Disabling Barriers

Giselle Gerolami

Disabling Barriers:
Social Movements, Disability History, and the Law
Edited by Ravi Malhotra and Benjamin Isitt
Vancouver, Canada: UBC Press, 2017, 244 pages, $32.95 (Canadian) paperback.

DISABLING BARRIERS: SOCIAL Move­ments, Disability History, and the Law represents a unique contribution to growing literature in the area of disability studies, an area long neglected by scholars. Editor Ravi Malhotra is a professor in the Faculty of Law at the University of Ottawa who has written extensively on disability and the law. Co-editor Benjamin Isitt is a historian whose research and published work has focused on the history of labor and the left in British Columbia.

This collection is an accomplishment not only given the dearth of material available in disability studies, but also because of the diversity of topics and voices provided by the contributors. Additionally, the overarching theme promotes a view of disability consistent with the social model of disability.

In recent years, the focus has shifted from a medical model of disability, favoring rehabilitation, towards a social model where institutions are charged with a positive obligation to provide resources in order to remove barriers and open up the possibility of achieving equality.

It is no longer appropriate to require the disabled to adapt. The onus has shifted to society to expand its definition of personal worth, looking beyond the narrowness of workplace productivity demanded by capitalism. This would apply to everyone, but has special resonance for people with disabilities.

Now Disabling Barriers foregrounds the voices of people with disabilities. The collection calls on scholars, activists and socialists to embrace this struggle as their own.

The editors had previously collaborated on research on Eugene Kingsley, a socialist and union organizer in California and British Columbia in the late 1800s and early 1900s who lost both legs in a railway accident while working as a brakeman. Their collaboration eventually led to the convening of a symposium of scholars from Canada and the U.S. in Winnipeg in 2014 on the subject of disability rights.

Malhotra and Isitt state their goals: “We hope that the chapters that follow are able to push the discussion forward, ask new questions about the past, present and future, and encourage scholars from law, history and disability studies to rethink their assumptions about people with disabilities and their place in the world. We hope this questioning will inform policy debates and play a role in transforming social, legal, economic, and political relations, with a view towards removing barriers and achieving substantive equality.”

Contributors include legal scholars, historians, and activists, each offering a different perspective in the emerging study of disability rights. The book is divided into three parts. The first, Historical Debates on Work and Disability, focuses on historical issues with chapters by Mark Leir, Dustin Galer and Geoffrey Reaume. The second, Debates in Disability Studies, contains contributions from Ann Finger, Mark Walters, Jen Rinaldi and Jay Dolmage. The third, Legal Debates, has articles by Odelia Bay, Megan Rusciano and Eric Tucker.

Historical Perspective

Mark Leier explores divisions in the working class in early 20th century British Columbia. Dangerous conditions and frequent mining accidents led miners to organize, but Chinese workers were excluded.This racism limited workers’ gains as strikes were violently put down given that the companies used Chinese workers as scabs.

Organizing for safety and for the eight-hour day continued. Divisions over the lack of support for women’s suffrage and the national chauvinism of World War I hampered organizing efforts until the national strike wave of 1919-1920.

Dustin Galer looks at the challenges faced by injured soldiers after World War II in Canada and by disabled workers in the late 20th century. First polio survivors, then injured war veterans advocated for employment opportunities for the disabled.

There were hiring campaigns whose slogan was “Hire the handicapped!” very much based on the medical model of disability, where hiring was seen as a patriotic and charitable act for soldiers who had been disabled by war, instead of seeing the value of disabled workers. There were tensions between disabled citizens and veterans because more generous resources were accorded to the latter.

In 1973, a DuPont study showed that disabled workers contributed equally in the workplace. By 1981, the International Year of Disabled Persons, new slogans emerged such “Label Us Able” and “We Are All Able” as social attitudes changed. Despite various initiatives, however, employers continued to hold discriminatory attitudes. They saw disabled workers as prone to accidents, chronic absences, emotional issues and generally less productive.

Geoffrey Reaume traces the historiography of gender and disability. Rehabilitation efforts for veterans after World War II were focused almost exclusively on men. For women, the assumption was that they would get married and not require employment assistance. The historical record, ranging from assistance for the blind to old age homes, is male-focused with little information about how disabled women were impacted.

Racist attitudes pervaded as well, with injuries for immigrants derided and minimized. Both men and women with intellectual disabilities were paid well below minimum wage in institutions as were workers in mental institutions. The intersections of class, race, gender and disability point to a future where worth would not be defined by one’s productivity.

Prejudices and Disability

Ann Finger examines the way in which Franklin Delano Roosevelt approached his disability. During his entire career, he went to great lengths to hide or underplay his disability and spun a convincing story of having “recovered” or triumphed over his illness. Polio, which had been seen as a disease of poverty and associated with immigrant slums, became a respectable condition that one could recover from.

Roosevelt’s lifelong insecurities about how his disability might threaten his career showed the extent to which disability threatened masculinity. Instead, he relied on his voice and intellectual abilities in his iconic fireside chats. Privately, he assisted others with disabilities and enjoyed their company.

Mark Walters connects new sensibilities around the aesthetics of disability to the emergence of vestibular science in the 19th century. The understanding that the inner ear is responsible for balance has only been understood relatively recently. All studies of the ear had been focused on sound until the social segregation of deaf people led to the discovery of the role of the vestibular system.

Disabled bodies challenge traditional ideas of balance and aesthetics by favoring difference over similarity. The author envisions a “reincarnated aesthetics” that privileges “messy sensory experience” over classical formalism.

Jen Rinaldi and Jay Dolmage look at how eugenics impacted immigration restriction and disability in Canada in the early 20th century. Policy around immigration was designed to “preserve Canada’s predominantly British character,” which unfortunately did not include non-white British subjects.

There was fear of southern European and Asian immigrants. Chinese immigrants were subject to a head tax from 1885 onward, and starting in 1923 all Chinese were excluded except a very narrow group.

There was considerable concern to exclude anyone with intellectual or physical disabilities. No one could enter “who is feeble minded, an idiot, or an epilectic, or who is insane, or has had an attack of insanity within five years; who is deaf, or dumb, blind or infirm.” Starting with the Immigration Act of 1906, medical inspections were performed to enforce this policy; later, inspections were done at foreign ports to deny entry.

Non-whites were subject to assessments of their “climactic suitability” as a pretext for denying them entry into Canada. In 1927, Macedonians were rejected as being of “dark type and poor physique.”

Although explicitly racist and discriminatory language has been removed, Canadian immigration policy, which favors the educated and the skilled, continues to be discriminatory in effect. Issues of dependency are cited as the pretext for denying permanent residency. This has become a code for “feeble minded.”

Legal Warriors for Equality

Odelia Bay focuses on a specific overlooked group of disabled workers, the chronically ill. She focuses, in particular on the legal field where the “warrior-litigator” paradigm reigns supreme.

What women lawyers experience in the workaholic, male-dominated environment that is the legal field is relatively well-documented: sexual harassment, discrimination in opportunities for advancement, lack of accommodation for family or other caregiving responsibilities.  Much less is known about what disabled workers, in particular the chronically ill, experience in that environment.

The social model of disability, when applied to chronic illness, advances the needs of the chronically ill to the extent that attitudinal barriers are challenged — yet to the extent that the model privileges the visibly disabled, other models are needed. The reality is that chronic illness is often invisible.

The author identifies case law around caregiving as helpful for chronic illness. This approach emphasizes flexible schedules and work-life balance. The law has pushed back against pressure for workers, usually women, to move to part-time employment where benefits would be lost. Care for family is not identical to the self-care that the chronically ill require, but the latter’s inability to contract out that work makes their claims even stronger.

Income inequality is a lasting, pervasive issue for people with disabilities. Megan A. Rusciano narrows in on a case heard by the Ontario Human Rights Tribunal, Garrie v. Janis Joan, Inc. Terri Lynn Garrie, a 43-year-old woman with intellectual disabilities, worked at Janis Joan for over a decade. during which she was paid $1 an hour, later raised to $1.25.
The employer justified the practice based on the idea that she was a volunteer being paid an honorarium. If her pay was higher it might jeopardize Garrie’s government disability payments. The employer even took pride in its hiring program for disabled workers, making inclusion arguments for disabled participation in the workforce.

Garrie brought a case when she was terminated in 2009. The Ontario Human Rights Tribunal did not accept the employer’s arguments, found that Garrie’s rights had been violated, and awarded her lost wages. They ordered the Human Rights Commission to investigate the payment of subminimum wages to disabled workers.

Other existing protections for the disabled tend to focus on discrimination rather than on low wages. The United Nations document, Convention on the Rights of Persons with Disabilities, offers hope. Ratified but not yet legally binding in Canada, courts are using its remedies to bolster their arguments.

Decommodifying Labor

The history of workers’ compensation programs in Canada provides the framework for Eric Tucker’s development of a commodification-decommodification dialectic. Commodification of labor power is well developed in Marx, but Tucker looks to Karl Polanyi and Nancy Fraser for an explanation of the partial decommodification or in Polanyi’s words, re-embedding, of the economic in the social.

Workers’ compensation represents an example of this partial decommodification as ruling-class and working-class interests came together around the need for a system to address workers’ injuries and as social forces demanded it.

Nineteenth century lawsuits against employers had no precedents and courts considered the workplace a contract relationship where workers were assuming the risk in exchange for wages. By the 1880s, Canadian workers could look to tort law and sue employers for negligence.
Tucker argues that tort law did not serve employers well because of costs, while for workers, if a suit was lost, they bore all the legal costs. A lengthy appeals process represented a hardship for workers in particular.

Since the move towards a no-fault system, or in other words a public insurance system with collective liability, the fight has been over benefits with workers and employers on opposite sides. Employers resisted having to pay for permanent injuries and for the diminished capacity to work.

The struggles of militant Italian immigrant workers in Toronto in the 1960s helped lead to reforms in 1974, allowing for benefit supplements for those who returned to lower wages after an injury.

Tucker makes compelling arguments but it is unclear how the commodification-decommodificaton dialectic would apply to the no-fault system. Employers complain incessantly about the costs of workers’ compensation and its threat to the “business climate.” They seek to gut programs as much as possible even though they benefit tremendously from not being sued.

The ongoing fights over benefits, and which side comes out ahead in those fights, is closely tied to union militancy and the relative strength of the working class. Women, people of color and members of the LGTQIA community have been advocating for their rights for some time and it is time for people with disabilities to be heard as well.

July-August 2018, ATC 195