Domesticating Disability Discrimination
| Published date | 01 March 1997 |
| Date | 01 March 1997 |
| DOI | 10.1177/135822919700200303 |
International Journal
of
Discrimination and the Law, 1997, Vol.
2,
pp. 183-198
1358-2291/97 $10
©
1997
A B Academic Publishers. Printed in Great Britain
DOMESTICATING DISABILITY DISCRIMINATION
MARGARET THORNTON
Professor
of
Law
and
Legal Studies,
La
Trobe University,
Bundoora, Victoria, 3083, Australia
ABSTRACT
This paper presents a brief overview
of
disability discrimination legislation in Aus-
tralia over the last two decades. The documentation
of
the Australian experience
may be
of
interest to jurisdictions contemplating such legislation. Although a raised
social consciousness concerning disability has engendered remedial and prophy-
lactic developments, a simple progressivist thesis has to be rejected because anti-
discrimination legislation is also sensitive to less positive social moods. Despite the
appearance
of
sophisticated models
of
legislation during the last decade, the conser-
vative political mood
of
the 1990s has seen a growing ambivalence about the
extent
of
support for progressive social measures, mirroring trends
in
other parts
of
the world. The ambivalence subtly ensures that a line
of
demarcation between the
norm and the 'other' remains.
THE
NORM
AND
THE
OTHER
Social elites within Western society have conventionally dis-
played a very ambivalent attitude towards people who appear to be
different from themselves, whether
it
be
in
terms
of
ablebodiedness,
race, sexuality,
or
social ascriptions. Social elites are able to use their
power
to construct normativity in their
own
image and to construct
difference as 'otherness'. I
do
not
wish to suggest that the boundary
between the norm and the
'other'
is static,
but
to stress the psycholo-
gical desire to retain the boundary because a norm has meaning only
by
virtue
of
the existence
of
an
'other'.
Therefore, those who have
constructed a superior sense
of
self
through identification with the
norm have a vested interest in retaining the boundary between the
norm and the
'other',
despite the liberal imperative for change.
Legislation proscribing discrimination against
'other'
emerged in
Australia as a creature
of
the liberal pluralism
of
the 1970s and
1980s, spurred
on
by
UN
initiatives, such as the International Year
of
Disabled Persons
in
1981. The rights-oriented discourse1 that
accompanied lobbies for legislation outlawing discrimination extolled
184
notions
of
diversity and inclusiveness, inevitably corroding, to some
extent, the superiority/inferiority dualism corresponding with the
norm and its implied
'other'
that is continually being produced and
reproduced through academic and social discourse. Adding to the
convolution
in
a workplace context is the notion
of
merit, particularly
faith
in
the idea that there is always an identifiable
'best
person for
the
job',
who invariably approximates the norm (eg. Thornton 1985;
Martin 1987; Burton 1988). During periods
of
economic growth,
however, merit
may
adopt a somewhat more varied hue, facilitated
by
anti-discrimination legislation. Employers are then primarily con-
cerned about the work being done rather than
who
is doing it. The
increased demand for labour provides the conditions for the legitima-
tion
of
the non-discrimination principle. Thus, there can be functional
as well as altruistic, social justice and rights-based justifications for
anti-discrimination legislation. Beneficence, however, tends to dissip-
ate rapidly with a downturn in the economy. There is then pressure
to emphasise otherness as the competition for
jobs
and scarce
resources increases. These pressures, which simultaneously compete
to dissolve as well as to maintain the barrier between the norm and
the other, help to explain both the contingent nature
of
equal rights
for people with disabilities and the contradictions which beset anti-
discrimination legislation.
· While the spirit
of
Australian 'mateship' is well known, egalitar-
ianism tended to
be
formerly restricted to those
whom
I have dubbed
'benchmark
men',
that is,
men
who
were Anglo-Australian, hetero-
sexual, able-bodied, and the invariable comparators in discrimination
complaints. Benchmark
men
have long represented the standard
of
normativity for determining who is entitled to share in social benefits,
including prestigious jobs and educational places.
To
succeed,
'others'
have been expected to model themselves
on
the norm,
even
if
this has meant becoming out-of-focus reflections
of
benchmark
men.
An
inability to conform to the desired standard has confined
women, Aboriginal people, NESB people, gays and lesbians, as well
as people with disabilities, to the category
of
'other'.
It
is
of
course recognised that these categories are rarely dis-
crete: people with disabilities include both
men
and women, as well
as gays and lesbians, Aboriginal people, NESB people, and so on.
Individuals are also shaped
by
age, education and life experience.
Furthermore, the category 'people with disabilities' itself encom-
passes a plethora
of
different conditions. However, liberal legalism
tends to
be
somewhat obtuse about the complex variables that consti-
tute identity (Thornton 1990).
To
complain formally
of
discrimination
requires complainants to stress a single facet
of
their identity
at
the
expense
of
others. This one-dimensionality is underscored
by
both
the legislative texts and the practices
of
interpretation. Complaints
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