Socially constructed hierarchies of impairment: the case of Australian and Irish Workers' access to compensation

Objectives: Socially constructed hierarchies of impairment complicate the general disadvantage experienced by workers with disabilities. Workers with a range of abilities categorized as a disability are likely to experience less favourable treatment at work and have their rights to work discounted by laws and institutions, as compared to workers without disabilities. Value judgments in workplace culture and local law mean that the extent of disadvantage experienced by workers with disabilities additionally will depend upon the type of impairment they have. Rather than focusing upon the extent and severity of the impairment and how society turns an impairment into a recognized disability, this article aims to critically analyse the social hierarchy of physical versus mental impairment. Methods: Using legal doctrinal research methods, this paper analysis how Australian and Irish workers compensation and negligence laws regard workers with mental injuries and impairments as less deserving of compensation and protection than like workers who have physical and sensory injuries or impairments. Results: This research finds that workers who acquire and manifest mental injuries and impairments at work are less able to obtain compensation and protection than workers who have developed physical and sensory injuries of equal or lesser severity. Organizational cultures and governmental laws and policies that treat workers less favourably because they have mental injuries and impairments perpetuates unfair and artificial hierarchies of disability attributes. Conclusions: We conclude that these sanist attitudes undermine equal access to compensation for workplace injury as prohibited by the United Nations Convention on the Rights of Persons with Disabilities.This line of study was supported in part by grants from the Administration on Community Living (ACL) and the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR), in the U.S. Department of Health & Human Services for the NIDILRR Southeast ADA Center Grant #90DP0090-01- 00, the NIDILRR Community Living and Supported Decision-Making DRRP Grant #90DP0076, and the NIDILIRR Americans with Disabilities Act Participatory Action Research Consortium (ADA-PARC) Grant #H133A120008; and, by the Office for Disability and Employment Policy (ODEP), in the U.S. Department of Labor. For additional information on these projects and related funding, see http://bbi.syr. edu. Valuable assistance and comments were received from Joseph Lelliott, Graeme Orr and Shivaun Quinlivan. The program of research herein is supported, in part, by grants to the Burton Blatt Institute at Syracuse University (For additional information on BBI’s funding sources, see http://bbi.syr.edu); Special Studies Program funding from the TC Beirne School of Law; and from the visiting fellow program at the Centre for Disability Law and Policy, National University Ireland, Galway, IE.peer-reviewed2018-11-2