Like most forms of discrimination, disability discrimination is plagued by the “but” disease. It doesn’t come in the form of “I’m not a ableist but…” yet because there is simply not enough stigma attached to being an ableist. it comes in forms like this: (All adapted from real conversations I’ve been in.)
“i know you care about disabilities BUT you need to see the other point of view. I have a small business and these politicians in their ivory towers want me to fork out thousands of dollars to make it accessible. Its not fair.”
“Of course people with epilepsy can do all sorts of jobs, BUT I’m sure the company I work for wouldn’t hire anyone who blacked out in a job interview. It just not possible.”
My personal favourites:
“I am training to be a special needs teacher…BUT this group holiday is my vacation so I don’t want to have to deal with your problems. Just avoid me. ” (Yes I was on my knees bawling after that one. Nice to know my humanity stops when she’s on holiday.)
“I know you had to go to hospital in the middle of the night BUT that was no excuse for waking me up. You shouldn’t expect other people to deal with your health issues.”
What is behind this?
Ok, so there is a line. Someone who is totally blind might struggle to be a race car driver. (see this Chaser prank for a humorous take on the line
I am not that kind of person so I can’t tell you exactly how these people think, but I think that there are a few things going on here:
- There is a failure to recognise that including people with disabilities is not an optional act of extra merit on the part of the good person. It is a fundamental DUTY and failure in that duty is a fundamental moral WRONG. When a person decides to discriminate against a person with a disability they have judged the benefits of a WRONG behaviour to be worth it. Now sure, life is like that. We would all kill a madman about to execute our family. We would all lie to protect Jews from the Nazis. BUT lets get some perspective.
- The above thinking is “charity model” and “medical model” of disability which are still fundamentally embebedded in our culture.The charity model is about 40 years out of date. Most educated people now reject the “charity model.” and the “medical model .Those who reject it tend to favour the “social model” This is the idea that society creates the problems facing people with disability by not being flexible enough. There is a world of difference in moral culpability between causing a problem and failing to help out those affected. Last time I checked, it was society that built steps not people with disabilities. But hey…I could be wrong. Aliens built the pyramids after all.
- Regardless of model, the way I was raised was that if there is a problem that affects some people more than others through no fault of the others’ fault, it is a duty, not a praiseworthy act of generosity, to spread the cost. That’s why the government paid for sound-proof windows at my house. I live under the flight path, so I get worse noise, so we share the cost. Disability activist, Tom Shakespeare, has made a similar argument.
- We are a part of humanity that isn’t going away (after all, we have made up 10% or more of the population for most of history). If we are a part of humanity, then how can our inclusion and respect be some optional extra in life?
- The problem is systemic. Our society is not set up to spread the cost of disability, or be flexible to human difference. That means individuals who do the right thing will sometimes have to bear more of the burden than they should. Last time I checked so did the Freedom Riders and the Suffragettes. This is not right, but it is the cost of fixing a wrong. Also, there are ways to tackle the systemic problem.
- People don’t consider that diversity and non-discrimination has positives. Firstly, arguably, it is a good thing and has an inherent value in itself. But it also has side benefits. As a business, it means more customers. As an institution, such as a school or court room, it means a more diverse and interesting experience, and a true representation of humanity. Rather than just thinking about the benefits of WRONG behaviour and the costs of RIGHT behaviour, people should think about the benefits of the right behaviour and the costs of the wrong.
- Fear and laziness makes people rush to the conclusion that there is a problem, rather than actively look for solutions. Sometimes, when people learn about me, I feel their minds ticking over actively thinking about why I might be a problem. Newsflash. If you did that to a “normal” person you would find problems with them too. You are just used to those problems!
- There was a great case I did in discrimination law (Vickers v NSW Ambulance Service) about a nurse with diabetes who wanted to join the ambulance. They wouldn’t let him because they were afraid he would have a hypo behind the wheel (despite the fact he hadn’t had one during 14 hour surgeries). The judge went through all sorts of solutions and possibilities with both sides and then finally came to the conclusion that, really, the ambulance service couldn’t be that concerned about people passing out behind the wheel. None of their “normal” drivers had to have regular medical check ups. If the “normies” had a heart attack, dozed off or had undiagnosed epilepsy like yours truly, well then that was ok because that was a “normal” risk. In reality the diabetic man was safer.(For lawyers, see paragraph 53)
- Or think about the West Wing. There was a massive furore because the President had MS, which can eventually affect your executive functions. Too bad he was a great President. Nobody cared that our Prime Minister here in Australia got drunk and declared a national public holiday because we won a boat race. I guess the risk of people getting drunk is a normal risk.
- Nobody is creative. Universal Design has brought to us the idea that often we can accommodate disabilities quite easily just by thinking laterally. So once, I had a friend who worked on a reception desk whine to me about how they had built it too low for the able-bodied staff and it hurt their backs. Apparently “someone had complained that it would be too hard for a person with a disability in a wheelchair if it were lower. BUT they didn’t think about our backs.” Well it took me 30 seconds to think of a solution. Why not build it at two heights? Looks like I’m not the only one who thought of that.
So What Does this Mean?
For Everyday Life and Grassroots Advocacy
- We need to work on tackling the systemic problem to reduce the cost to people who do the right thing. This can mean:
- Ethical shopping and review-writing. Do we make an effort to patronise accessible shops and businesses? To boycott movies and TV shows that promote ableist values? Do we take into account accessibility when rating businesses, and movies online and discussing it with our friends? We would certainly have something to say about a shop with a sign out the front saying “No women and black people” but do we consider whether it has a lift? We might also consider whether a business has a disability action plan registered by looking at this site, before we choose one.
- Taking advantage of the systemic support available. Ok it’s not great but it does exist. For example, there is funding and training to help employers adjust for people with disabilities. If NDIS is in our area, we can explore what support we might be able to get funded for through that.Before a person discriminates, they should really consider their own options for systemic support. But, having a bit of information on hand can also help us shoot down the “ivory tower” argument.
- Here is a little checklist that we can use to critique and respond to the “but” disease, and decide whether the line has really been reached
- Has the discriminator recognised that by their actions they are participating in a fundamental moral wrong and the seriousness of that wrong? Do they take it as seriously as they would take the equivalent behaviour on the basis of race or gender? Do they recognise that people with disability are a real part of humanity that aren’t going to go away?
- Does the discriminator recognise what is available to correct the systemic wrong that would leave them disadvantaged for doing the right thing? Does the discriminator recognise that that the costs are even greater for the person with the disability through no fault of that person?
- What benefits and values of non-discrimination have been considered and put forward? Has the inherent value of non-discrimination been given enough weight?
- Are problems really as serious as they are made out to be? Is it possible that similar problems, or problems of similar gravity could occur without a disability? How would they be handled?
- Is the problem really just that we are stuck in a box that pits the needs of people with disabilities against those with disabilities unnecessarily? Is there an outside the box solution?
For Lawyers, Professionals and Academics:
- I think the checklist above could be quite helpful in thinking through discrimination questions and problems.
- It is worth tackling the “but” disease by working on more sustainable underlying assumptions.
- There is no real excuse for any educated person to follow the charity or medical model today. If we can find evidence of it in someone’s argument, we should point them out and decry them.
- However, we should keep our own alternative model up to date.
- There are some valuable critiques of the social model out there. The issue is really a lot more complex. We can’t tackle ignorance unless we come at it with multiple weapons.
- The emphasis on being “subjects” and “holders of rights” in the United Nations literature goes beyond a simple social model to something a little more pro-active to a diverse concept of human rights. Once again, we need to remember that international law sheds light on how Australian law is interpreted. It may be especially valuable in dealing with all the myriad regulations that flood the world of people with disabilities.
- I would say the idea of people with disabilities as subjects and holders of rights is particularly relevant to the breakthroughs on procedural fairness that have been made. In this quote from an AAT case on wage justice, we see how the fundamental right enshrined in Australia’s constitution, to be heard on matters concerning oneself, was not considered displaced by “buts” of practicality.
- “… it is not proper for such considerations of practicability to effectively displace the responsibility of the Commission to give those individuals an opportunity to be heard on the application at hand,”
- I would like to see the concept of universal design fleshed out further. At the moment it is still relegated largely to the built environment. Jeremy Bickenbach has written an interesting piece exploring its more general applications, and Jennifer Jolly-Ryan has discussed its applications in the law classroom.