When is it not discrimination? - Victoria Bartle

 

As a mostly invisibly disabled woman I don’t feel discrimination often. I can ‘pass’ as able bodied and I have a tendency to hold myself in a way that doesn’t invite judgment when I am using disabled parking spaces and toilets on days when I don’t need my walking aids, so I haven’t experienced direct ableism from people in public. I have felt microaggressions and indirect ableism from systemic issues like barriers to accessing services, tickets or events but direct, obvious, person-to-person discrimination, I haven’t experienced since I was working.

 

In a previous job I was told that I couldn’t continue in my current role as I wasn’t able to work full time due to my health. I’d had a couple of months off and was doing a phased return to work when I was told that I had to decide to either go back full time, before I and my Doctors felt that I was ready, or take 2 steps down and work in admin. I decided to put my health first and moved to an admin role. Unfortunately I never got back to the level of health that I needed to work full time and had to continue to reduce my hours due to my decreasing mobility and increasing pain and fatigue. This led to my facing redundancy as the company made cuts, which was exhausting and draining and exactly what I didn’t need when I was facing some tough challenges with my health and trying to come to terms with becoming disabled. Once I’d left, I realised that a lot of the stress and anxiety that I’d been experiencing was removed. I’d been in a highly toxic environment for the past few years and the ways in which the company dealt with my disability was not how I’d want other people to experience becoming disabled whilst working. It felt like discrimination because it was. I spoke to a lawyer; he took the case and we ended up at a tribunal where the judge decided that they had been discriminatory in their actions.


Other times discrimination isn’t so clear cut, and my most recent experience doesn’t feel like overt discrimination, but an underlying assumption of what disability looks like and how it affects people. 


Discrimination is defined as being treated differently and worse because of a protected characteristic that you have. These are race, age, gender, gender reassignment, disability, marriage, religion, pregnancy and sexual orientation and it is illegal to discriminate on these grounds. The law also distinguishes between direct and indirect discrimination. Direct discrimination is characterised as being against who you are, who people perceive you to be, and who you are associated with. Indirect discrimination is a practice, policy or rule that negatively affects someone who has a protected characteristic.


I’ve written quite a lot about ableism (discrimination against people with disabilities), it’s impact on those of us with disabilities and the systemic issues that have become embedded in our society due to historical treatment and attitudes towards people with disabilities. How we have been seen as ‘less than’, worthless objects of pity and derision or potential inspirations showing the tenacity of the human spirit when in reality we are just people with some stuff to cope with. The world simply needs to be accessible and inclusive and we can move away from these stereotypes and be seen as the individuals that we actually are. 

The Equality Act of 2010 made discrimination against certain people covered by the 9 protected characteristics illegal, and we can see attitudes changing towards minority groups. The world is inarguably becoming more inclusive, although with some huge challenges still ahead of us. Though the equality act does include disability as a protected characteristic, there is a loophole of ‘objective justification’ which can excuse ageist and ableist discrimination if the person/institution can show that the discrimination is reasonable in order to protect others, run a business, create an efficient service or to make a profit. 


One of the examples on the Citizens Advice Bureau website is having a fitness test as part of the recruitment process to become a firefighter. This, in essence, is both ageist and ableist as people with disabilities, or who are older, will be less likely to be able to pass the test. The ‘objective justification’ rule, though, means that they can retain the test as it is there in order to ensure that firefighters can manage the physical aspects of the job. Fair enough? Yes, obviously. 


But the numbers of disabled people who are unemployed are huge and not all disabled people are harbouring a deep desire to join the emergency services..  Figures from 2020 show that disabled people are almost twice as likely to be unemployed than able bodied people, and I cannot believe that it is because this amount of people with disabilities are actually unable to work. 


In the case of my recent rejection I can see it as direct discrimination against me and the perceived barriers they’ve attached to my description of myself as disabled.  It could also be seen as indirect discrimination against all people with disabilities.  But, as the role I applied for would leave me responsible for the welfare of others, it could fall under the objective justification rule... So I’m in a quandary of whether it is actually discrimination, or not.


Most of my friends see it as direct discrimination. They are fully outraged on my behalf and want me to fight against the decision. My family see it as a fair and objective decision… and I’m sitting on the fence. 


I feel as if the decision is wrong. I don’t know if it’s discrimination or not, but I can also see the reasons why they made it. My disability does present limitations… but is that discrimination or objective assessment of the facts?


Discrimination, by definition, is emotive.  There are very few people who haven’t experienced it in some form.  In fact, the 9 protected characteristics leave little of the population uninvolved. Discrimination can be immediately impactful or accumulatively debilitating. It can be life changing and controversial as individuals have different reactions to it.


I try very hard not to discriminate. I was brought up to believe that everyone is equal, important and have the same rights and freedoms that I experience. Being an ally to the disabled community, as well as supporting all minority groups, means that discrimination needs to be identified and challenged, but how are we meant to do that when I can’t even be sure if something is discrimination?


Under the law, the only two characteristics which can be challenged under the objective justification rule are age and disability. Saying that I didn’t get a job because I need to work reduced hours, have longer breaks and work from home when that is not part of the job can be classed as discrimination. However, it can also be argued that if my adjustments would impact the effectiveness of service delivery or profit, then it is a lawful decision. 


Interestingly, declaring yourself as disabled is something that you have to do in order to prove discrimination. If someone couldn’t reasonably be expected to know about your disability, then they can’t be accused of discrimination. This is troubling as privacy is something that we all expect. We want to be able to tell our stories, secrets and histories as and when we choose to do so. However, when it comes to discrimination this is not possible. You need to inform people of your protected status and then they have the obligation to not discriminate against you. 


I’m watching lots of American TV dramas at the moment where they are highlighting racism and systemic bias. It’s making me more aware of how this also relates to ableism. In a recent episode of The Good Doctor, one of the characters said that, as a Black woman, she spent a lot of time adjusting herself in order to make white people comfortable. This rang true with me in terms of my disability as I do spend a lot of time and energy trying to make able bodied people feel comfortable. 


Realising that something is an issue is the first step towards removing discrimination, followed by making changes, then hopefully eliminating the discrimination and normalising the ‘other’. Having a loophole in the law that allows ageist and ableist discrimination under certain circumstances is unacceptable and ensures that we will never be seen as ‘normal’ and capable of participating in society in which ever ways we want to. How can we move to a place where we don’t need to announce our disabilities, visualise them for others and make other people comfortable with our ‘otherness’ through our words, attitudes and actions when the law doesn’t support us? 


When people call out discrimination, in any form, they can be labelled as aggressive, combative, blowing things out of proportion, taking advantage of their difference or simply being too sensitive, so challenging discrimination becomes a challenge in itself. When I decided to raise a legal case against a previous employer for disability discrimination it was seen by friends with disabilities as brave and making a difference for others who have had the same problems. However, people without disabilities saw it as money grabbing, making a fuss about nothing, causing problems and using my disability as an issue . Why should they have to do more? 


This is a tough tightrope to walk as we attempt to integrate with society, as well as raise awareness for disabilities and make an impact in peoples minds as to how disabled people should be treated. A big part of this challenge is that we require equity and not equality. Equality doesn’t make us equal, equity does, and this is an unusual concept for people to understand as most minority groups have and do ask for equality. Disabilities are varied (lots are invisible) and each individual will require different adaptations, adjustments or understanding in order to fully access the world. And though this makes it all the more complicated for others to comprehend and adapt to, it also highlights that blanket rules and applications don’t always offer the support that they need to. 


I’m not fully sure yet if I’m currently being discriminated against or not, but I think that I need to seriously ask the question both of myself and of the organisation I’ve been working with.   Asking questions, checking and challenging is the only way that progress can be made towards  a more equitable society.