Cross posted at Workplace Prof Blog:

Michael Connolly (Univ. of Surrey (UK)) provides this not-so-good news for disability rights advocates from across the pond. Michael’s analysis, “The House of Lords Narrows the Meaning of Disability-Related Discrimination,” appears in Green’s Employment Law Bulletin (Emp LB 2008 Issue 86 August 2008 1-5 ISSN 1352-2159) and is available on Westlaw.

Here’s a taste:

The House of Lords’ decision in Lewisham Council v Malcolm [2008] UKHL 43 concerned the meaning disability-related-discrimination in the British Disability Discrimination Act 1995 (DDA 1995), which is functional equivalent of disparate impact. It centred on the housing provisions of the DDA 1995, but the judgment, overruling two long-established principles, is of great significance to the Act’s employment provisions. Under the DDA 1995, disability-related-discrimination is defined as less favourable treatment for a reason related to a person’s disability, which cannot be justified. The House of Lords’ judgment undermined two major and established principles. First, for the challenged treatment to be ‘related’ to the claimant’s disability, the defendant must have known, or ought to have known, of the disability at the time of the treatment. Hence, an employer may now fire a postman with a concealed artificial leg for being too slow, or a secretary with undeclared dyslexia for ‘typing hopelessly misspelt letters’, so long as the employer had no reason to know of the disability.

Second, when identifying if the treatment was ‘less favourable’ the correct comparator is a person in the same circumstances save for the disability. Hence, where a restaurant has a ‘no dogs’ rule, the correct comparator is now a sighted customer with a dog, or where an employer fires a worker who is long-term absent because of his disability, the comparator is now a worker without a disability who was long-term absent. The rejected job applicant who could not type because of arthritis is now compared to a job applicant who could type. Until this case, long-standing case law considered that all these examples should raise a prima facie case to be decided at the justification stage. The judgment is questionable, for no better reason than it has reduced disability-related discrimination to disparate treatment, which is catered for elsewhere in the Act.

Interesting to consider in comparison how disparate impact and disparate treatment are considered under the ADA. DI claims are cognizable under the ADA (Raytheon), but given the number of such claims brought (forget those won), it might be America and the UK are similar as regards disparate impact claims.