Presentation on theme: "1 December 2014 Dr. Angelo D. Marra"— Presentation transcript:
1 1 December 2014 Dr. Angelo D. Marra MA IN DISABILITY STUDIESUniversity of MaltaPublic Lecture: Disability Discrimination Laws in Italy, Malta and the United Kingdom1 December 2014Dr. Angelo D. Marra
2 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?IArticle 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
3 Some points disability is a general condition it is likely to be experienced by most of people at least when they reach and old ageto study disability in depth means to increase consciousness about disability issues and promote critical awarenessThis is necessary to build up a society on a human scale (for everyone, whether disabled or not)
4 Is this a common interest? UN Convention on the Rights of Persons with DisabilitiesEU Anti-Discrimination DirectivesEU Laws on trains, planes, and shipsEU Action Plans / EU StrategyEuropean Disability ForunDomestic Anti-Discrimination Laws
5 Eu strategy implementation The Strategy is based on a joint commitment of the EU institutions and the Member States. Their joint actions are aimed at: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 EU strategy 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 trainingDisabled 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..AccessibilityPeople 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.ParticipationPeople 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.EqualityActive 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 EU Strategy External action Social protectionSocial 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.HealthPeople 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.External actionThe 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.
8 UNDERSTANDING WHAT DISABILITY IS Individual or Medical ModelSocio-contextual ModelFocus on the impairment and the individualFocus on the social context and environmentEmphasis on clinical and medical diagnosisEmphasis on the relationship individual/societyEmphasis on individual deficitsEmphasis on social barriersViews the person as the problem that needs to be fixedViews discrimination/exclusion as the problemcures are the answersremoving barriers is the answer
9 WHAT IS THE SOCIAL MODEL GOOD FOR? “The social model of disability gives 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 on exactly 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)"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 disability which 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. )
11 UN CRPD 2006 Legally binding treaty Enforceble rights 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 othersPersons 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 otherLegally binding treatyEnforceble rightsPolicy development instrument
12 From help as a favour to the right for inclusion and independent life Disability is a Human Rights issueNon DiscriminationEqual OpportunitiesParticipationFull Citizenship
13 KEY CONCEPTS “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;“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;
14 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;(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
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; andcovers:medical issues,rehabilitation,education,permits to be given to parents,competitions undertook by disabled applicants,employment,transport, mobility, design,civil rights, housing,taxesEmployment, 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 CONSTITUTIONAL PRINCIPLES 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 AmsterdamDirective 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 originDirective 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 2006Title: “Provisions for the judicial protection of persons with disabilities, victims of discrimination”Came into force on 21 March 2006Aims at granting disabled persons the same rights actually enjoyed by non-disabled personsIt is general and not limited to a specific field of lifeIt 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 protectedLaw 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 ANTI DISCRIMINATION LEGISLATION (L.67/2006) Principle of equal treatment implies that no discrimination damaging disabled persons is allowed.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 defenceNo group elementdirect 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 behaviors are 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 involvedorders termination of the behavior, conduct or discriminatory act, if still existingadopts any suitable measure, according to circumstances, to remove the effects of discriminationcan order the adoption of a plan to remove the identified discriminations, also setting a deadlinecan order the publication of the measure at the expense of the defendant.
24 CASES Discrimination in Transport Discrimination in Education - Trib Torino 5 nov 2011- Trib Roma 24 oct 2011+ Special transport does not prevent indirect discrimination+ relevance of time issues as factors of discriminationDiscrimination in Education- Trib. Milano 10 Jan 2010- Trib. La Spezia 2011- Trib Messina 29 Dic 2011- Trib. Udine 13 Jan
25 CASES 2 Cinema Shows ACCESS ISSUES - Trib Reggio Emilia 2011 Inadequate table height during a test- Trib Taranto 2009Not allowing to put a hoist near a boat- Trib Tempio Pausania 2007ACCESS 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 EMERGING TRENDS+ Public Authorities can be ordered to remove discrimination+ Discrimination does not need to be wanted+ Damages compensation is rising+ CRPD if often used to argue on discrimination+ Social Model oriented thinking is emerging in the decisions
27 UK EQUALITY ACT 2010Definition of disability under the Equality Act 2010Listen to articleYou’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 infectionThere are special rules about recurring or fluctuating conditions, for example, arthritis. For more details about the special rules download the ‘Equality Act Guidance’.Progressive conditionsA 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 disabilitySome 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 UK EQUALITY ACT 2010 II What you can do How you can be discriminated againstDiscrimination can come in one of the following forms:direct discrimination - treating someone with a protected characteristic less favourably than othersindirect discrimination - putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantageharassment - unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for themvictimisation - treating someone unfairly because they’ve complained about discrimination or harassmentWhat you can doIf you think you’ve been unfairly discriminated against you can:complain directly to the person or organisationuse someone else to help you sort it out (called ‘mediation’ or ‘alternative dispute resolution’)make a claim in a court or tribunal
29 UK EQUALITY ACT 2010 III Situations You’re protected from discrimination in these situations:at workin educationas a consumerwhen using public serviceswhen buying or renting propertyas a member or guest of a private club or associationYou are legally protected from discrimination by the Equality ActYou’re also protected from discrimination if:yAction against discriminationYou 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 disadvantagehave particular needsare under-represented in an activity or type of workou’re associated with someone who has a protected characteristic, eg a family member or friendyou’ve complained about discrimination or supported someone else’s claim
34 Approach 1—A Template for Success? MaltaAfter the first 4 Years, the KNPD has:a legal duty to identify, establish and update all national policies that relate to disability issueshas published extensive technical guidelines to help improve accesshas 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’ guidelinesOut 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 resolved34
35 CONCLUSIONS Disability is a Human Rights Issue Abandon compensation- based/compassion approachNot about granting or maintaining privilegesIt is about removing existing barriers/preventing discriminationIt is about equality of opportunitiesThere is no Disability Rights/non- disabled rights conflictCRPD is Universal, not “special”This NEW UNDERSTANDING:Requires cultural shiftRequires awardness risingChanges legal attitudes and practicesIs an ongoing processChallenge to existing paradigmsCalls for a different , more up- to-date, interpretatation of existing lawRequires to remove istituzionalised discrimination emerging from legal frameworks and old ratio legis
36 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- perpetuate discriminarion?- definition based- can go wrong- group element- role of NGOs- limits of reasonable accommodation
37 From help as a favour to the right for inclusion and independent life Disability is a Human Rights issueNon DiscriminationEqual OpportunitiesParticipationFull Citizenship
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