September 2: More on Archibald v Fife

In response to my draft paper on Archibald v Fife, a friend writes:

>I think your conclusion on Archibald is basically right - that the case was much less significant than passing the DDA was in the first place.  But we ought also give credit to the US, where the Americans with Disabilities Act 1990 (the ADA) was the real radical step (albeit the courts have narrowed the definition of disability unhelpfully in that jurisdiction). 

>I often see people divide discrimination law into three tranches:
*  formal equality laws (Race Relations Act 1976, Sex Discrimination Act 1975, Equal Pay Act 1970);
*  equality laws that embed reasonable adjustment - i.e. the DDA 1995;
*  laws that go beyond reasonable adjustment to place positive equality duties on bodies - s. 71 RRA as inserted by the Race Relations (Amendment) Act 2000, and s. 49A DDA as inserted by the DDA 2005.

>In my view, positive discrimination first came into GB law in a meaningful way with the 1995 Act, though limited positive action is permitted under earlier statutes.  It remains a distinctive feature of disability law - the recent regulations on sexual orientation, religion/belief, and the planned regulations on age equality take a more familiar approach.  In the McColgan example you mention, I suspect that failing to employ a disabled candidate when (after reasonable adjustments were in place) the disabled and non-disabled candidates were equally qualified would probably be found to be unlawful less favourable treatment by a tribunal.

>You may be aware that govt has launched a discrimination law review looking at simplifying the statutes.  Not much has happened yet (it's a DTI lead) but all these questions will no doubt need to be readdressed.

>Incidentally, I think one of the reasons the DRC supported Archibald is that they find the Scottish courts much more hostile, and wanted a lead case up there.  Interesting given most perceptions of the different values placed on equality north and south of the border!

The only small comment I'd add is that while I think they're right to stress the importance of the positive duty (especially in light of the changes which will come into effect next year under the DDA 2005), I think it would be wrong to see other the other laws which embody a positive duty (ie the RRAA 2000) as having a greater practical content than the DDA 1995 with its concept of 'reasonable adjustment'. For most black activists in the industry in which I work, the RRAA is a considerable disappointment, having done very little to shift the balance against institutional racism.

But that, as they say, is another story.