disability equity 1

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Disability Equity

Introduction



Constitution

The Oxford English Dictionarydefines a constitution as "a body of

fundamental principles orestablished precedents according towhich a state or organisation is

governed"

http://www.constitutionalcourt.org.za/text/constitution/what.html

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Constitution

a kind of deal or contractbetween those in powerand those who aresubjected to this power


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Bill of Rights

This Bill of Rights is a cornerstone ofdemocracy in South Africa. It

enshrines the rights of all people in ourcountry and affirms the democraticvalues of human dignity, equality

and freedom


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Bill of Rights Very Clear

Human dignityEveryone has inherent dignityand the right to have theirdignity respected andprotected


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Freedom and security of the person

not to be deprived of freedomarbitrarily or without just cause

to security in and control overtheir body


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PrivacyEveryone has the right to privacy, which

includes the right not to have-

the privacy of their communicationsinfringed.


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Freedom of religion, belief andopinion

Freedom of expression

Labour relations:

Everyone has the right to fair labour

practices


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FERREIRA V LEVIN NO AND OTHERS AND VRYENHOEK ANDOTHERS V POWELL NO AND OTHERS

Human dignity has little valuewithout freedom; for without freedom

personal development and fulfilment arenot possible. Without freedom, humandignity is little more than an abstraction.Freedom and dignity are inseparably

linked. To deny people their freedom isto deny them their dignity.

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MEC FOR EDUC ATION: KWAZULU-NATAL versusNAVANEETHUM PILLAY P AR 71

Before considering the fairness of thediscrimination in this case, it will beconvenient to make a few commentsabout the form of the unfairness inquiryunder the Equality Act in circumstancessuch as the present. Much was said

by both parties in argument aboutthe principle of reasonableaccommodation

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The concept of reasonable accommodation isnot new to our lawThe Employment Equity Act defines reasonable accommodation as any

modification or adjustment to a job or to theworking environment that will enable a personfrom a designated group to have access to orparticipate or advance in employment and

recognises making reasonable accommodationfor designated groups as an affirmative action

measuree

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But what is the content of the principle? At its core is the notion that sometimes the

community, whether it is the State, anemployer or a school, must take positivemeasures and possibly incur additionalhardship or expense in order to allow all

people to participate and enjoy all theirrights equally

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Disabled people are often unable toaccess or participate in public or private

life because the means to do so aredesigned for able-bodied people. Theresult is that disabled people can,without any positive action, easily

be pushed to the margins ofsociety

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Reasonableaccommodation

Mechanism

Diversity

Reasonable Accommodation

Affirmative actionmeasure

Reasonable Accommodation

People withdisability

Freedom, Equality, Dignity



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Labour Relations Act 1995

LRA

Organize

Fair LabourPractices

Incapacity

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Employment Equity Act of 1998

EEA

Rid of unfairdiscrimination

Correct past inequity affirmative

actionDesignated

groups

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SA VERENIGING VAN MUNISIP ALEWERKNEMERS (NIE-POLITIEK) & 'N ANDER V

VENTERSDORP MUNISIP ALITEIT (1990)

Industrial Court establishes ethical duty totreat incapacitated employees at dismissalfairly:

"A person's point of departure should be to treatothers as you would wish to be treated insimilar circumstances." [at 1170 B]

[Original text: " 'n Mens se uitgangspunt behoort

te wees om ander te behandel soos wat jy graagbehandel sou wou word in derglikeomstandighede."]

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SA VERENIGING VAN MUNISIP ALEWERKNEMERS (NIE-POLITIEK) & 'N ANDER V

VENTERSDORP MUNISIP ALITEIT (1990)

Industrial Court establishes ethicalethical obligation to not mistreat

incapacitated employees: "A person must be vigilant against

treating people like inanimate workimplements." [at 1170 C]

[Original text: " 'n Mens moet daarteenwaak om nie mense soos lewelosewerktuie te behandel nie."]

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HOFFMAN V SOUTH AFRIC AN AIRWAYS P AR 20

"People who are living with HIV must be treated with compassion and

understanding. We must showubuntu towards them. They must not be condemned to 'economic death'

by the denial of equal opportunity inemployment.

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HOFFMAN V SOUTH AFRIC AN AIRWAYS P AR 35

we must guard against allowingstereotyping and prejudice to creep in underthe guise of commercial interests. The greater

interests of society require the recognition ofthe inherent dignity of every human being, andthe elimination of all forms of discrimination.Our Constitution protects the weak, the marginalised,the socially outcast, and the victims of prejudice and

stereotyping. It is only when these groups areprotected that we can be secure that our own rightsare protected.

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STANDARD BANK V CCMA P AR 61

The Constitution, several statutesincluding the EEA and the LRA and

Codes of Practice protectemployees with disabilities as avulnerable group because they are

a minority with attributes differentfrom mainstream society.

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Many employers tend to excludeand marginalise employees with

disabilities not merely because thedisability impairs the employeessuitability for employment, but

also because the employer regardsthe disability as an abnormality orflaw.

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Some employers may find it moreconvenient to budget for a disability dismissal

than to attempt to accommodate anemployee. When these attitudes feature indecisions about people with disabilities, theycan obscure innate prejudice,

stereotyping and stigma. Able peopleare more inclined to bear such attitudesthan disabled people.

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Work is one of the most fundamental aspectsin a persons life, providing the individual with

a means of financial support and, asimportantly, a contributory role in society.

A persons employment is an essentialcomponent of his or her sense of

identity, self-worth and emotional well-being.

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Accordingly, the conditions in which a

person works are highly significant inshaping the whole compendium orpsychological, emotional and physicalelements of a persons dignity and self-

respect.

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An employer cannot justify treatment of a disabled person that amounts to

direct discrimination. An employer also discriminatesagainst a disabled person if it fails

to make reasonableaccommodation

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Because it protects against automaticallyunfair dismissal, reasonableaccommodation is more onerous than ageneral obligation to implementaffirmative action.

Reasonable accommodation of people

with disabilities is also more onerousthan accommodating religious andcultural beliefs

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Practicing religious and culturalbeliefs is a freedom whereasdisability is an imposition.

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RARA

DiversityDiversity

Affirmativeaction Affirmativeaction

DisabilityDisability

Equality,DignityEquality,Dignity



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disability equity 1

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