Constructs of disability and discrimination in anti-discrimination law: a comparative critique of the Americans with Disabilities Act and Ireland's Employment Equality Act
This thesis critiques particular aspects of the employment discrimination protection afforded in the Americans with Disabilities Act 1990 and Ireland' s Employment Equality Act 1998. It addresses specific problems with regard to the operation of the disability non-discrimination system, and it utilises the social model of disability to expose the limitations arising when non-discrimination is adopted as the primary principle of justice and inclusion. The basic premise of the social model of disability, developed from the 1960s, is that disability is a form of oppression imposed upon people with impairments in the way they are unnecessarily isolated and excluded from participation in mainstream society. It refutes the dominance of the medical, individual-limitation construction of disability, which evolved in concert with the welfare state from the nineteenth century. The work begins by tracing the historical development of the category disability as western society moved from feudal ties to a wage-labour capitalist economy. This prompted the establishment of a parallel universe for a large number of disabled individuals. Challenging the hegemony of their displaced existence, the disability movement developed a radical social theory, which shifted the locus of the problem away from impaired bodies and towards the institutional, exclusionary and unchallenged practices of society. ln response to rising inequalities and the political agitation of minority groups, a wave of non-discrimination legislative protections pertaining to disability have been introduced. The concepts of equality and non-discrimination adopted within legal discourse are discussed in order to provide a backdrop against which subsequent analysis of the specifics of the disability non-discrimination system is assessed. The analysis also extends to the constitutional plane and considers the constitutional obstacles to the refonnulated view of disability suggested by social model of disability within disability discourse. Here, the barriers raised by orthodox constitutional reasoning and tradition to the introduction of disability discrimination protection, are addressed. An examination of each jurisdiction' s approach to the distinct and thorny issue of proving disability for the purposes of statutory protection illustrates bow the non-discrimination paradigm continues to sustain and perpetuate the individual, functional-limitation approach to disability-based exclusion. Finally, the reasonable accommodation duty is examined, both as a form oflegal equality and as a tool which "gestures" towards substantive ideals of equality. The discussion considers that anti-discrimination law's reasonable accommodation duties are less extensive than may originally have been conceived. Despite their inclusion of the more expansive equality norm of reasonable accommodation, the limitations that inhere in the disability non-discrimination paradigms, as represented by the ADA and the EEA, provide support for the development of a new synthesis between social model conceptions of disadvantage and equality rights.