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| [discom10.htm] |
It is commonly said that the equal protection clause is a principle that any Constitution should contain. It guarantees that similar individuals, under similar circumstances, will be dealt with in a similar manner by the Government and by law. It does not reject, however, the Government’s ability to classify persons or draw lines in the creation and application of laws. But it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. Therefore, those who are treated less favourably by the legislation are not denied equal protection of the law because they are not similarly situated to those who receive the benefit of the legislative classification. There is a public and superior interest in this unequal treatment that justifies it.
Persons subject to purposeful discrimination are members of a suspect class. Where government action treats a member of such a class differently from the general population on the basis of being a member of that class, the state action will be strictly scrutinised. That means that the differing treatment will be upheld only if the State can show a compelling governmental interest and that no less discriminatory alternatives exist that would serve this interest as well1. When a group of individuals does not constitute a suspect class, the State need only have a rational basis for a particular exclusionary practice. The court held that mentally retarded persons do not constitute even a quasi-suspect class. The same would seem to apply to individuals with physical disabilities.
Canada was the first country to include a full equality clause in the Canadian Constitution that mentions disability in its wording: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Canadian Human Rights Act2 created a Human Rights Commission for dealing with complaints about discrimination.
The Americans with Disabilities Act provides that public opportunity providers may not discriminate against otherwise qualified individuals with disabilities. In evaluating the issue of equal protection, the Supreme Court has established major standards.
In Germany, after reunification, the Constitution of the Federal Republic of Germany was amended. In addition to the general equal protection clause, a new phrase was added: "No one may be disadvantaged on account of his disability."
In France, it is a criminal offence to discriminate against a person on the grounds of health or impairment, where this is unjustified, in providing goods, services or employment.
The Constitution of the Portuguese Republic7 states: "Citizens who are physically or mentally disabled shall enjoy all the rights and be subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement unfits them" (article 71).
Positive discrimination consists of treating a particular group of people better than the rest of society because of their special circumstances. Many Constitutions introduce this concept in order to protect the rights of the disabled people:
In Australia, the Disability Discrimination Act allows federal, state and local Governments to enact special measures in favour of less advantaged groups. In some cases, persons pertaining to dominant groups filed complaints asserting that they were being discriminated against by positive action measures. The Australian Courts held that special and preferential treatment may be justified to achieve the purpose of equal opportunities4.
The Constitution of the Portuguese Republic establishes that "…the State shall carry out a national policy for prevention and for the treatment, rehabilitation and integration of handicapped persons, shall develop a form of education to make society aware of its duties of respect for them and solidarity with them and ensure that they enjoy their rights fully, without prejudice to the rights and duties of their parents or guardians."
To achieve equal protection, the Government must, sometimes, use a quotas policy. In addition, there are subsides and other incentives, as well as the grants and tax concessions, which are also quite effective.
In India, the Persons with Disabilities Bill5 implements a scheme of positive discrimination in favour of persons with disabilities through a quota system, reserving a certain number of places for persons with disabilities in the training and employment programs of public and private sector entities. It also provides incentives to establishments promoting the employment of disabled persons and preferential treatment through tax concessions, subsidies and grants
France also operates a quota system regarding public and private sector employment for undertakings employing at least 20 staff members. The quota has been set at 6 per cent of full time or part-time positions. There are exceptions from these provisions, most of which have financial implications.
In Germany, under employment law, there is also a quota system for employers with at least 19 employees. Failure to comply can lead to financial penalties.
1 e.g.: San Antonio Independent School District versus Rodriguez, 411 US 1.28.1973
2 Adopted in 1985
3 Adopted in April 1976
4 e.g.: Proudfoot versus Human Rights and Equal Opportunities Commission, ALR 199.100.557
5 Adopted in 1995
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