Michael Evan Waterstone
Loyola Law School Los Angeles
Michael Ashley Stein
William & Mary Law School; Harvard Law School
Northwestern University Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2008-3
This is a review of Mark C. Weber's book DISABILITY HARASSMENT. Weber's work provides powerful evidence of an important but often unacknowledged form of intentional discrimination against people with disabilities. It also provides a doctrinal formulation by which to address this issue, as well as normative arguments for why we should. Weber's work draws insight from social science research suggesting that discomfort and anxiety relating to disability can lead non-disabled people to deliberately stigmatize people with disabilities. Yet a growing body of legal and social science research suggests that the discomfort generated by minorities, women, and people with disabilities in the workplace also leads to less acknowledged, even unconscious forms of discrimination. Like the blunt disability harassment Weber discusses, courts and legislatures have found that this less blatantly recognized variant of discrimination is difficult to confront and address.
We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities, who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities.
Part I of this Review Essay sets forth Weber's thesis, arguments, and conclusions regarding disability-based harassment. Part II briefly overviews the influence of deeply embedded unconscious discrimination, especially as it affects occupational participation by minority groups, including people with disabilities. Next, Part III provides an initial treatment of why people with mental disabilities normatively should and practically can be incorporated into the workforce. In doing so, we highlight some of the less currently appreciated benefits of integrating these workers. We conclude with a few thoughts on how incorporating individuals with psycho-social disabilities may be seen as part of the overall dynamic of increasing flexibility in the evolving workplace, including some advantages that redound to their non-disabled peers.
Number of Pages in PDF File: 32Accepted Paper Series
Date posted: February 25, 2008 ; Last revised: March 13, 2008
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