Review of Legal Framework

Every individual has the fundamental right to work[1] . This right is essential for realizing other human rights and constitutes an inseparable and inherent part of human dignity. It contributes at the same time to the survival of the individual and to that of his or her family and, insofar as work is freely chosen or accepted, to his or her development and recognition within the community.

The Convention on the Rights of Persons with Disabilities (CRPD) was the first Convention to introduce the social model of disability and change the direction of how individuals with disabilities are included into the workplace. The CRPD does not create new rights. Rather, it takes existing rights and interprets them in the context of persons with disabilities.

In terms of work and employment, Article 27 of the CRPD requires that State parties recognize the right of persons with disabilities to work on an equal basis with others, including their right to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible.

Article 27 sets out measures through which State parties can safeguard and promote the realization of the right to work, including for those who acquire a disability in the course of employment. These include the following:

• prohibiting discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuation of employment, career advancement and safe and healthy working conditions;
• protecting the rights of persons with disabilities, on an equal basis with others, to just and favorable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
• ensuring that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
• enabling persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services, and vocational and continuing training;
• promoting employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
• promoting opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;
• employing persons with disabilities in the public sector;
• promoting the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;
• Ensuring that reasonable accommodation is provided to persons with disabilities in the workplace;
• promoting the acquisition by persons with disabilities of work experience in the open labour market;
• promoting vocational and professional rehabilitation, job retention and return-to- work programmes for persons with disabilities.

Article 27 in the CRPD provides the framework for steps that could be taken to realize the right to work and employment.

a. Disability in National Legislation

Constitutional provisions or specific legislation prohibiting discrimination are now regarded as an essential element of the response to discrimination in employment and occupation. The object of non- discrimination legislation is to prohibit discrimination on the grounds of disability, as well as other grounds.

However, Constitutional provisions alone often have limited impact. They tend to be broad and do not contain precise definitions. Therefore, although a constitutional provision provides for protection at the highest level of legislation it must be further incorporated into the country’s Labour Law in order to confer specific rights on persons with disabilities.

Labour Law Codes provide an effective location for laws relating to the rights of persons with disabilities. These laws can take the form of non-discrimination laws, which focus specifically on persons with disabilities and confer certain employment rights such as quotas. Providing provisions on the employment-related rights of persons with disabilities are also the most likely to have the greatest practical impact on opportunities for job- seekers and workers with disabilities.

Quota schemes are the most common type of affirmative action measures aimed at promoting the inclusion of persons with disabilities in the labour market. Quotas can be introduced by law or through a government 

decision or regulation. Under various different types of quota scheme, employers employing a specified number of persons are obliged to ensure that a certain percentage of their workforce is made up of persons with disabilities.

Quota schemes can be developed in different forms. However, a quota-levy system makes the greatest contribution to the promotion of employment of persons with disabilities. Under a quota-levy scheme, a binding quota is set and all covered employers who do not meet their obligations are required to pay a levy. The money raised through such a quota scheme is transferred into a fund to support the employment of persons with disabilities. It is important however to accompany quota schemes with other measures that facilitate the compliance of companies with quota obligations.

b. Scope of Disability Law

An increasing number of States prohibit discrimination on the ground 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 reflects the increasing acknowledgement that disability is frequently used as a reason for excluding people with disabilities and to deny them equal employment opportunities, where this is not justified in the given circumstances. The objective of such laws is to combat the exclusion of and the denial of equal opportunities to people because of particular characteristics such as disability, and to increase the participation rates of persons with disabilities in employment and other sectors of society. By making disability a protected ground, the law extends protects against discriminatory behaviour and punishes those people who violate the non-discrimination norm.

c. Different Forms of Discrimination

Discriminatory behavior arises when an employer treats an applicant for a job or employee adversely or less favorably on the grounds that he or she has a disability, where the disability has no, or hardly any, effect on job performance. Various forms of discrimination exist, including direct, indirect and multiple discrimination.

However, significantly Article 5 of the CRPD prohibits crimination in every form and makes no distinction between forms of discrimination. Additionally, under Article 2 of the CRPD the denial of reasonable accommodation is explicitly recognized as a form of discrimination.

Direct discrimination occurs when a person is treated less favorably than another similarly situated person because of a particular characteristic protected by non- discrimination law, such as race, sex or disability.

Indirect discrimination occurs when an apparently neutral situation, regulation or practice in fact results in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion applies to everyone, but has a disproportionately harsh impact on some persons on the basis of certain characteristics. The intention to discriminate is not a prerequisite for indirect discrimination to have occurred.

Under Article 6 of the CRPD, the term multiple-discrimination refers to the experiences of exclusion which are deeply affected by the multiple dimensions of an individual’s identity. For example, persons with disabilities generally experience higher rates of unemployment and underemployment than non-disabled persons. However, women with disabilities experience higher rates of unemployment than men with disabilities because of the discrimination they also face as women in the workplace.

The denial of reasonable accommodation is also a form of discrimination. An impairment can sometimes affect an individual’s ability to carry out a job in the usual or accustomed manner. The obligation to make reasonable accommodation, or provide the right to be accommodated, is often found in modern disability non-discrimination law. The law should define closely what is meant by reasonable accommodation, so that misinterpretation is avoided, and employers clearly understand what they must do. For example, in South Africa the obligation to make reasonable accommodation in employment is required by the Employment Equity Act of 1998. The Act defines reasonable accommodation as involving any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment.

The CRPD makes clear that the failure to provide reasonable accommodation itself amounts to discrimination. Reasonable accommodation should already be provided for in the recruitment phase. When a person with a disability is a successful job applicant, the employer must provide reasonable accommodation in the form of appropriate modifications or adjustments if required to facilitate performance of the essential activities of the job. In most cases the person with a disability will be able to give advice to the employer on what is needed. It is also important to protect the privacy of the person requesting reasonable accommodation. If necessary, employers should also seek advice from government agencies or organizations which represent or provide services to persons with disabilities.