‘Disability’ and ‘Discrimination’ in the Context of Disability Discrimination Legislation: The UK and Australian Acts Compared
| Author | Jennifer Hamilton |
| DOI | 10.1177/135822910000400302 |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
International Journal
of
Discrimination and the Law, 2000, Vol. 4, pp. 203-245
1358-2291/2000 $10
© 2000 A B Academic Publishers. Printed in Great Britain
'DISABILITY' AND 'DISCRIMINATION'
IN
THE CONTEXT
OF DISABILITY DISCRIMINATION LEGISLATION: THE
UK AND AUSTRALIAN ACTS COMPARED
JENNIFER HAMILTON*
Law
School, University
of
Strathclyde,
UK
ABSTRACT
Both the Commonwealth
of
Australia and the UK now have in place anti-disability
discrimination legislation. In the example
of
the Commonwealth, that legislation
reflected a positive desire by the community and the government to eliminate dis-
ability discrimination in public life. In the UK on the other hand, the legislation
introduced represented something
of
a compromise between activists, who wanted
stronger legislation, and the government who up until that point had wanted none.
Historically anti-discrimination legislation in both jurisdictions has been similarly
structured; containing similar grounds
of
discrimination and also a similar concep-
tualisation
of
discrimination. However, partly no doubt as a result
of
government
antipathy, the UK model
of
legislation departs from the model used in earlier anti-
discrimination legislation in a number
of
key respects: the legislation contains a
new conceptualisation
of
discrimination; and, it introduces for the first time in anti-
discrimination legislation a general 'defence'
of
justification for all forms
of
dis-
crimination. Additionally, the definition
of
'disability' employed in the Act is very
narrow, concentrating upon a person's functional limitations in relation to 'normal'
activities.
The purpose
of
this article is to contrast the concepts
of
'disability' employed
in the Acts, and to consider the effectiveness
of
both the 'traditional' and the new
conceptualization
of
discrimination contained in the Commonwealth and UK Acts
respectively. While disability under the UK Act is reflective
of
the government's
antipathy to the new legislation, the reconceptualization
of
discrimination is, on the
whole, a positive feature, moving away from the principle that equality equals
'sameness', to one which gives recognition to disadvantage and places an explicit,
positive, obligation on employers to redress that disadvantage.
Other areas
of
difference between the two Acts -such as in the area
of
'defenses', the development
of
enforceable Standards (under the Commonwealth
Act), and methods
of
enforcement will be covered in a subsequent article.
INTRODUCTION
In
1992 and 1995 respectively, the Australian federal government and
the
UK
government introduced anti-disability discrimination legis-
lation, thereby adding disability to sex, marriage and race as the
204
prohibited grounds
of
discrimination in both jurisdictions. These Acts
(both named 'Disability Discrimination
Act')
aim to prohibit discrim-
ination on grounds
of
disability (resulting from physical
or
mental
impairment) in areas
of
public life including employment, access to
premises and the provision
of
goods and services, subject to certain
exceptions and defenses.
No
doubt in part because
of
the close historical connection
between the two legal systems, other, earlier
UK
and Australian
(State and Commonwealth) anti-discrimination legislation has by and
large tended to
be
similarly structured, with the
UK
Sex Discrimina-
tion Act 1975 providing an initial template. Thus, that legislation is
commonly structured around concepts
of
unlawful
'direct'
and 'indir-
ect'
discrimination, with exceptions in the case
of
'genuine occupa-
tional qualifications' etc., and with enforcement via the private law
route and through a Commission{fribunal, outside
of
the normal
court structure. Underlying this structure is the view that discrimina-
tion is most appropriately challenged through private law mechan-
isms, with the victim
of
that behaviour bringing a private law
com-
plaint against the individual perpetrator.
However, in the case
of
the respective pieces
of
disability dis-
crimination legislation we find a limited departure from this template.
At
first glance this departure is more pronounced in the case
of
the
UK
legislation (hereafter referred to as the
UK
DDA) with its re-
conceptualization
of
what amounts to unlawful discrimination
(moving away from the 'traditional' conceptualization
of
discrimina-
tion as either direct
or
indirect), and with its introduction
of
a general
defense
of
'justification' for all discriminatory behaviour1•
But
it is
also true to an extent
of
the Commonwealth legislation (hereafter
referred to as the Cth
which, while continuing to employ the
traditional conceptualization
of
discrimination nevertheless, like the
UK
DDA, introduces a general defense
of
'unjustifiable hardship'2•
Potentially however, the Commonwealth
Act
presents an opportunity
for a greater departure from the existing template: like the Americans
with Disabilities
Act
(USA) 1990 (henceforth
'ADA')
which speci-
fied that regulations be made setting more specific standards in vari-
ous areas, the Act provides for the development
of
Standards for
various sectors
of
public life (transport, employment, education,
accommodation and the administration
of
Commonwealth laws and
programmes3
).
The
intention is that these Standards should impose
benchmark standards for the organizations to which they relate,
and
when eventually introduced (they are currently being developed), they
will become the primary source
of
rights in these sectors for persons
with disabilities.
No
longer will such persons have to establish
'dis-
crimination' on the basis
of
disability: all that will
be
required for a
successful action is
proof
of
violation
of
a
'Standard'
4•
In
this
205
respect, the introduction
of
Standards represents a move towards a
more 'rights-based' approach to discrimination and away from the
existing 'differential treatment' model.
Part
of
the reason for this departure in both jurisdictions from
the existing template can
be
explained on political grounds, and
partly on the extent
of
the influence
of
the powerful Americans with
Disabilities Act (USA)
of
1990.
The
ADA
outlaws discrimination on
grounds
of
disability (broadly defined) in most aspects
of
public life
(including employment, education, housing, transport, access to
public services). It also requires employers and service providers to
make reasonable accommodation for 'qualified' disabled persons,
subject to a defense
of
undue hardship. That legislation (and pursuant
Regulations) are intended to set out clearly enforceable standards in
order to eliminate disability discrimination5•
In
the UK, supporters
of
anti-disability discrimination legislation
had
proposed the introduction
of
American style legislation, and in
1994 the Civil Rights (Disabled Persons) Bill6 was presented before
Parliament modelled partly on that legislation. Like the American
ADA
it contained a wide definition
of
disability and expressly pro-
hibited direct and indirect discrimination against qualified persons
with a disability and would have required employers, service pro-
viders etc. to make reasonable accommodation for such persons, sub-
ject
to a defense
of
'undue
prejudice' to the operation
of
the
employer's
business (or in the case
of
the providers
of
goods, ser-
vices
or
facilities,
'undue
hardship' to the provider). This Bill
appeared to have widespread support but the government, fearful
of
the cost burden which would be placed upon businesses should that
Bill become law, acted to defeat the Bill but agreed to introduce its
own proposal which became the
UK
DDA
of
19957•
This legislation ultimately represents a compromise between
the 1994 Bill and the government which had, up until that point,
refused to countenance the introduction
of
yet more anti-
discrimination legislation. Thus, while the
UK
DDA,
like the US
ADA
and like the proposed 1994
UK
Bill, imposes
an
explicit posit-
ive obligation on employers etc. to make reasonable accommodation
for persons with disabilities, it nevertheless contains a very restrictive
definition
of
'disability'. Because only persons
who
qualify as dis-
abled
can
enforce the Act, the practical effect
of
this restrictive
definition is to limit the number
of
persons who can require
employers to make reasonable accommodation.
The
Act
also contains
a general defense
of
'justification' rather than
'undue
prejudice/hard-
ship' -the government believing that undue hardship, with its
emphasis
on
cost, would impose too severe a test upon employers.
Employers, the government said, needed to be reassured that other
factors such as disruption, practical difficulty and the nature
of
the
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