Disability discrimination act. US experience sets the scene for UK employers

The Disability Discrimination Act 1995 came into force on 2 December 1996. It outlaws discrimination against people with disabilities when providing them with goods and services and in virtually all areas of employment.

Many law firms are affected because all employers with 20 or more employees are covered by the Act. However, a surprising number of legal practices do not understand the legislation or its practical implications. This is particularly true when dealing with the implications of dismissing an employee on the grounds of ill health.

The Act prohibits discrimination against disabled persons when in employment or applying for jobs. Many of its provisions are similar to those found in race and sex discrimination legislation, but there are a number of important differences:

the Act does not cover indirect discrimination;

less favourable treatment of a disabled person is not unlawful if it can be justified;

an employer is under a positive duty to make reasonable adjustments to premises or to working arrangements to prevent a disabled person being at a substantial disadvantage;

positive discrimination is allowed;

unlike other areas of discrimination, where the race or sex of a person is rarely in question, determining whether a person is disabled for the purpose of the legislation is highly complex.

The Act defines a person as being disabled if “he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Each word in this definition is further defined by the Act proper; in the Disability Discrimination (Meaning of Disability) Regulations; and in the guidance notes on the subject issued by the Secretary of State.

In addition to the problems of defining disability, the employer's defence of justification and the introduction to the UK of the concept of “reasonable adjustment” is bound to give rise to a great deal of litigation.

The new law is modelled closely on the Americans With Disabilities Act (ADA) which came into force in July 1992. Although the legal system in the UK is different, the way in which disability legislation has functioned in the US may provide an indication of the disabilities that will be accepted as being covered by the legislation and the types of claims likely to be made in this country.

The statistics in this article are based on the period from July 1992, when the ADA first came into force, until March 1996, during which time 63,000 cases were filed. However, the number of actions is rising rapidly, with 32,000 cases expected to be filed in the 1996 calendar year alone.

Many employers think disability problems in the workplace primarily concern job applicants and people who are wheelchair users or visually impaired – disability problems that only involve wheelchairs or white sticks.

These are obvious disabilities, so it is easier for the employer to appreciate what steps can be taken to accommodate them, such as the provision of ramps, the use of Braille and so on. However, the US statistics show that less obvious disabilities, or those that are difficult to diagnose or treat, give rise to the greatest number of cases.

In the US, the main types of impairments giving rise to cases are:

back complaints – 18.5 per cent;

emotional/psychiatric complaints – 12.4 per cent;

neurological complaints – 11.4 per cent;

complaints concerning “extremities” – 8.7 per cent;

heart complaints – 4.2 per cent;

diabetes – 3.5 per cent.

This means that 50 per cent of all disabilities, actual or alleged, fall into the most difficult categories to recognise, treat and accommodate.

The following US figures on the types of claims made by those alleging discrimination show that unsuccessful job applicants are less likely to bring a complaint than those who are part of the existing workforce:

discrimination in hiring – 10 per cent;

termination – 51.7 per cent;

failure to provide reasonable accommodation – 27.4 per cent;

harassment – 11.7 per cent;

discipline – 7.7 per cent;

redundancy – 4.8 per cent.

Over the past two years in the US there has been a substantial rise in the number of complaints on the grounds of failure to make reasonable accommodation, the same concept as reasonable adjustment in UK legislation.

The increase in complaints seems to be caused, at least partly, by a rise in the number of disabled employees, their increased expectation of non-discriminatory treatment and their knowledge of the measures available to help them. In addition, the kneejerk response of employers to dismiss employees who become disabled appears to have lessened.

As with race and sex discrimination claims, there is no limit on the amount of compensation that can be awarded to successful claimants in the UK. Fear of unlimited damages claims, as well as adverse publicity, will make avoiding litigation a prime concern for all employers, including law firms.

In the US the level of damages is set by a jury. Awards often exceed US$1 million, with lawyers receiving 40 per cent contingency fees.

Although few cases had gone to jury trial by March 1996, US$93,842,960 had been paid in reported settlements and awards in the previous three years.

Examples of unusual and contradictory cases in the US include:

the termination of employment of an in-house lawyer for behaving irrationally and carrying a gun which was held to be unlawful discrimination because the employer failed to determine whether the employee's mental illness was the cause of his behaviour and whether it was treatable;

the provision of a full-time 'reader' for a blind lawyer but the refusal of paid leave to another blind person to train his guide dog.

Discrimination on grounds of disability will be a very difficult new area of law for all concerned. In many respects the problems raised differ from existing race and sex discrimination law.

On the basis of the US experience, the main battlegrounds will be those involving (a) emotional, psychiatric and neurological conditions, and (b) the nature and extent of adjustments the employer should provide. Events in the US show that we can expect a slow start leading to an ever-increasing number of cases.