Training Outline

3.1 Standard Lecture: Disability in Legislation (15 minutes)

• Begin this section by asking participants to identify some examples of grounds for discrimination. Record responses on flipchart paper. Stress to participants that legislation prohibiting discrimination is now regarded as an essential element of the response to employment discrimination. The object of non-discrimination legislation is to prohibit discrimination on the grounds of disability, as well as other grounds as identified by the group.

• Using Transparency 39 briefly outline some of the concepts of non-discrimination legislation such as non-discrimination, equality of opportunity, equal treatment, and affirmative action which have been discussed in Module 2; and reasonable accommodation and disproportionate burden which will be discussed in this module.

  Non-discrimination: ILO Convention No. 111 concerning Discrimination (Employment and Occupation) defines discrimination as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (Article 1(a)); or such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organizations, where such exist, and with other appropriate bodies (Article 1(b)). However, any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 2).

  The UN Convention on the Rights of Persons with Disabilities defines discrimination on the basis of disability as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation (Article 2).

  Equality of opportunity and treatment in employment: Two aspects of equality in employment are important: equality of opportunity and equal treatment. Equal opportunity means having an equal chance to apply for a particular job, to be employed, to attend educational or training courses, to be eligible to attain certain qualifications, to be considered as a worker, or to be considered for a promotion in all occupations or positions; including persons with disabilities. The importance of individual and group differences is acknowledged and account is taken of external barriers experienced by disabled people, which may inhibit social participation. Equal treatment refers to entitlements in pay, working conditions, security of employment, and so on. The promotion of equality requires dynamic continuous efforts and the implementation of concrete measures, and is a step beyond the prohibition or elimination of discrimination. ILO Convention No. 111 concerning Discrimination (Employment and Occupation) 1958 and Recommendation No. 111 concerning Discrimination (Employment and Occupation) 1958 set out relevant international standards.

  Reasonable accommodation: Disability can sometimes affect an individual's ability to carry out a job in the usual or accustomed way. The obligation to make a reasonable or effective accommodation, or the right to be accommodated, is often found in modern disability non-discrimination law. Disability non-discrimination legislation increasingly requires employers and others to take account of an individual's disability and to make efforts to cater for the needs of a disabled worker or job applicant, and to overcome the barriers erected by the physical and social environment. This obligation is known as the requirement to make a reasonable accommodation. The failure to provide a reasonable accommodation to workers and job applicants, who face obstacles in the labour market, is not merely a bad employment practice, but is increasingly perceived as an unacceptable form of employment discrimination. The law should define closely what is meant by reasonable accommodation, so that misinterpretation is avoided and employers clearly understand what they must do. Reasonable accommodation is defined in Article 1 of the UN Convention on Rights of Persons with Disabilities as meaning necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The provision of a reasonable accommodation is an individualized measure that does not need to be temporary in nature – in fact, it could be provided for an individual for the duration of his or her employment. It should be distinguished from an affirmative action measure aimed at the favourable treatment of groups. The duty to provide a reasonable accommodation should not be confused with the duty to comply with general accessibility and occupational health and safety standards.

  Disproportionate burden: the 'defence' or justification for not accommodating a disabled person needs to be drafted carefully. Otherwise, unscrupulous employers would have recourse to this in order to avoid any obligation. Much litigation might ensue. The fact that the workplace or work schedule would be inconvenienced clearly does not amount to a 'disproportionate burden'. In practice, the question as to what constitutes a disproportionate burden very much depends on the context of the case concerned, and is not merely dependent on the financial costs of an accommodation or financial compensation schemes. It depends on such factors as its practical implications, effects on the overall work process, number of disabled workers already employed and length of the envisaged employment contract.

  Affirmative action measures: sometimes called positive action – seek to actively promote the principle of equal opportunity for members of disadvantaged and under-represented groups by granting these members some form of preferential treatment. Positive action is traditionally perceived as a response to structural or institutional discrimination experienced, and as a justified exception to the principle of equal treatment. In other words, affirmative action is not discrimination. Affirmative action measures seek to promote equality of opportunity and are aimed at overcoming structural disadvantage experienced by groups. Such measures are not intended to cater for the needs of single individuals and are thus distinct from Reasonable Accommodation. Affirmative action measures are temporary in nature, and are intended to last until there has been compensation, or for catching up from a structurally disadvantaged position.