A Re-Appraisal of the Bifurcation of Discrimination Into Disparate Treatment and Disparate Impact: The Potentiality of Other Regulatory Mechanisms
Posted: 30 Jul 2011
Date Written: July, 29 2011
The primary regulatory vehicle employed by the Americans with Disabilities Act to give effect to equality is to direct people in specific relationships not to discriminate. The prohibition against discrimination is categorized as either disparate treatment or disparate impact. This bifurcated approach has been adopted in many Western jurisdictions, such as in the United Kingdom in the Disability Discrimination Act 1995 (UK) and in Australia with the Disability Discrimination Act 1992 (Cth) (although the terms direct and indirect discrimination rather than disparate treatment or disparate impact are employed). This bifurcation is just one regulatory vehicle to prohibit discrimination. The Canadian Supreme Court in British Columbia (Public Service Employee Relations Commission) v BCGSEU  3 SCR 3, at  rejected the bifurcated approach on the basis this approach is "malleable" and "unrealistic". The court unanimously concluded that the "bifurcated analysis gives employers with a discriminatory intention and the forethought to draft the rule in neutral language an undeserved cloak of legitimacy." The recent adoption by the United Nations of the Convention of Persons with Disabilities (CRPD) and changing social norms creates the potential to revisit the best regulatory mechanisms to reduce discrimination. Supporters of the CRPD accept that states and laws should alter the operation of the free market to reduce discrimination and ensure persons with disabilities can exercise their human rights. This paper will analyse the operation of legislative regulatory vehicles that drive this social transformation. Scholarship surrounding regulation mechanisms demonstrates that some vehicles can create employer resistance, some compliance and yet others can generate above compliance. Identifying and advocating for the most effective regulatory mechanism can have far reaching consequences for the ability of persons with disabilities to exercise their rights. This paper will introduce concepts pertaining to basic regulatory vehicles and explore how different vehicles may be employed to maximise the transformational potential of laws promoting social equality.
Keywords: CRPD, Disability, Discrimination, social equality
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