Human rights of persons with disabilities, A Guide for Preventing and Eliminating Discrimination of disable people worldwide
The annual observance of the International Day of Disabled Persons was proclaimed in 1992, by the United Nations General Assembly resolution 47/3. The observance of the Day aims to promote an understanding of disability issues and mobilize support for the dignity, rights and well-being of persons with disabilities.
The estimated one billion people living with disabilities worldwide face many barriers to inclusion in many key aspects of society. As a result, people with disabilities do not enjoy access to society on an equal basis with others, which includes areas of transportation, employment, and education as well as social and political participation.
The right to participate in public life is essential to create stable democracies, active citizenship and reduce inequalities in society.
International Day of Persons with Disabilities falls on the 3rd of December each year, with the aim of promoting empowerment, and helping to create real opportunities for people with disabilities. This enhances their own capacities and supports them in setting their own priorities. Empowerment involves investing in people – in jobs, health, nutrition, education, and social protection. When people are empowered they are better prepared to take advantage of opportunities, they become agents of change and can more readily embrace their civic responsibilities.
What is disability?
Disability is an impairment that may be cognitive, developmental, intellectual, mental, physical, sensory, or some combination of these. It substantially affects a person’s life activities and may be present from birth or occur during a person’s lifetime.
Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives.
- World Health Organization, Disabilities
Disability is a contested concept, with different meanings for different communities. It may be used to refer to physical or mental attributes that some institutions, particularly medicine, view as needing to be fixed (the medical model). It may refer to limitations imposed on people by the constraints of an ablest society (the social model). Or the term may serve to refer to the identity of people with disabilities.
Different tips of disabilities
· Can be fluctuating or intermittent, chronic, progressive or stable, visible or invisible
· Some involve extreme pain, some less, some none at all
Characteristics of “Progressive” conditions and examples:
These disabilities get worse over time but can fluctuate.
· Multiple Sclerosis – neurological deterioration
· Muscular Dystrophy – muscular disorders
· Chronic Arthritis – inflammation of the joints
Characteristics of “Non-Progressive” conditions and examples:
These disabilities are non-progressive and remain stable.
· Cerebral Palsy – neurological condition
· Spina Bifida – congenital malformation of the spinal cord
· Spinal Cord Injury – neurological damage resulting from trauma
These disabilities are non-progressive but can fluctuate.
· Fibromyalgia – chronic pain condition
· Chronic Fatigue Syndrome – chronic fatigue condition
“Legally blind” describes an individual who has 10% or less of normal vision.
Only 10% of people with a visual disability are actually totally blind. The other 90% are described as having a “Visual Impairment.”
Common causes of vision loss include:
· Cataracts (cloudy vision – treatable)
· Diabetes (progressive blindness)
· Glaucoma (loss of peripheral vision)
· Macular Degeneration (blurred central vision)
· Retinal Detachment (loss of vision)
· Retinitis Pigments (progressive blindness)
· “Deaf” describes an individual who has severe to profound hearing loss.
· “Deafened” describes an individual who has acquired a hearing loss in adulthood.
· “Deafblind” describes an individual who has both a sight and hearing loss.
· “Hard of Hearing” describes an individual who uses their residual hearing and speech to communicate.
The Canadian Hearing Society Awareness Survey of 2001 states that almost 1 in 4 (23%) of Adult Canadians report having a hearing loss.
Mental Health Disabilities
Mental health disabilities can take many forms, just as physical disabilities do.
Unlike many physical illnesses though, all mental illnesses can be treated.
They are generally classified into six categories:
· Schizophrenia – The most serious mental illness, schizophrenia affects about 1% of Canadians.
· Mood Disorders (Depression and Manic Depression) – These illnesses affect about 10% of the population. Depression is the most common mood disorder.
· Anxiety Disorders – These affect about 12% of Canadians. They include phobias and panic disorder as well as obsessive-compulsive disorder.
· Eating Disorders – They include anorexia nervosa and bulimia and are most common in men and women under the age of 30.
· Personality Disorders – There are many different personality disorders. People with these disorders usually have a hard time getting along with other people. They are the most difficult disorders to treat.
· Organic Brain Disorders – These disorders affect about 1% of people. They are the result of physical disease or injury to the brain (i.e., Alzheimer’s, Stroke, and Dementia).
· Characterized by intellectual development and capacity that is significantly below average.
· Involves a permanent limitation in a person’s ability to learn.
Causes of Intellectual (or Developmental) Disabilities include:
· Any condition that impairs development of the brain before birth, during birth, or in childhood years
· Genetic conditions
· Illness affecting the mother during pregnancy
· Use of alcohol or drugs by pregnant mothers
· Childhood diseases
· Poverty - Children in poor families may become intellectually disabled because of malnutrition, disease-producing conditions, inadequate medical care, and environmental health hazards.
· A learning disability is essentially a specific and persistent disorder of a person’s central nervous system affecting the learning process.
· This impacts a person’s ability to either interpret what they see and hear, or to link information from different parts of the brain.
· One of the most common indicators of a learning disability is a discrepancy between the individual’s potential (aptitudes and intellectual capacity) and his or her actual level of achievement.
· Having a learning disability does not mean a person is incapable of learning; rather that they learn in a different way.
· Many people with a learning disability develop strategies to compensate for or to circumvent their difficulties.
A Guide to Preventing Disability Discrimination in the Workplace
Under the Equality Act 2010, which repeals all previous discrimination law and brings together the relevant legislation in one place, it is unlawful to discriminate against a worker on account of a physical or mental disability or to fail to make reasonable adjustments to accommodate a worker with a disability.
It is not always necessary to categories and impairment as physical or mental. It is the effect of the impairment, not its cause, which is material in deciding whether or not someone is disabled for the purposes of the Act. A person will be classified as disabled if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities.
‘Substantial’ is defined as ‘more than minor or trivial’ and an impairment is considered to have a long-term effect if it lasts for 12 months or more. Even if the condition ceases, it is still deemed a disability if it is likely to recur.
Normal day-to-day activities do not include work of a particular kind because no particular form of work is ‘normal’ for most people. In any individual case, the activities carried out might be highly specialized. The Act only covers effects which go beyond the normal differences in skill or ability. However, work may still involve normal day-to-day activities – for example sitting down, standing up, verbal interaction, writing, using everyday objects such as a keyboard, or lifting or moving everyday objects.
Whilst people suffering from cancer, multiple sclerosis or HIV are automatically deemed to be disabled for the purposes of Act, whether or not other illnesses constitute a disability will depend upon the full circumstances of the case. Where the effect of the illness is reduced or controlled by medication or medical treatment, its impact must be measured without reference to those improvements. However, in Metro line Travel Limited v Stouter, the Employment Appeal Tribunal ruled that a bus company employee who was able to control his Type 2 diabetes by following a diabetic diet was not a disabled person for the purposes of the Act.
Where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared with a non-disabled employee, the employer must take all reasonable steps to eliminate the disadvantage. This could include re-deployment to a different type of work if necessary. The making of an assessment as to what reasonable adjustments might be made is not in itself capable of amounting to a reasonable adjustment.
The duty to make reasonable adjustments for the benefit of an employee who becomes unable to do their job owing to disability is a positive duty which can, on occasion, require the employer to discriminate in favor of a disabled employee if he or she could carry out an alternative job within the same organization. Depending on the circumstances, this could mean that an existing disabled employee must be given a job, even if there are other better-qualified candidates for the post, if he or she is capable of doing it.
Nor does the duty to make reasonable adjustments to working practices extend to enabling a disabled employee who is no longer able to do their work (or any available alternative) to leave their employment on favorable terms. The whole concept of an adjustment is that it is made in order to make it possible for the disabled employee to remain in employment. It does not extend to taking steps to ensure that they are compensated for no longer being able to do so.
All reasonable steps must be taken to avoid disadvantage to disabled workers that arise because of physical features in the workplace. This could involve making adaptations to the premises, such as removing the physical feature in question, altering it or providing a reasonable means of avoiding it.
In addition, steps must be taken to provide auxiliary aids or services to help disabled personnel overcome a disadvantage. For example, a specially adapted computer keyboard could enable an employee with arthritis to overcome the substantial disadvantage posed by their condition.
These duties are also owed to job applicants. For example, employers must make adjustments to recruitment and selection procedures in order to accommodate disabled candidates, such as providing the job application form in large print for someone with a visual impairment.
In addition, in order to protect job applicants with a disability from discrimination during the recruitment process, the Act prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.
The measure does not prevent employers from asking job applicants any questions about their health but stipulates that they are only allowed to do so for specific purposes, for example deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned.
Employers must not treat an employee unfairly who has made or supported a complaint about discrimination because of disability.
Disabled employees are also protected from harassment. Harassment is unwanted conduct that is related to a person’s disability that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person or of violating their dignity.
The Equality Act also outlaws discrimination by association and discrimination by perception.
Discrimination by association, in this context, occurs when a person is treated less favorably because they are linked or associated with someone who is disabled. The person is not themselves disabled but is treated less favorably than others because of the disability of a friend, spouse, partner, parent or another person with whom they are associated. However, an employer’s duty to make reasonable adjustments applies specifically to employees who are themselves disabled and does not extend to accommodate the needs of an employee’s disabled relative, for example a disabled child for whom they have caring responsibility.
For further information UN and WHO websites of disabilities Discrimination of Disable people, WHO and UN offices in the Gambia, send email to firstname.lastname@example.org, Text only to 002207774469/3774469 between 3-6 pm working days.
Author DR AZADEH Senior Lecturer at the University of the Gambia, Senior Consultant in Obstetrics & Gynaecology, Clinical Director at Medicare Health Services.