THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
The Right to Work
Convention on the Rights of Persons with Disabilities
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.
2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right to work;
· Explain the importance of the right to work for persons with disabilities;
· Understand the interrelationship between the right to work and other human rights;
· Identify ways in which the rights of persons with disabilities to work have been promoted or denied; and
· Understand the provisions on work and employment in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT WORK AND EMPLOYMENT
The phrase “right to work” can be misleading. Just as the “right to health” cannot guarantee that a person will be healthy, the “right to work” cannot guarantee a job to all people of working age. No government can realistically guarantee such a right. Instead, the “right to work” encompasses the right of all people to the opportunity to earn a living by freely choosing or accepting work and to undertake that work in safe and favourable working conditions. The right to work also includes the right to form and join trade unions, through which people can protect their interests and advocate for safe and favourable working conditions.
Unfortunately, persons with disabilities have frequently been denied the right to work. Attitudes and assumptions about the capabilities of persons with disabilities often lead employers to the false conclusion that a person’s disability makes him or her less capable and thus disqualifies him or her from being able to perform work-related tasks. This misconception results in persons with disabilities not being hired or only being hired for jobs that do not utilize their knowledge or skills. Similar attitudes lead employers to believe that some employees with disabilities may be “dangerous” to themselves or others in the workplace or that customers will be offended or feel uncomfortable by the presence of persons with disabilities. Employers also often assume that the costs of implementing reasonable accommodations for employees with disabilities (for example, accessibility features or flexible working schedules) are prohibitively expensive. Some employers use this rationale to pay their employees with disabilities a lower salary than that received by others doing comparable work. In more extreme cases, persons with disabilities may find themselves forced into abusive, exploitative slave-labour or other unsafe working conditions, perhaps with no pay at all. Alternatively, persons with disabilities are denied opportunities to work in mainstream settings and may have to work in a segregated setting when they might not otherwise choose to do so.
Collectively, these attitudes and assumptions result in many persons with disabilities being denied the enjoyment of their right to work at any and all stages of the employment cycle, including initial hiring, continuing employment, and career advancement. Furthermore, the subtle and insidious nature of discrimination on the basis of disability in workplace settings can make it extremely difficult for persons with disabilities to challenge the violation of their rights. For example, many employers will not openly state that a person’s disability is the reason they have failed to hire him/her or have terminated his/her employment. They might, for example, say that they preferred other applicants. Gathering the evidence needed to challenge such discrimination may prove almost impossible.
Violations of other human rights can create additional barriers to persons with disabilities being able to fully enjoy their right to work. For example:
· The lack of accessible transportation may deprive persons with disabilities of their ability to access places of employment;
· The lack of access to education and to vocational and other training opportunities may leave persons with disabilities unable to meet specific job qualifications and may also restrict their earning potential;
· The lack of opportunity to live independently and in the community may force persons with disabilities to live in segregated institutional settings where access to meaningful work opportunities may be non-existent or greatly restricted; and
· The lack of access to information may make it difficult for persons with disabilities to become aware of job postings and other information about potential employment.
Violations of the right to work may also lead to violations of the enjoyment of other human rights for persons with disabilities. For example, a person with a disability who is unable to work and earn a fair wage may be unable to attain an adequate standard of living. This circumstance, in turn, may force that person to become dependent upon others, restricting choices and curtailing the ability to live independently in the community. In many cases, persons with disabilities who are unable to support themselves financially can become trapped in a cycle of poverty, unable to meet even their most basic needs for food, water, clothing, and shelter, or indeed raise a family as they would wish. In some countries, employment provides a means of accessing the health insurance needed to obtain health care services. Where persons with disabilities are unable to obtain employment in such countries, their access to health care services may also be restricted.
Perhaps the most far-reaching impact of the denial of the right to work is on a person’s sense of dignity and self-worth. In many societies, the ability to work is commonly viewed as one of the most important ways in which people can make their individual contributions to society, and those perceived as unable or unwilling to work may be viewed as less valuable members of that society, especially when their inability to earn a living causes them to become reliant on the support of the government or others. Thus, full enjoyment of the right to work can be of critical importance in the full inclusion of persons with disabilities as equal members of the societies in which they live, as well as in the self-image and sense of self-worth that persons with disabilities have. In this way, it is clear that human rights are indivisible, interdependent and interrelated.
Examples of Barriers to the Right to Work
· Negative attitudes in society about the ability of persons with disabilities to work and be qualified and contributing employees;
· Physical barriers to places of work: in other words, the workplaces themselves are not physically accessible;
· Lack of accessible transportation to places of work;
· Legislation, regulations, policies, or practices that prohibit persons with disabilities from working in particular jobs or that do not protect people experiencing disability-based discrimination in employment settings;
· Lack of accessible information about available employment opportunities (for example a job opportunity is placed in a newspaper that is not accessible to persons who are blind);
· Lack of accessible job application procedures (for example, an applicant who is deaf is not provided a sign language interpreter during the job application interview); and
· Lack of accommodations to facilitate communication in employment settings by persons with disabilities, especially persons who are blind, deaf, or deafblind, persons with intellectual disabilities, and persons with learning disabilities.
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT THE RIGHT TO WORK?
The right to work is addressed in a variety of international human rights instruments. The Universal Declaration of Human Rights (UDHR) discusses the right to work in Article 23, addressing such issues as freedom of choice in employment, fair pay, equal pay for equal work, and the right to form and join trade unions. The International Covenant on Civil and Political Rights (ICCPR) also contains provisions relevant to the right to work in Article 8, which focuses on the right of everyone not to be held in slavery or servitude, as well as to be free from forced or compulsory labour except in certain limited circumstances.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) elaborates further on the right to work, with three articles addressing related issues, including:
· Article 6, which affirms the right to work and calls on governments to achieve its realization through policies and practices that safeguard “fundamental political and economic freedoms to the individual”;
· Article 7, which addresses the right of everyone to “just and favourable conditions of work,” including safe and healthy working conditions, fair wages, equal opportunity for promotion subject to seniority and competence, and rest and leisure time;
· Article 8, which addresses the right of everyone to form and join trade unions, and the rights of trade unions to function freely subject only to those restrictions necessary in a democratic society to preserve public order or protect the rights and freedoms of others.
General Comment No. 5 on persons with disabilities of the Committee on Economic, Social and Cultural Rights, the treaty body responsible for monitoring implementation of the ICESCR, addresses some of the barriers faced by persons with disabilities in fully enjoying the right to work. The ICESCR acknowledges barriers such as the pervasiveness of disability-based discrimination in the employment field, the limited and often-substandard employment options available to persons with disabilities, and the barriers to work resulting from lack of enjoyment of other human rights, such as access to transportation to get to work. It also notes the need for governments to ensure that persons with disabilities can fully enjoy their trade union-related rights and regularly consult with organizations of persons with disabilities on employment and other matters.
Article 32 of the Convention on the Rights of the Child (CRC) recognizes the right of all children to be free from economic exploitation and any work that might interfere with their education or that would be harmful to their “health or physical, mental, spiritual, moral or social development.” In addition, it requires States to establish a minimum age (or minimum ages) for employment, to regulate the hours and conditions of employment, and to ensure the use of penalties or other sanctions in order to enforce Article 32.
The CRPD expands upon the issues addressed in earlier human rights documents and helps to clarify how States can respect, protect, and fulfil the right to work. Because of the indivisible, interdependent, and interrelated nature of human rights, many articles in the CRPD can be considered relevant to the enjoyment of this right. However, Article 27, Work and employment, specifically focuses on the right to work.
A lengthy article in the CRPD, Article 27 contains two subsections. The first and longest of these, Article 27(1), expressly recognizes the right of persons with disabilities to work on an equal basis with others, including the right to the opportunity to gain a living by work freely chosen or accepted. It further states that the right to work should be enjoyed in a “labour market and work environment that is open, inclusive and accessible to persons with disabilities.” Article 27(1) then goes on to address some of the specific steps that States should take in promoting the realization of the right to work by persons with disabilities, including:
· Prohibiting discrimination on the basis of disability regarding all areas and forms of employment;
· Protecting the right to just and favourable conditions of work, including through equal pay for equal work, safe and healthy working conditions, protection from harassment, and resolution of complaints;
· Ensuring that persons with disabilities can exercise their labour and trade union rights on an equal basis with others;
· Enabling access to general technical and vocational guidance programmes and other placement and training services;
· Promoting employment opportunities and career advancement for persons with disabilities and providing assistance in finding, obtaining, maintaining, and returning to employment;
· Promoting opportunities for self-employment, entrepreneurship, developing cooperatives and business start-up;
· Employing persons with disabilities in the public sector;
· Promoting employment in the private sector through affirmative action, incentives, and other appropriate policies and measures;
· Ensuring provision of reasonable accommodation in the workplace;
· Promoting work experience for persons with disabilities in the open labour market; and
· Promoting vocational and professional rehabilitation, job retention, and return-to-work programmes.
Although much shorter, Article 27(2) is an important provision addressing the issue of exploitative labour. It requires States to ensure that persons with disabilities are not held in slavery or servitude and are protected on an equal basis with others from forced or compulsory labour.
The Duty to Respect, Protect, and Fulfil Obligations of the Right to Work
Taken as a whole, States’ obligations relating to the right to work include:
1. Obligation to respect: States must respect the right to work by ensuring that State actors, such as government officials, do not interfere with the exercise and enjoyment of the right by persons with disabilities.
Example: The State provides legal protections recognizing the right of persons to work, including legislatively protecting the right to be free from discrimination on the basis of disability and the requirement that reasonable accommodation be provided.
Example: The State provides legal protections to ensure that persons with disabilities are not forced into jobs not of their own choosing.
2. Obligation to protect: States must protect the right to work by ensuring that non-State actors, such as businesses and trade unions, do not interfere with the exercise and enjoyment of the right.
Example: The State enacts and enforces laws that protect persons with disabilities from discrimination in the private employment setting.
3. Obligation to fulfil: States have an obligation to fulfil the right to work by taking positive action to ensure that persons with disabilities are able to exercise the right to work.
Example: The State establishes specific hiring procedures in an effort to increase the number of persons with disabilities who apply for government positions.
Example: The State develops a hotline and accessible website for employers to provide guidance on reasonable accommodations in the work environment for persons with a wide range of disabilities.
In sum, international human rights law strongly supports the right of persons with disabilities to work, not only to ensure access to employment, but also so that persons with disabilities may better enjoy their other human rights and fully assume their responsibilities as contributing members of society.
AWARENESS-RAISING IN EMPLOYMENT SETTINGS
In order for employers to uphold their obligations to current and potential employees with disabilities, and in order for persons with disabilities to advocate for full enjoyment of their rights, both employers and persons with disabilities need to be aware of their obligations and rights. Many employers in both the public and private sectors are increasingly adopting disability policies that outline their responsibilities and the rights of persons with disabilities. Sometimes employers adopt such policies of their own accord, and sometimes they do so in response to national legislation and the encouragement of disabled people’s organizations (DPOs). Such policies help to remind those in decision-making roles of the responsibilities they have towards employees and customers with disabilities. They can also help to empower persons with disabilities to claim their rights and challenge violations of their rights.
However, policies alone are typically not enough to ensure awareness or guarantee that persons with disabilities fully enjoy their rights. It is not enough for an employer to have a policy, but rather steps also need to be taken to ensure that all affected by the policy are aware of its content and understand what they need to do to put the policy into action. Training may be needed to help people understand their rights and responsibilities under the policy, and further supports may be needed to give effect to a policy. In addition, mechanisms need to be in place to address violations of the policy effectively, and people wishing to challenge violations need to understand how to use those mechanisms and feel safe in doing so. If employees worry that they may lose their jobs or be punished in some way for drawing attention to a violation, then arguably even a well-written policy is ineffective.
Volkswagen’s Corporate Commitment to Persons with Disabilities
As part of the 2003 European Year of People with Disabilities and building upon earlier company initiatives, international car manufacturer Volkswagen signed an agreement pledging to better integrate staff with disabilities into the mainstream work process through education, training, and internal communications. As part of the 2003 celebrations, Volkswagen also released a brochure entitled “Away From Paternalism Toward Enablement,” in which it outlined a variety of steps it is taking to promote disability issues, including:
· Working to ensure that its products are accessible to persons with disabilities;
· Prohibiting disability-based discrimination in the work environment;
· Utilizing principles of universal design to promote a healthy and safe work environment, to integrate employees with disabilities, and to re-integrate employees who may have become disabled during the time they have been employed with the company;
· Utilizing reasonable accommodation where universal design features do not adequately accommodate employees with disabilities; and
· Forming “integration teams” of different management departments and representatives of persons with disabilities in order to work cohesively towards the gradual implementation of disability policies throughout all company departments and manufacturing plants.
Source: Corporate Partnership Program Launched for European Year of Disabled: www.disabilityworld.org/01-03_03/employment/euyear.shtml.
USEFUL RESOURCES ON THE RIGHT TO WORK
· American Association of Persons with Disabilities (AAPD), “Disability Mentoring Day”: http://www.aapd.com/what-we-do/employment/disability-mentoring-day/
o Discusses an event that local governments can participate in to promote employment opportunities for persons with disabilities.
· Americans with Disabilities Act Guide for Small Businesses: http://www.ada.gov/smbustxt.htm
o Provides information for small businesses to understand and comply with the Americans with Disabilities Act.
· Committee on Economic, Social and Cultural Rights, General Comment No. 5, Persons with disabilities:
o General Comment on persons with disabilities addressing work, among other things.
· International Labour Organization Convention 159, Vocational Rehabilitation and Employment (Disabled Persons) Convention (1983): http://www.ilo.org/ilolex/english/convdisp1.htm
o Legally binding convention concerning vocational rehabilitation and employment for persons with disabilities.
· International Labour Organization, “Vocational Rehabilitation and Employment (Disabled Persons) Recommendation (No. 168)” (1983): http://www.ilo.org/ilolex/english/recdisp1.htm
o Recommendations supplementing Convention 159 to support and guide implementation.
· International Labour Organization, Managing Disability in the Workplace, Code of Practice (2002): http://www.ilo.org/public/libdoc/ilo/2002/102B09_340_engl.pdf
o Code developed to guide employers, including large, medium-sized or small enterprises, in the private or public sector, to develop strategies in managing disability related issues in the workplace.