Free Law Dissertations - 3.the Disability Discrimination Act 1995 The Dda Also Uses The ‘less
3.The Disability Discrimination Act 1995
The DDA also uses the ‘less favourable treatment’ approach of the RRA and the SDA. This is a new amendment to the Act which was brought in by the Employment Equality Directive in October 2004 so that the Act would cover employment scenarios without the old justification qualification. However, unlike the SDA or the RRA, indirect discrimination is not accounted for but this is compensated by a wider use of the ‘less favourable treatment’ maxim which states that the discrimination is unlawful if it is due to a ‘reason which relates to the disabled person’s disability’ as opposed to ‘on the grounds of disability’. Amendments of this kind and the passing of the DDA 2005, which imposes positive duties on public authorities against discrimination, are part of the strengthening of protection for the disabled.
Part 3 Outside of Legislation Positive Discrimination Policies
Positive Discrimination programs are strictly scrutinised and the Commission for Racial Equality announced in their 1998 reform proposals that there would be support for ‘positive action’ policies at training level but were not in favour of positive discrimination programs. The stance on training is derived from the provisions of the SDA and the RRA, which permit targeted training under s 47 of the SDA and s 37 of the RRA but not where the training is definable as employment. Section 48 of the SDA states that access to facilities for training or encouragement for either gender will not be deemed as unlawful. Section 38 of the RRA permitted some positive discrimination within a 12 month window from the passing of the Act subject to there being no members of a particular racial group in the workplace or a small population by comparison to the full workplace numbers or the area of recruitment by the employer.
In Europe it was held as lawful in the case of Marschallv Land Nordhein-Westfalen that a policy to employ the woman when faced with the choice between a man and a woman for an area of work that was underrepresented by women would only occur when both candidates had been fully assessed and there was no other factor to tilt the balance. The reason for this was that, unlike in the earlier case of Kalanke v Freie Hanestadt Bremen, the policy did not create an automatic priority for women. This is an extremely favourable outcome given that positive discrimination can have the effect of undervaluing the respect of the candidates that benefit from it.
Conclusion
Analysis of EU and UK anti-discrimination law shows that the equality campaign has come a long way from the mixed judicial treatment of the early years.
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