Training Outline

2.4 Standard Lecture: The Location of Disability within Legislation (45 minutes)

  • Highlight for participants the existence of several options for how disability non-discrimination can be incorporated into legislation: constitutional law (concepts laid out in the Constitution of any given country that describes States’ responsibility to their citizens and the citizens’ rights guaranteed by the State); civil law (those related to the private rights of individuals and to legal actions involving these); labour law (the laws or codes that refer to issues of employment); and criminal law (those dealing with the commitment of a crime such as theft) or penal law (those which prohibit an act and impose a penalty for the commission of it). Governments may choose either to incorporate it in one approach or to take a multi-track approach, depending on the scope of the issue to be addressed.
  • Explain to participants the highest level of legislation is “constitutional law”. Emphasize that the placement of non-discrimination says much about the importance of the issue in society. Using Transparency 18, outline the types of laws and different forms that provisions can take.

    The Brazilian Constitution of 1988 provides one example where the rights of people with disabilities are explicitly mentioned. All the chapters in the Constitution dealing with the rights of citizens and the duty of the Government have articles that specifically mention people with disabilities. The public service obligations to people with disabilities are spelled out. In addition, the Constitution prohibits any kind of discrimination concerning hiring criteria or wage differences as far as people with disabilities are concerned. Furthermore, the publication of the new Federal Constitution in 1988 meant that States and cities had to update their legislation to include articles about the rights of people with disabilities.

    Continue by helping participants understand that a national constitution is commonly the highest law of the country and binding on all State authorities. Laws and policies should therefore be in conformity with the constitution. Use Transparency 19 to highlight some countries that have included disability in their constitutional provisions. Reinforce for participants that constitutional provisions send out an important message regarding the status of people with disabilities within the national legal order and seek to guarantee that other laws as well as policies conform to the constitution. Before referencing specific country examples, remind participants that the enforceability and effect of constitutional rights depends on the wording used and the legal culture and system in a country.

    Explain to participants that without specific reference to disability in legislation, the rights of people with disabilities are not guaranteed. Describe for participants that there are three ways to distinguish constitutional provisions. Using Transparency 20 (and referencing additional examples on page 10 of the Primer), explain that the first requires the State to address the needs of and/or to take special measures to promote the societal integration of people with disabilities.

    Using Transparency 21 (and additional examples on page 11 of the Primer), explain that the second way is to prohibit discrimination on the grounds of disability.

    Using Transparency 22 (and additional examples on page 12 of the Primer), explain that the third way is to create oversight bodies for the enforcement of constitutional rights, like Ombudsman Institutes and/or Human Rights Commissions.

  • Explain to participants that a second approach for incorporating disability non-discrimination provisions is to use civil and labour law. Laws can take the form of non-discrimination laws or laws that confer employment rights, such as quota laws. Using Transparency 23, highlight possible options for the scope of the law.
  • Summarize the final approach of criminal or penal law. Explain that this approach involves fines and imprisonment in the proven case that discrimination actually occurred. Stress that this approach is not particularly effective in conferring rights to employees with disabilities since they have to prove that employers intended to discriminate. Mention that such provisions can send a strong dissuasive message.

    Use Transparency 24 and highlight the French Penal Code, Article 224, explaining that each national system has its own approach to criminalization of social issues. Further, highlight countries with penal law provisions prohibiting discrimination on the grounds of disability. These include: Finland; France; Luxembourg and Spain. In addition, those countries (except Luxembourg) have also introduced anti-discrimination provision in other sections of their legislation.

    In closing, reference that some states that have adopted civil and labour law provisions rather than criminal law statutes concerning persons with disabilities, nevertheless include criminal or administrative penalties within these laws.

    OPTIONAL EXERCISE (60 minutes): Begin this exercise by separating participants into three small groups. Assign each group a category of legislation (constitutional law; civil and labour law; and criminal or penal law). Explain to each group that they have 30 minutes to review the type of law they have been assigned and identify the positive and negative attributes for that specific approach to non-discrimination legislation. Each group should identify a facilitator who will keep them moving through the exercise as well as a recorder to document the positives and negatives that they identify. Finally, each group should identify a reporter who will then report their findings back to the larger group. At the conclusion of the report, conclude by emphasizing to participants that the “best” approach to creating non-discrimination is dictated by the desired outcome.

    NOTE: Possible pointers for participant consideration are included on pages 13-14 of the Primer.