Public Lecture: Disability Discrimination Laws in Italy, Malta and the United Kingdom

1. 1 December 2014 Dr. Angelo D. Marra Public Lecture: Disability Discrimination Laws in Italy, Malta and the United Kingdom MA IN DISABILITY STUDIES University of Malta

2. Article 2 of the Italian Constitution provides for a fundamental principle, the “compass” for the inclusive society: “the Republic recognizes and grants the inviolable human rights […] and requires the fulfilment of the imperative duty of […] social solidarity”. Furthermore, under article 3 of the Italian Constitution the Government should be devoted to achieve social inclusion providing positive actions to remove inequality DISABILITY: IS IT A COMMON INTEREST? • why should the whole society concern about the needs of people with disabilities? • could this issue be considered as a strictly private concern, so that the Government and the community should not be involved in it? I

3. Somepoints • disability is a general condition • it is likely to be experienced by most of people at least when they reach and old age • to study disability in depth means to increase consciousness about disability issues and promote critical awareness • This is necessary to build up a society on a human scale (for everyone, whetherdisabled or not)

4. Is this a common interest? • UN Convention on the Rights of Persons with Disabilities • EU Anti-Discrimination Directives • EU Laws on trains, planes, and ships • EU Action Plans / EU 2010-2020 Strategy • European Disability Forun • Domestic Anti-Discrimination Laws

5. Implementation The Strategy is based on a joint commitment of the EU institutions and the Member States. Their joint actions are aimed at: Eu strategy implementation • raising society's awareness of disability-related issues and promoting the rights of people with disabilities; • developing European funding possibilities; • improving the collection and processing of statistical data; • ensuring that the enforcement of the United Nations Convention is monitored in Member States and within European institutions.

6. Employment European action must allow the number of disabled workers in the traditional labour market to be increased, in particular by introducing active employment policies and improving accessibility to workplaces. Action is also required in collaboration with social partners to foster intra-job mobility (including in sheltered workshops), to encourage self-employment and to improve the quality of jobs. Education and training Disabled pupils and students must benefit from an accessible education system and lifelong learning programmes. The Strategy therefore supports the accessibility of general education systems, individual support measures, and the training of professionals working in education. In addition, people with disabilities must be better informed about the possibilities of training and mobility, in particular as part of the Youth on the Move initiative and the Education and Training 2020 strategy. . EU strategy Accessibility People with disabilities must have access to goods, services and assistive devices. Similarly, their access to transport, facilities, and information and communication technologies must be ensured in the same way as for able-bodied people. Participation People with disabilities must be able to fully exercise their fundamental rights as regards European citizenship. This Strategy must contribute to: overcoming obstacles to the mobility of people with disabilities – as individuals, consumers, students, and economic and political actors; guaranteeing the quality of hospital care and accommodation in residential institutions, financed by the Structural Funds; guaranteeing accessibility of organisations, venues and services, including those relating to sports and culture. Equality Active policies must be implemented in order to promote equality at European level and in Member States. Furthermore, the Commission must ensure that European legislation is strictly applied to combat discrimination based on disability, particularly Directive 2000/78/EC for equal treatment in employment and occupation.

7. External action The EU undertakes to promote the rights of people with disabilities at international level. Its action is carried out in the context of the enlargement, neighbourhood and development policies as well as within international institutions such as the Council of Europe or the UN. EU Strategy Social protection Social protection systems can compensate for the income inequalities, risks of poverty and social exclusion to which people with disabilities are subject. In this context, the performance and sustainability of social protection systems should be assessed, including with regard to pension systems, public housing programs and access to basic services. The strategy encourages the use of Structural Funds and the adoption of appropriate national measures. Health People with disabilities must benefit from equality of access to services and health facilities, including mental health facilities. In order to safeguard this principle of equality, services must be affordable and appropriate to people's specific needs.

8. UNDERSTANDING WHAT DISABILITY IS

9. "The social model (...) has created a new vision of disability and has influenced policy making at local and international levels. (…) Disability studies scholars have been instrumental in developing this new understanding of disabilitywhich has provided a foundation for legal development worldwide, including the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD)” (TRAUSTADÓTTIR: 2009 ,Professor and Director of the CDS University of Iceland. ) WHAT IS THE SOCIAL MODEL GOOD FOR? • “The social model of disabilitygives us the words to describe our experiences of inequality. It separates out disability (disabling barriers) from impairment (not being able to walk, or see or hear, or having difficulty learning)”. • Because the social model separates out disabling barriers and impairments, it enables us to focus onexactly what it is which denies us our human and civil rights and what action needs to be taken in order to get us these rights”. (J. MORRIS : 2000, disabled feminist activist)

10. THE STAGE WE ARE HERE

11. Legally binding treaty Enforceble rights Policy development instrument UN CRPD 2006 • CRPD reads that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others • Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with other

12. From help as a favour to the right for inclusion and independent life Disability is a Human Rights issue Non Discrimination Equal Opportunities Participation Full Citizenship

13. “Reasonableaccommodation” means 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; KEY CONCEPTS “Discrimination on the basis of disability" • means any distinction, exclusion or restrictionon 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;

14. (e) Equality of opportunity; (f) Accessibility; (g) Equality between men and women; (h) Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities UNDERPINNING PRINCIPLES • (a) Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; • (b) Non-discrimination; • (c) Full and effective participation and inclusion in society; • (d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

15. OVERVIEW ON ITALIAN LAW • Disability is often approached in a disjointed way. Therefore the whole picture is likely to be missed. • Design and Architecture, see Consolidated Building Act (Decree of the President of the Republic No. 380/01) • Law No. 104 /1992 (frame-law on rights of handicapped persons) • gives the official definition of “handicapped person”; • sets out the general rights for disabled persons; and • covers: • medical issues, • rehabilitation, • education, • permits to be given to parents, • competitions undertook by disabled applicants, • employment, • transport, mobility, design, • civil rights, housing, • taxes • Employment, law No. 68/2000 on the right of disabled people to work, and legislative decree 216/2003, implementing 2000/78/CE . • Law No. 4/2004 issues ITC and new technology aspects: • Law No. 67 of 1 March 2006, sets out provisions for judicial protection from discrimination against people with disabilities

16. CONSTITUTIONALPRINCIPLES • Under Article 3 of the Italian Constitution: • (1) All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions • (2) It is duty of the Republic to remove those economic and social obstacles which, limitating in fact the freedom end equality among citizens, hinder the full development of any human person and the participation of all workers in the political, economic, and social organization of the country

17. EU PROTECTION AGAINST DISCRIMINATION • Art 13 of Treaty of Amsterdam • Directive 2000/78/EU on equal treatment as regards employment and work conditions. • Directive 2000/43/EU on equal treatment amongst people independently on race and ethnic origin • Directive 2002/73/EU on equal treatment between men and women as regards employment and work conditions

18. ITALIAN LAWS PROTECTING PEOPLE WITH DISABILITIES AGAINST DISCRIMINATION • Italian Parliament approved Law no. 67 of 1 March 2006 • Title: “Provisions for the judicial protection of persons with disabilities, victims of discrimination” • Came into force on 21 March 2006 • Aims at granting disabled persons the same rights actually enjoyed by non-disabled persons • It is general and not limited to a specific field of life • It is in accordance with the UN CRPD

19. INDIVIDUALS COVERED BY LAW NO. 67/2006. • Law No. 67/2006 recalls the framework-law in order to identify who is to be protected • Law No. 104/1992, the framework-law on disability, states at article 3, first paragraph, that:“A handicapped person is the person having a physical, psychic or sensorial impairment, stable or progressive, which causes learning difficulties, difficulties in relating with others or of inclusion at work, leading to a process of social disadvantage or marginalization”

20. THE PRINCIPLE OF EQUAL TREATMENT • Article 2.1 states as follows: “The principle of equal treatment implies that no discrimination is admitted against persons with disabilities”. • Such statement doesn’t imply that disabled people receive the same treatment as non-disabled. • Rather than that, it prohibits discrimination to the extent that it causes disabled individuals to be disadvantaged.

21. Indirect discrimination: occurs when “a provision, a criterion, a practice, an act, a pact or behavior, apparently neutral, put a disabled person in a position of disadvantage in comparison with other people”. No justification defence No group element ANTI DISCRIMINATION LEGISLATION (L.67/2006) Principle of equal treatment implies that no discrimination damaging disabled persons is allowed. • direct discrimination occurs when, for reasons connected to disability, a person is treated less favorably than a non-disabled in a similar situation”. • Just person? (See Coleman)

22. MEANING OF THE TERM “DISCRIMINATION” UNDER LAW 67/2006 III • Article 2.4 adds up that further behaviorsare considered as if they were actual discriminations. • Such behaviours are harassment or unwanted behaviors, made for reasons related to disability, which infringe dignity and liberty of a person with disabilities, or create an environment of threat, humiliation and hostility in its respect.

23. EFFECTS OF THE JUDICIAL DECREE • orders the compensation for damages (if requested), even when no financial loss is involved • orders termination of the behavior, conduct or discriminatory act, if still existing • adopts any suitable measure, according to circumstances, to remove the effects of discrimination • can order the adoption of a plan to remove the identified discriminations, also setting a deadline • can order the publication of the measure at the expense of the defendant.

24. Discrimination in Transport - Trib Torino 5 nov 2011 - Trib Roma 24 oct 2011 + Special transport does not prevent indirect discrimination + relevance of time issues as factors of discrimination CASES Discrimination in Education - Trib. Milano 10 Jan 2010 - Trib. La Spezia 2011 - Trib Messina 29 Dic 2011 - Trib. Udine 13 Jan 2012

25. Cinema Shows - Trib Reggio Emilia 2011 Inadequate table height during a test - Trib Taranto 2009 Not allowing to put a hoist near a boat - Trib Tempio Pausania 2007 CASES 2 ACCESS ISSUES - Trib Roma 2012 + Not to provide a ramp in bus stops is discrimination + PA can be ordered to remove architetural barriers - Trib Catania 2008

26. + CRPD if often used to argue on discrimination + Social Model oriented thinking is emerging in the decisions EMERGING TRENDS • + Public Authorities can be ordered to remove discrimination • + Discrimination does not need to be wanted • + Damages compensation is rising

27. Definition of disability under the Equality Act 2010 Listen to article You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. The Equality Act 2010 doesn’t apply to Northern Ireland - find out more on NI Direct.. What ‘substantial’ and ‘long-term’ mean ‘substantial’ is more than minor or trivial - eg it takes much longer than it usually would to complete a daily task like getting dressed ‘long-term’ means 12 months or more - eg a breathing condition that develops as a result of a lung infection There are special rules about recurring or fluctuating conditions, for example, arthritis. For more details about the special rules download the ‘Equality Act Guidance’. UK EQUALITY ACT 2010 Progressive conditions A progressive condition is a condition that gets worse over time. People with progressive conditions can be classed as disabled. However, you automatically meet the disability definition under the Equality Act 2010 from the day you’re diagnosed with HIV infection, cancer or multiple sclerosis. What isn’t counted as a disability Some conditions aren’t covered by the disability definition. These include addiction to non–prescribed drugs or alcohol. To find out about the conditions which aren’t covered,

28. What you can do If you think you’ve been unfairly discriminated against you can: complain directly to the person or organisation use someone else to help you sort it out (called ‘mediation’ or ‘alternative dispute resolution’) make a claim in a court or tribunal UK EQUALITY ACT 2010 II How you can be discriminated against Discrimination can come in one of the following forms: direct discrimination - treating someone with a protected characteristic less favourably than others indirect discrimination - putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage harassment - unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them victimisation - treating someone unfairly because they’ve complained about discrimination or harassment

29. Action against discrimination You can do something voluntarily to help people with a protected characteristic. This is called ‘positive action’. Taking positive action is legal if people with a protected characteristic: are at a disadvantage have particular needs are under-represented in an activity or type of work UK EQUALITY ACT 2010 III Situations You’re protected from discrimination in these situations: at work in education as a consumer when using public services when buying or renting property as a member or guest of a private club or association You are legally protected from discrimination by the Equality Act 2010. You’re also protected from discrimination if: y ou’re associated with someone who has a protected characteristic, eg a family member or friend you’ve complained about discrimination or supported someone else’s claim

30. MALTA

31. MALTA II

32. MALTA III

33. MALTA IV

34. Approach 1—A Template for Success? Malta After the first 4 Years, the KNPD has: • a legal duty to identify, establish and update all national policies that relate to disability issues • has published extensive technical guidelines to help improve access • has reached agreement with the Malta Development Corporation to ensure that all future developments, including extensions and modifications shall conform to the comprehensive ‘Access for All’ guidelines Out of 108 cases, the KNPD has arrived at settlements for 52 (58%) of its cases; come to a temporary agreement for a further 9 (8%); and is still in negotiations for another 40 (36%) Only 4% of the cases have not been resolved 34

35. This NEW UNDERSTANDING: Requires cultural shift Requires awardness rising Changes legal attitudes and practices Is an ongoing process Challenge to existing paradigms Calls for a different , more up-to-date, interpretatation of existing law Requires to remove istituzionalised discrimination emerging from legal frameworks and old ratio legis CONCLUSIONS • Disability is a Human Rights Issue • Abandon compensation-based/compassion approach • Not about granting or maintaining privileges • It is about removing existing barriers/preventing discrimination • It is about equality of opportunities • There is no Disability Rights/non-disabled rights conflict • CRPD is Universal, not “special”

36. - perpetuate discriminarion? - definition based - can go wrong - group element - role of NGOs - limits of reasonable accommodation DISCRIMININATION LAW CONS - comes into play after discrimination - requires to activate a case - is time and energy domanding - risks to fail - mostly area specific and rarely general

37. From help as a favour to the right for inclusion and independent life Disability is a Human Rights issue Non Discrimination Equal Opportunities Participation Full Citizenship

38. Thank you for listening!!! +39 349 619 11 56 avv.angelo.marra@gmail.com