-class and educationally privileged, had to do was to convince themselves and other women that they were, indeed, oppressed and oppressed as women. They had to legitimate their status as victims, something that no victim of “racism” – the word on which “sexism” was modeled – ever had to do. But they specifically had to alter their consciousnesses, their minds, their thoughts; they had to resist as thinkers. Eventually, the designation “theorist” was appropriated, and “feminist theory” was born. This focus on thinking, on theory, was the answer to the central modality in which the oppression of women was felt by that generation of educated, middle-class, and predominantly urban and white feminists. … Victim groups must respond to their oppression first at the site where it most threatens their ability to respond … a group attacked for its mindlessness, which means body-onlyness, responds with consciousness raising.
For privileged women to say, clearly and unequivocally, “we are oppressed,” or “we are the victims of sexism,” required analysis of sexism as a complex and multifaceted form of mind control and body control.
… women in households, experiencing domination in the paternalistic mode, “mitigated by mutual obligations and reciprocal rights,” did not see themselves as a group and did not perceive themselves as potentially political, as resisters. … Consciousness raising was the necessary step to resistance for women, who had to make themselves into a group and learn solidarity.[66]
From the beginning, the disability rights movement faced the challenge of forging solidarity among widely heterogenous individuals who potentially shared nothing in common except for the fact of experiencing disability.[67] Not only did disability cut across every other minority identity, the difficulty of achieving solidarity was exacerbated by the need to reconcile the vested social and political interests of established groups that had historically organised according to particular disabilities (for example, blindness), as well as groups who did not consider themselves disabled at all (for example, the Deaf). Ultimately, the experience of discrimination is the commonality that united people with disabilities, but defending themselves against this discrimination is a complex theoretical challenge. If the site where women are most threatened by oppression is the assumption of mindlessness, then the corresponding site for people with disabilities is helplessness. If privileged white women have to raise their own consciousness and that of others concerning their status as victims of prejudice, people with disabilities face a similar task, but with the added complication of simultaneously refuting their status as victims of disability, per se.
As a theoretical and practical exercise, this task has proven astonishingly difficult. The general public often responds with profound ambivalence to people with disabilities, seemingly motivated by a complex interaction of admiration and pity.[68] The most logical way to fight stereotypes of needy, childlike and dependent people with disabilities is to provide stories and images of people with disabilities as strong, independent and enjoying life to the full, but this not only contradicts social expectations,[69] it may be perceived as a contradiction of the disability rights movement’s claims concerning the effects of pervasive institutional and social prejudice.
Women are challenged to establish their oppression for being different while proving their capability with difference.[70] This is also a core challenge for people with disabilities, and for many, the way forward has been to challenge social and economic assumptions about what capability really means.[71] Once again though, such approaches are a departure from the traditional social and legal understanding of prejudice as it has been established through racism.[72] An employer who declines to hire an individual because of a disability that makes the desired work environment particularly dangerous to him or her[73] simply is not prejudiced in the same way as someone who puts on a white hood and goes out to burn crosses on the lawns of Black neighbours. Therefore, we may conclude that the Black homeowners are victims of prejudice, while the individual seeking a job is a victim of his disability or bad luck. In any event, this entire discussion presumes that prejudice is intentional and cognitively controlled – at least enough so that once victims can intellectually or physically prove their capabilities, prejudice will go away or be suppressed. This is an oversimplification.
3. Ideologies of Desire
The “generalized attitude” approach to defining prejudice implies a certain level of cognition. “Isms”, even if subconsciously shaped and irrationally resistant to change, are intentionally held.[74] This may be due in part to an understanding of a unitary prejudice that is rooted in the very general notion of ethnocentrism[75] as the rationale for modern prejudice. The theory of love of one’s own group, of dislike or fear towards other groups, fails to explain how prejudices are manifested to such obviously varying degrees of violence, paternalism, justification, directed toward certain groups and not others at certain points in history, and resistant to social change. Young-Bruehl makes a distinction between ethnocentrism, which she defines more narrowly as “a form of prejudice that protects group identity in economic, social, and political terms” and the broader concept of “ideologies of desire”:
Ideologies of desire are, generally, backlashes against movements of equality; they are regressive prejudices that reinstate inequalities and distinctions when the force of movements for equality has been registered and (often unconsciously) rejected. … Prejudices institutionalize at deeper and more inchoate individual and social or political levels the differences between “us” and “them” that movements for equality address.
… the era of state economies and world wars, of internationalism and what is now known as globalism, which gives all local conflicts larger contexts of interference, has been an era in which “us versus them” has been both enacted and rationalized, converted into ideology, in quite distinctive ways. … Progress on legal fronts has changed the contexts of prejudices. But the needs those prejudices serve stay very much the same. Sometimes the needs simply find a new target when their familiar ones become harder to hit because it [sic] is somewhat protected.[76]
Young-Bruehl goes on to develop a theory of three distinct types of modern ideological prejudices, each linked to a broad “character” type.[77] She links anti-Semitism with obsessional prejudice, racism with hysterical prejudice, and sexism with narcissistic prejudice. I raise Young-Bruehl’s typology not necessarily to endorse her specific analysis, although I find it quite compelling, but to make the point that all of her prejudices operate both discretely and collectively against people with disabilities, even though distinctions between them are invariably subsumed within the general rubric of prejudice. I take this as evidence of the idiomatic difficulties of untangling disability prejudice, which intersects with such a wide variety of historical ethnocentrisms, modern fears and social expectations. This, in combination with the insidious understanding of prejudice as both unified and somehow “unchanging,” is leaving disability prejudice in a place of exile – not “prejudice” as the law or general public expects it to be, but nonetheless extant and active against people with disabilities in hidden ways that are difficult to fight.
a) Narcissistic Prejudices
Young-Bruehl describes sexists as people:
who cannot tolerate the idea that there exists people not like them, not – specifically – anatomically like them. Their prejudice has a narcissistic foundation, and it is, of the ideologies of desire, the most universal . . . narcissistic prejudices are prejudices of boundary establishment . . . On the other side of the narcissists’ boundaries there is not a “them,” a “not-us,” but blank, a lack – or at the most, a profound mystery.[78]
The marks of difference in women, especially female sexuality and reproductive capacities, threaten male gender identity, and according to Young-Bruehl, the deepest counter to that anxiety is control over female difference. “Sexism is expressed in many ways, but its essential meaning is control over female sexuality and reproduction, and its essential purpose is to keep men from recognizing women in their difference or from succumbing to their fear of becoming women.”
Young-Bruehl applies her analysis very specifically to sexism, but the threat to self-identity and desire for control that is the hallmark of narcissistically-based prejudices are easily discernible in prejudices commonly exhibited against people with visible disabilities. Narcissistic prejudices recognize disability as difference and perceive a threat to their very identity as human beings. The way to assuage this fear is to linguistically and socially control access to what will be considered human. If narcissists cannot tolerate the thought of “people not like them,” then upon being confronted with people not like them, they will refuse to acknowledge that they are being confronted with people at all.
Throughout history, societies “have believed that people with disabilities were closer to wild animals than humans”; have presented people with mental illness “as being wildmen, savages, wildwomen, or animals”; “have thought of and labeled people with physical disabilities or deformities as monsters or monstrosities”; and “have viewed people with developmental disabilities as inhuman, subhuman, or biological throwbacks.”[79] Women, even when given a narrowly circumscribed role by narcissists, still had to be recognized as necessary to the continuation of the human race (this remains essentially true despite recent developments in cloning and genetics); this was not true of people with disabilities as individuals or as a group. If “the disabled” were considered inhuman, then they did not even have to be acknowledged as “other,” any more than one would consider a fox or a weasel an “other.”
With the rise of Christianity, people with disabilities were perceived either as unclean and judged by God, in which case they were divinely separate from the rest of humanity who were created “in the image of God,” or more “charitable” impulses prevailed and disabilities “were not specifically distinguished from other forms of misery or suffering”[80] that were common in the Middle Ages. Even if the more humane latter view prevailed, however, “the ethical and spiritual integration of difference did not accomplish social integration. The infirm were marginal, cared for by their families or by charitable patrons, without any social function or identity as a distinct group.”[81] From a narcissistic point of view, if people with disabilities could no longer be denied their humanity, they could at least be avoided and controlled. Once it was no longer socially acceptable or common to call people with disabilities inhuman, the medical model of disability and its pervasive influence in rehabilitation medicine and social/unemployment welfare controlled the segregated category of “the disabled,” in relation to both who was admitted and their treatment upon admittance.
The narcissist’s deep need to deny and control the difference of the Other continues to evolve. Davis describes contemporary media portrayals of people with disabilities as follows:
Whether we are talking about AIDS, low-birth weight babies, special education issues, euthanasia, and the thousand other topics listed in the newspapers every day, the examination, discussion, anatomising of this form of “difference,” is nothing less than a desperate attempt of people to consolidate their normality.[82]
Davis interprets this as the need of the nondisabled to single out an Other by which to define themselves. To my mind, Young-Bruehl’s ideas present an equally plausible explanation: narcissistic prejudices drive those who have them to restrict the totality of the world to people who are as they are themselves. Those who persist, willingly or otherwise, in being Other are labelled, treated, rehabilitated, confined, and even abused and eliminated – whether outright,[83] through eugenics,[84] or by being offered the “choice” of assisted suicide.[85]
b) Hysterical Prejudices
In distinction to sexism and the narcissistic prejudices, Young-Bruehl states that:
Racism, by contrast, exemplifies hysterical prejudice, by which I mean a prejudice that a person uses unconsciously to appoint a group to act out in the world forbidden sexual and sexually aggressive desires that the person has repressed. … The victims are, like victims of the most common forms of classism, another hysterical prejudice, “lower.”
… The “others,” either as domestic servants or slaves or as a fantasized part of the prejudiced person’s household, are love and hate objects in the loving and hating of whom no bans on incest or on rivalry are violated; they are the safe – for the prejudiced person – objects of childhood passions. Ideally, the victims do not get destroyed completely or flushed away as the obsessional’s victims do; they are needed alive, so that they can be loved like mammies, prostituted or raped like whores, sexually mutilated, beaten, deprived of their power, crippled, emasculated – and in all instances, kept in their places.[86]
Again, Young-Bruehl clearly characterizes hysterical prejudices in the context of the historical reality of white racism as it has developed against Blacks in the United States. I am struck, however, by the parallels between her description and the prejudices exhibited against people with disabilities – developmental disabilities in particular. Historically, prejudices against Blacks, lower socio-economic classes and people with disabilities coalesced in the 19th century as people with developmental disabilities were “viewed as the product of degenerate families, which formed a major part of the lower economic strata. … ‘degenerate’ families spawned disease, disability, dependency, and social misfits … People with developmental disabilities were included in these groups of perceived racially inferior and hypersexual people.”[87] Since people with developmental disabilities were assumed to have “lower moral intelligence, poor judgement, and subhuman characteristics, they were seen as sexual predators frequently wanting sex.”[88] This cluster of stereotypes around people with developmental disabilities follows them and colours the way that they are perceived, treated and spoken about, even by those with whom they have prosaic daily contact, and even when they are clearly in a position of powerlessness.
Jane Hubert, in her paper on the effects of long-term segregation in mental institutions, writes of life in a locked hospital ward in Britain, where 20 adult men diagnosed with severe cognitive or developmental disabilities and “challenging behaviour” had lived most of their lives.[89] She describes how at the beginning of her project, before the field work in the ward had begun, “the female psychiatrist in charge described all the men in the ward as either perpetrators or victims of sexual abuse (or both), and added that the ward “smelled of sex.” She then adds that:
Subsequent experience in the ward did not bear out any of this: it smelled of faeces, and urine and drug-laden breath, but not of sex. What she was really suggesting was something quite different – that these men were sexually uncontrolled, polluted and polluting, a common fantasy about the ward. What this psychiatrist was saying could often be heard in the voices of other professionals, especially those who did not actually work directly with the men. There were clear undercurrents of fear, and prurience, in the way they spoke of them: fear of potentially uncontrollable sexual activity, of violence, ugliness, the unknown, and of the undefined power of people who are perceived as almost totally “other.”[90]
Hubert further illustrates her point by describing her interactions with David, a resident who has lived in institutions for some 30 years since his first admittance as a child. David is “very tall” and at first sight is “both strange and threatening” as he “strides around the ward for most of the day, often roaring loudly.” The most striking thing about David, however, is that he never has any clothes on. Even though the ward staff may tolerate degrees of undress from other residents, no one else is allowed to walk around without clothes. David is the exception because he simply tears up clothes when he is put in them. As Hubert notes rather dryly, “[i]n ‘normal’ society, we do not accept nudity in the everyday social environment.” In the ward there are 19 other residents, various visiting health professionals, domestic staff, maintenance men, and so on, and approximately 40 male and female staff members who are trained to closely observe for and protect against sexual abuse towards or among the residents, “yet, sitting with the other residents, walking around among them, is a naked man.” David is placed outside of the boundaries of normal adult social rules, but he is simultaneously ignored as an adult male even though he obviously is one. “To all intents and purposes his sexuality is denied. He is de-sexed and de-gendered.” Hubert concludes that for David and the other men, “although their sexual dangerousness is often used as a justification for controlling them within a locked environment, at the same time, not only are they denied normal gender roles, but also their sexuality is mocked.”[91]
Hubert’s observations capture the hysterical prejudices that lie at the heart of modern society’s interest in keeping people with developmental disabilities physically and socially isolated, ostensibly maintaining purity in the community while relegating the Other to an imagined sexual degeneracy that yet remains biddable, reportable, accessible. We can imagine institutions where they get to walk around without clothes, gesticulating obscenely and saying words that the rest of us blush to think. They are free to have sex and not consider the consequences or be subject to any moral, emotional or ethical constraints. Even as people with developmental disabilities are institutionalised and constricted medically and socially in ways that often strip away even the possibility of having significant intimate relationships, they function as fantasy figures for society at large – unfettered from constraints imposed on “the rest of us” by social mores and upstanding public morality.
For a final comment on hysterical prejudices in disability prejudice, I refer to Young-Bruehl’s statement that “societies in which hysterical individuals are common and sexual repression or puritanism rife are societies split … committed to visions of equality and fairness, … at the same time, sexually and aggressively explosive.”[92] I doubt that many would consider 21st century U.S. culture puritanical or sexually repressed, but I do propose that the hypocritical social “double vision” implicit in Young-Bruehl’s statement is fairly found today with regard to people with disabilities in general. When it comes to the sexual identity and activity of people with physical disabilities, Western society is extremely limiting and repressed. Especially for women with physical disabilities, “identification with a disability is to be socialised in a way that brings one’s competence in sexuality, procreation and nurturing into question.”[93] At the same time, people with developmental disabilities are mythologised as promiscuous and prolific. The manner in which these two distinct stereotypes about people with disabilities interact, or rather fail to interact, reveals the impacted and entwined roots of disability and gender prejudices, and the operation of all of this against a backdrop of civil rights and a commonly endorsed belief in sexual freedom enables us to see how society is deeply and hysterically prejudiced against people with disabilities.
c) Obsessional Prejudices
“Obsessional prejudices are the prejudices toward which people who are given to fixed ideas and ritualistic acts gravitate and through which they can behave sadistically without being conscious of their victims.”[94] Young-Bruehl writes. This is her first category of prejudices, and she cites anti-Semitism, anti-Communism during the McCarthy era, and the more contemporary “Japan-bashing” by U.S. commercial interests as exemplars. She continues:
The obsessional prejudices feature conspiracies of demonic enemies everywhere, omnipresent pollutants, filthy people, which the obsessionally prejudiced feel compelled to eliminate – wash away, flush away, fumigate, demolish. The obsessionally prejudiced attribute to their victims a special capacity for commercial or economic conspiracy and diabolical behind-the-scenes cleverness, and they both envy this capacity and, acting imitatively, turn the fruits of this cleverness (particularly in the domain of technology) on their victims. They imagine the conspirators as having the capacity to penetrate them, get into their bowels and their privacies.[95]
At first glance, it may seem that people with disabilities are not targets of Young-Bruehl’s obsessional prejudices. While people with disabilities have been depicted as demonic and unclean, this is usually connected to narcissistic or hysterical forms of prejudices that respectively seek either elimination or control of the difference that is disability or maintenance of a prurient interest in the perceived sexual waywardness of people with certain disabilities. Since the very category of “the disabled” is a late historical development,[96] it is not surprising that conspiracy theories have not evolved against people with disabilities as a group. Nonetheless, I argue that such conspiracies are evolving right now. People with certain disabilities are facing the emergence of a modern, and possibly milder form of the obsessional prejudices. Ironically, the fact that these prejudices are emerging is attributable in part to the very success that has been enjoyed by people with disabilities in fighting social, political and economic discrimination caused by other kinds of prejudices.
I have already mentioned the existence of a negative media backlash[97] against the ADA, but running through the reports of excessive and nonsensical claims is a particular thread that attacks certain segments of people with disabilities as undeserving of the law’s protection. Invariably they refer to the “real” intentions behind the law, and implicitly or explicitly allege that some people with (or without) disabilities are collectively taking advantage of loopholes or uncertainties in the ADA to gain economic and social advantages. In 1997, Joseph Perkins wrote that “President Bush . . . hardly could have imagined that of all the discrimination complaints filed under the law, most have come not from blind or deaf or wheelchair-bound Americans, but from folks claiming back problems (that’s right).”[98] Almost two years later, a story appearing in the same paper indicated that “a decade after the landmark civil rights legislation was crafted to integrate disabled workers into the job market, a flood of workplace discrimination complaints has come not from employees who are blind or deaf or using wheelchairs, but from workers claiming psychological stress.”[99] The sentiment behind these statements is clear: the ADA is for people who are blind or deaf or use wheelchairs. These are “real” victims and everyone else, regardless of whether they have faced discrimination or not, is merely illicitly taking economic advantage of the law. Identifying himself as a “supporter” of the law, Perkins nonetheless criticizes its regulations “[t]hey do not merely provide workplace equality for our fellow citizens with mental disabilities. They give the mentally disabled workplace rights and entitlements that are far above those of not only non-disabled workers, but physically disabled workers as well.”[100]
Other U.S. writers go one step farther, and intimate that even people with undisputed physical disabilities take advantage of the law and actually conspire – in league with the government – against American businesses and freedoms. The case of PGA Tour, Inc. v. Martin, which pitted a well-known non-profit professional sports association against a professional golfer with a circulatory disorder and a resulting malformed right leg, sparked a series of critical media responses from the first trial court summary decision in Martin’s favour until the U.S. Supreme Court’s final denial of the PGA’s appeal.[101] Among the first of these criticisms was an editorial that commented “[t]o argue that walking the course is a mere detail, an expendable part of the game of professional golf, is absurd. To argue that Casey Martin derives no advantage from being able to ride and conserve energy while other competitors must expend theirs is to be dishonest.”[102] Clearly the author takes issue not only with the court’s opinion that walking is not essential to the game, he disputes the court’s uncontested finding that Martin easily suffered as much or more fatigue, even riding a cart, than able-bodied competitors did walking the course. Such active disbelief, coupled with a general criticism of the “absurd and outrageous judicial overreach” that “endows [disabled Boston University students] almost with the status of a separate species” reveals a prejudice that has taken on an obsessional character. Martin’s case is tragic because his golfing talent is “nullified by a disability,” but somehow this same disability is entirely discounted when it comes to considering its impact on the fatigue and physical effort that walking 18-holes is supposed to impart. Treating unlike persons as if they are alike violates even a formal model of justice, but the writer seems to argue that this principle should not apply if the difference “is not my fault.” This is the social model of disability at its worst, with the additional implicit assertion that any court or law that interferes with able-bodied society’s right to set its own rules exactly and only as it wishes is engaged in some kind of dishonest subversion.
This emerging “conspiracy aspect” of disability prejudice is even more apparent in a press release issued by the Libertarian Party after the initial Martin decision. According to Steve Dasbach, then-national Chairman of the Libertarian Party:
The real issue isn’t whether Martin should be allowed to use a golf cart … The issue isn’t even whether Martin has gotten a bum deal from life – or whether it’s a personal tragedy that he couldn’t compete in a sport he loves. The real issue is: Who decides? Do professional sports associations have the right to set their own rules? Or does the federal government have the final decision-making power over every aspect of our lives – including professional sports. … If you think the government will stop with professional golf, you’re probably protected by the ADA because of your chronic case of gullibility … The ADA is a bureaucratic disease that’s getting worse every year – and the only question is which sport or industry will be the next victim.[103]
This recasting of one individual’s request for a personal accommodation in pro golf into a government plot to interfere with “every aspect of our lives” exemplifies many aspects of obsessional prejudices. People with disabilities are assigned the role of Others who want to corrupt and disrupt the system, using and/or being used by a “big brother” federal government. Rather than propose outright destruction, which would be socially unacceptable, obsessional prejudices centered on disability propose a kind of social extermination in they forcefully attack those tools of social understanding, cultural education and civil laws that have enabled people with disabilities to achieve a new life of growing economic power and political self identity. Holders of these prejudices applauded when the Supreme Court handed down its decision in Toyota Motor Mfg. v. Williams, further narrowing the field of those who are disabled enough to call on the equal protection promise of the ADA.[104]
There are other unique facets to obsessional prejudices as they are beginning to be applied to people with disabilities. The obsessional fear that conspirators have “the capacity to penetrate them, get into their bowels and their privacies” is particularly acute when the category of disability is both extremely heterogenous and very fluid.[105] People with disabilities are not necessarily visibly distinct. Health conditions and symptoms are not necessarily medically static or identically incapacitating. The next-door neighbour could develop a back problem and suddenly turn into a claimant under the ADA, or your own widowed father-in-laws’s lethargy and loneliness could be diagnosed as a clinical depression that requires accommodation in the workplace. Not only do we all face the possibility of getting a disability ourselves, a child with a disability can “issue forth” from one’s own lions, intractably a part of one’s own social group and identity. Amidst this reality, the prejudicial fear of omnipresent disability conspirators seeking and getting “special treatment” must loom especially large.
People with disabilities share this aspect of fluidity with the category of “homosexual” in which it is also “not clear who should be registered in it.”[106] Young-Bruehl notes that “homosexuals pervade all ‘racial’ and most if not all ethnic population groups; the chances that a homophobe will be hating someone who is kin are very great.” Further:
the homosexual is a kind of fiction, because homosexual behavior occurs along a continuum, ranging from entertaining homoerotic fantasies to having a single experience or period of experience to exclusive preference. And at least some people can move back and forth on the continuum during their lifetime – from a homosexual preference in adolescence, for example, to heterosexuality in adulthood, or vice versa. Such complexities have led many people to say, simply, a homosexual is a person who identifies himself or herself as a homosexual.[107]
Until recently, homosexual self-identification has not led courts or the public to try and strictly control entrance to the category, though this issue may have been subsumed in the continuing battle among gay activists, religious communities, scientists, and social scientists over the origins of homosexuality.[108] People with disabilities have never been given the privilege of self-identification. Stone attributes this to the fact that disability, “even in its early incarnations as more specific conditions, was seen to exist in both genuine and artificial forms. People could either be truly injured or feign injury. In the modern understanding of disability, deception has become part and parcel of the concept itself.”[109] For Stone, “disability entails (or may entail) at least as much political privilege as it does social stigma. [that is, exemption from a work-based distributive system, military service, criminal liability, and so on] . . . the intense political interest in disability benefit programs in recent years can only be understood if we see that the fight is about privilege rather than handicap or stigma.”[110] This is an excellent point, but it is not one which can or should account for the social tendency to concentrate on the political privilege aspect of disability to the utter exclusion of the stigma aspect of disability. There may well be people who fraudulently claim a disability to gain political or economic privileges, but this fact fails to fully explain the common perception that people will freely and eagerly choose to categorize themselves as disabled. I submit that obsessional prejudices play a part in this myth, strengthening a belief in the conspiratorial ability of target groups to “work the system” to their own advantage, and impeding the understanding or belief that there is such a thing as a social stigma attached to disability. Absent the measurable physical impact of a “real” medical condition, and at times even with such evidence, the obsessional character believes everyone claiming a disability to be tarred with the same scheming brush.
In this potent mix of stereotype, competitive fear and political paranoia, Gavin Langmuir’s insight into what he saw as the dual nature of anti-Semitism is pointedly applicable:
On the one hand, there are situation in which Jews, like any other major group, are confronted with realistic hostility, or with that well-nigh universal xenophobic hostility which uses the real conduct of some members of an outgroup to symbolize a social menace. On the other hand, there may still be situations in which Jewish existence is much more seriously endangered because real Jews have been irrationally converted in the minds of many into a symbol, “the Jews,” a symbol whose meaning does not depend on the empirical characteristics of Jews yet justifies their total elimination from the earth.[111]
Langmuir identified the second type of prejudice described above as “antisemitism of ‘chimerical character,’ which paved the way to Auschwitz.”[112] My impression is that as obsessional prejudices develop against people with disabilities, they will not necessarily be so cleanly reality-based or chimerical. One person may be prejudiced against people with back injuries because she had an acquaintance that purposefully and falsely exaggerated the extent of her disability to collect unemployment insurance. Others may be convinced without any evidence[113] that “the disabled” cost U.S. businesses millions of dollars, weaken the economy, control the Federal government and courts, and take away the jobs of better-qualified Americans like themselves. “The disabled” become the symbol of the lazy, duplicitous, undeserving “Other” who threatens our most cherished rights and institutions from a privileged insider’s position. Symbolic prejudice against people with disabilities may never reach the levels needed to initiate an explicit plan for their physical elimination, but the mere fact that such a prejudice is coalescing bears watching.
4. Disability Prejudices
For many, the malleability and self-identification of homosexuality as described above by Young-Bruehl, along with her attendant observation that “all the types of prejudice can appear in homophobic forms,”[114] may seem totally inapposite to the context of disability. If disability consists of a medical fact, a chronic, pathological and measurable deviance from the norm, then flexibility in categorisation seems like mere wishful thinking on the part of disability advocates. If people are prejudiced against “the disabled” it is because they either attach unjustified consequences to the fact of, or unreasonably refuse to make the smallest accommodation for, the fact of the disability. As disability studies have established, however, disability is not confined to medical facts, and certainty is not inherent in the way that human beings adopt to the environment and live out their lives, or are socially and institutionally inhibited from doing so. Categorical certainty is artificially imposed for socially created reasons, such as the administrative imperative of benefits distribution. As Jerome Bickenbach puts it, the definitional boundaries drawn around “the disabled” are not “facts of the world – like gravity – but negotiable political and economic stances which, in a democratic setting, should always be open to challenge, debate and revision.”[115]
In this contested arena of disability definition, Robert Burgdorf advances a vision of the ADA that has nothing to do with categorical certainty. As the drafter of the original bill that eventually became the ADA, Burgdorf describes a misconception that there are:
two distinct groups in society – those with disabilities and those without – and that it’s possible to have a list of all those who have disabilities … That’s simply not reality … People vary across a whole spectrum of infinitely small gradations of ability with regard to any given function. … The importance of any functional skill varies immensely according to the situation … The focus of the Act was – and should be – on eliminating employers’ practices that make people unnecessarily different.
What makes anyone “eligible” for protection under the ADA is the same thing makes any of us “eligible” for protection under the laws against age discrimination or under discrimination: We’re “eligible” to use the law once we run into discrimination. … Where the courts have gone wrong is to try and first establish some “group” for whom the ADA offers protection. That’s simply not how civil rights laws work in this country.[116]
In contradistinction to civil rights, most prejudices do work by identifying and establishing a target group. People with disabilities, especially in the U.S., have worked hard to define and solidify their own collective social identity, and the effort has resulted in unprecedented gains in political and legal strength. At the same time, cultural awareness of people with disabilities as a group means that they are more easily targetted by modern narcissistic and hysterical prejudices. By refusing to allow nondisabled society to medically define disability or “norm-ally” define humanity, by resisting confinement in homes and institutions, and by fighting for equal opportunities in all facets of life, people with disabilities increasingly threaten the narcissist need to control difference and the hysterical need for “lower” love and hate objects. At the same time, the inherently dynamic and heterogenous nature of the disability community, with its tremendous variety of physical, social and racial characteristics, aggravates obsessional prejudices, which imagine people with disabilities everywhere gaining power in all ways. While Burgdorf’s interpretation of the ADA makes perfect theoretical sense with regard to social justice and civil rights, they exacerbate the obsessive fear that there is no way for the nondisabled to fully guard against, control or exclude people with disabilities.
I have not delved into Young-Bruehl’s framework for identifying ideologies of desire simply to enable academics to exhaustively catalogue disability prejudices. Neither am I trying to present a picture of unmitigated hopelessness where first, last and always, people with disabilities will face prejudice. First, cataloguing disability prejudices is impossible given the gradations, combinations and dynamic nature of real life prejudice against people with disabilities. Prejudices develop as they are communicated, exhibited and repressed in various social and institutional settings, and these further dimensions of prejudice need to be investigated in their own right. Second, identifying and trying to understand the pervasive and subtle operation of various prejudices against people with disabilities is not the same as admitting defeat in the face of prejudice. In fact, the more the social sciences and disability studies can combine their understanding of disability as an historically specific target of specific prejudices, the greater the possibility of crafting effective long-term social strategies for containing these prejudices. My goal is simply to raise questions about how to best fight disability prejudices that do not have the same internal logic, meet different psychological needs, favour distinct means of institutional expression and propagation, and do not even apply equally to all people with disabilities. If different disability prejudices are distinctly motivated and expressed (that is, in laws, medical policies, popular culture and so on), there are practical and important implications for people with disabilities, collectively and as individuals, as well as for those who study disability and prejudice, and for our lawmakers and courts.
C. Some Consequences and Implications of Disability Prejudices
At one point in her discussion of ideologies of desire, Young-Bruehl gives her opinion that:
The needs manifested in the various types of ideological prejudices are, as the end of the twentieth century approaches, being challenged not so much by antiprejudice efforts and campaigns for tolerance and human rights as by peoples once victims and now more powerful, each in a different mode – by gaining international standing, by gaining numerical strength, by appearing in public, and so forth.[117]
Young-Bruehl seems to imply that institutional actions of anti-prejudice, such as the enactment of laws and educational campaigns, lie at one end of a response spectrum while individual and collective actions of self-empowerment by victims of prejudice lie at the other. For people with disabilities, historically unrecognized as victims of prejudice, such a view of anti-prejudice action underestimates the vital connection between human rights campaigns and victims standing up for themselves in response to discrimination.
Since World War II, the existence of human rights have been recognized in international law, and to varying degrees, in most domestic legal systems. Putting aside the question of how effectively these laws are enforced, the very fact of their enactment has changed the political and social landscape of the world.[118] Working from basic Allportian concepts of prejudice and discrimination, and recognizing how human rights are historically denied to others on the basis of certain recurring grounds, most of these national and international instruments make a ringing declaration along the lines that “human rights shall not be denied on the basis of,” followed by a specific enumerated list that typically includes the grounds of race, ethnicity, national origin, and gender.
There was no doubt after the attempted genocide of World War II and the realities of racial segregation and violence all over the world that racial and ethnic minorities belonged to this new “human rights club,” and women gained entrance with both increased political self-consciousness and overwhelming evidence that half of the world’s population endured physical abuse, political oppression, and diminished economic and social opportunities with no common link other than their gender. Disability, on the other hand, was not initially admitted into the club; the diminished opportunities and isolation of people with disabilities was seen as an inevitable consequence of their individual conditions and an issue for charity, not a matter of human rights being denied. Until relatively recently, disability has never been specifically included as a prohibited ground for the denial of human rights.[119] Even now, the United Nations tends to frame disability matters as an agenda item of economic and social concern rather than a matter of “pure” human rights, which remains dominated by civil and political issues. Within this historical context, the achievement of unequivocal inclusion in international human rights instruments and law, and civil rights traditions wherever these exist, is an integral aspect of people with disabilities empowering themselves and believing that they are fully accepted and protected as human beings.
Obviously the importance of achieving “rights parity” is not unique to people with disabilities. Patricia Williams describes the feelings of Black Americans upon the enactment of racial anti-discrimination laws:
“Rights” feel new in the mouths of most black people. It is still deliciously empowering to say. It is the magic wand of visibility and invisibility, of inclusion and exclusion, of power and no power. The concept of rights, both positive and negative, is the marker of our citizenship, our relation to others.[120]
Nonetheless, the achievement of international human rights recognition and civil rights laws has been especially rewarding for people with disabilities after modern society’s long resistance to the idea that there was even such a thing as disability prejudice.
On a related point, people with disabilities have come to political and social self-consciousness at a certain point along the historical development of disability prejudices. Wherever the disability rights movement has made a mark, the medically-oriented, charitable view of disability as an exclusive concern for rehabilitation and welfare has been there first, and tempered the most violent and intentional aspects of disability prejudice. That is, even where intentional physical and mental abuse, social segregation and euthanasia are still visited upon people with disabilities, these things co-exist and have generally been subsumed within another view “born out of the Christian tradition which emphasized charity towards the disadvantaged. Societies have gone to great lengths to pity and feel sorry for people with disabilities.”[121] Of course, traditional charitable institutions carry their own oppressive ethos, “in which the helpers invariably occupy positions of power and authority within agencies, and the helped stand in circumstances subordinate to these.”[122] But they do not look or sound like the Nazi regime or the Ku Klux Klan or invading armed forces, and the discrimination that traditional charities practice bears little overt resemblance to the discriminatory acts engaged in by members of the former groups, even though the underlying prejudice typology (that is, obsessional, hysterical or narcissistic) may be the same.
My claim is that much of modern society, even though it has enacted laws that reflect the reality of disability prejudice, continues to demonstrate that it lacks an interpretive history for accepting and understanding disability as a target of prejudice. Throughout this and the prior section, I have discussed unique aspects of disability’s history and social development that make recognising disability prejudice so difficult. In such circumstances, the most natural tendency is to build on the strengths and insights of movements that have already gained recognition as victims of prejudice (that is, ethnic and racial minorities, women, gay people), and draw analogies to the barriers and prejudice that they face. The strength of these analogies is rooted in the common subjective experience of those who have been targets of discriminatory practice, but invariably this approach fails to fully investigate or account for the ways in which the prejudice behind any particular discriminatory act may be like or unlike any other. Similarly, the analogy approach runs into difficulty when dissimilarities between people with disabilities and other minority groups emerge. Bickenbach refers to these problems after he criticises the ADA and the U.S. disability rights movement’s minority group analysis for distracting from what he sees as the true problem of distributional injustice:
None of this is to deny that the root cause of the distributional injustice are either attitudes that people have or economic forces that operate to sustain capitalist structures, and that either or both of these phenomena perversely justify the denial of opportunities to disabled persons. Nor is it to deny that the impact of these attitudes or economic forces is concentrated upon those who have, or are viewed as having, impairments or disabilities. But this does not entail that the process is that of discrimination, and the victims form a discrete and insular minority defined in part by their experiences of a common discriminatory response.[123]
Of course, it should be remembered that prior to this time, people with disabilities had little or no legal recourse at all in the face of discrimination. Still, it is true that the foundational assumption behind the use of terms such as “disablism” and “sanism,”[124] and the collective identity building that is so important in a civil rights approach, leave little room for a nuanced understanding of disability prejudices as either manifold or divergent from other legally recognized prejudices. In their defense, disability advocates are usually too busy on the front lines, fighting to preserve legal and social gains that have finally given people with disabilities social options and economic opportunities, to construct detailed social theories. This preference for action and a theory that will lead to and support social change is also expressed by disability scholars:
The social constructionist view sees the problem as being located within the minds of able-bodied people, whether individually (prejudice) or collectively, through the manifestation of hostile social attitudes and the enactment of social policies based upon a tragic view of disability. The social creationist view, however, sees the problem as located within the institutionalised practices of society.
The important advance that the social creationist approach makes over the social constructionist one, therefore, is that it does not assume that the institutionalised practices of society are nothing more nor less than the sum total of individual and collective views of the people who comprise that society. To make the point again; ideas are not free-floating, they are themselves material forces. The point, however, is not to choose between these two views but to find a way of integrating them . . .[125]
In countries with a common law tradition,[126] precedent and analogy are central to the interpretation of law. As soon as people with disabilities gained legal rights modelled on those of existing civil rights laws, disability discrimination had to fit within existing legal standards for statutory or constitutional discrimination.[127] The fact is, however, the applicability of precedent and analogy is decided by people, along with the contents – both conscious and unconscious – of their minds. I suggest that the fact that concepts such as prejudice, discrimination and equal treatment have been legally established on the basis of discrimination as it has been experienced historically by other minority groups means that there is another interpretive layer applied to people with disabilities before they even reach the substantive requirements of the law. On the one level, people with disabilities have to prove what is being done to them – discrimination in accordance with legal precedent. On another level, they must show that they are victims of prejudice just like other victims. That is, they are implicitly held to account for establishing that they are something – a blameless and targetted member of a discrete and insular minority, and that the actions complained of were not something – reasonably justifiable in any way. Such a reading would explain the following statement from the majority decision of the U.S. Supreme Court in a critical decision on the applicability to state governments of the ADA’s Title I (emloyment) damage provisions:
States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly – and perhaps hardheartedly – hold to job qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.[128]
This is a journey of some distance: from the theoretical conception that prejudice is a single phenomenon, through the accretion of a narrow public understanding of prejudice as intentional,[129] to the socially institutionalized and increasingly legally entrenched view that anti-discrimination law will only guard against prejudice that looks and acts a certain way. Ruth O’Brien traces some aspects of this journey as it has played out in the context of the ADA’s employment provisions:
On one hand, the legislation provides people with strong statutory rights. It ascribes much of the joblessness of people with disabilities to employment discrimination, not their inability to work. On the other hand, the legislation gave the federal courts the discretion to interpret these rights, knowing that the courts might make it difficult for people with disabilities to obtain them. And indeed, this is what has happened. The lower federal courts have followed the Supreme Court’s notion that society’s prejudicial attitudes about people with disabilities should not be highlighted. The Court’s perception has been that these attitudes do not stop disabled people from securing employment. Rather, it is their actual physical or mental impairments that limit job performance and, therefore, their ability to find and maintain work.
… Interpreting the employment provisions for the first time, the Supreme Court decided against disabled people, not because they could not perform a job, or their requests were unreasonable, or even that they caused an employer endue hardship. Instead, the Court held that they should not be protected under the ADA.[130]
Reflecting on how the federal courts have used the term “mitigation”[131] in the ADA to effectively assess the very identity of a person with a disability, O’Brien concludes that “[t]he federal courts have essentially stripped down the meaning of employment relations provisions to one based not upon rights but upon vulnerabilities and needs. People with disabilities must demonstrate that they have done all that can be done to mitigate their condition. If they cannot compensate . . then and only then will the federal court rule that they have a disability and allow them to proceed to trial.”[132] Such an interpretation of the ADA can only be explained by the courts’ lingering perception that an accommodation under the ADA is equivalent to giving a plaintiff an unfair advantage unless the plaintiff can show that he is more needy than his co-workers – an interpretation that completely undermines the law’s rights orientation.
The federal courts’ apparent inability to perceive the presence or effect of disability prejudices, and their resistance to recognising the ADA’s full rights orientation, could be interpreted as signs of hysterical and obsessional prejudices in themselves, taking place within the very legal and social institutions that are appointed to protect the equal rights of people with disabilities. The fear that people with disabilities are receiving undeserved benefits under the ADA on the backs of innocent businesses, and the determination to cast protection under the ADA into a charitable mold,[133] bespeak a need to keep people with disabilities “in their place,” and even deny them their legal existence under the ADA. This is not to assert that any or all of the members of the supreme court are personally “prejudiced” in the manner that we usually associate with that term, but merely to point out that the failure to deeply examine ourselves and the assumptions that influence our ability to perceive the presence of “prejudice” and “disability” will have an effect on every aspect of society, even those that are supposed to be enforcing disability rights. If, as Jones and Basser Marks claim, the success and value of law “depends on its ability to discipline behaviour via an ideology of normalisation,” then the Supreme Court’s failure to “normalise” disability in a way that fully recognises the oppressive presence of prejudices in the lives of people with disabilities is highly discouraging.[134]
If courts, the media, and other social and cultural institutions will not or cannot recognise disability prejudices for what they are because of the fundamental error that prejudice is monolithic and must look and operate a certain way, then what can we do about it? One thing legal scholars can do is direct their attention to those interstices of anti-discrimination law through which inconsistencies or social presuppositions in judicial reasoning can be glimpsed. Two recently published papers do precisely this. Christine Jolls examines the relationship between anti-discrimination and accommodation. Given the Supreme Court’s tendency to view accommodation as an “irrational” and disproportionate requirement of the ADA while disparate impact is (still) within the purview of Congress’s power under Section 5 of the Fourteenth Amendment, Joll’s finding that the two things are factually and operationally similar raises questions about the existence of deeper, non-economic reasons behind the courts’ attempt to draw a sharp distinction between the two concepts.[135] Michelle Travis investigates how courts have tried to determine liability in employment discrimination when faced with a wide range of employer conduct. Alleging that “[j]udges either decide that an employer’s conduct is ‘close enough’ to a prototypic form of discrimination to be treated similarly, thereby triggering full liability, or they decide that the employer’s conduct is ‘too far away’ from prototypic discrimination claims to be covered by the statute, thereby resulting in no liability at all.”[136] Travis proposes a “limited remedies” approach that would take account of, and impose sanctions for, intermediate states of employer discrimination. These topics and others concerned with employer cognition,[137] carry the potential for opening up a dialogue into the nature of discrimination, the prejudices that motivate it, the role of law, and the almost instinctive, socially shaped assumptions that every judge brings to the bench when considering anti-discrimination laws.
Prejudice and disability scholars also need to work together in this area. When Young-Bruehl published her study of prejudice in 1996, she lamented the fact that both sexism and homophobia had yet to gain recognition as prejudices in official social scientific texts. Instead, each area had developed its own independent base of theoretical and experiential literature, while social scientific studies of prejudice confined themselves to either studying prejudice broadly as ethnocentrism or examining racism as the prototypical prejudice.[138] In the six years since, the situation has not radically altered. Recently published college texts with titles like Dealing With Differences: An Introduction to the Social Psychology of Prejudice[139] essentially equate prejudice with ethnocentrism, perhaps paying some lip service along the way to the role of feminism and homophobia in intergroup conflict. Cross-disciplinary anthologies with titles like Hatred, Bigotry, and Prejudice[140] and Communicating Prejudice[141] now habitually include contributing articles that focus on sexism and homophobia, but disability and disablism often are not even found in the index, much less included as an actual paper topic. Young-Bruehl’s The Anatomy of Prejudice contains only the briefest, passing mention of disability as a target of prejudice. If the social sciences will not bring its investigative tools to bear on the multiplicity and complexity of all modern prejudices, institutions such as the media and courts are even less likely to question their own outdated or incomplete understandings of disability and prejudice in general. For its part, disability studies can add a more deeply theorized understanding of prejudice’s roots and contexts to its already rich experientially based consideration of disability prejudice. In a modern society constantly confronted with the most extreme results of violent intolerance and prejudice, a principled and clear exposition of how disability prejudice can be both like and unlike other prejudices evident in the world may ultimately have as much value for the disability movement as the consciousness-raising revelations of the original social model of disability.
For those who would rather be active in the trenches, the reality of different disability prejudices gives disability advocates the challenge and opportunity of building even more effective cross-disability coalitions and cross-minority affiliations. This picture of prejudice also helps us to understand why having the experience of being victimized by prejudice immunizes us from neither holding prejudices ourselves, especially those that are based on a different need and logic than the ones with which we are most familiar, nor holding different prejudices to varying degrees. While the resistance and complex adaptability of Young-Bruehl’s ideologies of desire are certainly intimidating, they serve as a very potent reminder that even the strongest laws still require a constant campaign of social and cultural education to be effective. As Jones and Basser Marks emphasise, “even if there existed a perfect regime of human rights, a system of formal law promoting and empowering people with disabilities, this is only going to be a small part of what is necessary to bring about true equality for people with disabilities.”[142] Fighting disability prejudices is a dynamic process. Social and cultural attitudes are never static, prejudices shape and are shaped by history and social conditions, and even the laws change. If individual attitudes and social perceptions are flexible enough to be changed by the habits engendered by law, a belief inherent in the social rational for civil rights and anti-discrimination laws, then they are also flexible enough to be molded into new and far less obvious patterns of prejudice and discrimination once individual and institutional resistance to law comes into play.
Minority groups who are aware of the various types of modern prejudices and their distinct psycho-social tendencies are able to shape educational and organised social and legal responses to more effectively combat the prejudices that victimise them. Since disability is capable of being targetted by any of the three typologies of desire advanced by Young-Bruehl, disability advocates must understand the myriad ways that disability prejudices can surface.[143] For example, hysterical prejudices may endorse legal regulations that help keep people with developmental disabilities in institutionalised environments, or resist legislative measures that would help people with disabilities gain economic parity and high-quality community services. The Other is thereby kept in an officially sanctioned and “cared for” position while still available to be an actual or imagined sexual figure. Obsessional prejudices will tend to avoid enmeshing themselves too much in official government activity because of their fear of government conspiracies, but they will publicly rail and campaign against civil rights and other laws that would be viewed as giving unfair advantage and power to the disabled Other. Narcissistic prejudices can be very subtle, proactively undermining the educational and social initiatives of the disability community on the simple argument that private spheres – the very spheres in which a medical, personal tragedy model of disability is often socially constructed and maintained – should remain private. Efforts to paint assisted suicide and the euthanasia of infants with disabilities as purely private matters between an individual and/or a family and their doctors serve as examples of actions that can be motivated by narcissistic prejudice.
Conclusion
Most individuals feel that they have encountered negative perceptions, been judged as different and less worthy, at some point in their lives because of an irrelevant characteristic, trait or personal choice. The experience of discrimination is, in this way, truly universal. Similarly, virtually everyone can probably recall holding a “view of things in which one’s own group is the center of everything and all others are scaled and rated with reference to it,”[144] especially if the “group” in question can range from being others of our gender to our circle of friends in high school. When discrimination and prejudice are expanded to embrace such general desires as feeling left out or wanting to belong, the terms lose their usefulness as either social scientific concepts or part of the experienced reality of socially oppressed groups.
My point here is not merely one of definition. In the above, broadly drawn notion of prejudice as the motivation behind leaving others out, prejudice not only appears universal, but eternal as well, something that has plagued humanity since the origins of social organisation. It is a very short step from here to conceive of prejudice as a single phenomenon rooted in human nature, one that thrives under the same conditions, uses the same internal logic, and proceeds along the same continuum of development from simple avoidance to extermination, no matter which outgroup is targetted. In this paper, I have argued that such a notion of prejudice completely fails to capture the historical specificity and virulence of modern disability prejudices. Further, the pervasive influence of such an all-inclusive conception of prejudice has hampered not only social scientific investigation into disability as a grounds of prejudice, but has impeded public and judicial perception of disability prejudice and discrimination, even with the enactment of anti-discrimination laws. However much nuance is added by disability studies’ exploration of, and debate over, the various social and psychological factors that motivate disability prejudice, the unified theory of prejudice continues to unduly influence the ways that courts interpret laws and other international instruments.
People with disabilities have encountered particular difficulty under the notion that prejudice is a single phenomenon because disability least fits the social and legal mold set by earlier recognized victims of prejudice. If prejudice is only ethnocentrism brought to an extreme, then the easiest way for minority groups such as Blacks and Jews to counter prejudice is to demonstrate the potential for assimilation despite difference. Even when everyone agrees that assimilation is undesired, unnecessary, unfair, foolish, wasteful, politically impossible, and so on, the potential for assimilation can still be recognized and proven. This approach may be somewhat less applicable to women, but it is wholly inapplicable for people with disabilities. Hence the court’s lingering difficulties with accepting disability prejudice, because ultimately, people with disabilities cannot be assimilated into the social, economic and physical environment as it stands now; the latter must be adapted for the former. The need for adaption stands at the crux of current legal and social objections to the use of law to combat disability prejudice. If prejudice is one single human problem, then no single minority group should need something that others do not. This is the point where disability studies and prejudice studies can join forces, and effectively demonstrate the unique nature of nature of disability prejudices as a prejudice.
In all of this, the underlying challenge will be to move beyond being sheerly defensive, and towards a vision of a genuinely inclusive society where prejudices are not only barely kept in check in their worst excesses, but specifically recognised and intelligently denounced in all their manifestations. For this to happen, individuals and society as a whole must advocate not only for a bare tolerance of difference, but for a celebration of diversity, intrinsic worth and human ability in all its forms. Given the “uncomfortable, subversive position from which [people with disabilities] act as a living reproach to any scale of values that puts attributes or possessions before the person,”[145] people with disabilities have a particularly important and leading role to play in developing such a radically transformed world. Will this vision be achieved by the enactment of national and international anti-discrimination laws? Not likely. But the more important question for people with disabilities today is whether this vision could ever be achieved without such laws. Clearly, the answer is no.
[1] David Ruebain, What is Prejudice as it Relates to Disability Anti-Discrimination Law?, infra in this volume at Part IV.
[2] 42 U.S.C.A, §§ 12101 et seq.
[3] 42 U.S.C. § 12101(a)(9).
[4] School Bd. of Nassau City v. Arline, 480 U.S. 237, 284; discussing the “regarded as” prong of the Rehabilitation Act’s definition of disability (which was also incorporated as the ADA’s definition of disability). At this point in the paper, I am putting aside the matter of how this same court has been strictly and narrowly interpreting other aspects of the ADA, such as the actual scope of the definitions contained in those laws, or assessing disability civil rights in the face of constitutional principles such as state sovereign immunity. See Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002); Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
[5] The gradual but steady recognition in European and international law that disability issues extend beyond medical rehabilitation and welfare concerns to encompass human rights discrimination issue is documented by Theresia Degener & Gerard Quinn, A Survey of National, Regional and International Law Reform, supra in this volume at Part I.
[6] U.N. World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (1993) ¶ 64.
[7] Eric Rosenthal & Arlene Kanter, The Right to Community Integration for People with Disabilties Under United States and International Law, infra in this volume at Part III, at notes 167-73 and accompanying text.
[8] For example, MDRI’s Human Rights and Mental disability: Mexico (2000) is specifically cited in the Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1999, III, para. 20, Doc. 6 Rev, OEA/Ser.L.V/II.106 (April 13, 1999). The report is available at
www.cidh.oas.org/annualrep/99eng/Chapter5b.htm.[9] Inter-American Convention on the Elimination of Discrimination Against Persons with Disabilities, AG/RES. 1608 (XXIX-0/99), 29th Sess. of the General Assembly; opened for signature June 7, 1999, entered into force Sept. 14, 2001 [not published]. For the full text, visit the official Inter-American Commission on Human Rights web site <http://www.cidh.org>.
[10] G.A. Res., 56th Sess. [on the report of the 3rd Committee on the draft resolution concerning a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities (A/56/583/Add.2)], U.N. Doc. A/RES/56/168 (2001).
[11] The Case of Victor Rosario Congo, Annual Report of the Inter-American Commission on Human Rights, Report 63/99, Case 11.427, Ecuador, OEA/Ser.L/V/II.102 Doc. 6 rev. April 13, 1999, in which the Commission stated that “the right to physical integrity is even more serious in the case of a person held in preventative detention, suffering a mental disease, and therefore in the custody of the State in a particularly vulnerable position.” At ¶ 67. The Commission concluded that the detention in question constituted a violation of the European Convention on Human Rights and Fundamental Freedoms (1950), s. 3 on “Prohibition of Torture” which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
[12] Case of Price v. United Kingdom, Judgement of 10 July 2001, application No. 00033394/96, HUDOC REF00002640, available at http://hudoc.echr.coe.int/Eng/Judgements.htm. The European Court of Human Rights was considering the alleged violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
[13] Id at ¶30. The separate concurring opinion of Judge Greve in the case is interesting for his explicit acknowledgment of a key tenet of the disability rights movement: “The applicant’s disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy, to appreciate her situation and to understand that to avoid unnecessary hardship – that is, hardship not implicit in the imprisonment of an able-bodied person – she has to be treated differently from other people because her situation is significantly different.” In other words, discrimination can lie in the refusal to treat differently situated persons differently. To take this one step further, I submit that prejudice can lie behind the refusal to either recognize or assess individual difference, unbiased by myth and stereotype.
[14] Negative ADA news coverage and unfavorable editorials abound in the media. See for example, Disabilities Act Unreasonable Law [editorial], Daily News [Bowling Green, Kentucky] Daily News, April 30, 1993; Joseph Perkins, ADA Well-intentioned, but Its Implementation Is Increasingly Unreasonable, West County Times [Contra Costa], May 15, 1997; Review and Outlook: The Actively Sick [editorial], The Wall St. J. Interactive Edition, Aug. 26, 1997; A Judge Blows a Chip Shot at <http://www.chicago.tribune.com/print/editoria/9801/18/editoria/9801180006.html> Jan. 18, 1998; Meredith May, Disability Act Being Redefined, West County Times [Contra Costa], April 5, 1999; Marianne M. Jennings, Disabled Should Play Hand Dealt, Not Demand New Rules, at <Desertnews.com> Feb. 19, 2001. For responses to negative media coverage see Nina Schuyler, Disability Rights Advocates Redouble Efforts in an Atmosphere of Hostility, San Francisco Daily J., Dec. 1, 1994 at 1 & 8; Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34 Har. C.R.-C.Lib. L.Rev. 99 (1999); Backlash Against the ADA – Interdisciplinary Perspectives and Implications for Social Justice Strategies, 21 Berkeley J. Emp. & Lab. L. (2000) [entire volume].
[15] Union of the Physically Impaired Against Segregation, Fundamental Principles of Disability 14 (London: UPIAS, 1976).
[16] See Michael Oliver, Social Work with Disabled People (London: MacMillan, 1983). With only a few exceptions, this paper looks at disability studies as developed by the work of British and U.S. schools. This is a reflection of my own limitations of time and knowledge, and not a comment on the thinking of disability academics from such other countries as Canada, Australia or the Netherlands.
[17] The marked distinction between (medical) impairment and disability is usually found in British disability scholarship, as is the term “disabled people” to connote people with impairments who are burdened by an oppressive and discriminatory social environment. In the U.S., the term “people with disabilities” is preferred, for its person-centred emphasis on individuals who share the characteristic of experiencing life with a physical, mental, sensory or cognitive disability. In general, I adhere to U.S. terminology in this paper, and will not therefore be preserving the sharp distinction between the terminology of impairment and disability, although I endorse distinguishing between an individual’s functional capacity and the discriminatory consequences that social, cultural and built norms impose upon that individual.
[18] I will be examining prejudice studies in greater detail in Part B, infra, but for the purposes of the discussion at this point I will simply advert to the basic distinction used in social psychology that prejudice is something that relates to attitudes while discrimination relates to overt behaviour; see for example Edward E. Sampson, Dealing with Differences: an introduction to the social psychology of prejudice 5-7 (Fort Worth: Harcourt Brace, 1999). Numerous studies have found that the actual relationship between prejudice, stereotypes and discrimination is surprisingly weak, prompting the conclusion that “cognitive, affective, and behavioral orientations to individuals and social groups represent different, independent response systems whose interrelationships are more complex than previously thought.”: see M.B. Brewer, The Social Psychology of Prejudice: Getting It All Together in The Psychology of Prejudice, Ontario Symposium on Personality and Social Psychology, v. 7, 315 at 321 (M.P. Zanna & J.M. Olson, eds., Hillsdale, NJ: Lawrence Erlbaum, 1994).
[19] The phrase “last civil rights movement” was tapped by Diane Dreidger in The Last Civil Rights Movement: Disabled People’s International (London: Hurst, 1989). However, even prior to political self-awareness and the move of people with disabilities to assert control over the term, recognition of “the disabled” as a human category does not have deep historical roots. “The idea that individuals with physical, sensory, and cognitive impairments together form a class of ‘the disabled’ is an invention of the current century. . . . Persons were described as crippled or deaf or blind or mad or feebleminded, but only in the first part of this century was the term disabled introduced to characterize and collectivize them.” Anita Silvers, Formal Justice in Anita Silvers, David Wasserman & Mary B. Muhowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy 54 (Lanham, MD: Rowman & Littlefield, 1998); see also Deborah Stone, The Disabled State 25-28 (Philadelphia: Temple U. Press, 1984).
[20] Paul Hunt, A Critical Condition in Stigma: The Experience of Disability (London: Geoffrey Chapman, 1966) reprinted at <http://www.leeds.ac.uk/disability-studies/archiveuk/Hunt/critical%20condition.pdf>, 1-2.
[21] Id. at2-6. Hunt’s use of the word “sick,” and the taxonomy used in British disability studies, can be compared with the terminological distinctions used by medical sociologists between “sickness” (a social role imposed from without), “illness” (involving self-perception of the individual) and “disease” (cause by biological agent).
[22] Colin Barnes, Theories of Disability and the Origins of the Oppression of Disabled People in Western Society in Disability and Society: Emerging Issues and Insights 43, 43 (Len Barton, ed. Harlow, Essex: Addison Wesley Longman, 1996). See also Michael Oliver, Social Policy and Disability: Some Theoretical Issues, 1:1 Disability, Handicap & Society 5 (1986); Colin Barnes, Disabled People in Britain and Discrimination: A Case for Anti- Discrimination Legislation (London: Hurst & Co., 1991).
[23] Michael Oliver, The Politics of Disablement: A Sociological Approach xi (New York: St. Martin’s Press, 1990).
[24] Id. at 78, 94.
[25] Tom Shakespeare, What is a Disabled Person? in Disability, Divers-Ability and Legal Change 24, 33 (Melinda Jones & Lee Ann Basser Marks, eds. The Hague/Boston/London: Martinus Nijhoff, 1999).
[26] The work of anthropologist Robert Murphy, who performs an ethnography on his own body after becoming paraplegic as an adult, explicitly combines personal expression and theory: The Body Silent (New York: Holt, 1987).
[27] “Civil Rights for Disabled Americans” in Images of the Disabled, Disabling Images 198 (A. Gartner & T. Joe, eds. New York: Praeger, 1987).
[28] Pride Against Prejudice: Transforming Attitudes to Disability 8 (Philadelphia: New Society, 1991).
[29] Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 8-10 (New York: Times Books, 1993).
[30] See for example Stone, supra note 19, who examines how the administrative category of “disability” has been historically and politically created and controlled by the state for social security purposes; Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial (Washington: American Psychological Association, 2000), who offers a scathing discussion of how the U.S. legal system curtails and denies the rights of people with mental disabilities. One of the latest entrants in this line of scholarly inquiry critically reviews how social policies left over from the post-World War II rehabilitation era of disability continue to undermine current bureaucratic and legal interpretations of U.S. disability rights laws: see Ruth O’Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace (Chicago: U. of Chicago Press, 2001).
[31] Stone explains her position as follows: “[t]o argue that disability creates political privilege is not to deny that it also entails handicap, social stigma, dependence, isolation and economic disadvantage. The fact that the state creates a formal category for the disabled within its distributive policies and accords this category privileged status does not obviate the myriad ways in which the disabled suffer in both private relationships and treatment by public institutions.” Id. at 4.
[32] See for example Anita Silvers, Defective Agents: Equality, Difference and the Tyranny of the Normal, J. of Soc. Philosophy, 25th Ann. Special Issue 154 (1994) [and in numerous publications since on the topic of disability and social justice]; Hans S. Reinders, The Future of the Disabled in Liberal Society: An Ethical Analysis (Notre Dame: U. of Notre Dame, 2000); Lennard J. Davis, Enforcing Normalcy: Disability, Deafness and the Body (London/New York: Verso, 1995); Rosemarie Garland Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature (New York: Columbia U. Press, 1997); Disability and Culture (Benedicte Ingstad & Susan Reynolds Whyte, eds. Berkeley: U. of California Press, 1995); Madness, Disability and Social Exclusion: The Archaeology and Anthropology of “Difference,” One World Archaeology, v. 7 (Jane Hubert, ed. London/New York: Routledge, 2000).
[33] Susan Reynolds Whyte & Benedicte Ingstad, Disability and Culture: An Overview in Disability and Culture, supra note 32, 3 at 25.
[34] Garland Thomson, supra note 32, at 15.
[35] Davis, supra note 32, c. 2 “Constructing Normalcy.”
[36] Id. at 49.
[37] Id. at 24.
[38] Supra note 19, at 50.
[39] For fine examples of such chronicles see Shapiro, supra note 28, and James Charleton, Nothing About Us Without Us (Berkeley: U. of California Press, 1998).
[40] Supra note 22, Theories of Disability and the Origins of the Oppression of Disabled People in Western Society at 52-56. Barnes also highlights the Judeao-Christian religious tradition of judging human imperfections as signs of impurity, divine judgement and diabolical influence. He concludes rather pointedly that “prejudice, in whatever form it takes, is not an inevitable consequence of the human condition, it is the product of a particular form of social development associated with western capitalism.” Id. at 57.
[41] Morris, supra note 27; Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton U. Press, 1990).
[42] Perlin, supra note 30, at 40.
[43] Herbert C. Covey, Social Perceptions of People with Disabilities in History 5 (Springfield, Il: Charles C. Thomas, 1998). Covey examines diverse historical influences on how people with disabilities have been socially perceived (for example, theories of “Social Darwinism,” the physical uniformity demanded by industrialized processes, and so on), and provides a veritable catalogue of those perceptions, noting that “regardless if the perception is negative or positive, the perception nevertheless serves to separate and distinguish people with disabilities from those who lack them.” Id. at 25.
[44] I do not mean to imply that people with disabilities have always universally recognized prejudice as such when it is directed against them. Collective action and writings provided forums in which people with disabilities could politically and socially enlighten themselves and others. Before this, the very invidiousness of socially sanctioned prejudice against impairment and disability meant that people with disabilities could grow up believing the stereotypes that society holds about them, even to the extent of emotionally, psychologically and/or physically distancing themselves from other people with disabilities and denying the role of disability in their own identity. Abraham Kaplan, in a classic essay on equality and anti-Semitism in particular, described the result succinctly when he wrote that the “[d]enial of identity leaves an emptiness within when it succeeds, and adds despair to self-contempt when it fails.” Equality, in Hatred, Bigotry, and Prejudice: Definitions, Causes and Solutions 81, 87 (Robert M. Baird & Stuart E. Rosenbaum, eds. Amherst, NY: Prometheus Books, 1999).
[45] Supra note 20, at 6.
[46] It is also possible that Hunt at the time of writing was not fully aware of the extent to which people with disabilities are historically and presently subjected to abuse, from infanticide to eugenics, from extermination in Nazi death camps to present-day horrors of neglect and rape in institutionalized settings all over the world. See supra notes 7, infra notes 83-84.
[47] Studies in Prejudice (Max Horkheimer & Samuel H. Flowerman, eds. New York: American Jewish Committee: Harper & Bros., 1949-50).
[48] See for example Ralph W. Ellison, Invisible Man (1952); James Baldwin, Notes of a Native Son (1955).
[49] Gordon W. Allport, The Nature of Prejudice (Cambridge, MA: Addison-Wesley, 1954).
[50] Allport never offers a general definition of prejudice in his study, instead using his introductory chapter to present myriad definitions before building a composite definition for ethnic prejudice as “an antipathy based upon a faulty and inflexible generalization. It may be felt or expressed. It may be directed toward a group as a whole, or toward an individual because he is a member of that group.” Id. at 9. Nevertheless, the degree to which this opening chapter explores the elements of this definition have enabled subsequent authors to derive a general definition for prejudice that Allport would have endorsed. The one I give here is based upon my own reading of Allport and the simplified definition presented in Sampson, supra note 18.
[51] Allport, id. at xvii.
[52] Id. at xiv-xv. As it may be inferred from this passage, sexism does not form a major component of Allport’s study; to be fair, gender prejudices were not as commonly recognized in this era.
[53] Sampson, supra note 18, at 11.
[54] Allport, supra note 45, at 68-69. Throughout this section I have adopted the socio-psychological terms “in-group” and “out-group” as convenient ways to indicate respectively those with whom one identifies and those whom one sees as “other.”
[55] T.W. Adorno, E. Frenkel-Brunswik, D.J. Levinson & R.N. Sanford. The Authoritarian Personality (New York: Harper, 1950). In this and previous post-World War II work, Adorno attempted to combine the individually focused psychological theories of Freud with a Marxist consciousness of how social structural conditions shape modern life and specifically modern ways of thought. In asserting the existence of a modern form of prejudice that tends to cover many out-groups, Adorno used the term “ethnocentrism,” which “is based on a pervasive and rigid in-group-out-group distinction; it involves stereotyped negative imagery and hostile attitudes regarding out-groups, stereotyped positive imagery and submissive attitudes regarding in-groups, and a hierarchical authoritarian view of group interaction in which in-groups are rightly dominant, out-groups subordinate.” Id. at 150.
[56] Adopted from Michael Hecht’s presentation of four central metaphors of prejudice: Introduction in Communicating Prejudice 3,3 (Michael L. Hecht, ed. Thousand Oaks, CA: Sage, 1998).
[57] John R.Baldwin, Tolerance/Intolerance: A Multidisciplinary View of Prejudice in Communicating Prejudice, id. 24, at 26-55.
[58] Layers and Holograms: A New Look at Prejudice in Communicating Prejudice, supra note 51, 57 at 58.
[59] “Disablism” has been used by such British disability scholars as Oliver, supra note 23, but is not widely used in U.S. disability studies.
[60] This term is coined by Perlin, who uses it to describe an irrational prejudice against people with mental disabilities, purposefully evoking a kinship to other more recognized “isms” such as racism and sexism, although he also recognises that “sanism” is “frequently practiced (consciously and unconsciously) by individuals who regularly take ‘liberal’ or ‘progressive’ positions decrying similar biases and prejudices that involve sex, race, ethnicity, or sexual orientation.” Supra note 30, at 21-22.
[61] “Classism” – both the term and the prejudice it describes – seems to have fallen out of general Western consciousness, and interestingly, “homophobia” seems to have escaped following in the footsteps of previous prejudice monikers. “Ageism,” may be a little more commonly encountered than disablism, but it is also not widely used in popular terminology.
[62] Elisabeth Young-Bruehl, The Anatomy of Prejudices (Cambridge, MA: Harvard U. Press, 1996).
[63] Id. at 3.
[64] 42 U.S.C.A. §12101(a)(5) and (7). See also 134 Cong. Rec. S5106, S5108 (daily ed. Apr. 28, 1988) (statement of Sen. Weicker); 136 Cong. Rec. H2599, H2622 (daily ed. May 22, 1990) (statement of Rep. Hoyer); 136 Cong. Rec. H2421, H2440 (daily ed. May 17, 1990) (statement of Rep. Fish, to the effect that disability discrimination often “is not the malicious, violent, ugly discrimination experienced on account of one’s race, national origin or religion”).
[65] Young-Bruehl, supra note 61, at 110. The sentences here quoted make embedded reference to John Duckitt’s The Social Psychology of Prejudice (New York: Praeger, 1992) a bibliography of British and American social scientific studies of exclusively race prejudice, and to Studies in Prejudice, supra note 45.
[66] Id. at 116-17, 119.
[67] For a very practical lesson in how this can be done, see Pat Wright & Jane West, When to Hold ‘Em and When to Fold ‘Em: Lessons Learned From Enacting The Americans with Disabilities Act, infra in this volume at Part IV.
[68] 1991 Louis Harris and Associates Survey, Public Attitudes toward People with Disabilities, as cited in Silvers, supra note 19, at 50-51.
[69] Furthermore, such positive depictions run into another stereotype peculiar to people with disabilities. In research conducted by Irwin Katz, R. Glenn Hass & Joan Bailey, Attitudinal Ambivalence and Behavior toward People with Disabilities in Attitudes toward Persons with Disabilities (Harold Yuker, ed. New York: Springer, 1988), paid subjects were asked to fill out surveys that were administered by individual researchers, some of whom used wheelchairs. In some cases, the researcher was efficient, positive and pleasant. In others, the researcher complained, was inefficient and acted unhappy. A second individual arrived after the surveys were done, explained that the first researcher had given incorrect instructions and asked subjects to donate their time to redo the survey. The research found that subjects were three times as likely to donate their time when the nondisabled surveyor had been positive, but they were just as biased in favour of the depressed disabled surveyer. As a possible explanation for these unexpected results, Katz et al. hypothesized that people “devaluate the unfortunate persons because he or she ought to suffer but does not.” Id. at 53.
[70] For a classic text on this, and on the feminist distinction between gender (socially created) and sex (biological), see Simone de Beauvoir, The Second Sex (New York: Penguin, 1947, 1972).
[71] The ADA’s definition of a “qualified individual” [for employment] as someone who can perform the “essential functions” of the job is an example of the attempt to separate employment functions from the accretion of unjustified social expectations: 42 U.S.C.A §§ 12111(8), 12112(a).
[72] The development of U.S. constitutional equal protection law, even in the prototypical area of racial discrimination, arguably reflects the impact of social ideas of what prejudice “really” is. The Supreme Court protects racial minorities from “disparate treatment” (intentional discrimination) by subjecting that treatment to a heightened form of judicial scrutiny under the Equal Protection Clause, but “disparate impact” (facially neutral treatment that causes disproportionate harm) does not trigger this higher level of protection: Washington v. Davis, 426 U.S. 229, 238-48 (1976). The farther we get from such indicia of prejudice as intent, conscious but unreasonable justification, motivations of obvious stereotype, the less courts are willing to extend constitutional anti-discrimination protection.
[73] Derived from the facts of an actual case pending before the U.S. Supreme Court: Chevron v. Echazabal, 226 F.3d 1063 (9th Cir. 1999), cert. granted, 122 S.Ct. 456 (U.S. Oct. 29, 2001) (No. 00-1406).
[74] Perlin, supra note 54 expressly refutes this. This point is made another way by Ruth O’Brien, who writes of her own experience conducting research while sustaining a workplace injury (tendinitis): “I discovered that I could not guess how someone would respond to a request for an accommodation. I could never anticipate if someone would help, oftentimes generously offering more assistance than was necessary, or if someone would stand in my way. Self- proclaimed progressive people could react with as little understanding as those identifying with conservative causes, or vice versa. Supra note 30 at ix.
[75] See supra note 50.
[76] Young-Bruehl, supra note 61 at 27, 30-31.
[77] Young-Bruehl’s “character” is not a pathological or clinical designation, but simply a means of naming a configuration of certain psychological and sociological characteristics that provide fertile ground for one of the ideologies of desire. Id. at 32.
[78] Supra note 61, at 35.
[79] Covey, supra note 43, at 6-10.
[80] Susan Reynolds White, Disability Between Discourse and Experience in Disability and Culture, supra note 32, 267 at 269 (paraphrasing Henri-Jacques Stiker in Corps Infirmes et sociétés (Paris: Aubier Montaigne, 1982) on the Western construction of disability).
[81] Id.
[82] Lennard J. Davis, The Rules of Normalcy: Politics and Disability in the USA [United States of Ability] in Disability, Divers-ability and Legal Change, supra note 25, 35 at 46.
[83] For the Nazi regime, the murder of some 40,000 children with disabilities in 1940 was a practical confirmation of their logistical methods for mass extermination and the starting point to a pogrom targetting people with disabilities, Jews and Gypsies; the elimination of such peoples was justified by the Nazi belief in human inequality and their determination to “cleanse the gene pool of the German Nation.” See Henry Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution (Chapel Hill: U. of N. Carolina Press, 1995). See also Arthur L. Caplan, When Medicine Went Mad: Bioethics and the Holocaust (Totowa, N.F.: Humana Press, 1992); Michael Burleigh, Ethics and Extermination: Reflections on Nazi Genocide (Cambridge: Cambridge U. Press, 1997).
[84] The first U.S. physician to castrate a prison inmate as a check on the individual’s masturbation and to control population growth offers this repellantly fascinating mix of pseudo-scientific and nationalistic rationales: “Idiots, imbeciles and degenerate criminals are prolific, and their defects are transmissible. Each person is a unit of the nation, and the nation is strong and pure and sane, or weak and corrupt and insane in proportion that the mentally and physically healthy exceed the diseased, nor can any nation live if there is a reverse ratio. So we owe if not only to ourselves, but the future of our race and nation, to see that the defective and diseased do not multiply.” Cited in P.L. Tyor & L.V. Bell, Caring for the Retarded in America: A History 102 (Westport: Greenwood Press, 1984)
[85] Larry James McAfee is often held out as an example of how social perceptions about the less valuable life of a person with a disability influence public, medical and legal opinions about counselling and sanctioning individuals who express suicidal wishes. McAfee became quadriplegic at the age of 30 and successfully won the legal right to assisted suicide, but he did not end his life after he received technological support and advocacy assistance towards living a productive, independent life. See Shapiro, No Pity, supra note 29, at 258-88 (ch. 9).
[86] Supra note 61, at 34.
[87] Covey, supra note 43, at 24.
[88] Id.
[89] Jane Hubert, The Social, Individual and Moral Consequences of Physical Exclusion in Long-stay Institutions in Madness, Disability and Social Exclusion, supra note 32, 196.
[90] Id. at 200-01.
[91] Id. at 202-03.
[92] Supra note 61, at 34-35.
[93] Anita Silvers, Double Consciousness, Triple Difference: Disability, Race, Gender and the Politics of Recognition in Disability, Divers-Ability and Legal Change, supra note 25, 75 at 81. Tom Shakespeare points out the how the assumption that people with disabilities are asexual contributes towards their disregard, which influences how “disabled people are infantilised, and denied the status of active subjects,” leading in turn to the further undermining of their sexuality in modern societies where “sexual agency is considered the essential element of full adult personhood.” Tom Shakespeare, Power and Prejudice: Issues of gender, Sexuality and Disability in Disability and Society, supra note 22, 190 at 192. See also Tom Shakespeare, Kath Gillespie-Sells & Dominic Davies, The Sexual Politics of Disability: Untold Desires (London: Cassell, 1996).
[94] Supra note 61, at 33.
[95] Id. at 33-34.
[96] See supra note 19.
[97] See supra note 14.
[98] ADA Well-intentioned, But Its Implementation Is Increasingly Unreasonable, supra note 14.
[99] May, Disability Act Being Redefined, supra note 14.
[100] Supra note 14.
[101] 121 S.Ct. 1879 (2001), in which a majority of the court found that the essence of golf was shot-making, so that permitting Martin to use a golf court during the PGA’s qualifying tournaments would not so “fundamentally alter the nature” of the tournament as to enable the PGA to deny such a modification.
[102] A Judge Blows a Chip Shot, supra note 14.
[103] What’s Next in the ADA-Protected World of Professional Sports?, supra note 14.
[104] 122 S.Ct. 681 (2002), in which the unanimous court declared that terms in the ADA related to the definition of disability “need to be interpreted strictly to create a demanding standard for qualifying as disabled . . . to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term.” Id. at 690. The decision has been described as “a victory for employers,” and one defense attorney in ADA cases stated that “Employers have always been skeptical of disabilities that arise or become apparent when someone clocks in and end when they clock out. Implicit in the Supreme Court’s decision is their own skepticism on that point.” See Supreme Court Limits Disability Law (Associated Press), Jan. 9, 2002 at <http://my.aol.com/news/news_story.psp?type=1%cat=0100&id=0201082100551261>.
[105] Numerous articles have discussed these and other difficult aspects inherent in the need to define “disability” for legal, social and/or administrative purposes. See for example Jerome E. Bickenbach, Minority Rights or Universal Participation: The Politics of Disablement in Disability, Divers-Ability, and Legal Change, supra note 25, 10; Aart Hendriks, Different Definitions – Same Problem – One Way Out?, infra in this volume at Part II; Stone, supra note 19.
[106] Supra note 61, at 141.
[107] Supra note 61, at 142.
[108] One advantage that gay people presently enjoy in the continuing battle over definitional control is the fact that gay activists have succeeded in taking homosexuality out of the realm of psychiatric pathology. Gay “leadership realized that until the stigma of being diseased was removed, homosexuals would never be able “to live in dignity” or to combat the older but still powerful form of prejudice against homosexuals prevalent in Jewish ad Christian milieus.” Young-Bruehl, supra note 61, at 141. People with disabilities have less room to maneuver in this regard since many physical, cognitive and developmental impairments require an ongoing relationship with the medical community to enable individuals to manage their lives; the medical/pathological aspects of disability cannot be completely severed. On the other hand, gay people are beginning to face the kind of categorical controls that people with disabilities have always had to deal with. As homosexuality is beginning to be associated with some social benefits, and perhaps losing some of its historical social stigma, homosexual self-identification is increasingly being questioned. In Fort Bragg, Captain David Donovan’s four requests for discharge, made between 2000 and 2002, on the grounds of his self-disclosed bisexuality have been refused because “[t]here is insufficient evidence that any homosexual conduct has occurred. . . . The resignation does not disclose a homosexual act or marriage and does not contain a statement of homosexual conduct.” Donovan’s treatment is at odds with the Army’s general “don’t ask, don’t tell” policy in which verbal admission of homosexuality may be grounds for discharge. The case is particularly odd since Donovan has served 17 years of active-duty, is willing to accept the standard “Other Than Honorable” discharge, and volunteers to recompense the government whatever it feels it is owed. See Army Refuses Sex-Related Resignation (Associated Press), The Charlotte Observer, posted Feb. 11, 2002 at <http://www.charlotte.com/mld/observer/2002/02/11/news/local2646775.htm>; see also Hensala v. Dept. of the Air Force, 148 F.Supp.2d 988 (N.D.Cal) (Air Force entitled to seek financial recoupment for officer’s medical training after latter’s voluntary separation from Air Force on declaration of homosexuality).
[109] Supra note 19, at 28
[110] Id.
[111] Gavin Langmuir, Toward a Definition of Antisemitism (Berkeley: U. of California Press, 1990), as quoted in Young-Bruehl, supra note 61, at 79.
[112] Young-Bruehl, supra note 61, at 77.
[113] Media articles that cite the most factually extreme ADA claims generally fail to mention that the claims are dismissed or never make it past a summary judgement level, nor do they mention actual ADA statistical information, such as the fact that at the trial level, defendants prevail in over 93% of reported ADA employment discrimination cases. Where defendants appeal, they succeed in 84% of the reported cases, and both pre-trial and pre-appellate settlement success rates are also extraordinarily low. See The Americans with Disabilities Act: A Windfall for Defendants, supra note 14, at 99-100.
[114] Young-Bruehl, supra note 61, at 137.
[115] Supra note 105, at 112.
[116] The Disabilities Act Covers All of Us, interview with Robert L. Burgdorf, Jr., Jan. 14, 2002, at <http://www.raggededgemagazine.com/extra/edgextraburgdorf.htm>.
[117] Supra note 61, at 31.
[118] This precise point has been emphasised by post-modern philosophers who argue that it has rendered the foundational question of “what is human nature” outmoded and irrelevant. Richard Rorty borrows the term “human rights culture” from Eduardo Rabossi, an Argentinian jurist and philosopher. “Rabossi argues that philosophers should think of this culture as a new, welcome fact of the post-Holocaust world. . . . On Rabossi’s view, philosophers . . . are wrong to argue that human rights cannot depend upon historical facts. ‘My basic point,’ Rabossi says, is that ‘the world has changed, that the human rights phenomenon renders human rights foundationalism outmoded and irrelevant.'” Rorty then expands on this to argue that not only is it irrelevant whether human beings really have the rights enumerated in human rights instruments, but that “nothing relevant to moral choice separates human beings from animals except historically contingent facts of the world, cultural facts.” See Human Rights, Rationality, and Sentimentality in Hatred, Bigotry, and Prejudice, supra note 44, 263 at 265-66, citing Eduardo Rabossi, La teoria de los derechos humanos naturalizada, 5 Revista del Centro de Estudios Constitucionales (Madrid) 159 (1990). It seems to me that such a viewpoint only grants human rights to groups who have already been culturally recognized as victims of prejudice and discrimination. Further, Rorty’s ultimate recommendation to repeat “long, sad, sentimental stories” to induce tolerance and even cherishing of powerless people “whose appearance or habits or beliefs at first seemed an insult to our own moral identity, our sense of the limits of permissible human variation,” would only be effective advice where the prejudice in question is obsessional, or perhaps narcissistic. Where the problem is an hysterical prejudice that needs to keep the Other in a lower place – perhaps through the very stereotypes being repeated (that is, the disabled person’s need for charity and pity) – I fail to see how sentimental repetition will help. Id. at 277.
[119] See supra notes 5 and 7, also Preface and Introduction to this volume.
[120] As cited in Melinda Jones & Lee Ann Basser Marks, Law and the Social Construction of Disability in Disability, Divers-Ability and Legal Change, supra note 25, 3 at 23.
[121] Covey, supra note 43, 11.
[122] Robert F. Drake, A Critique of the Role of the Traditional Charities in Disability and Society, supra note 22, 147 at 152.
[123] Supra note 105, at 110. Even Bickenbach, however, acknowledges that “[a]s a political strategy, the minority group analysis and civil rights approach are a proven success. They formed the basic political platform upon which disability rights movements around the world have been based. These movements can be credited with nearly every change in attitude and treatment of people with disabilities in the last two decades – from kerb cuts and accessible bathrooms, to programs to integrate developmentally disabled children into the public schools to protections of the rights of people in mental institutions.” Id. at 105.
[124] See notes 59-60 and accompanying text.
[125] Oliver, supra note 23, at 83.
[126] Essentially, most of the non-French speaking Western world.
[127] For instance, the standard of intent required for a violation of the U.S. Constitution’s Equal Protection Clause is “‘Discriminatory purpose’ . . . [which] implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).
[128] Board of Trustees of Univ. of Alabama v. Garrett, 121 S.Ct. 955, 959 (2000). This passage’s clear implication that even purposeful or willfully neglectful discrimination against people with disabilities could be shielded under the auspice of “rational” actions seems to be rejected by the separate concurring opinion of Justices Kennedy and O’Conner, which stated that “[t]here can be little doubt, then that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will. . . . citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. Id. at 968.
[129] This is an opinion that can often be seen in the media. One early editorial states “It is not hard to imagine that a good many businesses . . . with no discriminatory intent against the disabled, could be found in violation of various sections of the ADA” and “When the ADA was passed, it was meant to ensure that disabled Americans were given equal treatment under the law, not preferential treatment. In protecting the rights of the disabled, the rights of innocent employers and businesses should not be ignored.” (Emphasis added) Disabilities Act Unreasonable Law, supra note 14. This approach to the ADA also exhibits signs of obsessional prejudices.
[130] Supra note 30, at 168.
[131] The term relates to the ADA’s definition of a disability, which requiring an impairment that substantially limits one or more major life activities. A majority of the U.S. Supreme Court, in a trio of cases issued in 1999, found that any plaintiff with an impairment whose effect was sufficiently mitigated, either by artificial aids or one’s own compensatory abilities, fell out of the definitional requirement of the law. See Sutton v. United Air Lines, 527 U.S. 417 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertsons Inc. v. Kirkingburg, 527 U.S. 555 (1999).
[132] Id. at 217.
[133] True charitable concepts at least operate across the board – that is, they would require assistance or employment to be given to all who need it. Even if interpreted as benefits legislation, the would only provide a “truncated” charity since employers would still only be required to hire needy individuals who could actually perform the “essential functions” of the job.
[134] Supra note 25, at 4.
[135] Christine Jolls, Antidiscrimination and Accommodation, 115 Harv. L.Rev. 642 (2001).
[136] Michelle A. Travis, Perceived Disabilities, Social Cognition, and “Innocent Mistakes” 55 Vand. L.Rev. 481, 482-3 (2002).
[137] See for example: David Benjamin Oppenheimer, Negligent Discrimination, 141 U.Pa.L.Rev. 899 (1993) (noting studies that show “that most discrimination . . . is the result of unintended and unconscious stereotyping”); Linda Hamilton Kreiger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan.L.Rev. 1161 (1995) (arguing that “a broad class of discriminatory employment decisions result not from discriminatory motivation, but from normal cognitive processes and strategies that tend to bias intergroup perception and judgement”); Judith Olans Brown et al., Some Thoughts About Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 Emory L.J. 1487 (1997) (noting a large body of scholarship “showing the inevitability of bias; racism occurs through unconscious cognitive processes”). As might be expect, most studies in this area focus on the more established discrimination categories rather than directly on disability discrimination.
[138] Supra note 61, at 114-15.
[139] Sampson, supra note 18.
[140] Baird & Rosenbaum, supra note 44.
[141] Hecht, supra note 51. As editor, Hecht does express regret over the “isms” that are not considered in the collection, but aside from offering his regret, offers no explanation for the omissions.
[142] Supra note 25, at 4.
[143] The following discussion is based on my interpretation, and application to the context of disability, of some connections that Young-Bruehl traces between her prejudices typology and different kinds of social/political/legal actions: see supra note 61, at 541-47.
[144] This very broad definition of ethnocentrism was adopted by M.B. Brewer & D.T. Campbell, Ethnocentrism and Intergroup Attitudes: East African Evidence (New York: John Wiley, 1976), as cited in Baldwin, Tolerance/Intolerance supra note 57, at 44.
[145] Hunt, supra note 20, at 10.