Fighting discrimination through litigation in the UK: the social model of disability and the EU anti‐discrimination directive

Abstract

The enactment of British and European legislation establishing rights for disabled people is an important step in combating discrimination and social exclusion. However, rights remain empty promises if they are not enforced. Litigation and test case strategies have become an important way of enforcing rights. This article explores why organizations might turn to the courts to achieve their policy goals and finds that this phenomenon is best explained not by the creation of legal bases or an expanding legal opportunity structure but rather by the adoption of the social, civil‐rights model of disability by the disability movement. The social model, with its emphasis on individual rights, equality and reasonable accommodation laid the foundation for litigation strategies. Litigation is able to reduce exclusion through long‐term socialization of norms of equality and through the short‐ and medium‐term creation of incentives which encourage individuals to end discriminatory practices.

Notes

1. This grassroots action has been accompanied by a growing academic literature on the various barriers to inclusion and the experience of disablement. These have been dominated by Marxist, feminist and post‐modern approaches to the issues of disability discrimination. See, for example, Barnes, C. (1991) Disabled people in Britain and discrimination: a case for anti‐discrimination Legislation (London, Hurst and Co. in Association with the British Council of Organizations of Disabled People); Hales, G. (1996) Beyond disability: towards an enabling society (London, Sage); Morris, J. (1991) Pride against prejudice: transforming attitudes to disabilities (London, The Women’s Press); Morris, J. (1996) Encounters with strangers: feminism and disability (London, The Women’s Press); French, S. (1994) On equal terms: working with disabled people (Oxford, Butterworth Heinemann) and Zarb, G. (1995) Removing disabling barriers (London, Policy Studies Institute).