by Mark C. Weber. New York: New York University Press, 2007. 240pp. Cloth $42.00. ISBN: 9780814794050.
Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: pweizer [at] fsc.edu.
This book, by Mark C. Weber, Vincent de Paul Professor of Law at DePaul University, bills itself as the first legal examination of the law regarding disability harassment. Weber, already the author of a case book on special education law is clearly an expert in the field and brings that vast experience to hand in this slim volume. As noted in the preface, much of the material for DISABILITY HARASSMENT appeared earlier in three law review articles. This book appears designed to bring the author’s thoughts about the shape of disability harassment law together in one place.
The book is divided into nine chapters. The first, entitled harassment narratives, provides the proverbial parade of horribles as Weber recounts the personal circumstances of more than a dozen individuals with disabilities who encountered horrendous treatment in the workplace or at school. The cases that came out of these “narratives” are repeated in later chapters as examples of different legal theories. It is interesting to note that some of these plaintiffs prevailed in various stages of legal proceedings while others did not. None establish important legal precedents. The extreme personal hardships that these people endured do, however, lay the groundwork for the legal preferences of the author which are explored in later chapters.
Chapter Two provides historical context to the exclusion of people with disabilities by drawing on many contemporary works in the broad field of disability studies. The chapter stresses that exclusion and isolation are important parts of the broad concept of discrimination regarding the disabled. Comparing disability harassment to topics as diverse as segregation and the eugenics movement, Weber amply demonstrates that disability harassment is a very real phenomenon and one with significant consequences.
Chapter Three compares disability harassment with race and sex harassment. Weber asserts that the way courts have approached disability harassment is to look for analogies in other forms of harassment. Most often, courts will look to Title VII of the Civil Rights Act of 1964 and the application to race and/or sex as a baseline. Weber then asserts that the Americans With Disabilities Act (ADA) is much broader than Title VII and should not be construed with Title VII in mind. As the ADA was designed not to ensure equal treatment of workers or students (as was Title VII) but rather to require reasonable accommodations for those who cannot be treated equally, the range of conduct prohibited is much greater.
Chapter Four explores new approaches for legal claims in the workplace. Weber points out that in addition to the [*503] prohibitions that both Title VII and the ADA share, the ADA contains an anti-harassment provision which Title VII lacks. Weber’s main argument is that courts have neglected this provision which would open up vast new vistas of potential litigation. Weber explores many cases where this approach has been tried, with mixed results.
Chapters Five and Six expand the discussion from workplaces to schools. Weber recounts many examples and concludes that, while there are many avenues to approach disability harassment in this arena, courts, by and large, have turned a blind eye to these remedies. This is followed by a discussion of new approaches for legal claims in schools, focusing mainly on the Individuals With Disability in Education Act (IDEA).
Chapters Seven and Eight look at possible common-law remedies for disability harassment and then to constitutional objections to anti-harassment policies. Most notably, Weber urges use of the intentional infliction of emotional distress cause of action as one that would be most appropriate for this area of law and then bats aside First Amendment concerns about the approaches discussed.
The concluding chapter summarizes Weber’s arguments in a chapter entitled “An agenda for legal and social change.” This includes vocational services reform, affirmative action for disability, enhancement of special education services, and social reforms.
In the end, this is really what this book is about. The author is promoting a social agenda that calls for legal change. Whether one agrees with the proposals contained herein, they are certainly thought provoking. Since the area of law regarding disability is significantly underrepresented in the literature, this book had the potential to fill an important void. Unfortunately, the book is more polemic than text and is more a reflection of how the author wishes the law of disability harassment to be rather than a neutral recounting of the state of the law as it exists. Throughout, the author applauds courts when it follows his preferred viewpoint. Most of the book, however, is spent chastising courts for not taking the author’s approach. It is filled with quotes, such as “when courts take seriously the harassment that occurs in schools, they have no shortage of legal grounds on which to offer relief. As often as not, however, courts do not take the claims seriously and overlook the clear legal authority, or they invent defenses to block claims against schools and others” (p.61). When courts do not accept Weber’s rationale, it is always the court that is in the dark. For example: “when courts reject arguments for these remedies, the obstacle appears to be the courts’ failure to address the facts as a serious problem and apply widely accepted legal principles” (p.81).
DISABILITY HARASSMENT certainty has a clear thesis, is well written and thoroughly documented. However, I am not sure what the intended audience for the book will be, as it will be of limited use in studying the law in regard to the important civil right issue of its title.
© Copyright 2007 by the author, Paul Weizer.