Chapter Five: National legislation and the Convention – The content of legislative measures

THE CONTENT OF LEGISLATIVE MEASURES

Critical elements

There are a number of critical elements that are needed in implementing legislation, whether it takes the form of one or more separate laws. The legislation should:

  • Refer explicitly to the Convention and to the Convention’s acknowledgement that the concept of disability is still evolving, and to the notions of “discrimination on the ground of disability,” “reasonable accommodation” and other important terms defined in the Convention;
  • Prohibit discrimination on the ground of disability in all areas covered by the Convention;
  • Identify duty-bearers, including different levels of government and non-State actors;
  • Confer rights on individuals and groups to:
    • Raise allegations of discrimination on the ground of disability;
    • Have those claims investigated; and
    • Have access to appropriate remedies;
  • Provide for independent agencies to:
    • Hear allegations of systematic discrimination and individual cases;
    • Investigate and report on those allegations; and
    • Seek systematic remedies and change through appropriate legal and other channels.

Linking implementing legislation to the Convention

Implementing legislation should include the terms of the Convention or a specific reference to them, in order to indicate clearly that the laws should be interpreted in accordance with the letter and spirit of the Convention.

The Convention is based on an understanding that disability results from the interaction between a person and his/her environment, and that disability is not something that resides in the individual as the result of some impairment. This understanding has important implications for legislation to implement the Convention, particularly in identifying the obstacles that hinder the full realization of the rights of persons with disabilities and in determining appropriate remedies. Parliamentarians might wish to consult with experts on disability issues, including persons with disabilities and their representative organizations, to update their understanding of the nature and forms of disability and the ways in which social barriers to participation can be removed.

Types of disability to be addressed in legislation

The Convention provides a non-exhaustive list of disabilities to be addressed by legislation, in other words, it sets a minimum. The Convention describes persons with disabilities as including “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.”

This definition does not exhaust the categories of disabilities that fall under the protection of the Convention; other types of disability, such as short-term disabilities, could be covered by the Convention and thus could be covered by the laws of individual States parties, especially given the social context of disability. Since article 4 (4) underlines the fact that the Convention is not intended to undermine or replace higher standards of protection of the rights of persons with disabilities under national law, it is open to a State to adopt a wider definition. A State is not required to limit its own definition to the categories mentioned under article 2 of the Convention.

 SHIFTING THE BURDEN OF PROOF IN DISCRIMINATION CASES

Under European law, it has been found appropriate to adopt special provisions relating to the burden of proof in discrimination cases, including disability discrimination cases. For example, article 10 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation provides:

“Burden of proof
1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.” 

“Reasonable accommodation” as a cornerstone of legislation

The Convention stipulates that a failure to afford a person “reasonable accommodation” amounts to discrimination on the basis of disability. Consequently, any legislative definition of discrimination should include the denial of reasonable accommodation as an act of discrimination. Specific reference should be made to the definition of “reasonable accommodation” that appears in article 2 of the Convention.

“Reasonable accommodation” is also known as duty to accommodate; reasonable adjustment, adaptation or measures; or effective or suitable modifications. To afford a person “reasonable accommodation” means, for example, making adaptations to the organization of a work environment, an educational establishment, a health-care facility or transport service in order to remove the barriers that prevent a person with a disability from participating in an activity or receiving services on an equal basis with others. In the case of employment, this might involve physical changes to premises, acquiring or modifying equipment, providing a reader or interpreter or 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 some countries, laws may also require disability-aware procurement strategies, under which public agencies may be required to give preference to equipment that is fully accessible or based on the principle of inclusive design, or to service providers who employ specified percentages of persons with disabilities in their labour force.

 HOW “REASONABLE ACCOMMODATION” IS ADDRESSED IN DIFFERENT COUNTRIES

Americans with Disabilities Act of 1990, 42 USC §12112

(a) General rule
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

(b) Construction
As used in subsection (a) of this section, the term “discriminate” includes—
…

(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant… . 

Spain’s 2003 Law on Equality of Opportunities, Non-discrimination and Universal Accessibility of Persons with Disabilities provides for reasonable adjustment (Ajuste razonable). “Ajuste razonable” is defined as “the measures of accommodating the physical, social and attitudinal environment to the specific needs of persons with disabilities which, in effective and practical form and without supposing a disproportionate burden, facilitate the accessibility or participation of a person with a disability in equal conditions as the rest of the citizenry” (paragraph 7.c).

The United Kingdom’s Disability Discrimination Act of 1995 legislates the duty of employers “to make adjustments” (s 6 (1)). This duty applies where “any arrangement” or “any physical feature of premises” of employer “place[s] the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.” In such a case, “it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.” Subsection 6 (3) specifies examples of steps an employer may have to take to comply with this duty:

  • Making adjustments to premises;
  • Allocating some of the disabled person’s duties to another person;
  • Transferring him/her to fill an existing vacancy;
  • Altering his/her work hours;
  • Assigning him/her to a different place of work;
  • Allowing him/her to be absent during working hours for rehabilitation, assessment or treatment;
  • Giving him/her, or arranging for him/her to be given, training;
  • Acquiring or modifying equipment;
  • Modifying instructions or reference manuals;
  • Modifying procedures for testing or assessment;
  • Providing a reader or interpreter;
  • Providing supervision.

According to the Magna Carta for Disabled Persons of the Philippines, in the employment context, reasonable accommodation includes “(1) improvement of existing facilities used by employees in order to render these readily accessible to and usable by disabled persons; and (2) modification of work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustments or modifications of examinations, training materials or company policies, rules and regulations, the provision of auxiliary aids and services, and other similar accommodations for disabled persons” (s 4 (h)).

In relation to the provision of public services and public accommodations, the Magna Carta for Disabled Persons provides that discrimination includes:

“a failure to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the goods, facilities, services, privileges, advantages, or accommodations” (s 36 (2)).

 

DISABILITY-AWARE PROCUREMENT STRATEGY IN THE UNITED STATES OF AMERICA

 

In some countries, legislation requires the Government to give preference in its public procurements to equipment and technology that meets accessibility, universal and inclusive-design standards. For example, section 508 of the US Rehabilitation Act of 1973, 29 U.S.C. § 794 (d) provides:

Ҥ 794d. Electronic and information technology

(a) Requirements for Federal departments and agencies

(1) Accessibility

(A) Development, procurement, maintenance, or use of electronic and information technology

When developing, procuring, maintaining, or using electronic and information technology, each Federal department or agency, including the United States Postal Service, shall ensure, unless an undue burden would be imposed on the department or agency, that the electronic and information technology allows, regardless of the type of medium of the technology —

(i) individuals with disabilities who are Federal employees to have access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities; and

(ii) individuals with disabilities who are members of the public seeking information or services from a Federal department or agency to have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.

(B) Alternative means efforts

When development, procurement, maintenance, or use of electronic and information technology that meets the standards published by the Access Board under paragraph (2) would impose an undue burden, the Federal department or agency shall provide individuals with disabilities covered by paragraph (1) with the information and data involved by an alternative means of access that allows the individual to use the information and data . . ..”

While accommodation of the particular needs of persons with disabilities is required under the Convention, the requirement is one of reasonable accommodation. If the accommodation required would impose a disproportionate or undue burden on the person or entity expected to provide it, then a failure to do so would not constitute discrimination. In a number of countries, legislation sets out the factors that should be taken into account when assessing whether the accommodation requested amounts to a disproportionate burden. These include the practicability of the changes required, the cost involved, the nature, size and resources of the entity involved, the availability of other financial support, occupational health and safety implications, and the impact on the operations of the entity.

 DISPROPORTIONATE OR UNDUE BURDEN

The 2003 Spanish Law on Equality of Opportunities, Non-discrimination and Universal Accessibility of Persons with Disabilities, providing for reasonable adjustment (Ajuste razonable), uses the term “disproportionate burden” (“carga desproporcionada”) in its legislation. Article 7 provides that, “to determine whether a burden is proportional or not one must take into consideration the costs of the measure, the discriminatory effects failure to adopt the measure would imply for the persons with disabilities, the structure and characteristics of the person, entity or organization that must implement it and the possibility of obtaining official financing or other assistance.”

Under the United Kingdom’s Disability Discrimination Act, an employer discriminates against a disabled person if two conditions are met: “(a) he fails to comply with a section 6 duty [to make reasonable adjustments] imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified.” Section 6 (4) of the Act lists key factors that must be considered in determining whether it is reasonable for an employer to have to take a particular step in order to comply with the duty to make reasonable adjustments:

“(a) The extent to which taking the step would prevent the effect in question;

(b) The extent to which it is practicable for the employer to take the step;

(c) The financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of his activities;

(d) The extent of the employer’s financial and other resources;

(e) The availability to the employer of financial or other assistance with respect to taking the step.”

Under the Australian Disability Discrimination Act of 1992, employers, educational authorities and others are required to make “reasonable adjustment” as long as this would not impose an unjustifiable hardship or be unreasonable. Section 11 provides that “in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account,” including:

  • The nature of the benefit or detriment likely to accrue or be suffered by any persons concerned;
  • The effect of the disability of a person concerned;
  • The financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
  • In the case of the provision of services, or the making available of facilities, an action plan given to the Commission under section 64.

With regard to the costs to the employer, the Australian Human Rights and Equal Opportunity Commission specifies that consideration should be given to “the net costs (or benefits) which are identifiable or reasonably likely to result overall for the employer, not simply the direct or upfront or gross costs.” This may require taking into account:

  • Direct costs; 
  • Any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to the employment of the person concerned;
  • Indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise;
  • Any increase or decrease in sales, revenue or effectiveness of customer service;
  • How far an adjustment represents any additional cost above the cost of equipment or facilities that are or would be provided to an employee similarly situated who does not have a disability;
  • How far an adjustment is required in any case by other applicable laws, standards or agreements; and
  • Relevant skills, abilities, training and experience of a person seeking the adjustment.

In addition to considering the financial costs and benefits of making the adjustment and the benefit of providing equal opportunity, treatment or participation to the person with a disability directly concerned, one might also consider:

  • Any benefit or detriment of the adjustment concerned for access or opportunity for other employees or potential employees, customers or clients or other persons who would possibly be affected;
  • The benefit or detriment of the adjustment concerned to the effective organization of work in the enterprise or workplace concerned, regarding: the number of employees; the spatial organization of work; the nature of work to be performed; relevant customer requirements; workforce planning needs; any “down time” or interruption to production involved in making the adjustment; and any other factors affecting the efficiency, productivity, success and, where relevant, competitiveness of the enterprise;
  • Whether the adjustment would impose unreasonable requirements on other employees;
  • The nature and likelihood of any benefit or detriment to the health or safety of any person in making the adjustment;
  • The nature and likelihood of any environmental benefit or detriment as a result of making the adjustment; and
  • Whether the adjustment concerned would assist, or interfere, with compliance with applicable provisions of other relevant laws, standards or agreements and the nature and likelihood of any other benefit or detriment as a result of making the adjustment.

Special measures

Legislation should not be limited to prohibiting discrimination, but might also require the State and private actors to take positive measures. Article 5 (4) of the Convention recognizes that in order to ensure equality with others, it may sometimes be necessary to provide special support for particular individuals or for persons with particular types of disabilities. This may take two forms:

  • Ongoing or permanent measures. These are special measures that will be ongoing or possibly permanent. For example, in order to ensure that persons with disabilities are as mobile as others, Governments might provide a travel subsidy for disabled persons to enable them to use taxis.
  • Temporary special measures. These are measures that are adopted to redress the past disadvantage of persons with disabilities, but which may be intended to operate only for a period of time. For example, a Government might set targets or quotas for the employment of persons with disabilities with the goal of removing the quotas once the targets have been achieved.

Both ongoing and temporary special measures are permissible under the Convention and do not constitute discrimination as defined by the Convention. Indeed, both types of special measures might be necessary in order to achieve equality and therefore a State party will be obliged to adopt a range of special measures across different areas of social life.

Sometimes, when special measures of this kind are adopted to redress the historical and continuing disadvantage suffered by members of a group, the measures are challenged by persons who do not belong to that group on the ground that they are discriminatory. Parliaments must ensure that any constitutional or legislative guarantee of equality makes it clear that special measures mentioned in the Convention are lawful under national law and are not subject to challenge under other equality guarantees by persons who do not have disabilities but who claim that their exclusion is a violation of their equal rights.

Parliaments also have a special role in raising awareness, in the wider community, of the need for special measures and their benefit to society as a whole. Laws might also require government departments and even private corporations to report annually on the steps they have taken to promote the rights of persons with disabilities. Reporting requirements might cover a range of issues, including: the steps taken to ensure that the rights of persons with disabilities are being guaranteed in practice; success in raising the percentage of employees who are persons with disabilities; or success in improving services to customers with disabilities who might have special needs.

Discrimination by State authorities, private persons and corporations

It is a central component of the Convention that persons with disabilities should be protected against discrimination by both public and private actors. Therefore, an anti-discrimination law or other legislative measures that prohibit discrimination and mandate equal treatment should apply to private individuals, bodies or corporations, as well as to public officials and bodies. The Convention also obliges States to regulate the private sector.

 STATES PARTIES’ OBLIGATIONS TO REGULATE THE PRIVATE SECTOR

  • States Parties undertake … [t]o take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise (article 4 (1) (e)).
  • States Parties undertake to … [encourage] all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention (article 8 (2) (c)).
  • States Parties shall also take appropriate measures to … [e]nsure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities (article 9 (2) (b)).
  • States Parties shall … [r]equire health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care (article 25 (d)).
  • States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia … [p]romote 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 (article 27 (1) (h)).

 Specific areas for legislative reform

The Convention specifies a number of areas that require legislative guarantees or protection. Article 12 (1) of the Convention reaffirms the right of persons with disabilities to recognition as persons before the law, and article 12 (2) recognizes that persons with disabilities have the right to use their legal capacities as others do. Article 12 (3) underlines the need for measures to support the exercise of that capacity, while article 12 (4) calls for the establishment of safeguards to ensure there is no abuse of  that support.

Since denying legal capacity to persons with disabilities has led to egregious violations of their rights, any law-reform process should address this issue as a matter of priority. Parliaments should examine existing law to determine if there are any formal limitations on the capacity of persons with disabilities and if the provisions of the law and practice conform to the Convention. Parliaments should also consider whether, despite formal guarantees of respecting the legal capacity of persons with disabilities, legal capacity is respected in practice. The Convention specifically requires States to take appropriate measures to ensure that persons with disabilities who need assistance in exercising that capacity receive it.

The Convention also contains a number of guarantees concerning areas where the rights of persons with disabilities have been and continue to be denied. These include the right to liberty and security of the person (article 14) and the rights to freedom from torture and freedom from exploitation, violence and abuse within and outside the home. A State should carefully review its laws and their operation, particularly in areas such as deprivation of liberty of persons with disabilities, including those with intellectual and mental disabilities. For example, States should note the Convention’s requirements on independent living within the community instead of forced institutionalization or forced medical interventions, and should ensure that there are laws and procedures to monitor the operation of this legislation, investigates cases of abuse and impose punitive measures, as necessary (article 16 (4).

Intellectual property laws and ensuring access to books, films and other media

States parties should examine their intellectual property laws to ensure that they do not hinder persons with disabilities from accessing cultural materials. A number of countries have adopted such legislation in adherence to other international obligations, such as those under treaties with the World Intellectual Property Organization and the World Trade Organization.

Legislation recognizing national sign language(s)

The Convention obliges States parties to recognize and promote the use of sign language. This would likely require some implementing legislation.

 STATES THAT RECOGNIZE NATIONAL SIGN LANGUAGES

The Constitution of Uganda specifically recognizes sign language and the duty of the State to foster its development. Article 24 of the Constitution provides:

“[T]he State shall promote the development of a sign language for the deaf.”

Section 17 of the Constitution of Finland (1995), Section 17 – Right to one’s language and culture, provides that:

 “[…] The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an Act.”

Article 101 of the 1999 Constitution of the Bolivarian Republic of Venezuela provides:

“The State guarantees the issuance, receiving and circulation of cultural information. The television media shall include subtitles and translation into Venezuelan sign language for persons with hearing problems. The terms and modalities of these obligations shall be established by law.”

Thai Sign Language was acknowledged as “the national language of deaf people in Thailand” in August 1999, in a resolution signed by the Minister of Education on behalf of the Royal Thai Government.

In 2006, the New Zealand Sign Language Act entered into force. That statute provides for official recognition of New Zealand Sign Language (NZSL), which is the first or preferred language of deaf New Zealanders. The Act recognizes deaf people’s language as a unique New Zealand language and thus gives NZSL equal status to that of spoken languages. The Act provides for any person involved in legal proceedings to use NZSL in those proceedings. The Act also provides that the deaf community should be consulted on matters that affect their language, including, for example, the promotion of the use of NZSL; that NZSL should be used in promoting government services and providing information to the public; and that government services and information should be made accessible to the deaf community through appropriate means, including the use of NZSL.

The Act also provides that government departments should, as far as reasonably practicable, be guided by certain principles about their interaction with the deaf community (clause 9). Nothing in this clause should be read as conferring advantages on the deaf community that are not enjoyed by others (clause 9 (2)).

Complaints procedures under national law

Legislation should ensure that a person who has been subjected to unlawful discrimination is able to obtain an effective remedy. Remedies might include compensation or damages, an order of reinstatement, an order to stop discriminatory acts and prevent them in the future, a requirement to afford reasonable accommodation of the individual’s rights, an apology, an order to take wide-ranging remedial measures, including positive action, or other measures.

Under the discrimination law of a number of countries, once a complainant has established facts from which discrimination may be presumed to exist, the burden of proof shifts to the defendant to demonstrate that the treatment was not based on a prohibited ground of discrimination or, if it was, that it fell within a permitted exception to the prohibition of discrimination. Given the difficulties that complainants in discrimination cases often face in adducing direct evidence of discrimination, this is an important dimension of procedural law that should be addressed (see box on various approaches to discrimination legislation above).

 

REMEDIES

 

Under the Disability Discrimination Ordinance of 1995, when a claim of disability discrimination comes before the District Court in Hong Kong Special Administrative Region of China, the Court has wide-ranging remedial powers, which include the power, under s 72, to:

“(a) Make a declaration that the respondent has engaged in conduct, or committed an act, that is unlawful under this Ordinance, and order that the respondent shall not repeat or continue such unlawful conduct or act;

(b) Order that the respondent shall perform any reasonable act or course of conduct to redress any loss or damage suffered by the claimant;

(c) Order that the respondent shall employ or re-employ the claimant;

(d) Order that the respondent shall promote the claimant;

(e) Order that the respondent shall pay to the claimant damages by way of compensation for any loss or damage suffered by reason of the respondent’s conduct or act;

(f) Order that the respondent shall pay to the claimant punitive or exemplary damages; or

(g) Make an order declaring void in whole or in part either ab initio or from such date as may be specified in the order, any contract or agreement made in contravention of this Ordinance.”

 CRITICAL ISSUES THAT SHOULD BE ADDRESSED IN LEGISLATIVE MEASURES

  • Any legislation should be based on the understanding that:
    • Disability is the result of the interaction of the person with the environment and that
    • Persons with disabilities are entitled to civil, cultural, economic, political and social rights on an equal basis with others.
  • Discrimination on the ground of disability, including the denial of reasonable accommodation as a form of discrimination, by the private and public sectors is prohibited.
  • Persons with disabilities should be included and participate in all aspect of society, including:
    • Political public life (ensuring consultation with persons with disabilities in the implementation of the Convention and policies or laws affecting them, revision of election laws, etc.);
    • Cultural life, recreation, leisure and sport; and
    • Education.
  • The physical environment, transport, technologies, information and communications, and public facilities and services should be accessible.
  • Specific measures of a temporary or permanent nature should be incorporated to accelerate or achieve de facto equality.
  • The rights of individuals and groups to civil, criminal and administrative action against discrimination based on disability, and appropriate remedies, should be ensured.
  • Any definitions of types of disability should be in accordance with article 2 of the Convention.
  • The right of persons with disabilities as persons before the law and recognition of their legal capacity, including supportive measures and necessary safeguards, should be ensured.
  • Persons with disabilities should have access to justice, entailing procedural accommodations at all stages of legal proceedings.
  • A national mechanism to monitor the implementation of the Convention should be established.