24. PERSONS WITH DISABILITIES
HING Vandanet, RADU Mares
Persons with disabilities are among the vulnerable groups – together with for instance women and girls (chapter 23), migrant workers (chapter 21), indigenous people (chapter 22) – due to the discrimination they have suffered in and outside the workplace. Human rights have made an important contribution to the design and implementation of measures to achieve equality for persons with disabilities. Indeed there has been a shift from the ‘medical model’ to the social and ‘human rights models’ of disability, and the major UN Convention in this area is based on the human rights model. The UN Convention on the Rights of Persons with disabilities is one of the widely ratified UN human rights treaties. Leading companies have experimented with more inclusive workplaces, partly to comply with new laws but also to obtain the business benefits of employing workers with disabilities. Empirical evidence regarding the valuable contributions made by workers with disabilities is essential to dispel prejudice and the principle of ‘reasonable accommodation’ has been developed to counter simplistic notions that workers with disabilities place impossible burdens on employers. Collaboration with public authorities and civil society groups (chapter 5) remains important to create additional incentives for businesses to hire persons with disabilities and to make it more feasible for them to enter the labour market. This chapter deals with different forms of discrimination and various areas in and outside the workplace where unequal treatment persists. As with other discriminated groups, it is important to realise that unequal treatment is further compounded when there are multiple grounds for discrimination (e.g. color, ethnicity (chapter 22), race, sexual orientation, gender (chapter 23) etc. in place simultaneously – this is the issue of ‘intersectionality’ where several forms of discrimination intersect and compound the negative impact.
In Cambodia, the perception that persons with disabilities are a burden to their family and society is slowly changing. Developments in the legal framework and state policies have improved the protection of the employment rights of persons with disabilities. The way of treating persons with disabilities is now shifting from sympathy to a rights-based approach. This is also thanks to the dedicated work of international and non-governmental organizations to voice rights of the person with disabilities. Today, persons with disabilities have more opportunities to be employed and to make a living, which contributes to them feeling more empowered and valued due to their increased independence and ability to work. Yet, there remains a lot more work to be done. Persons with disabilities continue to face challenges including discrimination, prejudice, judgement and being undervalued in the workplace, which can heavily influence their daily life and affect their wellbeing. Thus, it is essential for employers to better understand the rights of persons with disabilities and to swiftly comply with the relevant Cambodian regulations and policies.
- Principle of reasonable accommodation (individual reasonable adjustments)
- Disproportionate burden
- Essential functions of the job
- Principle of confidentiality
- Universal design (of goods, services, equipment and facilities)
- Right to work (and to just conditions of work)
- Non-discrimination and equality of opportunity
- Discrimination (direct and indirect discrimination)
- Principle of equality (formal equality, substantive equality, inclusive equality, equality of opportunities and of results)
- Work environment (that is open, inclusive and accessible to persons with disabilities)
- Individual autonomy
- Full and effective participation and inclusion in society
- Disability models (charity model, medical model, rights model)
- Employment quotas (and quota laws)
- Rehabilitation-before-benefit principle
- Trade unions and persons with disabilities (role of trade unions, relation to disabilities movement)
- Legislation protecting rights of persons with disabilities (constitutional law, civil law, labour law, criminal law)
WHO & World Bank, World Report on Disability
More than a billion people are estimated to live with some form of disability, or about 15% of the world’s population (based on 2010 global population estimates). This is higher than previous World Health Organization estimates, which date from the 1970s and suggested around 10%. (…)
The number of people with disabilities is growing. This is because populations are ageing – older people have a higher risk of disability – and because of the global increase in chronic health conditions associated with disability, such as diabetes, cardiovascular diseases, and mental illness. (…)
The International Classification of Functioning, Disability and Health (ICF), adopted as the conceptual framework for this Report, defines disability as an umbrella term for impairments, activity limitations, and participation restrictions. Disability refers to the negative aspects of the interaction between individuals with a health condition (such as cerebral palsy, Down syndrome, depression) and personal and environmental factors (such as negative attitudes, inaccessible transportation and public buildings, and limited social supports).
ILO, Achieving Equal Employment Opportunities through Legislation: Guidelines
Disability as a human rights issue
For a long time, disability was treated primarily as a social welfare issue. This reflected the widely held belief that people with disabilities needed care and assistance, being unable and incapable of living their own lives such that they were deserving of protection and were supported generally through social security systems. As a corollary, people with disabilities were seen as objects of social welfare, charity and care and not as subjects in their own right capable of making their own personal decisions, let alone entitled to the full enjoyment of the right to work. Due to their marginalized position in society and resulting invisibility, as well as widespread prejudice, people with disabilities did not fully enjoy their human rights, including the right to decent work.
The human rights charters and conventions adopted from the mid-1940s to the late 1960s (…) do not specifically mention people with disabilities. It is only since the 1970s that the disadvantages faced by disabled persons, their social exclusion and discrimination against them were increasingly perceived to constitute a human rights issue. The shift from a social-welfare approach to one based on human rights is reflected in explicit reference to persons with disabilities in human rights charters, conventions and initiatives adopted since the 1980s (…)
The central concept of ‘disability’ is not defined but the Preamble [of CRPD] affirms the social construction of ‘disability’ by recognizing that “disability 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”. This represents a significant shift from the more traditional approach in which disability is seen as linked to an individual’s impairment.
Similar shifts from a social welfare to a human rights law approach and from segregated to inclusive service provision are taking place on a regional and national level (…)
The concept of disability
In this discussion, two opposing views can be distinguished. On the one hand, there are those who situate the problems of disability in the impairment of the person concerned, while paying little or no attention to his or her physical or social environment. This is referred to as the individual or medical model of disability.
On the other hand, there are those who perceive disability as a social construct: disabilities result from the failure of the physical and social environment to take into account the needs of particular individuals and groups. According to this social model of disability, society creates disabilities by accepting an idealised norm of the physically and mentally perfect person and by organizing society on the basis of this norm.
A third model of disability has recently emerged: the human rights model that lies at the core of the CRPD. Going beyond the social model of disability, this approach encompasses the values for disability policy that acknowledges the human dignity of disabled persons and provides for civil and political as well as economic, social and cultural rights. It recognizes some intersecting grounds of discrimination, such as the connection between disability and gender, or between disability and indigenous or ethnic identity as leading to discrimination and offers a roadmap for change.
According to the individual model of disability, a person with a mobility impairment is disabled as a result of an individual impairment. He or she can try to overcome the functional limitations which come along with this by undergoing medical or paramedical treatment and/or by using medical or paramedical aids, such as a wheelchair or crutches.
According to the social model of disability, a mobility impairment should be seen in the context of the surrounding society and environment. Reducing or overcoming the limitations on activities and restrictions to participation associated with mobility impairment implies taking away societal barriers, and ensuring that the built environment is accessible.
According to the human rights model of disability, impairment is part of human diversity, a person’s human dignity is central, the individual should be involved in all decisions affecting him or her and the main ‘problem’ lies outside the person, and in society.
Both the social and individual models of disability have proven to have advantages and constraints, depending on the aim of the legislation. The individual or medical model can be particularly helpful in such fields as rehabilitation medicine and social security law, while the social model can be instrumental in tackling the root causes of exclusion, disadvantage and discrimination. The social model recognises that the answer to the question of whether a person can be classified as disabled, is intrinsically related to such factors as culture, time and environment.
The emerging human rights approach, codified in the CRPD, provides a framework to examine the interaction of the impairment and the society which gives rise to a disability and to develop a roadmap for change.
Defining disability in legislation
The definition of disability, which determines who will be recognized as a person with a disability, and hence protected by the relevant legislation, is very much dependent on the goal being pursued by the particular law or policy. Thus, there is no single definition of disability which can be used in all labour and social legislation. In many cases, non-discrimination legislation does not contain a definition, but adopts the definition contained in social security law. The two different approaches to definition are as follows.
- Wording aimed at a narrow, identifiable beneficiary group. This approach usually involves providing a list of conditions or types of impairments. These impairments are generally long lasting or permanent in nature and impair a person’s daily life or capacity to participate in employment. This should be used if the aim is to craft laws to provide financial or material support to disabled individuals, or employers of disabled people. A limited, impairment-related definition of disability (individual model) thereby ensures that support is targeted at those who are most in need.
- Broadly inclusive wording aimed at protection from discrimination on the grounds of disability. This broader definition of the protected group (social model) should be used in anti-discrimination laws because many people, including those with minor or temporary disabilities, people associated with people with disabilities and those who are wrongly assumed or perceived to have a disability, can be affected by disability-based discrimination.
Different forms of discrimination
Discriminatory behaviour arises when an employer treats a (candidate) worker adversely or less favourably on the ground that he or she has a disability, where the disability has no, or hardly any, effect on job performance and should be regarded as irrelevant. Various forms of discrimination can be distinguished, including:
Direct discrimination occurs when a person is treated less favourably than another similarly situated person because of a particular characteristic protected by non-discrimination law, such as race or sex. Example: An employer advertises for a job and states in the advertisement “no blind people should apply”.
Indirect discrimination occurs when an apparently neutral situation, regulation or practice in fact results in unequal treatment of persons with certain characteristics. It occurs when the same condition, treatment or criterion applies to everyone, but has a disproportionately harsh impact on some persons on the basis of certain characteristics. Intention to discriminate is not required for indirect discrimination to be judged to have occurred. Example: An employer advertises for a job and states in the advertisement: only people with a driving licence should apply. This requirement does not expressly exclude disabled people and appears to be neutral on an initial examination. However, people with certain kinds of disabilities cannot acquire a driving licence and will be unable to apply for the job. If the requirement of having a driving licence is unnecessary for the job, in that the job rarely requires the worker to drive, and taxis can be hired or public transport used for the few occasions when vehicular travel is required, the requirement will amount to indirect discrimination and is incapable of being justified.
Harassment occurs when unwanted conduct related to a protected ground takes place with the purpose or effect of violating the dignity of a person and/or of creating an intimidating, hostile, degrading, humiliating or offensive environment. An example is verbally abusive behaviour by a work colleague directed at a person’s protected characteristic or ground such as sex, disability or ethnic status.
Discrimination by reason of association occurs where a person is treated less favourably than another person not due to their having a protected or particular characteristic but rather due to their connection or relationship with a person who has such a characteristic. It is particularly in the case of those who have caring responsibilities for persons with disabilities that this form of discrimination is likely to occur. (…)
Convention on the Rights of Persons with Disabilities
Article 2: Definitions
“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;
“Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;
“Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. “Universal design” shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.
Article 4: General obligations
1. (…) States Parties undertake: (…)
(e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise;
(f) To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities (…)
(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost; (…)
Article 9: Accessibility
2. States Parties shall also take appropriate measures to: (…)
(b) Ensure 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 21: Freedom of expression and opinion, and access to information
States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion (…) including by: (…)
(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities; (…)
Article 25: Health
States Parties 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. (…)
(d) Require 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 27 – Work and employment
1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. 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:
(a) 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;
(b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;
(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;
(d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;
(e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;
(f) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;
(g) Employ persons with disabilities in the public sector;
(h) Promote 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;
(i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;
(j) Promote the acquisition by persons with disabilities of work experience in the open labour market;
(k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. (…)
CRPD Committee, General Comment No 6 (Equality and non-discrimination)
2. The Committee is concerned that the laws and policies of States parties still approach disability through charity and/or medical models, despite the incompatibility of those models with the Convention. The persistent use of such paradigms fails to acknowledge persons with disabilities as full subjects of rights and as rights holders. (…)
7. (…) Discrimination has occurred and continues to occur, including in brutal forms such as non-consensual and/or forced systematic sterilizations and medical or hormone-based interventions (e.g. lobotomy or the Ashley treatment), forced drugging and forced electroshocks, confinement, systematic murder labelled “euthanasia”, forced and coerced abortion, denied access to health care, and mutilation and trafficking in body parts, particularly of persons with albinism.
The human rights model of disability and inclusive equality
8. Individual or medical models of disability prevent the application of the equality principle to persons with disabilities. (…) these early soft-law human rights instruments paved the way for an equality approach to disability, they were still based on the medical model of disability, as impairment was seen as a legitimate ground for restricting or denying rights. They also include language that is now considered inappropriate or obsolete. A further step was taken in 1993 with the adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which proclaimed “equality of opportunities” a fundamental concept of disability policy and law. (…)
10. Equalization of opportunities, as a general principle of the Convention under article 3, marks a significant development from a formal model of equality to a substantive model of equality. Formal equality seeks to combat direct discrimination by treating persons in a similar situation similarly. It may help to combat negative stereotyping and prejudices, but it cannot offer solutions for the “dilemma of difference”, as it does not consider and embrace differences among human beings. Substantive equality, by contrast, also seeks to address structural and indirect discrimination and takes into account power relations. It acknowledges that the “dilemma of difference” entails both ignoring and acknowledging differences among human beings in order to achieve equality.
11. Inclusive equality is a new model of equality developed throughout the Convention. It embraces a substantive model of equality and extends and elaborates on the content of equality in: (a) a fair redistributive dimension to address socioeconomic disadvantages; (b) a recognition dimension to combat stigma, stereotyping, prejudice and violence and to recognize the dignity of human beings and their intersectionality; (c) a participative dimension to reaffirm the social nature of people as members of social groups and the full recognition of humanity through inclusion in society; and (d) an accommodating dimension to make space for difference as a matter of human dignity. The Convention is based on inclusive equality.
Article 6 on women with disabilities
36. Women and girls with disabilities are among those groups of persons with disabilities who most often experience multiple and intersectional discrimination. (…) While only article 6 mentions the term “multiple discrimination”, multiple and intersectional discrimination may occur in any combination of two or more grounds. Article 6 is a binding equality and non-discrimination article that prohibits discrimination against women and girls with disabilities and obliges States parties to promote equality of both opportunity and outcomes. Moreover, article 6, like article 7 [children with disabilities], must be regarded as illustrative, rather than exhaustive, setting out obligations in respect of the two prominent examples of multiple and intersectional discrimination.
CRPD Committee, General Comment No 2 (Accessibility)
13. (…) It is important that accessibility is addressed in all its complexity, encompassing the physical environment, transportation, information and communication, and services. The focus is no longer on legal personality and the public or private nature of those who own buildings, transport infrastructure, vehicles, information and communication, and services. As long as goods, products and services are open or provided to the public, they must be accessible to all, regardless of whether they are owned and/or provided by a public authority or a private enterprise. Persons with disabilities should have equal access to all goods, products and services that are open or provided to the public in a manner that ensures their effective and equal access and respects their dignity. This approach stems from the prohibition against discrimination; denial of access should be considered to constitute a discriminatory act, regardless of whether the perpetrator is a public or private entity. (…)
ILO, Promoting Diversity and Inclusion – A Practical Guide
Reasonable Accommodation is normally viewed as an individualized adjustment to the working environment in response to the specific requirements of a worker. Whereas accessibility entails taking general measures in anticipation of the needs of a range of workers, including those who may be expected to work for the company in the future, reasonable accommodation will typically be a response to an individual request.
Model Policy on Reasonable Accommodation
We, the leaders of [insert company name] are committed to:
- ensuring equality for all persons in the workplace;
- respecting the diversity of all workers;
- fostering an organizational culture characterised by inclusivity and respect for fundamental rights and dignity;
- a policy of zero tolerance towards discrimination;
- creating and maintaining a working environment free of discrimination that is unlawful or prohibited by company policy.
The company should provide reasonable accommodation to workers who require workplace modification to be able to perform their jobs on the same basis as other workers. The company acknowledges that, as a general principle, denial of a reasonable accommodation is a form of discrimination.
Thus, the company is committed to providing individual workers with accommodation where this is both reasonable and necessary, and recognizes that reasonable accommodation should be provided where the accommodation requested does not impose a disproportionate burden. In this context, the needs of both the worker and the company should be considered.
“Reasonable Accommodation” – Necessary and appropriate modification and adjustments not imposing a disproportionate burden, where needed in a particular case, to ensure that all persons have access to, can participate or advance in, employment or a specific occupation.
“Disproportionate burden” – In determining whether the accommodation requested will give rise to a disproportionate burden, the company should take into account factors such as:
- financial and other costs;
- the resources of the company;
- the company’s organization or functioning;
- the possibility of obtaining funding from a third party for the accommodation;
- the potential benefits of the accommodation to persons other than the individual making the request;
- the obligations of the company to protect the safety and health of the individual making the request and any other person who may be affected;
- the rights and freedoms of others
“Qualified to Perform the Essential Functions of the Job” – An individual should be qualified to perform the essential functions of the job. This means that the worker should:
- satisfy essential job requirements regarding educational background, employment experience, skills, licenses, and any other qualification standards that are job-related;
- be able to perform those tasks that are essential to the job, but which may need a reasonable accommodation to enable the worker to do so.
“Essential Functions of the Job” – Essential (or “core”) functions are the fundamental job duties or requirements of a particular job. Essential functions cannot be eliminated or substantially modified without changing the nature of the job. Essential functions do not include the secondary tasks of a job. Factors to consider in determining whether a function is essential include:
- whether the primary reason that the position exists is to perform that function;
- the number of other workers available to perform the function or among whom the performance of the particular function can be distributed;
- the degree of expertise or skill required to perform the function;
- the judgement of the company concerning which functions are essential, and the written job description prepared before advertising or interviewing for a job;
- the actual work experience of present or past workers in the job;
- the proportion of time required by the worker to perform the function in question;
- the consequences of not requiring that a worker perform a specific function.
(…) In principle, the company is committed to providing reasonable accommodation:
- when a worker needs an accommodation to perform his/her job;
- when a worker needs an accommodation to enjoy equal access to any benefits of employment, to use any company equipment or facilities, or to participate in any aspect of the company’s culture or activities (e.g., being able to participate in the annual company retreat, to take part in training courses or to participate in meetings to inform and/or consult with company staff).
ILO, Achieving Equal Employment Opportunities through Legislation: Guidelines
The guidelines focus on the main types of civil and labour law and related policy currently in place to promote employment opportunities for persons with disabilities. Particular attention is paid to non-discrimination legislation and quota laws, and measures which have been introduced to maximize their practical impact. (…)
Laws aimed at prohibiting discrimination on ground of disability in the labour market should:
- explicitly refer to disability as a prohibited ground;
- exercise caution in defining disability;
- cover all forms of discrimination:
- direct discrimination;
- indirect discrimination;
- discrimination by association;
- instruction to discriminate;
- make provision for reasonable accommodation, stating that its denial is a form of discrimination and defining what this involves while recognizing the justification of ‘disproportionate burden’;
- allow for genuine occupational requirements or inherent requirements of the job, which are to be applied narrowly;
- stipulate that the burden of proof shifts to the person who allegedly discriminated, once the complaining party has provided facts suggesting the existence of discrimination;
- be accompanied by social policy measures; and
- allow for affirmative action measures.
Quota laws should:
- be framed as affirmative action measures linked to non-discrimination;
- be aimed at assisting disabled job-seekers to get jobs;
- be backed up with a payment, such as a compensatory levy and an effective enforcement mechanism to encourage compliance by employers;
- offer employers other optional ways of meeting the quota obligation, in addition to recruiting disabled persons and/or paying a levy;
- be based on clearly identified policy goals and be targeted at a clearly specified group of people with disabilities;
- be based on a registration/identification system which guarantees real benefits to those identified as disabled;
- be tailored to the economic situation and employment pattern in the State in question.
The eventual success of equal opportunities legislation and policy measures is often highly dependent on:
- information campaigns, including general and technical information and advice; and
- employment support measures.
The effectiveness of such legislation and policy also depends on the extent to which they reflect the varying interests and needs of groups in society which are affected. To ensure that these interests and needs are adequately taken into account, extensive systematic consultation should take place with the key stakeholders – organizations of disabled persons, employer and worker organizations, service providers as well as relevant government ministries. Consultations should ideally be formalized through existing bodies or through task forces set up for the purpose.
Principle of equality
The principle of equality, as well as its corollary, namely the prohibition of discrimination, can be defined in various ways in law.
Formal equality – In a formal approach to equality, persons who are situated alike should be treated in the same way. Such an approach frequently ignores individual and contextual differences and disadvantages, as if these were irrelevant. The denial of identical treatment is prohibited, but there is no requirement to make accommodations or adjustments. This approach, therefore, falls short of meeting the support needs of some disabled people.
Equality of opportunity – Another way in which equality may be conceptualised is through equality of opportunity. This concept provides for equal chances, but not necessarily equal results. In this way of looking at equality, the importance of individual and group differences is acknowledged and account is taken of external barriers experienced by disabled people, which may inhibit social participation. Both stereotypes and structural barriers are seen as obstacles to full participation. In this approach, disability is ignored, if stereotypes are the basis for action, and taken into account if changes to the social or built environment are necessary to promote access and inclusion and resources are required to ensure that persons with disabilities can make use of the opportunities provided, such as through the provision of reasonable accommodation.
Equality of results – Equality of results is concerned with securing the same outcomes for all. When equality is viewed in this way, individual and group differences are acknowledged. For example, account is taken of any additional costs a disabled worker has, in examining the question of whether they receive equal pay. This concept of equality has several weaknesses. It does not clearly indicate where responsibility lies for meeting the needs of disabled persons so as to guarantee true equality of results – with the State, with the private sector or with the individual. In addition, it is not clear in this approach whether an individual’s merits are understood to justify unequal results. This approach could be used to justify unequal pay for persons with disabilities in employment, for example through their exemption from minimum wage provisions, if the desired result is to maximize the number of employees with disabilities. Equality of results can be used, however, as an indicator of the effectiveness of measures taken to achieve equality of opportunity.
The concept of equality of opportunity is now the most frequently applied in national legislation and is particularly important for persons with disabilities.
A distinction should be made between social policy measures, which are always permitted, and affirmative action measures, which deviate from the equal treatment norm and therefore need a justification.
Respect for human dignity requires the formulation of a social policy, such as a policy to combat illiteracy, unemployment, underemployment and homelessness or increase women’s access to income-generating activities. Such policies are closely related to the promotion of equality of opportunity or equality of results. The beneficiaries of these policies are notably the underprivileged segments of society. Examples:
- Offering an occupational rehabilitation programme to a worker after a serious work accident constitutes a social policy measure. The programme seeks to ensure that the worker can remain an active member of the workforce and will not be confronted with unemployment.
- Offering funding from a public authority to employers to enable them to adapt their work premises to allow access to persons with disabilities.
Affirmative action measures
Affirmative action measures – sometimes called positive action – are aimed at ensuring equality of opportunity in practice, taking into account the diversity of the persons concerned. They are often aimed at historically disadvantaged groups that have been subject to long-standing, entrenched discrimination, with a view to halting discrimination, redressing the effects of past discrimination and restoring a balance. Employers can be required by the States to introduce such measures. Affirmative action is traditionally perceived as a response to social, structural or institutional discrimination experienced, and as a justified exception to the principle of equal treatment. In other words, affirmative action is not discrimination. Affirmative action measures seek to promote equality of opportunity and are aimed at overcoming structural disadvantage experienced by groups. Such measures are not intended to cater for the needs of single individuals and are thus distinct from reasonable accommodation (…). Affirmative action measures are to be regularly examined to ensure they are still needed and remain effective and are intended to last until there has been compensation for, or catching up from a structurally disadvantaged position. Examples:
- Obliging employers to employ a certain number or percentage of workers with a work disability (a quota) or requiring them to set a specific target constitutes an affirmative action measure. The measure could restrict the opportunities of employers to hire (and fire) employees on the basis of that employee’s individual assessment and can require the employer, to treat disabled workers differentially (…).
- Health and safety legislation could be amended to allow positive support for the reintegration of persons with disabilities into the workforce. It could also prevent the application of health and safety legislation in an overly protectionist form which could result in the denial of access of persons with disabilities to equal treatment in employment.
Non-Discrimination Legislation (disability law)
Enterprises of every size should be covered by the non-discrimination provisions. The only exception to the basic right to non-discrimination should be linked to inherent requirements of the job.
The prohibition of discrimination does not make all forms of differentiation among workers and job applicants illegal. Employers can require that employees and job applicants possess certain skills or competencies which are legitimate, in view of the nature of the job concerned or the context in which the job is carried out. Such genuine occupational requirements may result in the exclusion of persons with particular disabilities from a job, but this does not constitute discrimination. Inherent requirements of a job – Examples:
- A taxi company requiring job applicants to have a driving licence, for example, excludes blind people as well as people who, due to a medical condition, no longer have a driving licence. Such a licence requirement on the part of the taxi company is legitimate and proportionate and therefore constitutes a genuine or justifiable occupational requirement.
- An accountancy practice advertises a position where it requires a high standard of mathematics from applicants. This could exclude applicants who are dyslexic. Due the requirements of the position, however, this requirement is legitimate and proportionate and therefore constitutes a genuine or justifiable occupational requirement.
Disability can sometimes affect an individual’s ability to carry out a job in the usual or accustomed way. The obligation to make a reasonable or effective accommodation, or the right to be accommodated, is often found in modern disability non-discrimination law although its origins were in the context of non-discrimination legislation regarding religion. For example, the United States Civil Rights Act 1964 (Title VII) requires employers to reasonably accommodate the religious beliefs of employees which are sincerely held, unless this would impose an undue hardship on the employer. Reasonable accommodation for persons with disabilities in the workplace has its origins in this provision. Disability non-discrimination legislation increasingly requires employers and others to take account of an individual’s disability and to make efforts to cater for the needs of a disabled worker or job applicant, and to overcome the barriers erected by the physical and social environment. This obligation is known as the requirement to make a reasonable accommodation. The failure to provide a reasonable accommodation to workers and job applicants, who face obstacles in the labour market, is not merely a bad employment practice but is increasingly perceived as an unacceptable form of employment discrimination and therefore unlawful, as provided for in the CRPD.
The law should define closely what is meant by reasonable accommodation, so that misinterpretation is avoided and employers clearly understand what they must do.
A disabled worker or job applicant claiming a reasonable accommodation should demonstrate that:
- he or she is (otherwise) qualified for the job; and
- the employer (or other party) was aware of his or her needs; and
- with an accommodation, he or she could (safely) perform the essential functions of that particular job. (…)
An employer is only exempted from this obligation in cases where he/she can prove that:
- they were not aware of the disability; or
- he/she was not aware of the need for an individual accommodation; or
- an effective accommodation, enabling the disabled worker/job applicant to perform the essential functions of a job, is not available; or
- the requested accommodation imposes a ‘disproportionate burden’ on the employer.
The ‘defence’ or justification for not accommodating a disabled person needs to be drafted carefully. Otherwise, unscrupulous employers would have recourse to this in order to avoid any obligation. Much litigation might ensue and the very valuable support of reasonable accommodation would be denied to many persons with disabilities. The fact that the workplace or work schedule would be inconvenienced clearly does not amount to a ‘disproportionate burden’.
In practice, the question as to what constitutes a disproportionate burden very much depends on the context of the case concerned, and is not merely dependent on the financial costs of an accommodation, the financial resources available or financial compensation schemes. It depends on such factors as its practical implications, effects on the overall work process, the size of the enterprise, number of disabled workers already employed, public funding available and length of the envisaged employment contract.
Burden of proof
- Non-discrimination law should stipulate that the burden of proof shifts to those considered to have discriminated once the person who considers him or herself wronged has provided facts from which it may be presumed that discrimination has taken place.
- Once the burden of proof has shifted to the person who is alleged to have discriminated against the complainant, evidence must be provided in the form of a valid non-discriminatory justification for the treatment.
Under quota schemes, employers employing a specified minimum number of persons are obliged to ensure that a certain percentage (a quota) of their workforce is made up of people with disabilities. Such schemes first emerged in Europe in the aftermath of the First World War, and initially war veterans who were disabled as a result of military action were the only beneficiaries. These schemes typically exempted small employers. In the post Second World War period, quota schemes were extended to cover disabled civilians, and were adopted in many countries throughout the world. The exemption for small employers was, however, often maintained.
Many commentators assert that quota systems do not fit well within the employment rights approach of many countries that have introduced sophisticated non-discrimination legislative provisions for persons with disabilities within the labour market, including reasonable accommodation. Quotas are still provided in many countries, however, in spite of the employment rights approach, due to the view that this system is required to counteract the low employment rates of persons with disabilities.
ILO, Labour Market Inclusion of People with Disabilities
International frameworks on social development and on human rights commit to inclusion of persons with disabilities. This is essential to ensure the principle of “leaving no-one behind” of the 2030 Agenda for Sustainable Development and also makes important contributions to economic development. As ILO estimates have shown, if the employment of persons with disabilities, as a group, could be raised to the level of persons without disabilities, then economies could benefit from between three to seven per cent increase of GDP. (…)
Until the end of the XX century, but still in many cases today, policies in many OECD countries, including G20 members, were biased towards relatively generous and easily accessible disability benefits with little or no emphasis on the drivers behind these unbalances. Policy objectives are now shifting in these countries towards the search for a new balance between two simultaneous goals: i) to provide an adequate and secure income for those who cannot work and their families; while ii) providing good incentives and supports to work for those who can. Just when this turn in policies started being implemented a new challenge emerged. The fast increase in G20 advanced countries in the number of disability benefit claims because of mental health problems, often at a relatively young age, is the added challenge that makes disability policies a moving target for policy makers. The combination of these multiple challenges makes working-age disability policy today one of the biggest and most complex social and labour market challenges for policy makers.
(…) many policy measures are relevant for all persons with disabilities, whether they seek to enter, stay or re-enter the labour market. These can include non-discrimination legislation, mandated quotas in employment or training, provision of workplace adjustments, inclusive public employment services as well as fostering disability-confident employers who recognize the talent and skills of persons with disabilities.
A. Demand side: promoting disability inclusion within the private and public sector.
A.1. Private-sector employment
The private sector is a key actor in promoting the employment of persons with disabilities. In addition to a robust legal framework, which will be dealt with in a later section, experience shows the importance of engaging the private sector and building the confidence of companies to hire and retain workers with disabilities. Increasingly, employing persons with disabilities is understood to be a part of wider workforce diversity which has concrete economic benefits for private companies, including more effective problem solving, increased innovation, staff commitment and a more positive reputation among clients, business partners and society at large. (…) Advice on appropriate workplace adjustment and corresponding financial supports should be easy to obtain because employers understandably shy away from cumbersome administrative procedures and contacts. (…)
B. Supply side: ensuring that persons with disabilities have the skills as demanded by the labour market
B.2. Vocational rehabilitation for people who acquire a disability
(…) The evidence shows that the longer the absence from work, the more challenging it will be to bring the person back into the labour market. Therefore, in recent years, a number of G20 countries have focused on increasing rehabilitation options at an early stage, as well as strengthening rehabilitation requirements. In Austria, for instance, vocational rehabilitation became compulsory in 1996 and each claim for a disability benefit is automatically treated as a request for rehabilitation. Early intervention kicks in when the present job cannot be resumed. Hungary follows, since 2008, a similar rehabilitation-before-benefit principle with a comprehensive rehabilitation process. (…)
C. Making the environment more enabling
(…) One key element of disability discrimination legislation is the obligation to provide reasonable accommodation (individual reasonable adjustments), an issue that is of particular relevance for labour inclusion. The Job Accommodation Network (JAN) from the U.S. is a good example of a programme that has contributed to the effective implementation of the obligation to provide reasonable accommodation in the workplace.
Another legal measure, used in more than 50 countries worldwide, but not universally accepted, is employment quotas which require employers (usually, private and public) to retain or hire people with disabilities. Annex 1 reflects the use of quotas in the G20 countries. Several countries use a quota-levy system, which requires companies to pay a levy if they don’t meet the established quota and in some countries there is also the option to meet the quota by to buying goods and services from sheltered workshops or other companies with a significant share of workers with disabilities. (…)
Traditionally, disability benefit systems were built on the principle of providing benefits for people who could not be expected to work. Accordingly, the entitlement was related to the existence of a disability and proof of inability to work. Most people with disabilities, if provided with the adequate supports, have full working capacity while some have permanently or temporarily partially-reduced work capacity. To make the best use of people’s work capacity, disability systems should start with an assessment of the employment possibilities of a person applying for a benefit and provide adequate employment supports to try to establish or maintain the claimant’s connection to the workforce. The assessment and corresponding supports should be done quickly so as to avoid claimants being inactive for too long and losing contact with the labour market. Early intervention is of critical importance for people with disabilities and particularly for persons with mental health conditions.
ILO, Trade Union Action on Decent Work for Persons with Disabilities
In many countries and contexts, disability is often understood as the “inability to work”. This idea needs to be challenged directly.
Persons with disabilities have shown they can work productively in all sectors and contexts. Even in difficult circumstances, where they have faced discrimination and social exclusion and do not have the support of services, there are still many cases of persons with disabilities working productively.
Furthermore, the right of persons with disabilities to decent work without discrimination is established both through universal human rights’ frameworks that determine the right of all to work, as well as through the United Nations’ Convention on the Rights of Persons with Disabilities, which specifically targets disability-related discriminations.
[For trade unions] working towards disability is a path to modernizing the trade union by engaging with contemporary social issues, expanding membership and wider partnerships. (…)
Trade union work on disability is often disconnected (…) This is exacerbated at the international level through a more profound disconnection between the labour movement and the disability sector. (…)
Working on disability moves trade unions away from class-based issues to identity-based issues. A discussion of trade union actions in the UK has raised how identity-based challenges like gender, disability, or ethnicity can be hard for trade unions to raise because they have been used to class, or occupation-based identities. One example of this potential risk is collective bargaining agreements that specify work duties in a way that makes individual adjustments difficult. This can make it challenging to raise seemingly “individual” issues around disability or other identity groups.
- Addressing disability gives the trade union an opportunity to move away from the traditional trade-union subject of the non-disabled man working full-time.
- Adopting an intersectional viewpoint understands and tackles the way multiple discriminations interact and compound each other.
(…) Because disability is created in part by barriers in society and in employment, working on disability is about removing these barriers. This supports persons with disabilities as a group, and it also supports other workers by ensuring freedom of expression, accessibility and inclusivity in employment, workplaces and unions themselves.
Global Business and Disability Network, Model Self Assessment Tool
Aligned with the 10 principles of the ILO Global Business and Disability Network (GBDN) Charter, this model self-assessment tool helps companies to identify areas for improvement in its efforts to become more inclusive of persons with disabilities.
While the tool can be used as it stands, global companies or national business and disability networks might want to customise it to adapt the tool to the particular circumstances of the company and national contexts, for instance by adding references to compliance with quota legislation, where it exists.
If you decide to use the tool online, after having answered to all questions, you will get an automatically generated file which contains your answers and indicates the areas for improving your company’s disability inclusion policies and practices. Global companies can collect the answers from their subsidiaries and undertake an internal benchmarking exercise. Similarly, national business and disability networks can use it to facilitate the peer to peer learning among its members.
ILO, Moving Towards Disability Inclusion: Stories of Change
The human rights-based approach
Over the past decades there has been a dramatic shift in the way persons with disabilities are viewed. Where once they were seen as passive recipients of aid, often geared to their impairment-related health needs, today people with disabilities are viewed as people with the same rights as non-disabled persons. This human rights-based approach recognizes that disability is an important dimension of humankind and affirms that all people have certain inalienable civil, political, economic, social and cultural rights, including labour rights.
Promoting inclusive workplaces
The ILO helps businesses and employers learn how to go beyond the ethical and human rights case to the business case for hiring people with disabilities through its Global Business and Disability Network. (…)
One challenge many companies face is not knowing where to find persons with disabilities with the skills required in a particular field. Others shy away from hiring candidates with disabilities in part because they are not sure what “accommodations” they will need to do the job. Employers may think they have to buy expensive equipment or adapt office space, but the reality is quite different. Most workers with disabilities require no special accommodations and the cost for those who do is minimal or much lower than many employers believe.
Companies often benefit from supporting each other by sharing their experiences and good practices on hiring and retaining workers with disabilities. In the process they are discovering the potential of people with disabilities to make significant contributions to a diverse and productive workforce. (…)
Among the many issues that emerged were: employers’ low awareness of tax incentives for hiring disabled persons; inaccessible workplaces; negative attitudes and perceptions about people with disabilities; disabled persons lacking the skills and qualifications needed by employers; and the lack of a database on disabled job seekers.
One of the important outcomes of the roundtable was the validation of the need to establish a network of Zambian employers and key stakeholders to help facilitate the employment of disabled women and men. (…)
While emphasis will be on improving the demand side of the labour market, the supply side will be promoted by engaging an employment agency to prepare and develop skills and confidence of persons with disabilities in addition to managing a database of persons with disabilities to act as a link with potential employers.
ILO, Inclusion of Youth with Disabilities: The Business Case
The Eureka Call Centre Systems in Singapore
The performance of the non-disabled employee’s was actually 50–70 per cent of what those with visual impairments were able to achieve. The Eureka representative recalled that one after another, all the non-disabled agents dropped out. Eureka also found that their disabled employees were punctual, rarely absent and enthusiastic about their work. Within a year of starting the initiative, the Eureka call centre was almost entirely run by visually impaired staff and its previous annual turnover rate of approximately 40 per cent had plunged to 2 per cent. (…)
By reinventing their company, Eureka discovered various strategies that led to positive results. They found that traditional retention incentives, such as monetary reward, recognition and career advancement, held little sway over their agents with disabilities. Rather, a sense of belonging, security and a fun social environment at the work place were more important factors in recruitment and retention. Eureka managers also quickly learned that their employees’ social lives were largely intertwined with their work lives. The managers thus adapted the work environments to include after-work leisure activities such as karaoke and massage machines, picnic lunches and even trips abroad.
For companies interested in replicating or adapting this initiative, Eureka recommends consideration for the following points:
- Equal footing. Training expectations and standards for key performance indicators (KPIs) should not be lowered for people with disabilities. Training and selection must be focused on ensuring productivity gains and meeting KPIs. The Eureka experience has shown that people with disabilities eventually learn to function at the same, if not higher, productivity level than non-disabled persons.
- Encouragement. Many people with disabilities do not have the benefit of job experience. As a result, they sometimes experience low confidence, low self-esteem and benefit from encouragement. All management staff are expected to be understanding of the needs and restrictions of people with disabilities and how important encouragement is for staff performance.
- Innovate and adapt. Disabilities vary. Among the visually impaired, someone may be totally blind, another may have tunnel vision, while yet another can see only large fonts in yellow on black colour contrast. Among the physically impaired, there are wheelchair users and others who have a single finger for their hand. Companies should be prepared to invest in technologies that are essential to “level the playing field,” as far as productivity among people with disabilities is concerned.
- Inclusive designing. When building applications for people with disabilities, it is best to involve them from the beginning on with any project. They will give better suggestions than others who can only try to imagine what it is like to be in their shoes.(…)
- Prepare non-disabled staff. Orient other staff to include and welcome new staff members with disabilities. Communicate the inclusive changes planned to all employees in the company. Some trainees with disabilities may have a longer learning curve and management must be prepared to give more time and patience during their training. Have non-disabled employees who will be working closely with someone with a disability attend a course on how to work with people with specific disabilities.
- Recruitment. Seek out various channels of reaching people with disabilities, such as voluntary welfare organizations, hospitals and schools.
Useful insights for employing youth with disabilities
Undertaking an initiative to support the employment of youth with disabilities might be perceived as daunting by many employers. But paramount among the many insights that industry leaders have offered throughout the featured cases is the realization that such an initiative is not as challenging as it might seem. The following points were identified throughout the featured cases as important when planning an employment initiative for youth with disabilities.
- Focus on what youth with disabilities can do, not what they can’t. Both employers and employees stand to gain the most from their relationship by capitalizing on people’s skills and talents. Like with any other young person, focus on your young disabled candidates or employees’ aptitudes and not on their disabilities.
- Outline specific programme objectives and designate a timeline. Start small; begin with a pilot phase and think long-term, not just recruitment. Give consideration for on-going policies, performance management systems, wage reviews, disciplinary systems and separation practices. Question every assumption you have about your jobs, how they are structured and what has to be done.
- Consider creating an expert panel. Depending on the complexity and ambition of the initiative, companies might want to consider establishing an expert panel composed of senior company staff, disability specialists, academics, and researchers and practitioners who can provide important guidance in developing a programme prototype and objectives.
- Involve participants’ support network from the beginning. Including family members of youth with intellectual disabilities from the initial interview can enhance participant success. This is also a good time to address logistical issues such as how participants will get to and from work.
- Offer flexible and inclusive training options. (…)
- Ensure adequate supervision and support an engaging work environment. (…)
- Ensure senior support and remove bias against people with disabilities. Be sure that company executives support the initiative and organize skill-building workshops to sensitize non-disabled staff on working with individuals with disabilities. These efforts will help the initiative achieve long-term success.
- Do not exaggerate what a programme can deliver. Set high standards and hold participants and training staff accountable but be careful not to fall short of expectations, which can affect the credibility.
- Hiring, advancement and retention practices. (…)
ILO, Business as Unusual
The Accor Group – Leading hotel operator
The Group’s internal efforts to encourage diversity are based on four pillars: diversity of origin; gender equality; the inclusion of people with disabilities; and diversity of age. These pillars were formalised within the Group in 2011 by way of an International Diversity Charter, released in 15 languages.…)
Other important lessons include the good practice of being sensitive to the attitude of all staff (not only of disabled people) towards activities addressing disability in the workplace. Staff members often have experience with people with disabilities outside of the workplace, some of which can be negative. It is therefore important for management and Disability and Inclusion teams to recognise that disability can be a sensitive subject for many.
IBM – International Business Machines Corporation
IBM has developed a strategy that addresses different aspects of the business’ approach to people with disabilities. There are three core aspects: Attitude, Accessibility and Accommodation, or the 3 A’s.(…)
IBM’s most recent strategy focuses on the third ‘A’: Attitudes. Now that the company has developed policies and tools, the focus is on maximizing their efficiency by engaging employees and managers to tackle any prejudice against people with disabilities, expelling myths and improving attitudes toward the recruitment and retention of employees with disabilities. The message often heard in IBM is that people with disabilities are ‘a reservoir of untapped talent’, whose inclusion can only increase profits. Reports on the recruitment of people with disabilities, however, do not reflect this message. For IBM, the reason for this mismatch between policy and practice lies in unconscious bias and the inertia of attitudes towards people with disabilities. (…)
The Disability Initiatives Trophies: Held every two years, the internal competition started as a local event and quickly evolved into a global initiative. The event hosts the Group’s various subsidiaries from over 60 countries under one roof to share success stories about local disability inclusion projects. In this way, the many subsidiaries are recognized for their efforts while at the same time having the ability to share best practices and learn from one another. (…)
SOFOFA (Federation of Chilean Industry)
In 2012, SOFOFA put in place a “Business Strategy for labour inclusion of people with disabilities”. The desired outcome of the Strategy is the development of new and improved services offered by SOFOFA to its membership in the area of disabilities. To start the process, a survey was conducted to identify the main barriers faced by enterprises when hiring people with disabilities and to have concrete elements to design policies that would promote labour inclusion of people with disabilities. The result of the survey also constituted a baseline analysis against which progress can be measured in the future. The main identified barriers were taken into account to develop the following five tools, in the form of publications, designed to support employers:
- Making the business case for hiring people with disabilities. The results of the survey offered a compelling business case to hire people with disabilities and identifies the benefits for the company that decides to give a chance to diversity policies.
- Step by step protocol for enterprises wishing to incorporate people with disabilities in their workforce. This protocol provides a roadmap on motivating employers in hiring and maintaining an employee with disabilities and promoting his or her personal growth. The protocol contains practical examples and success cases of employers in hiring persons with disabilities.
- Employers´ Guide for an inclusive approach to prevention of occupational risks. This guide promotes the adoption of health and safety policies within enterprises, taking into account a diverse workforce, with a particular emphasis on labour inclusion of people with disabilities.
- Employers’ Guide to legal incentives and government programs to promote the inclusion of people with disabilities. Too often small and medium enterprises are not aware of the legal advantages, grants, and benefits offered by the government to those companies willing to hire people with disabilities. In very simple terms, this guide takes the reader through the main incentives offered by the Chilean government and provides a step by step explanation as to how to access these benefits.
- A Guide for people with disabilities looking for a job. This Guide was inspired by an ILO Guide produced in its regional office in Asia, and has been adapted to Chile. The Guide aims to encourage people with disabilities to seek productive and remunerated work.
Key drivers for the employment of people with disabilities
- Corporate Social Responsibility. Initiatives on disability inclusion, and projects related to people with disabilities, although still largely absent in CSR, are increasingly mentioned in companies’ annual CSR reports.
- Personal commitment from the founder or CEO of the company. This is quite often the case and raises the prevalent issue of long lasting commitment by the company.
- Financial incentives. This is usually an interesting incentive for small and medium enterprises. Grants to compensate for expenses linked to reasonable accommodation are particularly important to ensure that these expenses do not lead to candidates with disabilities not being employed.
- Pressure from society. As more companies (and organisations in general) become more disability-inclusive, the level of societal pressure put on other companies increases. The work of DPOs as well as of NGOs advocating for people with disabilities can play an instrumental role in increasing this pressure.
- Legislation. (…) this is usually the most relevant initial driver (…).
Employment quota legislation
For most companies, the initial driver for employing more people with disabilities is national legislation, most often so-called quota legislation that obliges companies with more than a certain number of employees to employ a set percentage of disabled employees in their workforce.
As a general rule, companies do not support quota legislation. However, many company representatives would also admit that in the absence of such a driver, most companies would not even start considering the employment of people with disabilities.
This is not the only paradox with quota legislation. Quota legislation, even in those few countries where it is effective, risks undermining the idea that people with disabilities should be employed for the same reasons as non-disabled employees, that is for their skills and talent.(…)
Another disadvantage of quota systems is that employees with disabilities are obliged to reveal their disability, as employers need to be able to show to the relevant public authority how many people with disabilities are employed in order to meet the quota. This raises obvious privacy-related issues, as people with disabilities often do not want to declare their disability. This is especially the case for invisible disabilities, such as psychosocial disabilities.
While disability non-discrimination legislation has a more indirect impact on the employment of people with disabilities, especially when compared to quota legislation, it has a potentially very relevant systemic impact. For enterprises, complying with national disability non-discrimination legislation often results in the need to revise their internal practices to ensure that none of these directly or indirectly discriminate against people with disabilities. While this does not automatically lead to the employment of people with disabilities, experience has shown that it can make an important contribution.
Furthermore, non-discrimination legislation leads companies to ensure that their current employees with disabilities and those that got disabled at a later point are given the same opportunities as other employees and are provided with reasonable accommodation, if required. Disability non-discrimination legislation also has a positive impact on the environmental barriers – attitudinal and physical amongst others – that often prevent people with disabilities from accessing education and training.
Public procurement legislation
Other legislative measures promoting the employment of people with disabilities include public procurement procedures that give private companies better chances to sell their products or services to the public sector if these companies are inclusive of people with disabilities.(…)
Disability-inclusive business environments
In order for disability inclusion in workplaces to be successful, it is also essential that companies can operate in a policy environment that is conducive and enabling. One frequent issue raised by companies is that they cannot find people with disabilities that have the skills the companies require. To address this issue, government policies on vocational education and training inclusive of students and trainees with disabilities, are required. Furthermore, to ensure adequate matching of job vacancies with the skills and ambitions of jobseekers with disabilities, effective employment and placement agencies as well as NGOs providing services to people with disabilities are instrumental. (…)
ILO, Reporting on Disability: Guidelines for the Media
Tips on promoting the positive portrayal of people with disabilities
It is very important that both journalists and communications professionals connect disability issues with human dignity and rights. Here are some tips for promoting the positive portrayal of persons with disabilities:
- Support the human rights-based approach. (…)
- Focus on the person, not the impairment. In describing a person with a disability, focus on the individual and not on their particular functional or physical limitations. (…)
- Emphasize ability, not the disability (unless it is critical to the story). For example, Mr. Jones uses a wheelchair, walks with crutches instead of Mr. Jones is wheelchair-bound, is differently-abled. Avoid emotional words such as “unfortunate”, “pitiful”. Avoid sad music or melodramatic introductions when reporting on disability. Never refer to individuals with disabilities as the disabled.
- Show persons with disabilities as active in society. Portraying people with disabilities as active members of society and not as passive and dependent helps to break down barriers and opens up opportunities.
- Allow people with disabilities to speak for themselves. (…)
- Don’t overemphasize disabled ‘heroes’. Even though the public may admire ‘superheroes’, portraying people with disabilities as superstars raises unrealistic expectations that all people with disabilities should achieve this level.
MYTH: Disability is a health issue.
FACT: Health is important for everyone – whether disabled or not. But health is not the only, or in some cases, most important issue. For many people with disabilities, participation in work, education, politics, among other spheres of life, is equally important. Focusing only on the impairment or on the disabled person as someone to be ‘cured’ is called the ‘medical model’ of disability. This approach often overlooks the abilities of the disabled person. By contrast, the ‘social model’ sees the barriers to participation arising from the way a society is built and organized, and attitudes and mistaken assumptions about disabled persons, in combination with the individual’s impairment. Over the past decades, there has been a dramatic shift in how disability is perceived and persons with disabilities have started to be viewed as rights holders. (…)
MYTH: Persons with disabilities are unable to meet performance standards, thereby making them an employment risk.
FACT: Employers of disabled workers consistently report that, as a group, people with disabilities perform on par or better than their non-disabled peers on measures such as productivity, safety and attendance. In addition, people with disabilities are more likely to stay on the job. The costs of job turnover, such as lost productivity and expenses related to recruitment and training, are well known to most employers.
MYTH: Considerable expense is necessary to make workplace adjustments for workers with disabilities.
FACT: Making reasonable adjustments in the workplace refers to measures or actions taken by employers to help disabled people work or to take part in training on the same basis as non-disabled individuals. Most workers with disabilities require no special adjustments and the cost for those who do is minimal or much lower than many employers believe. Studies by the Job Accommodation Network in the United States have shown that 15 per cent of accommodation measures cost nothing, 51 per cent cost between $1 and $500, 12 per cent cost between $501 and $1,000, and 22 per cent cost more than $1,000.
Trewin, Considerations for AI Fairness for People with Disabilities
AI has been shown to help improve the lives of people with disabilities in a number of different environments whether it be navigating a city, re-ordering prescriptions at a local pharmacy through a telephone or text service, or facilitating public safety. Almost everyone in the greater community is directly connected with someone with a disability whether it be a family member, a colleague, a friend, or a neighbor. While AI technology has significantly improved the lives of those in the disabled community, there are always ways in which we can continue to advocate for fairness and equality and challenge the status quo. (…)
We describe some of the opportunities and risks across four emerging AI application areas: employment, education, public safety, and healthcare, identified in a workshop with participants experiencing a range of disabilities. (…)
In many existing situations, non-AI solutions are already discriminatory, and introducing AI runs the risk of simply perpetuating and replicating these flaws. For example, people with disabilities may already face discrimination in hiring opportunities. With AI-driven hiring systems, models that recognize good candidates by matching to the existing workforce will perpetuate that status quo. In education, an AI system that draws inferences based on a student’s online interactions might misinterpret speed for competency, if the student is using assistive technologies. In public safety, AI systems might misinterpret a person with a cog nitive disability as a potential threat. In AI systems for healthcare, where speech characteristics can be used to diagnose cognitive impairments, a person with a speech impediment can be misdiagnosed.
To avoid such erroneous conclusions and potentially damaging outcomes, a number of steps are proposed. AI systems should be prioritized for fairness review and ongoing monitoring, based on their potential impact on the user in their broader context of use. They should offer opportunities to redress errors, and for users and those impacted to raise fairness concerns. People with disabilities should be included when sourcing data to build models. Such “outlier” data – the edge cases – will create a more inclusive and robust system. From the perspective of people with disabilities, there can be privacy concerns with self-identification, but there can be risk of exclusion from the data models if users opt not to participate or disclose. There are methods provided to increase participation while protecting user privacy, such as the personal data preferences standard. In deploying the AI application, it is critical to test the UI and system preferences with outlier individuals. Users should be able to pursue workarounds, and ultimately override the system where models may be unreliable.
UNICEF, Situation Analysis for Disability-Inclusive Governance
Cambodia remains one of the poorest countries in Asia, with a growing inequality between urban and rural settings. Around 90 percent of Cambodia’s poor live in rural areas. Poverty is a key challenge for many adults and children with disabilities who face challenges associated with limited access to services, discrimination, and fewer opportunities to participate in the community. The ratification of the Convention on the Rights of Persons with Disabilities (CRPD) and recent adoption of the National Disability Strategic Plan 2014-2018 (NDSP) are indications of the commitment of the Royal Government of Cambodia (RGC) to addressing the rights and improving the daily life of people living with disability. However, it is widely recognized that on-going external financial and technical support is needed to fully implement the CRPD and NDSP.
When a person with a disability has access to health care, education, vocational training, employment or self-employment, and development initiatives on an equal basis with others, and is included in community activities, they can enjoy their rights and a better quality of life. Nevertheless, women, girls, boys and men with disabilities, particularly those in rural and remote areas, may face many challenges in their daily lives, including: poverty and unsustainable livelihoods; discrimination and negative attitudes from all levels of society; limited access to appropriate services and education; inaccessibility of physical infrastructure; limited access to appropriate services for adults and children with severe disabilities, sensory disabilities, and/or intellectual disability; limited services for older persons with disabilities; and, parents often do not have access to adequate and up-to-date knowledge about disability or their rights, how to raise a child with a disability, or where to go for advice and assistance. Children with disabilities in institutional care are particularly vulnerable and excluded. Women and girls with disabilities may also face more discrimination and negative attitudes, fewer opportunities to access health care and education, and increased vulnerability to physical, emotional and sexual violence. Furthermore, youth with disabilities face many challenges in accessing higher education and employment opportunities, and older persons with disabilities have limited or no access to appropriate services.
At the national level, key ministries and agencies play an important role in coordination, planning, capacity building, monitoring and evaluation. The lead ministry on disability is the MoSVY which has the overall responsibility of ensuring the welfare and well-being of adults and children with disabilities and other vulnerable groups in Cambodia. MoSVY’s Department of Welfare for Persons with Disabilities (DWPD) was established to lead and manage disability-related work. UNICEF’s Child Protection programme provides support to the DWPD to promote and coordinate CBR. The role of the DWPD includes to: develop policies, laws and other legal frameworks related to the welfare of persons with disabilities; promote and oversee the effective implementation of the Disability Law; promote the implementation of international treaties related to disability; develop plans of action for physical rehabilitation including the production and distribution of orthotics and prosthetics and other mobility devices, vocational training and job placement; develop plans of action for CBR, arts and sport, and the development of Braille and Sign languages; and, organize the Cambodian Day and Cambodian Sports Day for Persons with Disabilities (…)
SIDA, Disability Rights in Cambodia
Compared with other countries in the region, Cambodia has a relatively complex governmental structure focused on people with disability. This includes two inter-Ministerial, multi-stakeholder coordination bodies (the DAC and NDCC), three government institution; the DAC Secretariat, the Department of Welfare of Persons and the Persons with Disabilities Foundation – all linked to the Ministry of Social Affairs Veterans and Youth Rehabilitation (MoSVY). In addition there are numerous overlapping committees, sub-committees and working groups. As most of these bodies do not meet regularly, their effectiveness is questionable. Also, the overlap of functions between different institutions results in unclear accountabilities (…)
Cambodia has a relatively large civil society community focused on people with disability. This is largely result of the landmine legacy, which led to the influx and high levels of support of International NGOs (INGO) in the 1990’s.
Constitution of the Kingdom of Cambodia
Article 31: The Kingdom of Cambodia shall recognize the respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the Covenants and conventions related to human rights, women’s and children’s rights. Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious, belief, political tendency, birth origin, social status, wealth or other status. (…)
Law on the Protection and the Promotion of the Rights of Persons with Disabilities
The Law on the Protection and the Promotion of Rights of Persons with Disabilities is very important in addressing the issues facing people with disabilities in society together with the implementation of other Royal Government Policies in promoting the welfare of people with disabilities. These include the National Strategic Plan and policies of other ministries, institutions and authorities at all levels. This law will protect and promote the basic rights of people with disabilities, reduce discrimination, provide equal opportunities for employment.
Article 2: The purposes of this law are as follow:
- To protect the rights and freedoms of persons with disabilities;
- To protect the interests of persons with disabilities;
- To prevent, reduce and eliminate discrimination against persons with disabilities;
- To rehabilitate physically, mentally and vocationally in order to ensure that persons with disabilities are able to participate fully and equally in activities within society.
Article 4: Key terms
(…) Persons with Disabilities: refers to any persons who lack, lose, or damage any physical or mental functions, which result in a disturbance to their daily life or activities, such as physical, visual, hearing, intellectual impairments, mental disorders and any other types of disabilities toward the insurmountable end of the scale.
Chapter 7: Employment and Vocational Training
Article 33: Persons with disabilities who have the required qualifications and competence to carry out the duties, role and responsibilities of a particular position have the right to be employed without discrimination, including employment as civil servants, workers, employees, apprentices or interns.
Article 35: Ministries and state institutions that recruit civil servants to be employed, shall employ persons with disabilities as stated in article 33 of this law, in accordance with the appropriate set quota.
The set quota and recruitment process shall be determined by Sub-decree.
Article 38: Legal entities shall arrange a reasonable accommodation for persons with disabilities who apply for employment as workers, employees, apprentices or interns except where such accommodation constitutes an excessive burden.
Article 49: All provisions of international treaties relating to the laws on the protection and the promotion of the rights of persons with disabilities to which the Kingdom of Cambodia is a party shall be implemented together with this national law. In case of any provisions that contradict the provisions of this law, the provisions of those international treaties shall be considered as the principle provisions.
National Strategic Development Plan
Managing and developing human resources and institution
Recruitment has been prioritized for female candidates with 20% to 50% of annual employment requirement, and 2% of disability staffs of total officials’ number within Ministries and Institutions (…)
Universal Periodic Review, State Report
2,576 persons with disabilities have been employed in public ministries/institutions with a rate of nearly 2%, while 2,124 persons with disabilities have been employed in private sectors with the percentage of 5.53%. In addition, 3,133 persons with disabilities in communities have been recognized as the poor to receive state policy scheme. And 205 persons with disabilities have received vocational trainings from non-governmental organizations.
Preston et al, When “Best” is Far from Good Enough [re H&M]
H&M is not only one of the leading fast fashion brands, but also has a long record of verbal commitments in the field of ensuring better working conditions for the workers stitching their clothes.
Union discrimination: All the interviewees said workers trying to form an independent union are forced to resign. In addition, male workers at the factory are not considered permanent employees and are solicited through a recruitment agency. All male workers are confined to the ironing department, are strictly monitored and easily terminated, therefore it is especially hard for them to form a new union. This practice is illegal under Article 12 of the Labour Law which prohibits gender discrimination; especially gender discrimination used to limit freedom of association.
“There is no discrimination in hiring, compensation, access to training, promotion, termination or retirement on the grounds of gender or sexual orientation, race, color, age, pregnancy, marital status, religion, political opinion, nationality, ethnic origin, caste, disease or disability.” From H&Ms Sustainability Commitment
Disability Action Council, Promoting Social Inclusion in Cambodia
The rationale of the project is to bring closer social science research and policy making, to stimulate public‐ driven policy innovations, and to support evidence‐based and inclusive policy design in the select countries in South-east Asia. (…)
Social Inclusion and Disability in Cambodia
Cambodia’s recent history, including war, genocide and widespread poverty, resulted in a significant number of persons with disabilities. Continuing issues with land mines, traffic and other accidents, old age, poor nutrition and rising non-communicable diseases results in the continuing vulnerabilities of the population. Persons with disabilities have not always been included in all aspects of life: sometimes due to physical restrictions, sometimes policy barriers and other times due to discrimination and lack of understanding. (…)
Situation in Cambodia
- Private sector has limited understating on persons with disabilities.
- Persons with disabilities cannot access bank loans to conduct business or support their living.
- The vast majority of persons with disabilities that graduated from university are not able to find job because they do not have equitable access to the labour market.
- The government has developed quotas for the employment of persons with disabilities in public and private offices. These quotas are far from being reached.
- It is very challenging for persons with disabilities to get enrolled in an internship program. Most internship programs demand in the terms of reference a healthy body, which includes the absence of a disability in the understanding of the employer.
- The government lacks offering accessible services to persons with disabilities. Challenges include:
- No access to welfare programs
- No ‘poverty card’ for persons with disabilities that enables them to get access to social security assistance
- Many doctors are not aware of disability related conditions and show a lack of interested in treating persons with disabilities.
- There is no supply of support materials for the inclusion of persons with disabilities. Specialized assistive devices are not available.
- Documents in Braille are not available.
- The government budgeting and spending for the inclusion of persons with disabilities is not transparent.
- Persons with disabilities are discriminated within society. Stigma and prejudices are widespread.
- Therefore persons with disabilities are not encouraged to participate in community events. Society does not encourage them to participate.
- The local authorities do not sufficiently create awareness about persons with disabilities, their needs and possible contribution in mainstream society.
- Persons with disabilities lack access to any kind of assistance mechanisms in local communities.
- Persons with disabilities do not proactively seek support from the government or inform the government about their needs. This is due to the treatment they experience and the low esteem they develop.
- As a result persons with disabilities experience limited access to public services, e.g. public transport, general accessibility of public services
- Persons with disabilities have no representation in local governments.
- There is no coherent and comparable data on persons with disabilities within local governments or the national government.
- There is still a widespread believe among persons with disabilities that they experience an impairment due to misdoings in previous lives.
- Children with disabilities experience less support from their parents than their peers without disabilities.
- Many parents do not send their children with disabilities to school because they fear that bullying will harm their children.
- Persons with disabilities get fewer years in education than their peers without disabilities.
- The law gives children the right to education except for children with disabilities.
- Persons with hearing impairment lack access to hearing aids and Sign Language interpretation.
- Persons who are blind to not have access to Braille books or other audio devices.
- A school will only setup a special class for children with disabilities if their number is at least five children. If the number is lower than five children with disabilities they will be rejected.
Disability Rights Initiative Cambodia, Final Programme
Component 2: Supporting Disabled People’s Organizations to Raise Their Voice and Protect the Rights of All Persons with Disabilities
The main achievement under Component 2 is the improved capacity of DPOs in terms of advocating for the rights of persons with disabilities at national and sub-national level. They are recognized as a strong voice to represent the needs and issues of persons with disabilities in Cambodia by sectoral government ministries, organizations and institutions. (…) Some 73 DPOs including 10 WWDFs have been registered and work to promote and advocate the rights of persons with disabilities in their communities (an increase from 64 DPOs and seven WWDF in 2013). CDPO/DPOs are recognized by sectoral government ministries, organizations and institutions as representatives of persons with disabilities in Cambodia. Most of provincial DPOs were invited to be members of disability working groups at provincial, district and commune levels…
The improved capacity of CDPO/DPOs to advocate with policy makers, as well as the local government authority, to include disability in policies and strategic plans/programmes is the most significant change in terms of behaviour changes/practices. For example, persons with disabilities have access to commune programmes, such as WASH, income generation activities (agricultural activities funded by the Provincial Department of Rural Development), and physical infrastructure (road infrastructure, ramps, ID poor cards, social security funds, etc.). Another good example was the case of 19 women with disabilities who were fired from a footwear factory in Kampong Speu province. They received an unfair pension from the factory and CDPO/DPOs advocated with the employer to provide them with a reasonable pension that could help them start their own businesses.
Employment opportunities for persons with disabilities have increased, particularly within government ministries. DRIC supported CDPO to facilitate the mobilization of resources from different sectors, and to exchange and learn from each other through an informal employment working group consisting of government representatives, the national employment agency, UN agencies, the private sector, DPOs and NGOs. The aim is to improve the sustainable employment of persons with disabilities and to ensure that recruitment practices and workplaces are physically and culturally inclusive. As a result, persons with disabilities have been employed by several private sector companies, such as Aeon Mall, the Micro Finance Institute and other industries, such as garment and shoe factories.
Palmer & Williams, Employment Protection Laws for Disabled People
Several mechanisms via which the introduction of the law reduced employment of the disabled are explored. We find that the most plausible mechanism is that employers reduce their demand for disabled labor in order to avoid the cost of workplace accommodations for disabled workers. We also find that families respond to the reduced employment of their disabled members by providing unpaid work and roles within the family home, and by providing income transfers to non-resident disabled family members (…)
In order to better understand why employment of disabled persons fell in response to the disability law, we investigate several mechanisms that could potentially be in play. An important mechanism relevant to our study but not previously explored is a reduction in the labour supply of disabled persons due to family support lowering their (financial) need to work. Mechanisms uncovered in the existing literature include demand and supply side channels. On the supply side, previous studies have found evidence of a compositional change in terms of reduced ability to work and increased rate of welfare receipt amongst the disabled; in terms of the demand side, there is evidence that 20Note that the 85 respondents who report being an employer are omitted from the sample used to model the probability of being an employee and the probability of being self-employed. 17 employers reduce their demand for disabled workers in anticipation of high costs of accommodation relative to the cost of not complying with the law (…)
Using a difference in-difference estimation strategy, we find that the disability law was not successful at improving the level of employment amongst disabled persons in Cambodia. We estimate that employment amongst disabled persons was reduced by around 9 percentage points in the four years after the law was introduced. The adverse impact of the law on employment was greater for women than men (14 percentage points versus 6 percentage points). However, these overall effects mask significant differences in the distribution of impacts across the formal and informal sectors (…)
Laminchhane, Disability, Education and Employment in Developing Countries
On employability and occupational choices and compared them for people with and without disabilities in Cambodia. The results indicate that gender and years of schooling are major determinants of employability and occupational choices, regardless of disability status. Moreover, for people with disabilities, gender and years of schooling are positively correlated with occupational choice, as the higher the years of schooling, the greater the likelihood of gaining employment in white-collar jobs.
Gartrell, The Exclusion of Disabled People from Work in Cambodia
The disabled people’s social status effectively shapes their work patterns through (mis)conceptions that associate ‘disability’ with ‘inability’ to work and to be employable. This paper illustrates how geographical processes fix disabled people in their socio-spatial place, which together with ideological and structural inequalities distinguish and entrench their poverty from that of other social groups.
In the absence of social networks or, more importantly, relationships with people who can see their ability and capacity, accessing employment is difficult. With social networks, physical and other barriers to employment become less significant. For example, only one disabled man had ‘big work’ in the village. He was employed by an NGO as a guard and gained his position through social networks developed while living on the Thai–Cambodian border (…) They were employed in fields where physical disability was most likely to be a problem, reinforcing stereotypes of limited ability; to employ them in more physically appropriate tasks would challenge the social hierarchy of work. The discriminatory attitudes of employers discouraged disabled people, helping to keep them in their place of low status, while believing they were ‘helping’. When in the workforce disabled people were not considered able to work at one hundred per cent capacity and must prove themselves before they were socially accepted.
- What is ‘intersectionality’? Can you give concrete examples in Cambodia?
- What are the responsibilities and roles of business in promoting the rights of persons with disabilities?
- What kind of programs should be developed to enable persons with disabilities to realize their full potential and access to employment opportunities? Can you give examples?
- What does a shift from medical and social approach to disability to the human rights model mean for Cambodia?
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