SOCIAL POLICY AND HUMAN RIGHTS: CONCEPTS OF DISABILITY

 

Сarl Raskin

 

 

Most persons with disabilities who are of working age can and want to work, yet they often encounter major obstacles in their quest for access to and equality in the workplace. This article highlights the principal issues concerning the inclusion of persons with disabilities in the world of work, with reference to social policy and human rights concepts.

 

First, the overall extent and consequences of disability, as well as the extent to which disabled persons have traditionally been excluded from full participation in both social and economic life, will be described. Human rights concepts will then be presented in terms of a process to overcome the obstacles to equitable employment faced by persons with disabilities. Such obstacles to full participation in the workplace and national life are often due to attitudinal and discriminatory barriers, rather than to causes relating to one’s disability. The end result is that persons with disabilities often experience discrimination, which is either deliberate or is a result of inherent or structural barriers in the environment.

 

Finally, a discussion of discrimination leads to a description of ways in which such treatment may be overcome through equitable treatment, workplace accommodation and accessibility.

 

Extent and Consequences of Disability

Any discussion of social policy and human rights concepts about disability must begin with an overview of the global situation persons with disabilities face.

 

The exact extent of disability is subject to wide interpretation, depending upon the definition used. The United Nations Disability Statistics Compendium (1990) (also referred to as the DISTAT Compendium) reports results of 63 surveys of disability in 55 countries. It notes that the percentage of disabled persons is between 0.2% (Peru) and 20.9% (Austria). During the 1980s, approximately 80% of disabled persons lived in the developing world; due to malnutrition, and disease, disabled persons form approximately 20% of the population of these nations. It is not possible to compare the percentage of the population that is disabled as reflected in various national surveys, due to the use of different definitions. From the overall but limited perspective provided by the DISTAT Compendium, it may be noted that disability is largely a function of age; that it is more prevalent in rural areas; and that it is associated with a higher incidence of poverty and lower economic status and educational attainment. Moreover, statistics consistently show lower labour-force participation rates for persons with disabilities than for the population in general.

 

With respect to employment. a graphic description of the situation faced by persons with disabilities was given by Shirley Carr, a member of the Governing Body of the ILO and a past president of the Canadian Labour Congress, who noted during a parliamentary forum on disability held in Canada in 1992 that disabled persons experience a “cement ceiling” and that “Disabled persons suffer from the three ‘U’s: under-employment, unemployment and under-utilization”. Unfortunately, the situation persons with disabilities face in most places in the world is at best like what exists in Canada; in many cases, their circumstances are far worse.

 

Disability and Social Exclusion

For a variety of reasons, many persons with disabilities have historically experienced social and economic isolation. However, since the end of the Second World War, there has been a slow but steady movement away from segregating disabled persons from the general population, and away from the view that “the disabled” need care, philanthropy and charity. Persons with disabilities are increasingly insisting on their right not to be excluded from the workplace but rather to be treated in an inclusive manner, equitable to other, non-disabled members of society, including the right to participate as active members of the economic life of the nation.

 

Disabled persons should participate fully in the labour force because it makes economic sense for them to have the opportunity to engage in remunerative employment to the fullest extent of their capacities, instead of drawing social assistance. However, disabled persons should first and foremost participate in the mainstream of the labour force and thus national life because it is ethically and morally the correct thing to do. In this regard, one is mindful of the remarks of the UN Special Rapporteur Leandro Despouy, who stated in his report to the Economic and Social Council of the United Nations (1991) that “the treatment given to disabled persons defines the innermost characteristics of a society and highlights the cultural values that sustain it”. He goes on to state what is, unfortunately, not obvious to all, that:

 

persons with disabilities are human beings-as human as, and usually even more human than, the rest. The daily effort to overcome impediments and discriminatory treatment they regularly receive usually provides them with special personality features, the most obvious and common are integrity, perseverance, and a deep spirit of comprehension in the face of a lack of understanding and intolerance. However, this last feature should not lead us to overlook the fact that as subjects of law they enjoy all the legal attributes inherent in human beings and hold specific rights in addition. In a word, persons with disabilities, as persons like ourselves, have the right to live with us and as we do.

 

Disability and Societal Attitudes

The issues raised by the UN Special Rapporteur point to the existence of negative societal attitudes and stereotypes as a significant barrier to equitable workplace opportunities for persons with disabilities. Such attitudes include the fear that the cost of accommodating persons with disabilities in the workplace will be too high; that persons with disabilities are not productive; or that other vocational trainees or employees and customers will be uncomfortable in the presence of persons with disabilities. Still other attitudes relate to the assumed weakness or sickness of persons with disabilities and the impact this has on “their” ability to complete a vocational training programme or to succeed in a job. The common element is that they are all founded on assumptions based on one characteristic of a person, the presence of a disability. As noted by the Province of Ontario (Canada) Advisory Council for Disabled Persons (1990):

 

Assumptions about the needs of persons with disabilities are often premised on notions about what the person cannot do. The disability becomes the characterization of the whole person rather than one aspect of the person.- Incapacity is seen as a generalized condition and tends to incorporate notions of incompetence.

 

Disability and Empowerment: The Right of Choice

Inherent in the principle that persons with disabilities have the right to participate fully in the mainstream of the social and economic life of the nation is the notion that such individuals should be empowered to exercise free choice as to their vocational training and choice of occupation.

 

This basic right is set forth in the Human Resources Development Convention, 1975 (No. 142) (ILO 1975), which states that vocational training policies and programmes shall “encourage and enable all persons, on an equal basis and without discrimination whatsoever, to develop and use their capabilities for work in their own best interests and in accordance with their own aspirations”.

 

Learning to make choices is an intrinsic part of personal development. However, many individuals with disabilities have not been given the opportunity to make meaningful selections concerning their choice of occupational training and placement. Persons with severe disabilities may lack experience in skills needed to identify personal preferences and to make effective choices from a series of options. However, the lack of self-direction and power is not related to impairments or limitations. Rather, as noted above, it is often due to negative attitudes and practices. Often, disabled persons are presented with options that are artificially preselected or restricted. For example, they may be pressured to participate in a vocational training course that happens to be available, without other options being seriously considered. Or the “choices” may merely be the avoidance of undesirable alternatives, such as agreeing to live in a group setting or with roommates not of one’s choice, to avoid even more unpleasant situations, such as having to live in an institution. Unfortunately for many disabled persons, the chance to express a vocational interest, to choose vocational training options or to seek a job is often determined by a person’s disability label and other people’s assumptions about the capabilities of the individual. This lack of choice also frequently stems from a historical attitude that as involuntary users of the social welfare system, “beggars can’t be choosers”.

 

This issue is of great concern. Research has shown that the degree of influence which individuals have on decisions that affect their working lives has a significant impact on job satisfaction, and hence on the success of integration strategies. Every person, notwithstanding the severity of his or her disabilities, has the right and ability to communicate with others, express everyday preferences, and exercise at least some control over his or her daily life. Inherent in liberty is the right to have freedom of vocational choice, the necessary training based on available technology, and respect for and encouragement to work. For disabled persons at all levels of severity and ability, including those who have intellectual and psychosocial disabilities, making choices is key to establishing one’s identity and individuality. It must also be recalled that it is part of the human experience to make mistakes and to learn from them.

 

It must be stressed again that disabled persons are human beings. It is a matter of basic respect of human dignity to provide disabled persons with opportunities to make those decisions in life that non-disabled persons routinely make.

 

Disability and Social Justice: The Issue of Discrimination

Why have negative stereotypes developed and how do they relate to discrimination? Hahn (1984) notes the apparent contradiction between the vast sympathy displayed toward individuals with disabilities and the fact that, as a group, they are subjected to patterns of discrimination more severe than any other recognized minority. This can be explained by the fact that persons with disabilities often display physical and behavioural characteristics that set them apart from the non-disabled population.

 

Without these identifiable physical differences, disabled persons could not be subjected to the same processes of stereotyping, stigmatizing, bias, prejudice, discrimination, and segregation that plague every minority group. Moreover, when such traits are coupled with adverse social labelling, the effects of discrimination are compounded.

 

Hahn also suggests that there is a positive correlation between the amount of discrimination experienced by persons with disabilities and the visibility of their disability.

 

The key, then, for persons with disabilities to attain equitable treatment in society and the workplace is the reduction and elimination of negative attitudes and stereotypes which result in discriminatory behaviour, coupled with the institution of practices and programmes that accommodate the special needs of disabled persons as individuals. The remainder of this article explores these concepts.

 

What Is Meant by Discrimination?

In the course of our lives, we “discriminate” on a daily basis. Choices are made concerning whether to go to the cinema or the ballet, or whether to buy the more expensive article of clothing. To discriminate in this sense is not problematic. However, discrimination does become troublesome when negative differentiations are made on the basis of immutable characteristics of persons, or groups of persons, such as on the basis of disability.

 

The International Labour Conference adopted a definition of the discrimination which is contained in the Discrimination (Employment and Occupation) Convention, 1958 (No. 111):

 

For the purpose of this Convention, the term “discrimination” includes-

 

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

 

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.

 

Three Forms of Discrimination

The above-noted definition is best understood in light of the three forms of discrimination that have arisen since the end of the Second World War. The following three approaches, first conceptualized in the United States, have now received widespread acceptance in many countries.

 

Evil motive or animus

Initially, discrimination was seen strictly in terms of prejudicial treatment, that is, harmful acts motivated by personal antipathy towards the group of which the target person was a member. These acts consisted of deliberate denials of employment opportunities. It was necessary to prove not only the act of denial, but also a motive based on prejudice. In other words the definition was based upon the evil-motive, mens rea, or state-of-mind test. An example of such discrimination would be an employer indicating to a disabled person that he or she would not be hired because of fear of negative customer reaction.

 

Differential treatment

During the 1950s and in the mid-1960s after the passage of the Civil Rights Act, agencies in the United States came to apply what is called the “equal protection” concept of discrimination. In this approach discrimination was seen to cause economic harm “by treating members of a minority group in a different and less favourable manner than similarly situated members of the majority group” (Pentney 1990). Under the differential treatment approach, the same standards are seen to apply to all employees and applicants without the need to demonstrate discriminatory intent. Discrimination in this context would include requiring disabled employees to undergo a medical examination to receive group health insurance benefits when such examinations are not required for non-disabled employees.

 

Indirect or adverse effect discrimination

Although the differential treatment model of discrimination mandates that employment policies and practices be equally applied to all, many superficially neutral requirements, such as education and testing, had unequal effects on various groups. In 1971, the United States Supreme Court dealt with this issue by articulating a third definition of employment discrimination in the famous case Griggs vs. Duke Power. Prior to the passage of the Civil Rights Act, Duke Power discriminated against Blacks by restricting them to the low-paying labour department. After passage of the legislation, completion of high school and successful completion of aptitude tests were made prerequisites to transfer out of the labour department. In the candidate catchment area, 34% of Whites but only 12% of Blacks had the necessary education. In addition, while 58% of Whites passed the tests, only 6% of Blacks were successful. These requirements were imposed despite evidence that showed that employees without these qualifications, hired before the policy change, continued to perform satisfactorily. The Supreme Court struck down the educational and test requirements that screened out a greater percentage of blacks, on the grounds that such practices had the consequence of excluding Blacks and because they bore no relationship to job requirements. The intent of the employer was not at issue. Rather, what was important was the effect of the policy or practice. An example of this form of discrimination would be the requirement to pass an oral examination. Such a criterion might have an adverse impact on deaf or orally impaired candidates.

 

Equal versus Equitable Treatment

The model of adverse impact or indirect discrimination is the most problematic for persons with disabilities. For if disabled persons are treated the same as everyone else, “how can it be discrimination?” Central to an appreciation of this concept is the notion that to treat all people the same is, sometimes, a form of discrimination. This principle was most eloquently put forth by Abella in her report (Canada Royal Commission 1984), when she noted:

 

Formerly, we thought that equality only meant sameness and that treating persons as equals meant treating everyone the same. We now know that to treat everyone the same may be to offend the notion of equality. Ignoring differences may mean ignoring legitimate needs. It is not fair to use the differences between people as an excuse to exclude them arbitrarily from equitable participation. Equality means nothing if it does not mean that we are of equal worth regardless of the differences in gender, race, ethnicity, or disability. The projected, mythical, and attributed meaning of these differences cannot be permitted to exclude full participation.

 

To underscore this notion, the term equitable is used increasingly, as opposed to equal treatment.

 

Disability and the Environment: Accessibility and Workplace Accommodation

Flowing from concepts of adverse impact discrimination and equitable treatment is the idea that in order to treat persons with disabilities in a non-discriminatory manner, it is necessary to ensure that the environment and workplace are accessible, and that efforts have been made to reasonably accommodate the individual workplace requirements of the disabled person. Both concepts are discussed below.

 

Accessibility

Accessibility does not just mean that a building entrance has been ramped for use by wheelchair users. Rather it requires that persons with disabilities are provided with accessible or alternative transportation systems to allow them to get to work or school; that sidewalk curbs have been lowered; that Braille indications have been added to elevators and buildings; that washrooms are accessible to persons who use wheelchairs; that carpets whose pile density provides an obstacle to wheelchair mobility have been removed; that visually impaired persons are provided with technical aids such as large-print manuals and audiocassettes, and hearing-impaired persons are provided with optical signals, among other measures.

 

Reasonable workplace accommodation

Equitable treatment also means that attempts should be made to reasonably accommodate the individual needs of disabled persons at the workplace. Reasonable accommodation can be understood as the removal of barriers which prevent persons with disabilities from enjoying equity of opportunity in vocational training and employment. Lepofsky (1992) notes that accommodation is:

 

tailoring of a work rule, practice, condition or requirement to the specific needs of an individual or group.- An accommodation can include such steps as an exemption of the worker from an existing work requirement or condition applicable to others.- The litmus test of the accommodation’s necessity is whether such a measure is needed to ensure that the worker can fully and equally participate in the workplace.

 

Actually, the list of possible accommodations is theoretically endless, since each disabled person has specific needs. Moreover, two persons who experience the same or similar disabilities may have quite different accommodation needs. The important thing to recall is that accommodation is based on the needs of an individual, and the person requiring the adjustments should be consulted.

 

However, it must be recognized that there are circumstances in which, despite the best of intentions, it is not possible to reasonably accommodate persons with disabilities. Accommodation becomes unreasonable or an undue hardship:

 

· when an individual cannot perform the essential elements of a job, or cannot complete the essential or core elements of the training curriculum

· when to accommodate the individual would result in a risk to health and safety either to the person concerned, or to others, which outweighs the enhancing of equality for disabled persons.

 

In ascertaining the risks to safety and health, consideration must be given to the willingness of a disabled person to accept the risk that providing the accommodation would engender. For example, it may not be possible for a person who must wear an orthopaedic prosthesis to use safety boots as part of a training programme. If no other safety footwear can be found, the requirement to use the boots should be waived, if the individual is prepared to accept the risk, based on an informed decision. This is known as the doctrine of dignity of risk.

 

Determination must be made as to whether accommodation poses a serious risk to persons other than the disabled individual, based on the accepted levels of risk tolerated within society.

 

Assessments of the degree of risk must be made on the basis of objective criteria. Such objective criteria would include existing data, expert opinions and detailed information about the employment or training activity to be undertaken. Impressions or subjective judgements are not acceptable.

 

Accommodation also is an undue hardship when the costs would substantially adversely affect the financial viability of the employer or training facility. However, many jurisdictions provide funds and grants in order to facilitate modifications that promote the integration of disabled persons.

 

Disability and Social Policy: Obtaining the Viewpoint of Disabled Persons’ Organizations

As already observed, persons with disabilities should have the inherent right of choice in all aspects of life, including vocational training and occupational placement. This implies, at the level of the individual, consulting with the person concerned as to his or her wishes. Similarly, when policy decisions are made by the social partners (employers’ and workers’ organizations and government), voice must be given to organizations that represent the views of persons with disabilities. Simply put, when considering vocational training and employment policies, persons with disabilities individually and collectively know their needs and how best to meet them.

 

In addition, it should be recognized that while the terms disability and persons with disabilities are often used generically, individuals who have physical or motor impairments have accommodation and vocational training needs that are different from those of people with intellectual or sensory impairments. For example, while ramped sidewalks are of great benefit to wheelchair users, they may present formidable obstacles to blind people who may not be able to ascertain when they have placed themselves in danger by leaving the sidewalk. Hence, the views of organizations that represent persons with various types of disabilities should be consulted whenever contemplating policy and programme changes.

 

Additional Guidance Concerning Social Policy and Disability

Several important international documents provide useful guidance on concepts and measures concerning equalization of opportunities for persons with disabilities. These include the following: the United Nations World Programme of Action Concerning Disabled Persons (United Nations 1982), the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) (ILO 1983) and the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (United Nations 1993).