The complex relationship between the concepts of equality and difference is central to an understanding of the concept of equal opportunity in the context of disability. The central tension between the concepts of equality and difference arises from the fact that the traditional approach to equality which has dominated our anti discrimination laws has been
115 Fairness and Freedom. Supra no. 8
116 The Equalities Review identified equality in terms of equality of outcome, equality of opportunity, equality of process and equality of worth; Equalities Review ibid. On her part, Professor Fredman identifies the different widths of equality in terms of formal equality, equality of result and equality of opportunity. S. Fredman, supra no.2 Pp. 1-14.
117 S. Fredman and S. Spencer, ‘Towards and Outcome Focused Positive Duty’ supra no.102.
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based on the notion of equal treatment or treatment as consistency.118 The notion of equal treatment asserts that persons with disabilities are not relevantly different and that, like race and gender, the human difference of disability is irrelevant and its use in the allocation of benefits or rights is invidious. The paradox here is that disability discrimination is rooted in the fact that, historically, persons with disabilities have often been seen as different and inferior, incapable of performing the routine tasks of life.119 Equal treatment may treat persons with disabilities as individuals and rejects treating them as inferiors but this may amount simply to ‘privileging the dominant norm.’ In this context, the Public sector duty to promote equality reinforces the anti-discrimination ideal by valorising the group and group identity of persons with disabilities by requiring public authorities to positively accommodate the difference of disability.120
The ‘minority rights’ perspective of disability is inspired by theoretical analysis of racism and depicts persons with disabilities as a discrete and insular minority who have suffered from a history of discrimination and who are not only relatively powerless politically but are also socially excluded.121Its thrust lie in the claim that persons with disabilities call, not for charity, but for rights based on the need to redress unfair prejudice and a history of discrimination and disadvantage.122 Its dependency on viewing disability as a group-defining characteristic seems particularly relevant to the notion of substantive equality. The Minority Rights perspective is underpinned by the notion of ‘identity politics’. ‘Identity politics’ seeks to transform the historically stigmatized attribute of disability into a positive aspect of group identity.123 It operates to define legally persons
118 S. Fredman, ‘Disability: A Challenge to the Existing Anti-Discrimination Paradigm? Supra no.8; H. Hill and R. Kenyon, Promoting Equality and Diversity: A Practitioner’s Guide, (Oxford, OUP 2008) p.5
119 The doctrine of ‘equal but separate’ in the context of race was rejected in the US case of Brown v.
Board of Education, 347 US 483, 495 (1953).
120 For an exploration of the equality/difference divide and anti discrimination provisions on disability within the context of the EU Framework Directive, see G. Quinn, ‘Disability Discrimination Law in the European Union’ in H. Meenan, supra no. 38 pp231-277
121 S. Fredman, supra No. 8 pp 219-248.
122 J Bickenbach, ‘Minority Rights or Universal Participation: The Politics of Disablement’ in M Jones and A Basser Marks (Eds), Disability, Divers-ability and Legal Change. Cambridge, Kluwer Publishing 1999.101-116.
123 I. Young, Justice and the Politics of Difference, (Princeton, Princeton University Press (1990). Also, S.
Fredman, ‘Disability Equality: A Challenge to the Anti-Discrimination Paradigm….’ supra no. 8
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with disabilities by way of their disability. It builds on the concept of difference, arguing that persons with disabilities are so fundamentally different as to attract judicial scrutiny on the basis that their disadvantage position in society potentially gives rise to issues of equality and discrimination.
Quinn124 has pointed out the policy dilemma on disability inherent in the equality/difference divide, stating that ‘to take the difference into account means doing justice to the difference but at the possible price of perpetuating stereotypes about the nature of difference. To ignore the difference means avoiding perpetuating stereotypes but at the price of failing to do justice to the reality of the difference’. However, the equality agenda encapsulated in the conventional antidiscrimination paradigm on disability equality has moved beyond seeing discrimination as merely stigmatic or prejudiced treatment and now encompasses a more substantive notion of equality. The advancement registered by the Public sector equality duty with regard to the notion of ‘difference’ could be analysed from three main perspectives;
First, the duty is premised on the explicit acknowledgement that persons with disabilities are different and that A commitment to advancing equality of opportunity for this group of persons requires a focus not on sameness or identical treatment but on difference which takes account of their disabilities.125 The duty recognizes that equality of opportunity for persons with disabilities will sometimes require treatment which is different rather than treatment which is identical. The concept of equal opportunity carries with it an obligation on public authorities to ensure that, where appropriate, persons with disabilities are treated differently from persons without a disability. Treating them in the same way as the non-disabled would be to fail to recognize significant differences in their circumstances and would result in a denial rather than an advancement of equality of opportunity for this group of persons.
Second, the duty emphasizes the importance of responding to the differing needs and circumstances of persons with disabilities as a pre-condition of the effective advancement of equality of opportunity for this group of persons. The principle of
124 G. Quinn, ‘the Human Rights of People with Disabilities Under the EU Law’ supra no.11 p. 290.
125 Section 149 (4) Equality Act 2010.
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advancement of equality of opportunity for persons with disabilities involves taking positive measures to meet their needs which are different from the needs of persons who are not disabled.126
Third, the focus of the equality duty on difference and the taking of positive measures in the context of disability do not imply a rejection of the principle of equal treatment. The principle of equal opportunity for persons with disabilities does not amount to positive discrimination as it is not intended to create an artificial opportunity where none might otherwise exist. This point is evidenced in the fact that Section 149(6) Equality Act 2010 states that compliance with the duty is not to be taken as permitting conduct that would otherwise be prohibited by or under any of the anti-discrimination or equality clause of the Act. The concept of equality of opportunity must be balanced against the overall objective of the legislation which is to eliminate discrimination and to promote equality amongst the various groups in the community. Thus, like substantive equality, the concept of equality of opportunity lends content to the operalisation of the notion of equal treatment by stipulating that whether a person has a disability or not is relevant to whether they may be treated differently.127