Feb 2008
Direct and Indirect Discrimination
What is direct disability discrimination?
There are now two types of potential direct discrimination claims under the DDA: a 'direct disability discrimination' claim or a 'direct disability-related discrimination' claim.
Under previous DDA 1995 legislation, the first part of the old definition of disability discrimination made it possible to justify discrimination against a person purely because they were disabled.
In other words, while there may have been nothing preventing the individual from doing the job, the employer was still given the opportunity to justify discrimination against the person on the grounds of their disability.
However, the Equal Treatment Framework Directive does not allow justification for discrimination against disabled people purely because they are disabled and while showing justification for such treatment had always been an almost impossible task for public bodies and service providers under the previous provisions, the amended DDA 1995 now makes it explicit that ‘direct discrimination’ in such circumstances cannot be justified.
The amendment now means that 'direct disability' discrimination occurs where a disabled person, with the same abilities as a non-disabled person, is treated less favourably than a non-disabled person was, or would have been, treated in the same or similar circumstances, i.e. the disabled person is treated less favourably, purely because they are disabled and for no other reason.
In these circumstances, 'direct disability' discrimination can never be justified.
Public bodies and service providers also discriminate against NeuroDiverse disabled people if they fail to comply with a duty to make reasonable adjustments imposed on them in relation to the NeuroDiverse disabled person. No justification defence is available for failing to make a reasonable adjustment.
What is direct disability-related discrimination?
Direct disability-related discrimination will occur where a NeuroDiverse disabled person is treated less favourably for a reason relating to their ‘impairments/difference’ (NEURODIVERSITY) than another person to whom that reason relating to disability (NeuroDiversity) does not apply, was treated, or would have been treated, in the same or similar circumstances.
Here the focus is on 'the reason relating to disability(NeuroDiversity)' – how that disability (NeuroDiversity) manifests itself, such as a problem regarding mobility, manual dexterity, etc – not purely because the person is disabled (NeuroDiverse) as is the case in direct disability discrimination.
However, unlike 'direct disability discrimination' which can never be justified, 'direct disability-related' discrimination can be justified, as long as there is a material and substantial reason for doing so.
When is disability-related discrimination justified?
Justification is only permissible in 'direct disability-related' discrimination cases if, the reason for the treatment is both material to the circumstances of the particular case and substantial. 'Material' means that there must be a strong connection between the reason given for the treatment and the circumstances of the particular case. 'Substantial' means, in the context of justification, that the reason must carry real weight and be of substance.
But the existence of a material and substantial reason for disability (NeuroDiversity)-related less favourable treatment is not enough to justify that treatment. As the Disability Rights Commission revised code points out, if there is a material and substantial reason relating to disability which is placing a disabled person at a substantial disadvantage, the public body and/or service provider is under a duty to make reasonable adjustments in relation to the NeuroDiverse disabled person to remove the provision, criterion or practice or any physical feature of premises which is causing the problem.
Justification for disability-related discrimination will therefore only succeed where the public body and/or service-provider can show that it was not reasonable or practical to make those adjustments.
How does the DDA define harassment?
The DDA 1995 did not previously specify harassment as an unlawful act. But now it makes harassment for a reason relating to a NeuroDiverse disabled person's ‘(Neuro)-Differences’ an unlawful act in its own right.
The definition of harassment has two parts: A NeuroDiverse person will have been the victim of harassment where, for a reason which relates to that NuroDiverse disabled person's NeuroDiversity, they have been subjected to unwanted conduct which has the purpose (intentionally) or 'effect' (unintentionally) of violating the disabled person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The conduct will only have the 'effect' of violating the NeuroDiverse disabled person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, if, and only if, having regard to all the circumstances, including in particular the perception of the NeuroDiverse disabled person, it should reasonably be considered as having that effect.
The second part of the definition comes into play where an 'intention' to harass cannot be shown, i.e. any offence or damage caused was purely unintentional and the conduct was not intended to offend, but nevertheless, it had the 'effect' of doing so. In such cases, tribunals and Courts will be required to take into account all relevant circumstances of the situation –- in particular, the perception of the person alleging harassment, when deciding whether it is reasonable to consider that the conduct amounted to a violation of dignity or the creation of an offensive ‘Disabilist’ NeuroTypical environment etc.
In such cases, a 'reasonableness' factor will be applied and while the victim may object, a particularly oversensitive person who unreasonably takes offence at a perfectly innocent comment may not be judged as having been harassed. For example, where, when talking to a NeuroDiverse disabled person about a difficult task, a person (NeuroTypical) says 'those requirements must have created a real handicap for you'.
What is indirect discrimination?
In broad terms, indirect discrimination occurs where a specific provision is applied equally to everyone, but in reality it substantially disadvantages people from one particular category and an individual suffers a disadvantage because the provision is imposed.
Where the NeuroDiverse disabled person concerned is placed at a substantial disadvantage, in comparison with persons who are not disabled, by a provision, criterion or practice, or, any physical feature of premises occupied by the public body and/or service provider, the public body and service provider must make reasonable adjustments, i.e. modify (or even disapply) any provision, criterion or practice or physical feature of the premises, which causes more than a minor or trivial disadvantage.
However, as with the current 'reasonable adjustment' provisions, the duty is only imposed if the public body and/or service provider knows, or could reasonably be expected to know, the nature of the substantial disadvantage being experienced by the NeuroDiverse disabled person.
It is no longer possible to justify a failure to make a reasonable adjustment, where the duty applies. The rules do not allow for any such defence.
All material on this website
Copyright © 2008 MHAG unless otherwise specified.