Disability Harassment

Mark C. Weber

• Publisher: NYU Press
• Year: 2007
• ISBN:
  9780814784686
• Topic: Derecho
• Subtopic: Derecho laboral y del empleo

Building on the insights of both disability studies and civil rights scholars, Mark C. Weber frames his examination of disability harassment on the premise that disabled people are members of a minority group that must negotiate an artificial yet often damaging environment of physical and attitudinal barriers. The book considers courts’ approaches to the problem of disability harassment, particularly the application of an analogy to race and sex harassment and the development of legal remedies and policy reforms under the Americans with Disabilities Act (ADA).

While litigation under the ADA has addressed discrimination in public accommodations, employment, and education, Weber points out that the law has done little to combat disability harassment. He recommends that arguments based on unused provisions of the ADA should be developed and new legal remedies advanced to address the problem. Disability Harassment also draws on case law to explore special problems of harassment in the public schools, and closes with an appeal to judges and lawmakers for expanded legal protection against harassment.

1

Harassment Narratives

Disability discrimination is not mere thoughtlessness or failure to accommodate the needs of people with disabilities. Much disability discrimination consists of overt physical and verbal abuse, the conscious effort to subordinate people who as a group hold less power and social standing than the majority. This chapter presents accounts of people with disabilities who have been subjected to disability harassment. The cases are the smallest tip of a very large mass, but they demonstrate harassment and how it operates to impose stigma, to form and perpetuate stereotypes, and to enforce subordination on people with disabling conditions.¹

Stories of Stigma

Ricky Casper had a mental impairment that reduced his ability to learn.² Supervisors at his maintenance and assembly job repeatedly made fun of him as stupid. One called him a “tax write-off” and told him that his children would grow up “acting … slow and stuff.” He threatened to come over to Casper’s house and have sex with Casper’s fiancée in order to show her what good sex was. Another supervisor exposed Casper to streams of profane abuse and constantly forced him to redo work unnecessarily. A third made him work while co-workers stood around and laughed at him. Workers called him “Rick Retardo” and “dumb ass.” One supervisor asked him why he had an assembly job because “you can’t read or write or do math.”

Sandra Spragis Flowers had a different kind of disability and a different experience of imposed stigma.³ Flowers, a medical assistant, was diagnosed with HIV infection. When her supervisor learned of Flowers’s condition, she stopped going to lunch and socializing with her. Instead, the supervisor began a campaign of eavesdropping on her, intercepting her telephone calls, and hovering around Flowers’s desk. The company president suddenly became distant and refused to shake Flower’s hand; he would go out of his way to avoid her office when going from one part of the hospital to another. Flowers was subjected to four drug tests in a week, written up twice and placed on probation, called names, and subjected to other humiliations. Eight months after the supervisor learned that Flowers was HIV-positive, the company fired her.

Charlie F. was a fourth grader with attention deficit disorder who was prone to panic attacks.⁴ Every week, his teacher held sessions in which she asked her students to discuss their feelings. She repeatedly asked them to discuss Charlie and his behavior, and every week they joined in criticizing and humiliating him. He lost the confidence he had gained in school and his academic progress flagged. The barrage of ridicule was accompanied by taunting outside the classroom and fistfights. Although the teacher instructed the students to keep the sessions a secret, the truth came out. Charlie’s parents moved him to another school, but even three years later, children from the class still taunted him when they ran into him on the street.

In their pathbreaking article in 1988, Michelle Fine and Adrienne Asch challenged the conventional view that stigma arises from an individual’s impairment rather than from “human-made” barriers.⁵ Their work referred to Erving Goffman’s observation that the discomfort and anxiety that people without disabilities feel in encounters with people who appear disabled lead those without disabilities to impose stigma on those who have them.⁶ The narratives given here illustrate how people without disabilities, typically people with authority or practical power, impose stigma on a person with a disability who has no effective power to defend against the oppressor. The supervisor or the teacher cannot accept that the person with a disability is different, even though the difference has no bearing on the person’s entitlement to a job or schooling. The lack of experience working in an ordinary relationship with people with disabilities and the general absence of people with developmental disabilities, or HIV infection, or neurological impairments from the mainstream of ordinary life act as barriers to the acceptance of the employee or student as an employee or student. Instead, the person is a manifestation of a disability, and the discomfort of dealing with that manifestation causes a reaction of ridicule, shunning, or abuse, or of encouraging others to ridicule, shun, and abuse.

The mechanics of stigma differ with individual instances and particular disabilities. Few people have experience working as an equal or in an ordinary supervisory relationship with a co-worker who has a developmental disability. Perceiving someone in Casper’s work role as a liability to the general effort, as a write-off, is all too easy given the pervasiveness of exclusion of people with mental retardation from ordinary work. In ordinary experience, people with mental retardation work, if they work at all, in sheltered settings or in self-contained crews.⁷ Work is medical treatment, not employment. The supervisor’s verbal harassment of Casper and his singling him out for extra tasks convey a not very subtle message to quit the job and disappear. What the supervisor perceives as the cause of the discomfort is the person rather than the rarity of the experience of having a person with a developmental disability in a position of productive activity. The supervisor’s urge is to make the discomfort go away by hounding the person with a disability to quit, not by altering the work setting to add enough workers with developmental disabilities so that their presence is no longer a shock.

The harassment of Flowers in reaction to her HIV infection illustrates another aspect of disability stigma, the fear of infectious disease. But the reality is that the connection between discriminatory barriers and stigma is much the same as in Casper’s situation. HIV infection is something that happens to other people, drug abusers or sexual minorities. Certainly, someone with the disease is not expected to be in the workplace, conducting affairs in an ordinary way. That the illness does not affect the person’s performance in role does not matter. In fact, it may exacerbate the discomfort that others feel. Fine and Asch collect studies indicating that people without disabilities appear to experience more discomfort in dealing with a person with a disability who manages tasks competently than with one who fills the anticipated role and needs help.⁸

Aspects of popular imagination associated with HIV also contribute to the stigma placed on people with the infection. Symbolism commonly used in discussing disease from HIV includes that of an invasion of the society and the person and that of divine punishment for sinful behavior.⁹These additional meanings or metaphors attached to HIV infection contribute to the isolation and stigma that other individuals impose on the person who has the disease. Flowers experienced a reaction to disability that traces back to biblical times: the shunning of those perceived as disfavored by the divine and as threatening to the healthy.

Charlie F.’s experience provides an example of how someone in authority takes two of a child’s characteristics, severe distractibility and anxiety, and uses them to single out the child as the object of attention, and soon the object of hostility, of the group. The disability is not sufficient to cause the stigma. Rather, a person with power makes a conscious decision to act in a way that leads others to impose stigma on the person with the disability. The social structure of ordinary school renders the person with a disability out of place in the mainstream. In Illinois, where the events took place, the rate of children with disabilities who are excluded from general education classrooms 60 percent of more of the day is 40 percent higher than the national average.¹⁰ Special education children are supposed to stay in special education classrooms. Challenging that expectation carries a price. Those in the dominant group experience a threat and react by ostracizing the person they perceive as breaking the rules.

Stories of Stereotype

Some other instances of harassment illustrate the pervasive use of stereotypes. People observe a disability and assume that the person with that impairment fits a stereotype of someone who is lazy or deceitful or worse. Mitchell Harshbarger worked as a foreman for a power company in a job that required him to lift boxes weighing two hundred to three hundred pounds.¹¹ He suffered a series of injuries to his elbows and underwent surgery. He returned to the job with a permanent restriction of lifting no more than forty-eight pounds. A few months later, he tore his rotator cuff, went on light-duty work, had more surgery, and spent time off work. He returned to a light-duty position, eventually with a restriction that he lift no more than twenty-five pounds with his right arm and not reach above his shoulder. He attempted to negotiate entry into another job slot, but his employer ultimately terminated him instead. While Harshbarger was on light-duty work, his supervisor taunted him in front of co-workers for being “lazy,” “crippled,” and “worthless” and asked him, “Where is your dress?”

Neil Haysman worked in a grocery store.¹² He injured his back and knee when a forklift pallet fell and struck him; the injury exacerbated a preexisting emotional impairment. About ten months after he returned to work in an light-duty position with a part-time schedule created for him, the store’s manager and assistant manager started a campaign in which they harangued him in front of the other employees, accusing him of exaggerating his conditions, of “milking” his disability. The assistant manager said he would “ride” him until he quit, abused him with profanity, and struck and kicked him on the injured parts of his body. They switched his shift to night without any reason but to induce him to leave the job. The store manager said he thought Haysman was “a joke.” Haysman’s mental state deteriorated as a result of the mistreatment. He eventually went back on workers’ compensation and ultimately obtained a job at a different store.

Robert Kubistal was a seventh grader with an undiagnosed visual impairment.¹³ His teacher routinely called him “butthead” and said she would like to take out his eyes and give them to a child who would work harder. His mother complained to Robert’s principal and ultimately to the board of education. After the principal assured Robert’s mother that the teacher would apologize if necessary, the teacher called Robert up to the front of the class, got down on her knees, and in an exaggerated voice said, “I’m so sorry, Bobby!” She then turned to the class and stuck a finger in her throat to mimic inducing vomiting. At some point the next year, after the visual impairment was diagnosed, Robert was moved to another teacher’s room. During that time, the principal came to the classroom and erected an “isolation chamber” for Robert with movable bookcases. Robert sat in the isolation chamber every day for several weeks, including during his lunch period. Robert’s mother complained to the teacher, who said the principal was responsible, so she then complained to the principal, who said the teacher was responsible. Robert graduated despite never having been assigned eighth-grade work. At the ceremony, the graduation marshal skipped over Robert’s name, looked at Robert’s mother, giggled, and finally said, “Oh, Robert Kubistal.” As a result of these humiliations, Robert suffered from depression and bed-wetting and lost interest in school.

The stories of Harshbarger and Haysman illustrate stereotypes of two kinds: first, the presumably positive stereotype of the yeoman, eager and able to do any kind of physical work, and second, the negative stereotype of the shirker, who tries to avoid doing a fair share of the labor. The former image is classically male; the latter merges with a common image of feminine dependency, as suggested by the comment to Harshbarger, “Where’s your dress?” Simi Linton points out that society tends to ascribe similar characteristics to women and people with disabilities: dependency, emotionality, passivity, the lack of mature judgment.¹⁴ Like women who have attempted to break into jobs that are predominantly male, workers with disabilities who are in ordinary work settings receive the message “You do not belong, and I am using my power to keep you out.” Just as sexual harassment is less about sex than about exclusion and dominance,¹⁵ so disability harassment is not so much about disability as about preserving the strength and privileges of those without disabilities.

Robert Kubistal’s experience demonstrates an additional stereotype present in Harshbarger’s and Haysman’s stories. The assumption is that a person who needs accommodations to do a task does not in fact need them but is lazy or unwilling to work. The persistence of Harshbarger and Kubistal, or, for that matter, of Casper, Flowers, and Charlie F. and others, puts the lie to that notion. What is remarkable about all of these cases is that they are the instances where the harassment, at least in the short term, failed in getting the targets of abuse to leave work or school. Their tenacity demonstrates the opposite of Goffman’s description of people with disabilities who, being stigmatized, isolate themselves and avoid jobs or other situations where they will experience rejection. But that fact appears not to have mattered to the harassers. The person with the disability who is placed on light duty or needs additional support in learning is a piker, a malingerer.

Lack of daily contact at a level of true equality with persons with disabilities promotes and constantly reinforces stereotypes. Gordon Allport’s classic study of prejudice reported that people who have no contact with members of a racial minority or other out-group typically have low opinions about them.¹⁶ Rather than dispel the negative opinions, casual contacts with the minority frequently reinforce them. In their experiences with the minority, people selectively remember what is bad and ignore or forget what is good. Prejudice diminishes, however, when members of the majority and minority work together as equals for some common goal. The rarity of peers with disabilities in public settings locks people without disabilities in the stage of no contact or limited contact, where stereotypes take root and grow.

Stories of Subordination

Stigma and stereotype combine to keep those who appear to be different in a position inferior to others. Some accounts vividly illustrate the verbal and physical brutality that enforces this subordination. Shawn Witte was a ten-year-old with Tourette’s syndrome, asthma, attention deficit disorder, an emotional disability, and deformities of the feet and legs.¹⁷ At school, his teacher forced him to eat oatmeal, though his mother had told the teacher that Shawn was allergic to it. The teacher and an aide force-fed Shawn, one of them holding his hands behind his back while the other spooned him oatmeal mixed with his own vomit. The principal was aware of the practice and explained it to Shawn’s mother as a form of punishment. To punish Shawn for not running fast enough during an exercise period, the aide choked him, causing an emergency room visit in which the physician diagnosed strangulation. When Shawn made involuntary body movements due to tics, the teacher and aides tackled and sat on him. The staff placed Shawn on a treadmill with weights attached to his ankles in an effort to tire him out and keep him from leaving the classroom. At times, Shawn was punished for failing to perform tasks by being deprived of meals or having water sprayed on his face. The teacher screamed degrading remarks at Shawn. Shawn was also forced to write the sentences “I will not tell my mom” and “I will not tic.” He was threatened with physical harm if he ever told his mother about what was happening at school. Derrick Eason, another student at the same school for children with disabilities, endured similar treatment.

Robert Fox was an automobile assembly plant worker who injured his back and returned from disability leave with a medical restriction to light-duty work.¹⁸ Although his immediate supervisor tried to adapt Fox’s job duties to meet his medical restrictions, a different supervisor and the foreman blocked these efforts and belittled Fox when he refused to violate his physical restrictions. They placed him at a special work table that was too low for him and exacerbated his back injury. He was blocked from obtaining a promotion, and the supervisor and co-workers subjected Fox and other workers with disabilities who were on light duty to a continual barrage of profane abuse and insults relating to their disabilities. The supervisor told other employees not to talk to Fox and the other workers who were disabled, so the co-work...