Inspiring Law Reform: Closing Equality Gaps for Persons with Disabilities

1. THE INTERNATIONAL CONVENTION ON THE PROTECTION AND PROMOTION OF THE RIGHTS AND DIGNITY OF PERSONS WITH DISABILITIESGaps in Irish Equality Law where the Convention should Inspire Law Reform By Eilís Barry BL, Legal adviser to the Equality Authority

2. Education Act 1998 Education Welfare Act 2000 Equal Status Act 2000 Education for Persons with Special Education Needs Act 2004 Disability Act 2005

3. The Employment Equality Acts 1998 – 2004 and the Equal Status Acts 2000 – 2004 promote equality prohibit discrimination (with significant detailed exemptions) on nine discriminatory grounds prohibit sexual harassment and harassment prohibit victimisation require reasonable accommodation of people with disabilities allow positive action measures

4. "disability" means— (a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

5. CONVENTION PREAMBLE (e) Recognizing 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,and Person 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 others.

6. DISCRIMINATION Section 3 Equal Status Act 2000 as amended by section 48 Equality Act 2004: 3.—(1) For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) where a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or (c) where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

7. CONVENTION Article 2 “Discrimination on the basis of disability” means any distinction, exclusion or restriction on 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;”

8. POSITIVE DUTY / MAINSTREAMING Article 4 (c) Convention: Ireland by virtue of undertakes: “To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes”. section 75 of the Northern Ireland Act which imposes a duty on specified public authorities to have “due regard to the need to promote equality of opportunity” in carrying out their public functions.

9. SCOPE – EQUALITY Employment, self-employment, provision of goods and services, accommodation, educational establishments Functions of the State SCOPE – CONVENTION “the political, economic, social, cultural, civil or any other field”.

10. EXEMPTIONS Statutory Exemption: “14.— Nothing in this Act shall be construed as prohibiting— (a) the taking of any action that is required by or under— (i) any enactment or order of a court, (ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or (iii) any convention or other instrument imposing an international obligation on the State”

11. CONVENTION Article 4(1)(b) “ (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;”

12. REASONABLE ACCOMMODATION – EQUALITY There are differing standards in relation to reasonable accommodation in the Employment Equality Acts 1998 – 2004 and the Equal Status Acts 2000 – 2004. An employer is obliged to take appropriate measures to enable a person who has a disability – to have access to employment to participate or advance in employment to undertake training unless the measure would impose a DISPROPORTIONATE BURDEN on the employer.

13. A much less onerous obligation is imposed under the Equal Status Acts 2000 – 2004. A person selling goods or providing services, a person selling or letting accommodation or providing accommodation, educational establishments and clubs must do all that is reasonable to accommodate the needs of a person with a disability. This involves providing specialtreatmentorfacilities in circumstances where without these, it would be impossible or undulydifficult to avail of the goods, services, accommodation etc. Nominal cost

14. REASONABLE ACCOMMODATION – CONVENTION “Reasonable accommodation” 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;

15. CHILDREN WITH DISABILITIES Article 7 provides: “1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. 2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration. 3. States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.”

16. “Section 3(3) of the Equal Status Acts 2000 – 2004 provides that: (3) Treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that other person's age, shall not be regarded as discrimination on the age ground.”

17. EDUCATION Article 24(c) of the Convention requires that: “Reasonable accommodation of the individual’s requirements is provided;”

18. HEALTH Article 25(e) of the Convention prohibits “discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner;” In contrast, section 5(d) of the Equal Status Acts 2000 – 2004 allows “differences in the treatment of persons in relation to annuities, pensions, insurance policies or any other matters related to the assessment of risk where the treatment— (i) is effected by reference to— (I) actuarial or statistical data obtained from a source on which it is reasonable to rely, or (II) other relevant underwriting or commercial factors, and (ii) is reasonable having regard to the data or other relevant factors,”

19. WORK “Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;”

20. Examine impact of Convention on Education Act 1998, Education and Welfare Act 2000, Education for Persons with Special Education Needs Act 2004 and the Disability Act 2005

21. Compliance with the Convention would be assisted by Amend definition of discrimination in the Employment Equality Acts 1998 – 2004 and the Equal Status Acts 2000 – 2004 Introduce a positive duty to promote equality Expand the scope of the Equal Status Acts 2000 – 2004 to include the function Delete the statutory exemption in the Equal Status Acts 2000 – 2004 Amend the reasonable accommodation provisions in the Equal Status Acts 2000 – 2004 to delete the nominal cost exemption Removing the blanket exemption on the age ground concerning children under 18 Amend the exemption in section 5(d) of the Equal Status Acts 2000 – 2004 in relation to insurance Examine the situation of people in Sheltered Workshops