South Africans should know their constitutional rights and how to get redress when they are disrespected. For fair and just outcomes, people with disabilities should understand which law applies, what their rights are, what steps to take to claim them and where to go. Many people with disabilities don’t know which laws are ‘swords’ to promote their rights, or ‘shields’ to protect them from unfair discrimination, which rights different laws give, and how to claim rights to equality and fairness. In the public sector, many civil servants don’t know that disability is a human right, equity and development issue. In the private sector, most people also don’t acknowlegde this. But everyone is expected to know and understand disability rights (like race, gender, HIV/AIDS and sexual preference rights) and to respect them. The reality is that most rights, except disability rights, get attention, resources and priority. It seems it is up to people with disabilities, and their organisations, to ensure that disability rights get onto the agenda as an equality and human rights issue, in the media and in the public’s mind. People with disabilities don’t have to tolerate unfair discrimination, harassment, victimisation, exclusion, unequal services or benefits, and unfair labour practices. To prevent and challenge them, legislation gives people with disabilities very important rights.

The UN Convention

South African disability legisaltion must comply with the UN Convention on the Rights of Persons with Disabilities (UN CRPD). It states that "[d]iscrimination 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.” What is the Right to Equality?

The right to “equality”, like the right to human dignity, is a central South African constitutional right, as everyone knows – but what does it mean? What rights does it give? How must one person respect the equality of another? The right to ‘‘equality’’ is defined in the Equality Act (the Promotion of Equality and Prevention of Unfair Discrimintion Act or PEPUDA) as “the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes [legal] and [factual] equality and also equality in terms of outcomes”; Which Acts apply in what situations?

In disability discrimination, two acts can apply: one is for employment disputes, the other for non-employment disputes. Unfair discrimination disputes with an employer or employee, are made under the Employment Equity Act (EEA). When the unfair discrimination dispute is not with an employer or employee, it is made under PEPUDA. Who is prohibited from discriminating unfairly?

Everyone is prohibited from unfairly discriminating a person with a disability. In the public sector, the state cannot discriminate unfairly; in the private sector, a person or business cannot discriminate unfairly either. PEPUDA defines the word “person” to cover “a juristic person, a non-juristic entity, a group or a category” of persons”. Unfair discrimination in employment: use the Employment Equity Act

The EEA’s purposes are: “to promote ... equality and - true democracy”, to “eliminate unfair discrimination in employment”, “to ensure employment equity to redress the effects of discrimination” and “achieve a diverse workforce broadly representative of our people”. To do this, the EEA (section 6) prevents direct or indirect unfair discrimination on the ground of disability. It also (section 5) says that employers must promote equal opportunity by eliminating unfair discrimination in any employment policy or practice. Unfair discrimination in other situations: use the Equality Act
PEPUDA’s purpose is “to facilitate a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom”. So people with disabilities who experience direct and indirect unfair disability discrimination can use PEPUDA as a ‘sword’ to promote their rights to dignity, equality, and as a ‘shield’ to protect against unfair discrimination when it happens. What does discrimination mean?

PEPUDA states that unfair discrimination can happen by “any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly —

  • imposes burdens, obligations or disadvantage on; or
  • withholds benefits, opportunities or advantages from, any person”.

Examples: Acts / omissions that impose burdens, obligations or disadvantage
a municipal department responsible for building plans approves a plan which makes no provision to ensure equal access and accessibility for disabled tenants and visitors;
an employer decides to retrench a disabled employee because it will be able to avoid having to incurr the cost of providing reasonable acccomodation. • Examples: Acts / omissions that withhold benefits, opportunities or advantages an employer refuses an employee with a mobility impairment a training course opportunity because it believes the employee is also intellectually disabled;

  • a supermarket decides not to hire disabled employees, or contract workers because it feels that customers may not be comfortable;
  • a municipality’s swimming pool has no accommodations like handrails or pool-edge access to ensure equal use and particiapation by users with mobility impairments;
  • an employer does not include an employee with a mobility-related accommodation need in a team-building event, as the employee will not be able to participate in the activities.

What does discrimination on the grounds of disability mean?

As unfair discrimination on grounds of disability is prohibited, PEPUDA (section 9) states the acts and omissions that are unfair discrimination on the grounds, of disability, include:

  • denying or removing any person who has a disability, any supporting or enabling facility necessary for their functioning in society;
  • contravening the code of practice or regulations of the South African Bureau of Standards that govern environmental accessibility;
  • failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.

Which acts can amount to unfair disability discrimination?

When someone takes active steps to deny or frustrate another’s right to equality, this is an act. PEPUDA says acts of unfair disability discrimination include:

Examples:

Denying or removing any supporting, or enabling facility

  • a movie theatre or shop refuses to allow a blind or partially sighted person to enter because they have their guide dog/service animal with them;
  • an employer selects a venue for training that it knows will not be accessible for a wheelchair-using employee;
  • a taxi driver denies a wheelchair-user their right to receive equal service by refusing to stop and pick the person up as a fare-paying passenger.

Examples:

Contravening SABS Practice Code or regulations on environmental accessibility

  • a restaurant owner has no toilet facilities that comply with the ‘Building Regulations’;
  • a bank’s ATM is not accessible to wheelchair users, blind persons and older persons;
  • an employer does not designate parking bays for use by employees with disabilities;
  • an employer refuses to have a handle designed for use with a prosthetic hand;

Which omissions can be unfair disability discrimination?

  • When someone fails or neglects to promote another’s right to equality, this is an omission.

Examples:

Not eliminating obstacles that unfairly limit or restrict equal opportunities
a supervisor ignores a request to move office desks to enable a wheelchair user to pass between them more easily;

  • an employer decides to never consider applications for employment from applicants with mobility-related disabilities because its premises are not accessible to them;
  • a casino denies deaf, blind and wheelchair users their rights to equal opportunity, use and enjoyment on the ground that they cannot hear, see and play equally on slot machines;
  • an employer does not provide an employee who needs a mouth-wand, or voice-operated software to work with the appropriate reasonable accommodation.

Failing to reasonably accommodate needs

  • The right to reasonable accommodation is vitally important for people with disabilities to ensure non-discrimination and address barriers to equality and equal participation, use and enjoyment, services and benefits. As PEPUDA does not define what reasonable accommodation involves, use the UN CRPD which defines reasonable accommodation as “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”.

Examples:

Unfair discrimination due to a refusal to accommodate people with mobility-related barriers to ensure their equal participation in employment or society are:

  • a municipality refuses to build a kerb-cut to enable a wheelchair user to access the pavement safely and use it equally;
  • a building owner refuses to build an access ramp to ensure that its front entrance would be accessible to with mobilty-related barriers to equal access;
  • an employer refuses to make any parking bays available for use by employees and contractors with mobility-related reasonable accommodation requirements;

Who can bring an unfair disability discrimination case?

In EEA employment-related disputes: you can lodge your dispute with the Commission for Concilition, Mediation or Arbitrtion (CCMA) or trade union of which you are a member can lodge a dispute within six months of the act or omission.
In PEPUDA non-employment-related disputes, you can lodge your own dispute, or a person acting for you, or a person who is member of (or in the interests of) a group or class of persons, or a person in the public interest, or any association acting for its members. Lodge your dispute as soon as possible, but not later than three years. Getting legal advice and financial support

You may want legal advice to find out how strong your case is. You can get guidance from law clinics at a university in your area. You can contact a legal aid office, which gives legal advice and representation, and takes on legal cases that can change the lives of many. You can also visit a firm of attorneys which can advise you, or ask an non-govermental organisation (NGO) or Dean Professional Offices (DPO) you trust to recommend one. The attorney should give you the first consultation free. If the attorney feels your disability discrimination dispute is strong, ask the attorney if they will agree to do your case on a “contingency basis” – so that you will not have to pay for your case. The attorney will explain what this is and how it works. Advocacy and rights.

So people with disabilities will have to take forward disability as a human right, equality and development issue themselves. Always consider the facts, talk to a trusted friend, ask a health professional, or NGO or DPO, or a disability rights advocaye or a lawyer. Use this article to check that the person understands the issues and advises you properly.

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