Disability Discrimination and the Right of Disabled Persons to Access the Labour Market

Authors

DOI:

https://doi.org/10.17159/1727-3781/2012/v15i1a2467

Keywords:

Discrimination, reasonable accommodation, persons with disabilities, Code of Good Practice, Employment Equity Act

Abstract

Inequality, discrimination and transformation remain the key challenges which most employers are faced with in the South African labour market. Key among such challenges has also been employers' ability to ensure that persons with disabilities access the labour market. In this paper I highlight employment discrimination experienced by persons with disabilities in South African workplaces, which often prohibits them from accessing employment opportunities. I argue that employers need to consider employing persons with disabilities and also reasonably to accommodate them within South African workplaces. I further illustrate efforts by the legislature to eradicate forms of unjustified discrimination against persons with disabilities through the enactment of the Employment Equity Act 55 of 1998. I argue that all of us need to understand how cultural, social, physical and other barriers continue to prevent persons with disabilities in South Africa from enjoying their constitutional rights to equality, freedom and human dignity, and further, that it is desirable that society at large and government work together towards eradicating barriers which prevent persons with disabilities from accessing the labour market.

   1_ScienceOpen_Log03432114.png

Downloads

Download data is not yet available.

Metrics

Metrics Loading ...

References

Bibliography

Christianson "Disability Discrimination"

Christianson M "Disability Discrimination" in Strydom EML (ed) Essential Employment Discrimination Law (Juta Cape Town 2004)

Christianson 2004 ILJ

Christianson M "Incapacity and Disability: A Retrospective and Prospective Overview of the Past 25 Years" 2004 ILJ 879- 896

Du Plessis and Fouche Labour Law

Du Plessis VJ and Fouche MA Practical Guide to Labour Law 5th ed (LexisNexis Durban 2005)

Du Toit et al Labour Relations Law

Du Toit D et al Labour Relations Law: A Comprehensive Guide 5th ed (LexisNexis Durban 2006)

Dupper 2002 SA Merc LJ

Dupper O "Affirmative Action and Substantive Equality: The South African Experience" 2002 SA Merc LJ 275-292

Gregory Women and Workplace Discrimination

Gregory RF Women and Workplace Discrimination: Overcoming Barriers to Gender Equality (Rutgers University Press New Brunswick NJ 2003)

Grogan Workplace Law

Grogan J Workplace Law 10th ed (Juta Cape Town 2009)

Habib and De Vos "Human Rights"

Habib A and De Vos C "Human Rights" in Human Sciences Research Council Public Attitudes in Contemporary SA: Insights from an HSRC Survey (HSRC Press Cape Town 2002)

Hasse Perfectly Able

Hasse J Perfectly Able: How to Attract and Hire Talented People with Disabilities (American Management Asssociation New York 2010)

Montalti and Bellengère "Affirmative Action"

Montalti and Bellengère "Is a right to affirmative action the solution to the Orwellian postulate that all are equal But …" Transformation 65 (2007) 146 - 194

Rospabe 2002 South African Journal of Economics

Rospabe S "How Did Labour Market Racial Discrimination Evolve After the End of Apartheid" 2002 South African Journal of Economics 185‐217

Swartz, Schneider and Gohleder "HIV/AIDS and Disability"

Swartz L, Schneider M and Gohleder P "HIV/AIDS and Disability: New Challenges" in Watermeyer B (ed) Disability and Social Change: a South African Agenda (HSRC Press Cape Town 2006)

Van Jaarsveld 2002 SA Merc LJ

Van Jaarsveld M "Towards a Reasonable Explanation of Reasonable Accommodation: Lessons from the United States of America" 2002 SA Merc LJ 357-370

Register of legislation

Americans with Disabilities Act of 1990

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Labour Relations Act 66 of 1995

Register of government information

GN 1345 in GG 23702 of 19 August 2002 (Code of Good Practice: Key Aspects on the Employment of People with Disabilities)

Register of case law

President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC)

Standard Bank of South Africa Ltd v CCMA 1998 6 BLLR 622 (LC)

Standard Bank of South Africa v Commission for Conciliation, Mediation and

Arbitration 2008 4 BLLR 356 (LC)

Stoman v Minister of Safety and Security 2002 23 ILJ 1020 (T)

US Airways, Inc v Barnett 535 US, 122 S Ct 1516, 1523 (2002)

Register of international instruments

Convention on the Rights of Persons with Disabilities (2006)

Register of Internet sources

Anon [date unknown] www.dsd.gov.za

Policy on Disability

http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=

&Itemid=3 [date of use 14 March 2012]

Anon [date unknown] www.disabled-world.com

Anon [date unknown] Health and Disability News and Statistics for Africa http://www.disabled-world.com/news/africa [date of use 5 May 2011]

Anon [date unknown] www.jobs.co.za

Anon [date unknown] Recruiting South Africans with Disabilities http://www.jobs.co.za/recruitment/recruitment-advice/article/97/recruiting-south-africans-with-disabilities [date of use 5 May 2011]

Bollinger and Stover 1999 www.policyproject.com

Bollinger L and Stover J 1999 The Economic Impact of AIDS in South Africa http://www.policyproject.com/pubs/SEImpact/southafr.pdf [date of use 28 Oct 2011]

Buckup 2009 www.ilo.org

Buckup S 2009 The price of exclusion: The economic consequences of excluding people with disabilities from the world of work http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---ifp_skills/documents/publication/wcms_146260.pdf [date of use 26 Apr 2011]

Chavoos 2008 www.nortonrose.com

Chavoos M 2008 Incapacity/Disability Dismissals: A Warning to Employers http://www.nortonrose.com/files/za-incapacity--disability-dismissals-a-warning-to-employers-44310.pdf [date of use 26 Apr 2011]

Department of Labour [date unknown] www.labour.gov.za

Department of Labour [date unknown] People with Disabilities in the Workplace http://www.labour.gov.za/documents/useful-documents/skills-development/job-hunting-application-dos-and-donts [date of use 5 May 2011]

Department of Labour [date unknown] www.workinfo.com

Department of Labour [date unknown] Technical Assistance Guidelines on the Employment of People with Disabilities http://www.workinfo.com

/free/sub_for_legres/data/equity/DisabilityTAG.pdf [date of use 2 Nov 2011]

Galo 2001 www.akingump.com

Galo MV 2001 The Americans with Disabilities Act – The Reasonable Accommodation Process http://www.akingump.com/docs/publication/295.pdf [date of use 28 Apr 2008]

Goodwill Industries International 2011 www.prnewswire.com

Goodwill Industries International 2011 Talent Has No Boundaries: People with Disabilities are an Asset to the Workplace http://www.prnewswire.com/news-releases/talent-has-no-boundaries-people-with-disabilities-are-an-asset-to-the-workplace-104273243.html [date of use 28 Oct 2011]

ILO Skills and Employability Department 2007 www.ilo.org

International Labour Organization (ILO) Skills and Employability Department 2007 Strategies for Skills Acquisition and Work for People with Disabilities in Southern Africa: Synthesis Report Malawi, South Africa and Zambia http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---ifp_skills/documents

/publication/wcms_107784.pdf [date of use 5 May 2011]

McClain 2002 www.info.gov.za

McClain CV 2002 Towards a barrier-free society: SAHRC Report, November 2002 http://www.info.gov.za/view/DownloadFileAction?id=70265 [date of use 28 Oct 2011]

Mesriani Law Group 2011 www.hg.org

Mesriani Law Group 2011 Fighting against Religious Discrimination in the Workplace http://www.hg.org/article.asp?id=20794 [date of use 28 Oct 2011]

Mouton 2008 www.ens.co.za

Mouton LM 2008 "Incapacity must be determined" Business Law &Tax Review http://www.ens.co.za/newsletter/briefs/20080826_BLTR_1.pdf [date of use 5 May 2011]

Ngwena 2004 www.leeds.ac.uk

Ngwena C 2004 Equality and Disability in the Workplace: A South African Approach (A Seminar Presentation in the School of Law, University of Leeds, England) http://www.leeds.ac.uk/disability-studies/archiveuk/ngwena/Leeds

%20staff%20seminar%20Revisions.pdf [date of use 26 Apr 2011]

Office of the President [date unknown] www.independentliving.org

Office of the President [date unknown] Integrated National Disability Strategy (White Paper) http://www.independentliving.org/docs5/SANatlDisStrat1.html [date of use 28 Oct 2011]

Perry 2004 www.ilo.org

Perry DA 2004 New Directions toward Decent Work for People with Disabilities: ILO Perspectives on Employment and Skills Development http://www.ilo.org/public/english/region/asro/bangkok/ability/download/korea_paper.pdf [date of use 28 Oct 2011]

Pillay 2010 www.ohchr.org

Pillay N 2010 Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors (Professional Training Series No. 17) http://www.ohchr.org/Documents/Publications/Disabilities_training_

EN.pdf [date of use 26 Apr 2011]

Scholasticus 2009 www.buzzle.com

Scholasticus K 2009 Discrimination against Disabled People in the Workplace http://www.buzzle.com/articles/discrimination-against-disabled-people-in-the-workplace.html [date of use 26 Apr 2011]

UN Secretary General 2007 www.un.org

UN Secretary General 2007 Report on the Implementation of the World Programme of Action concerning Disabled Persons: The Millennium Development Goals and Synergies with other United Nations Disability Instruments http://www.un.org/disabilities/default.asp?id=711 [date of use 28 Apr 2011]

US Equal Employment Opportunity Commission 2002 www.eeoc.gov

US Equal Employment Opportunity Commission 2002 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act http://www.eeoc.gov/policy/docs/accommodation.html [date of use 28 Apr 2011]

WHO 2010 www.searo.who.int

World Health Organization (WHO) 2010 Convention on the Rights of Persons with Disabilities: Roles and Responsibilities of the Health Sector http://www.searo.who.int/LinkFiles/Publications_SEA_Disabilities_CRPD.pdf [date of use 2 May 2011]

Published

2017-05-22

How to Cite

Marumoagae, M. C. (2017). Disability Discrimination and the Right of Disabled Persons to Access the Labour Market. Potchefstroom Electronic Law Journal, 15(1), 344–365. https://doi.org/10.17159/1727-3781/2012/v15i1a2467

Issue

Section

Articles