Recent Non-discrimination Measures(taken from information contained within the report 'Invisible Citizens')
Adopted by Member States
In the past there have been "constitutional statements affirming the equal rights of all, including disabled people: but these have been largely rhetorical, with no mechanism for enforcement." Only recently has "discrimination against disabled people become a target of social policy and legal action". "Within the last decade a clear consensus has emerged, both amongst disabled people and increasingly amongst European governments, that disabled people have a right to legal protection from discrimination".
Campaigns and actions carried out by disabled people and their allies have highlighted the levels of discrimination "experienced by disabled people and (as) the benefits of non-discrimination legislation have become apparent, support has grown across the political spectrum".
Germany: Anti-discrimination Clause in the Constitution
Article 3 of the 'Grundgesetz' sets out a non-discrimination and equal opportunity clause:
- All human beings are equal before the law.
- Men and women have equal rights.
- There shall be no discrimination based on gender, birth, race, native and social origin, beliefs, religious belief or political opinion. Nobody shall be discriminated against because of disability.
The last sentence was added by the 'Bundestag' in December 1994 following lobbying by the disability community to change the government's social care policy to one of civil rights which would empower disabled people to lead a self-determined life.
"This clause binds federal and State legislation and has to be taken in consideration in legal cases. One of the first consequences of this clause is the fact that in some new public transport acts at State level, similar clauses were included, i.e. the Bremen Act:
"The needs of users with mobility problems have to be taken into account in the buying of vehicles and in constructing any kind of traffic, buildings and areas."
Discussion in Germany is now centred on an equal rights Act which would "change all the different areas of legislation which have an effect on the human and civil rights of disabled people."
Finland: Constitutional Reform
The Disabled Persons Equality Act (Services and Assistance for the Disabled) (380/1987) aims to improve the ability of a disabled person to live and act as a member of society in equality with others. It has often resulted in inequalities depending on which region people live in as although the provision of certain services such as transport and accommodation is a right, other services are dependent on municipality funds and how they organise their services.
The Act on the Status and Rights of Patients (785/ 1992) is the only one which has a clear anti-discrimination clause regarding health care provision.
On August 1st 1995, the Constitution Act was amended (969/1995) to include and alter clauses regarding the fundamental rights of the citizen to directly protect the rights of disabled people, and brought the Finnish system into line with international human rights conventions.
A clause was added to the Constitution Act (section 5, para 2) "whereby, lacking acceptable grounds, no-one shall be placed in a different position because of sex, age, ethnic origin, language, religion, conviction, opinion, state of health, disability or other comparable clause."
In September 1995, the scope of its application was extended within a clause (Chapter 11, Section 9) under which it is punishable to discriminate within the course of economic/professional activity, public service, civil service or any other public duty or in organisation of a public amusement or a public meeting lacking acceptable cause.
Employment is covered under a separate provision (Chapter 47, section 3). Unlawful labour discrimination is found if during the selection procedure, applicants for employment are discriminated against because of e.g. his/her state of health.
Discrimination against disability/state of health is now punishable by a fine or imprisonment of up to 6 months.
The social rights of citizens were adopted in the Constitution alongside traditional civil and political rights which includes equal opportunities in all areas i.e. health, education, housing. "...everyone who is incapable of securing the necessities of life with human dignity has the right to necessary income and care."
A new provision was adopted whereby the rights of persons using sign language and in need of interpretation and translation services because of disability will be protected by Act or Decree. "The rights of people who use sign language...are guaranteed by law."
These rights are directly applicable for disabled people and as prohibition of discrimination is now included in the Penal Code, it may have a greater influence on courts and authorities.
Jari Korpi writes that there is still a need for pressure from international developments in disability policies... to supplement the clause with more detailed legislation enabling everyone to have the prerequisites to act as a full member of the society".
France: Criminal Law
French Law (90-602/ 1990) establishes protection for disabled persons from any discrimination they may suffer in their daily life. It prohibits discrimination by public authorities, private individuals and when being hired or dismissed. It also contains provisions for advocate associations to associate themselves in a court action in cases of discrimination, with the authorisation of the interested party.
In 1992 these provisions were modified under the new Penal Code but remain largely unchanged.
Discrimination is included in the chapter covering "attacks on personal dignity"
Discrimination against disabled persons is not specifically defined. 'Handicaps' is mentioned in article 225-I as a basis for discrimination along with race, sex etc. but no special legislation covers disability.
The new Penal Code introduced the principle of a legal persons' (organisation or company) penal responsibility into French Law which means that they can be sanctioned if found to be discriminatory by the refusal to provide goods and services, obstructing a normal economic activity or defining an offer of employment or dismissal subject to a person's handicap'.
Another article of the Penal Code however, allows discrimination in insurance and a refusal to employ someone on the basis of an established medical condition is also not prohibited.
UK: Disability Discrimination Bill
In 1994, MP's of all political parties showed support for the Civil Rights (Disabled Persons) Bill which was largely based on the Americans with Disabilities Act and sought to end discrimination against disabled people in employment and access to all goods and services. The Bill was not supported by the Government who had brought forward their Disability Discrimination Bill, which fell short of demands which had been made by the disability movement, but which became law in November 1995.
It is unlawful for an employer to discriminate against a disabled person regarding recruitment, employment conditions, promotion or training. Failure to make a "reasonable adjustment" to working arrangements will constitute discrimination.
It is unlawful for providers of goods and services to discriminate against disabled people by refusing goods and services or providing an inferior service. Reasonable steps must be taken to change any practice which may make it unreasonably difficult for disabled people to use the services and to remove physical barriers to access.
Discrimination against disabled people in renting accommodation is unlawful.
A disabled person may go to a Court or Tribunal to enforce his/her rights. There are exceptions however to cover situations where discrimination may be justifiable, such as where a disabled person may create a genuine safety risk.
The UK disability movement opposed the government's bill on several grounds such as there is no enforcement agency to set standards and assist people with claims, it excludes education and transport; employers with less than 20 employees may still discriminate, it abolishes the requirement for employers to employ a 3% quota of disabled people and the limited definition of 'disability' means that people with mental health problems and less severe disabilities may not be covered by the Bill.
Ireland: Commission on the Status of People with Disabilities
In 1991, the Government committed itself, in its Programme for Economic and Social Progress, to "ensuring the fullest possible participation and integration by people with disabilities in all aspects of life", indicating a major shift in policy and attitude towards seeking to uphold and reinforce disabled peoples' civil rights.
In 1993, the new coalition government created the Ministry of Equality and Law Reform, one of whose aims was to advance the rights of disabled people. A Commission on the Status of People with Disabilities was then set up to take a comprehensive look at disability issues from a rights based perspective. Their final report is expected to be published this Spring.
The programme of the current Government contains a commitment to "specific action to end discrimination and to ensure equal opportunity for participation by all our people in Irish life" and to "a Disabilities Act, to set out the rights of persons with disabilities".
The Department of Law Reform is expected to produce two major Bill prior to the Commission's report:
- the Employment Equality Bill - to repeal all existing legislation and deal with employment discrimination
- the Equal Status Bill - to deal with discrimination against many groups in the provision of goods and services; access to personal property and accommodation.
Certain areas are as yet unclear such as whether there will be a requirement to make reasonable accommodation of the needs of disabled workers and students, and the removal of architectural barriers.
Sweden: Disability Ombudsman
Sweden does not have comprehensive non-discrimination legislation but shows a commitment to a high level of social welfare and recently adopted a number of measures to improve the situation of disabled people
A report from the Handicap Commission proposed a series of measures in eight areas of society to increase accessibility for persons with a disability and to prevent discrimination but these have not yet been proposed as law.
The parliament did adopt other elements of the Commission's report including the Act on Support and Service for Persons with Certain Functional Impairments, giving disabled people the right to personal assistance.
The Work Environment Act ensures that employers adapt the physical environment to suit the needs of the functionally disabled.
Local authorities are required to plan with the aim that everyone has a home to meet their needs.
The definition of disability in Swedish Policy adheres to the Social Model approach.
The Handicap Commission's report also envisaged the need for an Ombudsman to monitor proposed non-discrimination legislation. This was established in July 1994 by the Swedish Parliament despite the fact that the legislation has not yet come about.
The Ombudsman deals with issues concerning the rights and interests of persons with disabilities with the aim of full participation by and equalisation of opportunities for persons with disabilities. It:
- works towards improvements in legislation
- initiates discussions with authorities and organisations and uses publicity in order to prevent discriminatory treatment of disabled people
- submits an annual report to the Government about issues affecting disabled people.
In its first year the Ombudsman concentrated on issues concerning disabled women and establishment of support for and dissemination of information on the UN Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.
Specific mention of disabled people is made in the Portuguese Constitution which sets out the principles of non discrimination but obstacles still exist to the achievement of full citizenship.
Article 71 states:
1. Physically and mentally disabled citizens are fully entitled to enjoy the rights, and be subjected to the duties, laid down in the Constitution, except for those the exercise or observance of which they are incapable.
2. The State shall carry out a national policy for prevention, treatment and rehabilitation of handicapped persons, shall develop a form of education to make society aware of its duties in respect of them and solidarity with them, and shall ensure that they enjoy their rights fully without prejudice to the rights and duties of their parents and guardians.
3. The State supports associations of people with disabilities.
The statement is supported by the 'Comprehensive Law of Prevention, Rehabilitation and Integration of Handicapped Persons (1989). Although approved by Parliament, the law was not implemented and was not wholly acceptable to disabled people as its definition of disability was limited and based on the medical model, and it does not comply with the UN Standard Rules.
Articles within the law on integration and Equalisation of Opportunities make progressive statements but the bulk of measures do not pursue a non-discrimination policy.
Despite these statements, legislative measures exist which appear to allow discrimination to take place, such as the 1994 Order 1093 which specifically prevents disabled people from employment as work inspectors and the promotion of sheltered employment which serves to exclude disabled people. Additionally there are no regulations concerning the construction of accessible buildings or measures to ensure the access of disabled people to culture and sport, or adequate accessible transport in rural areas.
Despite a general prohibition of discrimination in the Constitution, specific policies do not exist to promote the integration of disabled people in Portugal.
The above data results from studies undertaken for the report ''Invisible Citizens" Please let us know about any moves towards anti-discrimination legislation which may he taking place in your country.
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