Disability Law and Perceptions of Fakery: The Need to Restore Public Trust in Rights

Doron Dorfman is the Gerald J. Lieberman Fellow | Lecturer, Handa Center for Human Rights and International Justice, Stanford University; JSD Candidate, Stanford Law School

We all frequently encounter disability rights and accommodations created by progressive legislation intended to allow Americans with disabilities to take an active part in civic life.  However, a close examination of the implementation of the legal standards, what Law & Society scholars call “the law in action,” reveals an invisible barrier that jeopardizes the legal aspiration for disability inclusion. People who park in disabled parking spots, use service dogs, move to the front of lines in airports or in theme parks, receive Social Security benefits, or request academic accommodations are often viewed as faking disabilities and abusing the law. This everyday apprehension that people will “pretend” to be disabled and exploit disability rights, which I refer to as the “fear of disability con,” is not a new phenomenon. It followed disabled individuals from the days of the Ugly Laws of the 19^th century, which prohibited “unsightly” beggars from appearing in public because of the possibility they will fake disabilities to illicit charity, and is persistent nowadays when disability has officially been recognized as a matter of civil rights.

The fear of disability con affects people with disabilities as individuals and as a group. Persons with disabilities are often subject to harassment or questioning when making use of an accommodation. Disabled people are forced to navigate through new defensive policies by policy makers who seek to address widely held perceptions of fraud and abuse by limiting the scope of the accommodations.

My doctoral dissertation, “Disability Law & Perceptions of Fakery,” uses legal analysis and social science methodology to investigate the nature, scope and effects of the disability con stereotype.

Through a host of methodological approaches, including econometric analysis of a self-administered survey and a series of survey experiments, conducted with nationally represented samples totaling over 4,000 Americans, as well as over 45 in-depth interviews. My work highlights that the fear of disability con is an important yet previously unexplored barrier that Americans with disabilities confront when trying to use their legal rights.

On March 26, 2018 I was honored to present my research as part of the Harvard Law School Project on Disability and to receive excellent feedback from Professor Michael Stein and the bright students in his disability law class.

My findings suggest that the fear of disability con crosses contexts, and legal rights. The stereotype of “faking disability” follows people with disabilities wherever they go: from educational settings and parking structures to Social Security offices and when using a service animal. Nearly 60 percent of Americans with disabilities in my nationally representative samples feel that others question their disability. The interviews explore how a chilling effect is created, preventing people from using accommodations, such as disabled parking placards, because of the fear of being harassed by other laypeople. Further, using an experimental design, I am able to show that the fear of disability con is not driven by self-interest, the need to share scarce resources. Rather, people tend to be suspicious of individuals who they believe are not deserving, regardless of the resources available in the situation. The fear of disability con is a matter of perceived fairness, justice, and ethics, and is not merely a simple cost-benefit analysis.

My work calls for better articulation to the general public of disability law, and of disability as a social phenomenon. My findings show that there is no need to increase public resources to increase public trust of people with disabilities. People are willing to wait in line longer or spend more time looking for parking if they believe that the person receiving the accommodation, oftentimes on their account, is in fact deserving. Therefore, the real need is to better communicate the current legal mandate to the public and fit its view of deservingness to that of the formal law.

Frequently, disability law and disability studies are thought to be a field of interest solely to those with some kind of a personal relationship to disability. However, disability is a category that all people may enter and leave throughout their live. It is also ubiquitous in our everyday lives, from parking lots, to office buildings, to schools. Disability surrounds us, as does disability law, everywhere we go. Laypeople are often required to enforce disability laws and interact with claimants. Those facts make disability law everyone’s business. To strengthen public trust in people claiming disabilities and accommodations, not only those with a direct personal relationship with disability, but the general public should be educated about disability and disability law.

Public awareness of the rules and regulations concerning disability will help the public understand the law’s safeguards. It would reduce the suspicion and stereotype resulting from fear of disability con and would increase trust in disability law and its beneficiaries.