Discrimination laws: An analysis

What are the strengths and weaknesses of the law relating to either race discrimination, sex discrimination or disability discrimination?

Relating to disability discrimination:

Disability discrimination is legally prohibited and controlled in the UK via two main statutory instruments, the Disability Discrimination Act 2005 (DDA) (previously the Disability Discrimination Act 1995) and the Disability Rights Commission (DRC) Act 1999. Further legislation extends the scope of coverage; for example, the Special Educational Needs and Disability Act 2001 providing children equal access to education regardless of their ‘ability’. The main aims of these legislative pieces is to effectively end discrimination towards disabled people and provide them an egalitarianism in society mainly reflected through equal rights in employment; access to goods, services, facilities, products and places; buying, selling and renting land and/or properties and to maximize ease of use of the public transport system (to be implemented by the government). The law in this area remains rather unclear, however, despite the limited and rather straightforward statutory coverage provided. This opacity has generated a collection of strengths and weaknesses in the law relating specifically to disability discrimination, some of which will be discussed and explored below. These strengths and weaknesses demonstrate how the law is virtually ineffective in attacking such a concept as discrimination because of enforceability. For the purposes of this essay, focus will reside with anti-discrimination in employment.

The greatest weakness in the law in relation to disability discrimination is, as touched upon above, it’s recondite ness. The legislation suffers from the proof problem, qualifying for protection under the Acts. How is a does one define who is and who is not disabled? What is and what is not discrimination? How can you be sure you are being discriminated against as these tests are all a matter of perception, excepting of course when there is clear-cut objective discrimination like a dismissal or non-accommodation of physical ability (Corker, 1999). With regard to defining who is and who is not disabled the DDA states: those who have “a physical or mental impairment which has a substantial and long-term effect on his ability to carry out normal day-to-day activities” are disabled (DDA 1995 s1.1). The DDA was further extended on April 7th 2005 to include those with some mental illnesses and those suffering from cancer, HIV and MS (multiple sclerosis), yet it did not encapsulate those suffering from depression. The reason given by the Commons for this exclusion was because the illness was re-occurring rather than fundamentally long-term and the DDA only covers those illnesses which are long-term (BBC 2005). Depression may be a severely debilitating disorder and much research has attributed depression with biological roots, therefore being an effect of a physical long-term disability which merely manifests sporadically. Yet the purpose of the DDA, to render those with disabilities equally amongst society by removing the constraints their disability places on them, is lost with depressed persons. Many argue however, that a line must be drawn somewhere in order to prevent the floodgates from opening and every even minor disability, from scraped knees to headaches, to fall subject to the anti-discrimination legislation. 

This lack of definition within definition is supplemented with a series of guidance notes, issued by the DRC, on interpreting the various terms. Yet, as would be perceived, these notes are merely guidance and not fundamental law and therefore have no enforceable effect. Only a judge could make the decisions as to whether or not a person qualifies as disabled. To activate the process of filing and issuing proceedings, paying court fees and actually going to court while waiting for a potentially adverse outcome is not a walk in the park. Of course this is all providing the perpetrator is difficult. This discrepancy between legal theory and practical application is an obvious flaw in the anti-discrimination regulation and will be touched upon again later.

The greatest strength in the law relating to discrimination is its generation of awareness. A simple effect, but a nonetheless extremely important one. Awareness is the first step in a winning battle against discriminating, changing the mind-set of the population en masse. Employers are focused on accommodating the disabled, businesses think more about how effective a disabled person remains. Colleagues are alerted to the fact that a disabled person functions equally well as one who is fully abled if given the right environmental conditions. Yet this legislation may also suffer from institutionalization. When a person is diagnosed as being depressed, checked into an institute and treated by all being depressed then the disorder is perpetuated. On a simpler note, a child who is told they are mentally slow at a young age may begin to live up to that expectation, having been ‘institutionalized’ into stupidity (Cohen, 2002). With physical disabilities this concept applies less but with mental disorders it may have some side effects. Further, even with physical disabilities, many disabled persons attempt to integrate themselves into society as much as possible. This legislation, when implemented as intended may instead cause it to be more difficult for the person to move beyond their ‘pigeon-holing’.  

A further strength in the law regarding disability discrimination is the provisions it makes for those who defend the disabled. It falls under the term ‘victimisation’ in the statute and covers both disabled and able people who have either provided evidence or information in a case of discrimination or brought proceedings of discrimination under the DDA, regardless of whether these proceedings were followed through or not (Corker, 1999 and Halsburys, 2005). This applies particularly in the scope of employment, where colleagues may become involved. This provision enhances ‘fair justice’ as the ‘witness’, in this instance the colleague, will know they are protected from being discriminated from by statute and can speak up. 

However. The case is never that straightforward. A fundamental weakness with this facet is also the proof problem. What is discrimination, who is being discriminated, who is disabled and so on. Further, a point must be made on the incompatibility (often) between theory and practice. It is fine for a business to change the working area of a disabled person, allowing them greater benefits than other workers, but it doesn’t often follow that the abled workers will not continue to socially discriminate against those who are disabled who are now, due to the anti-discrimination legislation even bigger targets through their labeled, identification parade like treatment. Students suffering from dyslexia often receive special treatment through time extensions during exams and even the possibility to take exams on a computer versus writing. Many have argued that this should be abolished as ultimately they will have learned the same amount than others and just because they have a learning disability does not mean that they should receive special treatment over others, especially not those who are of lower than average intelligence. Ultimately could this also not be classed as a disability? Conceptually the anti-discrimination regulations would work well to enhance egalitarianism but how individual people react to it, thereby shaping the environment in which we work, is questionable. The silent treatment, passing work on to others, not being invited to travel and to particular meetings can all feel like discrimination but an abled person can equally be passed over due to lower performance ratings (Butler and Drakeford, 2003). How to find the link between corporate behaviour and discrimination is a problem. The behaviour is also often a matter of perception and some people may be more sensitive than others, reading everything against a backdrop of disability.  

The anti-discrimination legislation has another side to it too. The party who is to accommodate the disabled and implement the regulations. This area of law is effective in so far as it clearly lays out for an employer, or other persons who interact with disabled people, what it is that they must do to comply. It also imposes limitations. Employers with 20 or less employees do not need to comply (DDA 1995 s7.1). This prevents the regulation from causing a financial hindrance to those businesses which are smaller and potentially therefore generate less turnover. This is important so as not to become a cause of possible financial and economical ruin. There is a fine balance to be met between protecting the discriminated and imposing rules on the discriminator. 

Acceptance and equality within society are fundamental facets, and at that perhaps even the most important ones, that define and shape our society (here in the UK) yet capitalism, consumerism, competition and entrepreneurship ultimately generate the economical and fiscal foundations upon which our high standard of living is based. The weaknesses this area of law experiences are perhaps rather just reflections of a balancing act, attempting to maintain the core backdrop to our standard of life while dabbling at moving the concept of total egalitarianism from ideology to reality.

References:

BBC, April 7 2005. Peers back down on Disability Law. London: BBC News. 

Berlins, M. and Dyer, C. (1994) The Law Machine (4th Edition). Harmondsworth: Penguin.
 
Butler, I. and Drakeford, M. (2003) Social Policy, Social Welfare and Scandal. Basingstoke: Palgrave.

Cohen, S. (2002) Folk Devils and Moral Panics (3rd Edition). London: Routledge.

Corker, M. (1999). The UK Disability Discrimination Act – disabling language, justifying inequitable  social participation. In Silvers, A. and Francis, L. (2000). 10th Anniversary of Americans with Disabilities. New York: Routledge.

Disability Discrimination Act 1995, Disability Discrimination Act 2005. Queen’s Printer of Act of Parliament (internet version). The Stationery Office Limited (hardcopy). London.

Halsburys Laws: Disability Discrimination. Butterworths Legal Series, 2005. www.butterworths.co.uk/halsburys

Slapper, G. and Kelly, D. (2003) The English Legal System (6th Edition). London: Cavendish.

Smith, O. (2000) Challenging the “Closed Class” Concept of Disability under Disability Discrimination Legislation. Liverpool: University of Liverpool, School of Law