A judicial outcome analysis of the Disability Discrimination Act : a windfall for employers?

Abstract

November 2005 was the tenth anniversary of the passing of the Disability Discrimination Act (DDA). This study presents a judicial outcome analysis regarding employment using decisions taken and made public by appellate courts during the eight years since the Act’s implementation. This survey replicates a corresponding study undertaken in the USA by Colker during the first eight years of the implementation of the Americans with Disabilities Act (ADA) (1990). As distinct from Colker’s study, this paper presents data under four headings: jurisdictional/procedural tests; disability tests; discrimination/justification tests; enforcement tests. The study shows that jurisdictional/procedural and disability tests have prevented disabled employees from gaining the protection offered by the DDA. Furthermore, the overall success rate of 63% for employers suggests that the problem lies within the rules themselves, rather than in their application by tribunals and appellate courts. Thus the DDA has been a windfall for employers and, it is argued, will continue to be so for the next decade, despite the amended post‐2004 DDA provisions. It is noted that the overall failure rate of 63% is lower for employees in the UK than the 87% in the USA, as quoted by Colker. Further research on judicial outcomes is recommended regarding all major disability anti‐discriminatory and equal opportunity legislation.

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