THURSDAY'S Supreme Court decision invalidating the Equal Employment Bill was not altogether surprising. This is especially so when one compares the Bill to existing international benchmarks.
The last decade or so has seen the enactment of some far reaching legislation on disability discrimination in many countries. The benchmark is widely taken as the Americans with Disabilities Act of 1990 (ADA).
Even Mr John Major's administration conceded (under extreme political pressure) the need for such legislation. His much lambasted Disability Discrimination Act of 1993 - the first in Europe - was still a considerable advance in at least some respects over the Bill invalidated in Dublin on Thursday.
Most of the legislation enacted over the past few years throughout the world shares many distinctive features; features which were either absent or only weakly present in the impugned legislation.
First of all, such legislation is generally kept separate from the body of `ordinary' antidiscrimination law. This may seem a paradox at first, since equality and integration are the cardinal goals of the disability movement and these goals are shared by many other groups.
The justification for separate legislation comes from the fact that although the ultimate goals (equality) are the same, the means used tend to be quite different.
Many discriminated groups are not objectively `different' or, if so, only marginally so. What they require most of all is legislation prohibiting public and private actors from treating them as though they were different. People with disabilities are, however, different.
Not only is legislation of the first kind needed; but legislation `requiring' the would be discriminator to take on board the differences and reasonably accommodate them is necessary.
While one should not exaggerate this difference between the disabled and other groups, it does make sense to place disability at one end of the continuum. This is why most countries have opted for separate disability discrimination legislation as against incorporation into existing antidiscrimination legislation.
There is another reason disability should be kept separate. The intellectual structure of ordinary anti discrimination law makes it ill suited to accommodate a disability perspective.
There is always a risk that by simply adding a disability perspective onto a preexisting template the disability elements become distorted in the process. This whole question - of separate or common legislation - undoubtedly posed a dilemma for the Minister and indeed for many disability NGOs.
Politically, the Minister may well have felt the need to do something now rather than wait for well targeted legislation. With the benefit of hindsight, he might have been better advised to work on parallel legislation.
Secondly, the definition of disability has changed in emphasis over the years. The old approach of defining disability exclusively in medical terms makes some sense in the context of targeting scarce resources at discrete and deserving groups.
However, most antidiscrimination law is not of that variety. Much modern anti discrimination law is not about disbursing largesse; it is about opening doors that have remained arbitrarily shut.
To define disability in this context in medical terms seems to place the `problem' in the person. To open up the definition to `socialise' it makes it plain that people are not problems, they have rights that deserve equal respect.
The insensitive nature of economic and social structures are the `problems' - That is why the American and, to a certain extent, the British legislation move decisively away from medical definitions and towards definitions that look to the obstacles placed in a person's path.
That is why the Minister was heavily criticised in the Oireachtas for remaining with the medical definition. Even the WHO - the original sponsor of the medical approach - is itself moving towards a more socialised definition.
The Minister stuck with the Australian approach, which favours the medical definition. This approach was defended as a better way of handling many ambiguities that were perceived as arising from the then newly enacted American ADA.
However, the Australians did not wait for the details that emerged in regulations issued under the American ADA to clear up these ambiguities.
The medical approach was defended by the Minister as capturing many more people with disabilities than the socialised approach would. This misses the point.
The point of disability discrimination law is not to catch all and sundry but to dismantle barriers actually faced by people with disabilities. The focus is not the constituency groups as such; rather, the focus is the removal of obstacles in the way of equal opportunity. This inevitably has implications for the definition of disability used.
Third, most modern legislation contains the key requirement of `reasonable accommodation' to a person's disability. This is a term that originated in American judicial decisions of the 1970s, and is now given pride of place in the ADA as well as in most other pieces of legislation outside the US.
This is the essential key in making antidiscrimination law work in the context of disability. Without it, such legislation is pitiably impotent. This requirement was not made initially explicit or absolutely plain in the Equal Employment Act. It was added by the Minister during Oireachtas debates.
Furthermore, it was placed in a section of the Act that creates a saver for `positive action'. Since the Bill was not constructed with disability uppermost in mind, there was no immediately obvious place for this requirement.
Fourth, the requirement of `reasonable accommodation' cannot be left dangling in a vacuum. It must translate into certain disability specific things, and these things must be itemised in the body of the Act in fairness to all concerned.
Examples include the adjustment of a workstation where practicable, the reassignment of nonessential functions to enable the essence of the job to be performed, strict regulation of medical tests and of the abuse of any resulting information, etc. This `detail' is contained in the body of most disability antidiscrimination legislation and is amplified by regulations. Such detail was absent from the body of the Bill.
Furthermore, any `reasonable accommodation' requirement should be costed. One of the most remarkable features of US regulatory law is the requirement that rules be costed.
The ADA regulations were costed and both employers and labour strongly support the legislation. It is time to think about a similar requirement under Irish regulatory law.
Fifth, the requirement of `reasonable accommodation' must be balanced against and finely calibrated to the legitimate interests and rights of other parties. It will work only if all sides are satisfied that it will lead to greater and more efficient use of human resources.
The insertion of general let out clauses is patently not enough. For one thing, they give rise to the impression that the exceptions swallow the rule. For another, they give rise to exactly the opposite impression that the rules have no logical endpoint since the exceptions are so open textured.
This was the essence of the Supreme Court ruling on the disability ground. A constitutional referendum is not necessary to reverse this ruling. What is needed is a much more sophisticated balancing of the competing interests at stake.
It is interesting in this context to note that the ADA was accompanied by certain federal tax breaks to allow companies to meet their obligations.
The question of a cutoff in terms of the sized of an enterprise became an issue under the ADA for different constitutional reasons from here. It becomes less important the more the rules and obligations are appropriately calibrated to take into account the exigencies of small firms.
There is, however, considerable light at the end of the tunnel. All main parties are committed to the ideal of equal opportunities for people with disabilities. The Programme of Renewal on which the present partnership coalition is based contained a commitment to introducing a comprehensive Disabilities Act once the Commission on the Status of people with Disabilities had reported. That body has now reported.
Significantly, an appendix to its report contains an outline model anti discrimination law that could be consulted with profit. Fianna Fail issued a major policy statement on disability last year which also pledged support for such legislation.
Ireland has an extremely good track record in the EU on disability. It strongly supported the Commission when the latter issued its communication (policy statement) on disability last year. It helped to steer through a landmark resolution on disability in the Council during its Presidency last December - a resolution that weds all the memberstates to the equal opportunities approach.
It should also be noted that the Constitutional Review Group has recommended amending the equality clause in the Constitution to include the disabled.
The time is therefore right to regroup and go back to the drawing boards.