The Rights the Disabled Have under Section 504 of the Rehabilitation Act of 1973

If you work for any entity which receives funds from the federal government, the following would seem to imply that disability discrimination by your employer violates federal law:

Section 504 of the Rehabilitation Act of 1973:

No otherwise qualified handicapped individual in the United States, as defined in section 7(6), shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance. (Cited in What We Have Done: An Oral History of the Disability Rights Movement - Fred Pelka, 2012)

Wikipedia's article on Section 504 adds:

Codified as 29 U.S.C. 794.
According to this law, Individuals with Disabilities are:
"persons with a physical or mental impairment which substantially limits one or more major life activities."

 where

"Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning."

In a previous post we noted cases "where the august Court cruelly denied protection to disabled individuals even though the intent of the Americans With Disabilities Act should have been clear. As the Times noted, The court went wrong by “eliminating protection for many individuals whom Congress intended to protect” under the 1990 law." The Disability Rights Education and Defense Fund website notes another case where Congress found it necessary to pass a law undoing unreasonably restrictive Supreme Court interpretation of Section 504 and other disability rights legislation:

The longest legislative battle was fought over the Civil Rights Restoration Act (CRRA), first introduced in 1984 and finally passed in 1988. The CRRA sought to overturn Grove City College v Bell, a Supreme Court decision that had significantly restricted the reach of all the statutes prohibiting race, ethnic origin, sex or disability discrimination by recipients of federal funds.

An important decision overturned was a case where the Court interpreted Section 504 as meaning that only clients of the departments of an entity which actually received federal funds had protection from disability discrimination. Under current law, because of the CRRA, protection applies to the entire agency. If a college's engineering department receives federal funds, students in the English department are also protected.

There was also foot-dragging on implementing Section 504:

Section 504 was the last sentence in the 1973 Act. However, initially Joseph Califano, U.S. Secretary of Health, Education and Welfare, refused to sign meaningful regulations for Section 504. After an ultimatum and deadline, demonstrations took place in ten U.S. cities on April 5, 1977. The sit-in at the San Francisco Office of the U.S. Department of Health, Education and Welfare, led by Judith Heumann and organized by Kitty Cone, lasted until May 4, 1977, a total of 28 days. More than 150 demonstrators refused to disband. This action is the longest sit-in at a federal building to date. Joseph Califano signed the regulations on April 28, 1977.

The Reagan administration, in addition to attempting to weaken the Voting Rights Act, attempted to undermine Section 504 when it came into power:

Over the next several years, Section 504 was somewhat controversial because it afforded people with disabilities many rights similar to those for other minority groups in the Civil Rights Act of 1964. Throughout the Reagan administration, efforts were made to weaken Section 504. Patrisha Wright and Evan Kemp, Jr. (of the Disability Rights Center) led a grassroots and lobbying campaign against this that generated more than 40,000 cards and letters. In 1984, the administration dropped its attempts to weaken Section 504.

When any governmental agency's employees discriminate against the disabled, they are acting in the name of the taxpayers who fund them. For example, public transit organizations receive substantial federal assistance. So does every state. We know of a case where a disabled person, having his driver's license renewed, heard the state photographer say, "Whiskey, cheese, harelip." That bigoted employee was acting as a proxy for the public. When he attempted to demean, degrade and intimidate a citizen making a required license application, he represented you and me.

Whether the license applicant could have sought redress under Section 504 is unknown. Public action under Americans with Disabilities legislation and Section 504, to date, has been entirely about access, with notable success. Protection from discriminatory attitudes and acts designed to humiliate, marginalize, and disenfranchise the stigmatized disabled, hasn't even begun. As an earlier post cited:

There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities. - Assistant City Prosecutor Jennifer Fitsimmons

The dream of the disabled is an American dream, that one day America will rise up and live out the meaning of its creed, that all are created equal.

The values of the left often discriminate against the stigmatized disabled

The politics of identity [POI] is the politics of approved identities, primarily "minorities," women, LGBTQ people, and subcultures at the present time.(1) But the nation's largest minority, the disabled, have a socially "spoiled identity," as Erving Goffman wrote.

Under the liberal principle that all people are created equal, this is a problem. Egalitarianism would not allow approved identities and disapproved identities. This is clearly not equality. To tag anyone as having a disapproved identity because of the group they were born into would be prejudicial discrimination under the principles of liberalism.

Theoretically, the politics of identity is about identities which produce targeting. "Minorities," women, LGBTQ people, and subcultures, are the identities progressives valorize because these groups have historically been the victims of racism, sexism, homophobia, and xenophobia. A disabled person of whatever race, gender, or class is targeted because disability stigma is spoiled identity. Because the disabled also have historically been targeted, the politics of identity would be expected to work to the advantage of people with disabilities as well.

That's not what actually happens. More typically, when members of the left see a white male (for example) who is one of the CPs (stigmatized by Cerebral Palsy or Cleft Palate), they remember that white males should be punished for racism, sexism, homophobia, and xenophobia. Here's an example:

At a party I, a white male CP attended, an East Asian community college teacher started asking intrusive questions when she discovered I wasn't a community college teacher like most of the people there. She persisted even when it was clear that I was uncomfortable with what seemed to be an insinuation that I didn't belong there. When she managed to work in a reference to someone she knew who was also--her exact words--"funny looking," the two guests to my left were visibly shocked.

I was shocked for a different reason. None of the teachers and instructors there expressed social disapproval at seeing a person with a birth defect demeaned and degraded by a colleague. What they saw was what they considered a "minority" giving a member of an oppressor group what he deserved.

This is an example of the way the left concept of justice for "minority" identities can produce a miscarriage of justice in the case of disability.

Another very touchy problem is that members of other cultures and ethnicities can be even more inclined to discriminate against disabled people than the American mainstream. From a disability blog:

"Al in Texas": I am not being critical of our growing foreign population, but the views regarding people with disabilities outside the USA can be harsh and I am seeing more of that pop up in my daily life than I ever have.

As one of the CPs, I sometimes hear someone mutter, "pendejo," as I make my way down the aisle of a crowded bus.

Writer James Fallows observed this in China:

The real story here is about the situation of dwarves in China. Airen, 矮人, or small people. When we lived in Shanghai a few years ago, I happened to be walking behind a dwarf, on a lane near where we lived. Everyone coming our way slowed down to point and laugh at him. Later many people explained to me that laughing is the behavior of embarrassment, and that the Chinese were uncomfortable and embarrassed at seeing someone who looked unusual and so different from the norm.

And the treatment I experienced at the hands of an East Asian community college teacher, above, may be an illustration of the "harsh" effect that some immigrants and refugees can have on America's largest minority.We all welcome the tired, the poor, the huddled masses yearning to breathe free to this great land, but as "Al in Texas" observed, that does not excuse prejudicial "views regarding people with disabilities."

Here again, the values of the left exacerbate the problem. "Minorities," women, LGBTQ people, and subcultures are valorized; funny looking awkward people who offend us by making us feel uncomfortable do not have the support of the community. And democracy, says these values, is the will of the community.

(1) The Politics of Identity tends to produce ad hominem argument. Here Andrew Sullivan's observation concerning campus left values may be apropos:

Unashamed resort to ad hominem fallacy on campus now: "The idea that only a member of a minority group can speak about racism or homophobia, or that only women can discuss sexual harassment. The only reason this should be the case is if we think someone’s identity is more important than the argument they might want to make."

Other Discrimination Also Masquerades as Normal Social Interaction Ctd. (reprinted)

Virtually everything in the following description of routine (and "socially" legitimized) sexual harassment  is also typical of disability discrimination.

As the United States moves toward its four-year presidential election, routine social abuse of a vulnerable segment of the population has become an issue in the candidacy of one of the abusers, Republican candidate Donald Trump. A recent article by Michelle Goldberg calls him A Human Trigger. Mr. Trump uses the Big Lie technique; projects his bigotry onto his victims; leverages Conventional Wisdom's denial of the reality of gender marginalization; and often leaves his victims' disoriented and doubting the reality of their own experience:

Like many abusers, Trump is so shamelessly, fluently dishonest that listening to him can be disorienting. “One of the hallmarks of an abusive person is that they do not ever take responsibility for their behavior, ever,” [Kristen] Slesar says. “It is always the other person’s fault, or it never happened.” Abusers, she says, can crowd out their victims’ sense of reality: “In conversation and arguments with this person who is so able to change reality or deny reality and shift blame and responsibility, the victim ends up doubting [herself], getting really confused, feeling really unstable.

The Big Lie deserves its own examination, because the phrase originates with another authoritarian who understood that routine bigoted error of conventional social thought can be used to corrupt the political instincts of a large segment of the public. Wikipedia explained:

A big lie (German: große Lüge) is a propaganda technique. The expression was coined by Adolf Hitler, when he dictated his 1925 book Mein Kampf, about the use of a lie so "colossal" that no one would believe that someone "could have the impudence to distort the truth so infamously."

The following selection from Mein Kampf describes techniques familiar to those who have followed the rhetoric of the Republican candidate's campaign—appeal to emotion in defiance of evidence and reason; belief that no one could be so shameless as to perpetrate such fraudulent claims; and "sensible" recourse to the opinion that there must be "some other explanation":

All this was inspired by the principle—which is quite true within itself—that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation.

What women experience in the Trumpian abusive subculture parallels what the disabled experience — particularly the denial — but nobody is quoting us. As the previous article in this series argued:

This is all too familiar to those of us who are disabled. We wonder why "funny things" keep happening to us. We feel vaguely guilty—that we must have done something wrong. Eventually, we reluctantly come to realize that it isn't us. The problem is "normal" social attitudes toward those who bear stigma. But when we attempt to talk this over with our "friends" and family, they pooh-pooh our concerns ... It is all in our heads. We are only imagining that we are the target of unjustified social disapproval. To think that way is to be disloyal to the community. Our attitude is antisocial—no wonder those around us disapprove of us (this is the stigma Catch-22).

Ms. Goldberg continues:

Marie, a 30-year-old massage therapist in Virginia [says] "The truths that we experience as women are denied. It really brings out the victim mindset: These things keep happening, but nobody will actually say that they’re happening, nobody will acknowledge anything is happening ..."

Years ago, in Internalized Discrimination: You're Not Supposed to SAY That, this was the situation:

We who write this remember that most of our lives we ourselves kept silent. And there is an internal struggle against convention every time we [feel we ought to speak out]. A struggle, ... against the tendency to feel guilty about having been honest about a situation which is widely covered up.

As the emergence of a 2005 tape revealed that a major political party's presidential candidate treats half the population as a group of people who may readily be subjugated, demeaned, degraded, and abused, what On Liberty calls "social tyranny" (approximately page 3) is still alive and well.

 

For women, and for the disabled.