Training Outline

7.5 Standard Lecture: Other Approaches (1 hour)

• Explain to participants that policy-makers in a number of countries have attempted to address the problems of discrimination and under representation and those associated with individual law enforcement using other approaches to enforcement.

  For example, in a few countries, South Africa, Mexico, Malawi and Namibia, disability issues have been elevated to status offices within the Presidency or Prime Minister’s office (Namibia), while South Africa was the first country to establish such an office in the Presidency. In South Africa, The Office on the Status of Disabled People is a unit set up to coordinate, facilitate, monitor and evaluate programmes that serve or are designed to integrate persons with disabilities into mainstream society. The role of such offices is not service delivery, that is the responsibility of each Ministry or governmental department, but rather, to make sure that services are actually provided. In short, this office is a policing body. Former President of Mexico, Vincente Fox created the Office of Representation and Social Integration for Persons with Disability to coordinate public policy towards people with disabilities. In turn, that office immediately asked every Ministry in the Government to develop one specific programme including or focusing on disabled people. The office also created a National Council on Disabilities in which five ministries – Health, Labour, Education, Communications and Transportation and Social Development – were all members. In Malawi, the job of the Minister Responsible for Persons with Disabilities in the President’s office is to communicate the concerns of disabled Malawians to the Parliament and the Cabinet. Specifically, their policies are written by DPOs, civil society and governmental officials, but that office’s job is monitoring and oversight of every Ministry to make sure that when they work on any policy or change, they consider the perspective of disabled people. In short, in countries that use this model, the elevation of the office of disabled persons to the Presidency imparts both a perceived and a real importance that inclusion and mainstreaming are everyone’s responsibility.

  They have addressed these issues through the imposition of positive duties on employers to promote the employment of people with disabilities and to promote equality.

  Use Transparency 127 to explain that the goal of these positive duties is to restructure covered institutions (e.g. private companies, public sector agencies, etc.) so as to ensure that they are more open to the employment of people with disabilities (and other disadvantaged and under-represented groups). The duty is therefore triggered as a result of evidence of structural discrimination, including chronic under-representation of people with disabilities in particular types of work or positions of power. As a result of the positive duties, action is required to achieve change. Explain that these positive duties can take a number of forms, one of which is contract compliance.

• Contract Compliance.
  Explain that under a contract compliance programme, public authorities can require that all contractors, or all firms wishing to contract with the public authorities, have a good record with regard to the employment of workers with disabilities (and other disadvantaged and under-represented groups). Where this compliance is not demonstrated, these contractors can be required to take active measures to promote the employment of people with disabilities.

  Referring to section 7.5.1 of the Primer, use Transparency 128 to explain that the requirement to be met may be nothing more than a record of compliance with disability employment legislation, often evidenced by the ‘certification’ of the employer by one of the commissions described above. It may amount to meeting a higher standard, however, or include the taking of action to remedy any perceived problem. Compliance with a quota scheme could also be a requirement. The precise obligation under contract compliance schemes can vary, but the ultimate goal is to increase the participation of people with disabilities in the workforce and, on occasion, to equalize pay and access to benefits.

  Using Transparency 129, describe examples of specific obligations that could exist for employers under a contract compliance scheme:

  • Monitoring and reporting on the number of existing employees with disabilities.
  • Undertaking periodic reviews of employment practices.
  • Where under-representation is revealed, engaging in affirmative action to improve the representation of people with disabilities in the workforce.

  Explain that complying with contract compliance obligations can be a participatory process involving trade unions in the process of drawing up an equity plan, to remedy any perceived discrepancies. Adherence to contract compliance obligations should be monitored by a statutory body that actively investigates employment policies and employment records of covered undertakings, or by one of the commissions described above.

  Close this subsection by summarizing the examples from the United States and Northern Ireland provided on pages 80-81 of the Primer.

  “Such positive duties have been pioneered in the United States, where government contractors are required not merely to abstain from unlawful discrimination, but also to take positive measures to increase the representation of minorities in the workforce. This requirement, which is estimated to apply to about 300,000 federal contractors, employing about 40 per cent of the working population, has had a significantly more powerful influence on employers than individual complaint led investigations and prosecutions.”

  “In Northern Ireland, public authorities have a duty to take due regard of the need to promote equality of opportunity when carrying out their functions. Each public authority is required to draw up an equality scheme which must state the authorities’ arrangements for consultation and assessment of the likely impact of policies on the promotion of equality of opportunity; for monitoring any adverse impact of such policies; for publishing results of its assessments; for training staff; and for ensuring public access to information and services. Such schemes must be approved by the Northern Ireland Equality Commission.”

• Conclude by summarizing the salient points provided in Transparency 130.

  • The proper implementation of equal opportunity legislation and policies seeking to realize the aspirations contained in these laws is a State responsibility. When adopting or revising equal opportunity legislation and policies, law and policy makers should therefore pay attention to the monitoring and evaluation of these tools.
  • The adequate monitoring and implementation of laws and policies presupposes that the responsible organization or body has the necessary means and powers to perform these tasks. These powers need to be provided for from the date the law enters into force.
  • The enforcement of laws and policies by way of court-based or other enforcement mechanism is not solely a task of individuals. The State is also obliged to introduce administrative or institutional enforcement mechanisms.
  • Laws concerning persons with disabilities should contain adequate and efficient implementation and enforcement mechanisms. Enforcement bodies should be considered as well as mechanisms such as that of an Ombudsman Institute or Human Rights Commission or Equality Authority.