Conference on Human Rights for Disabled People: Discussion from August 24th, 1998

This is the transcript of a panel discussion on the topic of constitutional laws and anti-discrimination legislation for persons with disabilities. Internet publication URL: www.independentliving.org/docs1/hr11.html


The discussion opens on the topic of constitutional laws and anti-discrimination legislation for persons with disabilities.

Judy Heumann:
It's my understanding that the Swedish Constitution lists particular groups of people that can not be discriminated against, and that persons with disabilities are not included. This is a noticeable absence which seems to condone discrimination against the group, because by not including the group it seems to say that the group is not really a valued in society. Part of the discussion today should be about what you feel about this and what you are going to do about it. With an election coming up this fall you should make sure that the people who are running for political office understand your views and you can ask them what their views are on these issues as it will effect your decision regarding how you are going to vote. That's how we make decisions in the United States about how we are going to vote.


Host:
I know that the Independent Living Movement in Sweden has asked all the candidates and all the members of Parliament their views on if they feel that anti-discrimination legislation in regard to disability should be in the Constitution or not. What were the reponses?


Adolf Ratzka:
We got quite a few positive responses, depending on the party they belonged to.


Host:
Could you tell us, if we want to vote to strengthen the situation for people with disabilities which party should we vote for?


Adolf Ratzka:
Independent Living Sweden does not endorse any political party. We encourage everyone to go to our Web site, (in Swedish only) to study the responses that we received and draw their own conclusions.


Host:
And how is it in South Africa? Do disabled people have protection in the Constitution?


Jerry Nkeli:
Yes, There is protection for people with disabilities in the Constitution. When the Constitution was negotiated the disability rights movement in South Africa was so well informed by our colleagues from Sweden, USA, Finland, and DPI on this issue that we worked to get protection for disabled people in the Constitution. Fortunately for us it requires a two-thirds majority to amend the Constitution. We also have a special court separate from the High Court and the Court of Appeal which deals with Constitutional methods and their interpretation. This particular court has actually pronounced certain Acts to be inconsistent with the Constitution and therefore to be invalid. It has also pronounced that certain regulations that were promulgated to be invalid and inconsistent with the Constitution. When the Government conducts itself in a manner which is inconsistent with the Constitution, it is given the opportunity to rectify the particular legislation or regulation over a certain limited time period.


Host:
I have read the reponses from the members of Parliament and I would like to ask Bengt Lindqvist if it is easier to come forward in the United Nations than it is in the Swedish Parliament on this issue?


Bengt Lindqvist:
Well, no I don't think so really but I think that there is perhaps one rule that can be said to apply in general and it is that the further away from reality you are, the easier it is to talk!


Host:
Ok, let's move a thousand kilometres to Brussels. Can the European Union help?


Bengt Lindqvist:
Yes, in a small way they have already assisted us in our struggle for recognition of the anti-discrimination dimension in disability policy by openings in the new treaty for individual member countries to introduce anti-discrimination legislation in the disability field. In that sense the EU has already recognised that there is a need to consider anti-discrimination legislation. On the other hand, they have not made any special recommendations; country's have to find out the means themselves, but it's open within the new treaty and that is a very good beginning.


Host:
Will the European Union help?


Bengt Lindquist:
I don't know, but I think that the first step that has already been taken is an good opening but I don't think we should wait for any more gestures from the EU. I also have great confidence in the European Disability Forum which is a platform for many of the organisations of disabled people in Europe. The Forum has a strong voice and is getting more attention both in the European Parliament and in the Commission. I think that in the longer perspective the European Disability Forum can help us even more than the EU. Important things are also happening in the Council of Europe and I am quite sure that they too will become more open for anti-discrimination legislation when they finish the review they are doing now.


Colin Barnes:
I'd like to see Sweden take the initiative rather than wait for the Council of Europe for a number of reasons. One of the reasons being that from my perspective, Sweden, like England has a long tradition of supporting welfare policies. From a disabled peoples' point of view, welfare in the past has been an essential 'bringer' of us into the community, but it has become the happy hunting ground for the disability business which has a lot of interest in keeping us dependent. I think it is fundamental to get this issue beyond simply being a disabled people's issue to being a societal issue, it is after all an issue for all people. We do not have a Constitution in the UK. but yet we still have discrimination legislation. And if the British Parliament can come to terms with some definition of disability, which would eventually protect disabled people from all kinds of discrimination, direct, indirect and passive discrimination, I am sure that the Swedish Parliament can do the same.


Host:
While waiting for that there is a lot of abuse against disabled people and against their rights. For example here in Stockholm we are getting new blue buses that are not really accessible for persons using wheelchairs because they don't have a ramp. Would it be more expensive to buy buses that are accessible for disabled people? How should we make the companies use accessible buses - Apply a fine if the buses are not accessible? Have a tax-exemption for making improvements that increase accessibility?


Federico Montero:
We talked about tax-deductions for improvements that increase accessibility in housing and the work place that seem to work fairly well. I would say that sanctions for somebody who doesn't comply with the law would have to be quite strong and probably would not be much more effective than a positive approach.


Host:
How does it work in the States?


Judy Heumann:
I think you need a combination of positive and threatening approaches. There are tax-incentives for businesses when they do modifications, for the purchase of high-cost technology or something needed by a disabled employee. The tax deduction is about $10,000.

I think it is outrageous that the Stockholm public transportation system does not have accessible buses because accessible buses are being used in countries all over the world. It's just no longer an issue for debate. The debate went on in the 1970's about whether or not it cost more to make a bus accessible. In the 1970's we had already made decisions in California, and the courts supported us that it cost about as much money to make a bus accessible as it is to put air-conditioning on the bus. The life expectancy of buses are very long, ten to twenty years, so you know that the companies make back the investment. In the area of buses, companies that are not buying buses that are accessible are making a flagrant statement that disabled people can be disregarded within the community.


Adolf Ratzka:
The additional costs of making busses accessible are usually exaggerated. The addition costs that I have seen range from 5% to perhaps 10% at most, that would mean that most people on the street in Stockholm would have to pay maybe 5 % to 10% more for their monthly public transportation passes to cover the cost of accessibility. This cost is not outrageous. We should take into account that Volvo, a Swedish company, has a factory in Brazil where they manufacture accessible buses for the Brazilian market. I've seen the buses on a video, they have a fantastic solution. We want to know why couldn't Volvo build accessible busses for Sweden?


Host:
Adolf, you have suggested that persons using wheelchairs paying for taxi services with money that they receive directly instead of having to receive taxi services would make them customers just like everyone else, isn't that a positive approach to this issue?


Adolf Ratzka:
Well, I don't want to say that we need taxis instead of accessible public transportation, I would say that we need both.


Bengt Lindqvist:
If you let me I'd like to direct a question to Judy Heumann. I'm very interested in the US Federal Government's system of economic sanctions on enterprises or the public sector when they don't behave the way they should in the disability field, for example if they don't provide accessibility. Please explain more about it.


Judy Heumann:
In the area of education, states receive money from the Federal Government, if the states fail to comply with the law, the Federal Government has the ability to withhold part or all of the Federal dollars from the state until the state comes into compliance with those provisions. And the state also has the right to withhold in whole or in part money from local school districts that fail to comply with that particular piece of state legislation. That is one approach and that gets to the systems.

Now when you're dealing with ADA we're not dealing with systems as you are with education. ADA deals with individual complaints. There is a pieces of legislation called Section 501 which deals with contractors with the Federal Government. Here there is an obligation for companies that contract with the Federal Government to affirmatively hire disabled individuals if the company has above a certain amount of money. If the company is found to be in violation, the Government could withhold all future contracts from that company. There are different mechanisms which get used with various pieces of legislation, but the concept of action against an individual or a company or business is something that's been there a long time.

You should remember that the ADA as well as many of other provisions did not take 100% effect on the date that the law was passed. The ADA became effective July 26th 1990 and the employment provisions for example were phased in over a five year period of time. First, companies of 25 or more were covered and then companies of 15 or more were covered. There are some exceptions you can see when study the statutes more specifically. You will also find that in some states like New York State or California, they have laws that are more rigid than the Federal law, so that in those states you'll find that their comparable legislation will cover companies with 6 employees or more or 4 employees or more,. So sometimes you have a Federal law and then State laws which sometimes are stronger -they can't be weaker than the Federal law. I think that the phasing period is something which was important , because it basically said to various entities that the Government didn't expect change overnight, and there wouldn't be actions taken in the first 2 to 4 years depending on the provision of the statute.

The ADA also required that there be self-evaluation plans, where businesses do a review of their policies and practices, and they document what they should be working with. Disability organisations from their communities help them to review their policies and practices, to identify where the problems were, and to be able to take corrective action pretty much on their own. Those companies and non-profit organisations that have done this have found it to be beneficial.


Host:
What would happen if a Board for Social Services in a little town in one of the states did not comply with a court order when a disabled person brought them to court for denying them a right?


Judy Heumann:
In the States, if they have the right to appeal and do so they do not have to take action until the appeal is completed. But if the court has ordered them to do something and they fail to do it, then they are out of compliance. In the area of education the court can order a school district which is out of compliance to have a Master. The Master has responsibility to work directly with the court, does a review of what's going on and gives direct orders to the school district as to what they have to do. In part the school district loses it's ability to do things on its own because the court is basically saying 'you're out of compliance and you're not following what you're being told to do so we will appoint someone to tell you what to do'.

In some cases there can be fines certainly, the court can say if this doesn't happen within a certain amount of time, then the first day that you are out of compliance you'll have to pay this much amount of money, and every day in addition to that you'll have to pay increasing amounts of money'.


Host:
In Sweden, there have been cases where local authorities have ignored court decisions in favour of persons with disables. I would like to ask Erika from the Justice Department, if it is possible to create a law like they have in the States here in Sweden?


Erika:
Well obviously it is, because there have been several proposals to deal with such cases of contempt of court. The suggestions are being considered at the Ministry of Internal Affairs and at the Ministry of Social Health and Welfare.


Host:
Some of these cases of contempt of court are several years old, are they still only considering them?


Erika:
Yes.


Host:
And you don't know when they will have considered enough?


Erika:
No, I also know that there is a committee that is looking into the system, the possibility to appeal to courts, and also the financial system between the states and the local authorities because it has been argued that sometimes it is also a financial matter for the local authorities in regard to how the state provides means.


Host:
It creates a feeling of Swedish Justice-Blaa!


Erika:
Well it is dangerous when court decisions are not being respected, and especially when the court decisions are not being respected by the authorities themselves.


Host:
Do you think it is easier for the authorities not to obey a court order when it comes to disabled people, then Volvo or SAAB?


Erika:
In cases that involve private companies such as Volvo or Saab there are different court procedures and there are often sanctions that can be applied. But here in Sweden we don't really have sanctions that apply to municipal authorities.


Host:
Do we need it? Do we need sanctions in these cases?


Erika:
Well that's what they're considering....

 

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