Training Outline

3.2 Standard Lecture: The Scope of Disability Law (45 minutes)

• Explain to participants that a growing number of States prohibit discrimination on the grounds of disability, particularly in the field of employment, either through comprehensive laws applying to different groups in the population as a whole, or through disability-specific laws. This shift actually reflects the increasing acknowledgement that disability is frequently used as a reason to exclude people with disabilities and to deny them equal employment opportunities, although the particular circumstances do not warrant such treatment. Establishing disability as a protected status under law extends protection against discriminatory behaviour and punishes those people who violate the non-discrimination norm.

• Explain to participants that States can elect to include disability non-discrimination in one of two ways. First, by developing comprehensive non-discrimination legislation that applies to the population as a whole with mention of disability and second, by adopting legislation that only applies to people with disabilities. Use Transparencies 40-41 to highlight States with comprehensive non-discrimination legislation applying to the population as a whole, with explicit mention of disability. Follow that up with examples in Transparency 42 of States with non-discrimination legislation applying only to people with disabilities.

  Examples of States with comprehensive non-discrimination legislation applying to the population as a whole, with explicit mention of disability:

  Canada – Human Rights Act, 1985, which prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted to; and Employment Equity Act, 1986 which applies to women, aboriginal peoples, persons with disabilities and members of visible minorities.

  Ireland – Employment Equality Act, 1998 which outlaws discrimination on the basis of gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveler community.

  Namibia – Affirmative Action Act, 1998 applies to racially disadvantaged persons, women irrespective of race and persons with disabilities (physical or mental limitations, irrespective of race or gender).

  Examples of States with non-discrimination legislation applying only to people with disabilities include:

  Costa Rica (Law 7600 on Equal Opportunities for People with Disabilities, 1996);
  Ghana (The Disabled Persons Act, 1993);
  Malta (Equal Opportunities (Persons with Disability) Act 2000);
  United States of America (Rehabilitation Act, 1973; Americans with Disabilities Act, 1990).

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  OPTIONAL EXERCISE (60 minutes): The purpose of this exercise is to provide participants an opportunity to consider the positives and negatives of comprehensive and targeted non-discrimination legislation. Split participants into two groups. Assign one group as the advocates for crafting full non-discrimination legislation that applies to the general population and the other half as advocates for targeted non-discrimination legislation. Each group will have 30 minutes to make their joint argument for why its own approach is better. Each group will then select two individuals from its team to represent their group in a debate. The instructor will serve as the moderator and flip a coin to determine which group goes first to make its case. The presenters have ten minutes to present their argument. They will then be followed by the other group who will have the same conditions. Following both presentations the class will vote as to which made the stronger case.

• Stress to participants that when legislation seeks to define precisely the category of people with disabilities covered by the law, caution should be exercised to ensure that it does not, intentionally or unintentionally, restrict the group of protected individuals. This can occur when legal protection is not provided to individuals who experience disability discrimination but who fail to meet specific criteria within the legal definition of disability. Illustrate with the example of the Netherlands in which they did not define the term disability in their law, but instead offered protection to both people with and without disabilities against unjustified adverse treatment on the grounds of a disability. In this case, countries can focus on whether a person has been discriminated against on the grounds of a real or perceived impairment.

  Ask participants the following questions to clarify when certain distinctions should be made: When is a very specific definition of disability required? When is a broader, more inclusive definition preferable?

• Recap for participants that so far we have discussed reasons for disability non-discrimination, approaches for incorporating it into law, definition of disability as it applies to protected classes of people, and in this moment, who the law is actually intended to cover. Explain to participants that in most disability non-discrimination legislation not all employers are covered. Who is covered by the law is a similar process to identifying whom the protected class of individuals should be - it is dictated by the labour market and needs that have been identified. Use Transparencies 43-44 to highlight how both the United Kingdom and the United States of America identified which employers would be covered by their respective legislation.

  In the United Kingdom, for example, the Disability Discrimination Act of 1995 originally applied to employers with a workforce of 20 or more employees. A government review revealed that 95 per cent of employers and 4.5 million workers, including a quarter of all disabled employees were excluded from coverage.  As a result, this threshold was reduced to 15 or more employees in 1998. The exemption for small employers was completely removed in October 2004, in line with the European Commission Directive on Equal Treatment in Employment and Occupation (2000/78/EC).

  In the United States, under the Americans with Disabilities Act (as well as other federal non-discrimination legislation), firms with less than 15 employees are excluded. The reason for this exemption is that small employers are not expected to engage in interstate trade relations, thus depriving the federal legislature from the competence to regulate their employment policies. Under – often similarly worded – State disability non-discrimination acts, smaller employers are covered.