Regulation 3 EA (D) R 2010: Institutionalising a Stereotype?

Regulation 3 EA(D)R 2010: Institutionalising a Stereotype?

 Author:

Harry John Matthews

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I. Introduction

On the 10^th of May 2001, Tobias Mason was medically diagnosed with depression and prescribed antidepressants.[1] He originally took recreational cocaine but became addicted shortly after his diagnosis. He was ashamed and failed to disclose his addiction to his employer, Hutchinson 3G.[2] When his symptoms worsened he took sick leave from work and attempted suicide.[3] He survived and a rehabilitation centre took him in, teaching him that his conditions were beyond his control. Enlightened, he unashamedly disclosed his addiction to Hutchinson 3G and was summarily dismissed for failure to disclose a medical impairment and extended absence.[4] The Employment Appeal Tribunal held that as his depression was a disability, which is a protected characteristic under The Disability Discrimination Act 1995, he was entitled to an unfair dismissal claim.[5]

In a hypothetical example, Jim Smith has an argument with his mother wherein she tells him she has never loved him. Jim is a recreational cocaine user but becomes addicted after the argument. Eventually, his addiction worsens and he takes sick leave from work before attempting suicide. Upon recovery, he discloses his condition to his employer and is dismissed for failure to disclose a medical impairment and extended absence. The Employment Tribunal rejects his unfair dismissal claim because addiction is expressly excluded from constituting an impairment by The Disability Discrimination (Meaning of Disability) Regulations 1996. As impairment is a necessary ingredient for establishing a disability and subsequent discrimination claim,[6] Jim’s claim is abrogated before it is even considered.

It is objectionable that Jim was left unprotected despite suffering the same discrimination as Tobias. Both are dismissed after disclosing their addictions. Although Tobias is diagnosed with depression, his subjective experience is not necessarily different to Jim’s. Jim may have had undiagnosed depression, or he may have suffered just as much as a result of his addictive symptoms despite otherwise being mentally healthy. Nonetheless, Tobias’ result validates that he deserves to work, whereas Jim’s result suggests he is inadequate for work.

When the Equality Act 2010 codified The Disability Discrimination Act 1995 and other existing anti-discrimination legislation, The Disability Discrimination (Meaning of Disability) Regulations 1996 were consolidated in The Equality Act 2010 (Disability) Regulations 2010 (EADR). During parliamentary debate over the new regulation, the UK Drug Policy Commission (UKDPC) used an analysis of evidence to propose that substance dependence should be expressly included in disability discrimination legislation.[7] Regrettably, their suggestion was put aside following the release of an unrelated report and the exclusion was subsequently brought forward without further comment into the EADR.[8]

Conditions that are excluded from constituting an impairment for the purposes of The Equality Act 2010 are hay fever, exhibitionism, voyeurism, substance addiction, a tendency to steal, a tendency to start fires and a tendency towards sexual and physical abuse.[9] Addiction is the only condition that can be considered in the event it derives from a medical prescription.[10] As there is no diagnostic distinction between addictions that arise from prescriptions and those that arise from individual autonomy, it suggests that the exclusion was motivated by a negative perception of addicts.

This essay will firstly oppose expressed justifications for the exclusion of addiction from disability discrimination legislation with reference to medical literature, alternative jurisprudence, and studies demonstrating the pernicious nature of discrimination against addicts. Secondly, it will briefly demonstrate that the application of stereotypes to disability discrimination legislation results in problematic outcomes. Thirdly, it will identify theoretical, doctrinal, and pragmatic legal barriers to the inclusion of addiction within contemporary anti-discrimination legislation and highlight ways in which they may be overcome. Finally, it will conclude that the current law unsatisfactorily institutionalises the stigmatisation of conditions that are elsewhere categorised as mental disabilities.

II. Preliminary Justifications for the Exclusion of Addiction

The explanatory memorandum on the EADR explains that the exclusion was for “public policy reasons, for example, to avoid providing protection for people where the effect of their condition may involve anti-social or criminal activity. Or… because they are not conditions that are generally recognised as disabilities.”[11]

It is submitted that both of these reasons are demonstrably false. The first is based on the assumption that addicts are likely to engage in anti-social or criminal conduct. This ignores that many addicts are upstanding citizens. Using a probabilistic causal connection to inform a universal standard by which all people are equally judged will inevitably result in inaccuracy. Frederick Schauer demonstrates this as the kind of logic that concludes all dogs are disruptive on the basis that some dogs are disruptive.[12] It is inaccurate to link some addicts to anti-social conduct and use this as a justification for excluding all addicts from anti-discrimination legislation. Even if this logic held up, the law can protect depressives who are criminals, so it is aberrant to exclude addicts from protection on the basis that they are criminals.

The irrationality of this justification is more understandable in light of the regulation’s cultural and political backdrop. Typing “addicts are” into Google UK returns suggestions such as “weak,” “selfish” and “manipulative.”[13] The popular view of addiction considers it a moral failing that is blameworthy[14] and self-inflicted.[15] As a result, addicts and schizophrenics are the most stigmatised group of people who have mental illnesses.[16] More specific to the employment sphere was a UKDPC study that uncovered only 41% of people would be willing to work with someone who had a history of drug addiction.[17] Another study identified that although substance dependence is rarely confessed during the hiring process, employers will often reject applications because of such confessions.[18] These results indicate both a widespread national reliance on the stereotypes regarding addiction and the extent of pernicious discrimination against them.

In an Australian discrimination case, methadone addiction was ruled a potential disability under the Australian Disability Discrimination Act 1992.[19] Subsequent public anger incited the development of the Disability Discrimination Amendments Bill 2003, which was designed to preclude addicts from any legal protection for discrimination. Only passionate lobbying from legal and medical professionals was able to shut it down.[20]

Sophie Moreau contended that a fear of a public backlash similar to this motivated the ruling behind the Canadian case of Vrend v Alberta, wherein the claimant was rejected any legal recourse for sexual discrimination.[21] William Lucy additionally observed that the judges could have been swayed by “objectionable prejudice and stereotypes.”[22] Likewise in the case of addiction, the exclusion may have been informed more by stereotypes and a fear of political backlash than sound policy decision-making.

The second justification for the exclusion ignores that substance dependence is recognised as a disability in both medical literature and foreign jurisprudence. The two empirically validated international systems of mental health diagnosis, the International Classification of Diseases[23] and the Diagnostic and Statistical Manual of Mental Health Disorders,[24] classify addiction as a disability. This is because addiction is often encouraged by genetic predisposition.[25] It can also result from social dislocation, which occurs more commonly in disadvantaged socio-economic circumstances.[26] Other causes include military service, as military veterans are more likely to develop addictions after service,[27] and experience greater social and financial harms.[28] A tendency towards long-term substance addiction can even develop in babies due to a mother’s prenatal smoking or drinking.[29] All of this evidence suggests that addiction is a mental disability that is not necessarily self-inflicted,[30] yet it remains unexplored in parliamentary debate.[31] Simon Flack has bemoaned that politicians have adopted “fragile stereotypes and moralistic assumptions,” instead of grounding policy in contemporary science.[32]

Elsewhere, this extensive medical literature has informed jurisprudence in Canada,[33] Australia,[34] some American states[35] and international law,[36] resulting in the categorisation of addiction as a disability. The assertion that addiction is not “generally considered a disability” is false, unless the definition of “generally” is so heavily circumscribed as to be meaningless.

III. What is Wrong with Excluding Addicts from Anti-discrimination Law?

Regardless of the exclusion’s justification, the outcome is egregious. William Lucy conceptualises law in a way that demonstrates this theoretically. He opines that law can, albeit not necessarily, rely on identical abstract conceptualisations of individuals that are all judged to the same standard, subject to limited exceptions.[37] It is submitted that disability discrimination law uses this approach. Under The Equality Act 2010 people are considered identical; for example, people who drink coffee are considered identically to people who do not. They are then objectively judged to the same standard, namely whether they have a physical or mental impairment with substantial, long-term effects on normal day-to-day activities. Lastly there are limited exculpatory claims, for example, an employer can demonstrate that their discriminatory conduct was a proportional means of achieving a legitimate aim.

Unfortunately, problems can arise when these identical conceptualisations of people are informed by stereotypes. Sophie Moreau explains that stereotypes arise when a group captures “an essential feature of certain other individuals” and believes it defining enough “to render unnecessary any individualised consideration of their characteristics or circumstances.”[38] In the case of addicts, Parliament has found anti-social conduct to be their defining characteristic and has resultantly enacted a blanket exclusion on the consideration of their other particularities.

When stereotypes are applied to law, they can impose burdens and restrict the autonomy of the stereotyped group based on arbitrary and irrelevant grounds.[39] This can lead to entrenched power imbalances and stigmatisation.[40] Addicts are usually socio-economically disadvantaged,[41] and consequently, the current law perpetuates a form of socio-economic power imbalance. Lucy argues this imbalance is manifested through the denial of legal recourse for discrimination on the basis of stereotypes, which can lead to oppressive power relations. The blanket exclusion of a particular group through denial of legal remedy results in legislative gaps in protection, which he argues “will not be made impossible by law’s abstract judgement, nor even challenged by it, unless the gap turns on objectionable stereotypes.”[42] In this case, law’s abstract judgement has allowed for a legislative gap in the protection of addicts. Accordingly, this gap must be challenged, as it is based on objectionable stereotypes that perpetuate and institutionalise the stigmatisation of addicts. Until this is done, addicts will continue to suffer social harms that marginalise them and exacerbate their condition.

The above sections have argued that there are insufficient preliminary justifications for the exclusion of addiction and that social harms are caused by it. It is therefore next important to consider whether addiction can be realistically included in anti-discrimination legislation, and this will be done by analysing legal barriers to the inclusion of addiction. Resultantly, the rest of this essay will primarily concern explanations regarding what these barriers are and ways in which they may be overcome.

IV. Barriers to the Inclusion of Addiction in Disability Discrimination Law

A.     Can Addiction be excluded on Theoretical Grounds?

Addiction is defined as a disability in medical literature, but to be included in law it is salient to demonstrate that it can also be defined as a disability under the established theoretical models of disability discrimination law, namely, the medical and social models.

The social model emphasises that limitations of opportunity occur in a social environment that is unresponsive to the needs of people who have impairments. In this context, “disability” is considered a limitation of one’s opportunities to take part in society on an equal basis with others due to social or environmental factors.[43] “Impairments” are, meanwhile, long-term limitations of an individual’s functions that differ from the commonplace.

These definitions facilitate the inclusion of addiction, as addiction can constitute an impairment whilst societal barriers, such as discrimination, can constitute a disability. Furthermore, focus on the societal barriers that prevent addicts from reaching their potential could shift emphasis away from addiction as the cause of problems and help improve public perceptions of them.[44]

Unfortunately, there are concerns regarding the practical implementation of addiction into a social model framework. Modern society would struggle to establish an environment where addicts suffered no social disadvantage. It is contended that this applies to most mental illnesses. In the case of Nottingham CC v Meikle, Mrs Meikle had her sick pay cut in half after she took 100 days of sick leave. She took the time off because her vision was failing and she was unable to do her job.[45] Under section 20 of the Employment Rights Act 1996, the court ruled that the employer was under a duty to make reasonable adjustments such as to use larger, easier-to-read fonts for her documents.

Whilst physical adjustments can generally be made for physical disabilities, there are far fewer reasonable adjustments that employers could make for addicts. Article 5 of the Equal Treatment Framework Directive states that there is no duty to make adjustments that would “impose a disproportionate burden on the employer,”[46] and The Equality Act 2010 has been chiefly interpreted in line with this directive. Many of the adjustments designed to remove the social barriers hindering addicts would be disproportionate. For example, employers could allow indefinite lengths of paid sick absence to give time for addicts to recover; however this would firstly place a disproportionate burden on the employer, and secondly not necessarily help the alcoholic recover.[47] These were the arguments that caused a claim for extended lengths of paid sick leave to fail in Griffiths v SSWP.[48]

Additionally, removing the social and environmental barriers preventing the inclusion of people who have mental health issues could not, for example, cause a suicidal depressive to want to continue living and working. It is therefore submitted that a treatment focussed on curing their mental health issue would be far more effective. Impairments that people can recover from are better tackled with a focus on curing the impairment itself and this should be reflected in the law. It does not necessarily follow that the law would encourage the perception that impairments are a negative reflection on the individual; instead impairments may be seen as surmountable barriers in allowing individuals to become themselves and achieve their potential.

These reasons suggest that the medical model of disability would be better suited to the inclusion of addiction. This is the model domestically incorporated by The Equality Act 2010,[49] which forces individuals to fulfil the requirements of disability before they can gain legal protection. The medical model looks at disability as a direct consequence of an individual’s mental or physical impairments and the medical evidence presented in section II indicates that addiction could also be considered a disability under this definition.

It can be argued that in the case of addicts, focussing on their addiction rather than the discrimination they experience could perpetuate their stigmatisation. Nevertheless, institutionalising the protection of addicts will more likely encourage the view that they deserve protection and help dispel the notion that addiction is a self-inflicted impairment. Law is an imperfect mechanism for effecting cultural change, but granting addicts anti-discrimination rights could challenge cultural and societal expectations.[50] As Axel Honneth and Charles Taylor contend, “being recognised as a rights-bearing citizen is a necessary condition for achieving subjectivity, self-realization and self-identity.”[51]

Despite practical difficulties, addiction can be implemented into contemporary disability models and manages to satisfy their definitional requirements for what a disability is. These theories resultantly present no compelling obstacle to the inclusion of addiction in disability discrimination law.

B.     Doctrinal Issues regarding Addiction as a Disability

For legal purposes, there will need to be a distinction between minor addictions and addictions that constitute disabilities. Regulation 3(2) of the EADR allows addiction to be included as a disability where it arises from a medical prescription. This means that Parliament has already instructed the courts to respond ad hoc to definitional difficulties regarding addiction as they arise. Whether addictions to porn, food or gambling could be considered disabilities is therefore a matter of court discretion and lies outside the scope of this essay.[52] It is however recommended that the courts should adopt a specific, narrow interpretation to avoid undermining the severity of the term “disability” and to avoid opening legal floodgates to trivial claims.[53]

The next issue concerns how addiction could be included within the duty to make reasonable adjustments under section 20 of The Equality Act 2010. The courts have not engaged in debate regarding whether a disability is self-inflicted because this would open up all disabilities to inspection.[54] For example, it would be beyond judicial expertise to determine whether religion is self-inflicted, or whether a man who breaks his leg by foolishly jumping out of a tree should be excluded from discrimination protection on the grounds of his culpability. The courts instead resort to arguments based on how reasonable it would be for employers to adjust to the disability.[55] To validate that including addiction as a disability could result in substantive, positive results it must be shown that employers could make reasonable adjustments to incorporate it.

Contemporary treatment for many forms of addiction has been proven effective and cost-efficient in the long run.[56] The use of motivational techniques, as well as combinations of medications and behavioural therapy, can relieve addiction even if coerced.[57] In a recent EAT case, the court held that reasonable adjustments could “include payment for a specific form of support to enable an employee to return to work and cope with the difficulties they had been experiencing there.”[58] It is tenable that reasonable adjustments could correspondingly encompass the payment of addiction treatments. In Griffiths v SSWP the court assessed the reasonableness of adjustments using a cost-efficacy analysis.[59] Based on the evidence above, these adjustments would also satisfy this hurdle.

Another reasonable adjustment, although less effective, could be the extension of sick leave for addicted people. Allowing addicted people periods off work could allow them to focus on their mental health and overcome their addiction. In Griffiths the court clarified that reasonable adjustments can include extensions to sick absences.[60] The espoused test is to determine whether a provision, criterion or practice puts a disabled person at a substantial disadvantage compared to non-disabled people.[61] In the case of sick absences, if a disabled person were given the same amount of allotted sick leave as a non-disabled person, they would still be disadvantaged because their disability would make them more likely to run out of time. An adjustment to remedy this disadvantage would be to allow addicts longer periods of time off work.

Regrettably, as was previously highlighted, allowing extended sick leave gives no guarantee that addicts will recover or even help them integrate into society. This issue was brought up in Griffiths, where Mrs Griffiths would require long periods for future extensions to sick absence. Long extensions would be costly, and not necessarily effective in resolving her issues. Her claim resultantly failed after a cost-efficacy analysis determined the adjustments unreasonable.[62] This means that concessionary absences would have limited application in addiction cases.

It should, however, be noted that case law is still emerging in this area and the scope of reasonable adjustments for sick absence remains an enigma. In Information Technology v Carranza, Judge Richardson noted that section 20 was designed to compel affirmative action on the part of the employer and that it was perhaps overused because it was recently implemented and unique to disability.[63] Section 15 was more applicable to cases regarding extensions to sick absence, as it was focussed more on compelling employers to make allowances for disability. In Griffiths, the court concurred with this analysis.[64] These obiter comments demonstrate that the law in this area remains subject to potential future change. Due to cost-efficacy arguments, the courts may be more lenient on addicts who can demonstrate that they used their sick leave to attend support groups.

This speculation is strengthened by an observation of the UK’s supranational commitments. The UK ratified the United Nations Convention on the Rights of Person with Disabilities (UNCPD) in 2009.[65] Anna Lawson interpreted Article 5 of the Convention as compelling a wider range of adjustments than currently allowed under UK law,[66] which would mean that future interpretation could be more lenient in favour of addicts. The EU has also ratified the Convention. As the UNCPD and The Equal Treatment Directive use a liberal definition of disability in line with social model characteristics, the UK is under more pressure than ever to expand its disability protections. It remains to be seen whether addiction will be included as a disability under EU law or Article 1 of the UNCPD,[67] however EU efforts to harmonise Member State legislation in line with international commitments suggests a move towards a more liberal interpretation of disabilities.[68] This means that eventually, the UK’s supranational commitments may compel the inclusion of addiction as a disability anyway.

It is finally worth noting that protecting addicts under anti-discrimination law would create a multiple constitution of addiction in UK legislation.[69] Although this creates doctrinal problems, these problems could create pressure to reform other areas of law that simplify addiction as a moral failing. As this would require a lengthy discussion of other legal fields, it remains outside the scope of this essay.[70]

C.     Can Addiction be excluded on Pragmatic Grounds?

Considering the frequency of addiction, including it as a disability could open the judicial floodgates to claims. EU law, in considering the definition of disability under the UNCPD, established that severe obesity could be a disability.[71] Although the extent to which obesity can amount to a disability is narrowly interpreted, it demonstrates that the EU courts are willing to put aside floodgate claims to some extent in order to meet their international commitments.

Meanwhile, other widespread mental illnesses are domestically recognised as disabilities. Parliament has precluded some conditions from consideration on the basis of floodgate claims.[72] It is contended that this was unnecessary, as the courts are better equipped to weigh equality law aims against pragmatic floodgate concerns and that Regulation 3 EADR is accordingly nugatory when it comes to tackling them.

Finally, there are concerns that addiction could be difficult to prove due to the costs of proof and falsified claims. This concern could again be applied to other widespread mental disabilities. In Goodwin v The Patent Office, Justice Morrison noted that many people would underplay their own disabilities to the detriment of their claims.[73] He hence advocated a lenient, purposive approach to proof that takes social context into account. This could be suited to addiction where many people will be ashamed to express the full extent of their symptoms.[74]

Although there are pragmatic concerns regarding the inclusion of addiction as a disability, it is submitted these concerns can be applied to many mental disabilities, such as depression and schizophrenia, which are already recognised under the Act.[75] As Parliament has not disbarred these illnesses from constituting disabilities, pragmatic concerns present no compelling case as to why addiction should be expressly excluded from consideration under The Equality Act 2010.

V. Conclusion

Typing “schizophrenics are” into Google UK returns results such as “evil,” “violent” and “dangerous.”[76] Fortunately, disability discrimination law allows the courts sufficient quasi-legislative flexibility to avoid the misapplication of this stereotype.[77] Regulation 3 of the EADR precludes any such flexibility for the consideration of addicts. This is despite a large body of evidence demonstrating both that addiction is a disability, and that addicts suffer widespread discrimination on the basis of stereotypes.

There are no insurmountable legal barriers to the inclusion of addiction within the contemporary domestic framework. Just like in claims based on other mental disabilities, the courts could remedy issues of proof, definitions and floodgates. A variety of reasonable adjustments could be enforced under section 15 or section 20 of The Equality Act 2010, allowing addicts the means to recover and work on an equal basis with their peers. It is further possible that pressures from the UK’s supranational commitments will eventually necessitate the future inclusion of addiction.

Anti-discrimination law recognises that unacceptable outcomes result from normal thought processes experienced by the majority of society and correspondingly seeks to interrupt them. These thought processes mean that people are often treated like they are an example of something else and this deprives their individuality. Because some addicts are criminals, Parliament has concluded that all addicts are criminals. This has left them dehumanised, marginalised and stigmatised. Regulation 3 of the EADR institutionalises the exact thought processes that anti-discrimination law is designed to interrupt and should not be maintained.