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Employment
and People with Disabilities: Inclusion, Incentives and Involvement
The
issue of the rights and participation of those with disabilities in regard
to employment has poignantly come to the fore in recent years, as the
international community gears itself towards finalizing and adopting a
comprehensive international agreement on the rights of those with
disabilities. This is intrinsically intertwined with the increasing
advocacy of a rights-based approach in development programming and the
potential and actual role of all United Nations (UN) and related agencies
in helping to mainstream such approach at the national and other levels.
The International Labour Organization (ILO) and its counterparts are
well-placed to raise and address the issue of employment and people with
disabilities, given the comparative advantage of its partnership with
governments, employers and employees. In terms of standard-setting, the
ILO has helped to evolve several international instruments which invite
States and other actors to take concrete measures to formulate policies
and programmes to counter discrimination and include those with
disabilities into the employment sector, particularly from the angle of
equal opportunities. These include ILO Convention No.100 concerning Equal
Remuneration (1951), ILO Convention No.111 concerning Discrimination
(Employment and Occupation) (1958) and ILO Convention No.118 concerning
Equality of Treatment (Social Security)(1962). These are reinforced by ILO
Convention No.168 on Employment Promotion and the Protection against
Unemployment (1988), the ILO Declaration on Fundamental Principles and
Rights at Work (1998) and the ILO Code of Practice on Managing Disability
in the Workplace (2002). From a human rights perspective, there is also a
myriad of other international instruments, such as the International
Covenant on Economic, Social and Cultural Rights (1966) which advocate
non-discrimination as a key principle for all.
At the outset, one is tempted to ask what the rights-based approach means
in real, practical terms. In effect, it moves away from the former social
welfare approach of charitable action, to an approach based upon an
entitlement on the part of individuals and groups- advocated to the State
and related actors. A key implication is that the rights at stake are not
to be realized as merely part of the State’s discretion; rather, the
State is obliged to effectively and expeditiously implement the rights
concerned. From the angle of non-discrimination, there is the issue of
equality of opportunities. For instance, a job advertisement which bars a
person with a disability from applying, even though that person could
objectively perform the same tasks as a person without such disability
would be able to, is not permissible and the State is under a duty to
regulate and act against it.
A rights-based approach implies also that there are international
standards such as international conventions and treaties which help to set
the basic minimum benchmarks for actions. It is linked with the call to
protect groups with special needs, such as those with disabilities,
coupled with target-sensitive laws, policies, programmes, mechanisms,
personnel, resources, information, education and capacity-building. These
are shaped by the need to promote cooperation with key partners, such as
the private sector, and genuine participation from the affected groups,
including those with disabilities. There are various key messages inviting
effective response as follows:
1.
There is a
need to adopt disability-sensitive laws and policies, while not
underestimating the need to effectively implement these instruments.
Constitutions, labour laws and other laws and policies should respond to
the rights of those with disabilities explicitly, while paying great
attention to the issue of enforcement. The latter is inevitably linked to
the quality of the law enforcement system and its personnel. If law
enforcement is generally weak, often plagued by disinterest and
corruption, this is likely to affect the law on disabilities.
2.
There is a
need to understand that disabilities are to be seen as not merely due to
physical or psychological impairment but also due to societal attitudes,
acts and omissions which create the environment undermining those with
disabilities. Interestingly, one lead advocate in this field has suggested
that we need to follow a positive philosophy on the subject. This implies
avoiding negative, cultural stereotypes which classify those with
disabilities as bearing the consequences of so-called fate, Karma, divine
sanctions and or pre-destination.
3.
There is a
need for ways and means to include those with disabilities into the
employment and other environments more proactively. Some countries have
adopted various affirmative action programmes , such as quotas, to ensure
some access of those with disabilities to job placements. This is a method
of providing temporary preferential treatment to raise the status of those
who are less able to access employment opportunities. There is also a need
to provide for more self-employment opportunities, coupled with access to
credit, know-how, marketing skills and support networks. In this context,
there are different scales of industry which may have to be covered,
ranging from large to small and medium scale enterprises.
4.
There is a
need for incentives to enable employers to ensure more access to those
with disabilities and vice versa. As an example, employers might be able
to make tax deductions as part of the process of engaging a person with a
disability, and there could be various capacity-building facilities, such
as training programmes, which help both sides to adjust to each other.
They can be assisted by rewards and prizes for exemplary conduct, and
assistance with appropriate technology such as Braille-programmed computer
facilities.
5.
There is a
need for adequate sanctions against those in breach. This does not
necessarily imply punitive measures but may also mean compromise
arrangements such as enabling an employer to choose to pay a levy which
can then be channeled to help those with disabilities – where the
employer chooses not to employ a person with a disability.
6.
There is a
need for a transparent monitor and accessible channels of redress in the
case of violations. This may mean a government-based mechanism, such as an
ombudsperson or national human rights commission, a civil society body
such as a Council on Disabilities, or mixed government-civil society
mechanism, to help monitor the process. This could be coupled with
judicial insititutions that are accessible and affordable. While ordinary
courts may help, the spread of administrative courts and labour courts is
also welcome to provide less costly and quicker means of redress.
7.
There is a
need for positive imaging of disabilities to nurture an understanding
mindset. This invites close cooperation with the media, educational
authorities and other communications channels to convey constructive
profiles of those with disabilities, and to spread the message of
non-discrimination. Role models from those with disabilities can help to
highlight the contributions they make to society, e.g. the Para-Olympics.
Learning by doing – working together with those with disabilities - is
particularly useful, especially to include those with disabilities into
the media, schools and communications environments and events.
8.
There is a
need for direct access, involvement and participation of those with
disabilities in shaping programmes of concern to them. This invites
representatives of those with disabilities to be their own advocates and
mobilizers. As an example, those with disabilities have been directly
involved with the drafting of the new comprehensive international treaty
on the rights of those with disabilities.
9.
There is a
need to reflect the fact that those with disabilities are not necessarily
a homogeneous group and that multiple forms of discrimination may affect
them in different ways. This is particularly tested by the fact that there
is often additional gender-based discrimination which may create further
obstacles for persons with disabilities. A member of a minority group or
migrant person with a disability may also be affected more severely than a
local resident or national with a disability is affected.
10.
There is a
need to promote broad-based cooperation locally, nationally, regionally
and internationally. Constructive examples from one level of operation can
help to catalyse other actors through peer interaction , while
international and regional support can assist neighbours and partners to
adopt more effective measures to raise national practices to international
standards, while capitalizing upon local wisdom. Thus an enabling
atmosphere, responding to the disability humanely, can be nurtured through
a pervasive spirit of cooperation.
Vitit Muntarbhorn is a Professor at the Faculty of Law,
Chulalongkorn
University
,
Bangkok
. He is a former UN Special Rapporteur on the Sale of Children and is
currently UN Special Rapporteur on the situation of human rights in the
Democratic People’s
Republic
of
Korea
.
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