The Law and You - Your Disability Rights 102
Many people with disabilities are harassed, victimised and bullied in civil society by members of the public. This conduct is unacceptable, because it violates the disabled person’s rights. The violation is of the person’s constitutional rights to “no unfair discrimination, to security of the person and to fair labour practices”. The perpetrator has a duty to treat a disabled person with dignity and respect. This article outlines what the law says, and the steps disabled people who are harassed can take against perpetrating members of the public by using the Promotion of Equality and Prevention of Unfair Discrimintion Act (‘the Equality Act’) and using an important new law, the Protection from Harassment Act, which became law last month (May 2013).
Examples of Harassment and Victimisation
Harassment and victimisation causes can be complex, and they can take many forms. The same act that is inoffensive to some, can be deeply offensive and humiliating to others. Victimisation and harassment are inter-related: an unintended act can lead to feelings of both victimisation or the feeling of being harassed. Examples of disability-related harassment of a person with a disability include:
- Behaviour experienced as aggressive or intimidating.
- Making threatening or offensive gestures.
- Saying humiliating, rude, degrading or offensive remarks.
- Uninvited or unjustified stalking, following around, surveillance or persistent staring.
- Discrediting a victim by spreading malicious gossip or rumours.
- Humiliating, ridiculing or shouting abuse.
- Isolating and marginalising an individual by not talking, interacting, or ignoring a person with a disability’s presence.
- Devaluing or degrading someone by trivialising a disability, and mocking the person’s ability.
- Shouting at, threatening, or preventing the person from interacting with others.
- Ridiculing a person’s disability, circumstances or appearance.
- Uninvited touching, prodding, accosting or pushing away.
- Persistent or unwarranted questioning about the impact of a person’s disability.
- Leaving repeated or threatening messages on voice mail or via e-mail.
- Approaching others to obtain personal information to use against the disabled person.
- Making derogatory disability-related remarks.
Harassment and victimisation in Civil Society A person with a disability can challenge harassment by a member of the public under the Equality Act. The law aims to give effect to the Constitution including “the equal enjoyment of all rights and freedoms by every person” and “the promotion of equality.” For this, the Equality Act provides for “measures to facilitate the eradication of unfair discrimination, hate speech and harassment, particularly on the grounds of race, gender and disability”. The Act states that “No person may subject any person to harassment” in section 11.
What is harassment?
The Equality Act defines ‘‘harassment’’ as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment, or is calculated to induce submission by actual or threatened adverse consequences and which is related to –
(b) a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group. Taking action to prevent general harassment - Equality Act
You can take action and challenge harassment using the Equality Act (or the Protection from Harassment Act below). Anyone with a disability (physical, mental, neurological, sensory, medical, intellectual or other), and anyone treated as disabled by others based on information about them, or the characteristics they have, can take action. Many Magistrates Courts are Equality Courts. Ask the Equality Court Clerk to help you complete a harassment complaint. Complete Form 2 to commence action. The alleged harasser will get a copy of your complaint, and has seven days to respond using Form 3. You can reply to this response within ten days. Then the Presiding Officer decides whether to hear the complaint, or to refer it to the Human Rights Commission. Taking action if harassment Impacts personal security – Harassment Act A vital new resource for people with disabilities is a very important law that came into effect this year (April 2013) – the Protection from Harassment Act (PHA). It gives people with disabilities an inexpensive new way to protect themselves from the behaviour of others that is not necessarily a criminal offence, but impacts negatively on their rights as individuals. The PHA is the most effective way people with disabilities can now address and prevent harassment.
The PHA’s new remedy for people with disabilities is the right to apply at a Magistrates Court for a Protection Order, to prohibit the harasser from continuing with their acts of harassment. There is also no need to use a lawyer and to pay any legal fees and legal representation is unnecessary. Getting a Protection Order
Applying for a Protection Order is simple and straightforward.
The Clerk of the Magistrates Court will assist with the paperwork and details. Any person, including a child, or person on behalf of a child, can apply at Court for a Protection Order. If the person with a disability who is being harassed, is unable to apply for a Protection Order on their own behalf, someone else with a duty (trustee or curator) or interest (friend, family or neighbour) can apply for a Protection Order for them. This is vital to protect people with certain mental, intellectual, neurological and other disabling impairments.
When the harasser contravenes the Protection Order
When a Court grants the Protection Order, a warrant of arrest for the harasser is issued automatically. The execution of that warrant by the SAPS will be suspended, pending non-compliance with the conditions of the Protection Order. Once the Court Order has been served to the perpetrator, if it is contravened, they will be arrested and charged with a criminal offence and liable, if convicted, to a fine or imprisonment for less than five years. We will look at harassment, victimisation and bullying in the workplace in our next issue.