Disability Discrimination Employment Law

Disability Discrimination, Employment Law

Introduction

       The employment law governs the duties and rights between employees and employers and are also referred as labour law. The rules are largely designed to keep the workers safe as well as ascertain that they are treated reasonably within the workplace. In addition, the Employment Laws are also enacted to protect the employer’s interest. In a nutshell, Employment Laws are based on national and state charter, administrative rules, court opinions and legislation. As mentioned earlier, a particular employment relationship can be governed by a contract between the employer and the employee.

For example, the American Employment Act traces back to the community protest, in opposition to the unfair practices during the industrial revolution in the 20th century. The initial laws were enacted to compensate the injured workers, outlaw child labour and establish minimum wage for the workers. However, the law has been expanded to cover other aspects faced in the contract of employment (Davies, 2012).

       Employment discrimination laws are the federal and state laws which usually prohibit employers from treating the workers differently in reference to certain attributes.

Discrimination by government employers ‘for example’ violates the constitution guarantee of equal protection. Under the current law, persons are protected against unfairness based on aspects such as their skin colour, race, country of origin or genetic information (such as family medical history), gender, disability, religion or age. In several cases, it is also unlawful for employers to show favouritism based on political affiliation, sexual orientation or marital status.

       What is discrimination? Labour market discrimination is referred as the difference in the treatment of two qualified individuals job applicant or workers on account of their disability, religion, race, gender, etc. It is the main source of inequality in the workplaces. Discrimination is harmful as it affects the economy outcomes of business entities, organizations, and that of equally productive workers. This can either be directly or indirectly. Discrimination is not only about measurable outcomes but also involves unquantifiable outcomes. However, at some points it becomes hard to differentiate between productivity relate inequality at the workplaces and discrimination. However, over the time, employment inequalities have declined but the vital issue on employment discrimination is the persistence of the vice (discrimination) in the capitalist economy.

       In employment law, direct discrimination is decisions such as the failure to hire, unequal pay and benefits, firing of workers that are based on an applicant’s or employees characteristics such as colour, gender, religion disability among other characteristics. Indirect discrimination is when discrimination arises from employment policies issued by the employer. The policies have an adverse effect on the employee’s race, colour of their skin, ethnicity and other like characteristics. For example, when an organization has all the facilities and can be accessed by all the workers including the disabled, but access to the building by the disabled workers is from the back side of the building; then this is a form of indirect discrimination. Direct discrimination is when two different people ‘for example’ a white and black with the same qualification apply for a job vacant. The black person is told the job was taken, but when the white applies, the response is different, and the job is available.

Disability discrimination

       Disability discrimination is a form of discrimination in workplaces where a manager or other body covered by the Association for people with Disabilities Act, treats an employee or an applicant with a disability in an unlawful way. It is also giving harsh treatment to an individual only because he is disabled. On the other hand, disability inequity also occurs when a covered employer or other entity treats an employee or applicant less favourably because he or she has an account of a disability. Disabilities may involve cases such as cancer that is inhibited or in reduction and also cases such as mental or a physical mutilation. (Mutilation that is not short-lived such that it is expected to last or lasting for 6 months or less). The labour law ‘however’ requires an employer to supply rational accommodation to such a worker or a job aspirant with any form of disability. Despite this, there is an exceptional for such provision. In case doing so would cause major complexity or expenditure to the employer (undue hardship), the employer is permitted to neglect the Employment Law (Geisen & Harder, 2011).

       Under the equality Act 2010, disability discrimination by an employer is when he or she treats a job applicant or an employee’s less favourably because of his or her disability. For example, job is a qualified accountant and applied for the job of chief accountant officer in company A. However, his application was turned down after; the management learnt that he is on a wheelchair user. This is direct disability discrimination. When an organization has a policy or procedure which despite applying to all the workers in the entity, puts people who share disability at a disadvantage compared to others, it is referred as indirect discrimination. Direct discrimination is more prominent in comparison with indirect. It is mostly experienced when a person is discriminated in the following areas; employment, education and training, provision of facilities, goods or services among many other areas (Perry et al, 2004).

       There are various sources of Employment Law or the labour law both at international and national level. It can be found in a number of different sources. One of the main sources is the Common Law. This is the law made by judges when announcing their judgment in cases. Common Law is different from the Legislation law. Secondly, there is the Legislation source of the employment laws which is also known as Acts of Parliament or Statute law. These are laws drafted and enacted by the government. For example under the Employment law, there are Employment Act 2008, Employment act 2002, Employment rights Act 1996. Others include; Disability Discrimination Act 1995 and 2005, human rights act 1998, Equality Act, 2006 among many other acts that are used to govern the employment contracts ‘as well as sources of Employment law’. What is contained in the different Act may differ from one country to another.

Government agencies Contribution in preventing disability discrimination

       Government agencies in the UK, has been known for their commitment to social justice for all the people. This has been through various ways such as access of vital information to all people. The government has embarked on the implementation of the United Kingdom employment equality law. This is a body of which legislates against prejudice based actions in the workplaces. The law has well stipulated guidance in prevention of discrimination against the defined characteristics such as disability. In addition, the government has a well established court system that has allowed disability discrimination victims to report in case of any discrimination experience. The government has been on the forefront in fighting against discrimination. This been seen through the support of agencies such as human rights movement. The movement is allowed to fight for the rights of minority groups in the community. The government has also supported the fight against disability discrimination through the Disability Discrimination Act (DDA). The act makes it criminal to categorize against disabled persons. The law was enacted in1995 to provide stability in employment. The U.K. government has since extensively improved the DDA’s reward by extending its extent to award disabled persons lawfully protected social rights in almost all decisive areas of life (Mabbett, 2005).

Contribution of human rights in disability discrimination

       Since the founding of the human rights movement, the establishment has been on the forefront in promoting fundamental human rights. The establishment has been and continues to fight for equality as this is the cornerstone of fighting all kinds of discrimination. The project of fighting disability discrimination has been through the collaboration of the government and the human rights organization as well as like minded establishment. However, the fight against disability discrimination has its advantages and disadvantages. One of the advantages is the peaceful existence of people in the places of work. Whether disabled or not, the extinction of discrimination in the work places makes it possible for each and every employee contribute positively to the running of the organization. In addition, the fight has led to minimized discriminations against disabled people. It also provides vital egalitarianism through equal rights in service. Finally, it makes easy access of goods and services to all people such as public transport, education among others, as well as providing optimal conditions for retaining and hiring qualified workers (Hunter, 1992).

       However, the fight against disability discrimination has resulted to increased expenses for the organization and business entities. For example, the employer is supposed to provide adequate resources for the disabled to have equal access as the other workers. If workers is confined into a wheelchair, his mobility is limited, the employer is supposed to provide adequate facilities and structures to enhance such a worker movement. This calls for extra financial need to support the disabled people.

Disability discrimination cases at work place. (Case 1)Case Summary

       Joan Maya (the plaintiff) worked for Sweet Restaurant Limited. She sued her former employer Sweet Restaurant Limited for direct disability discrimination. Despite Sweet Restaurant Limited (the defendant) not making explicit remarks about Joan’s disabilities when terminating her employment, the court found that, the reason behind Joan’s dismissal was her injuries. In turn, the court ruled in favour of Joan and awarded damages for injuries and loss of income.

Facts

       Joan was employed by the Sweet Restaurant Limited as a waiter in its Liverpool restaurant. She was supposed to help wheelchair-bound customers by lifting the right side of the wheelchair using his left hand together with three other waiters. On 30th April 2010, Joan sustained an injury to the left side of her body while supporting a wheelchair-bound customer. The Employees’ Compensation (Ordinary Assessment) Board Sweet Restaurant Limited assessed that Joan had suffered a 1 percent loss in earnings capacity as a result of that injury. However, Joan alleged that the Defendant had engaged in unlawful disability discrimination in breach of the Disability Discrimination Ordinance (DDO) on the grounds that: The Defendant delayed or defaulted in reimbursing medical expenses to Joan. Mr. Walter, a manager of the Defendant, displayed a ferocious facial expression to Joan. Walter was dissatisfied when Joan asked to hold the left side of the wheelchair (instead of the right side) due to her injury.

       Mr. Victor John, a director of the Defendant, had expressed dissatisfaction taking her sick leave. He showed a judgmental facial expression to Joan, yelled at her and directed her to leave Sweet Restaurant Limited for her inability to use her left hand to carry the wheelchair. The Defendant dismissed Joan with 7 days’ wages without notice and giving no reason. The Defendant denied the accusation of illegal discrimination. It argued that Joan was already well again from his injuries at the material times, and sought to base Joan’s dismissal on her poor work presentation.

Decision

       The Court alleged that, the complaints made against Joan’s work performance were unconfirmed because: No warning in print had been issued about Joan’s poor performance. I addition, there is no record of Joan’s attendance had been produced by the Defendant to show that Joan had intentionally selected the busiest dates to take leave. The conditions indicated that the reason for Joan’s discharge was not her deprived performance, but the soured affiliation between the parties. This was after she had her injuries. Despite the fact that no remarks were made by Walter or Victor that pointed directly at her disabilities, the Court concluded that the disgust they directed against Joan was as a result of the work injuries Joan had sustained. The Court held that the Defendant had acted in breach of the DDO and awarded damages to Joan of $101,181.70 comprising compensation for injuries sustained and her loss of earnings.

Comments from the case

       It is illegal to treat a worker less satisfactorily on the grounds of the employee’s disability. An employer does not need to have made any explicit remarks about an employee’s disability to engage in unlawful disability discrimination. As such, an employer needs to be careful about how it treats an employee who has a disability or who may have suffered an injury. The explanation of the case was based on the Disability Discrimination Act (DDA), which is the major law concerned with discrimination cases. The act is used to define disability in context to the case scenario. However, despite the well laid law in prevention of disability discrimination (direct discrimination), the implementation of justice has challenges which is identification of evidences to support the cases.

       There has been the enactment of disability prevention policies which are directed at controlling and minimization of discrimination cases. The policies are usually contained in the law with well stipulated procedure for employees and employers. There has been a shift away from treating disabled persons as passive recipients of welfare to viewing them as people with rights and the capacity to control their own care. The disabled people’s society, in campaigning for an inclusive community, is highly decisive of the form that recent government policy on anti-discrimination has taken. The employers are always supposed to adhere to the rules and regulations of the law about any form of discrimination. (Reitz, 2007).The process of employment law enactment has been faced with numerous challenges. One of the main challenges is the difference in policies from that are implemented by various organizations and employment companies in curbing organizations. Despite the general law against the disability discrimination ‘as well as other forms of discrimination’ different organizations have various approach method in curbing the vice. This greatly the common goal of the discrimination eradication acts. In addition, the reluctance of the people in the country has contributed to fully enactment of the law. This is whereby employees fail to report discrimination cases to the courts. This has in turn become a stumbling block in the fight against employee discrimination. Another challenge in curbing discrimination is the lack of information and educates education on the matter (lack of knowledge to the people). Education programs are frequently organized to educate not only the employees but also the general public on ways to eliminate discrimination.

       The employment law and legal institutions have to the change of the social interaction between the law and society. The employment law has contributed to the social understanding and existence of different people in work places. In other words, the law has created equality in the society. Law has, more often than not, been measured as the conventional approach of the state to manage and uphold social order within its domain. It is also taken as a mechanism to successfully promote and uphold regulations in the societies. Laws and regulations are generally constructed on lawful concepts that emerge for centuries all through time, and they are influencing everyday life in varying ways. If we, for theoretical purposes, understand the law as a system of rules, the relations between law and society has until recently been both fairly straightforward and based on customs, traditions, geographical boundaries and physical space.

Conclusion

       The employment law and measure remains important features of employment regulation. Employers are much less likely to determine policies or employment practices without reference to legal standards. Nevertheless, there is still achievement which has been attained in curbing various levels of discrimination among the workers. Disability discrimination however, requires efforts from various stakeholders in order to minimize the discrimination in workplaces. The adoption of the legislation setting into the employment laws has improved labour standards and in turn strengthens the workers as well as their unions. The designing of labour laws today also has a key position in ensuring that a high level of employment and sustained economic growth is accompanied by continuous improvement of the living and working conditions globally.

References

Blanpain, R. (2009). European labour law. Alphen aan den Rijn [etc.: Kluwer.

Reitz, A. E. (2007). Labor and employment law in the new EU member and candidate states.

Chicago: American Bar Association.

Davies, A. C. L. (2012). EU labour law. Cheltenham, UK: Edward Elgar Pub.

Hunter, R. C. (1992). Indirect discrimination in the workplace. Annandale, NSW: Federation

Press.Susser, P., & Petesch, P. J. (2011). Disability discrimination and the workplace. Arlington,

Va: BNA Books.

International Labour Office. (2007). Equality at work: Tackling the challenges : global report

under the follow up to the ILO Declaration on Fundamental Principles and Rights at

Work. Geneva: International Labour Office.

Geisen, T., & Harder, H. G. (2011). Disability management and workplace integration:

International research findings. Farnham, Surrey: Gower.

In Heymann, J., In Stein, M. A., & In Moreno, G. (2013). Disability and equity at work.Parry, J., & American Bar Association. (2008). Disability discrimination law, evidence and

testimony: A comprehensive reference manual for lawyers, judges and disability professionals. Chicago, Ill: American Bar Association, Commission on Mental and Physical Disability Law.

Perry, P., Perry Scott Nash Group., & British Standards Institution. (2004). Winning with the

Disability Discrimination Act: A guide for business. London: BSI.

Mabbett, D. (2005). The Development of Rights-based Social Policy in the European Union:

The Example of Disability Rights. Journal Of Common Market Studies, 43(1), 97-120. doi:10.1111/j.0021-9886.2005.00548.x

Research and, M. (4). Research and Markets: European Union Non-Discrimination Law and

Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination. Business Wire (English).

UK employment law – Disability discrimination. Retrieved from;

http://www.lzwlaw.co.uk/documents/employment_law_dd.htm

Disability discrimination, Retrieved from;

http://www.adviceguide.org.uk/england/discrimination_e/discrimination_discrimination_because_of_disability_e/disability_discrimination.htm#h_toc

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