Disability discrimination: a necessary frontier

Matondo K. Mukulu, Guest Columnist

Among the public bills introduced to the Jamaican Parliament less than three weeks ago is that which aims to prohibit discrimination against persons who are regarded as disabled in our society.

In other countries, this monumental, if not seismic, action would have been given the coverage that it is no doubt worthy of, but this is Jamaica, where those with a disability are literally regarded as invisible and deserving only of charity.

Thus, we at the Office of the Public Defender will be working assiduously to ensure that the provisions of the bill and the intent of the draughtsman are met.

The Office of the Public Defender has always taken the view that, even without this bill, the issue of disability discrimination was caught by the provisions of the Jamaican Constitution, in that discrimination, without question, is inhumane and/or degrading treatment, which our Constitution prohibits.

However, setting out the law in a coherent document does have tremendous advantage. The first advantage is that it relieves judges of the burden of having to develop the law on disability discrimination, which could have caused the courts to be in conflict with the legislature. Second, the use of legislation to outlaw disability discrimination gives the legislature the opportunity to set out in details those areas of people activity where such action will not occur - for example, schools and in employment.

In a sense, asking why should the Jamaican State prohibit discrimination based on a person's disability, in 2014, is somewhat of a no-brainer. Discrimination robs the nation of its full talent. All employers, schools and clubs should see equality of opportunity as part of the Jamaican way.

The Office of the Public Defender is particularly excited about this bill because it will force employers, lawyers and the public sector to understand how discrimination works. On account of the work that we do at the Office of the Public Defender, we get complaints from persons who believe discrimination must be overt - names must be called. This is what we call direct discrimination.

Of course, what the courts the world over have said consistently is that discrimination is much more subtle. In this regard, institutions, through the use of policies, practice or requirement (which, at first blush, appear non-discriminatory), at times unwittingly practise discrimination. This is what we call indirect discrimination, and this is where most discrimination hides its ugly head.

The Bill

The Office of the Public Defender takes the view that the most enlightened feature of this bill is the establishment of a disability tribunal. Undoubtedly, this is a positive step, as what will be created is a specialist body to hear these cases. Specialism has the potential benefit of causing better decisions to be made and it does offer our country the opportunity to develop a cadre of attorneys who are comfortable with the various nuances of discrimination law. The minister and his team responsible for the bill must be applauded for this approach.

However, we are rather concerned with the way in which discrimination has been defined, in that the bill labels discrimination as any distinction or exclusion on the basis of disability that will have the effect of, among other things, impairing persons' enjoyment of opportunities in a variety of areas of people activities.

The primary problem is that not every distinction causes or leads to discrimination. What we are creating is a potential nightmare for the proposed disability tribunal. To avoid this, we should define discrimination by reference to unfavourable treatment. The primary benefit of this approach is that it assists potential claimants in doing the correct comparative analysis that is required in every discrimination case, except pregnancy-based discrimination.

It is hoped that the Jamaica Council for Persons with Disabilities will use its powers at Clause 6 of the bill to make recommendations to the relevant minister, having seen how the proposed definition complicates the process. We must recall that merely having a disability will not be sufficient. A claimant will have to prove that the treatment is discriminatory.

Related to the definition issue is the fact that the bill does not cover victimisation, which is a type of discrimination that is very commonplace in the employment context. In practical terms, victimisation deals with discrimination that someone experiences because he or she dares to report or bring a claim of discrimination.

PROTECTIVE TOOL

Thus in the employment context, Person A (a non-disabled person) might be aware of a deliberate decision taken by an organisation to exclude disabled persons when it is recruiting staff members. Most naturally, Person A will be more willing to expose this unlawful policy/practice, if she knows that the law protects her and the discriminator will not be tempted to terminate Person A's contract if the discriminator knows the law would apply severe financial penalties. This is a protective tool that can serve to enhance the bill's objectives as outlined at Clause 3.

Finally, the bill does impose a duty on a discriminator to make reasonable arrangements (or adjustments) to reduce or ensure that it is not discriminating. This is a common and necessary feature, and in Jamaica we do see such things: For example, the JUTC has ordered or has buses that will allow wheelchair access. Clause 2(2) defines reasonable adjustment, but we say that to the extent where the definition says that cost considerations (i.e. costs to make reasonable adjustments) are relevant.

At first blush, this might seem a contextually relevant provision, but it certainly threatens the objectives of the legislation if we think that a discriminator will find it difficult to demonstrate that a reasonable arrangement is not too costly. We are concerned about the application of this financial test in the education context where, potentially, a disabled student could be told that a reasonable arrangement is disproportionately expensive, and so his or her education and equal participation (an objective of the bill) would be compromised.

We submit that the legislature should remove this financial litmus test and allow the courts to focus on the question of whether a proposed reasonable adjustment is in fact a reasonable adjustment. Subjecting a person already faced with discrimination to a financial-type process is not what the bill intends and it is not what we should entertain.

The State, in introducing the Discrimination Bill, has done the right thing, and the Office of the Public Defender will, in fulfilment of its mandate, lobby for improvements to be made, as this is one of the constitutional frontiers on which we will make our presence felt.

Matondo K. Mukulu is the acting public defender. Email feedback to columns@gleanerjm.com and mmukulu@opd.gov.jm.