Disability-Based Discrimination: The Legal Instruments for Addressing it
Abstract
Discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person. Therefore, this article examined the two major forms of disability discrimination which include direct and indirect disability discrimination. Likewise, several legal instruments for addressing disability discrimination such as United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), UK Disability Discrimination Act, Americans Disability Act, African Disability Protocol, Australian Disability Discrimination Act, Nigerian Disability Act are all analysed.
Keywords: Discrimination, Disability, Legal Instruments.
1. Introduction
The population of the world is estimated at approximately 8 billion people and more than one billion people, or 15% of the world’s population, have some form of disability; and 80% of them live in developing countries. This estimated one billion persons with disabilities globally face many many forms of discrimination in various aspects of life (WHO & World Bank, 2011). Disability discrimination is a historical legacy which is ingrained in the fabric of all societies. In Africa, Asia, Europe and Latin America, this legacy is reflected in many practices which intentionally or accidentally discriminate against persons with disabilities. Discrimination occurs often as a result of prejudices, social disparities, religious and cultural misconceptions. If we are to combat discrimination, we have to combat these negative attitudes; to take all appropriate measures including legislation, modifying or abolishing existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities. Therefore, various legal instruments are adopted to address disability discrimination.
2. Conceptual Clarification
2.1 The Concept of Disability
“Disability is an evolving concept that results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. “Persons with Disabilities (PWDs) include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” (United Nations, 2006).
This definition of the UNCRPD moves away from the historically dominant medical model of disability and towards the social model of understanding disability. In this understanding, “PWDs experience disability as a social restriction, whether those restrictions occur as a consequence of inaccessibly built environments, questionable notions of intelligence and social competence, the inability of the general population to use sign language, the lack of reading material in Braille or hostile public attitudes to people with non-visual disabilities”.
The definition which is based on the individual experience is more capable of accurately framing discussions which are relevant to PWDs, identifying hidden sources of discrimination and improving our understanding of human rights. As a result of defining disability in a way that takes into consideration the impairment of the individual and the barriers that hinder their social participation (for example, environmental, built or human barriers), the Article 1 of UNCRPD entitles a broad range of people who are vulnerable to discrimination on grounds of disability to protection.
2.2 The Concept of Disability Discrimination
Discrimination refers to the act of treating someone differently unfairly because of that person’s characteristics. Thus, disability discrimination is when a person with a disability is treated less favourably than a person without the disability in the same or similar circumstances (Whittle, 2020). The Australian Human Commission Rights (2014) viewed that disability discrimination occurs when a person is treated less favourably, or not given the same opportunities, as others in a similar situation because of their disability.
The UN Convention on Rights of Persons with Disabilities (UNCRPD) (2006), conceptualized that “Discrimination on the basis of disability” means 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.
To understand this conceptual definition, it is important to break it down by explaining key terms as follows:
Distinction: A “distinction” might be an explicit differentiation between two people on the basis of disability. For example, if children with certain intellectual impairments are subject to forced sterilization while other children are not, this is a discriminatory distinction.
Exclusion: An “exclusion” refers to a situation where a person, on the basis of disability, cannot enter a particular space or participate in a particular activity. A policy that does not allow a child with a disability to enter mainstream education is an exclusion which could amount to discrimination.
Restriction: A “restriction” refers to a limitation on the right of people to participate in certain aspects of civil, cultural, economic, political or social life. For example, a law stating that persons with intellectual disabilities cannot vote in national elections could amount to a discriminatory restriction.
Denial of reasonable accommodation: The definition recognizes denial of reasonable accommodation as a form of discrimination. To promote equality and eliminate discrimination, stakeholders must take all appropriate steps to ensure that reasonable accommodation is provided. “Reasonable accommodation” means, for example, making adaptations to the organization of a work environment, an educational institution, a health-care facility or transport service so as to remove the barriers that prevent an individual with a disability from participating in an activity or receiving services on an equal basis with others. At work, this might involve physical changes to premises, acquiring or modifying equipment, providing a reader or interpreter, giving appropriate training or supervision, adapting testing or assessment procedures, altering standard working hours or allocating some of the duties of a position to another person.
In short, discrimination means any distinction, as well as exclusion or restriction made on the basis of disability. It includes denial of reasonable accommodation for persons with disabilities
3. Forms of Disability-Based Discrimination
3.1 Direct Discrimination
Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to disability. Similarly, direct disability discrimination happens when a person with a disability is treated less favourably than a person without that disability in the same or similar circumstances. For example, it could be direct discrimination if a person who is the best person for the job is not employed because of his/her disability. Imagine the following scenario: a company has a policy of not hiring anyone with a physical impairment irrespective of the duties of a position. The policy unlawfully discriminates against people with disabilities who can meet the inherent requirements of the job. They are being treated less fairly than other job applicants on the basis of a disability. Likewise, a person is not offered a promotion because he/she has disability. But his/her colleague who does not has disability is offered a promotion – even though he/she has less experience and fewer qualification. Also, a refusal to accept and admit children with disabilities in the general education system amounts to direct discrimination. In addition, it would be ‘direct disability discrimination’ if a hotel or restaurant refused a person entry because he/she is blind and has a guide dog (Whittle, 2020).
3.2 Indirect Discrimination
It is also disability discrimination when there is a rule or policy that is the same for everyone but has an unfair effect on people with a particular disability. This is called ‘indirect discrimination’. For example, it may be indirect disability discrimination if the only way to enter a public building is by a set of stairs because people with disabilities who use wheelchairs would be unable to enter the building. More so, indirect discrimination can be less obvious. It can happen when employers or service providers put in place conditions, requirements or practices that appear to treat everyone the same but which actually disadvantage some people because of their disability. It will be discriminatory if a requirement or condition:
applies to everyone, but because of his/her disability the person is not able to comply or, although able to comply, would suffer serious disadvantage by doing so, and
the requirement or condition disadvantages a person because of his/her disability, and
it is unreasonable in all of the circumstances.
For example, requiring Deaf employees to attend meetings where no sign language interpreter is provided to enable them to understand what is being said could be indirect discrimination. Although they could attend the meeting without an interpreter, they would suffer a serious disadvantage as they would have difficulty participating (Whittle, 2020).
Furthermore, indirect discrimination refers to laws, policies or practices which appear neutral, but fail to take into account the unique needs of persons with disabilities which therefore causes direct barrier or has a disproportionate impact on the exercise of their duties. Indirect discrimination is where a person or organisation has policies or arrangements that seem to treat everyone in an equal and non-discriminatory way. But, these policies or arrangements put other people with disabilities at a disadvantage compared with those who do not have disabilities. For example, An employer or a workplace only offers promotions to people who have a driving licence and are able to drive, even though this is not a key requirement of the job. This will discriminate against people with visual impairments that prevent them from holding a driving licence (Whittle, 2020).
4. Legal Instruments for Addressing Disability-Based Discrimination
Legal instruments here can be contextualised as laws, acts treaties or conventions which are adopted internationally or regionally or even nationally to address disability discrimination. There are various anti-discrimination laws/acts, some are national or regional while other are international.
4.1 United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), 2006
The UNCRPD was adopted in 2006 and entered into force in 2008. Its purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. It was the most rapidly negotiated human rights treaty to date and, since its adoption, it has received impressive support globally. The Preamble (h) of UNCRPD reaffirms the non-discrimination commitment and recognizes that discrimination against any person on the basis of disability is a violation of the inherent dignity and worth of the human person.
The Article 4(1) of UNCRPD stipulates that States Parties are to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on basis of disability. To this end, States Parties undertake: (1b) to take all appropriate measures, including legislation, to by modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (1e) to take all appropriate measures to eliminate discrimination on basis of disability by any person, organization or private enterprise. Also, the Article 5(1) of UNCRPD stipulates that States Parties shall recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of law; (2) States Parties shall prohibit all discrimination on the basis of disability and guarantee persons with disabilities equal and effective legal protection against discrimination on all grounds; (3) in order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
The UNCRPD calls for the elimination of discrimination against persons with disabilities in some of the following areas:
Family: The Article 23 (1) of UNCRPD stipulates that States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others.
Education: The Article 24 (1) of UNCRPD stipulates that States Parties shall recognize the right of persons with disabilities to education, with a view to realizing this without discrimination and on the basis of equal opportunity.
Health: The Article 25 of UNCRPD stipulates that States Parties shall recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.
Work and Employment: The Article 27 (1a) of UNCRPD prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.
Standard of Living and Social Protection: The Article 28 (1) of UNCRPD stipulates that States Parties shall recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.
Participation in Political and Public Life: The Article 29 of UNCRPD stipulates that States Parties shall undertake to: (a) ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected without discrimination on the ground of disability. (b) promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including: (i) Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties; (ii) Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
4.2 UK Disability Discrimination Act 1995 and Equality Act 2010
The Disability Discrimination Act 1995 was the first UK legislation protecting people with disabilities against various forms of discrimination. The law was the first of its kind to protect those with disabilities from discrimination in areas including employment, the provision of goods and services, education and transport. The UK ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in 2009. The Article 4 of UNCRPD contains general obligations for all signatories to eliminate discrimination on the basis of disability. Consequently, the Disability Discrimination Act 1995 was replaced by the Equality Act 2010, which kept many of the same provisions as the original act. The Equality Act provides protection against discrimination in several areas, including:
employment and occupation;
education;
transport;
the provision of goods; and
the exercise of public functions.
The act protects people with disabilities from multiple kinds of discrimination. These included:
direct discrimination: where a person with disability is treated less favourably than another person due to his/her disability;
failure to make a reasonable adjustment: where any workplace practice or feature of the premises puts a worker with disability at a disadvantage; and
victimisation: where a person is treated unfavourably because he/she made a complaint about his/her treatment as a disabled person.
4.3 Americans Disability Act (ADD) 1990 (As Amended 2008)
The Americans with Disabilities Act (ADA) became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else without discrimination. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. The ADA is divided into five titles or sections that relate to different areas of public life.
The Title I of ADA: Equal Employment Opportunity for Individuals with Disabilities. This title is designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities. Employers must provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions.
The Title III of ADA: Non-discrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. This title prohibits private places of public accommodation from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on. This title sets the minimum standards for accessibility for alterations and new construction of facilities. It also requires public accommodations to remove barriers in existing buildings where it is easy to do so without much difficulty or expense. This title directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. It also requires that they take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities.
4.4 African Disability Protocol (ADP), 2018
The African Disability Protocol is the legal framework based on which member states of the African Union are expected to formulate disability laws and policies to promote disability rights and eliminate any form of disability discrimination in their countries. The African Disability Protocol ensures that no one is truly left behind. It is unique to the continent and takes African practices and concerns into consideration so that the lives of people with disabilities improve. It tackles the ingrained issues of disability discrimination so that everyone can access health, education and employment without stigma.
The Article 4 of ADP explains that States Parties shall take appropriate and effective measures, including policy, legislative, administrative, institutional and budgetary steps, to ensure, respect, promote, protect and fulfil the rights and dignity of persons with disabilities, without discrimination on the basis of disability, including by: (c) providing in their constitutions and other legislative instruments and taking other measures to modify or abolish existing policies, laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (f) taking measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise.
4.5 Austrian Disability Act, 1992
The Australian disability Act is officially called: “Disability Discrimination Act (DDA) 1992”. The DDA makes it unlawful to discriminate against a person, in many areas of public life, including employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability. The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
work, accommodation, education, access to premises, clubs and sport; and
the provision of goods, facilities, services and land; and
existing laws; and
the administration of Commonwealth laws and programs;
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community;
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.
The Disability Discrimination Act 1992 (DDA) makes it unlawful to discriminate against a person, in many areas of public life, including: employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability. The DDA covers people who have temporary and permanent disabilities; physical, intellectual, sensory, neurological, learning and psychosocial disabilities, diseases or illnesses, physical disfigurement, medical conditions, and work-related injuries. It extends to disabilities that people have had in the past and potential future disabilities, as well as disabilities that people are assumed to have.
In addition, the DDA protects people with disabilities who may be discriminated against because they are accompanied by an assistant, interpreter or reader; they are accompanied by a trained animal, such as a guide, hearing or assistance dog; or they use equipment or an aid, such as a wheelchair or a hearing aid. The DDA also makes it against the law to discriminate against someone because of their association with a person with a disability.
The DDA makes it unlawful to discriminate against people with disabilities in employment, including:
the recruitment process, such as advertising, interviewing, and other selection processes
decisions on who will get the job
terms and conditions of employment, such as pay rates, work hours and leave promotion, transfer, training or other benefits associated with employment
dismissal or any other detriment, such as demotion or retrenchment.
4.6 Nigerian Disability Act, 2018
The Nigerian Disability Act is officially called: ‘Discrimination Against Persons with Disabilities (Prohibition) Act 2018’. The Act describes a person with disability as one who has a long term physical, mental or sensory impairment that may hinder full and effective participation in society on an equal basis with others. The Act outlaws discrimination on the basis of one’s physical, mental or sensory impairment. The Act provide for the full integration of persons with disabilities into the society, establish the National Commission for People with Disabilities and vest in the Commission the responsibilities for their education, healthcare, social, economic and civil rights; and for related matters. While the Act provides a 5 years transitory period (from its enactment) to enable modification of public structures/services to meet the peculiar needs of persons with disabilities, other provisions are intended for immediate implementation. The Section 1(1) of the Act states that a person with disability shall not be discriminated against on the ground of his/her disability by any person or institution in any manner or circumstance. The Section 1(2) likewise states that a body corporate who discriminates on this ground is subject to a fine of ₦1,000,000 while an individual is liable to pay a ₦100,000 fine, or face a six months imprisonment term or both.
5. Conclusion
Discrimination is a major cause of exclusion of persons with disabilities and impedes persons with disabilities from pursuing equal participation in society. Some groups of persons with disabilities such as women with disabilities, indigenous persons with disabilities and persons with intellectual and psychosocial disabilities face multiple discrimination and are even more disadvantaged. Discriminatory laws still exist, especially in the areas regulating marriage, legal capacity, education, work and political participation, despite the progress made by many countries in adopting non-discriminatory laws and policies. To overcome discrimination against persons with disabilities, and eliminate discriminatory laws and policies, it will be crucial to:
(1) Review national laws and policies to identify and eliminate discriminatory provisions against persons with disabilities and ensure their equal opportunities to participate politically, economically and socially without discrimination. Guarantee the participation of persons with disabilities in the revision process to ensure that their needs and perspectives are considered.
(2) Raise awareness about persons with disabilities through public campaigns to combat negative stereotypes against them. Engage persons with disabilities and organizations of persons with disabilities in such outreach activities. These campaigns should focus on raising awareness among the population on the needs and abilities of persons with disabilities.
(3) Develop mechanisms for reporting on discrimination. Approaches to developing such mechanisms include the creation of a public service, where persons with disabilities can file or report incidences of discrimination, or the carrying out of periodic surveys and collection of feedback from persons with disabilities regarding how anti-discriminatory laws are being implemented in practical terms.
References
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