The Invisible Law of Visible Difference: Disfigurement in the Workplace

Abstract

The Equality Act 2010 provides that people with severe disfigurements are deemed to be disabled. Through the lens of the Convention on the Rights of Persons with Disabilities and models of disability, this article highlights a number of difficulties with the Act's approach, including the problematic 'severity' threshold, the issue of complex conditions which include both disfigurement and functional impairment, and a lack of provision for progressively disfiguring conditions. Analysis is then provided of opportunities to mitigate these difficulties, specifically the concept of perceptive discrimination, and the application of the duty to make reasonable adjustments to disfiguring conditions. It is argued that the law needs to be reformed and options for change are presented.

Should the Equality Act 2010 Be Extended to Prohibit Appearance Discrimination?

“…If we are correct that the Act is committed to that principle, then these are serious shortcomings. Second, having to make the argument in court that being regarded as unattractive has rendered one unable to carry out one's daily activities as a result of the severe mental health problems it has caused would be potentially humiliating (Saunders, 2019;Wolff, 1988Wolff, , 2010. It would require admitting that one has severe mental health problems as a result of the reactions of others to one's appearance.…”

“…But these criteria for determining the severity of a disfigurement do not seem to track what ultimately matters from the point of view of the Act. As Hannah Saunders argues, the emphasis on the severity of the disfigurement within the Act cannot be defended on the basis of empirical evidence concerning the effect of more or less severe disfigurements on a person's ability to carry out her normal daily activities, for people with what the guidance would regard as minor disfigurements may experience worse psychological side-effects of appearance discrimination than those with more severe disfigurements (Saunders, 2019).…”

Difficult distinctions in anti-discrimination law: Disfigurement, appearance and disability

“…44 Applying this, although having a disfigurement often does not limit the individual functionally, people with disfigurements do indeed face societal barriers. 45 Many people with a disfigurement face both social 46 and professional 47 barriers and discrimination, and some suffer psychologically as a result. 48 The evidence also suggests that the barriers are not significantly reduced for those with mild or moderate, rather than severe, disfigurements.…”