Ableism at Work: Disablement and Hierarchies of Impairment (Cambridge Disability Law and Policy Series) 1108497306, 9781108497305

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Cambridge University Press 978-1-108-49730-5 — Ableism at Work Paul David Harpur Frontmatter More Information

ableism at work The UN Convention on the Rights of Persons with Disabilities promotes ability equality, but this is not reflected in national laws. Australia, Canada, Ireland, the United Kingdom and the United States all have one thing in common: regulatory frameworks that treat workers with psychosocial disabilities less favourably than workers with either physical or sensory disabilities. Whether it be denying antidiscrimination protection to people with episodic disabilities, addictions, or other psychological impairments, failing to make reasonable accommodations/adjustments for workers with psychosocial disabilities, or denying them workers compensation or occupational health and safety protections, regulatory interventions embed inequalities. Ableism, sanism and prejudice are expressly stated in laws, reflected in judgments and perpetuated by workplace practices. dr paul david harpur is a senior lecturer at the TC Beirne School of Law, the University of Queensland, Australia. He is also an International Distinguished Fellow with the Burton Blatt Institute, Syracuse University, New York. Dr Harpur is also a Fulbright Future Scholar, where he will be a visiting fellow at the Burton Blatt Institute and Harvard Law School Project on Disabilities. Dr Harpur has been named a 2020 fellow of the Harvard Law School Project on Disabilities.

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Cambridge Disability Law and Policy Series Edited by Peter Blanck and Robin Paul Malloy The Disability Law and Policy series examines these topics in interdisciplinary and comparative terms. The books in the series reflect the diversity of definitions, causes, and consequences of discrimination against persons with disabilities while illuminating fundamental themes that unite countries in their pursuit of human rights laws and policies to improve the social and economic status of persons with disabilities. The series contains historical, contemporary, and comparative scholarship crucial to identifying individual, organizational, cultural, attitudinal, and legal themes necessary for the advancement of disability law and policy. The book topics covered in the series also are reflective of the new moral and political commitment by countries throughout the world toward equal opportunity for persons with disabilities in such areas as employment, housing, transportation, rehabilitation, and individual human rights. The series will thus play a significant role in informing policy makers, researchers, and citizens of issues central to disability rights and disability antidiscrimination policies. The series grounds the future of disability law and policy as a vehicle for ensuring that those living with disabilities participate as equal citizens of the world.

Books in the Series Ruth Colker, When Is Separate Unequal? A Disability Perspective, 2009 Larry M. Logue and Peter Blanck, Race, Ethnicity, and Disability: Veterans and Benefits in Post–Civil War America, 2010 Lisa Vanhala, Making Rights a Reality? Disability Rights Activists and Legal Mobilization, 2011 Eilionóir Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities, 2011 Isabel Karpin and Kristin Savell, Perfecting Pregnancy: Law, Disability, and the Future of Reproduction, 2012 Alicia Ouellette, Bioethics and Disability: Toward a Disability-Conscious Bioethics, 2013 Arie Rimmerman, Social Inclusion of People with Disabilities: National and International Perspectives, 2013 Andrew Power, Janet E. Lord and Allison S. DeFranco, Active Citizenship and Disability: Implementing the Personalisation of Support, 2013 Lisa Schur, Douglas Kruse and Peter Blanck, People with Disabilities: Sidelined or Mainstreamed?, 2013 Eliza Varney, Disability and Information Technology: A Comparative Study in Media Regulation, 2013 Jerome E. Bickenbach, Franziska Felder and Barbara Schmitz, Disability and the Good Human Life, 2014

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Robin Paul Malloy, Land Use Law and Disability: Planning and Zoning for Accessible Communities, 2014 Arie Rimmerman, Family Policy and Disability, 2015 Peter Blanck, eQuality: The Struggle for Web Accessibility by Persons with Cognitive Disabilities, 2016 Anna Arstein-Kerslake, Restoring Voice to People with Cognitive Disabilities: Realizing the Right to Equal Recognition Before the Law, 2017 Arie Rimmerman, Disability and Community Living Policies, 2017 Paul Harpur, Discrimination, Copyright and Equality: Opening the e-Book for the Print-Disabled, 2017 Aisling de Paor, Genetics, Disability and the Law: Towards an EU Legal Framework, 2017 Piers Gooding, A New Era for Mental Health Law and Policy: Supported Decision-Making and the UN Convention on the Rights of Persons with Disabilities, 2017 Larry M. Logue and Peter Blanck, Heavy Laden: Union Veterans, Psychological Illness, and Suicide, 2018 Karrie A. Shogren, Michael L. Wehmeyer, Jonathan Martinis and Peter Blanck, Supported Decision-Making: Theory, Research, and Practice to Enhance Self-Determination and Quality of Life, 2018 Gauthier de Beco, Janet E. Lord and Shivaun Quinlivan, The Right to Inclusive Education in International Human Rights Law, 2019 Stephen Meyers, Civilizing Disability Society: The Convention on the Rights of Persons with Disabilities Socializing Grassroots Disabled Persons Organizations, 2019 Paul Harpur, Ableism at Work: Disablement and Hierarchies of Impairments, 2020

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Ableism at Work disablement and hierarchies of impairment PAUL DAVID HARPUR University of Queensland

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University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108497305 doi: 10.1017/9781108667371 © Paul David Harpur 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Harpur, Paul David, 1979– author. title: Ableism at work : disablement and hierarchies of impairment / Paul David Harpur. other titles: Disablement and hierarchies of impairment description: 1. | New York : Cambridge University Press, 2019. | Series: Cambridge disability law and policy series | Includes index. identifiers: lccn 2019038137 (print) | lccn 2019038138 (ebook) | isbn 9781108497305 (hardback) | isbn 9781108739771 (paperback) | isbn 9781108667371 (epub) subjects: lcsh: Discrimination against people with disabilities–Law and legislation. | Mentally ill–Legal status, laws, etc. | Labor laws and legislation. | Equality before the law. | Human rights. | Convention on the Rights of Persons with Disabilities and Optional Protocol (2007 March 30) classification: lcc k637 .h365 2019 (print) | lcc k637 (ebook) | ddc 344.01/59–dc23 LC record available at https://lccn.loc.gov/2019038137 LC ebook record available at https://lccn.loc.gov/2019038138 isbn 978-1-108-49730-5 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

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Introduction I Preliminary A Core Thesis B Comparative Research Method C A Note on Terminology: Mental Impairments and Psychosocial Disabilities D Why Psychosocial Disability? II Inequalities, Oppression and Ableism at Work A Are Persons with Disabilities Experiencing Inequalities in Exercising Their Right to Work? III Theorising Hierarchies of Impairment A Understanding Hierarchies of Impairment and Prejudice at Work B How Sites of Oppression Are Constructed between Impairment Categories C Prejudice against Psychosocial Disabilities Conclusion International Disability Norms at Work: International Law on Ableism at Work and the Hierarchy of Impairments Introduction I How Has International Labour Law Historically Problematised the Disabled Worker?

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A How the Collective Focus of the ILO Reduces Protection for Workers with Disabilities B The ILO and the Problematising Disability through the Medical Model C Workers with Disabilities and ILO Conventions and Jurisprudence: Discounting Ability Diversity at Work D The Social Model and Developments in Ability Equality at Work E ILO Embracing New Disability Human Rights Paradigm II The UN and the New Disability Human Rights Paradigm A The Emergence of the Disability Human Rights Paradigm and the CRPD B The Right to Work and the CRPD C No Hierarchies of Impairments: How the CRPD Promotes Ability Equality at Work Conclusion 3

The CRPD Committee, Ableism and Hierarchies of Impairment at Work Introduction I The CRPD Committee and Its Role II The CRPD Committee and Understanding the Problem of the Hierarchies of Impairments at Work A The Right to Work and the Interdependency of Rights B Understanding the Problem: The CRPD Committee and the Denial of the Right to Work III Regulatory Failures Which Promote Ableism at Work and Hierarchies of Impairment A The Ability Apartheid Is No Accident: Regulatory Interventions That Aim to Exclude Workers with Disabilities B Hierarchies of Impairments in Laws Which Fail to Regulate Key Barriers to Ability Equality at Work IV Importance of Comparable and Disaggregated Data in Identifying and Addressing the Hierarchy of Impairments at Work A The CRPD on the Disaggregation of Data and Hierarchy of Impairments B Disaggregation of Data and Hierarchy of Impairments Conclusion

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Hierarchies of Impairment at Work in the Regulation and Response to Sheltered Work Introduction I Introducing Sheltered Workshops A What Are Sheltered Workshops? B Funding Sheltered Work II The CRPD Committee and the Agenda against Sheltered Work A How Does the CRPD Distinguish between Acceptable and Unacceptable Employment Options? B What Has the CRPD Committee Said on Sheltered Workshops? C Transitioning from Sheltered Work to Open Work Can Take Considerable Effort and Retraining D Why the CRPD Committee Is Opposed to Sheltered Work III Disability Scholarship That Supports the Position Taken by the CRPD Committee A Separate Is Bad B Exploitative Not to Pay Equal for Workers with and without Disabilities C Inability to Transition out of Sheltered Work IV Ableism in the Open Labour Market and Transitioning from Sheltered Work to What? A Transitioning to What? From Sheltered Permanent Employment to Low-Skilled Casual Employment B Beyond Precarious Employment to Precarious Work: Unsheltered and Unregulated Work C Non-Ideal Employment to No Employment: Experiences When Sheltered Workshops Are Closed V We Know What Is Good for You: Everything about You without You A My Voice My Choice: Hear Me B You Have My Voice, Now Help Me Use It: Disability Person Organisations Conclusion

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The Arbitrary Exclusion of Episodic and Psychosocial Disabilities from Legal Protection: The Duration Test Promoting Ableism at Work Introduction I Psychosocial Disabilities as Episodic Disabilities A What Are Episodic Disabilities? B Episodic Disabilities Are Misunderstood C Difference between Episodic and Stable Disabilities at Work II International Disability Norms: Protecting by Categories and Not by Need A Minority Group and Universalist Approach to Disability B The CRPD Adopts the Minority Group Approach C The Duration Test in the CRPD III Duration Tests and Disability Discrimination and Diversity Laws A Proving the Presence of a Psychosocial Disability B Faking or Real: Challenges in Proving Episodic Disability C Beyond Anti-discrimination Laws, How Do Other State Interventions Approach Episodic Disabilities? Conclusion Ability Apartheid at Work: The Policy of Stigmatising and Excluding ‘Unacceptable’ Psychosocial Disabilities from Anti-discrimination Laws Introduction I Examples of Psychological Conditions That Are Deemed Outside Protection A Psychological Conditions Where Propensity for Conduct Deemed Unacceptable in Society B Substance Abuse Addictions II Is It Reasonable to Expect Workers with Psychosocial Disabilities to Rehabilitate to Gain Protection? A Attempts to Rehabilitate Can Enliven Anti-discrimination Protections B Mitigating an Impairment Is Normally Not Necessary C Should the Decision to Refuse Treatment Be Relevant in Considering What Are Reasonable Accommodations?

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III The Mutability of the Condition and the Immutability of the Legal and Social Stigma: Can Workers Remove the Outsider Identity Once Marked? A Counter-Productive to Deny Protection B Criminal Spent Conviction Laws Have Time Limit Where ‘Unaccepted’ Psychosocial Impairments Do Not Conclusion 7

Reasonable Accommodations in a Psychosocial Diverse Workplace: Hierarchies of Impairment at Work Introduction I How Can Reasonable Accommodations Enable Persons with Psychosocial Disabilities to Exercise Their Right to Work? A General Wellness Programs vs. Reasonable Accommodations B The Subjective Nature of Reasonable Accommodations II Hierarchies of Impairment and Reasonable Accommodations under International Law A Reasonable Accommodations and the ILO B Reasonable Accommodations and the CRPD 1 The First Prong: Universal Design 2 The Second Prong: Right to Reasonable Accommodation C CRPD Committee on the Right to Access and Reasonable Accommodations 1 The CRPD Committee Promoting the Two-Prong Approach 2 The Right to Access and Hierarchies of Impairment 3 The CRPD Committee and the Right of Reasonable Accommodation III Law and Practices of Unreasonable Refusals to Accommodate Psychosocial Diversity at Work A The Test for Reasonable Accommodations B Employers Designing Work Structures and the Business Case for Exclusion: The Requirement for Standard Range of Behavioural Abilities IV Challenges for Workers with Psychosocial Disabilities in Making Reasonable Accommodation Requests A ‘Coming Out’ with Mental Disability as an Invisible Impairment

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B Dilemma for Reasonable Accommodation: Emphasising Sameness or Difference C What Happens If the Accommodation Request Is Rejected? D Employer Demanding Disclosure of Disability E Resistance to Psychosocial Diversity at Work and to Making Accommodations for Workers with Mental Impairments F Uncertainty on How to Accommodate Psychosocial Impairments G Functional Accommodations vs. Changing Workplace Norms H Role of Stigma I Co-Worker Sanism Conclusion 8

Using Occupational Safety and Health Laws to Promote Psychological Health at Work Introduction I International Law Norms on Occupational Safety and Health and Disability at Work II Helping Psychosocial Diversity: Occupational Safety and Health Duties to Promote the Psychological Health of Workers A Employers’ Duty to Manage Their Workers’ Psychological Health B Failing to Discharge the Duty to Protect Workers’ Psychological Health: When Asking for Help Results in Unfavourable Treatment C Employers Failure to Protect Workers Psychological Health Can Contribute to Bullying and Violence at Work III How Occupational Health and Safety Laws Can Restrict Psychosocial Diversity at Work A Employers’ Occupational Safety and Health Duty to Respond to Non-Ideal Social Interactions at Work B Bullying and Mobbing Laws Intensify Employer Attention on Preventing Non-Ideal Social Interactions at Work C Limitations on Excluding Workers due to Manifestations of Their Disability: The Limited Role of Antidiscrimination Law Conclusion

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Sanism and Ableism in the Law’s Response to Injured Workers Introduction I Comparing and Analysing Systems for Compensating Workers Injured at Work II Workers’ Compensation Laws Failing Workers Mentally Injured at Work and Enshrining a Hierarchy of Impairments A Higher Burden of Proof: Hierarchy of Impairments in Who Is Entitled to Workers’ Compensation Payments B Scrutinising the Event Which Led to the Mental Injury: Traumatic or Unusual C Mental Injuries That Are Caused by the Exercising of Managerial Prerogative Are Not Normally Recognised D A Bizarre and Unfounded Assumption: Mental Injuries without an Associated Physical or Sensory Injury Are Not Real E Where Workers Mentally Injured at Work Are Deemed Less Unworthy F Hierarchy of Impairments in Compensating Workers for Mental Injuries III Negligence at Work: Judicial Distinctions between Physical and Mental Impairments A The Gap between the Cause of Mental Injuries and the Legal Right to Seek Redress B Judicial Limitations on Damages for Mental Injuries C Litigants with Mental Impairments as Responsible for Their Own Well-Being Conclusion Advancing Psychosocial Diversity Using Contract and Unfair Dismissal Laws Introduction I Fairness and Termination of Employment Contracts Under International Labour and Human Rights Laws II Statutory Unfair Dismissal Protections III Impairment Irrelevant: No Need to Identify or Prove the Presence of Disability A Proving the Presence of Disability Can Be Challenging B The Disclosure Conundrum and Unfair Dismissal Laws

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IV The Notion of ‘Fairness’ Incorporates Ability Diversity A Procedural Fairness in the Fair Work Act 2009 (Cth) s 387(b)–(g) B Whether There Was a Valid Reason for the Dismissal Related to the Person’s Capacity or Conduct (Including Its Effect on the Safety and Welfare of Other Employees) – Fair Work Act 2009 (Cth) s 387(a) C Any Other Matters That the FWC Considers Relevant – Fair Work Act 2009 (Cth) s 387(h) Conclusion Index

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Foreword

The United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) has swept in a new disability human rights paradigm.1 As exemplified in the CRPD Committee’s General Comment on equality and nondiscrimination,2 there is a concordant global and normative shift towards ‘ability equality’. Dr Paul Harpur’s important treatment in this book nonetheless underscores that the CRPD’s normative shift is leaving many workers with psychosocial disabilities behind. Although workplace laws and practices generally are becoming more supportive and accommodating of persons with mobility, physical, and sensory disabilities, particularly driven by new technologies, regulatory frameworks historically and today disproportionately exclude those who disclose psychosocial disabilities. Discrimination against people with psychosocial disabilities is no accident.3 Harpur shows how such exclusion has been long enshrined in laws and policies, supported in judicial rulings and perpetuated by workplace practices across jurisdictions. But Harpur breaks new ground in his analysis of how inequalities are experienced in work relationships depending upon the type of impairment. The presence of such socially constructed hierarchies of impairments, with psychosocial disabilities occupying the bottom rung, operate within systems

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UN Convention on the Rights of Persons with Disabilities, Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (9 March 2018), 70. Larry M. Logue and Peter Blanck, Heavy Laden: Union Veterans, Psychological Illness, and Suicide (2018) Cambridge University Press.

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affecting employment, such as for workers compensation,4 veterans seeking compensation for disablement,5 access to digital and online services,6 and in supports in decision-making.7 This book advances an important means for understanding and addressing disablement on the basis of psychosocial impairment. It does this by analysing how the presence of ‘hierarchies of impairments’ in workplace laws, policies, and practices distort the impact of ability diversity, often creating and sustaining discrimination where indeed no such inequalities need exist. Harpur considers the emerging international law norms established by the CRPD to critique the role that psychosocial ableism has on the law of work globally. He understands that even though some workplace regulatory interventions actively seek to promote ability equality at work, they also may perversely perpetuate prejudice and stigma experienced by workers with psychosocial disabilities. We see the challenges confronting workers with psychosocial disabilities are neither limited to one jurisdiction nor even time period. Harpur’s comprehensive analysis of international law norms using comparative analysis of the operation of hierarchies of impairments in Australia, Canada, Ireland, the United Kingdom and United States, offers an illuminating and concerning message. The message is that prejudice, and devaluing of workers, is strongly influenced by the type of impairments they have, and particularly so for persons with psychosocial disabilities. Harpur’s treatment is separated into three parts. The early chapters analyse how international law posits and develops norms to promote the human rights paradigm and oppose the presence of hierarchies of impairments at work. These chapters consider questions pertaining at the intersection of the global labour movement, such as by the International Labour Organization, with legal jurisprudence and structures, for example as set forth in the CRPD and by its Committee on the Rights of Persons with Disabilities. Harpur then turns towards reconciling the important debate on how labour markets generally may support persons with disabilities to work. This discussion considers timely opportunities and questions, such as involving 4

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Paul Harpur, Ursula Connolly and Peter Blanck, ‘Socially Constructed Hierarchies of Impairments at Work: Example of the Australian and Irish Workers’ Access to Compensation for Injuries’ (2017) 27 Journal of Occupational Rehabilitation 4, 50. Peter Blanck, ‘Civil War Pensions and Disability’ (2001) 62 Ohio State Law Review 109. Peter Blanck, eQuality: The Struggle for Web Accessibility by Persons with Cognitive Disabilities (2014) Cambridge University Press. Dilip V. Jeste, et al., ‘Supported Decision Making in Serious Mental Illness’ (2018) 81 Psychiatry, 28.

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disability self-employment on the one hand, and segregated sheltered work on the other. The middle chapters take the international law norms that have been prior unpacked and apply them to domestic anti-discrimination regimes in Australia, Canada, Ireland, the United Kingdom and United States. Across these venues, Harpur analyses the particular situation of workers with psychosocial disabilities. The core theme here is how these workers’ capacity to access antidiscrimination law protections is substantially limited, often only by ‘value judgments’ made as to the worthiness of certain impairment types. Yet, even in those cases where workers with psychosocial disabilities may access anti-discrimination protections, Harpur brings us back to the irrational and unwavering prejudice that too often severs the capacity of workers with psychosocial disabilities to benefit from reasonable accommodations and adjustment laws designed towards integration and equality. The final chapters provide an in-depth review of the operation of these ability and anti-psychosocial hierarchies as operating in state laws that focus on regulating work and the employment relationship. We understand from Harpur’s concerning analysis how the unfair mix of occupational safety and health laws, and bullying and anti-discrimination laws, produce and perpetuate discriminatory outcomes. I have been fortunate indeed in prior work to collaborate with Harpur, examining the ways in which workers’ compensation and negligence laws serve to devalue the importance of psychosocial disabilities.8 But this book goes well beyond that initial foray. Here, Harpur writes a definitive treatment of how the deep-seated stigma surrounding psychosocial disabilities is engrained in our workplace structures and laws. We understand the pervasive problem of ableism as particularly facing workers with psychosocial disabilities is not confined to one jurisdiction, a single country, or a unidimensional aspect of workplace law and policy. Thus, the ‘hierarchy of impairment’ harshly penalises workers with psychosocial disabilities, who experience greater inequalities than those with other more obvious disabilities. That this unequal treatment is engrained in workplace norms helps us understand the depth of injustice caused by this bigotry.9 Harpur’s treatment recognises the importance of a transdisciplinary approach to the understanding of discrimination. The consideration of disability policies and practices across the disciplines – law, economics, psychology – and international and national comparisons, makes this book relevant 8 9

Harpur, Connolly and Blanck, ‘Socially Constructed Hierarchies of Impairments at Work’, 50. Peter Blanck, Disability Law and Policy (2020) Foundation Press.

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to lawyers, policymakers, disability rights practitioners, human resource professionals, and those in the social sciences. By illuminating the presence and operation of impairment hierarchies ‘at work’, Harpur provides a needed roadmap of how to identify and redress these inequalities, at bottom caused by prejudice, stigma, and erroneous assumptions. Peter Blanck University Professor Chairman, Burton Blatt Institute Syracuse University, New York

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Acknowledgements

concept The seed for this monograph started with a coffee with Ursula Connolly and myself in 2016 while I was an International Visiting Fellow, Centre for Disability Law and Policy, Institute for Lifecourse & Society, National University of Ireland, Galway. Ursula and I compared notes on how workers with mental injuries were treated between our respective home jurisdictions of Australia and Ireland. We started writing these thoughts down and I discussed them further with the towering intellect of Professor Peter Blanck while I was visiting with him a few weeks later at the Burton Blatt Institute, Syracuse University, New York. When the seed of an idea hit the fertile ground of Professor Blanck an output soon followed: Paul Harpur, Ursula Connolly and Peter Blanck, ‘Socially Constructed Hierarchies of Impairments at Work: Example of the Australian and Irish Workers’ Access to Compensation for Injuries’ (2017) 27 Journal of Occupational Rehabilitation 4, 507. This paper stimulated my academic interest and I have expanded on it theoretically and legally to produce this monograph. I am academically and personally grateful to Peter and Ursula. I have three international mentors who have provided me considerable support in development for this monograph. I wish to recognise and thank (in alphabetical order): Professor Richard Bales, Professor of Law at the Claude W. Pettit College of Law, Ohio Northern University. Professor Peter Blanck, Chairman of the Burton Blatt Institute, Professor of Law at the Syracuse University College of Law. Professor Michael Ashley Stein, Executive Director of the Harvard Law School Project on Disability, Harvard University, and Extraordinary xix

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Professor, University of Pretoria Faculty of Law, Centre for Human Rights. I am privileged to work in an exceptionally collegial environment and have benefited from the mentorship of three TC Beirne School of Law, University of Queensland, colleagues in particular (in alphabetical order): Professor Heather Douglas, Deputy Dean (Research) & Deputy Dean, Research. Professor Graeme Orr Professor Brad Sherman, Australian Research Council, Australian Laureate Fellow I am grateful to my two research assistants. Dr Joseph Lelliott was my RA when he was a PhD Candidate at TCB, but on his graduation and appointment to becoming a lecturer with us he handed the RA position to Ms Jocelyn Bosse. Jocelyn is a PhD Candidate with TCB and fellow on Professor Brad Sherman’s Australian Research Council, Australian Laureate Project. I would also like to express my appreciation for the members of the University of Queensland Disability Inclusion Group (UQ DIG). UQ DIG is a group formed under the UQ Disability Action Plan to advise the Pro-ViceChancellor, and where appropriate the University Senate Committee for Equity, Diversity and the Status of Women, on strategic issues, initiatives and achievements relating to disability inclusion, and is active in advancing disability inclusion at a strategic level across the university. My involvement as chair of the UQ DIG has enabled me to work closely with a number of amazing people who have joined me in the struggle for ability equality. I would like to acknowledge in particular: Professor Tim Dunne, Pro-Vice-Chancellor and senior executive for staffing and employee relations at the University of Queensland, who has mentored me and given substantial financial and leadership support to the struggle for ability equality. Dr Dee Gibbon, Associate Director, the University of Queensland Workplace Diversity and Inclusion, who has led ability equality efforts. Ms Jordan Tredinnick, Senior Manager, the University of Queensland Workplace Diversity and Inclusion, and the brainchild behind the ‘disability courageous university’ concept. All of these fantastic people are facilitating and inspiring change.

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Acknowledgements

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In addition to academic acknowledgements I need to express my love and gratitude for my family, the rock of my success. My nana Una Radloff, wife Melissa Harpur and my son Hayden Harpur for being such a joy. I also want to mention my parents, Barry and Joan Harpur, who by now have given up telling me to slow down, which, incidentally, was also a comment on my preschool report card.

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1 Introduction

i preliminary A Core Thesis This monograph uses the disability human rights paradigm to critique the role that ableism has in the law of work. It will analyse international and national laws that regulate work relationships to illustrate how value judgments have resulted in a hierarchy of impairments, whereby the nature of an impairment is used to determine whether a worker is protected and supported, rather than the extent of impairment or capacity to work. Ability diversity and disability are often associated with unfavourable economic and labour market outcomes. Some of these less favourable outcomes can be attributed to the requirement to have certain abilities to perform a job (e.g. sight is required to hold vehicle licenses), the economic factors which prevent all barriers to ability equality being removed (e.g. it would be prohibitively expensive to remove every set of stairs in the London underground) and the prejudice of lawmakers (e.g. the belief that people with certain impairments are less worthy of support). There is a distinction between impairment and disability. Following the lead of the UN Convention on the Rights of Persons with Disabilities (CRPD), impairments can conveniently be divided as follows: intellectual, which focuses on intelligence; mental, which focuses on all other medical conditions related to brain operation; sensory, which focuses on reduced sight, smell, hearing, taste or other sensory limitations; and physical, which focuses on reduced abilities that are not related to brain or sensory activities.1 Disability is created when impairments interact with barriers in society.

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Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 30 May 2008) art 1.

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There are a range of other terms adopted to define impairment categories and the disabilities which flow from these impairments. For the reasons described below, in this book the term ‘psychosocial disability’ is used to describe the disablement of people with mental impairments. The extent to which remedial laws create a hierarchy of impairments by treating mental impairments less favourably than physical and sensory impairments is critically analysed.

B Comparative Research Method This monograph identifies and analyses key themes in laws which impact upon the rights of workers with psychosocial disabilities at work. A legal doctrinal method will be adopted. This will primarily involve analysis of international and domestic laws and working documents, international and domestic judgments, observations and rulings, and engagement with secondary materials. The international law research will focus upon the United Nations’ human rights and labour rights regimes. The CRPD, along with its jurisprudence, is the most relevant body of international disability law. While the CRPD posits persons with disabilities right to work and employment in Article 27, the International Labour Organization (ILO) has a century of history setting workplace norms, hence the ILO will be analysed as far as it focuses on workers with disabilities. The country comparison will primarily involve analysis of laws in Australia, Canada, Ireland, New Zealand, the United Kingdom and the United States. It is crucial to consider the historical, social, economic, political, cultural, and psychological context which has impacted on the operation of the existing laws.2 The fact that a law has successfully achieved its purposes in one jurisdiction does not mean that same regulatory model will achieve the same outcome in another jurisdiction. Montesquieu famously declared in 1748 that ‘political and civil laws of each nation. . . should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another’.3 Lord Denning has remarked on the problems of transplanting laws where His Honour observed that ‘[j]ust as with

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Paul Harpur, ‘Better Work: Problems with Exporting the Better Factories Cambodia Project to Jordan, Lesotho, and Vietnam’ (2011) 36(4) Employee Relations Law Journal 79. Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (1748) reprinted.

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an English oak, so with the English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending.’4 Large comparative projects require particular attention to ensure sufficient detail is provided to understand regulatory themes, without providing so much detail as to turn the monograph into a long, descriptive comparison. The author has previously successfully performed comparative analysis of this nature when analysing workplace laws and laws the regulate disability more generally. The author has demonstrated the viability of this comparison in successfully comparing international law with the approaches in Australia, Canada, the United Kingdom and United States in his previous Cambridge University Press monograph.5 The author has performed numerous other comparisons, including between different international labour laws,6 different international disability laws,7 and between state jurisdictions, including comparing Australia with Ireland,8 with New Zealand,9 with the United Kingdom10

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Nyali Ltd. v. Attorney-General [1956] 1 QB 16, 16–17. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press. Harpur, ‘Better Work: Problems with Exporting the Better Factories Cambodia Project to Jordan, Lesotho, and Vietnam’ 79; Paul Harpur, Ivanka Mamic and Nick Beresnev, ‘MultiNational Enterprises and Corporate Social Responsibility in Fiji and Pacific Island Countries: Disability and Gender Equality’ (Final Report, International Labour Office, Bangkok and Suva, September 2015). Paul Harpur, ‘Nothing About Us Without Us’: The UN Convention on the Rights of Persons with Disabilities (2017) Oxford Research Encyclopaedia of Politics; Paul Harpur, ‘Old Age Is Not Just Impairment: The Convention on the Rights of Persons with Disabilities and the Need for a Convention on Older Persons’ (2016) 37(3) University of Pennsylvania Journal of International Law 1027; Paul Harpur and Michael Ashley Stein, ‘Children with Disabilities, Human Rights, and Sustainable Development’ in Claire Fenton-Glynn (ed), Children’s Rights and Sustainable Development: Implementing the UNCRC for Future Generations (2017) Cambridge University Press; Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ (2017) 41 Loyola Law School Los Angeles International & Comparative Law Review 1, 51. Paul Harpur, Ursula Connolly and Peter Blanck, ‘Socially Constructed Hierarchies of Impairments at Work: Example of the Australian and Irish Workers’ Access to Compensation for Injuries’ (2017) 27(4) Journal of Occupational Rehabilitation, 507. Tom Devine, Paul Harpur and David Lewis, ‘Civil and Employment Law Remedies’ in AJ Brown, David Lewis and Richard Moberly (eds) International Handbook on Whistleblowing Research (2014) Edward Elgar, chapter 18. Paul Harpur and Philip James, ‘The Shift in Regulatory Focus from Employment to Work Relationships: Critiquing Reforms to Australian and UK Occupational Safety and Health Laws’ (2014) 36(1) Comparative Labor Law and Policy Journal 111.

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and with the United States,11 as well as comparing the United States and the United Kingdom.12

C A Note on Terminology: Mental Impairments and Psychosocial Disabilities The language deployed to describe the social construct of disability is hotly contested.13 There are large corporate interests vested in attempting to ‘cure’ impairments. Medical and pharmaceutical firms heavily lobby for the public to believe that their products and services should be purchased.14 In these campaigns, persons with disabilities are used as marketing tools rather than as rights agents entitled to dignity and equality. The CRPD operates on the basis of ‘nothing about us without us’.15Building upon the CRPD, the next generation norm goes further and calls for ‘nothing about us unless it is led by us’. The source for labels to describe disablement therefore should be the disability community itself. This, of course, is difficult as different groups take different perspectives. This can be evinced by the dispute between the ‘person-first’ or ‘rights-first’ debate. Whether the person or disability is placed first has theoretical and practical significance.16 Medical professionals describe people by reference

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Paul Harpur, Simon Bronitt, Peter Billings, Martie-Louise Verreynne and Nancy Pachana, ‘Regulating Fake Assistance Animals – A Comparative Review of Disability Law in Australia and the United States’ (2018) 24 Animal Law Review 1, 77. Paul Harpur, ‘From Universal Exclusion to Universal Equality: Regulating Ableism in a Digital Age’ (2013) 40(3) Northern Kentucky Law Review 529. Paul Harpur, ‘From Disability to Ability: Changing the Phrasing of the Debate’ (2012) 27 Disability and Society 3, 325. Mayer Brezis, ‘Big Pharma and Health Care: Unsolvable Conflict of Interests between Private Enterprise and Public Health’ (2008) 45 Israel Journal of Psychiatry and Related Sciences 2, 83; Andrew Edgar, ‘The Dominance of Big Pharma: Power’ (2013) 16 Medicine, Health Care and Philosophy 2, 295; Paul D Jorgensen, ‘Pharmaceuticals, Political Money, and Public Policy: A Theoretical and Empirical Agenda’ (2013) 41 The Journal of Law, Medicine & Ethics 3, 561. Kerstin Braun, ‘“Nothing About Us Without Us”: The Legal Disenfranchisement of Voters with Disabilities in Germany and Its Compliance with International Human Rights Standards on Disabilities’ (2015) 30 American University International Law Review 315; Paul Harpur, ‘Nothing About Us Without Us: The UN Convention on the Rights of Persons with Disabilities’ (24 May 2017) Oxford Research Encyclopedia of Politics. http://oxfordre.com/ politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-245. Darcy Granello and Todd Gibbs, ‘The Power of Language and Labels: “The Mentally Ill” versus “People with Mental Illnesses”’ (2016) 94(1) Journal of Counseling & Development 31; Paul Harpur, ‘From Disability to Ability: Changing the Phrasing of the Debate’ (2012) 27(3) Disability and Society 325.

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to their impairment, which frames the person as the problem in need of a cure.17 Under this approach, a person with an impairment loses their humanity and are described as the ‘mentally-impaired person’ or, even worse, simply as ‘the mental case’. To shift the focus away from the medical label and towards the role that society plays in disabling people with impairments, the social model advocates in the United Kingdom sought to emphasise that it is the way that society is structured that causes the disablement by adopting the ‘person with a disability’ terminology in disability rights discourse.18 This social model approach, discussed further in Chapter 2, emphasises that the person is disabled by barriers in society. The person-first approach is far more popular with advocates in Australia, Canada and the United States, where it is used to emphasise the humanity of the individual over the impairment.19 The United Nations Convention on the Rights of Persons with Disabilities has enshrined a human rights model that reflects a wider civil rights model that places humanity first and uses the term ‘persons with disabilities’.20 Despite the debates, Tom Shakespeare argues that ‘the person first is the politically progressive choice in America, Australia and other English speaking countries’.21 The author has previously argued for the person-first approach,22 and will predominantly adopt the person with disabilities approach in this book. The author believes that in most situations it is more important to emphasise the humanity of the individual over focusing on the role society has in creating disability.

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Deborah Kaplan, ‘The Definition of Disability: Perspective of the Disability Community’ (2000) 3 Journal of Health Care Law and Policy 352–364; Laura Rovner, ‘Disability, Equality, and Identity’ (2004) 55 Alabama Law Review 1043–1105. Colin Barnes, Disabling Imagery and the Media: An Exploration of the Principles for Media Representations of Disabled People (1992) The British Council of Disabled People 43; Michael Oliver and Colin Barnes, Disabled People and Social Policy: From Exclusion to Inclusion (1998) Longman, 18. Gerard Goggin and Christopher Newell, Disability in Australia: Exposing a Social Apartheid (2003) University of New South Wales Press, 25. Paul Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27(1) Disability and Society 1, 1. Tom Shakespeare, Disability Rights and Wrongs Revisited (2014) Routledge, 19. Paul Harpur, ‘From Disability to Ability: Changing the Phrasing of the Debate’ (2012) 27(3) Disability and Society, 325.

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D Why Psychosocial Disability? The term ‘psychosocial disability’ is being increasingly adopted by advocacy groups and leading academics.23 It has been argued that this term more explicitly recognises the social model explanation of the disablement of people with mental impairments.24 The term psychosocial disability is now being widely used to replace terms such as mental disabilities or mental illnesses.25 While the CRPD does not use the term psychosocial disability, the body charged with monitoring the CRPD, the Committee on the Rights of Persons with Disabilities (CRPD Committee), has utilised this term in all of its six General Comments. The CRPD Committee uses the term psychosocial disability in General Comments 2 and 6 in a context that suggested the adoption and definition of the term was well established.26 It is clear from the other general comments that the CRPD Committee is substituting the term ‘psychosocial’ for ‘mental’. In General Comment 3 the CRPD Committee defines impairments under the CRPD to include ‘physical, psychosocial, intellectual or sensory conditions’.27 Later in General Comment 4, the CRPD Committee defines conditions that are not physical or sensory by reference to ‘psychosocial or intellectual impairments’.28 Considering CRPD art 1 explains impairment by reference to ‘physical, mental, intellectual or sensory impairments’ it is clear that the CRPD Committee is using ‘psychosocial’ in substitution for ‘mental’. This approach is reinforced in General Comments 1 and 5 where the CRPD describes disablement by reference to, in General Comment 1, ‘cognitive or psychosocial disabilities’, and in General Comment 5, ‘psychosocial and/or intellectual disabilities’.29 Accordingly, this monograph

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Paul Harpur and Michael Ashley Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ (2018) 7 International Human Rights Law Review 1. Mark Bell, ‘Mental Health at Work and the Duty to Make Reasonable Adjustments’ (2015) 44 Industrial Law Journal 2, 194. Christopher P. Guzelian, Michael Ashley Stein and Hagop S. Akiskal, ‘Credit Scores, Lending, and Psychosocial Disability’ (2015) 95 Boston University Law Review 1807. Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014): Article 9: Accessibility, 11th sess, UN Doc CRPD/C/GC/2 (22 May 2014), 7; Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on Equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (9 March 2018), 72(b) and 72(p). Committee on the Rights of Persons with Disabilities, General Comment No. 3 (2016) on Women and girls with disabilities, UN Doc CRPD/C/GC/3 (25 November 2016), 5. Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) Article 24: Right to inclusive education, UN Doc CRPD/C/GC/4 (2 September 2016), 48. Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Article 12: Equal Recognition Before the Law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014), 9;

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will follow the lead of the CRPD Committee and leading disability rights scholars, and adopt the term psychosocial, to explain the disablement of persons with mental impairments.

ii inequalities, oppression and ableism at work This section will analyse the extent to which persons with disabilities are able to exercise their right to work and then analyse how the disability is not a homogeneous group and that inequalities are experienced differently for different impairment categories. Persons with disabilities have experienced substantial social stigma, economic exclusion and even have been prohibited from being seen in public due to their ‘ugly’ appearance.30 They have been subjected to public policies which focus on ‘curing’ and treatment associated with eugenics,31 brutal oppression,32 policies that regard people with disabilities as requiring charity and pity,33 and with medical interventions that often cause minimal medical improvements but substantial harm to the lives of people with disabilities.34 Institutionalisation continues for millions across the Western world, where persons with disabilities are placed in abusive situations, often chemically or physically restrained, treated worse than convicted rapists or murderers, simply because society has not devoted appropriate resources to enable rights to be exercised. The United Nations Human Rights Council adopted a resolution in 2016 which expressed concerned that persons with mental impairments who seek treatment are subject to, inter alia, widespread discrimination,

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Committee on the Rights of Persons with Disabilities, General Comment No. 5 (2017) on living independently and being included in the community, UN Doc CRPD/C/GC/5 (27 October 2017), 97(g). Susan Schweik, The Ugly Laws: Disability in Public (2009) New York University Press. For an account in the United States see: Willie V Bryan, The Social Perspectives and Political History of Disabilities and Rehabilitation in the United States (2010) Charles C Thomas Publisher, 71–72; Marius Turda, Modernism and Eugenics (2010) Macmillan, 84–85. Ravi Malhotra, ‘The Politics of the Disability Rights Movements’ (2001) 7(3) New Politics 65. Thomas Hammarberg, ‘Disability Rights: From Charity to Equality’ (2011) 6 European Human Rights Law Review 638; Arlene Mayerson and Matthew Diller, ‘The Supreme Court’s Nearsighted View of the ADA’ in Leslie Pickering Francis and Anita Silvers, et al. (eds), Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (2000) Routledge, 124 (courts have reinforced the notion of people with disabilities as objects of pity and charity). Some medical interventions are defined as ‘soul-destroying’: Michael Oliver, ‘What’s So Wonderful about Walking?’ (Inaugural Professorial Lecture, University of Greenwich, London, 1993) 16–17, cited in Fiona Campbell, Frontiers of Ableism (2009) Palgrave Macmillan, chapter 9.

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stigma, prejudice, violence, social exclusion and segregation, unlawful or arbitrary institutionalisation, overmedicalisation and treatment practices that fail to respect their autonomy, will and preferences.35,36 Despite the substantial oppression and poor treatment of ability diversity in society, some people with disabilities navigate and cope with barriers in society to exercise many civil, cultural, economic, political and social rights, including the right to work. It is beyond the scope of one monograph to tackle all of these critical questions, and this book deals with how law and society enables persons with disabilities to exercise one right: the right to work and employment. Work takes a person from charity and welfare to social status and economic independence. As Rhoda Howard and Jack Donnelly observe, without the right to work being realised, no social or economic rights can be realised, as a person without work is unable to participate in the economy.37 More broadly, Philip Alston claims if economic rights are not realised, people will be denied many of the rights in the United Nations human rights system.38

A Are Persons with Disabilities Experiencing Inequalities in Exercising Their Right to Work? This section will analyse the extent to which ability inequalities occur in work relationships. Statistics indicate that millions of persons with disabilities have their rights to work denied and are excluded from full economic citizenship.39 More persons with disabilities are excluded from the labour market in some countries.40 According to the Australian Human Rights Commission, people 35

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The World Health Organization has estimated that over 450 million people worldwide live with psychosocial disabilities and has identified key human rights abuses against this group: World Health Organization, ‘Mental disorders affect one in four people’ (accessed 24 January 2019). www.who.int/whr/2001/media_centre/press_release/en/; The WHO’s estimate is likely to be a severe under-approximation: D Vigo, et al. ‘Estimating the true global burden of mental illness’ (2016) 3 Lancet Psychiatry 171–178. United Nations Human Rights Council: Resolution on Mental health and human rights. Adopted by the Human Rights Council on 1 July 2016 A/HRC/RES/32/18. Rhoda E. Howard and Jack Donnelly, ‘Human Dignity, Human Rights, and Political Regimes’ (1986) 40 American Political Science Review 3, 817. Philip Alston, ‘Making Economic and Social Rights Count: A Strategy for the Future’ (1997) 68 Political Quarterly 2, 188–195. Jody Heymann, Michael Ashley Stein and Gonzalo Moreno (eds), Disability and Equity at Work (2014) Oxford University Press. Lisa Waddington, Mark Priestley and Betul Yalcin, ‘Equality of Opportunity in Employment? Disability Rights’ in Peter Blanck and Eilionóir Flynn (eds), Routledge Handbook of Disability Law and Human Rights (2016) Taylor and Francis, 72.

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over 55 make up 25 per cent of the population but only 16 per cent of the workforce, and persons with disabilities experience significantly higher unemployment and underemployment.41 Research performed by Richard Berthoud found that the probability of any disabled person securing employment is reduced by 40 per cent, with the likelihood for those with mental health disabilities even lower.42 While there is a natural correlation between abilities and the capacity to succeed, laws and practices distort the impact of ability diversity to create inequalities where no such inequalities need exist. Ability diversity will result in diversity of success; not every person can be a professional sports star, surgeon, professor, truck driver or electrician. This monograph will critique laws and practices which interpret ability differences in ways which create and perpetuate inequalities rather than enabling people to succeed in the labour market according to their capacity and potential. The social model focuses on how decision makers in society make decisions that disable certain people. For example, a person in a wheelchair or who can walk can work in an office. This statement does not disturb any natural order. If building laws enable narrow doorways and steps to be built in the office, then key decision makers have distorted who can work in that office by electing to create a building that prevents people with a certain range of abilities from work opportunities. In this scenario the inequalities experienced by the person in a wheelchair are not caused by the natural order of abilities, but instead by how key decision makers approach ability diversity. The physical barriers associated with a wheelchair are often used to illustrate the social model. Removing the barriers for all impairments is far more complex. It can be difficult to identify all physical barriers. Open plan offices, for example, are a barrier to ability diversity. Open plan offices can make it hard for people with low hearing to communicate on phones; be distracting for those with print disabilities that use screen readers to have the screen communicated to them in an audio form; reduce the efficiency of people with autism who struggle with distractions.43 Beyond physical and digital barriers, persons with disabilities confront erroneous negative stereotypes. Elizabeth Emens observes a ‘striking gap 41

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Australian Human Rights Commission, ‘Willing to Work’ Report (2016). www.humanrights .gov.au/our-work/disability-rights/publications/willing-work-national-inquiry-employmentdiscrimination. Richard Berthoud, ‘The Employment Rates of Disabled People’ (Research Report No 298, Department for Work and Pensions, 2006). Janine Booth, Autism Equality in the Workplace: Removing Barriers and Challenging Discrimination (2016) Jessica Kingsley Publishers, 43.

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between the ideas about disability pervasive in mainstream society. . . and the ideas about disability common in the disability community.44 As analysed throughout this monograph, these negative views can manifest around the stigma of the impairment, such as addiction, that impairment is not safe (such as certain psychiatric conditions), that some impairments are not worthy of protection (such as episodic impairments), or that people with disabilities are inefficient. Employers continue to doubt the capacity of workers with disabilities.45 Rebutting presumptions of inability can be exceptionally challenging for persons with disabilities. It is possible to prove capacity through having contact with stakeholders.46 However, there are tens of millions of companies – and even more supervisors and line managers in those entities – who make decisions on hiring, firing, deciding who will be workers and what their physical, sensory, mental and intellectual capacities are and how they will operate in the workplace, and a range of other decisions that impact on disability inclusion. Primary research has identified that managers are reluctant to hire people with disabilities, even where they have equal qualifications to those of applicants without disabilities.47 Overall it can be concluded that businesses often embrace negative attitudinal perceptions of persons with disabilities when making human resource decisions.48 Even where a person with disability secures work, studies show that work processes and prejudices reduce their prospects of receiving equal opportunities as workers without disabilities.49 In addition to being overlooked for 44 45

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Elizabeth F. Emens, ‘Framing Disability’ (2012) University of Illinois Law Review 1383. R. Fevre, et al., ‘The Ill-Treatment of Employees with Disabilities in British Workplaces’ (2013) 27(2) Work, Employment & Society 288. Paul Harpur, ‘Combating Prejudice in the Workplace with Contact Theory: The Lived Experiences of Professionals with Disabilities’ (2014) 34 Disability Studies Quarterly 1. Mason Ameri, Lisa Schur, Meera Adya, Scott Bentley, Patrick McKay and Douglas Kruse, ‘The Disability Employment Puzzle: A Field Experiment on Employer Hiring Behavior’ (Working Paper No. 21560, National Bureau of Economic Research, 2015); S Baert, ‘Wage Subsidies and Hiring Chances for the Disabled: Some Causal Evidence’ (2014) 17 The European Journal of Health Economics 71. A. Duff, J. Ferguson and K. Gilmore, ‘Issues Concerning the Employment and Employability of Disabled People in UK Accounting Firms: An Analysis of the Views of Human Resource Managers as Employment Gatekeepers’ (2007) 39 British Accounting Review 1, 15; C. Woodhams and A. Danieli, ‘Disability and Diversity – A Difference Too Far?’ (2000) 29 Personnel Review 3, 402. Lisa Schur, Douglas Kruse and Peter Blanck, People with Disabilities: Sidelined or Mainstreamed? (2013) Cambridge University Press; Lisa Schur, Douglas Kruse, Joseph Blasi and Peter Blanck, ‘Is Disability Disabling in All Workplaces? Workplace Disparities and Corporate Culture’ (2009) 48 Industrial Relations 381.

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opportunities, workers with disabilities are exposed to greater job insecurity and precariousness at work than workers without disabilities. Sophie Mitra and Douglas Kruse documented the gap in job displacement rates across disability status using the Displaced Worker Supplements of the Current Population Survey.50 They found that men and women with disabilities are, respectively, 75 and 89 per cent more likely to experience an involuntary job loss than men and women without disabilities over the same period. The stigma against psychosocial disabilities has a direct impact upon the capacity of this group to exercise their right to work.51 Research demonstrates that employers report negative attitudes about hiring persons with disabilities generally, and that these attitudes are more negative when it comes to hiring job applicants with psychiatric disabilities.52 Workers with psychosocial disabilities are discriminated at work by a lack of information about impairment and the perceived inability of supervisors to manage the impact of psychosocial disabilities in the workplace.53 Professors Simon Darcy, Tracy Taylor and Jenny Green found that there are statistically significant differences in the proportion of discrimination based on disability type, with persons with mental impairments and HIV being the most discriminated against at work.54 Research performed by MacDonald-Wilson and others involved a multisite qualitative study of 191 workers with psychiatric conditions across the United States. More than 50 per cent of the respondents of this study were unemployed within 12 months of appointment.55 The operation of stigma is most apparent where the group’s ability diversity has a number of beneficial aspects. For example, neurological research has demonstrated that workers

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Sophie Mitra and Douglas Kruse, ‘Are Workers with Disabilities More Likely to Be Displaced?’ (2016) 27 International Journal of Human Resource Management 14, 1550. Jillian Cavanagh, Timothy Bartram, Hannah Meacham, Christine Bigby, Jodi Oakman and Ellie Fossey, ‘Supporting Workers with Disabilities: A Scoping Review of the Role of Human Resource Management in Contemporary Organisations’ (2007) 55 Asia Pacific Journal of Human Resources 1, 6. Judith A Cook, ‘Employment Barriers for Persons with Psychiatric Disabilities: Update of a Report for the President’s Commission’ (2006) 57 Psychiatric Services 1391, 1395. A Martorell, P Gutierrez-Recacha, A Pereda and J L Ayuso-Mateos, ‘Identification of Personal Factors that Determine Work Outcomes for Adults with Intellectual Disability’ (2008) 52(12) Journal of Intellectual Disability Research 1091. Simon Darcy, Tracy Taylor and Jenny Green, ‘‘But I Can Do the Job’: Examining Disability Employment Practice through Human Rights Complaint Cases’ (2016) 31(9) Disability and Society 1242. Kim L MacDonald-Wilson, E. Sally Rogers, Joseph M Massaro, Asya Lyass and Tim Crean, ‘An Investigation of Reasonable Workplace Accommodations for People with Psychiatric Disabilities: Quantitative Findings from a Multi-Site Study’ (2002) 38 Community Mental Health Journal 35.

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with high functioning autism can display above-average intelligence, increased attention focus, and high visual-spatial abilities.56

iii theorising hierarchies of impairment A Understanding Hierarchies of Impairment and Prejudice at Work Ability diversity is a fact: some people are tall, and some are short; some can run and some use wheelchairs; some can write computer algorithms and some struggle to keep a personal budget with a calculator. Ability meritocracies are created which result in persons with certain abilities succeeding in the labour market. The decision to hire a candidate with university qualifications and work experience over one without these qualifications is simply a merit-based decision. . . right? What are the invisible mechanisms of ability privileges that result from actions and decisions that deny people the capacity to exercise their rights to health, education and work, which results in one job candidate having highly-ranked university qualifications and work experience and the other candidate none? There are discourses of natural entitlement where a person succeeds in the labour market due to their abilities. These discourses are then used to legitimate the inequalities experienced by people with different abilities. There are a range of unearned benefits flowing from having abilities within the ‘normal’ range. For example:  When applying for a job, employers are more likely to hire people with exceptional physical, mental and intellectual abilities and less likely to hire a person with a disability or who has an undesirable physical appearance.  When starting a job, a person with different abilities may require accommodations or adjustments to the digital or physical environments due to decisions made when purchasing and designing workplace furniture, hardware and software.  A person with standard abilities can be reasonably assured they do not have to answer personal medical questions about their capacity or deal with harmful stereotypes in order to be considered for a position. 56

W Hill, et al., ‘Age-Dependent Pleiotropy between General Cognitive Function and Major Psychiatric Disorders’ (2016) 84 Biological Psychiatry 4, 266; S Hagenaars et al., ‘Shared Genetic Aetiology between Cognitive Functions and Physical and Mental Health in UK Biobank (N = 112 151) and 24 GWAS Consortia’ (2016) 21 Molecular Psychiatry 11, 1624; B J Crespi, ‘Autism as a Disorder of High Intelligence’ (2016) 10 Frontiers in Neuroscience, 300.

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It is important to undo privilege;57 particularly the privilege attributed to ability.

B How Sites of Oppression Are Constructed between Impairment Categories Understanding hierarchies of impairments requires an analysis of the different processes through which sites of oppression are constructed. The binary between the able and disabled are not the only means through which impairment is turned into disability. It is well established that hostility and conflict exists at times between different impairment identities.58 Even though members of the same overarching identity, being disability, should combat ableism of other impairment categories as a means to combat ableism against their own impairment category, otherising, competition over resources and prejudice can lead to ableism within the disability community itself.59 Of course, not all members of any identity, whether it be able or disabled, empower or oppress others. In addition to all this, there are issues of individuals experiencing multiple impairment categories and intersecting human rights attributes.60 Scholars have theorised how different abilities should be understood. Carol Thomas employs the label ‘disablism’ to describe the social manifestations that turn different abilities into disabilities.61 A more widely used ‘ism’ has emerged called ‘ableism’.62 Fiona Campbell adopts the term ‘ableism’ to describe the 57

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Bob Pease, Undoing Privilege: Unearned Advantage in a Divided World (2010) Zed Books; Michael L Perlin, ‘On “Sanism”’ (1992) 46 Southern Methodist University Law Review 373. Thomas Shakespeare, Kath Gillespie-Sells and Dominic Davies, The Sexual Politics of Disability: Untold Stories (1996) Casell, 71. Mark Deal, ‘Disabled People’s Attitudes toward Other Impairment Groups: A Hierarchy of Impairments’ (2003) 18 Disability & Society 7, 897. Such as child and disability: Paul Harpur and Michael Ashley Stein, ‘Children with Disabilities, Human Rights, and Sustainable Development’ in Claire Fenton-Glynn (ed), Children’s Rights and Sustainable Development: Implementing the UNCRC for Future Generations (2019) Cambridge University Press; old age and disability: Paul Harpur, ‘Old Age is Not Just Impairment: The Convention on the Rights of Persons with Disabilities and the Need for a Convention on Older Persons’ (2016) 37(3) University of Pennsylvania Journal of International Law 1027; survivor of domestic violence and disability: Heather Douglas and Paul Harpur, ‘Intellectual Disabilities, Domestic Violence and Legal Engagement’ (2015) 31(3) Disability and Society 305; or indigeneity and disability: Paul Harpur and Michael Ashley Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ (2018) 7 International Human Rights Law Review 1. Carol Thomas, Female Forms: Experiencing and Understanding Disability (1999) Open University Press. Paul Harpur, ‘Sexism and Racism, Why Not Ableism? Calling for a Cultural Shift in the Approach to Disability Discrimination’ (2009) 34(3) Alternative Law Journal 163.

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Introduction

‘network of beliefs, processes and practices that produces a particular kind of self and body (the corporeal standard) that is projected as the perfect, speciestypical and therefore essential and fully human. Disability then is cast as a diminished state of being human.’63 Paul Harpur explains that ableism could be defined as ‘discriminatory or abusive conduct towards people based upon their physical or cognitive abilities’.64 Ultimately, ableism is the network of beliefs, processes and practices that assign values to certain ranges of abilities. One range of abilities is constructed as perfect and ideal, another as disabled but worthy of protection and support, and another range of abilities as defective and less worthy of help and perhaps even subject to blame and sanction. This book adopts the position. All else equal, where attitudes about disability cause one impairment group to suffer disadvantage relative to others, then in that situation an impairment hierarchy is created.

C Prejudice against Psychosocial Disabilities An impairment category can become especially vulnerable where significant percentages of persons with and without disabilities are hostile or disinterested towards how that group is disabled.65 Law and policymakers are arguably influenced by where impairments are ranked on hierarchies of impairments when determining how to provide protection and support. There is arguably deeply embedded prejudice against people with mental disabilities, particularly as compared to other disability categories.66 The generally negative construction of mental impairment has been discussed by others in terms of social stigma as well as the significant consequences it poses for ability equality in society.67 The distinction between physical and sensory impairments on one hand, and mental on the other, is reflected in how laws have responded to the existence of different forms of impairments.68 63 64

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66 67

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Fiona Campbell, Frontiers of Ableism (2009) Palgrave Macmillan, 19. Paul Harpur, ‘From Disability to Ability: Changing the Phrasing of the Debate’ (2012) 27(3) Disability and Society 325. Faraaz Mahomed and Michael Ashley Stein, ‘De-Stigmatising Psychosocial Disability in South Africa’ (2017) 5 African Disability Rights Yearbook 64. Michael L Perlin, ‘On “Sanism”’ (1992) 46 Southern Methodist University Law Review 373. Larry Logue and Peter Blanck, Race, Ethnicity, and Disability: Veterans and Benefits in PostCivil War America (2010) Cambridge University Press; United Nations flagship report on disability and development (3 December 2018). www.un.org/development/desa/disabilities/wpcontent/uploads/sites/15/2018/12/UN-Flagship-Report-Disability.pdf, 250. Peter Blanck and Michael Millender, ‘Before Civil Rights: Civil War Pensions and the Politics of Disability in America’ (2000) 52 Alabama Law Review 1.

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III Theorising Hierarchies of Impairment

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Professor Michael Perlin has adopted the term ‘sanism’ to explain prejudice against people with mental disabilities.69 He argues that sanism is an irrational prejudice of the same quality and character of ableism.70 The combination of sanism, with the ‘common-sense’ view that manifestations of this impairment is a choice, means that it is widely seen as acceptable to treat people who have a mental impairment less favourably than people whose mental abilities fall within a ‘normal’ range.71 For example, while it might be acceptable to limit a person in a wheelchair’s capacity to access a building by having only one entrance with a ramp, it would not be legally or socially acceptable to drag that wheelchair user out of the building and detain them. A person with a mental disability may be excluded and detained by police when their impairment causes them to act in a way that is deemed unacceptable by society. There has been a range of responses to attempts to reverse the prejudice against mental diversity.72 Neurodiversity was first used to advocate for the rights of people experiencing disorders on the autism spectrum.73 The concept has been expanded and embraced by groups representing other neurologically based impairments.74 Neurodiversity now refers to diversity related to ‘variations in brain structure, behaviour, and social functioning’.75 Neurodiversity ‘suggests that these disabilities are a natural variation in brain

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Perlin, ‘On “Sanism”’ 373; Michael L Perlin, ‘The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?’ (1994) 8 Journal of Law and Health, 15; Michael L Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (2013) Ashgate. Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law, 2. Michael Perlin and Alison Lynch, Sexuality, Disability, and the Law: Beyond the Last Frontier? (2016) Springer, 14–19. The use of language is another important measure used to combat prejudice against people experience mental diversity: D. Granello and T. Gibbs, ‘The Power of Language and Labels: “The Mentally Ill” versus “People with Mental Illnesses”’ (2016) 94 Journal of Counseling & Development 1, 31. Michael Orsini, ‘Autism, Neurodiversity and the Welfare State: The Challenges of Accommodating Neurological Difference’ (2012) 45(4) Canadian Journal of Political Science/ Revue Canadienne de Science Politique 805. Kenneth E. Sumner and Theresa J. Brown, ‘Neurodiversity and Human Resource Management: Employer Challenges for Applicants and Employees with Learning Disabilities’ (2015) 18(2) The Psychologist-Manager Journal 77. Thomas Armstrong, The Power of Neurodiversity (2011) De Capo Lifelong Books, 8; Dana Lee Baker, The Politics of Neurodiversity: Why Public Policy Matters (2011) Lynne Rienner Publishers, 17; Susan D Carle, ‘Analyzing Social Impairments under Title I of the Americans with Disabilities Act’ (2017) 50 U.C. Davis Law Review 1109.

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Introduction

differences and that the workplace should adapt to them’.76 According to such scholars, natural, and often immutable, neurological differences should not be constructed as innately negative and undesirable by society or workplaces.

conclusion The way in which laws respond to impairment hierarchies at work will form the primary focus of this work. Overall, this book can be divided into three parts. Chapters 2–4 analyse how international law posits and develops norms to promote the human rights paradigm and oppose the presence of hierarchies of impairments at work. Chapter 2 analyses how the CRPD has shifted international disability work norms by supplanting existing human rights regimes and the International Labour Organization as the leading authority on how disability is regulated at work. Chapter 3 then analyses how the committee that monitors the CRPD, the Committee on the Rights of Persons with Disabilities (CRPD Committee), opposes the hierarchy of impairments at work. Chapter 4 then analyses how the international law regime manages the complicated question of sheltered work arrangements. While these arrangements reduce the working rights of certain persons with disabilities, these models are aimed at providing people work who are highly improbable to find work in the open labour market. As workers with psychosocial disabilities make up the workforce in such arrangements, these issues will disproportionately impact upon this group. Chapters 5–7 will then apply these international law norms to domestic anti-discrimination regimes. Chapters 5 and 6 will analyse how workers with psychosocial disabilities have their capacity to access anti-discrimination law support substantially limited. Chapter 5 will analyse how mental impairments are often episodic and how anti-discrimination laws often do not regard such impairments as disabilities. Chapter 6 will then analyse how antidiscrimination laws expressly exclude people with certain psychosocial disabilities from such laws and how governments seek to stigmatise aspects of the underlying impairments. After analysing how workers with psychosocial disabilities are often excluded from anti-discrimination law protections, Chapter 7 will analyse how hierarchies of impairments diminishes the transformational impact of reasonable accommodation laws.

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Kenneth Sumner and Theresa Brown, ‘Neurodiversity and Human Resource Management: Employer Challenges for Applicants and Employees with Learning Disabilities’ (2015) 18(2) The Psychologist-Manager Journal 77.

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Conclusion

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Chapters 8–10 will then focus on the presence of hierarchies of impairments in national laws which focus on regulating work and employment relationships. Chapter 8 will analyse how occupational safety and health laws and bullying interact with anti-discrimination laws to produce discriminatory outcomes. This chapter identifies that employers have a duty to protect their workers’ mental and psychological health, and that this duty could be used to further combat the unfavourable treatment experienced by workers with psychosocial disabilities. When workers are injured at work, Chapter 9 analyses how workers with mental injuries are discriminated against when compared to workers with physical or sensory injuries. Workers’ compensation laws employ a range of arbitrary means to reduce the capacity of workers with mental injuries from bringing claims. Where workers are able to bring a claim for compensation, workers’ compensation laws expressly require that workers with mental injuries are provided less compensation than workers with other injuries. Discrimination is also present when workers seek compensation through the law of tort. Tort law has a long and sustained history of regarding mental injuries as less worthy of support when compared to other injuries. Finally, Chapter 10 moves away from identifying regulatory gaps and proposing reforms, and instead seeks to analyse how existing termination protection laws could provide some form of remedy for workers with psychosocial disabilities. While this is an imperfect option, for many workers it can afford a remedy where the cost of using anti-discrimination laws would be too high, both in terms of emotionally coming out as having a disability, and professionally, as stigma damages future work prospects. The problem of ableism against workers with psychosocial disabilities is not confined to a single jurisdiction and permeate across all jurisdictions analysed in this monograph. The stigma, exclusion and devaluing of worth is not caused by rogue workers or invisible social forces, but by lawmakers who turn bills into statutes and by courts who silently apply ableist norms and discriminate against workers because of their impairment type. This monograph highlights an unacceptable truth: to live with ability diversity is to live with adversity.

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2 International Disability Norms at Work International Law on Ableism at Work and the Hierarchy of Impairments

introduction The international disability norms that combat ableism and hierarchies of impairments at work have substantially altered since the adoption of the Convention on the Rights of Persons with Disabilities (CRPD).1 Chapters 2–5 inclusive will analyse how these sweeping changes to international disability norms impact upon hierarchies of impairments and ableism at work. Until the adoption of the CRPD, international and domestic law and practice focused on regulating and controlling persons with disabilities rather than focusing upon empowerment and the realisation of rights.2 Prior to the CRPD, the United Nations core human rights treaties elided disability from their purview.3 Specifically, the International Covenant on Civil and Political Rights (ICCPR),4 the International Covenant on Economic, Social and Cultural Rights (ICESCR),5 the Convention on the 1

2

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4

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Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008), art 1. Thomas Hammarberg, ‘Disability Rights: From Charity to Equality’ (2011) 6 European Human Rights Law Review 638; Ravi Malhotra, ‘The Politics of the Disability Rights Movements’ (2001) 7 New Politics 3, 65; Arlene Mayerson and Matthew Diller, ‘The Supreme Court’s Nearsighted View of the ADA’ in Leslie Pickering Francis and Anita Silvers (eds), Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (2000) Routledge, 124; Karrie A Shogren, Michael L Wehmeyer, Jonathan Martinis and Peter Blanck, Supported Decision-Making: Theory, Research, and Practice to Enhance Self-Determination and Quality of Life (2018) Cambridge University Press, 30. Paul Harpur and Michael Ashley Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ (2018) 7 International Human Rights Law Review 1. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

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Elimination of all Forms of Discrimination Against Women (CEDAW),6 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),7 and the International Convention on the Elimination of all forms of Racial Discrimination (CERD)8 are all silent on the rights of persons with disabilities. The Convention on the Rights of the Child (CRC)9 was the only core UN human rights treaty to have recognised the special vulnerability of persons with disabilities. Thus, prior to the CRPD, core human rights treaties did little to combat the myriad human rights violations experienced by persons with disabilities.10 The rights of persons with disabilities first gained international law attention through a series of General Assembly resolutions, declarations and protocols which explicitly referenced disability. These include designations of the International Year of the Disabled in 1981,11 and the International Decade of Disabled Persons from 1982 to 1991,12 along with resolutions such as the Declaration on the Rights of Mentally Retarded Persons13 and the Declaration on the Rights of Disabled Persons.14 Additionally, the General Assembly adopted a World Programme of Action Concerning Disabled Persons to encourage the development of national

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Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). International Convention on the Elimination of All Forms of Racial Discrimination, adopted 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969). Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 2(1) includes disability in a general provision on intersectionality. This article provides that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’. Gerard Quinn, Theresia Degener, Anna Bruce, Christine Burke, Joshua Castellino, Padraic Kenna, Ursula Kilkelly and Shivaun Quinlivan, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (2002) United Nations Press; Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75. International Year of Disabled Persons, GA Res 36/77, at 176, UN GAOR, 36th sess, Supp No 77, UN Doc A/RES/36/77 (8 December 1981). Implementation of the World Programme of Action Concerning Disabled Persons, GA Res 37/ 53, at 186–187, para 11, UN GAOR, 37th sess, Supp No 53, UN Doc A/RES/37/53 (3 December 1982). Declaration on the Rights of Mentally Retarded Persons, GA Res 2856 (XXVI), UN GAOR, Supp No 29, UN Doc A/8429 (20 December 1971) 93. Declaration on the Rights of Disabled Persons, GA Res 3447 (XXX), UN GAOR, Supp No 34, UN Doc A/10034 (9 December 1975) 88.

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programmes directed at achieving equality for people with disabilities.15 Most significant among these soft laws are the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which were monitored by a Special Rapporteur.16 The drawback to these soft laws is that they lack legally binding power.17 Combined with developments in national disability anti-discrimination laws, these international law legal developments represented a recognition that law and society needed to move from a charity approach to a rights-based model grounded in notions of equality.18 This is what the international community has done through the adoption and implementation of the CRPD. This chapter will analyse how international legal norms have approached the regulation of ability equality in one area of life: exercising the right to work. The regulation of labour rights has traditionally been the province of the International Labour Organization (ILO). The ILO has been the primary source of international labour law since its formation 100 years ago in the Treaty of Versailles.19 Section I of this chapter will analyse how the ILO has approached ability diversity at work, and then Section II will show how the CRPD has transformed how international law regulates the right of persons with disabilities to work. The new disability human rights paradigm provides guidance on the right to work and employment, and how states should combat the hierarchy of impairments at work.

i how has international labour law historically problematised the disabled worker? The ILO is the paramount international institution charged with ensuring that states maintain a regulatory framework which facilitates the protection of 15

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World Programme of Action Concerning Disabled Persons, GA Res 37/52, UN GAOR, 37th sess, Supp No 51, UN Doc A/RES/37/52 (3 December 1982) 185. Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res 48/ 96, UN GAOR, 48th sess, Supp No 49, UN Doc A/RES/48/96 (20 December 1993) 202. Stein, ‘Disability Human Rights’, 75. Arlene S Kanter, The Development of Disability Rights under International Law: From Charity to Human Rights (2015) Routledge, 39. Treaty of Peace between the Allied and Associated Powers and Germany, opened for signatures 28 June 1919, S 1, Part XIII includes the Constitution of the International Labour Organization. The centennial of the ILO in 2019 is attracting considerable interest. Some notable publications on the role of the ILO includes: Eileen Boris, Dorothea Hoehtker and Susan Zimmermann (eds), Women’s ILO: Transnational Networks, Global Labour Standards and Gender Equity, 1919 to Present (2018) Brill (this book gathers new research on a century of ILO engagement with women’s work); Gerry Rodgers, Lee Swepston, Eddy Lee and Jasmien van Daele, The International Labour Organization and the Quest for Social Justice, 1919-2009 (2019) International Labour Organization.

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I How International Labour Law Problematised Disabled Worker?

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labour rights.20 International labour standards are a powerful tool for critiquing national laws.21 Understanding how ILO standards problematise workplace ability inequalities arguably impacts how workers with disabilities are perceived by employers.22 ILO labour standards aim to protect workers’ rights, but are persons with disabilities regarded by ILO conventions as valuable workers or as discounted workers?

A How the Collective Focus of the ILO Reduces Protection for Workers with Disabilities How laws should balance the collective good verses individual rights goes to the heart of the struggle for ability equality at work. The ILO adopts a tripartite approach which balances the interests of capital, labour and the state. While UN human rights conventions focus on individual rights, the ILO focuses on protecting collective rights. Within this paradigm, the interests of workers are primarily advanced by organised labour.23 Unfortunately, organised labour has largely neglected the interests of persons with disabilities.24 Jill Humphrey describes organised labour’s approach to persons with disabilities as ‘a political and cultural forgetfulness’.25 With so many issues and battles on the agenda, it is arguable that ability equality has largely been left off the agenda of organised labour. To help understand how organised labour has approached ability differences at work, Dr Carrie Basas critically analysed a random sample of

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Paul Harpur, ‘Better Work: Problems with Exporting the Better Factories Cambodia Project to Jordan, Lesotho, and Vietnam’ (2011) 36(4) Employee Relations Law Journal 79. Lance Compa, ‘Migrant Workers in the United States: Connecting Domestic Law with International Labor Standards’ (2017) 92 Chicago-Kent Law Review 101. Paul Harpur, Ivanka Mamic and Nick Beresnev, ‘Multi-National Enterprises and Corporate Social Responsibility in Fiji and Pacific Island Countries: Disability and Gender Equality’ (Final Report, International Labour Office, Bangkok and Suva, September 2015). Bernard Béguin, ILO and the Tripartite System: International Conciliation (1959) Literary Licensing; William R. Simpson, ‘The ILO and Tripartism: Some Reflections’ (1994) 117 Monthly Labor Review 40; Lars Thomann, ‘The ILO, Tripartism, and NGOs: Do Too Many Cooks Really Spoil the Broth?’ in Jens Steffek, Claudia Kissling and Patrizia Nanz (eds), Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (2008) Palgrave Macmillan, 71. Nick Bacon and Kim Hoque, ‘The Influence of Trade Union Disability Champions on Employer Disability Policy and Practice’ (2015) 25(2) Human Resource Management Journal 233. Jill C Humphrey, ‘Self-Organise and Survive: Disabled People in the British Trade Union Movement’ (1998) 13 Disability and Society 587, 588.

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100 United States public sector collective bargaining agreements.26 Basas’s study identified four overarching approaches to ability difference in the workplace: 1. The industrialist approach, which problematised impairment, ignored disabling barriers in the workplace and reflected a medical model construction of disability. 2. The community approach, which focused on the collective good of the community. While this approach may appear to help persons with disabilities, in fact the majority good may be harmful for the good of minority groups. The focus of the community approach is to subjugate the interests of the minority for the benefit of the majority. As the community good is the focus, this reduces the capacity of individual workers to assert their individual needs. 3. The compliance approach, which provided that all parties would comply with their legal duties without taking additional steps to achieve the purposes of equality interventions. 4. The idealistic approach, which focused on social causes and involved advocacy for the rights of groups including persons with disabilities. Out of the four approaches identified by Basas, only collective bargaining agreements which reflected the ‘idealistic approach’ notably advanced the rights of persons with disabilities. Work reassignments for disabled or injured workers are a good example of how ability equality and the interests of organised labour can conflict.27 Antidiscrimination laws across the globe prevent employers from discriminating against employees with disabilities, and require employers to make reasonable adjustments to enable these employees to work.28 There are circumstances where the best work adjustment is to reassign the disabled employee. Work reassignments are often coveted, and accordingly regulated by collective bargaining agreements. This places employers in a position where they need to either follow anti-discrimination laws or the collective agreement. The

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Carrie Griffin Basas, ‘A Collective Good: Disability Diversity as a Value in Public Sector Collective Bargaining Agreements’ (2013) 87 St. John’s Law Review 793. Richard Bales, ‘Title I of the Americans with Disabilities Act: Conflicts between Reasonable Accommodation and Collective Bargaining’ (1992–1993) 2 Cornell Journal of Law and Public Policy 161. Delia Ferri and Anna Lawson, ‘Reasonable Accommodation for Disabled People in Employment Contexts: A Legal Analysis of EU Member States, Iceland, Liechtenstein and Norway’ (Report, European Commission, 2016); Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (2008) Bloomsbury Publishing.

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United States Supreme Court has considered how employers should act in such situations, and has authorised them to exclude workers with disabilities and to follow collective agreements.29 Of course, organised labour could avoid this problem by only signing collective agreements that permit disability related reassignments. Organised labour has arguably not agreed to grant capital greater managerial discretion around assignments from a fear that such discretion would be abused. Rather than limiting assignments to the genuinely injured or disabled, reassignments might be provided to promote capital’s struggle against labour.30 It is not that organised labour is not interested in equality; it is more that organised labour has very limited resources and operates within an increasingly difficult industrial relations landscape.31 Organised labour has promoted ability equality where this can be done without impacting on the wider struggle for fair work conditions. Organised labour remains involved in fighting for workers that are injured at work, and this has the potential to expand into wider ability equality issues.32 Organised labour has recognised that workers with disabilities are an untapped membership base, and has undertaken efforts to bring disability issues into their agendas.33 Some of these efforts involve attempts to alter how employers perceive workers with disabilities;34 other efforts are more direct. For example, organised labour has provided industrial relations advocacy for workers with disabilities and has developed trade union disability champions.35 While these small steps to promote ability equality are positive, ultimately organised labour focuses on the collective struggle against capital, and individual rights associated with workers with 29

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US Airways, Inc. v. Barnett, 535 US 391 (2002). A similar approach to collective agreements has been adopted in the High Court of Australia with respect to gender and collective agreements: see Paul Harpur, ‘Ensuring Equality in Education: How Australian Laws Are Leaving Students with Print Disabilities Behind’ (2010) 15(1) Media and Arts Law Review 70. This would result in a similar application to disabilities as Barnett. Matthew A Shapiro, ‘Labor Goals and Antidiscrimination Norms: Employer Discretion, Reasonable Accommodation, and the Costs of Individualized Treatment’ (2013) 32 Yale Law & Policy Review 1, 4. John Howe, ‘Labour Regulation Now and in the Future: Current Trends and Emerging Themes’ (2017) 59 Journal of Industrial Relations 2, 209. Don Shrey, Norman Hursh, Paul Gallina, Sara Slinn and Anthony White, ‘Disability Management Best Practices and Joint Labour-Management Collaboration’ (2006) 1 International Journal of Disability Management Research 52. Nick Bacon and Kim Hoque, ‘The Influence of Trade Union Disability Champions on Employer Disability Policy and Practice’ (2015) 25 Human Resource Management Journal 2, 233. Deborah Foster and Patricia Fosh, ‘“Negotiating “Difference”: Representing Disabled Employees in the British Workplace’ (2010) 48 British Journal of Industrial Relations 560. Bacon and Hoque, ‘The Influence of Trade Union Disability Champions’, 233.

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disabilities remain a peripheral issue. As a result, the disability rights advocacy of collective labour is guided by its primary objective of struggling against capital to realise workers’ rights.

B The ILO and the Problematising Disability through the Medical Model Where collective labour and the ILO does regulate disabilities at work, it is important to understand how ability diversity is constructed. There have been substantial shifts in how leading public policy models approach disability. As will be seen below, many of the ILO conventions, which regulate ability diversity at work, were adopted from 1921 to 1983. During the 1920s and 1930s, eugenics were popular and persons with disabilities were regularly sterilised and even euthanised.36 While the Nazi T4 programme witnessed the worst excesses of the eugenic movement,37 less aggressive forms of eugenics gained popular support in Australia, Canada, the United States and the United Kingdom.38 In light of the popularity of the eugenic movement, the ILO’s approach towards persons with disabilities, analysed below, should be regarded as ahead of its time. The eugenic movement decreased in popularity after World War II and the medical model became more popular throughout the years during which the ILO negotiated, drafted and adopted the conventions discussed below. As the name suggests, the model focuses on the medical aspects of disability.39 Under this approach, medical professionals create criteria to guide treatment, and part of this process involves labelling people as either able-bodied or 36 37

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Marius Turda, Modernism and Eugenics (2010) Macmillan, 84–85. The holocaust against persons with disabilities commenced with the Nazi laws of 1933, which mandated the sterilisation of people with mental and physical disorders. This project was expanded into ‘Aktion T4’. Under the Aktion T4 project carbon monoxide gas was first used to murder people who had disabilities. This was regarded as so successful that six ‘euthanasia’ killing centres were established in Germany and Austria. Aktion T4 was further expanded to involve medical professionals, who selected people for extermination, and soldiers, who killed patients in hospitals. Overall, 750,000 people with disabilities were murdered because of their impairment: Kerstin Braun, ‘“Nothing About Us Without Us”: The Legal Disenfranchisement of Voters with Disabilities in Germany and Its Compliance with International Human Rights Standards on Disabilities’ (2015) 30 American University International Law Review 315, 315; Nicole Rafter, The Crime of All Crimes: Toward a Criminology of Genocide (2016) New York University Press, 137–151. For an account in the United States, see Willie V Bryan, The Social Perspectives and Political History of Disabilities and Rehabilitation in the United States (2010) Charles C Thomas Publishing, 71–77. Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law (2nd ed, 2014) Federation Press, [6.3.2.1].

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disabled.40 While this categorisation process is essential for identifying where treatment might be provided, this approach results in negative outcomes if it is applied to broader public policies. When applied to public policy, the medicalisation of different abilities as imperfect or lesser marks people with disabilities out for special supervision, interference and oppression. The paternalistic approach of the medical model results in persons with disabilities being outside the social contract, which regulates how the state interacts with the wider population.41 The construction of different abilities as a problem requiring cure or treatment is associated with brutal oppression,42 policies that regard people with disabilities as requiring charity and pity,43 and with medical interventions that often cause minimal medical improvements but substantial harm to the lives of people with disabilities.44 Under the medical model, the policy focus is upon the personal issue of impairment, rather than attempting to critique the social processes and policies that cause disablement.45 The limitations of the medical model are highlighted in situations where there is limited or no current means of ‘curing’ the impairment. Under this model, supporters argue that until medicine can ‘cure’ them, persons with disabilities are regarded as imperfect specimens who are unable to reach ‘their human potential given their insufferable condition[s]’.46 Under the medical model, persons with disabilities are not discussed in terms of equality or economic independence, but rather they are often regarded as people who must be cured or institutionalised. This model often results in the denial of autonomy, robbing people of their privacy, sexuality

40 41

42 43

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Dan Goodley, Dis/Ability Studies: Theorising Disablism and Ableism (2014) Routledge, 4. Martha Albertson Fineman, ‘“Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility’ (2012) 20(1) The Elder Law Journal 101; Martha Albertson Fineman and Anna Grear, ‘Equality, Autonomy, and the Vulnerable: Subject in Law and Politics’ in Martha Albertson Fineman and Anna Grear (eds), Vulnerability: Gender in Law, Culture, and Society (2013) Ashgate, 13. Malhotra, ‘The Politics of the Disability Rights Movements’, 65. Hammarberg, ‘Disability Rights’, 638; Mayerson and Diller, ‘The Supreme Court’s Nearsighted View of the ADA’, 124 (courts have reinforced the notion of people with disabilities as objects of pity and charity). Some medical interventions are defined as ‘soul-destroying’: Michael Oliver, ‘What’s So Wonderful about Walking?’ (Inaugural Professorial Lecture, University of Greenwich, London, 1993) 16–17, cited in Fiona Campbell, Frontiers of Ableism (2009) Palgrave Macmillan, chapter 9. Simi Linton, Claiming Disability: Knowledge and Identity (1998) New York University Press, 11. Kaley Maureen Roosen, ‘From Tragedy to “Crip” to Human: The Need for Multiple Understandings of Disability in Psychotherapy’ (2009) 1 Critical Disability Discourse 1, 2–3.

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and humanity.47 Under the medical model the cause of this oppression is the ‘problem’ of impairment, with the impairment being held to define people as ‘abnormal, deserving of pity and care’.48 Essentially, interventions which follow the medical model deny persons with disabilities the right to work on an equal basis as others. The right to work is for people with ‘normal’ abilities, and those who have impairments are either cured, so they can return to work, or excluded and cared for until a cure can be found.

C Workers with Disabilities and ILO Conventions and Jurisprudence: Discounting Ability Diversity at Work The leading ILO convention on workers with disabilities, the Vocational Rehabilitation and Employment (Disabled Persons) Convention, arguably constructs workers with immutable disabilities as discounted, or perhaps even excluded, workers.49 Article 1 of the Convention accepts that persons with disabilities are largely excluded from work, although it defines a ‘disabled person’ to mean ‘an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognised physical or mental impairment’. The way in which this Convention problematises the underemployment of persons with disabilities is contrary to modern understandings of disablement, in that it ignores the wider causes of disablement and focuses the attention on helping the person with a disability to learn to cope with barriers in society. Article 1(2) does not seek to achieve equality of work, but expects that persons with disabilities will only secure ‘suitable employment’ and that the state should help persons with disabilities to integrate or reintegrate into society. Beyond the Vocational Rehabilitation and Employment (Disabled Persons) Convention, ILO conventions perpetuate the exclusion of persons with disabilities from work. The ILO’s primary focus around ability differences at work is upon enabling workers with abilities in the normal abilities range to operate. The ILO has historically not provided persons with disabilities the same protection as people with other attributes. For example, ILO Convention No. 111 concerning Discrimination in Respect of Employment and

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Tobin Siebers, Disability Theory (2008) University of Michigan, 162–166. Rees, Rice and Allen, Australian Anti-discrimination Law. International Labour Organization, Vocational Rehabilitation and Employment (Disabled Persons) Convention (No. 159), adopted 20 June 1983, 1401 UNTS 235 (entered into force 20 June 1985).

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Occupation regarded disability discrimination as a second-tier attribute.50 Article 5(1) prohibits discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin. Article 5(2) provides that special measures to assist, inter alia, persons with disabilities are permitted under Convention No. 111. The line between the able and disabled body is permeable: accident, illness and poor health caused by ageing result in movement between these categories.51 The ILO conventions and jurisprudence seek to enable people who are able to work to continue to work, and to compensate those who lose abilities and are thus excluded from work.52 For example, the ILO Convention (No. 155) concerning Occupational Safety and Health and the Working Environment seeks, inter alia, to protect workers’ safety and health to enable them to maintain their current state of abilities. Where workers are injured at work, the conventions promote the rehabilitation and return to work of workers, or where this is not possible, the compensation of workers as they leave the labour market.53

D The Social Model and Developments in Ability Equality at Work The ILO conventions analysed above follow public policy models, which are challenged in practice and largely rejected by the CRPD. After the ILO conventions above were adopted, new models of disablement emerged, which adopt fundamentally different approaches to disablement. During the 1980s, a new disability model emerged that focused on promoting equality and the concept of different abilities, rather than focusing on medicalised 50

51

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International Labour Organization, Convention concerning Discrimination in Respect of Employment and Occupation, adopted 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960). Arlene Kanter, ‘The United Nations Convention on the Rights of Persons with Disabilities and Its Implications for the Rights of Elderly People Under International Law’ (2009) 25(3) Georgia State University Law Review, 527; Paul Harpur, ‘Old Age is Not Just Impairment: The CRPD and the Need for a Convention on Older Persons’ (2016) 37(3) University of Pennsylvania Journal of International Law, 1027. See, for examples of this approach, the ILO Workmen’s Compensation (Agriculture) Convention (No. 12), adopted 21 November 1921, 38 UNTS 165 (entered into force 26 February 1923); Equality of Treatment (Accident Compensation) Convention (No. 19), adopted 5 June 1925, 38 UNTS 257 (entered into force 8 September 1926); Medical Care and Sickness Benefits Convention (No. 130), adopted 25 June 1969, 826 UNTS 3 (entered into force 27 May 1972). Ibid., and see for discussion: Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities under Conflicting International Law Regimes’ (2017) 41 Loyola Law School Los Angeles International & Comparative Law Review 1, 51.

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understandings of impairment.54 This model is known as the social model. Professor Michael Oliver, one of the leading social model scholars, argues that once impairments are constructed as the cause of disablement, then this arguably reduces the social consciousness about the role society plays in disabling people who fall outside the ‘normal’ range of abilities.55 Social model scholars rejected the notion that disability was caused by impairment and focused on the external sources of disablement.56 Instead of focusing on ability issues, social model scholars deconstructed disability discrimination to identify the actual causes of disablement.57 The socalled strong social model scholars use Marxist critiques to identify how capitalist structures result in people with different abilities being excluded from the means of production, and thus are turned into second-class ability citizens.58 The so-called ‘non-radical social model‘ scholarship also turns the focus away from impairment; however, these scholars employ a non-Marxist critique.59 To reject the problematising of functional limitations, non-radical social model scholars instead focus on disabling barriers, whether attitudinal, physical or political.60 The social model was first developed during the 1980s and started to influence lawmakers primarily in the late 1980s and early 1990s, with the first significant success occurring with the passage of the Americans with Disabilities Act of 1990 (ADA). Many authors have claimed that the ADA reflects a social model approach to combatting the disablement of people with impairments.61 Katharina Heyer, for example, talks of the ADA’s ‘association with a social model of disability’,62 and Professor Carol Rasnic talks of the ADA being

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Samuel Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009) Yale University Press, 7–13 (describing ‘the endorsement of a social rather than a medical model of disability’ as ‘the one position that approaches consensus within the movement’). Michael Oliver, Understanding Disability: From Theory to Practice (1996) Palgrave Macmillan, 37. Michael Oliver, The Politics of Disablement (1990) Macmillan, 11. Paul Harpur, ‘From Universal Exclusion to Universal Equality: Regulating Ableism in a Digital Age’ (2013) 40 Northern Kentucky Law Review 529, 535. Vic Finkelstein, Attitudes and Disabled People: Issues for Discussion (1980) World Rehabilitation Fund; Oliver, The Politics of Disablement, 11. Paul Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27 Disability and Society 1, 1. Sandra Fredman, Discrimination Law (2nd ed, 2011) Oxford University Press, 171–173. Jared D Cantor, ‘Note and Comment: Defining Disabled: Exporting the ADA to Europe and The Social Model of Disability’ (2009) 24 Connecticut Journal of International Law 399. Katharina C Heyer, ‘The ADA on the Road: Disability Rights in Germany’ (2002) 27 Law & Social Inquiry 723, 735–738.

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grounded on the social model.63 Other scholars have recognised that, even though the ADA was strongly influenced by the social model, it had substantial flaws. Matthew Diller explained that even though the social model tenets strongly influenced the drafting of the ADA, there remained considerable concern that a hostile judiciary would read down the scope of the statute.64 Regardless of its flaws, when the ADA’s regulatory model was exported around the world, the notion that this regulatory approach reflected the social model was widely adopted.65 While it is true to say the social model influenced the drafters of the ADA, I have argued that it is not accurate to say that the ADA embraces the social model.66 I argue that the ADA and anti-discrimination laws, which follow this approach, embrace a weak social model.67 Anti-discrimination laws do not target many of the causes of disablement in society. At best, anti-discrimination laws adopt a weak social model approach, which places duties on parties in a limited selection of situations, while leaving a range of other parties who create barriers to equality free from regulatory attention. This approach is weak, as it substantially limits the number of barriers in society that are targeted and, once targeting those barriers, substantially limits what needs to be done to promote equality. The strong social model calls for major reforms to society. The nonradical social model seeks more incremental reforms that are still substantial. The weak social model essentially leaves most disabling barriers in society without regulatory attention. While the social model has been remarkably successful in shifting legal approaches to disability, the power of the medical lobby remains. The medical model is taught in medical faculties at universities, practised across health disciplines, and the state continues to provide substantially more funding to interventions that focus on curing impairment, rather than those that enable people to exercise their rights when they live with an impairment. Therefore,

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Carol D Rasnic, ‘The ADA: A Model for Europe with “Sharper Teeth?”’ (2004) 11 ILSA Journal of International and Comparative Law 105, 111. Matthew Diller, ‘Judicial Backlash, the ADA, and the Civil Rights Model’ (2000) 21 Berkeley Journal of Employment and Labor Law 19, 51–52. Lee Ann Basser and Melinda Jones, ‘The Disability Discrimination Act 1992 (Cth): A ThreeDimensional Approach to Operationalising Human Rights’ (2002) 26 Melbourne University Law Review 254; Elizabeth Dickson, ‘Understanding Disability: An Analysis of the Influence of the Social Model of Disability in the Drafting of the Anti-discrimination Act 1991 (Qld) and in Its Interpretation and Application’ (2003) 8(1) Australia and New Zealand Journal of Law and Education 47. Harpur, ‘Embracing the New Disability Rights Paradigm’, 1. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press, 172–184.

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while new thinking around disability had emerged at the time the last ILO convention on disability, the Vocational Rehabilitation and Employment (Disabled Persons) Convention, was being negotiated, drafted and ultimately adopted in 1983, medical model thinking remained influential, if not dominant, in society.

E ILO Embracing New Disability Human Rights Paradigm While ILO conventions promote an outdated notion of ability diversity, the ILO itself has promoted and embraced the new disability human rights paradigm. As will be analysed below, the CRPD has transformed how international law and public policies construct disability. The ILO became involved with the drafting of the CRPD and provided valuable contributions how the right to work and employment could reflect the disability human rights paradigm. In 2001, the United Nations General Assembly established the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities to report on the possibility of the United Nations adopting a disability-specific human rights convention. 68 The impetus came from a combination of persons with disabilities not receiving adequate protection under existing United Nations human rights treaties, while also being ignored by other programming.69 The Ad Hoc Committee engaged in five years of transparent negotiations, including eight sessions and a session for a working group on drafting, several revised drafts, and substantial public discussion. Significantly, and unlike previous specialised human rights conventions, this process involved states and nongovernmental actors. 70 During the sixth session, the ILO provided a detailed submission on the right to work and employment.71 The ILO welcomed, inter alia, ‘the 68

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Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, G.A. Res 56/168, U.N. Doc. A/RES/56/168 (26 February 2002); Michael Ashley Stein, ‘Disability Human Rights’ (2007) 95 California Law Review 75, 83. Michael Ashley Stein, ‘China and Disability Rights’ (2010) 3 Loyola Law School Los Angeles International & Comparative Law Review 7, 12. Mario Levesque and Brynne Langford, ‘The Role of Disability Groups in the Development and Implementation of the UN Convention on the Rights of Persons with Disabilities’ (2016) 5 The Canadian Journal of Disability Studies 4; Michael Ashley Stein and Janet E Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32 Human Rights Quarterly 3, 689. The provision was drafted as Article 22, but finally became Article 27 of the Convention: International Labour Office, ILO Comment on Draft Article 22 Right to Work, Ad Hoc

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recognition of the right of persons with disabilities to gain a living by work which they freely choose or accept, based the principles of equal opportunity and equal treatment [and] the provision for protection of this right through legislation.’72 To promote the new approach to the right to work, the ILO called for a raft of amendments, including one that recognised the shift this new model would entail. The ILO called for the ‘provision, on a transitional basis, for alternative forms of work for persons with disabilities who may be unable to work in the open labour market, in conditions which ensure that the work carried out is useful and remunerative, providing opportunities for vocational advancement and where possible, transfer to open employment.’73 ILO documents from 2015 show how transition from models which resulted in discounted equality to the right to work were found in the new paradigm. Recognising the impact of the CRPD, the ILO explained: The CRPD provides fresh impetus to ILO activities to promote equal opportunities for persons with disabilities in training, employment and occupation.74

The transformational impact of the CRPD cannot be overemphasised and will be analysed in detail in the remainder of this chapter.

ii the un and the new disability human rights paradigm In comparison to the social model, the disability human rights paradigm focuses on equality and respecting persons’ dignity. This part will analyse how the CRPD has swept in a new disability human rights model and what this means for hierarchies of impairment and ableism at work. A The Emergence of the Disability Human Rights Paradigm and the CRPD Prior to the CRPD, international law, while recognising the rights of persons with disabilities, viewed people with disabilities as separate but equal.75 The

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Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 6th sess (1–12 August 2005). Ibid. Ibid. ILO Gender, Equality and Diversity Branch, Decent Work for Persons with Disabilities: promoting rights in the global development agenda (3rd ed, 2015) International Labor Organization. www.ilo.org/wcmsp5/groups/public/—ed_emp/—ifp_skills/documents/ publication/wcms_430935.pdf. Gerard Quinn, ‘A Short Guide to the United Nations Convention on the Rights of Persons with Disabilities’ (2009) 1 European Yearbook of Disability Law 89, 89–90.

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CRPD approaches the equality of persons with disabilities from a fundamentally different perspective from existing legal models.76 The CRPD promotes inclusion and equal accessibility in society as a fundamental human right, and rejects the notion that persons with disabilities should have their rights discounted due to differences in ability.77 Under the human rights paradigm, the notion of ability equality is not a privilege, but a human right that the state must help realise.78 The CRPD Preamble focuses on achieving ‘Equalization of Opportunities’: mainstreaming disability protections for persons requiring intensive support or less support; actively involving persons with disabilities in policy developments; and recognising that action is required to redress past discrimination which has resulted in poverty.79 The ability equality objective in the CRPD is supported by a comprehensive rights regime. The rights contained in the CRPD can be grouped into ‘affirmation rights’, ‘reformulation rights’, ‘extension rights’ and ‘innovation rights’.80 These rights provide clarification and certainty about the rights that persons with disabilities are entitled to exercise and what states must do to enable these rights to be exercised. The human rights agenda of the CRPD substantially transforms how international human rights laws approach people with disabilities.81 Professors Janet Lord and Michael Ashley Stein explain82:

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Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1. Anna Lawson, ‘Accessibility Obligations in the UN Convention on the Rights of Persons with Disabilities: Nyusti and Takacs v Hungary’ (2014) 30(2) South African Journal on Human Rights 380. Kanter, The Development of Disability Rights Under International Law (2015), 31. CRPD, preamble (f ), (g), (j), (o), (p), (t) and (v). Frederic Megret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30(2) Human Rights Quarterly 493. Heiner Bielefeldt, ‘New Inspiration for the Human Rights Debate: The Convention on the Rights of Persons with Disabilities’ (2007) 25(3) Netherlands Quarterly of Human Rights 397; Paul Harpur, ‘Time to Be Heard: How Advocates Can Use the Convention on the Rights of Persons with Disabilities to Drive Change’ (2011) 45(3) Valparaiso University Law Review 1271; Camilla Parker and Luke Clements, ‘The UN Convention on the Rights of Persons with Disabilities: A New Right to Independent Living?’ (2008) 4 European Human Rights Law Review 508; Nell Munro, ‘Define Acceptable: How Can We Ensure that Treatment for Mental Disorder in Detention Is Consistent with the UN Convention on the Rights of Persons with Disabilities?’ (2012) 16(6) International Journal of Human Rights 902; Michael Waterstone, ‘The Significance of the United Nations Convention on the Rights of Persons with Disabilities’ (2010) 33 Loyola International and Comparative Law Review 1. Janet E Lord and Michael Ashley Stein, ‘Social Rights and the Relational Value of the Rights to Participate in Sport, Recreation, and Play’ (2009) 27 Boston University International Law Journal 249, 251.

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The CRPD advances social rights in a way that may profoundly affect the development of emergent social rights jurisprudence and advance human rights advocacy. Its comprehensive rights catalogue allows direct invocation of social rights claims, eliminating the need to fit such claims within the framework of more established civil or political rights.

The new disability human rights paradigm swept in by the CRPD, and its associated rights regime, is appropriately referred to as the declaration of ability equality for persons with disabilities.83 Gerard Quinn heralds the CRPD as the Declaration of Independence for persons with disabilities.84 For the first time in history, persons with disabilities are regarded under international law as full and equal citizens.85 As an international convention, its state signatories are required to comply with the provisions of the CRPD, such that the sweeping human rights agenda should drive domestic law and policy reforms. The CRPD requires states to take immediate, effective and appropriate measures to: (a) Raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; (b) Combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; (c) Promote awareness of the capabilities and contributions of persons with disabilities.86 Effectively, the CRPD requires states to institute positive conduct to promote a sweeping disability rights–based agenda.87 83

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Paul Harpur, Expert Evidence before the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Queensland Parliament (12 September 2018). www.parliament.qld.gov.au/documents/Committees/HCDSDFVPC/ 2018/TerminationofPregnancyB18/trns-ph-12Sep2018.pdf. 23. Gerard Quinn, ‘Closing: Next Steps-Towards a United Nations Treaty on the Rights of Persons with Disabilities’ in Peter Blanck (ed), Disability Rights (2005) Ashgate, 519, 541. Michael Waterstone, ‘The Significance of the United Nations Convention on the Rights of Persons with Disabilities’ (2010) 33 Loyola International and Comparative Law Review 1, 2. CRPD art 8. Eilionóir Flynn, ‘Ireland’s Compliance with the Convention on the Rights of Persons with Disabilities: Towards a Rights-Based Approach for Legal Reform?’ (2009) 31(1) Dublin University Law Journal 357; Piers Gooding, ‘Navigating the “Flashing Amber Lights” of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns’ (2015) 15(1) Human Rights Law Review 45; Kelley Johnson ‘The UN Convention on the Rights of Persons with Disabilities: A Framework for Ethical and Inclusive Practice?’ (2013) 7(3) Ethics and Social Welfare 218; Janet Lord, Deepti Samant Raja and Peter Blanck, ‘Beyond the Orthodoxy of Rule of Law and Justice Sector

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B The Right to Work and the CRPD The uncertainty about what the right to work means for persons with disabilities was substantially redressed by the CRPD. Unlike the earlier human rights conventions, the CRPD is a human rights convention that specifically deals with the issues concerning persons with disabilities. Accordingly, CRPD article 27 provides significant detail on what states must do to ensure persons with disabilities can enjoy their right to work. Article 27(1) provides that: 1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia: (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions; (b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances; (c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; (d) Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training; (e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment; (f ) Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business;

Reform: A Framework for Legal Empowerment and Innovation through the Convention on the Rights of Persons with Disabilities’ (2013) 4 World Bank Legal Review 4.

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(g) Employ persons with disabilities in the public sector; (h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures; (i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (j) Promote the acquisition by persons with disabilities of work experience in the open labour market; (k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. Article 27 expressly provides that states have positive and negative obligations to ensure persons with disabilities’ right to work.

C No Hierarchies of Impairments: How the CRPD Promotes Ability Equality at Work Ability equality is the core focus of the CRPD. The purpose of the CRPD is to protect and ensure the ‘full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities . . .’88 This notion of equality includes acceptance of ability diversity. The general principles of the CRPD recognises the importance of ability equality89 and receives specific recognition in the general interpretative provision on equality and non-discrimination.90 The concept of persons with disabilities being able to exercise their rights on an ‘equal basis with others’ appears across the preamble, interpretive articles and the substantive articles of the convention a total of thirty times.91 Identifying where ability equality is being realised or denied requires a comparison between two groups. Often disability discrimination laws focus on comparisons between those who have disabilities and those who do not.92 88 89 90 91

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CRPD art 1. CRPD art 3(d). CRPD art 5. CRPD Preamble (e), art 1-2, art 9(1), art 10, art 12(2), art 13(1), 14(1)-(2), art 15(2), art 17, art 18(1), art 19(a), art 21, art 22(2), art 23(1), art 24(1)(b), art 24(5), art 27(1), art 27(1)(d), art 27(2), art 29, art 30(1), art 30(4), art 30(5). For a discussion of comparators see: Sandra Fredman, Discrimination Law (2nd ed, 2011) Oxford University Press, 22–23; Aileen McColgan, ‘Cracking the Comparator Problem: Discrimination, “Equal” Treatment and the Role of Comparisons’ (2006) 6 European Human Rights Law Review 650; Neil Rees, Simon Rice and Dominique Allen, Australian

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The CRPD, however, adopts a far more nuanced understanding of who the comparator is when employing the term ‘equal basis with others’. The CRPD clearly defines these ‘others’ to include, as well as comparing between persons with and without disabilities, comparisons between persons with intersecting attributes, and between different ranges of abilities. The CRPD includes articles which enshrine special measures where disability intersects with childhood and with women. Accordingly, the CRPD recognises that children with disabilities have different needs when compared to children without disabilities and when compared to people with disabilities who are not children.93 The CRPD also recognises that women with disabilities have different needs when compared to women without disabilities and when compared to persons with disabilities who are not women.94 The CRPD also anticipates differing needs related to severity of impairment and impairment type.95 The CRPD also includes a range of specific measures which anticipate only being achieved when measures are adopted that assist persons with particular impairments. For example: supported decision-making is most relevant for those with psychosocial impairments;96 recognising sign language as a linguistic identity97 and using sign language in education98 is only relevant for persons who are deaf; training and provision of sign language is most relevant for people that are deaf; the provision of braille signage on buildings,99 governments publishing information intended to inform the public in braille,100 and in education,101 is only relevant for persons who are blind. As analysed further in the next chapter, the convention monitoring body, the Committee on the Rights of Persons with Disabilities (CRPD Committee), has further analysed the application of ability equality to ableism at work and hierarchies of impairments.

Anti-discrimination Law (3rd ed, 2018) Federation Press, 3.2.12–3.2.20; Charles A Sullivan, ‘The Phoenix from the Ash: Proving Discrimination by Comparators’ (2009) 60 Alabama Law Review 101. 93 CRPD art 7. 94 CRPD art 6. 95 CRPD Preamble (j) ‘Recognizing the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support’. 96 CRPD art 12. 97 CRPD art 30(4). 98 CRPD art 24(3)(b) and 24(4). 99 CRPD art 9(1)(d). 100 CRPD art 21. 101 CRPD art 24(3)(a) and 24(4).

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Conclusion

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conclusion This chapter has analysed how international legal norms created by the ILO and in the CRPD have enshrined ability equality in exercising the right to work. ILO conventions and developments were analysed in Section I of this chapter and Chapter II, Section I analyses the sweeping impact of the CRPD. The CRPD has created a new disability politics that recognises the nuanced nature of impairment and disablement, and has created norms that opposes ableism at work, hierarchies of impairments, and it creates a rights regime to advance this ability equality agenda. The problems of ableism at work and hierarchies of impairment will be analysed throughout this monograph, using the disability human rights paradigm analysed in this chapter. This chapter introduced how international law norms have shifted with the introduction of the CRPD. The nature of this shift in international law norms will be analysed further in the next two chapters in particular. Chapter 3 will analyse the operation of the CRPD, and Chapter 4 will analyse the way in the right to work operates in disability specific regulatory interventions. The international law norms on ableism at work and hierarchies of impairment developed in the first three chapters will be used to analyse in detail national anti-discrimination and workplace laws that discriminate against workers with psychosocial disabilities.

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3 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

introduction This monograph uses the disability human rights paradigm to critique the role of ableism in creating hierarchies of impairment in the laws which regulate work and employment. The previous chapter analysed how the disability human rights paradigm has emerged from the UN Convention on the Rights of Persons with Disabilities (CRPD).1 Similar to other UN human rights conventions,2 the CRPD has a committee of experts which is empowered to review state conduct, issue general comments, and hear individual complaints. Section I of this chapter will introduce the Committee on the Rights of Persons with Disabilities (the CRPD Committee), which has been active in generating jurisprudence on the operation of hierarchies of impairments, the right to work, and other regulatory issues analysed throughout this monograph. Given the wide range of issues addressed by the CRPD Committee, it will frequently be relevant to the analysis here.

1 2

Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). For example, Convention of the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 17 establishes the Committee on the Elimination of Discrimination against Women; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 43 establishes the Committee on the Rights of the Child; International Convention the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force on 4 January 1969) art 8 establishes the Committee on the Elimination of Racial Discrimination; see, for analysis, Michael Ashley Stein and Janet E Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32(3) Human Rights Quarterly 689, 693.

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Introduction

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This chapter will introduce the CRPD Committee and analyse the extent to which the Committee has identified the presence of hierarchies at work. It will first introduce the CRPD Committee, then Sections II, III and IV will analyse its jurisprudence. Section II will analyse the concluding observations (COs) on States parties to the CRPD to illustrate how the CRPD Committee accepts that there is a hierarchy of impairments in law and practice and that is having a tangible impact upon how the right to work is exercised by different impairment groups. While the CRPD Committee’s critique of the hierarchy of impairments at work is positive, there are substantial inconsistencies across COs. To some extent, this lack of consistency can be explained by the complexity of the CO process, and the fact that not all problems can be addressed all the time. Section III analyses general comments issued by the CRPD Committee and the CRPD itself, which promotes uniformity in collecting of data and reporting by states, and facilitates consistency across COs. The lack of consistency across COs makes it difficult to use this jurisprudence to determine how many states are responding to various ability inequalities.3 Where the CRPD Committee comments positively or negatively on a state, this provides usable data. By contrast, when the CRPD Committee is silent, it is impossible to determine from the COs how well the particular state is performing, or to create international benchmarks to facilitate comparative review. This inconsistency also reduces the capacity for disability rights advocates to champion ability equality. Beyond identifying problems, the decision not to compliment a state on successful measures misses the opportunity to encourage the state and those within it who are responsible for the measure. It is important to recall that disability policy is drafted and operationalised by thousands of individuals across public and private entities, and that the CRPD Committee critiques regulatory frameworks, industries,4

3

4

Paul Harpur and Michael Ashley Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ (2018) 7 International Human Rights Law Review 1; Paul Harpur and Michael Ashley Stein, ‘The Relevance of the CRPD and Marrakesh Treaty to the Global South’s Book Famine’ in Michael Ashley Stein and Jonathan Lazar (eds), Accessible Technology and the Developing World (2019) Oxford University Press. For example, the university sector in Austria was criticised for failing students with disabilities. The CRPD Committee noted that there had been very few university graduates with disabilities in Austria and that only three with hearing impairments had ever graduated from university: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Austria, UN Doc CRPD/C/AUT/CO/1, 30 September 2013, 41; Universities arguably attract duties as actors themselves under the CRPD: Paul Harpur and Michael Ashley

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40 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

and even individual corporations in some cases.5 Where an entity or specific project gains positive attention from a United Nations body, it empowers and enthuses individuals who are interested in ability equality within public and private entities. The CRPD Committee aims to have ability equality mainstreamed, and disability apartheid abolished; to advance this agenda, the CRPD Committee should ensure consistency across COs to empower those on the rights side of the disability human rights debate .

i the crpd committee and its role During the Ad Hoc Committee’s deliberations, there was a general atmosphere of reform underway at the United Nations and a desire to respond to critiques of the current system of human rights treaty monitoring.6 Central among those concerns were overlapping and burdensome reporting obligations, backlogs in consideration of reports by treaty bodies, late submissions by States Parties, and resource limitations.7 Accordingly, there was great hope that the ad hoc process would result in innovative monitoring and implementation mechanisms, which would operate as an experiment for intrepid processes.8

5

6

7

8

Stein, ‘Universities as Disability Rights Change Agents’ (2018) 10 Northeastern University Law Review 2, 79. The CRPD Committee noted that when using the Google search engine on Google’s New Zealand website (www.google.co.nz), and on other English-language Google websites, disturbing phrases occur when some phrases relating to autistic persons are typed into the search box. Since the conclusion of the constructive dialogue with New Zealand, Google has removed some, but not all, of the offending phrases. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of New Zealand, UN Doc CRPD/C/ NZL/CO/1 (30 October 2014), 7. Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000) Cambridge University Press. Claire O’Brien and Michael O’Flaherty, ‘Reform of UN Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’ (2007) 7 Human Rights Law Review 141, 144 (‘To secure more than incremental improvements, it has been widely argued that the United Nations must radically redesign its treaty monitoring system. In particular, consolidation of the existing bodies, or at least of certain elements of their activities, has been urged’). Michael Ashley Stein and Janet E Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32(3) Human Rights Quarterly 689, 692.

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I The CRPD Committee and its Role

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A range of new approaches to monitoring and implementation were advanced,9 as well as a range of other state obligations.10 Professors Michael Stein and Janet Lord observe that ‘although a number of the suggested reforms would have caused the Committee to diverge significantly from those of existing core treaties, the final form taken by the Convention’s monitoring system resembles existing treaty bodies.11 The monitoring and implementation mechanisms eventually adopted in the CRPD include a range of state obligations around data collection, complaint mechanisms and reporting, along with the development of a United Nations treaty monitoring body called the Committee on the Rights of Persons with Disabilities. Similar to other human rights bodies, the CRPD Committee is empowered to pursue its agenda by monitoring reports of states parties,12 assessing information and shadow reports provided by disabled people’s organisations (DPOs) and other interested non-state actors,13 consult with specialised agencies and other United Nations organs,14 to issue general comments and recommendations, and transmit a biennial report to the General Assembly.15 Furthermore, where a state is also a party to the CRPD Optional Protocol, then the CRPD Committee is authorised to accept and deliberate upon individual and group communications regarding alleged violations of the CRPD.16 The CRPD grants the CRPD Committee a wide ambit in managing its own affairs,17 including the power to establish its own rules of procedure,18 and to decide any guidelines applicable to the content of state 9

10 11

12 13 14 15 16

17

18

See, for example, Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Bangkok recommendations on the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities – outcome of an expert group meeting and seminar held in Bangkok at the headquarters of the Economic and Social Commission for Asia and the Pacific from 2 to 4 June 2003, UN Doc A/AC.265/CRP.10 (16–27 June 2003). Ibid., 33. Michael Ashley Stein and Janet E Lord, ‘Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential’ (2010) 32(3) Human Rights Quarterly 689, 692, 693. CRPD art 35–37. CRPD art 38(b). CRPD art 35(a). CRPD art 39. Optional Protocol to the Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, 2519 UNTS 283 (entered into force 3 May 2008) arts 1–2. Harpur and Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ 1. CRPD art 34(10).

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42 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

reports.19 The CRPD Committee is also empowered to seek additional information from civil society and states, and to issue reports and other publications on their activities, comments and views. Accordingly, the CRPD Committee has issued the Committee on the Rights of Persons with Disabilities Rules of Procedure (CRPD Committee Rules).20 The CRPD Committee Rules place a limit on the length of state period reports and helps guide the content of these reports by providing a list of questions.21 The CRPD Committee will ‘focus its questions on areas that are considered priority issues’.22 While the CRPD leaves this list entirely open to the CRPD Committee, the Annex to the CRPD Rules paragraph 23 provides a list of information that independent monitoring frameworks should provide to the CRPD Committee, states and other stakeholders23; importantly, this list includes gathering and providing statistics on ‘the policies, programmes and activities in place to achieve implementation, and on their impact. When feasible, data shall be disaggregated by sex, age, type of impairment, ethnicity and any other relevant category. . .’24 To understand how the committee is responding to hierarchies of impairments, this chapter will analyse the relevant general comments and the final observation to state periodic reports. The COs issued by the CRPD Committee from May 2011 to October 2017, a total of 61 final observations, have been gathered and analysed. The concluding observation on the Republic of Iran was not published in English and has accordingly been excluded from this analysis.25

ii the crpd committee and understanding the problem of the hierarchies of impairments at work A The Right to Work and the Interdependency of Rights The capacity for a person with a disability to exercise one right is often dependent upon their capacity to exercise other rights. A person cannot 19 20

21 22 23 24 25

CRPD art 35(3). Committee on the Rights of Persons with Disabilities, Rules of Procedure, UN Doc CRPD/C/1/ Rev.1 (10 October 2016). Ibid., rule 48. Ibid. Ibid., Annex 23. Ibid., Annex 23(e). Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Iran, UN Doc CRPD/C/IRN/CO/1 (10 May 2017).

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exercise their right to work, for example, if they are not able to exercise their right to education,26 and cannot exercise either their right to education or work if they are not able to exercise their right to access.27 Equally, a person is not able to exercise their rights to culture, family, health or shelter if they do not have the economic resources which, unless the person is independently wealthy, flow from the exercising of the right to work and employment.28 The CRPD Committee recognises the interdependency of all articles.29 The complete rights experience is made up of a complex tapestry, involving the weaving together of a range of experiences and capacities, which themselves can be constructed as the exercise of various human rights. While it is possible to take one thread from this tapestry of human experience and analyse it, it is critical to understand that one right is never exercised in isolation from a range of interdependent rights. The nature of large comparative projects is that they are limited in what issues they can include; consequently, most interdependent rights are not included in this monograph. Where interdependent rights are included, they are only included to the extent they are directly relevant to work relationships. The distorting imposition of legal constructs can be illustrated by the operation of the right to access in article 9 of the CRPD. To the extent the right to access involves digital and physical spaces controlled by employers, this can enliven anti-discrimination law duties. However, the right to access transportation also includes aspects that are beyond the employer’s control, such as public transport or public parking options. These transportation options could enliven other anti-discrimination law duties, even though the inability to physically get to a workplace impacts upon the ability to exercise the right to work and employment, transportation options are normally beyond the access issues regulated by the law of work.

26 27

28

29

Harpur and Stein, ‘Universities as Disability Rights Change Agents’ 79. CRPD art 9; see discussion in Paul Harpur, ‘From Universal Exclusion to Universal Equality: Regulating Ableism in a Digital Age’ (2013) 40(3) Northern Kentucky Law Review 529. The CO on Ethiopia succinctly makes this point where the CRPD Committee observes that where ‘the rate of employment of persons with disabilities is very low, [this] increases the risk of poverty and segregation’: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Ethiopia, UN Doc CRPD/C/ETH/CO/1 (3 November 2016), 59. See, in particular, Committee on the Rights of Persons with Disabilities, Observaciones finales sobre el informe inicial de Colombia, UN Doc CRPD/C/COL/CO/1 (29 September 2016), 60; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mongolia, UN Doc CRPD/C/MNG/CO/1 (13 May 2015), 6; Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of United Arab Emirates, UN Doc CRPD/C/ARE/CO/1 (2 October 2016), 6.

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44 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

If transportation was included within this monograph, then beyond considering additional regulatory frameworks, it would be necessary to include how impairment interacts with transportation options, laws and different types of impairment. For example, people with certain mobility and sensory impairments cannot drive motor vehicles. This forces such people to use public transport, pay for taxis or find alternative modes of transport. Public transport can be wildly inefficient and can take thirty minutes or more each day when compared with driving a car. Even if public transport has utilised universal design, this is more time consuming; for example, at thirty minutes per day, that is 2.5 hours per week, or 125 hours in a fifty-week year. People with some psychosocial impairments cannot use public transport easily due to noise, distractions and forced personal interactions; these people are forced to drive and pay for parking or find alternative modes of transportation. Therefore, public transport use and driving can be both enabling and disabling depending on the impairment and the circumstances. To analyse all aspects of transportation, and how it impacts on personal life and work, would require a detailed analysis, which itself could be a monograph. To understand the tapestry of human experience for persons with disabilities, this monograph will instead focus upon one thread: the right to work.

B Understanding the Problem: The CRPD Committee and the Denial of the Right to Work The CRPD Committee has observed that persons with disabilities are having their right to work and employment denied to them across the globe, including in Latin America,30 Polynesian states,31 less developed European

30

31

Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Argentina, UN Doc CRPD/C/ARG/CO/1 (22 October 2012), at 43; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Plurinational State of Bolivia, UN Doc CRPD/C/BOL/CO/1 (4 November 2016), 61; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Chile, UN Doc CRPD/C/CHL/CO/1 (12 May 2016), 57; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Dominican Republic, CRPD/C/DOM/CO/1 (8 May 2015), 50; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Ecuador, UN Doc CRPD/C/ ECU/CO/1 (26 October 2014), 42; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Honduras, UN Doc CRPD/C/HND/CO/1 (4 May 2017), 57; Committee on the Rights of Persons with Disabilities, Observaciones finales sobre el informe inicial del Uruguay, UN Doc CRPD/C/URY/CO/1 (30 September 2016), 57. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Cook Islands, UN Doc CRPD/C/COK/CO/1 (15 May 2015), 49.

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states32 and comparatively wealthy Western European states and other states in the Global North.33 Some COs go further than merely observing that there is a problem and instead quantify the extent to which the right to work is being experienced and denied. In Denmark, persons with disabilities are 34 per cent more likely to be out of work than people without a disability;34 in other states, the situation is grimmer. Without providing a comparison between people with and without disabilities, the CRPD Committee has observed that persons with disabilities have an unemployment rate of nearly 60 per cent in Peru,35 67.75 per cent in Morocco,36 76 per cent in Jordan37 and a staggering 99 per cent in Kenya.38 Due to the overwhelming barriers to employment, many persons with disabilities work outside the labour market and in precarious work arrangements.39 In the Czech Republic, for example, close to one third of persons with disabilities work outside the open labour market.40 While 32

33

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35

36

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38

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Armenia, UN Doc CRPD/C/ARM/CO/1 (8 May 2017), 47; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Cyprus, UN Doc CRPD/C/CYP/CO/1 (8 May 2017), 53; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Croatia, UN Doc CRPD/C/HRV/CO/1 (15 May 2015), 41; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial periodic report of Hungary, UN Doc CRPD/C/HUN/CO/1 (22 October 2012), 43; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Republic of Moldova, UN Doc CRPD/C/MDA/CO/1 (18 May 2017), 48. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Belgium, UN doc CRPD/C/BEL/CO/1 (27 October 2014), 38; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Canada, UN Doc CRPD/C/CAN/CO/1 (8 May 2017), 47; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Luxembourg, CRPD/C/LUX/CO/1 (10 October 2017), 46; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of New Zealand, UN Doc CRPD/C/NZL/CO/1 (30 October 2014), 55; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Spain, UN Doc CRPD/C/ESP/CO/1 (19 October 2011), 45. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Denmark, UN Doc CRPD/C/DNK/CO/1 (29 October 2014), 58. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Peru, UN Doc CRPD/C/PER/CO/1 (16 May 2012), 40. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Kingdom of Morocco, UN Doc CRPD/C/MAR/CO/1 (25 September 2017), 50. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Jordan, UN Doc CRPD/C/JOR/CO/1 (15 May 2017), 49. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Kenya, CRPD/C/KEN/CO/1 (30 September 2015), 47. Committee on the Rights of Persons with Disabilities, Observaciones finales del Comité sobre los Derechos de las Personas con Discapacidad sobre el informe inicial de Guatemala, UN Doc CRPD/C/GTM/CO/1 (29 September 2016), 63. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Czech Republic, UN Doc CRPD/C/CZE/CO/1 (15 May 2015), 51.

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46 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

precarious work for persons with disabilities has more complex reasons than persons without disabilities, the precariousness of such work arrangements makes workers more vulnerable to exploitation.41 The capacity of persons with disabilities to work depends on a range of factors, including the type and severity of impairment. When commenting on the exclusion of persons with disabilities from work, the Committee has also observed that particular groups confront particular discrimination. Overwhelmingly, persons experiencing psychosocial impairments are observed as experiencing the worst outcomes out of the different impairment categories.42 While other intersecting attributes attract attention,43 gender is the most common intersecting attribute that is observed as a significant factor in enhancing inequalities at work.44

41

42

43

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Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ (2017) 41(1) Loyola Law School Los Angeles International & Comparative Law Review 51; Paul Harpur, ‘Protection of Minorities in the Global Gig Economy: Persons with Disabilities as a Case Study’ (14th Asian Law Institute Conference, jointly organised by the Asian Law Institute and the University of Philippines, College of Law, 18–19 May 2017, Manila). The Committee has singled out psychosocial impairments as experiencing the worst work outcomes in the following concluding observations: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the European Union, UN Doc CRPD/C/EU/CO/1 (2 October 2015), 65; Committee on the Rights of Persons with Disabilities, Observaciones Finales del Comité sobre los Derechos de las Personas con Discapacidad sobre el informe inicial de Guatemala, UN doc CRPD/C/GTM/CO/1 (29 September 2016), 15; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Honduras, UN Doc CRPD/C/HND/CO/1 (4 May 2017), 13; Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of Latvia, UN Doc CRPD/C/LVA/CO/1 (10 October 2017), 46; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mexico, UN Doc CRPD/C/MEX/ CO/1 (26 October 2014), 51; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Uganda, CRPD/C/UGA/CO/1, 12 May 2016, 8; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Ukraine, CRPD/C/UKR/CO/1 (2 October 2015), 50; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the United Kingdom of Great Britain and Northern Ireland, UN Doc CRPD/C/GBR/CO/1 (3 October 2017), 56. For example, indigeneity was singled out in the Concluding Observation on New Zealand: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of New Zealand, UN Doc CRPD/C/NZL/CO/1 (30 October 2014), 55; indigeneity and women were both singled out in the Concluding Observation on Honduras: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Honduras, UN doc CRPD/C/HND/CO/1 (4 May 2017), 13; and Gender and sexual identity were singled out in the Concluding Observation on Uganda: Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mexico, UN Doc CRPD/C/MEX/CO/1 (26 October 2014), 8. The Committee has singled out women as the major intersecting attribute on work outcomes in the following Concluding Observations: Committee on the Rights of Persons with

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III Regulatory Failures Which Promote Ableism

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iii regulatory failures which promote ableism at work and hierarchies of impairment The laws that regulate ability diversity at work can be broadly divided into: 1. Those which enable persons with disabilities to exercise their right to work; 2. Those which are not achieving their objective to support persons with disabilities to exercise their right to work; 3. Those which are failing to regulate key barriers to ability equality at work; and, most insidiously, 4. Those which actively exclude persons with disabilities from work and impose an ability apartheid. The majority of regulatory analysis in this monograph focuses upon interventions in categories two and three from the foregoing list.

A The Ability Apartheid Is No Accident: Regulatory Interventions that Aim to Exclude Workers with Disabilities It is alarming that in some COs the CRPD Committee identified that State parties to the CRPD had laws and policies which actively excluded persons with disabilities from work. Workplace laws in Mongolia, for example, limit persons with disabilities to a maximum of 36 working hours per week.45 The CRPD Committee noted that this limitation ‘may discourage their

45

Disabilities, Concluding Observations on the initial report of Brazil, UN Doc CRPD/C/BRA/ CO/1 (29 September 2015), 48; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Czech Republic, UN Doc CRPD/C/CZE/ CO/1 (15 May 2015), 51; El Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of El Salvador, UN Doc CRPD/C/SLV/CO/1 (7 October 2014), 55; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the European Union, UN doc CRPD/C/EU/CO/1 (2 October 2015), 65; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Montenegro, UN Doc CRPD/C/MNE/CO/1 (22 September 2017), 48; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Thailand, CRPD/C/THA/CO/1, 12 May 2016, 53; Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of United Arab Emirates, UN Doc CRPD/C/ARE/CO/1 (2 October 2016), 49; United Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the United Kingdom of Great Britain and Northern Ireland, UN Doc CRPD/C/GBR/CO/1 (3 October 2017), 56. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mongolia, UN Doc CRPD/C/MNG/CO/1 (13 May 2015), 40.

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48 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

employment’.46 While some impairments could reduce the hours that can be safely worked, this is certainly not the case for most impairments. The CRPD Committee was, rightly, highly critical of laws which stop employers from letting workers with disabilities from reaching their potential. One of the most discriminatory practices is determining that persons with disabilities are not capable of work based upon their impairment, and thus declaring them, as in Gabon, not ‘fit for employment’47; in Turkmenistan, being ‘unemployable’48; in Jordan, deemed medically unfit and prevented from ‘accessing employment’49; in the Republic of Moldova, having no ‘working capacity’50; and in Serbia, having a work ‘incapacity’.51 These COs do not provide details about how many persons are being excluded from employment based upon such determinations or a breakdown of who is being excluded. Without this data it is impossible to understand the extent and operation of this disability economic apartheid. There is certainly a link between the inability to obtain employment and the regulatory processes, which deems people unable to work. The CRPD Committee has provided more detail on similar laws in Mauritius and Lithuania: it noted that a ‘large percentage of persons with disabilities’ are deemed ‘not suitable for the open labour market’ in Mauritius,52 and that the determination of ‘working incapacity’ is ‘commonly applied’ in Lithuania, which results in a low employment rate among persons with disabilities.53 Despite noting with concern the link between arbitrarily determining people unable to work and low rates of employment, the CRPD Committee failed to take the next step and call for the provision of further data and disaggregated statistics so that the accuracy and presence of prejudice can be better understood. Considering the prejudice against certain impairments and the high probability of erroneous incapacity declarations, the CRPD Committee needs to do more when 46 47

48

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50

51

52

53

Ibid. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Gabon, UN Doc CRPD/C/GAB/CO/1 (2 October 2015), 58. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Turkmenistan, UN Doc CRPD/C/TKM/CO/1 (13 May 2015), 41-42. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Jordan, UN Doc CRPD/C/JOR/CO/1 (15 May 2017), 49-50. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of the Republic of Moldova, UN Doc CRPD/C/MDA/CO/1 (18 May 2017), 6. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Serbia, UN Doc CRPD/C/SRB/CO/1 (23 May 2016), 53. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mauritius, UN Doc CRPD/C/MUS/CO/1 (30 September 2015), 37. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Lithuania, UN doc CRPD/C/LTU/CO/1 (10 May 2016), 51.

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III Regulatory Failures Which Promote Ableism

49

State parties have paternalistic laws which prevent persons with disabilities from enjoying their human rights.

B Hierarchies of Impairments in Laws Which Fail to Regulate Key Barriers to Ability Equality at Work The previous section analysed how the CRPD Committee responded in COs to laws which enshrine economic ability apartheid by excluding persons with disabilities from work. One of the concerns raised in the previous section was that the COs did not consider how hierarchies of impairments could be operating to create disproportionate disadvantages. The operation of hierarchies of impairments has been identified and criticised by the CRPD Committee when analysing how State parties implement policies to support persons with disabilities to exercise their right to work and employment. The CRPD Committee has identified that certain impairment categories are ‘ignored’ by certain work interventions in Belgium,54 and that such programmes have ‘limited coverage’ over certain impairment categories in Mexico.55 The CRPD Committee has criticised the ‘lack’ of attention and progress on work equality caused by hierarchies of impairments in Latvia and Ukraine,56 and called upon Portugal to ‘step up efforts’ to address this ableism in that state.57 Across the foregoing COs, the impairment categories that are excluded are described differently. Belgium uses the impairment categories named in article 1 of the CRPD and identifies that persons with intellectual impairments are most excluded from involvement in policy formulation,58 that government action has focused primarily on persons with physical disabilities, and that ‘few measures have been taken to promote accessibility for persons with hearing, visual, intellectual or psychosocial disabilities.’59 The CO on Latvia noted that those with intellectual impairments are most 54

55

56

57

58

59

Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Belgium, UN Doc CRPD/C/BEL/CO/1 (27 October 2014), 5 and 21. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mexico, UN Doc CRPD/C/MEX/CO/1 (26 October 2014), 8. Committee on the Rights of Persons with Disabilities, Concluding observations in relation to the initial report of Latvia, UN Doc CRPD/C/LVA/CO/1 (10 October 2017), 46; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Ukraine, CRPD/C/UKR/CO/1 (2 October 2015), 50. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Portugal, UN Doc CRPD/C/PRT/CO/1 (19 May 2016), 51. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Belgium, UN Doc CRPD/C/BEL/CO/1 (27 October 2014), 5. Ibid., 21.

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50 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

disadvantaged,60 whereas the COs on Mexico and Ukraine identified the most disadvantaged categories as people with either intellectual or psychosocial impairments.61 The CO on Portugal also noted that persons with intellectual impairments were most disadvantaged, but also included persons with autism.62 Despite the different terminology, broadly these COs demonstrate a presence of a hierarchy of impairments where psychosocial impairments are lower in the hierarchy. While the CRPD Committee’s attention on the presence of a hierarchy of impairments in the COs on Belgium, Latvia, Mexico and Portugal is positive, the lack of comment in other COs means it is not possible to draw wider conclusions. Even though it is not possible to draw wider conclusions about the international impact of the hierarchy of impairments from the COs, or comment on the situation in those states where the CRPD Committee has not commented positively or negatively on this issue, it is possible to state that the CRPD Committee recognises the operation of hierarchies of impairments and is concerned about the damage being caused by this phenomenon.

iv importance of comparable and disaggregated data in identifying and addressing the hierarchy of impairments at work The lack of data on persons with disabilities arguably presents one of the most serious obstacles to accountability and monitoring.63 Without adequate data, the nature of disablement is unknown, which means that interventions cannot be targeted appropriately and their effectiveness cannot be assessed.64 As Mads 60

61

62

63

64

Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of Latvia, UN Doc CRPD/C/LVA/CO/1 (10 October 2017), 46. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Mexico, UN Doc CRPD/C/MEX/CO/1 (26 October 2014), 51; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ukraine, UN Doc CRPD/C/UKR/CO/1 (2 October 2015), 50. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Portugal, UN Doc CRPD/C/PRT/CO/1 (19 May 2016), 51. Peter Mittler, ‘The UN Convention on the Rights of Persons with Disabilities: Implementing a Paradigm Shift’ (2015) 12(2) Journal of Policy and Practice in Intellectual Disabilities 79. Alison Croft, ‘Promoting Access to Education for Disabled Children in Low-Income Countries: Do We Need to Know How Many Disabled Children There Are?’ (2013) 33(3) International Journal of Educational Development 233; Gauthier de Beco, ‘Human Rights Indicators for Assessing State Compliance with International Human Rights’ (2008) 77 Nordic Journal of International Law 23; Gauthier de Beco, ‘Human Rights Indicators: From Theoretical Debate to Practical Application’ (2013) 5(2) Journal of Human Rights Practice 380; Beth Sprunt, Manjula Marella and Umesh Sharma, ‘Disability Disaggregation of Education

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IV Importance of Comparable and Disaggregated Data

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Pedersen observes, ‘If you don’t count it, it doesn’t count’.65 Recognising the importance of data collection, this section will analyse how the CRPD and CRPD General Comments require states to collect and publish comparable and disaggregated data, and the role the CRPD Committee has in ensuring this obligation is discharged. A The CRPD on the Disaggregation of Data and Hierarchy of Impairments The importance of developing statistics on human rights as a monitoring framework was still an emerging concept when the CRPD was drafted.66 The CRPD includes data collection obligations as an instrumental article that facilitates the realisation of all substantive rights. Article 31(1) requires State parties to collect information, including statistical and research data, to enable laws and policies to be appropriately formulated, implemented and monitored. Recognising the fact disablement is experienced differently, article 31(2) requires that the information collected in accordance with article 31(1) ‘shall be disaggregated’. This data collection requires disaggregation by impairment and with respect to various intersecting attributes, such as gender and indigeneity.67 The notion of using data collection as a tool to realise rights is simple; operationalising it is not. However, developing and collecting accurate and comparable disability statistics is far from simple.68 B Disaggregation of Data and Hierarchy of Impairments General Comments issued by the CRPD Committee both reinforce the importance of data collection and provides guidance on how this should be

65

66 67

68

Management Information Systems (EMISs) in the Pacific: A Review of System Capacity’ (2016) 11 (1) Knowledge Management for Development Journal 41–68. Mads Pedersen, ‘Article 31 [Statistics and Data Collection]’ in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasi (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (2018) Oxford University Press, 557. Todd Landman and Edzia Carvalho, Measuring Human Rights (2010) Routledge, 3. Harpur and Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ 1. Jerome Bickenbach, ‘Monitoring the United Nation’s Convention on the Rights of Persons with Disabilities: Data and the International Classification of Functioning, Disability and Health’ (2011) 11(S4) BMC Public Health 8; Nora Groce and Daniel Mont, ‘Counting Disability: Emerging Consensus on the Washington Group Questionnaire’ (2017) 5(7) The Lancet Global Health e649; Arne H Eide and Mitchell Loeb, ‘Counting Disabled People: Historical Perspectives and the Challenges of Disability Statistics’ in Shaun Grech and Karen Soldatic (eds), Disability in the Global South: The Critical Handbook (2016) Springer, 51.

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52 The CRPD Committee, Ableism and Hierarchies of Impairment at Work

operationalised. While the CRPD Committee has not yet issued a General Comment on the collection of data or the right to work,69 the importance of disaggregated data collection on the hierarchy of impairments has been identified when dealing with other rights. The fact that disablement is experienced differently between impairment categories, and the importance of targeted measures with respect to disaggregated data collection, is recognised in General Comment 3 on women with disabilities,70 in General Comment 5 on accessibility,71 and in General Comment 4 on the right to education.72 Where the other General Comments deal with a specific substantive right or an intersecting attribute, General Comment 6 concerns the right to equality and non-discrimination that applies to all persons with disabilities. Accordingly, the way in which General Comment 6 deals with the disaggregation of data is most relevant to this monograph. General Comment 6 recognises that data collection and analysis are essential measures to monitor anti-discrimination policies and laws.73 The General Comment provides more detail about what States parties must do to discharge their duties under CRPD article 31. General Comment 6 explains that State parties must collect and analyse data, ‘which must be disaggregated on the basis of disability and of intersectional categories. Data should give information on all forms of discrimination.’74 The data collection should employ quantitative and qualitative research methods, and data must be presented using statistical, narrative and other relevant methodological frameworks. Throughout this process, the data collection and analysis must be participatory and involve persons with disabilities. Importantly for this monograph, the CRPD Committee recognises the presence of hierarchies of impairments, and States have an obligation to collect, analyse and publish disaggregated data on how disablement is experienced by different impairment categories. It is critical that the CRPD Committee utilises its processes to motivate states to

69

70

71

72

73

74

The CRPD Committee has issued six General Comments to date. See Chapter 1 of this monograph for a list. Committee on the Rights of Persons with Disabilities, General Comment No. 3 (2016) on Women and Girls with Disabilities, UN Doc CRPD/C/GC/3 (25 November 2016), 16. Committee on the Rights of Persons with Disabilities, General Comment No. 5 (2017) on living independently and being included in the community, UN Doc CRPD/C/GC/5 (27 October 2017), 95. Committee on the Rights of Persons with Disabilities, General Comment No. 4 (2016) Article 24: Right to inclusive education, UN Doc CRPD/C/GC/4 (2 September 2016), 4(d). Committee on the Rights of Persons with Disabilities, General Comment No. 6 (2018) on equality and non-discrimination, 19th sess, UN Doc CRPD/C/GC/6 (9 March 2018), 70. Ibid.

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Conclusion

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discharge their data collection, analysis and publication obligations, and that the CRPD Committee then uses such publications to improve consistency across COs.

conclusion This chapter has introduced the CRPD Committee and analysed how it has responded to the presence of hierarchies of impairment at work. The CRPD Committee has identified that persons with disabilities are experiencing substantial denial of their right to work and that hierarchies of impairment are intensifying the disablement of persons with psychosocial impairments. While some of the inequalities are caused by failing to support and protect the right to work for persons with disabilities, certain states have regulatory frameworks which enshrine economic ability apartheid by deeming certain people incapable of work. Even though the CRPD Committee’s recognition and criticism of hierarchies of impairment at work is positive, the inconsistencies across COs reduces the potential impact of such efforts. The Committee should subject state conduct to positive or negative review to enhance benchmarking and advocacy. At a minimum, the CRPD Committee should use its authority to require more information from States parties when reporting, and ensure that states engage with and provide resources to organisations that support people with disability.

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4 Hierarchies of Impairment at Work in the Regulation and Response to Sheltered Work

introduction This monograph is analysing the role of hierarchies of impairments in the operation of ableism at work. Part of this analysis is comparing how law and society approaches different impairment types, but also how the severity of the impairment interacts with barriers in society. While people with psychosocial impairments confront greater stigma than those with physical and sensory impairments in general, the severity of the impairment affects how inequalities are experienced, both within and between impairment categories. For example, a person with 100 per cent loss of eyesight will experience greater inequalities than a person who has low vision, and a person with tetraplegia will experience greater inequalities than a person with mild autism. When it comes to the right to work and employment, different treatment in itself is not always a problem. The general purpose of the Convention on the Rights of Persons with Disabilities (CRPD) is to promote equality of opportunity, and not equality of outcome.1 The right to equality of opportunity needs to be understood within a rights framework that protects the right to access,2 dignity,3 full and effective participation and inclusion in society,4 and non-discrimination.5 Accordingly, the CRPD promotes a framework that enables everyone to reach their potential to the extent that is economically practicable.6 A key challenge is distinguishing between acceptable and

1

2 3 4 5 6

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) (CRPD) art 3(e). CRPD art 3(f ). CRPD art 3(a). CRPD art 3(c). CRPD art 3(b). CRPD art 4(2).

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Introduction

55

unacceptable causes of inequalities. It is generally not acceptable to build a new office block with stairs but no ramp or elevator, a website without including web accessibility guidelines, or to require everyone to work in an open plan office space. By contrast, there are inequalities that are that are acceptable under existing rights regimes. For example, a person who is only able to work four hours per week will never earn the same as a person who can work 100 hours. One of the ongoing challenges is how to identify what support can and should be provided to persons with disabilities to enable them to have equality of opportunities. This is not just a matter of cost, but also a matter of considering the impact of all measures within the disability community. The measures that are appropriate for one category and severity of impairment may not be appropriate for others. This leads to substantial challenges for crafting regulatory options that support the most vulnerable people in the disability community, without holding back those who are more able, as well as not adopting models which enable those who could become highly competitive in the open labour market to do so at the expense of those who could not. These policy challenges are being experienced when considering the right to work and the sheltered work debate. In 1955, the ILO issued a recommendation that called for the adoption of sheltered work arrangements for workers ‘who cannot be made fit for ordinary competitive employment . . . for those disabled persons who, for physical, psychological or geographical reasons, cannot travel regularly to and from work.’7 The regulation of ability diversity at work has substantially shifted over the last few decades and, as analysed in this chapter, there has been considerable pressure inside and outside the disability community to close sheltered workshops. If sheltered work is abolished, then the best outcome is that measures are adopted which transform the labour market to become more inclusive of people with severe impairments, and that all workers who are displaced from sheltered work can be supported to find alternative work. The worst-case scenario is that interventions are not able to create more inclusive work opportunities, and rather than finding alternative work, workers who are displaced from sheltered work become unable to exercise their right to work at all. This chapter commences by analysing the history of sheltered work and demonstrates that a significant percentage of workers with development, intellectual and psychosocial impairments work in sheltered work arrangements, and that this group will be disproportionately impacted by any decisions on the regulation of sheltered work. While the negative stigma associated 7

Vocational Rehabilitation (Disabled) Recommendation, ILO Res 99, 38th sess (adopted 22 June 1955) art 32.

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The Regulation and Response to Sheltered Work

with sheltered work can impact other impairment categories, it is persons with developmental and intellectual impairments who are most impacted by the existence and closure of sheltered work. In the analysis of the stance of the CRPD Committee, and the arguments for and against sheltered work, this chapter will address whether the closure of sheltered work prioritises one impairment group over another, or whether it is introducing a bold reform to support people with severe intellectual impairments to exercise their right to work and employment in more economically, emotionally, and developmentally positive circumstances.

i introducing sheltered workshops The interventions to promote persons with disabilities’ right to work generally adopt one of three options: 1. Anti-discrimination laws, which are commonly used to regulate work practices and are discussed in Chapters 5–7 of this monograph; 2. Measures to counterbalance the actual or perceived financial cost of hiring a person with a disability, which may provide funding for job modifications, while others reduce the rights of persons with disabilities to render them more attractive to employers. For example, some jurisdictions that set minimum wages created reduced minimum wages to reflect the perceived reduced value of some workers in order to promote their employment. In Australia, the Fair Work Act 2009 (Cth) requires the Fair Work Commission to annually make a minimum wage order for employees not covered under awards or enterprise agreements. Section 294 provides that these minimum wage orders must include special minimum rates for young people, trainees and employees with a disability. Interestingly, the Employment Equality Act 1998 (Ireland) permits an employer to determine whether the presence of disability restricts the capacity of a worker ‘to do the same amount of work (or to work the same hours) as a person who is employed to do work of that description but who is without that disability’, and to set a lower pay rate to reflect this assessment.8 3. Measures which substitute normal labour conditions for reduced or separate working conditions. The substitution approach assumes that disabled workers cannot operate in the standard labour market and that

8

Employment Equality Act 1998 (Ireland) s 35.

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I Introducing Sheltered Workshops

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they need a special setting to be able to work. This third option is often called the sheltered work option and will be analysed in this chapter. A What Are Sheltered Workshops? Work relationships are governed by contracts of service (employment) or for service (contractor).9 A key element of both of these contractual forms is that a worker is remunerated for performing something of value. The value of the work performed is regulated by minimum wage and award structures, influenced by market forces. The key feature of sheltered work arrangements is that these work relationships are sheltered from these market forces.10 The value of sheltered workers is not based purely upon their efficiency and effectiveness. As sheltered work places advance charitable and social agendas, workers in such arrangements are valued against their individual effort rather than upon their capacity to produce valuable outputs.11 The early form of sheltered work involved segregated workplaces run by charities with little or no managerial involvement by persons with disabilities.12 The capacity of persons with disabilities to compete in the open labour market has increased with technology and social acceptance of ability diversity, and with this, advocates sought to improve the work options for persons with disabilities beyond sheltered work.13 Following these developments, the nature of sheltered workshops adjusted to empower those who continued in sheltered

9

10

11

12

13

Distinguishing between employment and contractor work relationships has regularly reached the highest appellant courts. For cases, see High Court of Australia judgments in Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21 (on whether a bicycle courier was an employee or contractor); Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 13 (positing a multifactor test to determine if a worker was an employee or contractor); United States Supreme Court judgment in NLRB v. Hearst Publications, 322 US 111 (1944) (determining whether newsboys are employees or independent contractors). In 2019, the National Labor Relations Board revisited the definition between employee and contractor and reduced the reliance on the control test and increased attention to whether the worker has entrepreneurial opportunity: SuperShuttle DFw Inc. and Amalgamated Transit Union Local 1338. Case 16–RC–010963. Edward Hall and Robert Wilton, ‘Alternative Spaces of ‘Work’ and Inclusion for Disabled People’ (2011) 26(7) Disability & Society 867, 873. Andrew J Hoffman, Krista K Badiane and Nardia Haigh, ‘Hybrid Organizations and Positive Social Change: Bridging the For-Profit and Non-Profit Divide’ in Karen Golden-Biddle and Jane E Dutton (eds), Using a Positive Lens to Explore Social Change and Organizations: Building a Theoretical and Research Foundation (2012) Routledge, 131. Alberto Migliore, ‘Sheltered Workshops’ in Center for International Rehabilitation Research Information and Exchange (CIRRIE), International Encyclopaedia of Rehabilitation (2011). M Hyde, ‘Sheltered and Supported Employment in the 1990s: The Experience of Disabled Workers in the UK’ (1998) 13(2) Disability and Society 199.

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The Regulation and Response to Sheltered Work

work arrangements.14 This resulted in a range of different work structures to meet the needs of an exceptionally varied workforce. Some operate as cooperatives or collectives where persons with disabilities manage the business, some focus upon training workers for outside work, and others are run as part of a wider therapeutical programme.15 A key feature of sheltered workplaces is their focus on being fully inclusive.16 Where most workplaces are designed and operated for workers without disabilities, sheltered work environments are designed to be inclusive from the outset.17 As a consequence, universal design is the norm, along with a willingness to make reasonable accommodations, as well as satisfying unreasonable accommodation requests.18 Diversity is not the exception, but the norm, so the emotional pressure on workers is substantially reduced.19 Issues which are often fatal in open employment are accepted within the notion of a wider concept of normal conduct. So impaired concentration, lack of verbal and nonverbal communication skills, low motivation, challenges in understanding instructions are accepted as diversity rather than grounds for disciplinary action and dismissal.20

B Funding Sheltered Work The emphasis on wider social aims means sheltered work can attract charitable and state funding to remain in operation.21 These external funds often do not cover the cost of operating a business. The challenges of earning sufficient 14

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17

18

19

20

21

B Kirsh, T Krupa, L Cockburn and R Gewurtz, ‘Work Initiatives for Persons with Severe Mental Illnesses in Canada’ (2006) 25 Canadian Journal of Community Mental Health 173. Kate Cooney, ‘The Business of Job Creation: An Examination of the Social Enterprise Approach to Workforce Development’ (2011) 15(1) Journal of Poverty 88; Kai Hockerts, Antagonistic Assets into Complementarities’ (2015) 57 California Management Review 83. Jacqueline Mallender, Quentin Liger, Rory Tierney, Daniel Beresford, James Eager, Stefan Speckesser and Vahé Nafilyan, ‘Reasonable Accommodation and Sheltered Workshops for People with Disabilities: Costs and Returns of Investments’, European Parliament (2015). Robert D Wilton, ‘From Flexibility to Accommodation? Disabled People and the Reinvention of Paid Work’ (2004) 29 Transactions of the Institute of British Geographers 420. Zoe Brennan-Krohn, ‘Employment for People with Disabilities: A Role for Anti-subordination’ (2016) 51 Harvard Civil Rights-Civil Liberties Law Review 239, 248. Robert D Wilton, ‘Workers with Disabilities and the Challenges of Emotional Labour’ (2008) 23(4) Disability and Society 361. Laura C Hoffman, ‘An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled’ (2013) 16 University of Pennsylvania Journal of Law and Social Change 151, 157, 175; Susan Stefan, ‘Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings’ (2010 26 Georgia State University Law Review 875. Ash Amin, Angus Cameron and Ray Hudson, Placing the Social Economy (2002) Routledge.

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I Introducing Sheltered Workshops

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capital to continue in operation and providing an inclusive work environment can create challenges for those managing sheltered work settings.22 Statutory exceptions around sub-minimum wages is a key element of providing such inclusive work environments.23 Some payments are based upon outputs or operate as small top-ups to welfare support.24 The sub-minimum wage and limited prospects for advancement means this form of work is unattractive to most workers who can transition to the open labour market. Since workers with physical and sensory impairments became more able to succeed in the labour market, sheltered work arrangements began to be dominated by those who supported workers with certain psychosocial disabilities and developmental and intellectual impairments.25 The World Health Organization uses the term ‘mental disorders’ to seemingly capture a group who struggles to operate within the able-bodied norms of the labour market.26 Workers with intellectual disabilities are overrepresented as an impairment group in sheltered work27; research has estimated that 75 per cent to 85 per cent of workers with intellectual disabilities in the United States work in sheltered workshops.28 22

23

24

25

26

27

28

Wendy K Smith, Michael Gonin and Marya L Besharov, ‘Managing Social Business Tensions: A Review and Research Agenda for Social Enterprise’ (2013) 23(3) Business Ethics Quarterly 407; Dennis R Young and Choony Kim, ‘Can Social Enterprises Remain Sustainable and Mission-Focused? Applying Resiliency Theory’ (2015) 11(3) Social Enterprise Journal 233. The capacity to pay sub-minimum wages is becoming increasingly limited. For example, the US Workforce Innovation and Opportunity Act 2014 only permits sub-minimum wage employment for persons with disabilities 24 years old or younger where they have first enrolled in vocational rehabilitation and employment transition services. Charlotte May-Simera, ‘Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)’ (2018) 7(1) Laws 6; Arthur O’Reilly, The Right to Decent Work of Persons with Disabilities (2007) International Labour Office. Gary Bond, ‘Supported Work as a Modification of the Transitional Employment Model for Clients with Psychiatric Disabilities’ (1987) 11(2) Psychosocial Rehabilitation Journal 55; Marina Morrow, Adrienne Wasik, Marcy Cohen, and Karen-Marie Elah Perry, ‘Removing Barriers to Work: Building Economic Security for People with Psychiatric Disabilities’ (2009) 29(4) Critical Social Policy 655; Stefan, ‘Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings’ 875, 899–900. World Health Organization, ‘Psychosocial Rehabilitation: A Consensus Statement’ (1997) 26(2) International Journal of Mental Health 77. Noelia Flores, Christina Jenaro, M Begona Orgaz and M Victoria Martín, ‘Understanding Quality of Life of Workers with Intellectual Disabilities’ (2011) 24 Journal of Applied Research in Intellectual Disabilities 133. Bryan Dague, ‘Sheltered Employment, Sheltered Lives: Family Perspectives of Conversion to Community-Based Employment’ (2012) 37 Journal of Vocational Rehabilitation 1–11; US Government Accountability Office, Special Minimum Wage Program: Centers Offer Employment and Services to Workers With Disabilities, But Labor Should Improve Oversight (GAO-01-886, 3 August 2001) 19.

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ii the crpd committee and the agenda against sheltered work A How Does the CRPD Distinguish between Acceptable and Unacceptable Employment Options? The CRPD distinguishes between open and closed work. Article 27(1) provides that the right of people with disabilities to work ‘includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open’.29 To support obtaining work in the open labour market, the CRPD requires states to adopt a range of strategies, including affirmative action programmes, incentives, and to promote the acquisition by persons with disabilities of work experience in the open labour market.30 In addition to work in the open labour market, the CRPD requires states to employ persons with disabilities in the public sector.31 The CRPD drafters recognised that persons with disabilities can struggle to gain jobs in standard employment and accordingly promoted non-traditional work options.32 CRPD 27(1)(f ) requires states to ‘promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one’s own business’. Leaving aside the vulnerability of microbusiness owners,33 promoting the development of cooperatives would seem to include supporting persons with disabilities to cooperatively operate business structures. Disability cooperatives often receive support from charities and consolidated revenue, and have many of the features of a sheltered workshop. The CRPD is not opposed to sheltered workshops per se. What the CRPD is very clearly opposed too is devaluing workers with disabilities because of their disability. The labour market must include frameworks to promote inclusive design,34 and reasonable accommodations where necessary.35 Sheltered workshops are often associated with an inability to move from such 29 30 31 32

33

34 35

CRPD, art 27(1). CRPD 27(1)(b) and (j). CRPD art. 27(1)(g). Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ (2017) 41(1) Loyola Law School Los Angeles International & Comparative Law Review 51. Precarious work structures reduces workers security, legal rights and union protection, while placing workers in an economically vulnerable situation: Judy Fudge, ‘Beyond Vulnerable Workers: Towards a New Standard Employment Relationship’ (2005) 12 Canadian Labor and Employment Law Journal 151. CRPD art. 27(1). CRPD art. 27(1(i).

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workplaces to open employment and to having lower pay. States must provide avenues for persons with disabilities to advance their careers, for example, by providing vocational training.36 The fact workers with disabilities earn a lower wage in itself is not a breach of the CRPD. The CRPD does not contain a right to equal pay, but a right to ‘equal remuneration for work of equal value’.37 This means that a cleaner is paid as a cleaner, whether they are a person with or without a disability. If every cleaner is paid with an hourly wage, then workers with or without disabilities are paid according to the hours they work. If every worker is paid based upon their items produced on a workshop, then every worker, whether they be disabled or not, are paid according to their outputs.

B What Has the CRPD Committee Said on Sheltered Workshops? The CRPD Committee does not regard sheltered work as a viable work option for persons with disabilities. The COs on Brazil and Luxembourg operated on the basis that sheltered work was inherently contrary to the right to work and employment and regarded the mere presence of sheltered workshops as a problem.38 The CO on Lithuania went further; without providing reasons, the CRPD Committee observed that it was ‘seriously concerned with the focus on segregated work environments, such as social enterprises, to which European Union funds are being directed’.39 The CRPD Committee then recommended that Lithuania eliminate ‘segregated work environments’ and instead invest in promoting ‘vocational training, access to appropriately adjusted workplaces, the provision of reasonable accommodation and the training of private and public employers’.40 The terminating of an existing policy, which is providing some form of work, with a raft of other interventions, which may provide new work options to persons, is a substantial step and, arguably, the COs should have better explained how these other options would ensure workers could still exercise their right to work and employment.

36 37 38

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CRPD art. 27(1)(k). CRPD art. 27(1)(b). Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Brazil, UN Doc CRPD/C/BRA/CO/1 (29 September 2015) 48; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Luxembourg, UN Doc CRPD/C/LUX/CO/1 (10 October 2017) 46. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Lithuania, UN Doc CRPD/C/LTU/CO/1 (10 May 2016) 51. Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Lithuania, UN Doc CRPD/C/LTU/CO/1 (10 May 2016) 52.

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C Transitioning from Sheltered Work to Open Work Can Take Considerable Effort and Retraining The CRPD Committee clarified how Germany should transition workers from sheltered work to open work. The CRPD Committee proposed that Germany adopt policies to phase ‘out sheltered workshops through immediately enforceable exit strategies’.41 It would have been helpful if the CRPD Committee explained precisely how these strategies would ensure workers had the resources and opportunities to develop the necessary skills, coupled with how the open labour market could be adjusted to become more accommodating of substantial numbers of persons with complex disabilities. After all, persons with profound disabilities who have the skills and capacity to work are regularly denied their right to work. The choice for policymakers is whether they are to take incremental steps or seek to entirely remake how workplaces approach diversity. The problem is that it is much easier to shut down sheltered work options than it is to create a labour market that is accepting of all ability diversity. There is certain to be a period of time between one work option shutting down and the other opening up. In the CO on Serbia, the CRPD Committee adopted a more measured approach.42 In this CO, the CRPD Committee focused upon strategies to enhance transition from sheltered work to open work, without suggesting shutting down the avenue through which these workers were currently exercising their right to work and employment. There are many options within the sheltered work structure which can empower persons with disabilities. One option could be to provide funding and support for those who support workers with disabilities to move into management of such operations. Where this can be achieved, then such enterprises transition from a medical model approach, of able-bodied persons helping the poor disabled, to an empowerment frame, where persons with disabilities control and own a business that is helping them and their community.

D Why the CRPD Committee Is Opposed to Sheltered Work The COs on Australia, New Zealand and Portugal help understand why the CRPD Committee is opposed to sheltered workshops. These COs criticised 41

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Germany, UN Doc CRPD/C/DEU/CO/1 (13 May 2015) 49. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Serbia, UN Doc CRPD/C/SRB/CO/1 (23 May 2016) 55–56.

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the fact workers with disabilities receive lower pay in sheltered workshops when compared to the hourly rate for workers without disabilities.43 Another issue goes to the purpose of sheltered work. The CRPD Committee does not approve of workers remaining long term in sheltered work; the fact that workers with disabilities had not transitioned from sheltered work to open work in Austria, Bosnia and Herzegovina, Canada, Mauritius, Portugal, the Republic of Korea and Slovakia was of great concern to the CRPD Committee.44 The CRPD Committee called upon these State parties to urgently move workers out of sheltered work arrangements and into open work. While the CRPD Committee’s position may ignore the reality that some workers are unable to transition to open employment, in some states the numbers of workers in sheltered work arrangements is troublingly high. In the Czech Republic, for example, the CRPD Committee noted with concern that ‘close to one third of employed persons with disabilities work outside the open labour market’.45 This suggests that workers who are in sheltered work could be in open employment if they were provided the opportunity. The CRPD Committee was most concerned when workers with disabilities were legally or practically forced into sheltered work arrangements. In such states, workers with disabilities are forcibly segregated from those deemed abled. This led the CRPD Committee to explain that it was ‘concerned about

43

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, UN Doc CRPD/C/AUS/CO/1 (24 October 2013) 49; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Austria, UN Doc CRPD/C/AUT/CO/1 (30 September 2013) 44; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of New Zealand, UN doc CRPD/C/ NZL/CO/1 (30 October 2014), 58-59; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Portugal, UN doc CRPD/C/PRT/CO/1 (19 May 2016) 51. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Austria, CRPD/C/AUT/CO/1 (30 September 2013) 44; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Bosnia and Herzegovina, UN doc CRPD/C/BIH/CO/1 (2 May 2017) 47; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Canada, UN doc CRPD/C/CAN/CO/1 (8 May 2017) 47; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Mauritius, UN Doc CRPD/C/MUS/CO/1 (30 September 2015) 37; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Portugal, UN doc CRPD/C/PRT/CO/1 (19 May 2016) 51; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Republic of Korea, UN Doc CRPD/C/KOR/CO/1 (20 October 2014) 49; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Slovakia, UN doc CRPD/C/SVK/CO/1 (13 May 2016) 73. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Czech Republic, UN doc CRPD/C/CZE/CO/1 (15 May 2015) 51.

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the practice of reserved employment (such as the field of ‘blind massage’), which discriminates against persons with disabilities in their vocational and career choices.’46 Some states, such as the Republic of Korea and Slovenia, go further and prevent workers with disabilities from opting out of sheltered workshops in certain situations.47 In the Republic of Korea for example, the Minimum Wage Act excludes from the benefit of the minimum wage ‘those who clearly lack the capacity to work’ and fails to set clear standards for conducting assessments and making decisions to define the lack of capacity to work. The CRPD Committee noted, that ‘as a result, many persons with disabilities who work, especially those with intellectual and psychosocial disabilities, receive compensation below the minimum wage, and that the practice of placing such workers in sheltered workshops that do not aim to prepare them for entry into the open labour market continues.’48

iii disability scholarship that supports the position taken by the crpd committee A Separate Is Bad The CRPD Committee’s opposition to working conditions, segregated upon ability lines, reflects long held opposition in the disability community to twotrack regulatory options. It is an article of faith for many in the disability community that ‘separate’ is undesirable and discriminatory.49 In 1966, Jacobus tenBroek made the transformational proposition of ‘integrationism’ as a means of realising disability rights.50 Historically, the strong opposition to any economic apartheid made sense. Separate and inferior education prevents persons with disabilities from real learning and any real prospects of open employment, and institutionalisation imprisoned and excluded persons with

46

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48

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of China, Corrigendum, UN doc CRPD/C/CHN/CO/1/Corr.1 (14 November 2012) 23. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Slovenia, CRPD/C/SVN/CO/1 (16 April 2018) 45; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Republic of Korea, UN Doc CRPD/C/KOR/CO/1 (20 October 2014) 49. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Republic of Korea, UN Doc CRPD/C/KOR/CO/1 (20 October 2014) 49. Brennan-Krohn, ‘Employment for People with Disabilities: A Role for Anti-subordination’ 263–264. Jacobus tenBroek, ‘The Right to Live in the World: The Disabled in the Law of Torts’ (1966) 54 California Law Review, 841.

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disabilities from the community.51 A strong integrationism stance is fundamentally opposed to providing workers with disabilities reduced labour conditions as a means to enable this group to exercise their right to work.

B Exploitative Not to Pay Equal for Workers with and without Disabilities There is no doubt that persons with disabilities can be equally or more productive than those without disabilities. This does, however, depend upon the impairment type and the activity.52 A legal academic who is blind can use their intellect and physical strength to exceed expectations. A person with a severe intellectual impairment could perform a repetitive task that requires physical strength equal to or better than a person without impairment. Paying either worker less because they happen to have an intellectual disability would go against the equality measure in the CRPD. While it might be fair to pay a worker according to their productivity, sheltered work does not always adopt this approach and instead pays differently based upon ranges of ability. Sheltered work arrangements assume persons with disabilities are less efficient, and accordingly, offers them shelter from market forces. The problem with this approach is that a worker with a disability could be efficient or could have the potential to achieve much more. The way in which pay is calculated in sheltered work arrangements often comes under scrutiny. For example, an Australian government disability wage-setting tool used to assess the wages of intellectually disabled workers who were employed in an Australian Disability Enterprise (a form of government subsidised employment) resulted in people with certain disabilities being underpaid.53 The Australian government accepted that this tool was discriminatory, and has agreed to pay back wages for 9735 employees. This is estimated to cost around AUD $100 million. While sheltered work provides a benefit to some workers, using impairment as a measure to determine or influence wages will result in some workers being underpaid. If workers are practically or actually forced to stay in a sheltered work arrangement, then this underpayment becomes a form of economic apartheid.

51

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Ruth Colker, ‘Anti-subordination Above All: A Disability Perspective’ (2007) 82 Notre Dame Law Review 1415, 1417. Marc Corbière, Sara Zaniboni, Carolyn S Dewa, Patrizia Villotti, Tania Lecomte, Hélène Sultan-Taïeb, Julie Hupé and Franco Fraccaroli, ‘Work Productivity of People with a Psychiatric Disability Working in Social Firms’ (2019) 62(1) Work 151. Duval-Comrie v. Commonwealth [2016] FCA 1523.

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C Inability to Transition Out of Sheltered Work Supporters of sheltered work observe that this is simply one employment option, and, providing workers are free to choose, this is not economic apartheid. The problem is that workers with disabilities can find it difficult or impossible to transition out of sheltered work, as they are often tied with other supports, and if a worker resigns, they could possibly lose access to a range of other supports. Presuming charitable or state welfare support can be developed to support workers to transition from sheltered work, what are the prospects for securing alternative employment? Workers with disabilities have great challenges in leaving sheltered work arrangements for open employment. The low pay and inability to transition out from sheltered work to open work has attracted considerable criticism from disability scholars.54 Indeed, sheltered workshops have been provocatively compared to sweatshops and described as a structure that ‘incarcerates disabled people within vocationallike settings’.55 Once employed in sheltered work, the stigma attached to such work means it is very hard to ever transition into open employment.56 Once in sheltered work, then employers perceive workers as less able to operate in open employment, and thus the probability of securing open work could be reduced by extended tenure in such arrangements. The barriers to leaving sheltered work could also come from those who run such facilities. It could be some sheltered workshops seek to discourage workers from resigning their employment. While the social agenda of the sheltered workshop is to support training and transition of workers, individual managers could be influenced by the desire to retain their most efficient workers. Disability scholarship almost uniformly supports reviewing the practice and regulation of sheltered work. There is, however, substantial divergence on the range of appropriate responses. This section has analysed scholars that promote reviewing and even abolishing sheltered work. The decision to abolish an entire mode of arranging work is a monumental step. Labour theorists have

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J Gardner Armsby, ‘The War on Sheltered Workshops: Will ADA Title II Discrimination Lawsuits Terminate an Employment Option for Adults with Disabilities’ (2015) 31(2) Georgia State University Law Review 443, 447; Laura C Hoffman, ‘An Employment Opportunity or a Discrimination Dilemma? Sheltered Workshops and the Employment of the Disabled’ (2013) 16 University of Pennsylvania Journal of Law and Social Change 151, 165–169. Michael Gill, ‘The Myth of Transition: Contractualizing Disability in the Sheltered Workshop’ (2005) 20(6) Disability and Society 613. Susan Stefan, ‘Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings’ (2010) 26 Georgia State University Law Review 875, 899.

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identified a range of precarious work structures. Whether it be outsourcing, casualisation, gig work, franchising, agency/labour hire or outworking, the presence of substantial abuse has been well-documented.57 Rather than abolishing these forms of work, lawmakers have embraced a range of regulatory options to increase worker protections.58 The next two sections will consider whether the harms associated with abolishing sheltered work are so significant that lawmakers should exercise extreme caution when introducing measures to forcibly remove persons with disabilities from these work settings.

iv ableism in the open labour market and transitioning from sheltered work to what? Sheltered work has provided support to persons with every impairment category at some point in time. The majority of people currently working under sheltered work arrangements are those with cognitive and psychosocial impairments. As a consequence, the closure of sheltered work will impact upon certain impairment categories unequally. This chapter analyses what are the three most likely work outcomes for persons with such disabilities if sheltered work were abolished. A Transitioning to What? From Sheltered Permanent Employment to Low-Skilled Casual Employment This section will analyse the three most likely work outcomes if sheltered work is abolished. First, this section will analyse the jobs that workers transitioning out of sheltered work arrangements are likely to acquire. As a best outcome, 57

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Paul Harpur, ‘Clothing Manufacturing Supply Chains, Contractual Layers and Hold Harmless Clauses: How OHS Duties Can Be Imposed Over Retailers’ (2008) 21(3) Australian Journal of Labour Law 316; Richard Johnstone, Shae McCrystal, Igor Nossar, Michael Quinlan, Michael Rawling and Joellen Riley, Beyond Employment: The Legal Regulation of Work Relationships (2012) The Federation Press. Elizabeth Bluff, Richard Johnstone, Maria McNamara and Michael Quinlan, ‘Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders’ (2012) 25(1) Australian Journal of Labour Law 23; Paul Harpur, ‘Australia – The Licensing of Temporary Agency Work Arrangements: Australian Labour Hire Licensing Acts and the Regulation of OnHire and Gig Work’, American Bar Association, Section of Labor and Employment Law, International Committee Newsletter (July 2018); Michael Rawling, ‘A Generic Model of Regulating Supply Chain Outsourcing’ in Christopher Arup, Peter Gahan, John Howe, Richard Johnstone, Richard Mitchell and Anthony O’Donnell (eds), Labour Law and Labour Market Regulation (2006) 520–541, 534; Michael Rawling and Sarah Kaine, ‘Regulating Supply Chains to Provide a Safe Rate for Road Transport Workers’ (2012) 25 Australian Journal of Labour Law 33.

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sheltered workers will acquire jobs which their sheltered work training and skills best equips them for. However, sheltered work is synonymous with lowskilled and repetitive tasks; simple gardening, street cleaning, and team assembling are common jobs, and many other workers perform even more basic tasks with significant supervision. Hence, most sheltered workers have limited marketable skills. If sheltered workers are able to transition to the open labour market, what kind of jobs will they acquire? The working conditions of many gardeners, cleaners and common labourers are often at minimum wage and work hours are often insufficient to keep people above the poverty line. Essentially, many sheltered workers transitioning to open employment will give up low-skilled permanent work that embraces unreasonable accommodations, for low-skilled casual work where it will be hard to obtain the necessary support and accommodations. The support for workers with complex needs has to go beyond mere reasonable accommodations. The issue of reasonable accommodations is discussed in Chapter 7. The issue of support is a much wider concept: workers with disabilities could need support in managing scheduling for their several low-paid jobs, assistance with transport to work, and some health care support at work, such as being reminded about medication. While such support is standard in most sheltered work arrangements, nonwork-specific support would need to be provided by the worker. Even where a worker could fund such support, personally, through charity, or state welfare, it is not always possible to have such support work interfere with an employer’s operations to provide all the support the worker may need. The barriers to transition from sheltered work to open employment are intense; however, some workers have managed to make this move and certain programmes are having significant success.59 Research suggests that sheltered workers who can transition to open work have an overall pay increase; however, they continue to earn less than workers without disabilities in similar jobs.60 One reason for their reduced income is the fact that the former

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Rosemary Lysaght, Klara Jakobsen and Birgit Granhaug, ‘Social Firms: A Means for Building Employment Skills and Community Integration’ (2012) 41(4) Work 455; Bhing-Leet Tan, ‘Hybrid Transitional-Supported Employment Using Social Enterprise: A Retrospective Study’ (2009) 33(1) Psychiatric Rehabilitation Journal 53. Susan Dlouhy and Patty Mitchell, Upcycling Sheltered Workshops: A Revolutionary Approach to Transforming Workshops Into Creative Spaces (2015) Ohio University Press; John Kregel and David H Dean, ‘Sheltered vs. Supported Employment: A Direct Comparison of Long-Term Earnings Outcomes for Individuals with Cognitive Disabilities’ in Achievements and Challenges in Employment Services for People with Disabilities: The Longitudinal Impact of

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sheltered workers are in paid work for only about half of a full-time work week, i.e. 23 hours per week.61

B Beyond Precarious Employment to Precarious Work: Unsheltered and Unregulated Work The second best option analysed in this section is where sheltered workers leave sheltered work for precarious work. This section will analyse the trend to encourage workers with disabilities into non-standard work options, which fall outside most employment and labour law regulatory protections. Employment remains by far the dominant way of arranging work. Organised labour has vehemently opposed the promotion and continuation of non-standard work arrangements due to the negative impact such work has upon labour conditions: a race to the bottom.62 Workers in precarious work arrangements are usually more vulnerable to exploitation and can be used to undercut the working conditions for workers who are in standard employment.63 Rather than opposing non-standard work, the CRPD adopts the radical approach of encouraging states to enable and support workers with disabilities to start their own businesses.64 Self-employment under the CRPD is not just tolerated; instead, this form of precarious work is actively encouraged as a means to realising the right to work.65

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Workplaces (May 2002) Virginia Commonwealth University; Laura C Hoffman, ‘An Employment Opportunity or a Discrimination Dilemma?: Sheltered Workshops and the Employment of the Disabled’ (2013) 16 University of Pennsylvania Journal of Law and Social Change 151, 579. Kate Cooney, ‘Work Integration Social Enterprises in the United States: Operating at the Nexus of Public Policy, Markets, and Community’ (2016) 7(4) Nonprofit Policy Forum 435. Sally Cowling, Robert LaJeunesse, William Mitchell and Martin Watts, ‘Work Choices: The Low Productivity Road to an Underclass’ (2006) 41(2) Australian Journal of Social Issues 221; Paul Harpur, ‘Work Choices: An International Comparison’ (2007) 6(1) QUT Law & Justice Journal 89; Helen Masterman-Smith and Barbara Pocock, Living Low Paid: The Dark Side of Prosperous Australia (2008) Allen & Unwin. Adrienne E Eaton, Susan J Schurman and Martha A Chen (eds), Informal Workers and Collective Action: A Global Perspective (2017) Cornell University Press; Camilo Rubiano, ‘Precarious Work and Access to Collective Bargaining: What Are the Legal Obstacles?’ (2013) 5 (1) International Journal of Labour Research 133; Chris Wright, ‘The Response of Unions to the Rise of Precarious Work in Britain’ (2013) 24(3) The Economic and Labour Relations Review 279. CRPD art 27(1)(f ). Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ 51.

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Persons with disabilities and their advocates have not promoted selfemployment because they are enthusiastic about precarious work structures. For many persons with disabilities, precarious work structures are embraced because they have been excluded by capital from work, and ignored by organised labour. Accordingly, persons with disabilities and their advocates are not necessarily embracing this model because they prefer it to standard employment; they are promoting it largely because the standard employment market has rejected them. Even where persons with disabilities are employed, their work situation is precarious as they encounter significant discrimination, are often the last hired, first fired and are overlooked for promotions.66 In this situation, it is understandable that persons with disabilities and their representatives have embraced an option that can enable persons with disabilities to exercise a discounted right to work. Precarious work exposes persons with disabilities to considerable and enhanced vulnerabilities. Unlike sheltered workshops or social enterprises,67 precarious work structures have not been developed to promote ability equality. Precarious work is arguably symptomatic of wider moves in the labour market that shifts risk to workers and redistributes more wealth to capital.68 What message does it send when the leading disability human rights convention promotes work arrangements which are outside most labour law protections? For precarious work to be widely adopted by lawmakers and persons with disabilities indicates that this work structure is well established in this highly vulnerable work population. While some workers with disabilities could benefit from the loss of all labour regulatory protections, suggesting that large numbers of sheltered workers should transition from sheltered work to precarious work is unlikely to result in improved working or living conditions for these workers. Workers without disabilities often collectivise to form unions to protect their interests. Other workers without disabilities hire lawyers and industrial relations advocates to represent their interests, while others attempt to negotiate on their own behalf. While many workers with disabilities are successful and can negotiate, research suggests that even lawyers with disabilities are reluctant

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Carrie Griffin Basas, A Collective Good: Disability Diversity as a Value in Public Sector Collective Bargaining Agreements (2013) 87 St. John’s Law Review 793, 807. Laura C. Hoffman, ‘An Employment Opportunity or a Discrimination Dilemma?: Sheltered Workshops and the Employment of the Disabled’ (2013) 16 University of Pennsylvania Journal of Law and Social Change 151; Lisa Schur, Douglas Kruse and Peter Blanck, People with Disabilities: Sidelined or Mainstreamed? (2013) Cambridge University Press. Judy Fudge, ‘Beyond Vulnerable Workers: Towards a New Standard Employment Relationship’ 151.

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to contest workplace discrimination against their employers.69 It seems highly probable that most sheltered workers, who are transitioning to precarious work arrangements, will struggle to advocate effectively for their rights. Accordingly, suggesting that sheltered workers should move from sheltered work to precarious work arrangements amounts to a reckless move that will reduce the realisation of rights.

C Non-Ideal Employment to No Employment: Experiences When Sheltered Workshops Are Closed Finally, this part will analyse the probability that many workers in sheltered work will transition from this work to unemployment and reliance upon charity and welfare. It is an unfortunate fact that many workers with severe impairments also confront substantial disabling barriers to their capacity to work. Consequently, there many people with disabilities who have never had the opportunity to work for a living. While it is possible that many of these workers could perform some valuable work in a sheltered work arrangements, the numbers of sheltered workshops have been reducing, and thus there are fewer work opportunities for millions of exceptionally vulnerable, hopeful workers. The CRPD Committee and disability rights advocates have identified the lack of transition from sheltered work to open work as evidence that sheltered work has failed to appropriately train and support workers. The fact workers remain in sheltered work could also be caused by the fact that the open labour market is not logistically or conceptually ready to absorb large numbers of severely impaired workers with disabilities. In other words, ableism at work is pervasive and institutionalised. It is possible to turn sheltered workshops into other modes of providing services and support.70 While collective and other models may enable many sheltered workshops to alter their structure, resourcing remains a key problem. To adjust the labour market sufficiently to enable all persons with disabilities to obtain work arguably requires something far more radical than the CRPD; it might only be achieved with massive economic and social change. So called ‘strong social model‘ scholars use Marxist critiques to identify how capitalist structures result in people with different abilities being excluded 69

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Paul Harpur, ‘Naming, Blaming and Claiming Ablism: The Lived Experiences of Lawyers and Advocates with Disabilities’ (2014) 29(8) Disability and Society 1234. Dague, ‘Sheltered Employment, Sheltered Lives: Family Perspectives of Conversion to Community-Based Employment’ 1.

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from the means of production, and thus are turned into second-class ability citizens.71 So called ‘non-radical social model’ scholarship also turns the focus away from impairment; however, these scholars employ a non-Marxist critique.72 The CRPD resulted from a negotiated outcome and is a very powerful document; however, its negotiation occurred between State parties and between lobby groups within individual states. The CRPD promotes a declaration of ability equality, but this paradigm has limits. The CRPD expects some people will not be able to exercise their right to work and does provide that universal access requires ability equality, to a point. The concept of reasonable accommodations is predicated on the concept that there is such a thing as an unreasonable accommodation. Where universal design and reasonable accommodations cannot realise ability equality then the worker needs to rely on a range of positive measures by states, such as incentives and quotas, and where this fails, state welfare. If the CRPD Committee mandated substantial labour market reforms as part of its stance against sheltered workshops, then this would at least minimise the impact upon millions of sheltered workers. Without mandating a real transition plan – one that targets both training workers with disabilities and radically adjusting the open labour market in which they will soon enter – the CRPD is unfortunately creating a framework which will result in many sheltered workers being denied their right to work. The risks in closing sheltered work has led to more considered regulatory responses. The notion that separate is not always bad has resulted in the emergence of anti-subordination theories. Anti-subordination scholars recognises that ‘separate’ has contributed to historic injustice.73 While two-track responses may create the risk of inequalities, such measures can also provide benefits if managed correctly. For example, Professor Ruth Kolker uses antisubordination to analyse how persons with disabilities’ rights to education, housing, and voting are regulated.74 Kolker argues that ‘[t]he mantra “separate

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Vic Finkelstein, Attitudes and Disabled people: Issues for Discussion (1980) World Rehabilitation Fund; Michael Oliver, The Politics of Disablement (1990) Macmillan. Paul Harpur, ‘Embracing the New Disability Rights Paradigm: The Importance of the Convention on the Rights of Persons with Disabilities’ (2012) 27 Disability and Society 1. Ruth Colker, ‘Anti-subordination Above All: Sex, Race, and Equal Protection’ (1986) 61 NYU Law Review 1003, 1007. Ruth Colker, Anti-subordination Above All: A Disability Perspective’ (2007) 82 Notre Dame Law Review 1415.

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is inherently unequal” needs to be replaced with the slogan “invidious segregation is inherently unequal”’.75 Using anti-subordination theory, Zoe Brennan-Krohn has argued persuasively that the immediate, full-scale dismantling of sheltered work is an oversimplified response, which fails to consider he diverse needs of all types of disabilities.76 When considering how to respond to sheltered work, the CRPD Committee and lawmakers need to consider how a particular impairment could impact upon the capacity of an individual to live, work, or learn in a less restrictive setting. Workers should never be forced, either directly or indirectly, to work in sheltered work, but preventing them from working in such settings could result in their right to work being denied.

v we know what is good for you: everything about you without you The previous section analysed the three most likely outcomes of mass redundancies of sheltered workers as they were forced to transition from their secure employment. This section will focus upon workers’ right to choose how they wish to exercise their right to work, and how this is balanced against protective labour market regulations. This part deals with the intersection of two very different historic and theoretical approaches to market regulation: disability and labour. It will then analyse how the sheltered worker voice can be gained and heard in the debate about how they are exercising their right to work and employment. A My Voice My Choice: Hear Me The disability community has the mantra of ‘nothing about us without us’,77 which was reflected in the drafting of the CRPD and now appears enshrined in how the CRPD approaches the regulation of rights.78 The CRPD was negotiated over five years via an Ad Hoc Committee that successfully rebutted paternalistic moves and promoted the concept of ‘nothing about us without

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Ibid, 1483. Brennan-Krohn, ‘Employment for People with Disabilities: A Role for Anti-subordination’ 239, 264. James Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment (1998) University of California Press. Paul Harpur, ‘“Nothing About Us Without Us: The UN Convention on the Rights of Persons with Disabilities’ (2017) Oxford Research Encyclopedia of Politics.

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us’79 through a ‘participatory justice dynamic’.80 This intrepid process was precipitated by a UN General Assembly resolution allowing access to the negotiations by all organisations enjoying consultative status with the Economic and Social Council, as well as other non-accredited organisations by application.81 Collectively, these resolutions opened the door for the inclusion of disabled people’s organisations (DPOs) as well as other non-governmental organisations (NGOs), and became the first instance in United Nations human rights treaty drafting history that affected stakeholders were formally involved in drafting processes.82 Further, State representatives relied heavily on DPOs for technical and practical information about the lived experiences of the targeted stakeholders.83 The substance of this interaction was ultimately reflected in the Ad Hoc Committee’s outputs as CRPD articles.84 The process of consultations is time consuming and expensive, but must be performed. It is not enough to say that all highly educated and articulate persons with disabilities agree. If this is a minority, is it fair to have their voice as the disability voice? I have a disability and can partially understand others with disabilities, but I cannot truly understand what it is like for many other people with disabilities. I was not born blind, but instead lost my eyesight at the age of fourteen. I was not institutionalised, but was instead mainstreamed, and within a few months was engaged in representative sport. My response to my disability has been cast as heroic and my sporting achievements drew positive media attention. I became a poster boy when I was in the Paralympics and was the fastest blind man in the world. I then went on to become a lawyer, academic and Fulbrighter. So how does my experience equip me to speak for 79

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Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1. Janet E Lord and Michael Ashley Stein, ‘The Domestic Incorporation of Human Rights Law and the United Nations Convention on the Rights of Persons with Disabilities’ (2008) 83 Washington Law Review 449. Decision on the Modalities of the Participation of the Accredited Non-Governmental Organizations in the Ad Hoc Committee to Consider Proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities, Presented by Mexico and Denmark on behalf of the European Union (2 August 2002). www.un.org/esa/socdev/enable/rights/adhocdecision2.htm. Janet E Lord, ‘Mirror, Mirror on the Wall: Voice Accountability and NGOs in Human Rights Standard Setting’ (2004) 5 Seton Hall Journal of Diplomacy and International Relations 93. Michael Ashley Stein and Janet E Lord, ‘Forging Effective International Agreements: Lessons from the UN Convention on the Rights of Persons with Disabilities’ in Jody Heymann and Adele Cassola (eds), Making Equal Rights Real: Taking Effective Action to Overcome Global Challenges (Cambridge University Press, New York 2012) 27, 34. Mario Levesque and Brynne Langford, ‘The Role of Disability Groups in the Development and Implementation of the UN Convention on the Rights of Persons with Disabilities’ (2016) 5 (4) The Canadian Journal of Disability Studies 63.

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people with disabilities? My first monograph was on print disabilities for a reason: I can talk about this group with strength. While I have friends who have a range of psychosocial impairments, and I have worked alongside members of this group and engaged in research, my voice is not their voice. Family members of people with psychosocial disabilities could have greater understanding than I; however, their voice should not replace the disabled voice. In the same way a husband should not be the voice of his wife in public affairs, a family member or friend should not substitute their voice for the voice of a person with a disability. The problem is that in the sheltered work debate the relevant disabled voice is not sufficiently heard.85 For example, Migliore et al. found that, when deciding about day services, some adults with intellectual impairments in sheltered work had concerns about safety, transportation, long-term placement, work hours, disability benefits, social environment, and work skills issues.86 Almost all sheltered workers desired improvements to their working conditions, but most workers would like more money and improved working conditions. What was more significant was the fact many workers would like to work in the open labour market if certain conditions could be met. Other research indicates that new forms of sheltered work arrangements are viewed positively by workers.87 What is vitally important moving forward is to understand the labour market conditions which would motivate sheltered workers to want and be able to transition to different forms of work and to then consider if this is economically, industrially and politically possible or impossible and to support sheltered workers to make informed choices. As a control group, it

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Alberto Migliore, Davi Mank, Tara Grossi, and Patricia Rogan, ‘Integrated Employment or Sheltered Workshops: Preference of Adults with Intellectual Disabilities, their Families and Staff’ (2007) 26 Journal of Vocational Rehabilitation 5. Migliore, Alberto, Teresa Grossi, David Mank, and Patricia Rogan, ‘Why Do Adults with Intellectual Disabilities Work in Sheltered Workshops?’ (2008) 28(1) Journal of Vocational Rehabilitation 29. Pearl Buhariwala, Robert Wilton and Joshua Evans, ‘Social Enterprises as Enabling Workplaces for People with Psychiatric Disabilities’ (2015) 30(6) Disability & Society 865; Cheryl Hiu-Kwan Chui, Michelle HY Shum and Terry YS Lum, ‘Work Integration Social Enterprises as Vessels of Empowerment? Perspectives from Employees.’ (2018) Asia Pacific Journal of Social Work and Development 1; Lanctôt, Nathalie, Marie-José Durand and Marc Corbière, ‘The Quality of Work Life of People with Severe Mental Disorders Working in Social Enterprises: A Qualitative Study’ (2012) 21(8) Quality of Life Research 1415; Nathalie Lanctôt, Marc Corbière and Marie-José Durand, ‘Job Tenure and Quality of Work Life of People with Psychiatric Disabilities Working in Social Enterprises’ (2012) 37(1) Journal of Vocational Rehabilitation 39; Robert Wilton and Joshua Evans, ‘Accounting for Context: Social Enterprises and Meaningful Employment for People with Mental Illness’ (2018)61(2) Work 1.

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would be helpful to understand why long-term unemployed people with disabilities, who desire some work, have not acquired work or considered sheltered work. The CRPD recognises that the experiences and needs of persons with disabilities is far from homogenous. Consequently, there is a significant need to ensure that persons with disabilities who are marginalised and disempowered due to their impairment type or intersecting attributes have their voices heard in the formation of policy and reforms.88 These processes must be disaggregated by impairment, severity and other intersecting sites of vulnerability. Where people have limited capacity or no capacity to communicate, the CRPD mandates that states abolish substituted decision-making in favour of supported decision-making.89 Substituted decision-making embraces the medicalisation of disability and involves a guardian speaking for and on behalf of the person with a disability in all economic, legal and medical matters.90 Under the impugned substituted decision-making process, a guardian determines the objective best interest of the disabled individual and acts on that basis. This approach allows a guardian to act in a manner contrary to the desires of the person whose interest they are charged with ‘guarding’. In contrast to substituted decision-making, supported decision-making recognises impairment is a part of diversity and involves mechanisms to empower persons with disabilities to exercise their own will and preferences.91 Supported decision-making processes take into consideration individual concerns, trauma, experiences with legal systems and levels of literacy.92 After factoring in all these considerations, communication barriers need to be identified and measures implemented to enable the voice of the person 88

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Paul Harpur and Michael Ashley Stein, ‘Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities: An Identity without a Home?’ (2018) 7 International Human Rights Law Review 1; Rebecca Yeo and Karen Moore, ‘Including Disabled People in Poverty Reduction Work: “Nothing About Us, Without Us”’ (2013) 31(3) World Development 571. Leslie Salzman, ‘Guardianship for Persons with Mental Illness: A Legal and Appropriate Alternative?’ (2011) 4 Saint Louis University Journal of Health Law and Policy 279, 284. Elionóir Flynn and Anna Arstein-Kerslake, ‘The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?’ (2014) 32 Berkeley Journal of International Law 134, 135–138. United Nations Committee on the Convention on the Rights of Persons with Disabilities, General Comment No. 1: Article 12: Equal Recognition before the Law (19 May 2014) UN Doc CRPD/C/GC/1. Irma H Mahone, Sarah Farrell, Ivora Hinton, Robert Johnson, David Moody, Karen Rifkin, Kenneth Moore, Marcia Becker, and Missy Rand Barker, ‘Shared Decision Making in Mental Health Treatment: Qualitative Findings from Stakeholder Focus Groups’ (2011) 25(6) Archives of Psychiatric Nursing e27, e35.

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with a disability to be heard.93 Research has identified the importance of supported decision-making in enabling women with intellectual disabilities to access domestic violence support,94 accessing health care,95 managing financial affairs.96 This chapter argues that supported decision-making must be applied to ensure sheltered workers are able to have their right to exercise choice respected. To empower sheltered workers requires informed choice. Before those who are supporting sheltered workers to exercise their voice can provide this support, it is important to understand all the factors that should be considered in that informing the choice. The decision about what to include and exclude in this process is itself a process which can empower and disempower real informed choice. Accordingly, deciding what information to include or exclude should also be subjected to pilots and extensive research using supported decision-making models. When deciding what information is relevant to sheltered workers, disability rights advocates can draw from the wider body of human resource management and industrial relations scholarship. This body of research shows what workers without disabilities consider when deciding where to work, and can be tailored to apply to sheltered workers. Importantly, remuneration and benefits are only one factor. Other issues include the hours of work remunerated and expected from workers, office culture, standing and prestige of the employer and co-workers, and growth and training opportunities with the employer. When applying these issues, workers consider their personal factors. These can include family responsibilities, financial pressure or even their motivation. After all, leaving economic and social circumstances aside, some workers decide to become lawyers and others lorry drivers; some want to work full-time as educators and climb the ranks and others are happy to work

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Penelope Weller, New Law and Ethics in Mental Health Advance Directives: The Convention on the Rights of Persons with Disabilities and the Right to Choose (2013) Routledge, 143–147. Heather Douglas and Paul Harpur, ‘Intellectual Disabilities, Domestic Violence and Legal ngagement’ (2015) 31(3) Disability and Society 305. Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to Be Free from Nonconsensual Psychiatric Interventions’ (2007) 34(2) Syracuse Journal of International Law and Commerce 405, 408; Michael L Perlin, ‘‘Striking for the Guardians and Protectors of the Mind’: The Convention on the Rights of Persons with Mental Disabilities and the Future of Guardianship Law’ (2013) 117 Penn State Law Review 1159; Penny Weller, ‘Supported Decision Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention’ (2008) 26(2) Law in Context 85. Terry Carney and Fleur Beaupert, ‘Public and Private Bricolage – Challenges Balancing Law, Services and Civil Society in Advancing CRPD Supported Decision Making’ (2013) 36(1) University of New South Wales Law Journal 175.

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casually and avoid the stress; some spend decades coming surgeons and others leave studies early and become cleaners. When applying worker decision-making models to sheltered workers, the impact of impairment is critical. As will be seen throughout this monograph, workers with psychosocial impairments are discriminated against, stigmatised, refused reasonable accommodations and even dismissed because they are different. The low pay and charitable model could appear oppressive and outdated; however, the acceptance of difference, granting of unreasonable accommodations, and other supports could make sheltered work attractive. B You Have My Voice, Now Help Me Use It: Disability Person Organisations It is not enough to hear the voices of individual sheltered workers. Once the individual workers are empowered, then they need to be provided the opportunity to collectivise. It is impossible for policymakers to continue to hear the voices of sheltered workers until their representative disability organisations are appropriately resourced – by disability person organisations, I mean organisations that are run by persons with impairments that represent people with those same impairments. The CRPD Committee has recognised that disability person organisations that represent persons with psychosocial impairments are poorly resourced. For example, the CRPC Committee’s Concluding Observation on Australia observed that not ‘all organizations of persons with disabilities, including those of persons with psychosocial disabilities, . . . are provided with adequate resources for their operations.’97

conclusion Labour theorists focus upon regulating work relationships to ensure the effective operation of society. On the one hand, labour market regulation is required to offset the power imbalance between individual workers and capital, while on the other hand labour market regulation is used to control the power workers can wield when they collectivise into trade unions. Labour market regulation always restricts the terms on which individual employers and employees can negotiate. Collective labour is driven by the notion of democratic workplaces, where workers join together to share in the production process. Inherent in this process is workers with a voice within their trade 97

Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, UN Doc CRPD/C/AUS/CO/1 (24 October 2013) 12.

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union to help set macro- and micro-reforms and can call upon their trade union if their workplace rights around voice are silenced by capital. For example, if a collective agreement entitles workers to be consulted, failing to consult in accordance with this agreement will likely result in industrial unrest and legal action. Labour provides all workers a voice to act collectively for their own benefit. The regulation of sheltered work relationships introduces an entirely new aspect into labour market regulation. Labour laws generally regulate nondisabled workers and, where they do consider workers with disabilities, approach this group as exceptions or special cases. The regulation of sheltered work, however, is directly targeted at workers with disabilities and how they can best exercise their rights. Labour laws impose upon work relationships a set of minimum conditions on the basis that the system is better able to ensure rights than the individual acting alone. The problem is that the conditions that are set make assumptions about the abilities of workers. When workers’ abilities are significantly divergent from the norm then the labour market protection may have unintended consequences. Disability rights advocates and scholars do not want disability sweatshops or persons with disabilities unemployed or underemployed. There is uniform acceptance that all persons with disabilities should be able to exercise their right to work; however, there is substantial disagreement how this should be realised for all workers. Whether sheltered work is good or bad divides the disability community; there are scholarly and impassioned works advocating persuasively for both sides of the sheltered work debate. Those who support the closure of sheltered work argue that all workers should be able to earn a minimum wage and work in the open labour market with support. They contend that efforts should focus on helping such workers to transition to the open labour market. A limitation with this approach is the fact that the open labour market discriminates against workers on the basis of impairment type and severity. Concerningly, the CRPD Committee has called for the closure of sheltered work without calling for the substantial labour market reforms which would enable millions of the most severely disabled workers to able to find meaningful, permanent and inclusive work. Without substantial labour market reforms, the closure of sheltered work will have a detrimental impact on persons with disabilities in such employment; a disproportionate number of whom have psychosocial impairments. At best, most sheltered workers will transition to either low-paid industries, where workers without disabilities are vulnerable and being exploited. Another work option is to encourage sheltered workers to leave the employment market and enter the largely unregulated precarious work market. Precarious workers are

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exceptionally vulnerable and workers with severe impairments would be even more susceptible to abuse. Unfortunately, it is probable that the closure of sheltered work will result in many workers going from low-paid work to no work. Underpinning the entire sheltered work debate is the perception that workers with physical and sensory impairments are tainted by stigma due to the continuation of sheltered work, while many workers with severe psychosocial impairments continue to work in such arrangements. The closure of sheltered work will therefore benefit some impairment groups, while forcing workers from other impairment groups to find alternative employment. It seems unlikely that many sheltered workers will be able to transition to more economically, emotionally, and developmentally positive work relationships. It is possible that alternative work could be achieved, but it is an economic gamble with the working lives of a high percentage of workers from one impairment category. Before this regulatory gamble is made, much more needs to be done to hear the voices of sheltered workers and to empower their disability representative organisations to engage in this debate.

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5 The Arbitrary Exclusion of Episodic and Psychosocial Disabilities from Legal Protection The Duration Test Promoting Ableism at Work

introduction Ability diversity is often associated with adversity. This monograph commenced by analysing the fact that people with disabilities who also have psychosocial disabilities attract particular stigma, which has negative economic and social consequences. Anti-discrimination and human rights laws are the primary means of combatting attribute-based discriminatory treatment. A key requirement for benefitting from such legal protections is being able to claim the mantle of disability. This chapter is the first of three chapters which will analyse how the disability human rights paradigm deals with the challenging issue of who should be constructed as disabled and who should not benefit from this mantle. This chapter will analyse how the duration test limits the capacity of persons experiencing episodic impairments from being defined as disabled for legal protections and support. Attribute-based remedial interventions target a particular group. Sorting society is challenging, especially when it is being applied across large populations with complex and varied experiences and needs. This chapter will analyse how some definitions of disability require that a medical condition is experienced for a particular duration of time before that condition will be regarded as a disability. When length of impairment is used in this fashion, the duration of a medical condition becomes an arbitrary factor that determines an entitlement to protection and support. This chapter is divided into three sections. Section I will define the concept of episodic disability and illustrate how this approach is focusing upon time rather than the presence of ableism at work. While some physical, sensory, mental and intellectual impairments can all be episodic in nature, Section I analyses how impairments associated with psychosocial disability are comparatively more likely to be intermittent and fluctuating when compared to other 81 Downloaded from https://www.cambridge.org/core. University of New England, on 10 Aug 2020 at 18:37:42, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108667371.006

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impairments. Accordingly, the law’s reluctance to accept episodic disabilities as genuine disabilities has a disproportionate impact upon persons with psychosocial disabilities. Section II will critically analyse the use of the duration test in the CRPD and how it has been applied to create hierarchies of impairments between disabilities that are experienced episodically and those that are experienced in a continuous, stable or permanent way. Section III will then analyse how national legal interventions embrace or reject duration tests when determining who is entitled to enjoy the mantle of disability. This chapter concludes that the decision to leave persons with episodic disabilities without adequate protections and support is not based upon a medical assessment, cost to employers or adherence to international norms. Instead, the arbitrary decision to deploy duration tests is based upon a failure to conceptualise how ability diversity manifests. As certain impairments are predominately or exclusively unpredictable and intermittent in nature, the law’s treatment of episodic disabilities is supporting a hierarchy of impairments in ableism at work.

i psychosocial disabilities as episodic disabilities A What Are Episodic Disabilities? Some impairments are static, while others are episodic or degenerative.1 Episodic disabilities include conditions where the experiences of impairment are unpredictable and intermittent in nature. These disabilities have fluctuating and reoccurring periods of wellness and unwellness.2 They create particular challenges for law and policymakers, as they require analysing and conceptualising the liminal state between disablement and non-disablement.3 While some physical disabilities are episodic in nature,4 most are related to psychosocial disabilities and disease. Episodic disabilities generally include a 1

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Tom Shakespeare and Nicholas Watson, ‘The Social Model of Disability: An Outdated Ideology?’ in Sharon N Barnartt and Barbara M Altman (eds), Exploring Theories and Expanding Methodologies: Where We are and Where We Need to Go (2001) Emerald Group Publishing, 9–28. Vic Boyd, ‘Are Some Disabilities More Equal than Others? Conceptualising Fluctuating or Recurring Impairments Within Contemporary Legislation and Practice’ (2012) 27(4) Disability & Society 459. Jean E Jackson, ‘Stigma, Liminality and Chronic Pain: Mind-Body Borderlands’ (2005) 32(3) American Ethnologist 332. A Deale, T Chalder and S Wessely, ‘Illness Beliefs and Treatment Outcome in Chronic Fatigue Syndrome’ (1998) 45(1) Journal of Psychosomatic Research 77; Jackson, ‘Stigma,

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range of psychosocial disabilities, such as bipolar disorder and epilepsy,5 along with those linked to diseases, such as cancer, HIV/AIDS and diabetes.6

B Episodic Disabilities Are Misunderstood Episodic psychosocial disabilities are well documented throughout history. The Roman dictator Julius Caesar had four documented episodes of what may have been complex partial seizures.7 Whether he experienced epilepsy or mini-strokes, his morbus comitialis was very disabling for short periods throughout his life. Despite advances in medicine, the prejudice and stigma which attached to Caesar’s disability is experienced by people with similar conditions today. A person experiencing an episodic disability often has the same physical presentation, regardless of whether they are experiencing negative symptoms.8 Many people in the community simply cannot accept that a person will show no sign of disability for nine days out of ten.9 The reliance on visual appearances contributes to disbelief and misunderstandings when a person asserts that their disability is hindering them from performing tasks.10 Rather than being accepted as a disability, such conditions are regarded as illness and a

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Liminality and Chronic Pain: Mind-Body Borderlands’, 332; Simon Wessely, Matthew Hotopf and Michael Sharpe, Chronic Fatigue and Its Syndromes (1998) Oxford University Press. Andrea Vick and Ernie Lightman, ‘Barriers to Employment among Women with Complex Episodic Disabilities’ (2010) 21(2) Journal of Disability Policy Studies 70; Margaret Vickers, Work and Unseen Chronic Illness: Silent Voices (2001) Routledge. Hannah Weinberger-Divack, ‘Redefining Disability: Increasing Efficiency and Fairness in SSDI’ (2011) 21 The Elder Law Journal 263, 284; Kelly K O’Brien, Ahmed M Bayoumi, Carol Strike, Nancy L Young and Aileen M Davis, ‘Exploring Disability from the Perspective of People Living with HIV/AIDS: Development of a Conceptual Framework’ (2008) 6 Health and Quality of Life Outcomes 7; Kelly K O’Brien, Aileen M Davis, Carol Strike, Nancy L Young and Ahmed M Bayoumi, ‘Putting Episodic Disability into Context: A Qualitative Study Exploring Factors that Influence Disability Experienced by Adults Living with HIV/AIDS’ (2009) 12 Journal of International AIDS Society 30. Francesco M Galassi and Hutan Ashrafian, ‘Has the Diagnosis of a Stroke Been Overlooked in the Symptoms of Julius Caesar’ (2015) 36(8) Neurological Sciences 1521; John Hughes, ‘Great Achievers amongst People with Epilepsy Through History’ in CP Panayiotopoulos, et al. (ed), Atlas of Epilepsies (2010) Springer 1413; Emmanouil Magiorkinis, Kalliopi Sidiropoulou and Aristidis Diamantis, ‘Hallmarks in the History of Epilepsy: Epilepsy in Antiquity’ (2010) 17(1) Epilepsy & Behavior 103. E McKee, Re-Examining the Role of Episodic Disabilities in the Workplace (2007) Canadian Arthritis Patient Alliance Voices. Pamela Moss and Isabel Dyck, Women, Body, Illness: Spaces and Identity in the Everyday Lives of Women with Chronic Illness (2002) Rowman and Littlefield Publishers 22–34. Andrea Vick ‘The Embodied Experience of Episodic Disability among Women with Multiple Sclerosis’ (2013) 28(2) Disability & Society 176.

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temporary variance from wellness.11 Living between wellness and unwellness constitutes a fusion between bodily experience and its interpretive construction.12 In addition to dealing with the their medical condition and the normal disabling barriers in society, people with episodic disabilities also must contend with disbelief and scepticism.13 The inability to conceive disability as being both stable and unstable, can lead to rejection and sanction rather than acknowledgement and support.14

C Difference between Episodic and Stable Disabilities at Work Problems can arise when workers experiencing episodic disabilities have unpredictable absences and potentially intermittent attendance at work.15 When managers and co-workers are aware of an episodic impairment, they disable such workers by imposing higher standards of attendance and performance upon them than experienced by people without such impairments. Workers with episodic disabilities need to do more than just attend work; they must satisfy, and be seen to satisfy, normative able-bodied ideals that demand high energy, speed, stamina, flexibility and productivity.16 Even if the worker appears well, employers are reportedly concerned about the uncertainty associated with illness trajectory and about future relapses which will hinder productivity.17 Accordingly, people experiencing 11

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Pamela M Ironside, Martha Scheckel, Constance Wessels, Mary E Bailey, Sharon Powers and Deana K Seeley, ‘Experiencing Chronic Illness: Cocreating New Understandings’ (2013) 13 Qualitative Health Research 2 171; Jackson, ‘Stigma, Liminality and Chronic Pain: Mind-Body Borderlands’ 332. Tanya Titchkosky, Disability, Self, and Society (2003) University of Toronto Press, 222. Sherry L Peters, ‘Having a Disability “Sometimes”’ (1993) 13 Canadian Woman Studies 4 26. Ernie Lightman, Andrea Vick, Dean Herd and Andrew Mitchell, ‘“Not Disabled Enough”: Episodic Disabilities and the Ontario Disability Support Program’ (2009) 29(3) Disability Studies Quarterly 4; Sharon Stone, ‘Must Disability Always be Visible? The Meaning of Disability for Women’ (1993) 13(4) Canadian Woman Studies 11; Carol Sveilich, Just Fine: Unmasking Concealed Chronic Illness and Pain (2005) Avid Reader Press. HS Fowler, ‘Employees’ Perspectives on Intermittent Work Capacity: What Can Qualitative Research Tell Us in Ontario?’ (Final Report, Social Research and Demonstration Corporation, 2011). Lisa A Schur, ‘Barriers or Opportunities? The Causes of Contingent and Part-Time Work among People with Disabilities’ (2003) 42(4) Industrial Relations 589; Robert Wilton and Stephanie Schuer, ‘Towards Socio-Spatial Inclusion? Disabled People, Neoliberalism and the Contemporary Labour Market’ (2006) 38(2) Area 186. Michael Shier, John R Graham and Marion E Jones, ‘Barriers to Employment as Experienced by Disabled People: A Qualitative Analysis in Calgary and Regina, Canada’ (2009) 24(1) Disability and Society 63; Andrea Vick, ‘Living and Working Precariously with an Episodic Disability: Barriers in the Canadian Context, (2014) 3(3) Canadian Journal of Disability Studies

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episodic disabilities can confront stigma and barriers to succeeding in the labour market, even where their condition has no impact upon their productivity.18 It is not surprising, therefore, that many workers with episodic disabilities decide not to disclose their condition, and instead seek to cope as best they can.19 People with episodic disabilities can find their outsider status magnified by hostility from segments of society who help workers with disabilities. There remains resistance within and outside the disability community as to whether all episodic disabilities should be regarded as disabilities for the purposes of remedial interventions.20 Some scholars construct of episodic disabilities as an illness, rather than as a disability. For example, Joy Beatty explains that the episodic disability, ‘chronic illness, is distinct from disability, with often variable symptoms’.21 She also points out that the research shows that career barriers stem from the illness itself (its symptoms and uncertainty), others’ reactions to illness, and institutional rules. Misconceptions about illness, pity, and perceptions that people with illness either cannot handle challenging work or that they will soon exit the workforce due to their illness were frequently mentioned’.22 Despite the fact workers in this study were substantially disadvantaged by disabling attitudes and systems, some have determined that the nature of the illness meant that these conditions should not be regarded as a disability.23

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1; Catherine Worthington, Kelly O’Brien, Elisse Zack, Eileen Mckee and Brent Oliver, ‘Enhancing Labour Force Participation for People Living with HIV: A Multi-Perspective Summary of the Research’ (2012) 16 AIDS and Behaviour 231. Vick and Lightman, ‘Barriers to Employment among Women with Complex Episodic Disabilities’ 70; Shalene Werth, ‘Managerial Attitudes: Influences on Workforce Outcomes for Working Women with Chronic Illness’ (2015) 26 Economic and Labour Relations Review 296. Valorie Crooks, Sharon Dale Stone and Michelle Owen, ‘Enabling University Teaching for Canadian Academics with Multiple Sclerosis through Problem Focused Coping’ (2011) 78(1) Canadian Journal of Occupational Therapy 45; M W Platt and S M Gifford, ‘Promoting Health through Promoting Work: The Dilemmas of Disclosure in the Workplace for Employers and for Australian Women Living with Hepatitis C’ (2003) 14(3) Health Promotion Journal of Australia 180. Heather Mack and Ian Paylor, ‘The Inclusion of People with Hepatitis C within Disability Studies’ (2017) 19(1) Scandinavian Journal of Disability Research 18. Joy Beatty, ‘Career Barriers Experienced by People with Chronic Illness: A U.S. Study’ (2012) 24 (2) Employee Responsibilities & Rights Journal 91. Ibid. Ibid.

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ii international disability norms: protecting by categories and not by need A Minority Group and Universalist Approach to Disability The question of how disability should be defined played out in the debates surrounding the formulation of the Americans with Disabilities Act of 1990 (ADA). Samuel Bagenstos observed that social model scholars were divided on whether civil rights laws should adopt either a minority group or universalist approach.24 Some disability scholars noted that identification of an oppressed group had enabled ethnic and racially oppressed groups in society to better advocate for their rights.25 The minority group approach constructs persons with disabilities as an oppressed group who are, when compared to other segments of society, disadvantaged by their membership of this group.26 Essentially, the minority group approach creates disabled and non-disabled identities,27 and considerable effort is directed towards defining tests to determine who is qualified for protection. This approach reflected the way in which disability persons groups have and continue to arrange themselves by reference to disability advocacy.28 While various movements have emerged that include people with disabilities, being categorised as having a disability remains a barrier to entry.29 The reliance on defining disability is regarded as a limitation with the minority group approach. Persons with disabilities are an oppressed group with limited power in society. Civil rights interventions seek to redress this disadvantage by altering the conduct of more powerful groups; thus, it is

24

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Samuel R Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009) Yale University Press, 20–21. Harlan Hahn, ‘Towards a Politics of Disability: Definitions, Disciplines and Policies’ (1985) 22 (4) The Social Science Journal 87, 94. Arlene S Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights (2015) Routledge, 47. Nick Watson, ‘Well, I Know this is Going to Sound Very Strange to You, but I Don’t See Myself as a Disabled Person: Identity and Disability’ (2002) 17(5) Disability & Society 509. For example, Canadian National Institute for the Blind, National Down Syndrome Congress; National Federation for the Blind, Vision Australia; World Federation of the Deaf; other groups have focused around specific issues and not impairments, such as: DisAbled Women’s Network Canada, International Disability and Development Consortium, International Paralympic Committee and Women With Disabilities Australia. See, for example, the Paralympics Movement and the extent to which it integrates different disabilities: Ian Brittain, The Paralympic Games Explained (2010) Routledge; David Howe, The Cultural Politics of the Paralympic Movement: Through an Anthropological Lens (2008) Routledge.

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foreseeable that powerful groups in society may seek to reduce their regulatory burden by lobbying to have the definition of disability read down. If the definition of disability does not capture all persons with disabilities, then this runs the risk of excluding people who need support and protection. Professor Arlene Kanter observes that ‘[a]lthough the minority group model seeks to provide greater political legitimacy to people with disabilities through their minority status, it also runs the risk of reinforcing the dichotomy between a “deserving” and an “undeserving” person with a disability.’30 Despite the risks inherent in the minority group approach, is it possible to advocate for the rights of a segment in society without defining who is in that segment? A Universalist approach to addressing ability inequalities avoids the need to adopt biological factors to determine who is ‘able’ and ‘disabled’. The social model identifies that barriers in society turn different abilities into disabilities. Universalists focus attention on removing barriers to ability equality. The Universalist approach argues that civil rights protection should be provided to everyone, regardless of their abilities, history, wealth or other status.31 The Universalist approach argues that society should incorporate everyone as far as possible, and civil rights should be able to be enforced by anyone who has had their rights infringed. Many human rights and civil rights regimes adopt Universalist approaches when prohibiting discrimination based upon sex or race. Under such laws, a man or woman – indigenous, African, Anglo-Saxon or Asian – all have their rights protected. Obviously, some groups require substantially more help due to historic injustices.32 Persons with disabilities who support a minority group approach are generally reluctant to have the definition of disability broadened. Elizabeth Emens explains the attitudinal risks that can flow if the definition of disability is broadened: ‘As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures.’33 In other words, if the percentage of population who is qualified as disabled is

30

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Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights 47–48. Samuel R Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009) Yale University Press, 20–21. Mike Oliver, ‘If I Had a Hammer: The Social Model in Action’ in John Swain (ed), Disabling Barriers, Enabling Environments (2004) Sage Publications; Susan Schweik, The Ugly Laws: Disability in Public (2009) New York University Press. Elizabeth F Emens, ‘Evolutions in Antidiscrimination Law in Europe and North America: Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act’ (2012) 60 The American Journal of Comparative Law 205, 206.

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substantially increased, then the economic and political resources to help people qualifying as disabled will be spread thin. This could result in people who have more established categories of disabilities ending up with reduced support. If all older persons with impairments began utilising disability antidiscrimination protection and support, which many of them could quite rightly claim,34 then this would result in an increased demand. If demand for support increases without a proportionate increase in the supply of resources, then this would result in other people with impairments receiving reduced protection. The Universalist approach to protecting disability civil rights would involve substantial social change around identity politics and to social institutions. Considering the pressure against the Universalist approach, it is not surprising that the minority group approach emerged dominant. This outcome means that the issue of how to draw the line between able and disabled remains heavily influenced by a legal test to determine when a range of abilities constitutes a disability and when it does not. B The CRPD Adopts the Minority Group Approach The United Nations Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities struggled to reach a consensus on how to determine who should benefit from the draft convention. Prior to the main debate on the definition of disability on 31 January 2006, there were five proposed approaches to defining disability.35 The European Union argued that the convention could operate without defining disability, and that a definition of disability was not needed. Costa Rica, Chile, Argentina, Mexico, Guatemala, Colombia, Peru, Uruguay, Brazil, Trinidad and Tobago, Panama, and El Salvador, proposed a definition that focused on the interaction between a person with an impairment and the environment without defining what constitutes an impairment.36 Kenya proposed a definition that 34

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Paul Harpur, ‘Old Age is Not Just Impairment: The Convention on the Rights of Persons with Disabilities and the Need for a Convention on Older Persons’ (2016) 37 University of Pennsylvania Journal of International Law 3, 1027; Paul Harpur and Nancy Pachana, ‘My Animal, My Support, and My New Home in a Retirement Village: Disability Discrimination, Assistance Animals and Old Age’ (2018) 11 Elder Law Review 1, 2. United Nations, ‘Daily Summary of Discussion at the Seventh Session’ (31 January 2006). www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm. Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Contribution by Governments: Costa Rica’ (16 January 2006) United Nations. www.un.org/esa/socdev/enable/ rights/ahc7cr.htm.

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defined impairments broadly, to include ‘physical, sensory, mental, psychological or other impairment, condition or illness’ and then determined there to be a disability when those impairments have a ‘substantial or long-term effect on an individual’s ability to carry out ordinary day-to-day activities’.37 Australia proposed a comprehensive definition which explored all impairments, potential impairments and imputed impairments.38 While the Australian approach would have included all episodic disabilities, the Kenyan approach would have excluded most impairments that are not stable. Ultimately, no definition of disability was included in the CRPD. Despite the inability to reach political consensus on defining ‘disability’, the CRPD does provide a guide to control its coverage.39 The primary explanation of disability appears in the purpose article: Persons 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.40

The CRPD article 1 contains a description of disability, drafted with open language as a non-exhaustive guide rather than a defining test. The open definition creates the possibility of expanding the scope of the definition.41 Such open approaches to defining protected groups have been adopted by reference to open-ended concepts such as ‘human dignity’.42 While open-ended definitions can be difficult to clearly determine, define, and thus, apply,43 there is a history of such definitions appearing in international human rights instruments. For example, the Universal Declaration of Human Rights adopts an open approach to defining who is protected by that

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United Nations, ‘Daily Summary of Discussion at the Seventh Session’ (31 January 2006). www.un.org/esa/socdev/enable/rights/ahc7sum31jan.htm. Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Contribution by Governments: Australia’ (16 January 2006) United Nations. www.un.org/esa/socdev/enable/ rights/ahc7australia.htm. Paul Harpur, ‘“Nothing About Us Without Us”: The UN Convention on the Rights of Persons with Disabilities’ (2017) Oxford Research Encyclopedia of Politics. CRPD art 1. Dagmar Schiek, ‘Organizing EU Equality Law around the nodes of “Race”, Gender and Disability’ in Dagmar Schiek and Anna Lawson (eds), European Union Non-Discrimination Law and Intersectionality (2011) Ashgate. Law v. Canada (Minister of Employment and Immigration) [1999] 1 SCR 497. This places significant lawmaking power in the hands of judges: Lawrence M Solan, The Language of Statutes: Laws and Their Interpretation (2010) The University of Chicago Press, 50.

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declaration: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’44 In the same vein, the CRPD explains that the definition of disability ‘includes’ people who satisfy all the other aspects of the definition. The use of the term ‘includes’ renders this definition nonexhaustive, open and capable of expansion. Even though the CRPD article 1 is capable of expansion, the language which appears in this article will influence laws and practices. C The Duration Test in the CRPD Arguably, the adoption of a duration test in CRPD article 1 may have a detrimental impact upon promoting disability inclusion. Article 1 explains that disability includes a range of impairments that are ‘long term’, but the CRPD does not explain when an impairment is of sufficient duration to qualify as ‘long term’. The duration test in the CRPD suggests that shortterm and medium-term impairments may not qualify as disabilities, unless article 1 is read widely.45 Even if impairment is experienced over a long time period, it remains an open question whether the reduction in abilities needs to be continuous. This is especially relevant with intermittent impairments, which are impairments where the person repeatedly suffers a reduction in abilities for a short period of time when they experience an episode, but collectively, these episodes of reduced abilities might last for a significant time period and have a significant impact on the life of the individual in question. The CRPD Committee has not provided guidance on whether episodic disabilities will satisfy the description of disability in article 1. However, the CRPD Committee has explained when a duration test requires too much impairment stability. In the Concluding Observations (COs) on Mongolia and Nepal the CRPD Committee explained that long term does not mean permanent. The CRPD Committee explained that Mongolia’s antidiscrimination laws ‘appears to be trapped by the concept of “permanent disability”’46 and that Nepal was erroneously fixated on ‘the concept of 44

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Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183 plen mtg, UN Doc A/810 (10 December 1948) article 2. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press, 167–169. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Mongolia, UN Doc CRPD/C/MNG/CO/1 (13 May 2015) 5.

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“permanent disability”’.47 The CRPD Committee has demonstrated that long term does not mean permanent; unfortunately, the CRPD Committee has not provided more guidance to date. While the CRPD Committee was rightly critical of the requirement for permanency in the COs on Mongolia and Nepal, it is concerning that the CRPD Committee did not comment on the use of the duration test in other jurisdictions. It is concerning that the CRPD Committee has not been critical of other jurisdictions which require impairments to be permanent. The CO on Hungary was silent on the use of the duration test in that state.48 This is curious, as Hungary’s Equalization Opportunity Law 1998 only provides protection where the disability places an individual at a ‘permanent disadvantage regarding active participation in the life of society’. As analysed below in this chapter, duration tests are at play in a number of jurisdictions, in particular the Equality Act 2010 (UK). It would be helpful for the CRPD Committee to increase its consistency and provide guidance where a duration test is too restrictive.

iii duration tests and disability discrimination and diversity laws Anti-discrimination laws prohibit discrimination based upon certain attributes or characteristics.49 Interventions that seek to protect and support people with certain attributes must ascertain who are beneficiaries of such interventions. Disability anti-discrimination laws vary in how they articulate the range of impairments they protect. Fixed protected attributes and grounds often fail to reflect the complexity and variety which is inherent in the human experience.50 The capacity of laws to reflect the real disadvantaged experience by people is more limited where arbitrary exclusions are adopted; for example, to further confine the protected class some statutes employ duration tests. Duration tests are used by disability anti-discrimination statutes to arbitrarily

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Nepal, UN Doc CRPD/C/NPL/CO/1 (13 April 2018) 7. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial periodic report of Hungary, UN doc CRPD/C/HUN/CO/1 (22 October 2012). Joanne Conaghan, ‘Intersectionality and UK Equality Initiatives’ (2007) 23 South African Journal on Human Rights 317, 324; Kate Malleson, ‘Equality Law and the Protected Characteristics’ (2018) 81(4) The Modern Law Review 598. Lizzie Barmes with Sue Ashtiany, ‘The Diversity Approach to Achieving Equality: Potential and Pitfalls’ (2003) 32 Industrial Law Journal 291; Nitya Iyer, ‘Categorical Denials: Equality Rights and the Shaping of Social Identity’ (1993) 19 Queen’s Law Journal 179, 187.

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control who is able to claim the mantle of disability. Duration tests are arbitrary as the duration of impairment may have no relevance to the level of disablement. For example, a person with an episodic disability who is bedbound for a random day every ten days, could find their employment opportunities more limited than a person who has a stable condition who is in a wheelchair. How long does a person need to experience impairment before that impairment qualifies as a disability? The answer varies across jurisdictions that rely upon a duration test. The federal statute in Australia extends protection to any impairment that ‘presently exists, . . .previously existed but no longer exists, . . .may exist in the future (including because of a genetic predisposition to that disability) . . .or is imputed to a person’.51 The Canadian statute also does not limit protection by reference to duration where it extends protection to ‘any previous or existing impairments’.52 Despite the normalisation to treat episodic disabilities by statute, courts have constructed such disabilities as not ‘mainstream’ and people that have such conditions as lazy or malingering.53 A lower Canadian court in Canada described an episodic impairment, chronic fatigue syndrome, as not being mainstream, even though there was a substantial number of people who had this condition when compared with mainstream impairments. This led Judith Mosoff to conclude that the reason the lower court, and subsequently the Canadian Supreme Court, discounted the particular impairment was based upon value judgments rather than the impact of the medical condition upon the individual.54 Other regimes operate on the basis that a reduction in abilities is not a sufficient impediment to qualify as a disability, unless that impairment is long term. The United Kingdom and the United States limit the definition of disability to long-term impairments.55 Unlike the CRPD, the Equality Act 2010 (UK) does define when an impairment is long term: one that has lasted 12 months, is likely to last at least 12 months, or is likely to last for the rest of the life of the person affected.56 If there is sufficient uncertainty whether or not an impairment will be experienced for this period of time, then the Equality Act 2010 (UK) provides that, unless the impairment is specifically named as a

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Disability Discrimination Act 1992 (Cth) s 4(h)-(k). Canadian Human Rights Act, RSC 1985, c H-6, s 10. Judith Mosoff, ‘Lost in Translation: The Disability Perspective in Honda V. Keays and HydroQuebec V. Syndicat’ (2009) 3 McGill Journal of Law and Health 137. Ibid. Equality Act 2010 (UK) s 6(1)(b). The Equality Act 2010 (UK) Schedule 1.

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disability, one that does not last at least 12 months does not count as a disability.57 The drafters of the Equality Act 2010 (UK) recognised that some episodic disabilities have a significant impact, which justified extending protection. Accordingly, the Equality Act 2010 (UK) schedule 1, section 6 names cancer, HIV infection and multiple sclerosis as disability under the Act. Interestingly, this list does not include any episodic disabilities associated with mental impairments. While the Act expressly recognises some episodic disabilities, the regulations expressly exclude others. For example, the Equality Act 2010 (Disability) Regulations 2010 (UK) reg 4(2) states that ‘seasonal allergic rhinitis’ is not a disability for the purposes of the Equality Act 2010 (UK). Seasonal allergic rhinitis is caused by genetic and environmental factors, is experienced episodically and can affect sleep, the ability to work, and the ability to concentrate. The episodic nature of mental illness has contributed to findings that conditions do not qualify as disabilities. For example, in Woodrup v. London Borough of Southwark, the English Court of Appeal held that a person who had received treatment for anxiety neurosis on several occasions over a period of seven years, including ongoing twice-weekly psychotherapy, was not disabled for the purposes of the statute.58 In the United States, an impairment will satisfy the ‘impairment’ and ‘record’ prongs of the Americans with Disabilities Act if it is experienced for any duration, even if it ‘is episodic or in remission’.59 If the person is filing suit under the ‘regarded as’ prong, then the person must be expected to have or actually have experienced impairment for longer than six months.60 The Canadian position highlights the challenges in not harmonising remedial definitions for disability. While some provinces have antidiscrimination laws, federally, Canada has promoted equality through a human rights regime.61 Canadian anti-discrimination and human rights laws have historically provided persons experiencing episodic disabilities with 57

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Anna Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40(4) Industrial Law Journal 359, 363–364. Woodrup v. London Borough of Southwark [2003] IRLR 111. 42 USC § 12102(4)(D); This reversed the pre-ADAA position. See, e.g. Soileau v. Guilford of Maine, Inc., 105 F 3d 12, 16 (1st Cir, 1997) (‘[Plaintiff] has failed to adduce any evidence that his impairment – the acute, episodic depression – will be long term’). 42 USC § 12102(3). The Charter of Human Rights and Freedoms appears in Part I of the Constitution Act 1982 being Schedule B to the Canada Act 1982 (UK). The Charter’s jurisdiction extends to all laws made in Canada, as well as regulations and policies created under such laws: Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624; Marni Tolensky and Stephen Lavender, The 2014–2015 Annotated Canadian Human Rights Act (2015) Thomson Reuters Canada, 2.

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limited protection.62 The position in Canada is complicated by the fact other laws afford anti-discrimination protection for persons experiencing episodic disabilities. Workplace anti-discrimination interventions also appear in industrial relations statutes. Some of these statutes afford greater recognition of episodic disabilities than anti-discrimination and human rights regimes. The Employment Equity Act (Canada), for example, aims to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by, inter alia, persons with disabilities.63 This Act expressly recognises the difference between permanent and episodic disabilities and provides protection to both according to need. Relevantly, section 3 defines that persons with disabilities ‘means persons who have a long-term or recurring physical, mental, sensory, psychiatric or learning impairment. . .’. Accordingly, a Canadian experiencing an episodic disability will be regarded as disabled depending upon the remedial regime utilised. There is a hierarchy of protections which places permanent and stable disabilities above disabilities that are episodic or intermittent in nature.64 After all, a person with a below-knee amputation may encounter minimal barriers to succeeding at work, while a person with a chronic episodic disability may confront substantial barriers to continuing in their employment. The only reason one of these hypothetical workers would enjoy anti-discrimination law, and the other not, is the way in which disability is constructed as a stable condition.

A Proving the Presence of a Psychosocial Disability Persons with psychosocial disabilities are far less able to satisfy the duration test compared to most other impairment categories. The duration test operates on the basis that predicable impairments are entitled to immediate protection, while impairments that are harder to diagnose are required to wait before they can claim the mantle of disability. Many physical and sensory conditions can 62

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Maia Abbas, ‘Employing Disability: Deconstructing Insufficient Protections for “NonMainstream” Disabilities’ (2015) 5(2) Western Journal of Legal Studies 1; Ernie Lightman, Andrea Vick, Dean Herd and Andrew Mitchell, ‘Not Disabled Enough’: Episodic Disabilities and the Ontario Disability Support Program’ (2009) 29(3) Disability Studies Quarterly 1041. The Employment Equity Act (Canada) s 1 explains that the short title should not include the year; s 2 for the purposes. Boyd, ‘Are some Disabilities More Equal than Others? Conceptualising Fluctuating or Recurring Impairments within Contemporary Legislation and Practice’, 459.

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be diagnosed within a short period of time. These diagnoses can usually predict whether the condition will continue for more than a year. This means that within a few weeks of an accident a person with a severed nerve will be able to claim the mantle of disability. A severed nerve will not regrow, and accordingly, the condition is permanent. Similarly, episodic diseases, such as HIV/AIDS or hepatitis, can have fluctuating symptoms; however, medical tests can definitively show the presence of the disease and show its duration. Most psychological and psychiatric conditions can take time to diagnose and can be difficult to predict long term. For example, a person who is experiencing an anxiety disorder will need to wait for at least a month before they will be diagnosed with a disorder. As many disorders can be treated, it will be unlikely that a psychologist will determine that the condition will continue for more than a year until they have attempted to treat the anxiety for a matter of months. This means a person who is experiencing anxiety that precludes them leaving the house and working may need to wait for six months or more before they can claim the mantle of disability. A person experiencing nerve damage that is less disabling could reasonably expect to be able to claim the diagnosis of disability within a few days of their accident. B Faking or Real: Challenges in Proving Episodic Disability Proving an episodic disability is medically real requires providing sufficient evidence to satisfy an often-hostile judiciary that the worker is entitled to protection.65 The judiciary has exhibited a reluctance to accept people are sufficiently disabled to qualify for anti-discrimination protections, notably in a string of United States Supreme Court judgments. Tens of millions of Americans with disabilities were not qualified for protection under the Americans with Disabilities Act of 1990 (ADA) for almost a decade of its operation.66 Following a string of United States Supreme Court judgments from 1999 many people who were diagnosed medically as disabled were not qualified as disabled under the ADA. In a trilogy of judgments, commonly referred to as the ‘Sutton Trilogy’, the United States Supreme Court found that people with disabilities who successfully mitigated the functional limitations of their impairments through the use of medication, prosthetics, auxiliary devices, 65

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Nancy J Sandoval, ‘Disabled Yet Disqualified: Is it “Unreasonable” to Demand Accommodations for Employees with Depression under the Americans with Disabilities Act?’ (2014) 17 Chapman Law Review 687; Franita Tolson, ‘The Boundaries of Litigating Unconscious Discrimination: Firm-Based Remedies in Response to a Hostile Judiciary’ (2008) 33 Delaware Journal of Corporate Law 347. 42 USC §§ 12101–12117.

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diet and exercise were not substantially limited in one or more major life activities, and thus could not qualify as disabled under the impairment prong in the ADA definition of disability.67 The distortion of the legal definition of disability was only corrected when the Americans with Disabilities Amendment Act of 2008 (ADAA) commenced operation.68 Other grounds used to limit the scope of disability anti-discrimination laws remain in operation. Persons with mental impairments have encountered difficulties in demonstrating that their impairment ‘substantially limits a major life activity’.69 For example, in Briand v. Advance Circuits, Inc., the Court held that symptoms flowing from major depression and schizoid personality disorder, that of getting along with other people, did not limit a major life activity within the purview of the pre-ADAA Americans with Disabilities Act.70 Thus, a worker that had difficulty in getting along with people at work due to their impairment was not sufficiently disabled for the Americans With Disabilities Act.71 In contrast, the Appeals Court in Jacobs v. N.C. Administrative Office of the Courts found that ‘a social anxiety disorder’ is a condition that interferes with a major life activity.72 The Court made reference to the Diagnostic and Statistical Manual of Mental Disorders, which describes social anxiety disorder as a condition that ‘interferes significantly with the person’s normal routine, occupational. . . functioning, or social activities or relationships’. The Court accepted these activities were major life activities and thus the disorder interfered with such activities. There are situations where people claim to have a psychosocial disability when they are either exaggerating or simply dishonest. There is conclusive evidence that some people erroneously claim to have psychosocial disabilities when they do not,73 which is most prevalent where people are bringing their 67

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Jill C Anderson, ‘Just Semantics: The Lost Readings of the Americans with Disabilities Act’ (2008) 117 Yale Law Journal 992. Stacy A Hickox, ‘The Underwhelming Impact of the Americans with Disabilities Act Amendments Act’ (2011) 40 University of Baltimore Law Review 419; Beth Ribet, ‘Naming Prison Rape as Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy’ (2010) 17 Virginia Journal of Social Policy and the Law 281. Michael L Perlin, ‘The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone?’ (1994) 8 Journal of Law and Health 15. Briand v. Advance Circuits, Inc., 976 F Supp 858 (D Minn, 1997). Jane Byeff Korn, ‘Crazy (Mental Illness under the ADA’ (2003) 36 University of Michigan Journal of Law Reform, 585, 603. Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015). Paul Harpur, Simon Bronitt, Peter Billings, Martie-Louise Verreynne and Nancy Pachana, ‘Regulating Fake Assistance Animals – A Comparative Review of Disability Law in Australia and the United States’ (2018) 24(1) Animal Law Review, 77; Harpur and Pachana, ‘My Animal,

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pets into areas where only disability assistance animals, service dogs or guide dogs are usually permitted.74 When an animal is classified as a disability assistance animal, guide dog or service animal, depending upon the statute, then that animal enjoys access rights.75 While there are benefits with bringing pets to work more generally,76 the circumstances in which workers fake a disability would be rare.77 Professors Sandra Sperino and Suja Thomas eloquently address the fakers and floodgates argument.78 They argue that there is no evidence that courts are flooded with unmeritorious employment discrimination suits. Considering the negative stigma that attaches to being identified as a person with a psychosocial disability, accompanied by the harm this can cause at work, it would seem most workers who claim to have a disability would either be speaking the truth as they understand it, or make a claim to reduce their chances of dismissal from a disciplinary investigation.

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My Support, and My New Home in a Retirement Village: Disability Discrimination, Assistance Animals and Old Age’, 2. For example, see the respective inquiries in California, United Kingdom and Australia: (i) Hearing on the Possible Use of Fake Service Dogs and Fake Identification by Individuals to Obtain Special Access to Housing, Public Places or Airports/Airlines for Their Animal (Background paper) (Senate Business, Professions and Economic Development Committee) (February 24, 2014), 11, http://sbp.senate.ca.gov/informationalhearings; (ii) The Equality Act 2010: the impact on disabled people, (Select Committee on the Equality Act 2010 and Disability) (Report of Session 2015–16), www.assistancedogs.org.uk/wp-content/uploads/2016/ 04/House-of-Lords-Select-Committee-Report.pdf; (iii) Reform of the assistance animal provisions of the Disability Discrimination Act (Australian Human Rights Commission)(Report of December 18, 2003). www.humanrights.gov.au/our-work/disability-rights/reform-assistanceanimals-provision-disability-discrimination-act ; Kristin Bourland, ‘Advocating Change within the ADA: The Struggle to Recognize Emotional-Support Animals as Service Animals’ (2009) 48 University of Louisville Law Review 197. Sandra D Dawson, ‘Protecting a Special Class of Animal: An Examination of and Recommendations for Enacting Dog Guide Protection Statutes’ (2004) 37 Connecticut Law Review 569; Paul Harpur, ‘The Convention on the Rights of Persons with Disabilities and Australian Anti-discrimination Laws: What Happened to the Legal Protections for People Using Guide or Assistance Dogs?’ (2010) 29(1) University of Tasmania Law Review 49; Rebecca Huss, ‘Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status of Companion Animals’ (2002) 86 Marquette Law Review 47; Rebecca Huss, ‘No Pets Allowed: Housing Issues and Companion Animals’ (2005) 11 Animal Law Review 6. Caitlin Hunter, Martie-Louise Verreynne, Nancy Pachana and Paul Harpur, ‘The Impact of Disability-Assistance Animals on the Psychological Health of Workplaces: A Systematic Review’ 29(3)(2018) Human Resource Management Review 400. There are also consequences for ‘faking’: Harpur, Bronitt, Billings, Verreynne and Pachana, ‘Regulating Fake Assistance Animals – A Comparative Review of Disability Law in Australia and the United States’ 77–97. Sandra F Sperino and Suja A Thomas, Unequal: How America’s Courts Undermine Discrimination Law (2017) Oxford University Press, chapter 8.

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In the rare situation where a worker exaggerates their situation, this itself provides grounds for requiring this worker to pass a psychiatric assessment or even dismissing them for dishonesty.79 In addition to contractual sanctions, faking can amount to fraud and there are a range of laws to sanction people for pretending to be disabled.80 In the United States for example, a number of jurisdictions have directly targeted people who lie about having a disability.81 For example, in Idaho and Kansas it is an offence to pretend to be disabled to obtain a benefit, and in Nebraska and Washington, it is an offence to pretend to be blind or to use a white cane or a guide dog if a person is not vision impaired. Several States have prohibited people from falsely claiming their pets to be service animals. For example, in North Carolina and Nevada the laws prohibit disguising a pet as an assistance or service animal82; in Florida the law prohibits conduct or verbal or written notice which disguises a pet as a service animal83; and in Utah, the prohibition against misrepresentation extends beyond written and verbal communication to the use of a distinctive disability service animal jacket.84 The prohibitions in New York and Texas are limited to fitting or using a harness.85 It is a misdemeanour to perpetrate disability assistance fraud in those jurisdictions where it is an offence. The penalties range from a maximum imprisonment of six months, to a fine not exceeding one thousand dollars, or both in California, to a small fine not exceeding $500 in Nevada. Considering the low probability of workers faking a psychosocial disability, combined with the range of legal sanctions available if faking does occur, it would seem courts and employers should be reluctant to read down workers claims to have a psychosocial disability.

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For example, in Thompson v. IGT (Australia) Pty Ltd [2008] FCA 994 the court found it was reasonable for an employer to direct a worker to have a psychiatric assessment where the worker had a history of frequent and unexplained absences from work. Harpur, Bronitt, Billings, Verreynne and Pachana, 'Regulating Fake Assistance Animals – A Comparative Review of Disability Law in Australia and the United States', 77–97. For example, Idaho Code Ann § 18-5811A (Unlawful use of assistance device or dog); Kan Stat Ann § 39-1112 (unlawful misrepresentations); Neb Rev Stat § 28-1313 (unlawful use of a white cane or guide dog; penalty); and, Wash Rev Code Ann § 70.84.060. NC Gen Stat Ann § 168-4.5; Nev Rev Stat Ann § 426-805. Florida Civil Rights Act, 30 Fla Stat Ann § 413.08. Utah Human Services Code, 62A Utah Code Ann § 62a-5b-106. New York Civil Rights Law, CVR § 47-b; Tex Hum Res Code Ann § 121.006.

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C Beyond Anti-discrimination Laws, How Do Other State Interventions Approach Episodic Disabilities? Similar to other psychosocial disabilities,86 employers misunderstand the nature of reasonable accommodations and are often reluctant to make changes to facilitate ability equality.87 Anti-discrimination laws operate as a shield against discriminatory treatment, and State support can act as a sword to seek out and reduce or remove barriers to disability inclusion at work; that is to say, rather than expecting employers to fund workplace modifications, State supports can fund the alterations. Where employers are concerned as to whether workers with disabilities are able to be efficient, State support is available in tax credits or subsidised disability wages.88 State support can be targeted towards people with long-term and permanent impairments, and thus be less available for people with episodic disabilities. This trend is evident in the Australian National Disability Insurance Scheme. Impairments will only qualify as disabilities for this scheme where the ‘impairment or impairments are, or are likely to be, permanent’.89 The capacity to access early intervention support is wider, however there remains a requirement that the impairment is likely to be permanent and not episodic. Accordingly, a person can access such support, inter alia, where they have one or more ‘identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent’.90 Similarly, the United States Social Security Disability Insurance scheme has previously discriminated against people with episodic disabilities. The Social Security Disability Insurance scheme is only available for people with severe impairments, and courts have interpreted ‘severe impairment’ as having a continuity element.91 This has resulted in courts finding that a person suffering anxious depression had a severe impairment, but this did not create an entitlement to the Social Security Disability Insurance scheme as it was not

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Reasonable accommodations are analysed in Chapter 7. Valorie Crooks, ‘Women’s Experiences of Developing Musculoskeletal Diseases: Employment Challenges and Policy Recommendations’ (2007) 29(14) Disability and Rehabilitation 1107; Heather Mack and Ian Paylor, ‘Employment Experiences of Those Living with and Being Treated For Hepatitis C: Seeking Reasonable Adjustments and the Role of Disability Legislation’ (2016) 15(4) Social Policy and Society 555. Francine Lipman, ‘Enabling Work for People with Disabilities: A Post-Integrationist Revision of Underutilized Tax Incentives’ (2004) 53 American University Law Review 393. National Disability Insurance Scheme 2013 (Cth) s 24(1)(b). National Disability Insurance Scheme 2013 (Cth) s 25(1)(i). Gribbins v. Comm’r Soc. Sec. Admin., 37 F App 777, 778–79 (6th Cir, 2002).

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experienced continuously for 12 months.92 Hannah Weinberger-Divack has observed that the ‘interpretation that an impairment must last continuously for twelve months does not accommodate individuals with mental illness or other disabilities’.93 The lack of State support for worker with episodic disabilities has been raised in Canada,94 the United Kingdom,95 and in other jurisdictions.96 The combination of States seeking to reduce welfare related funding, uncertainty about the nature of episodic disabilities and the resistance in the disability community to support people in this group, it is highly probable that State support for episodic disabilities will remain problematic. The lack of regulatory enforcement and support will continue to have a negative impact upon workers with disabilities seeking work.97

conclusion The duration test uses time as an arbitrary means to determine whether a medical condition is a disability or not. This requires lawmakers to determine how long a person needs to continuously experience symptoms to constitute a disability. There is arguably no basis for providing people that experience episodic disabilities lower levels of protection and recognition as those experiencing more stable and long-term impairments. The time that an impairment is experienced should not be taken as an arbitrary indicator of the extent of disablement. Should it matter whether impairment is experienced for six months or six years? For a person experiencing a sudden reduction of abilities short and medium term reductions in ability can be devastating. For example, 92 93

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Adams v. Barnhart, 279 Fed. Appx. 148 (3rd Cir, 2008). Hannah Weinberger-Divack, ‘Redefining Disability: Increasing Efficiency and Fairness in SSDI’ (2011) 21 The Elder Law Journal 263, 284. Michael J Prince, Canadians need a medium-term sickness/disability income benefit (January 2008) Caledon Institute of Social Policy; Senate of Canada, Standing Committee on Social Affairs, Science and Technology. Out of the shadows at last: Highlights and Recommendations (May 2006). Kayleigh Garthwaite, Clare Bambra and Jon Warren, ‘The Unwilling and the Unwell? Exploring Stakeholders’ Perceptions of Working with Long-Term Sickness Benefits Recipients’ (2013) 28(8) Disability and Society 1104. Ann C Hodges, ‘Modernizing Disability Income for Cancer Survivors’ 7(2018) 35 HOFSTRA Labor and Employment Law Journal 247; Kelly L Knudson, ‘California State Disability Insurance: Privatization Is the Answer to Employee Woes’ (2005) 40 University of San Francisco Law Review 53. Susan M Bruyere, William A Erickson and Sara VanLooy, ‘Comparative Study of Workplace Policy and Practices Contributing to Disability Non-Discrimination’ (2004) 29(1) Rehabilitation Psychology 28.

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an impairment which left a person unable to predict which day every fortnight they would be unable to work would be extremely damaging for that person’s career. It is unclear if that employee would receive protection under the CRPD, and that person would not have received protection under the Equality Act 2010 (UK). While there are grounds for limiting what duty holders should need to do to assist people with short and medium-term impairments, arguably this limitation should be contained in the duty provisions through a test of reasonableness, and not in the definition for who qualifies for protection. It is possible that the duration test in the CRPD and some statutory regimes may reduce the capacity of all people with psychosocial disabilities to satisfy the definition. This difficulty could be less of a problem for people with physical impairments. To satisfy the duration test for the CRPD a condition must be experienced for a long-term. In the Equality Act 2010 (UK) schedule 1, long-term is defined to mean a person has experienced a condition for more than a year, or it is predicted to last a year or the rest of the person’s life. The problem is with the arbitrary selection of a time period that has no scientific basis or foundation in the lived experience of persons with disabilities. Essentially, the medical facts are real; the inequalities are real; the way in which law and society is disabling is real; the value judgment that one condition is not worthy of protection and support is a social construct. People with non-mainstream disabilities are the minority of the minority. They are often treated as able by law, but unable when they attempt to exercise their right to work. Accordingly, they attract the disabling consequences of being an outsider, without the legal protections which support those with disabilities to exercise their right to work.

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6 Ability Apartheid at Work The Policy of Stigmatising and Excluding ‘Unacceptable’ Psychosocial Disabilities from Anti-discrimination Laws

introduction This chapter critically analyses the concerning treatment where laws and policies deem certain psychosocial disabilities ‘unacceptable’ by law and policymakers. This notion of the unworthy impairment goes much further than promoting healthy living. States encourage people to have a healthy diet, exercise and take care of themselves.1 This movement to be healthy does not result in exclusion from anti-discrimination laws for being merely acting unhealthy. Indeed, some jurisdictions go so far as to expressly include nonideal weight and physical appearance as a protected attribute.2 Employers have also recognised the benefits of healthy employees and introduced wellness programmes.3 These wellness programmes are sometimes voluntary and sometimes mandatory, either in practice or in fact. The programmes can have substantially detrimental impacts on people who are unfit by choice or have 1

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3

In response to the perceived obesity epidemic states have introduced sugar taxes, limited advertising, required teachers to inspect school K-12 lunchboxes, and a range of other measures: Noortje van Amsterdam, ‘Big Fat Inequalities, Thin Privilege: An Intersectional Perspective on ‘Body Size”’ (2013) 20(2) European Journal of Women’s Studies 155. The role of fatism/weightism and recognition of the problems created by discrimination based upon physical appearance has growing recognition with lawmakers: Tamara Hervey and Philip Rostant, ‘“All About That Bass”? Is Non-Ideal-Weight Discrimination Unlawful in the UK?’ (2016) 79(1) Modern Law Review 248. A number of anti-discrimination laws have been amended to include aspects of non-ideal physical appearance. The Australian State of Victoria’s Equal Opportunity Act 2010 (Vic) s 4, the Canadian Province of Ontario’s Ontarians with Disabilities Act 2001 s 2 and the Irish Equal Status Act 2000 (Ireland), s 2(1) defines disability to include malformation or disfigurement of the body. In the United States, non-ideal weight discrimination has no federal protection and limited state protection: William Corbett, ‘The Ugly Truth about Appearance Discrimination and the Beauty of Our Employment Discrimination Law’ (2007) 14 Duke Journal of Gender Law & Policy 143. Mattke Soeren, Christopher Schnyer and Kristin R van Busum, ‘A Review of the US Workplace Wellness Market’ (2013) 2 Rand Health Quarterly 4.

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protected attributes.4 Beyond disability, not all lifestyle choices are real ‘choices’.5 Healthism in society can result in inequalities and such health discrimination is often linked with other attributes.6 As a consequence, laws have regulated how these programmes can be implemented so that the programmes do not slip into disability discrimination.7 This chapter does not deal with laws and policies which seek positive health outcomes, but instead with laws and policies which seek to reduce the visible presence of certain psychosocial disabilities in society. The process of marking certain impairments as ‘unacceptable’, implementing policies to stigmatise and exclude such conditions, is unique to people with psychosocial disabilities. People are not excluded from antidiscrimination laws because they are blind, deaf, in a wheelchair, or are autistic. Law and policymakers have, however, identified a number of psychosocial conditions that are ‘unacceptable’ and excluded them from antidiscrimination laws and developed interventions to stigmatise and exclude such people from their human rights. The singling out of particular psychosocial disabilities for stigmatising and permitting discrimination on that attribute are designed to reduce certain forms of ability diversity in the community. In the past, some laws have deemed persons with disabilities as ‘ugly’ and criminalised their presence in public.8 Eugenic programmes have used sterilisation and euthanasia to mould species, and certain eugenic programmes continue to this day. Women with disabilities are forcibly sterilised, experience forced abortions and unborn babies with disabilities can be selected for late-term abortions.9 The laws and policies analysed in

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Emily Koruda, ‘More Carrot, Less Stick: Workplace Wellness Programs & the Discriminatory Impact of Financial and Health-Based Incentives’ (2016) 36 Boston College Journal of Law & Social Justice 135. Stephen D Sugarman, ‘Lifestyle Discrimination in Employment’ (2003) 24(2) Berkeley Journal of Employment and Labor Law 377, 410. Jessica L Roberts, ‘Healthism and the Law of Employment Discrimination’ (2014) 99 Iowa Law Review 571; Jessica L Roberts and Elizabeth Weeks Leonard, ‘What Is (and Isn’t) Healthism?’ (2016) 50 Georgia Law Review 833, 850; Jessica Roberts and Elizabeth Weeks, Healthism: Health Status Discrimination and the Law (2017) Cambridge University Press. Nondiscrimination and Wellness Programs in Health Coverage in the Group Market: Final Rules, 71 Fed Reg 75014-17 (13 December 2006). Susan Schweik, The Ugly Laws: Disability in Public (2009) New York University Press. Bethea How, Andy Smidt, Nathan J Wilson, Rebecca Barton and Chelsea Valentin, ‘‘‘We Would Have Missed Out So Much Had We Terminated”: What Fathers of a Child with Down Syndrome Think about Current Non-Invasive Prenatal Testing for Down Syndrome’ (2018) Journal of Intellectual Disabilities 1; Claire McKinney, ‘Selective Abortion as Moral Failure? Revaluation of the Feminist Case for Reproductive Rights in a Disability Context’

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this chapter do not deal with life and death, but instead deal with inclusion and equality in society. The selection and exclusion of certain psychosocial conditions as ‘unacceptable’ is a form of eugenics that goes against the disability human rights paradigm established in the CRPD. This chapter has three sections. Section I analyses how laws deem certain conditions unacceptable and target them for stigmatisation and isolation. This harsh treatment occurs even though some of the stigmatised conditions are regarded as lawful, yet immoral. The need to mitigate disability is a highly impugned concept and has been removed from most anti-discrimination laws. Section II of this chapter will analyse how this notion still applies against persons with certain psychosocial impairments to demonstrate how anti-discrimination laws pressure persons with certain psychosocial impairments to rehabilitate to gain protection. Section III analyses situations where a person can rehabilitate or not engage in the act deemed unacceptable; nevertheless, the exclusion from protection and support remains. The laws analysed in Section III adopt the position that, while the socially impugned act can be mutable, the stigma is immutable. An alcoholic or drug addict can be ‘clean’, but in some jurisdictions the stigma and exclusion from anti-discrimination laws remains. This approach can be counterproductive and result in people deciding not to seek treatment in order to avoid receiving the mark of having an unworthy disability. This increases the probability that a person will be unable to manage their condition, and the individual and society could be harmed. The Convention on the Rights of Persons with Disabilities (CRPD) promotes ability equality and the notion that everyone can be different.10 Laws analysed in this chapter adopt a different position: that certain impairments are being unworthy of support and are targets for stigmatisation. With such laws, it is immaterial that the person is potentially not hurting anyone or themselves and is acting entirely within the bounds of criminal laws. This chapter concludes that ability apartheid is damaging the capacity of persons with certain psychosocial impairments to exercise their human rights on an equal basis as others.

10

(2016) 36 Disability Studies Quarterly 1; Anita Silvers, ‘Philosophy and Disability: What Should Philosophy Do?’ (2016) 93(4) Res Philosophica 843. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

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i examples of psychological conditions that are deemed outside protection This chapter argues that the decision whether anti-discrimination law should permit a certain form of discrimination should not be made arbitrarily by excluding addictions from protection. Instead, whether discrimination should be permitted should be considered by reference to the defences, excuses and justifications that exist in anti-discrimination laws. While these other mechanisms have their limitations, this approach would ensure that people are not unfairly denied their human rights by the decision to exclude large numbers of persons with psychosocial disabilities from protection simply because they have an impairment that is deemed unacceptable. This section is divided into two subsections. The first section will analyse how ability apartheid operates against impairments which are deemed ‘unacceptable’ based on morality grounds which do not involve substance abuse. The second will analyse how people who have substance abuse conditions are excluded from anti-discrimination regimes and subjected to stigmatisation by public health initiatives. A Psychological Conditions Where Propensity for Conduct Deem Unacceptable in Society Psychosocial disability advocates have struggled against deeply embedded prejudice in society.11 Some people in the community are scared of people with psychosocial disabilities and desire that people with such disabilities be regulated.12 ‘Tough on crime’ public campaigns resist providing health support to prisoners, and link mental impairment and undesirable criminal conduct13 Indeed, popular culture and law go even further to construct the additional challenges confronting persons with disabilities in prison as their ‘just desserts’.14 This fear of the abnormal also gains purchase in cultural 11

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Bradley Lewis, ‘A Mad Fight: Psychiatry and Disability Activism’ in Lennard J Davis (ed), The Disability Studies Reader (2nd ed, 2006) Routledge 339. BA Pescosolido, J Monahan, BG Link, A Stueve and S Kikuzawa, ‘The Public’s View of the Competence, Dangerousness, and Need for Legal Coercion of Persons with Mental Health Problems’ (1999) 89(9) American Journal of Public Health 1339. Seena Fazel and John Danesh, ‘Serious Mental Disorder in 23000 Prisoners: A Systematic Review of 62 Surveys’ (2002) 359 Lancet 545; E Lea Johnston, ‘Vulnerability and Just Desert: A Theory of Sentencing and Mental illness’ (2013) 103(1) Criminal Law and Criminology 147. Beth Ribet, ‘Naming Prison Rape as Disablement: A Critical Analysis of the Prison Litigation Reform Act, the Americans with Disabilities Act, and the Imperatives of Survivor-Oriented Advocacy’ (2010) 17 Virginia Journal of Social Policy & the Law 281.

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imagery about disability,15 particularly about persons with psychosocial disabilities.16 The fear of difference results in stigma, sometimes rising to the level of disability hate crimes,17 sanism in the justice system,18 and discriminatory and regulatory frameworks which sanction people for having a particular impairment. Where does, and should, the law distinguish between conditions that cause harm to the community (such as paedophilia), activities that are morally questionable (such as polyamory),19 and ones that are self-destructive but does not harm others? To answer this question fully will require consideration of how the CRPD interacts with a range of other ethical and moral codes in society, balanced against economic and political reality. While this would be an interesting exercise, this is necessary to impugn laws in the United Kingdom, which arguably are contrary to the CRPD and almost every code of ethics and morality. The laws in question essentially sanction persons on the basis they may engage in an undesirable act. The Equality Act 2010 (Disability) Regulations 2010 (UK) provides that certain psychological conditions are not disabilities for the Equality Act 2010 (UK), regardless of whether or not a person acts upon those conditions or acts upon them in a way that is criminal. The conditions listed in reg 4(2) are: (a) (b) (c) (d) (e)

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a tendency to set fires; a tendency to steal; a tendency to physical or sexual abuse of other persons; exhibitionism; and voyeurism.

Tom Shakespeare, ‘Cultural Representation of Disabled People: Dustbins for Disavowal?’ in Len Barton and Michael Oliver (eds), Disability Studies: Past Present and Future (1997) The Disability Press 217. Elaine Sieff, ‘Media Frames of Mental Illnesses: The Potential Impact of Negative Frames’ (2003) 12(3) Journal of Mental Health 259; Heather Stuart, ‘Media Portrayal of Mental Illness and Its Treatments’ (2006) 20(2) CNS Drugs 99. Ivan Hare, ‘Free Speech and Incitement to Hatred on Grounds of Disability and Transgender Identity: The Law Commission’s Proposals’ (2015) 3 Public Law 385; Andreas Dimopoulos, ‘Balancing Disability Protection against Freedom of Speech: Should an Offence of Incitement to Disability Hatred Be Introduced?’ (2015) 1 Public law 79; Alan Roulstone, Pam Thomas and Susie Balderston, ‘Between Hate and Vulnerability: Unpacking the British Criminal Justice System’s Construction of Disablist Hate Crime’ (2011) 26(3) Disability & Society 351; Mark Sherry, Disability Hate Crimes: Does Anyone Really Hate Disabled People? (2010) Ashgate. Michael L Perlin, ‘The Sanist Lives of Jurors in Death Penalty Cases: The Puzzling Role of Mitigating Mental Disability Evidence’ (1994) Notre Dame Journal of Law, Ethics & Public Policy 239. See e.g. Bunning v. Centacare [2015] FCCA 280.

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While all of the above conditions can manifest in criminal activities, they can also be resisted by an individual, or acted upon in a socially acceptable manner. The non-mainstream sexual preferences mentioned above are all capable of being satisfied in a lawful manner between consenting adults. Curiously, the list does not expressly include those sexual preferences that cannot be satisfied in a lawful manner, such as the desire to have sexual relations with children. While paedophilia would come within the paragraph on desire to engage in sexual abuse, the nature of these desires and acts are, arguably, substantially different. The regulation of the sex industry provides a framework in which people with the above sexual preferences can seek lawful commercial means of satisfying their urges. After all, laws protect sex workers20 and prostitution laws facilitate spaces where unorthodox sexual preferences can be satisfied.21 The presence of certain psychological conditions should not automatically exclude a person from any protection, especially where the psychological condition may not negatively impact upon the capacity of the worker to perform their job or upon the employer’s business. It is foreseeable that a person could be working in an industry where manifestations of the impairment are not a problem and the worker may have acted reasonably. In such a hypothetical situation, the worker deserves the right to have their case of direct or indirect discrimination considered and assess if the discrimination is reasonable or justified. While it is desirable to sanction someone for engaging in criminal activities, it is not acceptable to sanction someone on the grounds that they may commit a criminal act at some point in the future. If a person has a desire to engage in an act that is criminal in nature, but that person refrained from engaging in harmful conduct, then this state of affairs would satisfy many moral codes of practice. If a person had a psychiatric assessment as having a propensity towards an unacceptable psychological condition, they could foreseeably be exposed to discrimination. If these impairments are not protected by anti-discrimination laws, then this may expose people who have not done anything wrong to unfavourable treatment. This could have the perverse effect of motivating a person to avoid seeking help and increase the probability that they will engage in acts that harm society.

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Chris Motyl, ‘Condom Sense: Regulating and Reforming Performer Health & Safety in the Adult Film Industry’ (2014) 32 Hofstra Labor & Employment Law Journal 217. Jane Scoular and Maggie O’Neill, ‘Regulating Prostitution: Social Inclusion, Responsibilization and the Politics of Prostitution Reform’ (2007) 47(5) The British Journal of Criminology 764.

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I argue that a hierarchy of impairments exists where the nature of an impairment is used to determine whether a worker is protected and supported, rather than the extent of impairment or capacity to work. Arguably, excluding people from protection because they have a higher propensity for crime is a situation unique to people with mental impairments. It is difficult to even imagine where physical and sensory impairments can be strongly connected with criminal acts. Indeed, the existence of physical or sensory impairment usually turns an act from criminal to a lawful act. For example, a blind person may accidentally walk past a cash register in a shop, but this is not criminalised on the basis that it is not intentional.22 Where laws sanction a person for having an impairment which could create an undesirable social outcome, one concerning aspect is that the person will experience sanction, not for committing a crime or engaging in a lawful act deemed unacceptable, but for being held to have the propensity for committing such an act based upon their impairment. The denial of rights to a person, on the basis that their mental condition could lead to criminal acts, is predicated on prejudice and arguably has no place in a society that embraces the disability human rights paradigm.

B Substance Abuse Addictions There has been sustained regulatory hostility to drug use. The ‘War on Drugs’ started in June 1971 when President Richard Nixon declared drug abuse to be ‘public enemy number one’.23 President Ronald Reagan expanded the War on Drugs and adopted a hard-line stance. The Anti-Drug Abuse Act of 1986 both imposed mandatory sentences and allocated USD $1.7 billion to the War on Drugs.24 The War on Drugs spread and was adopted in other countries across the globe.25 Over the intervening decades, trillions of dollars have been poured into combatting drugs in the community. Government policy is unlikely to alter simply because the War on Drugs has a negative impact

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Regulatory Offences Act 1995 (Qld) s 5(2), for example, excuses a person for leaving a shop without paying if they can demonstrate they had no dishonest intent. William N Elwood, ‘Declaring War on the Home Front: Metaphor, Presidents, and the War on Drugs’ (1995) 10(2) Metaphor and Symbol 93. Alyssa L Beaver, ‘Getting a Fix on Cocaine Sentencing Policy: Reforming the Sentencing Scheme of the Anti-Drug Abuse Act of 1986’ (2009) 78 Fordham Law Review 2531; Raphael Francis Perl, ‘Congress, International Narcotics Policy, and the Anti-Drug Abuse Act of 1988’ (1988) 30(2-3) Journal of Interamerican Studies and World Affairs 19. Julian Buchanan, ‘Drug Policy under New Labour 1997-2010: Prolonging the War on Drugs’ (2010) 57(3) Probation Journal 250.

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upon a particular group of people with disabilities; after all, the War on Drugs is widely regarded as racist, as the way in which the laws are drafted and enforced has had a massively negative impact upon African American communities across the United States.26 Beyond racism, the hostility to drug use has resulted in a situation where it is easier to obtain illicit drugs than it is to obtain medical support to break an addiction.27 In this regulatory climate, protecting people who are actually or potentially addicted to drugs is a difficult political proposition. Historically, anti-discrimination laws only extended protection to conditions that were mutable; that is, unable to be altered.28 The role of mutability has substantially shifted as the range of protected characteristics extended beyond race and gender to attributes which were more subject to change.29 The erroneous construction of addictions as personal choice – and undesirable choices at that – has resulted in alcohol and drug addiction being excluded from anti-discrimination protection in a number of jurisdictions.30 This can have profound effects on workers who are active or recovering alcoholics. Professors Dustin Riddle and Richard Bales provide a hypothetical example which illustrates the potential for injustice: Two employees arrive at work half an hour late. It is both employees’ first offense, and each is dealt with separately by the same supervisor. The first employee tells the supervisor that an alcoholic binge the preceding night caused her to oversleep. The supervisor fires her, explaining that it is company policy to terminate an employee who is late without a valid excuse. The second employee tells the supervisor that he is late for work because he overslept. This employee, however, receives only a verbal warning and suffers no further punishment.31

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Stephanie R Bush-Baskette, ‘The War on Drugs as a War against Black Women’ (1998) Crime Control and Women: Feminist Implications of Criminal Justice Policy 113; Graham Boyd, ‘Collateral Damage in the War on Drugs’ (2002) 47 Villanova Law Review 839; David Rudovsky, ‘The Impact of the War on Drugs on Procedural Fairness and Racial Equality’ (1994) 19 University of Chicago Legal Forum 237. Merrill Singer, ‘Why Is It Easier to Get Drugs than Drug Treatment in the United States’ (2004) Unhealthy Health Policy: A Critical Anthropological Examination 287. Aileen McColgan, Discrimination, Equality and the Law (2014) Hart Publishing, 84; Nitya Iyer, ‘Categorical Denials: Equality Rights and the Shaping of Social Identity’ (1993) 19 Queen’s Law Journal 179, 187. Kate Malleson, ‘Equality Law and the Protected Characteristics’ (2018) 81(4) Modern Law Review 598. Lindsay Lowe, ‘Does the ADA Allow Disability Policies to Treat Substance Use and Physical Health Conditions Differently?’ (2016) 29(1) Benefits Law Journal 31. Dustin Riddle and Richard Bales, ‘Disability Claims for Alcohol-Related Misconduct’ (2008) 82 St John’s Law Review 699, 734.

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Where medical experts determine an addiction is an impairment, prejudice and value judgments are the prime reasons these psychosocial impairments are expressly excluded in some jurisdictions. The reasons why people who abuse alcohol and drugs should be considered in determining how law and society should respond. Some people abuse alcohol and drugs to maintain the exceptional pressure placed upon them by their employers. While these people choose to take these substances rather than terminate their employment or being terminated, the extent to which this is a real choice is highly questionable. Truck drivers,32 pilots,33 and professionals are well known for taking performance enhancing substances to maintain the pace of work.34 Based upon the widespread use of performance enhancing drugs in university students trying to compete, the abuse of alcohol and drugs in professions is likely to continue.35 It is important to recall that alcohol and drug abuse is often lawful. Alcohol is lawful and widely consumed across the Global North. Many prescription drugs are lawfully acquired, and laws permit recreational use of various drugs. This can create contradicting legal responses. In the United States, while some state jurisdictions within the United State have laws which permit the use of Marijuana,36 the ADA does not protect the use of such a substance. Marijuana is unlawful under Federal laws, and the ADA expressly excludes from its definition of ‘qualified individual with a disability’ those individuals

32

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Michael Quinlan, Richard Johnstone and Claire Mayhew, ‘Trucking Tragedies: The Hidden Disaster of Mass Death in the Long-Haul Road Transport Industry’ (2006) Working Disasters 19; Claire Mayhew and Michael Quinlan, ‘Economic Pressure, Multi-Tiered Subcontracting and Occupational Health and Safety in Australian Long-Haul Trucking’ (2006) 28(3) Employee Relations 212. Guohua Li, Joanne E Brady, Charles DiMaggio, Susan P Baker and George W Rebok, ‘Validity of Suspected Alcohol and Drug Violations in Aviation Employees’ (2010) 105(10) Addiction 1771. Katerina P Lewinbuk, ‘Lawyer Heal Thy Self: Incorporating Mindfulness into Legal Education and Profession’ (2015) 40 Journal of Legal Profession 1. Ann P Fenton and John M Wunderlich, ‘Mental Doping: The Untold Story of Modern Law School Exams’ (2009) 38 Student Law 17; Niki Kiepek and Jonnie-Lyn Baron, ‘Use of Substances among Professionals and Students of Professional Programs: A Review of the Literature’ (2017) 26(1) Drugs: Education, Prevention and Policy 6; Tessie Smith, ‘Worshiping at the Altar of Progress: Cognitive Enhancing Drugs in Legal Education’ (2015) 40 University of Dayton Law Review 22; Alana E Toabe, ‘A Stimulating Education: The Ethical Implications of Prescription Stimulant Abuse by Law Students’ (2007) 30 Georgetown Journal of Legal Ethics 103. Jayden D Gray, ‘Marijuana and the Workplace: How High Are the Stakes for Employees’ (2017) 1 Utah Law Review, 60; Gregory A Hearing and Michael A Balducci, ‘Medical Marijuana’s Effect on Employment Law: The Highs, the Lows, and the Unanswered Questions’ (2017) 91(3) Florida Bar Journal 22.

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who currently engage in the illegal use of drugs.37 While the ADA does not extend protection to marijuana use, some state jurisdictions do. For example, in Arizona38 and Minnesota,39 anti-discrimination laws supplement statebased marijuana laws by permitting employees to test positive (subject to occupational safety and health (OSH) concerns). Other disability antidiscrimination laws in the state jurisdiction in the United States do not provide such protection.40 Other regimes distinguish between illicit drug use and medical drug use. Under the section 3602(h) of the Fair Housing Act in the United States, a handicap is defined not to include an addiction to a controlled substance. Addictions to substances that are not controlled, such as distilled spirits, wine, malt beverages, or tobacco, can still be regarded as disabilities for the Fair Housing Act. Leaving aside people who choose to abuse alcohol or drugs to cope with the high pace of work, many people can become addicted to drugs on the advice of medical specialists. Indeed,41 workers can become addicted to drugs following the advice of employer-funded doctors. In the United States, there are a range of responses to the national increase in use of opioids – legally and otherwise – in the workplace and the role workers’ compensation schemes have in managing the opioid epidemic.42 A report published by the Massachusetts Department of Public Health in 2018 linked a high percentage of opioid addiction, overdoses and related deaths in the state’s working

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James v. City of Costa Mesa, 700 F.3d 394, 397 (9th Cir. 2012). Public Health and Safety Act, 36 Ariz Rev Stat Ann § 36-2813(b) (2012). Health Code, Minn Stat § 152.32(3)(c) and (d) (2010). For a discussion of accommodations required under state anti-discrimination laws within the United States, see George Fitting, ‘Careless Conflicts: Medical Marijuana Implication for Employer Liability in the Wake of Vialpando v. Ben’s Automotive Services’ (2016) 102 Iowa Law Review 259, 274; Fitting observed that Ross v. RagingWire Telecomm., Inc., 174 P.3d 200, 204 (Cal. 2008) (holding that California’s Fair Employment and Housing Act ‘does not require employers to accommodate the use of [federally] illegal drugs’); Johnson v. Columbia Falls Aluminum Co., No. DA 08-0358, 2009 WL 865308, at 4 (Mont. 2009) (holding that Montana’s Human Rights Act required no accommodation for medical marijuana use); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518, 536 (Or. 2010) (holding that state law did not require an accommodation for an employee’s use of marijuana because federal law pre-empted it). For example, in Hawaii, Act 066 (17) was signed into law which responds to the nationwide epidemic relating to prescription pain-relieving drugs. Karen Rothkin and Elizabeth Hopkins, ‘Workers’ Compensation Prescription Drug Regulations: A National Inventory (2018) Workers Compensation Research Institute. Table 11 State Response to Opioid Use, All Payors as of January 1, 2018.

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population with a need to return to work rapidly after an injury, due to job insecurity, insufficient sick leave, and inadequate health care support.43 Anti-discrimination laws in the United Kingdom only extend protection to illicit drug addictions where the addiction was developed due to medical interventions. The Equality Act 2010 (Disability) Regulations 2010 (UK) reg 3(1) provides that an addiction to alcohol, nicotine or any other substance does not amount to an impairment for the purposes of the Equality Act 2010 (UK). Interestingly, reg 3(2) operates on the basis that not all addictions to alcohol, nicotine or any other substance should be excluded from protection: ‘addiction which was originally the result of administration of medically prescribed drugs or other medical treatments’ are disabilities for the Equality Act 2010 (UK). Presumably, the drafters of reg 3(2) drew a distinction between a person voluntarily taking certain substances and being guided to take such substances by a medical practitioner. In the former case, the addict is constructed as a willing actor in unacceptable conduct. In the latter case, the addict should be excused from culpability as they acquired the addiction in circumstances where they were blameless. Some jurisdictions provide discrimination protection for workers who are addicted to drugs. Drug and alcohol dependence are included within the definition of disability in the Canadian Human Rights Act s 25, and in Australia, the Federal Court has held that an addiction to opioids was a disorder and constituted a disability.44 Even in those jurisdictions which provide discrimination protection for alcoholics and drug addicts, employers retain substantial discretion in excluding substances from work. Indeed, various legislative regimes mandate that certain substances, such as smoking tobacco, cannot occur in certain work settings on public health grounds.45 Where alcohol and drug use can impact upon OSH, then courts have a

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Opioid-related Overdose Deaths in Massachusetts by Industry and Occupation, 2011–2015 (August 2018) Massachusetts Department of Public Health. www.mass.gov/files/documents/ 2018/08/15/opioid-industry-occupation.pdf. Marsden v. HREOC & Coffs Harbour & District Ex-Servicemen & Women’s Memorial Club Ltd [2000] 1619 FCA 55. See, for examples of such laws, in Australia: Smoke-Free Public Places Act 2003 (ACT); Smoking (Prohibition in Enclosed Public Places) Act 2003 (ACT); Smoke-free Environment Act 2000 (NSW); Tobacco and Other Smoking Products (Smoke-free Places) Amendment Act 2016 (Qld); in Canada: Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3; Smoke-free Places Act (C. 222, 2011) New Brunswick; Non-Smokers Health Protection Regulation (174/2004). Manitoba; in New Zealand: Smoke-Free Environments Regulations 2007 (NZ); in the United Kingdom: Tobacco Control Act 2015 (UK).

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history of empowering employers to sanction workers who use consume alcohol or drugs at work.46

ii is it reasonable to expect workers with psychosocial disabilities to rehabilitate to gain protection? This section analyses how anti-discrimination laws require or provide additional support to workers who are clean or rehabilitating from unacceptable psychosocial impairments. Workers with physical and sensory disabilities are not required to rehabilitate or obtain treatment to exercise their right to nondiscrimination. This section argues that workers should be able to benefit from disability anti-discrimination laws regardless of whether they are interested in seeking rehabilitation. It is contrary to the CRPD to expect persons with psychosocial disabilities to seek rehabilitation. In the first place, the choice to seek or refuse treatment lies with the individual.47 If the law is going to link benefits or sanctions to participation in rehabilitation programmes, this also raises the issue of who funds the rehabilitation. Employers can fund it through insurance or workers’ compensation schemes;48 however, in many other cases the worker will be required to self-fund treatment in part, or in full. Considering the expense of such treatment, is it reasonable to deny workers protection if they cannot fund treatment? This section firstly analyses when deciding to try for treatment provides protection and when deciding against it removes protection. It then goes on to analyse how laws can require workers to mitigate their disabilities to benefit from anti-discrimination laws. A Attempts to Rehabilitate Can Enliven Anti-discrimination Protections In some jurisdictions, the act of rehabilitation enlivens protections. For example, the ADA’s ‘safe harbour’ provision extends protection to addict 46

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See, for example, Jarrod Eather v. Whitehaven Coal Limited t/a Narrabri Coal Operations [2018] FWC 250 where Deputy President Sams upheld the dismissal of an underground mineworker who tested positive for THC and continued to have elevated levels of the drug in his system 22 days later, finding it the ‘only course of action open’ to the employer. The Fair Work Commission rejected the employee’s claim that he used the drug to manage pain from a neck injury, finding he was a regular recreational user of marijuana. Persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability: CRPD art 25(1) and CRPD art 15(2). Samuel Petsonk and Anne Marie Lofaso, ‘Working for Recovery: How the Americans With Disabilities Act and State Human Rights Laws Can Facilitate Successful Rehabilitation for Alcoholics and Drug Addicts’ (2018) 120 West Virginia Law Review 891.

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survivors who are actively participating in a supervised rehabilitation programme, providing: ‘those who have ceased using drugs and either begun or completed a supervised rehabilitation programme are qualified individuals’.49 Petsonk and Lofaso analysed how the ADA contains a safe harbour for workers with addictions who are enrolled in rehabilitation programmes providing the worker is not intoxicated at work or brings prohibited substances to work.50

B Mitigating an Impairment Is Normally Not Necessary Some anti-discrimination laws have been interpreted to require a person to mitigate their disability.51 There is a difference between mitigating a disability and curing a disability: a disability is mitigated if a person uses glasses to improve their eyesight; a disability is cured if corrective surgery alters a person’s ability to see without any corrective aids. Mitigating circumstances are immaterial in the CRPD, Australia, Canada, the United Kingdom and the United States. The CRPD and Australia’s statute are silent on the issue of mitigation. Whether a person can or cannot mitigate their impairment is not relevant to whether or not they have an impairment. The Canadian Human Rights Act is generally silent on mitigation; however, interestingly it does include some arguably self-induced impairments as disabilities.52 The United Kingdom and the United States’ statutes expressly exclude the impact of mitigating circumstances. In the United Kingdom, an ‘impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it, and but for that, it would be likely to have that effect’.53 The United States Supreme Court has a history of perverting the effect of the ADA by excluding disabilities where a person could mitigate the impact of their impairment on their life. Prior to the ADAA, the impact of mitigating circumstances significantly reduced the scope of the impairment prong. The United States Supreme Court in Toyota Manufacturing, Kentucky, Inc. v. Williams narrowed the concept of substantial limitation, while retaining 49 50

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McDaniel v. Miss. Baptist Med. Ctr., 869 F. Supp. 445, 450 (S.D. Miss.1994) Petsonk and Lofaso, ‘Working for Recovery: How the Americans With Disabilities Act and State Human Rights Laws Can Facilitate Successful Rehabilitation for Alcoholics and Drug Addicts’, 105. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press 176–177. Canadian Human Rights Act, RSC 1985, c H-6, s 25 extends the definition of disability to include a previous or existing dependence on alcohol or a drug. Equality Act 2010 (UK) schedule 1, s 6.

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its emphasis on the impact of the impairment on the individual.54 The United States Supreme Court focused on ‘the effect of that impairment on the life of the individual’, rather than on the nature of the impairment.55 The Court found that a ‘demanding standard’ should be applied to determine whether or not a person was disabled.56 Disability was determined by reference to medical assessments, and how the individual was actually limited in their life activities. Professor Elizabeth Emens explained that the inclusion of mitigating factors in the definition of disability meant that ‘plaintiffs who have mitigated their disabilities [were] considered in their mitigated state; thus, a person who has successfully mitigated was excluded from protection under the statute’.57 The ADAA corrected this position so that plaintiffs are now to be considered without regard to the ameliorating effects of any mitigating measures (other than ordinary eye glasses or contact lenses).58 Arguably, it is unreasonable to expect a person to undergo surgery, significant psychiatric or psychological treatment to mitigate their condition to entitle that person to claim protection. In contrast, if a person can avoid significant commercial costs on others by taking minor steps, is it reasonable to require that person to take those steps?

C Should the Decision to Refuse Treatment Be Relevant in Considering What Are Reasonable Accommodations? There is a distinction between refusing treatment for physical or sensory impairments and psychiatric impairments. Scientific evidence demonstrates that certain addictions are immutable or only mutable following extensive medical treatment. If a person with a spinal condition decided to stop physiotherapy or not to have an operation, their employer would still have duties to provide a work station that the worker can use. If a person decided not to use laser treatment and wear corrective spectacles, then this choice would be accommodated in the workplace. Should employers accommodate people

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Toyota Motor Mfg., Ky., Inc. v. Williams, 534 US 184, 198 (2002). Stacy A Hickox, ‘The Underwhelming Impact of the Americans with Disabilities Act Amendments Act’ (2011) 40 University of Baltimore Law Review 419, 433. Toyota Motor Mfg., Ky. v. Williams, 534 US 184 (2002). Elizabeth F Emens, ‘Evolutions in Antidiscrimination Law in Europe and North America: Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act’ (2012) 60 The American Journal of Comparative Law 205, 212. 42 USC § 12102(4)(E); Michael Ashley Stein, Anita Silvers, Bradley A Areheart and Leslie Pickering Francis ‘Accommodating Every Body’ (2014) 82 Chicago Law Review 689, 716.

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with psychiatric impairments who decide to stop treatment? Some courts have held such workers should not be accommodated.59 Considering the negative side effects of psychiatric interventions, and sometimes irreversible personality and neurological damage, there is a strong human rights argument providing that people have the right to refuse treatment or seek alternative treatments.60 If a person elects not to undergo the medical treatment or if the treatment is not successful, should that impact on the capacity of that person to benefit from anti-discrimination protection? In Re York Region Board of Education a teacher decided to stop taking the prescribed medicine to control his psychiatric condition.61 It was accepted that the failure to treat the condition resulted in the teacher exhibiting inappropriate behaviour towards students, colleagues and parents. The Arbitration Board refused to reinstate the teacher holding: [A]fter considering the conduct, and his underlying medical condition, we determine that there was cause for disciplining the teacher, in that he was the author of his own misfortune by going off Lithium when he knew, or ought to have known, that it might negatively affect his behaviour and adversely affect his teaching situation . . . [I]t is our view that the teacher has simply waited too long to accept proper medical advice and to seek accommodation.62

Considering the significant complications that psychiatric medication and treatment can cause, it was interesting that the tribunal here constructed the decision to refuse treatment as a blameworthy choice. The wording of the tribunal suggests that if the conduct was caused by a change in treatment initiated by treating medical practitioners, then the inappropriate conduct would have been attributed to the teacher’s worthy act of following medical advice. This approach raises some difficult issues around how should a worker changing their treatment plan discuss it with their employer, and how much

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Tess Sheldon, ‘It’s Not Working: Barriers to the Inclusion of Workers with Mental Health Issues’ (2011) 29 Windsor Yearbook of Access to Justice 163. Julio Arboleda-Flórez and Heather Stuart, ‘From Sin to Science: Fighting the Stigmatization of Mental Illnesses’ (2012) 57(8) Canadian Journal of Psychiatry 457; Peter C Gøtzsche, Allan H Young and John Crace, ‘Maudsley Debate: Does Long Term Use of Psychiatric Drugs cause More Harm than Good?’ (2015) The BMJ 350; Tina Minkowitz, ‘CRPD Advocacy by the World Network of Users and Survivors of Psychiatry: The Emergence of an User/Survivor Perspective in Human Rights’ (2012); Anna Nilsson, ‘Objective and Reasonable? Scrutinising Compulsory Mental Health Interventions from a Non-Discrimination Perspective’ (2014) 14(3) Human Rights Law Review 459. Re: York Region Board of Education (2000) 84 LAC (4th) 90 (Ontario Labour Arbitration). Ibid., 103.

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treatment is it reasonable should be required? For any person, discussing private health issues with their employer is challenging. This is obviously a more challenging prospect for workers who are living with highly stigmatised disabilities.

iii the mutability of the condition and the immutability of the legal and social stigma: can workers remove the outsider identity once marked? This section will analyse how the approach of excluding impairments from anti-discrimination laws has a permanent impact. A person who has a psychological tendency to light fires may never act upon this desire but may equally never entirely be free from its influence.63 Equally, people who are addicted to alcohol and drugs are often called clean but cannot be entirely ‘cured’.64 This means the label will remain for life. Since the presence of the label can take a person outside protection and support, this can have unjust long-term damaging impacts. This section will analyse how it is counterproductive to exclude people from protection who are resisting any harmful manifestations and compare the treatment of people who are excluded because they may commit an act deemed ‘unacceptable’ to those who have been convicted of crimes.

A Counter-Productive to Deny Protection Addictions are lifelong, and a person will live with the feelings for life. People with addiction impairments can become clean and essentially recover.65 Having a desire to do something morally questionable, resisting and deciding not to do it is an act that should be applauded and supported. Avoiding the

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Paul RS Burton, Dale E McNiel and Renée L Binder, ‘Firesetting, Arson, Pyromania, and the Forensic Mental Health Expert’ (2012) 40(3) Journal of the American Academy of Psychiatry and the Law 355. Ronald D Inman and Kathryn Kornegay, ‘Exploring the Lived Experience of Surviving with both Alcoholism and Diabetes’ (2004) 15(2) Journal of Addictions Nursing 65. William L White, ‘Recovery/Remission from Substance Use Disorders: An Analysis of Reported Outcomes in 415 Scientific Reports, 1868–2011’ (2012) Philadelphia Department of Behavioral Health and Intellectual Disability Services and Northeast Addiction Technology Transfer Center.

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substance abuse associated with addiction can have positive health outcomes almost immediately.66 Where a worker is excluded from anti-discrimination protection due to the type of their addiction, the exclusion from protection can apply even where an addicted worker has gone through a treatment programme and has remained ‘clean’ for years. Even though society demands addicts fight their addictions, and despite the fact society has a considerable interest in addicts remaining ‘clean’ and engaged in mainstream society, anti-discrimination laws often do not support the survivor of addiction. Even if anti-discrimination laws all accepted addictions as disabilities, this only prohibits direct and indirect discrimination where there is no business case for discriminating against the person. An addict who was intoxicated at work or engaging in other dangerous or unacceptable conduct could be lawfully sanctioned. The business case for exclusion is a common concern through this part of the monograph. As the most likely reason for excluding a person with an addiction is on the grounds of health and safety, this chapter will reference how OSH and addiction intersect, but will leave a detailed analysis to the subsequent chapter in this monograph that focuses on the intersection between OSH and ability diversity at work. Laws should not deny people with addictions from protection and support based upon value frameworks which rely on prejudice against certain impairments. In addition to denying people their human rights, refusing antidiscrimination law protection to people with psychosocial disabilities inhibits their capacity to manage the harmful aspects of their impairment. People with psychosocial disabilities can internalise the negative stigma attaching to their condition.67 This internalising process is referred to in disability scholarship as internalised ableism.68 Accordingly, negative public stigma about addictions and other psychosocial disabilities can be counterproductive when it demotivates the person experiencing the disability.69 66

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Julia van Eijk, Traute Demirakca, Ulrich Frischknecht, Derik Hermann, Karl Mann and Gabriele Ende, ‘Rapid Partial Regeneration of Brain Volume during the First 14 Days of Abstinence from Alcohol’ (2013) 37(1) Alcoholism: Clinical and Experimental Research 67. Patrick W Corrigan, Amy C Watson and Leah Barr, ‘The Self-Stigma of Mental Illness: Implications for Self-Esteem and Self-Efficacy’ (2006) 25(8) Journal of Social and Clinical Psychology 875. F Kumari Campbell, ‘Exploring Internalised Ableism Using Critical Race Theory’ (2008) 23(2) Disability & Society 151; Fiona Campbell, Frontiers of Ableism (2009) Palgrave Macmillan 16–29; Donna Reeve, ‘Disgust and Self-Disgust: A Disability Studies Perspective’ in Philip A Powell, Paul G Overton and Jane Simpson, The Revolting Self (2015) Routledge 201. S Evans-Lacko, E Brohan, R Mojtabai and G Thornicroft, ‘Association between Public Views of Mental Illness and Self-Stigma among Individuals with Mental Illness in 14 European

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Excluding people from protection due to a psychosocial disability is likely to have direct economic and social consequences. In particular, the person is likely to be out of work.70 Work can help fund treatment and provides the individual a source of self-worth.71 Recognising the lack of protection and negative role of stigma, there is a countermovement that helps support persons recovering from stigmatised psychosocial disabilities back into work.72 Considering billions of dollars are spent each year on combatting drug-related crime and health and welfare costs associated with addiction, law and society should be doing all it can to support addiction survivors and not placing additional barriers in their way.

B Criminal Spent Conviction Laws Have Time Limit Where ‘Unaccepted’ Psychosocial Impairments Do Not The approach of marking and stigmatising a person because they have the potentiality of engaging in a criminal act goes against the rule of law. People are presumed innocent until proven guilty. To remove a person from protection and to expose them to economic and social sanction based only upon a medical assessment effectively grants the medical assessment a status it does not warrant or deserve. A person may commit a crime, or they may not. The presence of a tendency to commit a crime is not a reason to sanction a person. While it is true a person who has a psychological condition which makes them more likely to set fires has a tendency to set fires, people in financial trouble could be more likely to commit financial crimes, and young people are more likely to speed in their motor vehicle. Law and society do not normally sanction people until they have committed a crime. Law should adopt the same approach when it comes to psychosocial disabilities.

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Countries’ (2012) 42(8) Psychological Medicine 1741; Bruce G Link, Elmer L Struening, Sheree Neese-Todd, Sara Asmussen and Jo C Phelan, ‘Stigma as a Barrier to Recovery: The Consequences of Stigma for the Self-Esteem of People with Mental Illnesses’ (2001) 52(12) Psychiatric Services 1621. Sigurdur Oli Sigurdsson, Brandon M Ring, Kristen O’Reilly and Kenneth Silverman, ‘Barriers to Employment among Unemployed Drug Users: Age Predicts Severity’ (2012) 38(6) American Journal of Drug and Alcohol Abuse 580. Robert M Schacht and Margie White, ‘Improving Employment Outcomes for American Indians and Alaska Natives with Alcohol Dependency: Vocational Rehabilitation Strategies’ (2003) 2(4) Journal of Ethnicity in Substance Abuse 31. Joseph Pete, Abdoulaye Diallo, Cahit Kaya, Jessica Brooks, Mickey Allen, Jille Bezyak and Fong Chan, ‘Vocational Rehabilitation as a Public Health Intervention for Young African American Men with Substance Use Disorders’ (2015) 43(2) Journal of Vocational Rehabilitation 149.

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Even if a person has engaged in the socially undesirable conduct, in many cases the act itself may not be unlawful. Being an alcoholic is not a crime, nor is engaging in non-standard sexual practices between consenting adults. Why then are such people stigmatised? Moreover, even if they are stigmatised by law, why is the mark against the person permanent? This permanent mark against a person treats persons with psychosocial disabilities marked out as ‘unacceptable’ as being worse than people who have committed crimes and gone to jail. Criminal history checks are often required during a recruitment process and are an ongoing requirement in certain sectors.73 People who commit minor crimes often have no conviction recorded and, subject to special laws, need not disclose their criminal history to their employers.74 In order to facilitate the rehabilitation of offenders, after a certain period of time convictions become spent.75 For example, convictions for adults in Australia generally become spent 10 years after the terms of the order have been satisfied.76 Once a conviction is spent, then any person that knows the conviction is spent is prohibited from disclosing it except for limited circumstances. In addition, the criminal who has the spent conviction can deny having a conviction if asked. The presence of private online criminal record databases, combined with the capacity to mine social media, has significantly reduced the effectiveness of laws that protect people against spent conviction discrimination.77 Nevertheless, it is a curious situation where a person can commit a crime and serve their time, but a person can get marked as having a psychosocial disability, potentially for life.

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For a discussion of the importance of criminal history checks, see: James Jacobs and Tamara Crepet, ‘The Expanding Scope, Use, and Availability of Criminal Records’ (2008) 11 New York University Journal of Legislation and Public Policy 177; Bronwyn Naylor, Moira Paterson and Marilyn Pittard, ‘In the Shadow of a Criminal Record: Proposing a Just Model of Criminal Record Employment Checks’ (2008) 32 Melbourne University Law Review 171, 172; Devah Pager, ‘The Mark of a Criminal Record’ (2003) 108(5) American Journal of Sociology 937. Patricia M Harris and Kimberly S Keller, ‘Ex-Offenders Need Not Apply: The Criminal Background Check in Hiring Decisions’ (2005) 21(1) Journal of Contemporary Criminal Justice 6. Bronwyn Naylor, ‘Criminal Records and Rehabilitation in Australia’ (2011) 3 European Journal of Probation 1, 79. Crimes Act 1914 (Cth), Part VIIC; Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Spent Convictions Act 2011 (SA); Annulled Convictions Act 2003 (Tas); Spent Convictions Act 1988 (WA); Spent Convictions Act 2000 (ACT); Criminal Records (Spent Convictions) Act 1992 (NT). Amanda Johnson, ‘Challenging Criminal Records in Hiring under the Americans with Disabilities Act’ (2017) 48 Columbia Human Rights Law Review 211.

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conclusion This chapter has analysed how persons with certain psychosocial disabilities are expressly excluded by some anti-discrimination statutes and targeted by state-sponsored efforts to stigmatise their impairments. Excluding people from protection because they have a higher propensity for socially unacceptable conduct is a situation unique to people with psychosocial disabilities. This treatment of persons with ‘unacceptable’ psychosocial disabilities is ability apartheid with the intent of forcing certain health outcomes in society. Not only is it counterproductive and unfair, it is also a form of eugenics and contrary to the disability human rights paradigm in the CRPD.

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7 Reasonable Accommodations in a Psychosocial Diverse Workplace Hierarchies of Impairment at Work

introduction When workplaces are designed and managed for a worker with a ‘normal’ range of abilities, then workers with different abilities are disabled at work. Human rights and anti-discrimination laws create duties upon employers and others to adjust workplaces to accommodate workers with disabilities.1 The obligation to make a reasonable accommodation is based on the ‘recognition that, on occasions, the interaction between an individual’s impairment and the environment can result in the inability to perform a particular function, task or job in the conventional manner’.2 Reasonable accommodations under anti-disability discrimination laws are at the centre of the integration of people with disabilities into the mainstream work environment.3

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3

Deborah Foster, ‘Legal Obligation or Personal Lottery? Employee Experiences of Disability and the Negotiation of Adjustments in the Public Sector Workplace’ (2007) 21(1) Work Employment and Society 67–84; Deborah Foster and Patricia Fosh, ‘Negotiating “Difference”: Representing Disabled Employees in the British Workplace’ (2010) 48(3) British Journal of Industrial Relations 560. Lisa Waddington, ‘Fine-Tuning Non-Discrimination Law: Exceptions and Justifications Allowing for Differential Treatment on the Ground of Disability’ (2015) 15(1-2) International Journal of Discrimination and the Law 11–37; see also, Lisa Waddington and Aart Hendriks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ (2002) 18(4) International Journal of Comparative Labour Law and Industrial Relations 403; Lisa Waddington, Chapter Six, Reasonable Accommodation, Section 6.1.1 in Dagmar Schiek, Lisa Waddington and Mark Bell (eds), Cases, Material and Text on National, Supranational and International Non-Discrimination Law: Ius Commune Casebooks for the Common Law of Europe (2007) Hart Publishing. Carrie Griffin Basas, ‘Back Rooms, Board Rooms: Reasonable Accommodation and Resistance under the ADA’ (2008) 28 Berkeley Journal of Employment and Labor Law 59.

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This chapter argues that reasonable accommodation laws privilege workers with physical and sensory impairments compared to workers who have psychosocial disabilities. The duty to make changes pursuant to the Convention on the Rights of Persons with Disabilities (CRPD),4 in Canada,5 Ireland,6 and the United States is referred to as ‘reasonable accommodations’,7 and in Australia,8 New Zealand,9 and the United Kingdom as ‘reasonable adjustments’.10 CRPD art 2 explains that it amounts to disability discrimination to deny a request to make a reasonable accommodation, and art 27(1) requires states to take appropriate steps, including legislative measures to ensure ‘reasonable accommodation is provided to persons with disabilities in the workplace’. Anti-discrimination laws require reasonable accommodations and adjustments from employers. These duties involve making alterations to enable persons with disabilities to operate in their work environments.11 This chapter will first analyse the nature of accommodations sort by workers with psychosocial disabilities, and then analyse the international law framework that creates a right to access and reasonable accommodations. The hostility to accommodating persons with psychosocial disabilities will then be analysed in Section III. One of the limitations with the reasonable accommodation model is that it requires a worker with a disability to come forward and advocate for the adjustment based upon their impairment. For workers with invisible disabilities, this can require disclosing the presence of disability for the first time. Section IV will analyse the implications for workers who have invisible psychosocial disabilities in making reasonable accommodation requests.

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7 8 9

10 11

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (3 May 2008), arts 2, 5(3), 24(2)(c) and 27(1)(i) in particular. Kevin Banks, ‘Reasonable Accommodation as Equal Opportunity in Canadian Employment Law’ (2016) 93 Bulletin of Comparative Labour Relations 47. Employment Equality Act 1998 (Ireland) s 16(3)(b) uses the phrase ‘reasonable to accommodate’. Americans with Disabilities Act of 1990; CRPD art 2. Disability Discrimination Act 1992 (Cth) ss 4-6 and 21. Human Rights Act 1993 (NZ) s 35 uses slightly different wording ‘not being an adjustment involving unreasonable disruption of the activities of the employer’. Equality Act 2010 (UK) s 39(5). Foster, ‘Legal Obligation or Personal Lottery? Employee Experiences of Disability and the Negotiation of Adjustments in the Public Sector Workplace’ 67; Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (2008) Bloomsbury Publishing.

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i how can reasonable accommodations enable persons with psychosocial disabilities to exercise their right to work? A General Wellness Programs vs. Reasonable Accommodations Even though there is significant discrimination against workers who have psychosocial disabilities, there is increasing activity to help workers without disabilities maintain their emotional and psychological health. Employers’ proactive management of the mental health of their workforce emerges through three main interventions: 1. Facilitation of access to clinical treatment 2. Workplace-based high-intensity psychological intervention 3. Facilitation of navigation through the disability management system.12 Where there is proactive management of mental health at work, workers who do have psychosocial disabilities can often avail themselves of the existing wellness programs to help them manage their impairment. This has the benefit of partially normalising diversity and enabling the worker to access support without needing to identify with having a disability.

B The Subjective Nature of Reasonable Accommodations Reasonable accommodations arise where a worker seeks an adjustment to the workplace to remove a barrier caused when their impairment interacts with the workplace. The nature of accommodations and adjustments differ with each impairment category and depending on the subjective factors of the workplace and worker. Some physical, mental and sensory disabilities have similar behavioural and communication manifestations. Communication difficulties can be associated with physical, sensory, mental and intellectual impairments and are associated with unfavourable outcomes.13 Communication difficulties, however, involve the capacity to speak and be understood. 12

13

See, for a detailed analysis of these interventions, Georgia Pomaki, Renée-Louise Franche, Eleanor Murray, Noushin Khushrushahi and Thomas M Lampinen, ‘Workplace-Based Work Disability Prevention Interventions for Workers with Common Mental Health Conditions: A Review of the Literature’ (2012) 22(2) Journal of Occupational Rehabilitation 182. Diane Nelson Bryen, Blyden B Potts, and Allison C Carey, ‘So you Want to Work? What Employers Say about Job Skills, Recruitment and Hiring Employees Who Rely on AAC’ (2007) 23(2) Augmentative and Alternative Communication 126; Stefan Gröschl, ‘An Exploration of HR Policies and Practices Affecting the Integration of Persons with Disabilities in the Hotel

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Behaviour, in contrast, focuses more on acceptable and non-ideal interpersonal interactions that involve more than just an ability to talk and be understood. Even though there are some accommodations that are similar to most disabilities, there are some accommodations that are strongly associated with particular impairment categories. Mental disabilities manifest as largely behavioural, such as exceptional mood swings or obsessive compulsive, while physical and sensory manifest as functional limitations, such as difficulties in using steps or reading printed content.14 Psychosocial disabilities can manifest in non-ideal behaviours, which are especially problematic in work settings, for example: Managing frustration and modulating emotions: people with ADHD are easily frustrated and prone to expressing their emotions in ways that violate workplace rules of courtesy and etiquette, although the same attributes can make them forceful and persuasive in their communication [. . .] Monitoring and self-regulating behaviour: social situations can be difficult for ADHD adults, who have trouble identifying important cues in a highly stimulating context and thus in determining appropriate behaviour. With poor impulse control, they can appear to be quite intense and perhaps behave inappropriately in verbal discourse.15

Other non-ideal behaviours may include inconsistent performance levels. Regimented, inflexible and fast-paced work systems can aggravate some psychosocial disabilities, which results in increased use of sick leave and lower productivity overall.16 Depression, for example, can be better managed if

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Industry in Major Canadian Tourism Destinations’ (2007) 26(3) International Journal of Hospitality Management 666; Andrew Houtenville and Valentini Kalargyrou, ‘People with Disabilities: Employers’ Perspectives on Recruitment Practices, Strategies, and Challenges in Leisure and Hospitality’ (2012) 53(1) Cornell Hospitality Quarterly 40; David McNaughton and Laura Richardson, ‘Supporting Positive Employment Outcomes for Individuals with Autism who use AAC’ (2013) 22(3) Perspectives on Augmentative and Alternative Communication 164; Michael Schwartz, ‘Technical Standards for Admission to Medical School: Deaf Candidates Don’t get No Respect’ (2009) 28 Buffalo Public Interest Law Journal 31. Jane Byeff Korn, ‘Crazy (Mental Illness under the ADA)’ (2003) 36 University of Michigan Journal of Law Reform 585. Bruce Arnold, Patricia Easteal, Simon Easteal and Simon Rice, ‘It Just Doesn’t Add Up: ADHD/ADD, the Workplace and Discrimination’ (2010) 34 Melbourne University Law Review 359, 365–366; see also Christine Muller, ‘Expanding Protection for Attention Deficit Hyperactivity Disorder Individuals under the Americans with Disabilities Act’ (2015) 17 Loyola Journal of Public Interest Law 61. W F Stewart, J A Ricci, E Chee, S R Hahn and D Morganstein, ‘Cost of Lost Productive Work Time among US Workers with Depression’ (2003) 289(3) JAMA: Journal of the American Medical Association 3135.

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employers permit workers to be more flexible with the speed of performing tasks.17 As job flexibility is rare, workers with disabilities requesting variation to their work arrangements will need to negotiate with their employers and seek reasonable accommodations.18 Unfavourable treatment related to non-ideal behaviour can occur during formal processes, such as during job interviews or drafting and ranking selection criteria,19 or during informal processes around networking (for example, interpersonal skill deficits have been identified as the primary reason for workplace separation after traumatic brain injury).20 Mental impairment is not viewed by employers as part of a broader spectrum of human psychosocial diversity, and non-ideal behaviours are regarded as undesirable, with workers who exhibit such practices counselled, retrained or dismissed.21 While some accommodations require adjustments to expectations of staff, customers, suppliers and the like, other accommodations can support the worker with a behavioural impairment to moderate their conduct. Job coaches, for example, can help in understanding work norms and training the worker in question to operate more effectively within the existing work system.22 17

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D Lerner, D A Adler, H Chang, L Lapitsky, M Y Hood, C Perissinotto, J Reed, T J McLaughlin, E R Berndt and W H Rogers Unemployment, Job Retention, and Productivity Loss among Employees with Depression (2004) 55(12) Psychiatric Services 1371. Ann C Hodges, ‘Working with Cancer: How the Law Can Help Survivors Maintain Employment’ (2015) 90 Washington Law Review 1039, 1085. Sondra Harcourt and Mark Harcourt, ‘Do Employers Comply with Civil/Human Rights Legislation? New Evidence from New Zealand Job Application Forms’ (2002) 35(3) Journal of Business Ethics 205. Peter Meulenbroek, Barbara Bowers and Lyn S Turkstra, ‘Characterizing Common Workplace Communication Skills for Disorders Associated with Traumatic Brain Injury: A Qualitative Study’ (2016) 44(1) Journal of Vocational Rehabilitation 15. Bradley J Alge, Maria T Grasham, Robert L Heneman, Julie Fox and Rosemary McMasters, ‘Measuring Customer Service Orientation using a Measure of Interpersonal Skills: A Preliminary Test in a Public Service Organization’ (2002) 16(3) Journal of Business and Psychology 467; Murray R Barrick and Michael K Mount, ‘The Big Five Personality Dimensions and Job Performance: A Meta-Analysis’ (1991) 44(1) Personnel Psychology 1; Kendra S Cheruvelil, Patricia A Soranno Kathleen C Weathers, Paul C Hanson, Simon J Goring, Christopher T Filstrup and Emily K Read, ‘Creating and Maintaining High-Performing Collaborative Research Teams: The Importance of Diversity and Interpersonal Skills’ (2014) 12 (1) Frontiers in Ecology and the Environment 31; Andrew J DuBrin, Human Relations: Interpersonal Job-Oriented Skills (2014) Pearson Higher Ed, 201; James J Jiang, Craig Van Slyke and Paul Cheney, ‘A Note on Interpersonal and Communication Skills for IS Professionals: Evidence of Positive Influence’ (2003) 34(4) Decision Sciences 799; John D Politis, ‘The Connection between Trust and Knowledge Management: What Are Its Implications for Team Performance’ (2003) 7(5) Journal of Knowledge Management 55. Work coaches have been held to be reasonable in a range of cases including: supporting a worker with PTSD in Menchaca v. Maricopa Community College District, 595 F Supp 2d 1063, 1072 (D Ariz, 2009); in supporting an employee with autism in Glaser v. Gap Inc., 994 F Supp

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ii hierarchies of impairment and reasonable accommodations under international law The formation of international norms on ability diversity at work was first posited by the International Labour Organization (ILO). This section will first analyse the ILO, before considering how the CRPD and its jurisprudence has formulated a new acceptance of psychosocial diversity at work and rights to access and reasonable accommodation. A Reasonable Accommodations and the ILO The leading ILO convention on workers with disabilities, the Vocation Employment (Disabled Persons) Convention, does not mandate that reasonable accommodations are provided to workers with disabilities.23 The Vocation Employment (Disabled Persons) Convention requires signatories to formulate, implement and periodically review a national policy on vocational rehabilitation and employment of disabled persons .24 While this national policy must include promoting the employment of persons with disabilities,25 there is no duty to ensure reasonable accommodation or positive measures are taken. The Vocation Employment (Disabled Persons) Convention merely empowers states to adopt positive measures if they so desire.26 While ILO conventions do not require employers to make any reasonable accommodations or adjustments to enable persons with different abilities to perform their duties, the ILO recommendations, policies and practices do promote reasonable accommodations and adjustments for workers with disabilities.27 In the Vocational Rehabilitation (Disabled) Recommendation the

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2d 569 (SD NY, 2014); an employee with anxiety disorder in Rocafort v. IBM Corp., 334 F 3d 115, 120 (1st Cir, 2003). Convention concerning Vocational Rehabilitation and Employment (Disabled Persons), adopted 20 June 1983, 1401 UNTS 23439 (entered into force 20 June 1985). Vocation Employment (Disabled Persons) Convention, art 2. Vocation Employment (Disabled Persons) Convention, art 3. Article 4 provides ‘Special positive measures aimed at effective equality of opportunity and treatment between disabled workers and other workers shall not be regarded as discriminating against other workers.’ Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ (2017) 41(1) Loyola Law School Los Angeles International & Comparative Law Review 51.

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ILO seeks to encourage employers to make reasonable accommodations at work.28 This non-binding recommendation encourages states to adopt a range of measures to enhance the employment of persons with disabilities, including ‘widespread and sustained publicity. . . with special reference to . . . methods of improving work conditions, including adjustment and modification of machinery and equipment, to facilitate the employment of [persons with disabilities]’.29 Importantly, the ILO recommendation is not actually calling for accommodations to be made, but merely that information about possible accommodations is created and distributed. The main ILO policy document that promotes reasonable accommodations and adjustments at work is entitled ‘Promoting Diversity and Inclusion Through Workplace Adjustment: A Practical Guide’.30 This guide suggests that employers and states should include reasonable accommodations and adjustments to enable workers with disabilities to exercise their right to work. The guide provides an example of where such accommodations or adjustments might occur; interestingly, this example is for a worker with a psychosocial disability: ‘A person living with generalized anxiety disorder may find it difficult to perform their job due to persistent worries about managing their workload. A reasonable accommodation could be to provide this worker with some additional support from the line manager.’ The guide reflects the disability human rights paradigm, as posited in the CRPD, and represents a significant development in how the ILO approaches ability diversity at work. While this development is positive, there are no moves at present to amend the Vocation Employment (Disabled Persons) Convention.

B Reasonable Accommodations and the CRPD I use the disability human rights paradigm to critically analyse how a hierarchy of impairments is reflected in the law of work. The disability human rights paradigm flows from the CRPD and accordingly it is critical to understand how the CRPD approaches the hierarchy of impairments. In contrast to ILO

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International Labour Organization, Vocational Rehabilitation (Disabled) Recommendation, No. 99, 38th sess (22 June 1955). Ibid., 30(b)(iii). International Labour Organization, Promoting Diversity and Inclusion through Workplace Adjustment: A Practical Guide (Report, 2016).

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conventions, the human rights paradigm in the CRPD recognises that barriers in society limit the capacity of people with different abilities to exercise their right to work. The CRPD includes a focus on how society can become more accommodating of ability differences through a two-prong approach. As analysed below, the first prong focuses on removing barriers altogether through universal design, and the second prong requires reasonable accommodations where barriers cannot be removed by universal design. 1 The First Prong: Universal Design The first prong focuses on rendering systems accessible at the design stage through the concept of ‘universal design’.31 Universal design is defined in the CRPD to mean: The design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. ‘Universal design’ shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.32

The importance of universal design/inclusive design can be evinced by how widely it is referred to in the CRPD. The focus on inclusive design also appears with reference to ‘inclusive education’,33 workplaces that are ‘open, inclusive and accessible’ to persons with disabilities34 and ensuring that international development programs are ‘inclusive . . . and accessible’.35 Universally designed products and systems should be usable for disabled people with little or no adjustments.36 The definition of ‘universal design’ in the CRPD acknowledges that inclusive access cannot always be provided. Under

31 32 33 34 35 36

Ibid., art 9(2)(h). Ibid., art 2. Ibid., art 24(1). Ibid., art 27(1). Ibid., art 32(1)(a). Richard M Jackson, ‘Curriculum Access for Students with Low-Incidence Disabilities: The Promise of Universal Design for Learning’ (2011) National Center on Accessing the General Curriculum; Jason Scott Palmer, ‘The Convention on the Rights of Persons with Disabilities: Will Ratification Lead to a Holistic Approach to Postsecondary Education for Persons with Disabilities?’ (2013) 43 Seton Hall Law Review 551, 583.

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universal design access should be provided ‘. . . to the greatest extent possible’.37 Where universal design cannot be achieved, then the second prong becomes relevant.

2 The Second Prong: Right to Reasonable Accommodation Where universal design cannot remove disabling barriers, the CRPD has a second prong that introduces a right of reasonable accommodation. The duty to make reasonable accommodations and adjustments is a key aspect of the CRPD,38 and is an important aspect of the right to work in the Convention.39 The concept of what is reasonable is situational and differs between rights protected. The right to work in the CRPD in article 27(1) speaks of environments that are ‘open, inclusive and accessible to persons with disabilities’. This can be contrasted with the right to education, where CRPD article 24 guarantees people with disabilities that they will be able to access education.40 In addition to imposing obligations directly upon the state,41 the right to receive reasonable accommodations requires non-state actors, such as telecommunication providers, employers, educators, etc, to engage in positive conduct to enable persons with disabilities to obtain access.42 CRPD article 27 does not just place a duty on employers to make sure reasonable accommodations are made in the workplace: article 27 requires the State to ensure that such accommodations are made. This imposes upon the State a twofold obligation. First, the CRPD requires States to legislate to require employers to make reasonable accommodations and, second, they are required to take steps to promote a more inclusive society generally. This might include research on, adoption and promotion of universal design. 37 38

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CRPD, art 2. Rebecca Brown and Janet Lord, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ in Marcia H Rioux, Lee Ann Basser and Melinda Jones (eds), Critical Perspectives on Human Rights and Disability Law (2011) Brill 273. CRPD, art 27(1)(i). This difference is reflected in domestic laws. See, e.g., Devers v. Kindilan Society (2010) 116 ALD 239. Anna Lawson, ‘Disability Equality, Reasonable Accommodation and the Avoidance of IllTreatment in Places of Detention: The Role of Supranational Monitoring and Inspection Bodies’ (2012) 16(6) International Journal of Human Rights 845. Arlene S Kanter, The Development of Disability Rights Under International Law: From Charity to Human Rights (2015) Routledge 47.

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C CRPD Committee on the Right to Access and Reasonable Accommodations 1 The CRPD Committee Promoting the Two-Prong Approach The CRPD committee recognises the importance of the two-prong approach to promoting ability equality at work. The CRPD Committee’s General Comment 2 on Access emphasises the important link between the right to access in article 9 and the right to reasonable accommodations in article 27(1) (i): Persons with disabilities cannot effectively enjoy their work and employment rights, as described in article 27 of the Convention, if the workplace itself is not accessible. Workplaces, therefore, have to be accessible, as is explicitly indicated in article 9, paragraph 1(a). A refusal to adapt the workplace constitutes a prohibited act of disability-based discrimination. Besides the physical accessibility of the workplace, persons with disabilities need accessible transport and support services to get to their workplaces. All information pertaining to work, advertisements of job offers, selection processes and communication at the workplace that is part of the work process must be accessible through sign language, Braille, accessible electronic formats, alternative script, and augmentative and alternative modes, means and formats of communication. All trade union and labour rights must also be accessible, as must training opportunities and job qualifications. For example, foreign language or computer courses for employees and trainees must be conducted in an accessible environment in accessible forms, modes, means and formats.43

The CRPD Committee has embraced this two-prong approach in its analysis of the role disabling barriers upon the right to work, as expressed in Concluding Observations (COs).44 As will be shown below, hierarchies of impairment are present both when analysing the right to access and the right to reasonable accommodations at work.

2 The Right to Access and Hierarchies of Impairment The COs illustrate that State responses to disabling barriers is unequal. When promoting the right to access through the positing of standards and promoting 43

44

Committee on the Rights of Persons with Disabilities, General Comment No. 2 (2014): Article 9: Accessibility, 11th sess, UN Doc CRPD/C/GC/2 (22 May 2014), 41. The method on the COs selected and analysed was discussed in in Chapter 3.

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universal design, the CRPD Committee has identified that there is a hierarchy of impairments, with physical impairments at the top. The exalted status of physical impairments can be illustrated by the fact that physical impairments are the impairments most included in disability access interventions.45 Numerous COs provide the inference that physical disabilities have been the primary focus of access interventions, and identify that greater attention needs to be provided to non-physical impairment categories to enable them to exercise their right to access. These COs all identify that greater attention needs to be paid to sensory, intellectual and psychosocial impairments46 or that greater attention needs to be paid to sensory and psychosocial impairments.47 The COs on Luxembourg and Slovenia go further and recognise that people with psychosocial impairments are the most ignored group when it comes to realising the right to access in CRPD art 9.48 Some COs focus upon modifying the built environment, such as including braille or tactile markings49; others can involve considerable effort to alter the digital environment 45

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Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Belgium, UN doc CRPD/C/BEL/CO/1 (27 October 2014), 21–22; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ethiopia, UN doc CRPD/C/ETH/CO/1 (3 November 2016) 59; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ethiopia, UN doc CRPD/C/ETH/ CO/1 (3 November 2016) 19; Committee on the Rights of Persons with Disabilities, Observaciones finales del Comité sobre los Derechos de las Personas con Discapacidad sobre el informe inicial de Guatemala, UN doc CRPD/C/GTM/CO/1 (29 September 2016), 27. Committee on the Rights of Persons with Disabilities, Observaiones finales sobre el informe inicial de Colombia, UN doc CRPD/C/COL/CO/1 (29 September 2016) 22–23; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Jordan, UN doc CRPD/C/JOR/CO/1 (15 May 2017) 21; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Republic of Korea, CRPD/C/KOR/ CO/1 (20 October 2014) 17; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Uganda, UN doc CRPD/C/UGA/CO/1 (12 May 2016) 16. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ukraine, UN doc CRPD/C/UKR/CO/1 (2 October 2015) 19. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Luxembourg, UN doc CRPD/C/LUX/CO/1 (10 October 2017) 20; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Slovenia, UN doc CRPD/C/SVN/CO/1 (16 April 2018) 14. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Armenia, CRPD/C/ARM/CO/1 (8 May 2017) 16(b); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, UN doc CRPD/C/AUS/CO/1 (24 October 2013), 20; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Czech Republic, UN doc CRPD/C/CZE/CO/1 (15 May 2015) 19; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Luxembourg, UN doc CRPD/C/LUX/CO/1 (10 October 2017) 21; Committee on the Rights of Persons with Disabilities, Concluding

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to enable access. A good example of this is where COs call for subtitling videos to enable the hearing-impaired community to consume content50; easy read and other options to support people with psychosocial impairments has attracted less attention.51 Other interventions require ongoing human interactions, such as providing sign language interpreters or live assistants,52or augmentative and alternative communication to enable persons with disabilities to exercise their right to access.53 While the analysis in this section illustrates that there is a hierarchy of impairments, and that, in a number of States, workers with psychosocial disabilities are most disadvantaged, the inconsistent approach to reporting, identified earlier in Chapter 2, inhibits commenting on States where the COs are silent. What can be observed is that all the access interventions specifically mentioned by the CRPD Committee address some of the major barriers confronting people with physical and sensory impairments, while the specific interventions targeting people with psychosocial interventions only deal imperfectly with the needs of persons with psychosocial impairments. Web

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observations on the initial report of Mongolia, UN doc CRPD/C/MNG/CO/1 (13 May 2015) 16–17; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Uganda, UN doc CRPD/C/UGA/CO/1 (12 May 2016) 16; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ukraine, UN doc CRPD/C/UKR/CO/1 (2 October 2015) 19. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Armenia, CRPD/C/ARM/CO/1 (8 May 2017) 16(b); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Canada, UN doc CRPD/C/CAN/CO/1 (8 May 2017) 21; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Denmark, UN doc CRPD/C/DNK/CO/1 (29 October 2014) 28; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Serbia, UN doc CRPD/C/SRB/CO/1 (23 May 2016) 18; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Uganda, CRPD/C/UGA/CO/1 (12 May 2016) 16. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Canada, UN doc CRPD/C/CAN/CO/1 (8 May 2017) 21. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Austria, UN doc CRPD/C/AUT/CO/1 (30 September 2013) 26; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Belgium, UN doc CRPD/C/BEL/CO/1 (27 October 2014) 22; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Cyprus, UN doc CRPD/C/CYP/CO/1 (8 May 2017) 26; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Germany, UN doc CRPD/C/DEU/CO/1 (13 May 2015) 22(b); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Mauritius, UN doc CRPD/C/ MUS/CO/1 (30 September 2015) 18. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Italy, UN doc CRPD/C/ITA/CO/1 (5 October 2016).

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accessibility standards largely ignored the needs of this group and the need for behavioural changes is ignored. Persons with psychosocial impairments can require workplaces to alter how some interpersonal conduct occurs. It would have been helpful to require a need to control certain behaviours at work and other settings, and not left this aspect of managing psychosocial diversity to the right to reasonable accommodation.

3 The CRPD Committee and the Right of Reasonable Accommodation Where universal access is not achieved or is not possible, the right to reasonable accommodation is enlivened. Despite the importance of altering disabling structures to enable inclusion, a substantial number of States were criticised for having no explicit reasonable accommodation laws in place across:  Africa54  Asia55 56  Europe 54

55

56

For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ethiopia, UN doc CRPD/C/ETH/ CO/1 (3 November 2016) 60(b); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Kenya, CRPD/C/KEN/CO/1 (30 September 2015) 9; Morocco Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Kingdom of Morocco, UN doc CRPD/C/MAR/CO/1 (25 September 2017) 12–13, 50–51; Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of Seychelles, UN doc CRPD/C/SYC/ CO/1 (16 April 2018) 12(b); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Sudan, UN doc CRPD/C/SDN/CO/1 (10 April 2018) 7–8; Committee on the Rights of Persons with Disabilities, Concluding observations on Tunisia, UN doc CRPD/C/TUN/CO/1 (13 May 2011) 13. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of China, Corrigendum, UN doc CRPD/C/CHN/CO/1/Corr.1 (14 November 2012), 12; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Mongolia, UN doc CRPD/C/ MNG/CO/1 (13 May 2015) 8; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Thailand, UN doc CRPD/C/THA/CO/1 (12 May 2016) 13; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Turkmenistan, UN doc CRPD/C/TKM/CO/1 (13 May 2015) 9. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Denmark, UN doc CRPD/C/ DNK/CO/1 (29 October 2014) 58–59; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Italy, UN doc CRPD/C/ITA/CO/1 (5 October 2016) 10; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Lithuania, UN doc CRPD/C/LTU/CO/1 (10 May 2016), 13; Committee on the

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57  Latin America 58  The Middle East 59  Pacific.

In some cases, reasonable accommodation laws operate but are not explicitly mentioned in the laws. This inhibits stakeholder understanding and guidance on the line between reasonable and unreasonable accommodation. The CO on New Zealand observed that the Human Rights Act 1993 (NZ) did not contain a separate definition of reasonable accommodation.60 While a duty to make reasonable accommodations could be inferred from provisions of the Act, the CRPD Committee was concerned about the ‘opaqueness and lack of clarity’ surrounding the duty to make reasonable accommodations.61 Rather than amending the law, the New Zealand government has published nonbinding educational publications. For example, in November 2016 New Zealand’s Independent Monitoring Mechanism (comprising the Office of the Ombudsman, the Human Rights Commission and the Convention Coalition Monitoring Group) published a guide on the operation of reasonable accommodations in New Zealand.62

57

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Rights of Persons with Disabilities, Concluding observations on the initial report of Portugal, UN doc CRPD/C/PRT/CO/1 (19 May 2016) 13–14, 51. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Ecuador, UN doc CRPD/C/ECU/ CO/1 (26 October 2014) 14; Committee on the Rights of Persons with Disabilities, Concluding Observations on the initial report of Haiti, UN doc CRPD/C/HTI/CO/1 (13 April 2018) 8(a) and 49; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Panama, UN doc CRPD/C/PAN/CO/1 (29 September 17), 14–15; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Paraguay, UN doc CRPD/C/PRY/CO/1 (15 May 2013), 14–15 and 65. For a non-exhaustive list of examples see: Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of Oman, UN doc CRPD/ C/OMN/CO/1 (17 April 2018) 11(d); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Qatar, UN doc CRPD/C/QAT/CO/1 (2 October 2015), 11–12; Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of United Arab Emirates, UN doc CRPD/C/ARE/ CO/1 (2 October 2016) 11–12. Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of the Cook Islands, UN doc CRPD/C/COK/CO/1 (15 May 2015) 10. NZ Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of New Zealand, UN doc CRPD/C/NZL/CO/1 (30 October 2014) 11. Ibid. Independent Monitoring Mechanism, Reasonable accommodation of persons with disabilities in New Zealand (November 2016) New Zealand Office of the Ombudsman. www.ombudsman .parliament.nz/system/paperclip/document_files/document_files/1817/original/reasonable_ accommodation_of_persons_with_disabilities_in_nz.pdf?1480637337.

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Where the duty to make reasonable accommodations does exist, it often enshrines impairment hierarchies. The notion of what is ‘reasonable’ in reasonable accommodations laws often reflects prejudice against psychosocial impairments. The CO on Oman, for example, focused on the lack of accessible and adapted workplaces, including reasonable accommodation, ‘especially for persons with disabilities with motor impairments’63 and recommended that reasonable accommodations interventions ‘especially. . . [targeted] persons with disabilities with motor impairments’.64 Even where reasonable accommodation laws are in place, several COs identified that they were in adequately operationalised and enforced.65 The COs demonstrate that the right to access and reasonable accommodations is not being realised for many workers with psychosocial disabilities. Despite this fact, the CRPD and CRPD Committee have help enshrine an international law norm that requires States to grant a right to access and reasonable accommodation to all workers with disabilities and to take steps to ensure these rights can be realised. This chapter will now analyse in detail how reasonable accommodation laws and practices accommodate workers with psychosocial disabilities.

iii law and practices of unreasonable refusals to accommodate psychosocial diversity at work A The Test for Reasonable Accommodations Canada adopts a different approach to determining when discrimination has occurred.66 A three-step unified test is used in Canada to determine if unlawful discrimination has occurred, which asks 63

64 65

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Committee on the Rights of Persons with Disabilities, Concluding Observations in relation to the initial report of Oman, UN doc CRPD/C/OMN/CO/1 (17 April 2018) 20(b). Ibid., 48 (c). Including: Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Australia, UN doc CRPD/C/AUS/CO/1 (24 October 2013) 46; Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Canada, UN doc CRPD/C/CAN/CO/1 (8 May 2017) 48(a); Committee on the Rights of Persons with Disabilities, Concluding observations on the initial periodic report of Hungary, UN doc CRPD/C/HUN/CO/1(22 October 2012)15. Prior to the 1999 Canadian Supreme Court judgment in British Columbia (Public Service Employee Relations Commission) v. BCGSEU (‘Fire Fighters’ Case’), discrimination was constructed through a bifurcated approach. In the Fire Fighters’ Case, Justice McLachlan noted the bifurcated approach had served its purpose and was now hindering the fight against discrimination in society: Fire Fighters’ Case [1999] 3 SCR 3, 18.

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(1) whether the duty holder adopted the challenged standard for a purpose rationally connected to the performance of the job; (2) whether the duty holder chose the standard in an honest and good faith belief that it was required to fulfil the work-related purpose; and (3) whether the standard is reasonably necessary in that it would be impossible to accommodate an individual with a protected attributed without imposing undue hardship upon the duty holder.67 The Canadian approach to discrimination contains greater positive duties than other jurisdictions which require consideration of ability diversity at the design, implementation and operation stages.68 The statutory regimes in Australia, Ireland, New Zealand, the United Kingdom and the United States bifurcate the prohibition against discrimination into two closed categories. In Australia, Ireland, New Zealand and the United Kingdom the categories are referred to as direct and indirect discrimination,69 and in the United States the categories are referred to as disparate treatment and disparate impact.70 The first form of discrimination is intentional and based upon a person’s attributes. The second category prohibits facially neutral practices which have a discriminatory impact. While both forms of discrimination are relevant to this monograph, different aspects of the first category of discrimination will be analysed in this chapter and in the subsequent chapter on occupational safety and health. A discriminator engages in direct discrimination or disparate treatment where the discriminator is found to have intentionally treated or proposed to treat a person less favourably because that person has a disability.71 This requires a comparison between the treatment a person received with a disability, and the treatment they would have received if they were not disabled.72 The Irish statute goes further and recognises the potentiality of a hierarchy of impairments. The Employment Equality Act 1998 (Ireland) the grounds of prohibited discrimination include discrimination between people 67

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Fire Fighters’ Case [1999] 3 SCR 3, 32–33; for discussion, see Sandra Fredman, Discrimination Law (2011) Oxford University Press, 212–214. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press 265. Disability Discrimination Act 1992 (Cth) ss 5 and 6; Employment Equality Act 1998 (Ireland) ss 6 and 31; Equality Act 2010 (UK) ss 13 and 19; Human Rights Act 1993 (NZ) ss 22 and 65. Noah Zatz, ‘Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent’ (2009) 109 Columbia Law Review 1357, 1368 (describing the bifurcation of discrimination into disparate treatment and disparate impact theories as being ‘embedded in the structure of’ the ADA). Disability Discrimination Act 1992 (Cth) s 6; Equality Act 2010 (UK) ss 13 and 19. Bonnie Poitras Tucker, ‘Disability Discrimination Act: Ensuring Rights of Australians with Disabilities, Particularly Hearing Impairments’ (1995) 21(1) Monash University Law Review 15.

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with and without disabilities, as well as discrimination between a person with a disability and a ‘person with a different disability’.73 In order to facilitate participation in society, disability anti-discrimination laws impose limited positive duty on employers to make reasonable accommodations.74 If an employer does not make adjustments to reasonably accommodate a person with a disability, then this is itself an act of direct discrimination. Professor Sir Bob Hepple explains that there are three broad categories of reasonable adjustments.75 The first category concerns changing how things are done. This might involve providing sign language interpreters. The second category focuses on changes in the built environment, such as the installation of ramps. The third category concerns the duty holder providing auxiliary aids, such as installing screen readers on computers. The ADA provides examples of accommodations that could be made including: ‘making existing facilities used by employees readily accessible . . . and usable’; ‘job restructuring, part-time or modified work schedules’; ‘reassignment to a vacant position’; ‘acquisition or modification of equipment or devices, [and] appropriate adjustment or modifications of examinations, training materials or policies’; as well as ‘the provision of qualified readers or interpreters, and other similar accommodations . . .’.76 The factors that will result in an accommodation being held to be unreasonable are broadly similar in Australia, Ireland, the United Kingdom and United States.77 These factors include the cost of the adjustments when compared to the resources of the duty holder, the impact of the adjustment on the duty holder, and the position and relationship of the place where the

73 74

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Employment Equality Act 1998 (Ireland) s 6(1)(g). Brian Doyle, ‘Enabling Legislation or Dissembling Law? The Disability Discrimination Act 1995’ (1997) 60(1) Modern Law Review 64. Bob Hepple, Equality: The New Legal Framework (2nd ed, 2014) Hart Publishing 94–95. 42 USC § 12111 (9)(A)-(B) (2012); this paraphrasing of the statute is quoted from Susan D Carle, ‘Analyzing Social Impairments under Title I of the Americans with Disabilities Act’ (2017) 50 UC Davis Law Review 1109 1143–1144. However, US courts adopt a narrower view of when an accommodation is linked to a disability. See, for discussion, Cheryl L Anderson, ‘What is “Because of the Disability” under the Americans with Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine’ (2006) 27(2) Berkeley Journal of Employment and Labor Law 323 (analysing how a number of courts have required reasonable accommodations to be linked to narrowly identified aspects of a person’s disability. Anderson concludes that US courts have used causation requirements to avoid evaluations on the merits of accommodations claims). See, for a comparison between Australia and Canada on the scope, Emma Purdue, ‘Scoping Reasonable Adjustments in the Workplace: A Comparative Analysis of an Employer’s Obligation to Accommodate a Worker’s Disability under Australian and Canadian Laws’ (2017) 30 Australian Journal of Labour Law 185.

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adjustment is to be made.78 Mark Weber has observed that, significantly, the reasonable accommodation test ‘is not a cost-benefit comparison, but rather a cost-total budget comparison’.79 Weber analyses the authoritative sources concerning the ADA accommodation requirement and concludes that reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount. In an employment scenario, in one case a reasonable accommodation could be over 10 per cent of the employee’s annual wage and in another case, it might be below this figure.80 As a consequence, determining if an accommodation or adjustment is reasonable or unreasonable needs to be assessed on a case-by-case basis. William D Goren explains that courts have been ‘all over the place’ as to the burden of proof in accommodation cases because reasonable accommodation does not constitute an undue hardship, but undue hardship is an affirmative defence.81 Despite the potential for substantial change, courts have a history of limiting the duty to make reasonable accommodations and adjustments, and of construing these duties narrowly.82 When balancing the competing factors, courts focus upon the cost of the adjustment to the duty holder, rather than on the benefit to the individual with a disability or to the community at large.83 Christopher Brown argues that failing to consider the positive externalities of

78

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42 USC § 12111(10)(B); Disability Discrimination Act 1992 (Cth) s 4; Equality Act 2010 (UK) s 20 defines the duty to make reasonable adjustments by reference to Schedule 8; Employment Equality Act 1998 (Ireland) s 16(3); Human Rights Act 1993 (NZ) s 29. Mark C Weber, ‘Unreasonable Accommodation and Due Hardship’ (2010) 62 Florida Law Review 1119, 1136. Ibid. For a discussion of the 10 per cent figure see: House Committee on the Judiciary, HR Rep No 101–485(III) (1990) 41. William D Goren, Understanding the Americans with Disabilities Act (3rd ed, 2010) American Bar Association 29. Mark Bell, ‘Mental Health at Work and the Duty to Make Reasonable Adjustments’ (2015) 44 (2) Industrial Law Journal 194, 201–202; Anna Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustments (2008) Hart Publishing 259. The United States Supreme Court in US Airways, Inc. v. Barnett, 535 US 391, 400–401, 406 (2002) held an adjustment that cost the duty holder nothing was unreasonable if it interfered with the seniority rights of other employees. See also Elizabeth F Emens, ‘Integrating Accommodation’ (2008) 156(4) University of Pennsylvania Law Review 839 (drawing attention to the many ways accommodations for workers with disabilities yield benefits for third parties in workplaces); Michael Ashley Stein, ‘The Law and Economics of Disability Accommodations’ (2003) 53 Duke Law Journal 79 (analysing how to economically conceptualise disability-related accommodation costs).

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an adjustment distorts the assessment.84 Brown argues that courts should adopt a net social benefit model, which assesses all the costs and benefits associated with an adjustment.85 This approach means that duty holders are not burdened with high adjustment costs where the benefit to an individual is moderate. Focusing on the impact on a single individual substantially reduces the capacity of the reasonable accommodation and adjustment models to reduce the existence of disabling barriers in society. Anna Lawson, Lisa Waddington and Aart Hendriks have argued that the existence of a duty to make reasonable adjustments and accommodations will assist in reducing the impact of disabling barriers in society; however, these duties do not challenge and affect underlying discriminatory policies and practices.86 B Employers Designing Work Structures and the Business Case for Exclusion: The Requirement for Standard Range of Behavioural Abilities Facially neutral practices that are found to discriminate against persons with disabilities and create disadvantage can be legitimised under the antidiscrimination regimes in Australia, Ireland, the United Kingdom and the United States. Despite the disadvantage and the inability to cope, the law will only hold such conduct to be discriminatory where, in Australia, it is held to be unreasonable87; in Ireland, not generally accepted qualifications88; in the United Kingdom where it is held not to be a proportionate means of achieving

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Christopher B Brown, ‘Incorporating Third-Party Benefits into the Cost-Benefit Calculus of Reasonable Adjustment’ (2011) 18 Virginia Journal of Social Policy and the Law 319, 320 (providing a theoretical roadmap as to how courts could incorporate third-party benefits into their cost-benefit analysis). Ibid., 341. Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment, 17; Lisa Waddington and Aart Hendriks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ (2002) 18(3) International Journal of Comparative Labour Law and Industrial Relations 403. Disability Discrimination Act 1995 (UK) s 6(3). Employment Equality Act 1998 (Ireland) s 36; for an analysis of how employer’s right to require ‘generally accepted’ qualifications distorts the intent behind the Employment Equality Act 1998 (Ireland) see for analysis: Olivia Smith, ‘Side-Stepping Equality? Disability Discrimination and “Generally Accepted Qualifications”’ (2008) 30 Dublin University Law Journal 279.

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a legitimate aim89; and in the United States where the barriers are unnecessary and have no business justification.90 The capacity to justify social exclusion as a matter of course is a significant distinction between the disparate treatment and impact doctrines. Lady Hale has explained this difference: ‘[t]he main difference between . . . [the forms of discrimination] is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.’91 The test to determine whether discriminatory practices can be justified adopts separate tests from the tests for reasonable accommodation and reasonable adjustment for direct discrimination and disparate treatment.92 To determine if discrimination is justified, the proportionality analysis in Australia, the United Kingdom and the United States considers if there is a legitimate aim for the treatment, that the means for achieving this aim are appropriate or necessary, and that this justification is objectively reasonable. To establish that a discriminatory practice is justified does not always require duty holders to consider equality issues. A duty holder who ensures their practice has a strong business case could defend their conduct, even if they have not considered if an alternative approach was available that would ensure improved equality outcomes.93 Professor Sandra Fredman argues: In order to advance the transformational goal of equality, justification defences should be subject to a high level of scrutiny before being accepted. Most importantly, the respondent should be required to consider ways of modifying the discriminatory practice better to accommodate the excluded class.94

While Fredman’s position appears logical, and supports the objectives of human rights conventions, at the moment, such steps are often not required. 89

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Equality Act 2010 (UK) s 19(2)(d). This reasonableness test is permitted under European Union laws and variations of the reasonable adjustment model appear expressly or implicitly in the anti-discrimination laws of all 28 European Union States and Norway. See European Network of Legal Experts in Gender Equality and Non-Discrimination, Reasonable Accommodation for Disabled People in Employment Contexts: A Legal Analysis of EU Member States, Iceland, Liechtenstein and Norway (2016) European Commission, 56 www.equalitylaw.eu/downloads/ 3724-reasonable-accommodation-for-disabled-people-in-employment-contexts. Michelle A Travis, ‘Equality in the Virtual Workplace’ (2003) 24(2) Berkeley Journal of Employment and Labor Law 283, 322. Regina (E) v. Governing Body of JFS and another (United Synagogue and others intervening) [2010] 2 AC 728, 757. Weber, ‘Unreasonable Accommodation and Due Hardship’ 1135. Susan Grover, ‘The Business Necessity Defense in Disparate Impact Discrimination Cases’ (1996) 30 Georgia Law Review 387, 387–389. Sandra Fredman, Discrimination Law (2nd ed, 2011) Oxford University Press 181–182.

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The challenge with non-ideal behaviour is that often certain behaviours are critical to many positions. The capacity to work in groups or to control anger are commonly required in work settings. While employers could reorganise their workplace to accommodate such psychosocial diversity, reasonable accommodation laws privileging accommodations of physical and sensory impairments over mental impairments relating to behaviour mean that it is often up to the employer whether they wish to accommodate the diversity or to discriminate and use the business necessity defence.

iv challenges for workers with psychosocial disabilities in making reasonable accommodation requests A ‘Coming Out’ with Mental Disability as an Invisible Impairment Disabilities include visible and invisible impairments. Visible impairments are those that are readily apparent without a need for the person with a disability to disclose. A person who is totally blind and uses a white cane is obviously disabled, while a person with low vision may pass off as having sight. Psychosocial disabilities are almost always invisible; that is, an employer may not know a person has a mental impairment during the recruitment stages and perhaps well into their employment or even never become aware of the impairment.95 Health screening, genetic testing and data mining may alter what impairments are visible and invisible in the future.96 Persons with invisible disabilities confront a difficult choice, whether they ask for the support they need and expose themselves to discrimination, or whether they try to cope with barriers to ability diversity in silence.97 Many workers are reluctant to show weakness to their employers. Work relationships 95

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Susan G Goldberg, Mary B Killeen and Bonnie O’Day, ‘The disclosure Conundrum: How People with Psychiatric Disabilities Navigate Employment’ (2005) 11(3) Psychology, Public Policy, and Law 463. Mark Burdon and Paul Harpur, ‘Re-Conceptualising Privacy and Discrimination in an Age of Talent Analytics’ (2014) 37(2) University of New South Wales Law Journal 679; Aisling De Paor and Charles O’Mahony, ‘The Need to Protect Employees with Genetic Predisposition to Mental Illness? The UN Convention on the Rights of Persons with Disabilities and the Case for Regulation’ (2016) 26 Industrial Law Journal 33. P W Corrigan, J E Larson, P J Michaels, B A Buchholz, R Del Rossi, M Fontecchio, D Castro, M Gause, R Krzyżanowski and N Rüsch, ‘Diminishing the Self-Stigma of Mental Illness by Coming Out Proud’ (2015) 229 Psychiatry Research 148; P W Corrigan and D Rao, ‘On the Self-Stigma of Mental Illness: Stages, Disclosure, and Strategies for Change’ (2012) 57 Canadian Journal of Psychiatry 464; Susan G Goldberg, Mary B Killeen and Bonnie O’Day, ‘The Disclosure Conundrum: How People with Psychiatric Disabilities Navigate Employment’ (2005) 11(3) Psychology, Public Policy, and Law 463; Andi Sanderson, ‘Shedding

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are contractual relationships where the capacity of the worker to add value to the business strongly influences their renumeration, retention and promotion. The pressure to portray a certain image has contributed to a range of harmful practices, such as presenteeism98 and leaveism.99 Workers fearing being marked with a stigma can provide false information about their status, conceal their real situation or just act with discretion to ensure they are not outed.100 The pressure to ‘pass as normal’ is intense for those already experiencing mental health strain.101 The greater the stigma attached to the attribute, the greater the pressure not to disclose their disability to their employer.102 Reasonable accommodations require a person to come forward, identify as having a disability, and request a change to enable them to operate effectively with that disability.103 Whereas universal or inclusive design seeks to remove barriers to ability diversity automatically, reasonable accommodation laws are reactive and are only activated on request. They do not seek to ensure ability equality, but instead operate as welfare for those who are dependent and in need of extra help.104

B Dilemma for Reasonable Accommodation: Emphasising Sameness or Difference In practice, reasonable accommodation laws are actioned when a worker with a disability approaches their actual or potential employer to make certain changes to the work environment to enable them to operate on an equal basis Light on a “Hidden” Disability: Realizing the Potential of Dyslexic Employees’ (2011) 19(1) Human Resource Management International Digest 36. 98 Paul Hemp, ‘Presenteeism: At Work – But Out of It’ (2004) 82(10) Harvard Business Review 49; Gary Johns, ‘Presenteeism in the Workplace: A Review and Research Agenda’ (2010) 31(4) Journal of Organizational Behavior 519; S L Shamansky, ‘Presenteeism. . . Or When Being There Is Not Being There’ (2002) 19(2) Public Health Nursing 79–80. 99 Ian Hesketh, Cary L Cooper and Jonathan Ivy, ‘Leaveism and Public Sector Reform: Will the Practice Continue?’ (2014) 1(2) Journal of Organizational Effectiveness: People and Performance 205; J Gerich, ‘Leaveism and Illness-Related Behaviour’ (2015) 65(9) Occupational Medicine 746. 100 J A Clair, J E Beatty and T L Maclean, ‘Out of Sight but Not out of Mind: Managing Invisible Social Identities in the Workplace’ (2005) 30(1) Academy of Management Review 78. 101 D Ridge and S Ziebland, ‘Understanding Depression through a “Coming Out” Framework’ (2012) 34(5) Sociology of Health & Illness 730. 102 P W Corrigan, ‘Don’t Call Me Nuts: An International Perspective on the Stigma of Mental Illness’ (2004) 109 Acta Psychiatrica Scandinavica 403. 103 Jennifer A Butler and Daniel P Modaff, ‘Motivations to Disclose Chronic Illness in the Workplace’ (2016) 17(1) Qualitative Research Reports in Communication 77. 104 Leslie Francis, ‘Understanding Disability Civil Rights Non-Categorically: The Minority Body and the Americans with Disabilities Act’ (2018) 175(5) Philosophical Studies 1135.

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with others. Subject to a worker obtaining a court order against their employer, the employer and worker would reach agreement on what accommodations are reasonable. The employer would fund the request unless they are able to access State or charitable support. The State and charities will perform their own assessments what they believe are reasonable accommodations.105 Reasonable accommodation provisions in anti-discrimination laws contain a paradox: the more barriers a person with a disability can point to that disables their capacity to work, the more resources they will attract to have those barriers removed. This has led to some people with disabilities gaming the system, by anticipating that some of their requests will be rejected and thus asking for more than they need to ensure they obtain what they need.106 Of course, if a person is too disabled and those accommodations or adjustments are held to be unreasonable, then the employer can refuse to make the changes and terminate their relationship with the worker without violating anti-discrimination laws. This leads to a difficult choice for many persons with disabilities107: Do they act to emphasise their ability to work without any changes to make themselves more attractive to employers and the labour market at large, or do they request that the barriers that are reducing their capacity to work on an equal basis as others be removed? This paradox requires individual workers with disabilities and disability representative groups to decide whether they wish to emphasise their ‘sameness’, to reduce the appearance of divergence from the norm in the hope this will reduce prejudice and gain greater acceptance, or emphasise difference, to justify the need for resource allocation and to access other supports.108 The question about whether to emphasise sameness or difference is challenging for all persons with disabilities.109 Margaret Vickers has observed that 105

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Mark Weber, ‘Disability Rights, Disability Discrimination, and Social Insurance’ (2009) 25 Georgia State University Law Review 575. P de Wolfe, ‘Reaping the Benefits of Sickness? Long Term Illness and the Experience of Welfare Claims’ (2012) 27(5) Disability and Society 617; Chris Grover and Linda Piggott, ‘Disability and Social (In)Security: Emotions Contradictions of Inclusion and Employment and Support Allowance’ (2013) 12(3) Social Policy and Society 369. Sally Lindsay, Elaine Cagliostro and Gabriella Carafa, ‘A Systematic Review of Workplace Disclosure and Accommodation Requests among Youth and Young Adults with Disabilities’ (2017) 40(25) Disability and Rehabilitation 2971. J Bickenbach, ‘Universally Design Social Policy: When Disability Disappears?’ (2014) 36(16) Disability and Rehabilitation 1320, 1320. Sally Lindsay, Elaine Cagliostro and Gabriella Carafa, ‘A Systematic Review of Workplace Disclosure and Accommodation Requests among Youth and Young Adults with Disabilities’ (2017) 40(25) Disability and Rehabilitation 2971; Fehmidah Munir, S Leka and A Griffiths, ‘Dealing with Self-Management of Chronic Illness at Work: Predictors for Self-Disclosure’

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persons with multiple sclerosis ‘may well want to manage others’ impressions of them, hiding facts about themselves which, if known, could discredit, disrupt, or ruin others’ impressions of them, especially at work’.110 The highly charged stigma associated with many psychosocial disabilities means that once the medical condition is revealed, the stigmatised status can be given preference over all other characteristics, including work history, qualifications or legal entitlements. Regardless of a worker’s actual proven capacity and potential, being identified as a person with a neurological or psychosocial impairment will result in prejudice and inequalities.111 Overt and subtle forms of sanism and ableism will impact upon relationships, and how a person marked as different is treated by legal and work systems.112

C What Happens If the Accommodation Request Is Rejected? The decision to emphasise sameness or difference is also influenced by the probability of the accommodation being approved and implemented. If a worker with a disability asks for everything they require to perform their job, on an equal basis as others, then they are also saying that they need all these accommodations to work on an equal basis as others. What happens if the request is refused in part? The worker with a disability has indicated to an employer that they require all of these accommodations to be able to perform. If the worker only obtains 80 per cent of the requested accommodations then, based upon the worker’s own assessment, they are not able to perform as efficiently as the workers without a disability. Research illustrates that persons with disabilities rarely obtain all the accommodations they request and require.113 Accordingly, persons with disabilities are motivated by work (2005) 60 Social Science & Medicine 1397; Damien Ridge, Alex Broom, Renata Kokanović, Sue Ziebland and Nicholas Hill, ‘Depression at Work, Authenticity in Question: Experiencing, Concealing and Revealing’ (2017) Health 1363459317739437. 110 Margaret H Vickers, ‘Dark Secrets and Impression Management: Workplace Masks of People with Multiple Sclerosis (MS)’ (2017) 1-2 Employee Responsibilities and Rights Journal 1. 111 Elizabeth F Emens, ‘Framing Disability’ (2012) University of Illinois Law Review 1383. Emens observes a ‘striking gap between the ideas about disability pervasive in mainstream society. . . and the ideas about disability common in the disability community’. 112 Michael L Perlin, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (2013) Ashgate 2. 113 Nicole Brown and Jennifer Leigh, ‘Ableism in Academia? Where Are the Disabled and Ill Academics?’ (2018) 33(6) Disability & Society 985; Susan M Bruyere, William A Ericson and Sara VanLooy, ‘Comparative Study of Workplace Policy and Practices Contributing to Disability Non-Discrimination’ (2004) 49 Rehabilitation Psychology 28; Kay Inckle, ‘Unreasonable Adjustments: The Additional Unpaid Labour of Academics with Disabilities’ (2018) 33(8) Disability & Society 1372; Damian Mellifont, Jennifer Smith-Merry and Justin

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practices to limit their requests to those accommodations that are almost certainly going to be granted, lest they are regarded as suboptimal workers when other accommodation requests are refused.

D Employer Demanding Disclosure of Disability While persons with disabilities may desire to withhold details of their medical condition, employers need to manage risk and their business and can respond negatively if a person with an invisible disability identifies as disabled and requests support. A participant in one of Paul Harpur’s studies illustrates this point.114 The participant in this situation was legally blind but had sufficient sight to be able to pass as sighted for interviews and until they had to read something at work. The participant was working in the United States and had the right not to disclose their disability in the circumstances. The participant reported: ‘One job I did not tell them what support I needed until I had the job. The impression was that I put one over them. That was a mistake.’115 If employers feel aggrieved, they may take subtle or overt action against workers with disabilities. In Cook v. Oberon City Council, a job applicant did not disclose at the interview stage that he had a history of having a difficulty with his knee.116 The worker contended that the recruitment process involved a health check and that was the appropriate place to discuss his medical history. Managers felt that the potential worker had misled them, and they withdrew their offer of employment because they had been misled. The Court found that an employer could dismiss a worker for misleading them and not violate anti-discrimination laws, even if the managers’ belief that they were misled was incorrect.117 The Court determined that if the employer had dismissed the worker because they had claimed workers’ compensation for a previous knee injury, then this would be prohibited and discriminatory. It is arguably curious that the Court found for the employer, because if the worker had disclosed their previous knee injury and the employer had taken adverse action, but the injury in fact had no impact upon their capacity to fulfil their duties, the employer would be liable for discriminatory conduct.

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Newton Scanlan, ‘Disabling Accommodation Barriers: A Study Exploring How to Better Accommodate Government Employees with Anxiety Disorders’ (2016) 55(3) Work 549. Paul Harpur, ‘Naming, Blaming and Claiming Ablism: The Lived Experiences of Lawyers and Advocates with Disabilities’ (2014) 29(8) Disability and Society 1234. Ibid. Cook v. Oberon City Council [2010] FMCA 624. [2010] FMCA 624, [259].

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E Resistance to Psychosocial Diversity at Work and to Making Reasonable Accommodations for Workers with Mental Impairments Reasonable accommodation laws are interpreted and applied by managers, workers and others at the workplace.118 Accordingly, managerial and co-worker knowledge and support of reasonable accommodation laws and practices will determine how workers with disabilities experience ability equality at work.119 This section will analyse how the law, employers, and co-workers approach reasonable accommodations and adjustments for people with psychosocial disabilities. Regardless of the impairment, the power imbalance between employers and workers with disabilities, combined with a range of other factors, regularly results in reasonable accommodations being deemed unreasonable.120

F Uncertainty on How to Accommodate Psychosocial Impairments The capacity to obtain clear and certain accommodation advice is greater for people with physical and sensory impairments. Psychiatrists are arguably less able to predict behaviour than orthopaedic surgeons and ophthalmologists can predict functional limitations. A professional adviser can state with 100 per cent certainty that a ramp will enable the worker to access the building. The same level of certainty is not possible with psychosocial disabilities. The lack of certainty about the impact of the accommodation and adjustment arguably reduces employers’ willingness to make changes and incur expenditure. The hostility to embracing psychosocial diversity can be highlighted by the offensive views of some lawmakers; for example: ‘What are employers expected to do to accommodate alcoholics, the mentally retarded, or persons with 118

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Pauline Dibben, Phil James and Ian Cunningham, ‘Senior Management Commitment to Disability: The Influence of Legal Compulsion and Best Practice’ (2001) 30(4) Personnel Review 454; Angus Duff, John Ferguson and Karen Gilmore, ‘Issues Concerning the Employment and Employability of Disabled People in UK Accounting Firms: An Analysis of Human Resource Managers as Employment Gatekeepers’ (2007) 39(1) British Accounting Review 15. Cavanagh, Jillian, Timothy Bartram, Hannah Meacham, Christine Bigby, Jodi Oakman and Ellie Fossey, ‘Supporting Workers with Disabilities: A Scoping Review of the Role of Human Resource Management in Contemporary Organisations’ (2017) 55(1) Asia Pacific Journal of Human Resources 6. Barlow J H, C C Wright and S Wright, ‘Development of Job-Seeking Ability in People with Arthritis: Evaluation of a Pilot Program’ (2003) 26(4) International Journal of Rehabilitation Research 329; H Stephen Kaye, Lita H Jans and Erica C Jones ‘Why Don’t Employers Hire and Retain Workers with Disabilities?’ (2011) 21(4) Journal of Occupational Rehabilitation 526.

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neurotic or psychotic disorders? This Senator has no idea and I doubt that other Senators do either.’121 G Functional Accommodations vs. Changing Workplace Norms Persons with physical and sensory disabilities primarily seek functional supports to enable them to fit into the workplace. The focus is upon enabling them to operate within work systems. Persons with psychosocial disabilities, in contrast, often request to change workplace norms. Accommodations which involve altering behavioural and social norms are difficult to implement, are not widely embraced by employers, and can attract resistance .122 Nicole Buonocore Porter has observed that courts are prepared to find expensive physical accommodations reasonable, but regularly find comparatively inexpensive accommodations that alter how the workplace operates as unreasonable.123 Essentially, law and work practices can accept ability diversity which can fit in to existing work structures, but are loathe to alter structural norms.124 Accommodating mental impairments can involve significant and unreasonable changes to workplace behaviours.125 For example, in Heisler v. Metro. Council a supervisor developed a major depressive episode which made extended contact with employees they were supervising unbearable;126 in Ray v. Kroeger Co. an employee working in a retail store had Tourette syndrome which caused them to make inappropriate remarks;127 in Menchaca v. Maricopa Cmty. Coll. Dist. an employee previously managed their volatility with a support at work which was removed;128 and in Jakubowski v. Christ Hosp., Inc. a medical resident struggled to communicate with patients due to

Korn, ‘Crazy (Mental Illness Under the ADA)’ 585, 619. Vidya Sundar, ‘Operationalizing Workplace Accommodations for Individuals with Disabilities: A Scoping Review’ (2017) 56 Work 1, 135: The far majority were assistive technology and specialised equipment (40 per cent), a very small percentage of studies included policy changes (9 per cent) and human assistance (5 per cent). 123 Nicole Buonocore Porter, ‘The New ADA Backlash’ (2014) 82(1) Tennessee Law Review 70, 78–80. 124 Nicole B. Porter, ‘Caregiver Conundrum Redux: The Entrenchment of Structural Norms’ (2013) 91 Denver University Law Review 963. 125 Anthea Bill, Sally Cowling, William Mitchell and Victor Quirk, ‘Employment Programs for People with Psychiatric Disability: The Case for Change’ (2006) 41(2) Australian Journal of Social Issues 209: arguing that the state must ensure the design of jobs is flexible enough to meet the heterogeneous and variable support needs of workers with psychiatric disabilities. 126 Heisler v. Metro. Council, 339 F 3d 622, 628-29 (8th Cir, 2003). 127 Ray v. Kroeger Co., 264 F Supp 2d 1221, 1224 (SD Ga, 2003). 128 Menchaca v. Maricopa Cmty. Coll. Dist., 595 F Supp 2d 1063, 1071 (D Ariz, 2009). 121

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their Asperger’s syndrome.129 All of the proposed accommodations in the aforementioned cases involved significant adjustments and ongoing management to human interactions. Functional requests are arguably easier for employers to agree to when compared to behavioural changes.130 A functional change often involves a minor change to a physical or digital space. The change can involve a finite process of making a change, and only involve a human resource manager, a technical staff member (for example IT) and the worker with a disability. Behavioural accommodations, in contrast, can involve changes to normal workplace practices and can require continuing effort or understanding on behalf of co-workers and, potentially, external parties such as suppliers and customers. I, the author of this monograph, am blind. When I start with a new employer, I ask for early access to the laptop and work area to set it up. I have my own software and only need an information technology person to spend some time setting up the software and showing me through the systems. After this, for all intents and purposes, I am ability assimilated. I had a colleague with a psychosocial disability who sort behavioural changes in the workplace. When the colleague in question became flustered, co-workers and others were requested to give them space to walk away and calm down. This was challenging to communicate to all co-workers across the university campus who might come into contact with the colleague in question, and that person did not remain in the academic position for long. H Role of Stigma Reflecting sanism in society, research demonstrates that many employers indicate significant discomfort in making accommodations and adjustments for people with mental impairments.131 This reluctance operates even where the accommodation for a mental impairment involves an engineering control

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Jakubowski v. Christ Hosp., Inc., 627 F 3d 195, 198 (6th Cir, 2010). Jane Byeff Korn, ‘Cancer and the ADA, Rethinking Disability’ (2001) 74 Southern California Law Review 399, 447; Karen Dill Danforth, ‘Reading Reasonableness out of the ADA: Responding to Threats by Employees with Mental Illness Following Palmer’ (1999) 85 Virginia Law Review 677. Lizabeth A Barclay and Karen S Markel, ‘Ethical Fairness and Human Rights: The Treatment of Employees with Psychiatric Disabilities’ (2009) 85 Journal of Business Ethics 333, 333; Stephanie Miller, ‘Comment, Keeping the Promise: The ADA and Employment Discrimination on the Basis of Psychiatric Disability’ (1997) 85 California Law Review 701.

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that is widely accepted and used to accommodate physical and sensory impairments.132 Stigma against psychosocial disabilities influences employers’ decisions not to have relevant reasonable accommodation policies133 or make accommodations and adjustments for workers with psychosocial disabilities.134 Some employers are not shy about their prejudice against people with psychosocial disabilities and openly discriminate against people from this group.135 Chalker v. Murrays Australia Pty Ltd provides a clear case of the hierarchy of impairments in action,136 in which an employer refused to make a reasonable accommodation for a worker with a psychosocial disability. The Murrays recruiter conceded in the proceedings that if the worker was in remission from cancer instead of having a borderline personality disorder, then the worker would not have been subjected to the same treatment: ‘[i]n similar circumstances, if a candidate with cancer had engaged in the same behaviours, we are satisfied that [the recruiter] would have accepted the recommendation of referral for an independent evaluation, rather than deciding not to employ the person’. Despite the barriers to requesting accommodations and adjustments, workers with psychosocial disabilities are making and receiving such requests.137

I Co-Worker Sanism There can be tensions between the wider workforce and workers with disabilities who receive accommodations or adjustments.138 Accommodations and

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Susan D Carle, ‘Analyzing Social Impairments under Title I of the Americans with Disabilities Act’ (2017) 50 UC Davis Law Review 1109: observing that ‘even when the need for a wellaccepted type of accommodation applies equally to employees with physical and social impairments, courts show more scepticism towards employees in the latter group’. Ian Cunningham, Philip James and Pauline Dibben, ‘Bridging the Gap between Rhetoric and Reality: Line Managers and the Protection of Job Security for Ill Workers in the Modern Workplace’ (2004) 15(3) British Journal of Management 273–290. Mark Bell, ‘Mental Health at Work and the Duty to Make Reasonable Adjustments’ (2015) 44 Industrial Law Journal 194. Hand and Tryssenaar found that only 22 out of 58 managers interviewed would even consider hiring a worker with a psychosocial disability: Carri Hand and Joyce Tryssenaar, ‘Small Business Employers’ Views on Hiring Individuals with Mental Illness’ (2006) 29(3) Psychiatric Rehabilitation Journal 166. Chalker v. Murrays Australia Pty Ltd [2017] NSWCATAD 112. Karen Patterson, ‘Accommodating Employees with Mental Impairments: An Empirical Study of Employer Practices’ (2012) 5(1) International Journal of Private Law 40. Nicole B Porter, ‘Reasonable Burdens: Resolving the Conflict between Disabled Employees and their ‘Coworkers’ (2007) 34 Florida State University Law Review 313.

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adjustments can involve work displacement and resentment from co-workers about perceived benefits. Professor Nicole Buonocore Porter has analysed the stigma which attaches to people who have disabilities that are perceived as not very severe. Porter argues that people with disabilities that are perceived as less severe are stigmatised because of the special treatment they receive (or are perceived to be receiving) through workplace accommodations provided pursuant to disability anti-discrimination laws. 139 This special treatment stigma is most acute when co-workers believe that the special treatment is unwarranted or unfair.140 This stigma not only manifests itself in resentment and other negative treatment of individuals with disabilities by their co-workers, but it also can cause employers to avoid accommodations that place any burdens on workers without disabilities. This failure to make reasonable accommodations substantially hinders the capacity of workers with psychosocial disabilities to succeed at work. The primary difference between workers with physical and sensory impairments, when compared to those with mental impairments, is understanding and attitude. For example, co-workers are arguably more understanding that a worker in a wheelchair must have an office on the ground floor when compared to a person with depression needing to have flexibility if they sleep in.141 Hostility from co-workers can have negative consequences for a worker as well as reducing team work and the potential for favourable performance appraisals. Co-worker stigma does not exist in isolation from organisational practices and structures which can reinforce ableism. Indeed, research has identified that employers are more prepared to introduce anti-stigma interventions which promote understanding between individuals, rather than dealing with the managerial and structural factors which contribute to mental health stigma at work.142

Nicole Buonocore Porter, ‘Special Treatment Stigma after the ADA Amendments Act’ (2016) 43 Pepperdine Law Review 213. 140 Nicole Buonocore Porter, ‘Why Care About Caregivers: Using Communitarian Theory to Justify Protection of “Real” Workers’ (2010) 58 Kansas Law Review 355, 359. 141 Richard Sahlin, ‘Reasonable Accommodation for Faculty with Psychosocial Impairment: A Legal Analysis of the University’s Duty in the US, the UK and Sweden’ (2009) 10 International Journal of Discrimination and the Law 57. 142 Claire Henderson and Petra C Gronholm, ‘Mental Health Related Stigma as a ‘Wicked Problem’: The Need to Address Stigma and Consider the Consequences’ (2018) 15(6) International Journal of Environmental Research and Public Health 1158. 139

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conclusion Workers with disabilities are not being treated equally by reasonable accommodation laws. This chapter has demonstrated that workers with psychosocial disabilities confront greater resistance to exercising their rights of access and reasonable accommodations, compared to workers with physical and sensory disabilities. It started by analysing how reasonable accommodations can enable persons with psychosocial disabilities to exercise their right to work on an equal basis as others. It then illustrated that accommodations can be made which will substantially enable workers with psychosocial disabilities to exercise their right to work and employment. Recognising the importance of reasonable accommodations at work, international legal norms grant workers the right to access and to demand accommodations of their disabilities at work. While ILO conventions have not actively promoted these rights, later ILO publications have reflected changes in international norms. The CRPD has transformed workers’ rights to universal design and reasonable accommodations and the CRPD Committee has reinforced this normative shift. The analysis of anti-discrimination laws in the remainder of this chapter illustrated considerable barriers confronting workers with psychosocial disabilities. The notion of reasonableness is strongly influenced by prejudice against psychosocial impairments. The failure by law and work practices to address ableism at work perpetuates a hierarchy of impairments, which leaves workers with psychosocial disabilities unable to exercise their right to work on an equal basis with workers without disabilities, or with less stigmatised impairments.

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8 Using Occupational Safety and Health Laws to Promote Psychological Health at Work

introduction Occupational safety and health (OSH) laws1 are often regarded as a barrier to ability equality at work.2 OSH laws can hinder persons with disabilities, but they also contain provisions that can be used to promote psychosocial diversity at work. The operation of OSH duties to protect workers’ psychological health requires increased attention following the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD).3 The CRPD introduces a new paradigm for analysing international and domestic OSH laws. Section I will

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Laws which manage workplace health and safety are variously referred to as occupational health and safety (OHS), occupational safety and health (OSH), and work health and safety (WHS). This chapter will follow the lead of the ILO and use the term OSH. Philip Bohle, Claudia Pitts and Michael Quinlan, ‘Time to Call It Quits? The Safety and Health of Older Workers’ (2010) 40(1) International Journal of Health Services 23, 36; Susanne M. Bruyere, Occupational Safety and Health and Disability Nondiscrimination in the Workplace: Complying with Dual Requirements (2002) Employment and Disability Institute Collection; Melanie K Jones, Paul L Latreille, Peter J Sloane and Anita V. Staneva, ‘WorkRelated Health Risks in Europe: Are Older Workers More Vulnerable?’ (2013) 88 Social Science & Medicine 18; Glen P Kenny, Herbert Groeller, Ryan McGinn and Andreas D Flouris, ‘Age, Human Performance, and Physical Employment Standards’ (2016) 41(6) Applied Physiology, Nutrition, and Metabolism S92–S107; Vicki A Laden and Gregory Schwartz, ‘Psychiatric Disabilities, the Americans with Disabilities Act, and the New Workplace Violence Account’ (2000) 21 Berkeley Journal of Employment and Labor Law 246; Larry E Mundy, Approaching Safety from an ADA Perspective (2005) ASSE Professional Development Conference and Exposition American Society of Safety Engineers; Michael T Zugelder, Paul Champagne and Steven D Maurer, ‘Balancing Civil Rights with Safety at Work: Workplace Violences and the ADA’ (2000) 12(2) Employee Responsibilities and Rights Journal 93. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

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analyse this shift and to critique OSH laws and practices against this new paradigm. This chapter argues that if workplace practices followed the psychological health component of OSH laws, then OSH laws change from being a barrier to equality to a means of supporting psychosocial diversity at work. While major shifts in workplace and regulatory policies are improbable at best, significant outcomes can be achieved in this space with only small changes. Section II demonstrates that psychological health duties already exist and positive outcomes could be achieved with minor shifts in practices. While OSH laws have the potential to promote psychosocial diversity at work, although not appropriately enforced by the state,4 they also represent a significant roadblock to ability equality. Section III analyses how OSH laws require businesses to intervene where manifestations of psychosocial diversity can create actual, probable or perceived risks to health and safety. The failure to appropriately discharge OSH duties for a worker with psychological needs results in that worker with a disability being disadvantaged by the operation of other OSH laws. Anti-discrimination laws have been the main source of pressure for employers to make reasonable accommodations in the workplace, and to prevent manifestations of psychosocial disabilities from creating risks to OSH. Section IV will analyse the limited capacity of anti-discrimination laws to moderate the operation of OSH practices which hinder ability diversity at work. Rather than relying on anti-discrimination laws, this chapter argues that the higher duties and concepts of reasonableness from OSH can be used to require much more from employers. If employers fail to make reasonable accommodation which then leads to an OSH problem, then this is often a failure to manage health at work. The fact that an OSH concern arises means that OSH duties to protect workers with disabilities should be satisfied. Whereas anti-discrimination law duties are reactive and require little proactive conduct, OSH laws are entirely proactive and require substantial efforts from employers. Accordingly, if psychological health is approached from an OSH perspective, then this will promote ability diversity at work.

4

The state is the primary enforcer of OSH laws, and a limited tort of breach of statutory duty is available in those jurisdictions where workers’ compensation schemes do not exclude worker actions. For a discussion of the breach for of statutory tort see: Neil Foster, Workplace Health and Safety Law in Australia (2nd ed, 2016), Lexis Nexis.

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i international law norms on occupational safety and health and disability at work While workers’ right to safety and health can be derived from the right to work, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and some regional human rights conventions have gone further and expressly recognise and protect workers’ right to safety and health.5 Article 7 of the ICESCR provides clear support for the right to safe work, recognising the right of everyone to the enjoyment of just and favourable conditions of work, including ‘[s]afe and healthy working conditions’.6 Similarly, regional conventions support the link between the right to work and safety; for example, the Charter of Fundamental Rights of the European Union expressly links an employee’s right to work with the worker’s right to safety and health.7 Article 15 protects workers’ right to work by stating that ‘[e]veryone has the right to engage in work and to pursue a freely chosen or accepted occupation’. Article 31(1) of the Charter then ensures that work is performed in a safe manner: ‘[e]very worker has the right to working conditions which respect his or her health, safety and dignity’. The African [Banjul] Charter on Human and Peoples’ Rights provides that ‘[e]very individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work’.8 The necessity for workers’ safety at work to be protected by statute has a long history.9 The ILO has asserted employees’ safety at work can only be protected where nations enforce robust OHS legislation.10 The ILO’s Occupational Health and Safety and the Working Environment Convention 1981 has been

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Paul Harpur, ‘Labour Rights as Human Rights: Workers’ Safety at Work in Australian-based Supply Chains’ (PhD Thesis, Queensland University of Technology, 2009). International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). Charter of Fundamental Rights of the European Union, 2000 OJ (C 364) 2000 (Proclaimed by the European Parliament, the Council and the Commission on 7 December 2000). African [Banjul] Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982) (entered into force 21 October 1986) art 15. Richard Johnstone, ‘Occupational Health and Safety Prosecutions in Victoria: Historical Study’ (2000) 13 Australian Journal of Labour Law 113. ILO Convention No. 81 concerning Labour Inspection in Industry and Commerce, opened for signature 11 July 1947, ATS 11 (entered into force for Australia 24 June 1976).

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ratified by 67 states,11 ranging across cultures and regions,12 which agree to establish a national policy ‘to prevent accidents and injury to health arising out of, linked with or occurring in the course of work, by minimising, so far as is reasonably practicable, the causes of hazards inherent in the working environment’.13 A majority of states in the world have introduced some form of OSH legislation. The ILO has taken a strong stance in opposition to violence and harassment at work. For the first time in history, violence and harassment in the world of work are expressly covered in an ILO convention and recommendation. In June 2019, the Centenary International Labour Conference adopted the ILO Convention (No. 190) concerning the elimination of violence and harassment in the world of work and Recommendation concerning the elimination of violence and harassment in the world of work.14 This applies to private and public sectors,15 embraces a wide notion of worker,16 defines work and work activities broadly,17 and targets conduct which can lead to harassment and violence at work. The convention requires State Parties to mandate that employers, commensurate with their degree of control, to prevent violence and harassment in the world of work.18 The ‘associated psychosocial risks in the management of occupational safety and health’ are targeted.19 This intensified focus on preventing harassment and violence at work requires additional steps to be taken by employers, and mandated by states, to identify hazards and take measures to control such hazards.20 The adoption of the latest ILO convention will increase negative attention on those who engage in non-standard social interactions at work. As workers with psychosocial disabilities can engage in non-mainstream social interactions, it is important to ensure that initiatives preventing harassment 11

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International Labour Organization (ILO), ‘Ratifications of C155 - Occupational Safety and Health Convention, 1981 (No. 155)’, NORMLEX: Information System on International Labour Standards. www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_ INSTRUMENT_ID:312300. Ibid. Convention concerning Occupational Safety and Health and the Working Environment, concluded 22 June 1981, 1331 UNTS 279 (entered into force 11 August 1983) art 4(2). ILO Convention (No. 190) Convention concerning the elimination of violence and harassment in the world of Work and Recommendation concerning the elimination of violence and harassment in the world of work (adopted 21 June 2019, not yet in force). Ibid., art 2. Ibid., art 1. Ibid., art 3. Ibid., art 9. Ibid., art 9(b). Art 9(c).

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and violence at work do not have unintended negative consequences for workers with disabilities. The universal application of human rights laws has often not translated to ability equality on the ground when it comes to OSH. The CRPD has directly addressed OSH and thus has altered how ability equality and OSH should be balanced. The CRPD specifically anticipates a conflict between OSH laws and disability rights, and provides in article 27(1)(a) that State Parties must prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including with respect to legislation and policies concerning safe and healthy working conditions. There appears to be little doubt that workers with disabilities confront bullying, discrimination and harassment at work.21 Evidence presented in this chapter suggests that the law of work is not appropriately balancing OSH and ability equality. Despite this apparent regulatory failure, the CRPD Committee has not addressed the intersection between workers’ right to work and the regulation of safe and healthy working conditions in its General Comments or Concluding Observations on State parties.

ii helping psychosocial diversity: occupational safety and health duties to promote the psychological health of workers This section analyses how OSH laws impose a duty upon employers to take practicable steps to protect their workers’ psychological health. Where this duty is satisfied, it will enhance the capacity of workers with psychosocial disabilities to manage their impairments at work. The opposite outcome would be achieved where these duties are ignored by employers. Where employers fail to manage their workers psychological health, or even worse, act against workers for being diverse, it is likely to result in workers with psychosocial disabilities being unable to manage their impairment at work. In addition to breaching workers’ rights under OSH and human rights norms, this can cause workers to act out in ways which causes employers to act against them, as analysed in Section III. 21

Hazel Mawdsley and Duncan Lewis, ‘Lean and Mean: How NPM Facilitates the Bullying of UK Employees with Long-Term Health Conditions’ (2017) 37(5) Public Money and Management 317. Mawdsley and Lewis’s empirical study explores perceptions of bullying among public sector workers with long-term health conditions, using focus groups and interviews with knowledgeable trade union members and representatives. They reported incidents of overt discrimination and more subtle forms of discrimination.

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It is important to note that there are many situations where parties attract duties to reduce risks to health and safety under OSH laws without attracting any duties for disability inclusion. This situation arises because OSH laws cast a wide regulatory net and regulate all parties who can impact upon health and safety at work. Consequently, upstream duties are imposed upon designers, manufacturers and suppliers, as well as upon corporate officers.22 Antidiscrimination laws in contrast regulate by reference to specific contractual relationships and, in the work setting, rarely impose duties beyond the employer/employee and principal/contractor relationships. While this issue is relevant for enhancing enforcement,23 it is beyond a monograph focusing on the hierarchy of impairments.

A Employers’ Duty to Manage Their Workers’ Psychological Health OSH laws exist in Australia,24 the United States,25 Ireland,26 New Zealand,27 the United Kingdom28 and Canada.29 The OSH laws in these countries use 22

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Elizabeth Bluff, Richard Johnstone, Maria McNamara and Michael Quinlan, ‘Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders’ (2012) 25(1) Australian Journal of Labour Law 23. Paul Harpur and Philip James, ‘The Shift in Regulatory focus from Employment to Work Relationships: Critiquing Reforms to Australian and UK Occupational Safety and Health Laws’ (2014) 36(1) Comparative Labor Law and Policy Journal 111. Australia has harmonised its laws through most state and territory jurisdictions enacting a model OSH law. The Work Health and Safety Act 2011 (Qld) (hereinafter WHS Act) will be used in this chapter rather than referring to the law of every state. Two jurisdictions have not adopted the model law. Occupational Safety and Health Act of 1970, Pub L No 91-596, 84 Stat 1590 (codified as amended at 29 USC chapter 15). Safety, Health and Welfare at Work Act 2005 (Ireland); Safety, Health and Welfare at Work (General Application) Regulations 2007 (Ireland). Health and Safety at Work Act 2015 (NZ). Corporate Manslaughter and Corporate Homicide Act 2006 (UK); Health and Safety at Work Act 1974 (UK). Canadian Occupational Health and Safety Law 1983 (Canada); Occupational Health and Safety Act 1988 (Alberta); Occupational Environment Regulations 1974 (British Columbia); Workplace Health and Safety Regulation 1988 (Manitoba); Occupational Health and Safety Act 1985 (New Brunswick); Occupational Health and Safety Act 1978 (Newfoundland); Occupational Health and Safety Regulations 1989 (Northwest Territories); Occupational Health and Safety Act 1986 (Nova Scotia); Occupational Health and Safety Act and Regulations for Industrial Establishments 1991 (Ontario); Occupational Health and Safety Act Regulations 1987 (Prince Edward Island); Act No.133 – Act Modifying the Act Respecting Occupational Health and Safety and Other Legislative Measures 2003 (Quebec); Occupational Health and Safety Act 1993 (Saskatchewan); Occupational Health and Safety Regulations 1988 (Yukon); OSH in Canada is primarily regulated at the provincial/territorial level, with federal laws in certain situations interacting with such laws: Larry Dunn, Shaun Hohman and Jane

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management-based systems to promote workplace safety.30 For example, the primary duty of care in the Australian harmonised OSH law, the Workplace Health and Safety Act 2011 (Qld) s 19 requires employers: To ensure, so far as is reasonably practicable, the health and safety of (a) Workers engaged, or caused to be engaged by the person; and (b) Workers whose activities in carrying out work are influenced or directed by the person; whilst working in the business or undertaking. All OSH laws seek to reduce health and safety risks as far as reasonably practicable, including ensuring workers do not create risks to themselves or others.31 Beyond disability, behavioural and physical factors are standard risks managed by OSH regulators. For instance, young workers are more likely to engage in risky behaviour and suffer more work-related injuries compared to older workers32 and are more psychologically vulnerable than older workers.33 Gender can also create particular vulnerabilities; in particular, pregnant women face increased hazards while at work.34 Critically, OSH laws require employers to consider their workers individual circumstances and take reasonably practicable steps to ensure their health and safety at work.35 Employers need to do more than ask, ‘How will a psychosocial disability create a risk to OSH?’, employers also need to consider how they can prevent

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Sidnell, ‘The Collision between Federal and Provincial Occupational Health and Safety Regimes on Energy and Resource Projects’ (2013) 51 Alberta Law Review 313. Robert C Barish, ‘Legislation and regulations addressing workplace violence in the United States and British Columbia’ (2001) 20(2) American Journal of Preventive Medicine 149; Paul Harpur, ‘Occupational Health and Safety Duties to Protect Outworkers: The Failure of Regulatory Intervention and Calls for Reform’ (2007) 12(2) Deakin Law Review 48; Phil Hughes and Ed Ferrett, Introduction to Health and Safety in Construction, (5th ed, 2016) Routledge; Richard Johnstone and Michael Tooma, Work Health and Safety Regulation in Australia: The Model Act (2012) Federation Press 38. Johnstone and Tooma, Work Health & Safety Regulation in Australia: The Model Act. Bob Barnetson and Jason Foster, ‘Bloody Lucky: The Careless Worker Myth in Alberta, Canada’ (2012) 18(2) International Journal of Occupational and Environmental Health 135. For example, the Safety, Health and Welfare at Work (General Application) Regulations 2007 (Ireland) Reg 25 places additional requirements for workers with disabilities but does not consider psychological health. Reg 145, however, requires employers not to employ children for work that is ‘beyond the physical or psychological capacity of the child or young person concerned’. Sven Hove Hansson and Linda Schenk, ‘Protection without Discrimination: Pregnancy and Occupational Health Regulations’ (2016) 7(2) European Journal of Risk Regulation 404. For a discussion of the interaction between risk management and reasonableness see: Elizabeth Bluff and Richard Johnstone, ‘The Relationship between ‘Reasonably Practicable’ and Risk Management Regulation’ (2005) 18(3) Australian Journal of Labour Law 1.

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endangering their workers’ health.36 Employers duty to protect the health of their workers extends to not endangering their mental or psychological health. There are various circumstances which may cause a worker without an impairment to develop a psychosocial disability: it is widely accepted that employers can cause psychological harm where managers engage in bullying and harassment of workers;37 in other situations, psychological harm is caused to workers by managerial disinterest or ignorance.38 In Rojas v. Beacon Products Pty Ltd, for example, the system failed where management inaction to bullying, practical jokes and pranks caused a toxic culture where workers were hurt.39 Deputy President Sams said this ‘was a complete and appalling breakdown of management’s responsibility which I find to be utterly unacceptable’.40 In other situations, work systems create psychological risks through fatigue or excessive stress.41

Lawmakers have recognised some of the systemic risks to workers’ psychological health, and introduced codes of practice. In Australia, codes of practice consider the role environmental factors can have on creating psychological harm. The How to Manage Work Health and Safety Risks Code of Practice 2011 recognises that machines can cause ‘psychological hazards due to the pace of work’42 and the Managing Noise and Preventing Hearing Loss at Work Code of Practice 2011 recognises that workers experiencing acoustic incidents may experience further effects, including anger, anxiety, social isolation and other psychological problems.43 Workers with psychosocial disabilities can be more susceptible to psychological hazards than the wider worker population. Where a worker discloses the presence of their psychosocial disability to their employer, this creates a duty for their employer to help protect that worker’s psychological health. This

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For example, Health is defined in the Australian legislation to include both ‘physical and psychological health’: WHS Act, Schedule 5. Oluremi B Ayoko, Victor J Callan and Charmine E J Hartel, ‘Workplace Conflict, Bullying, and Counterproductive Behaviours’ (2003) 11(4) International Journal of Organizational Analysis 283. Kelly Williams-Whitt, Ute Bültmann, Benjamin Amick, Fehmidah Munir, Torill H Tveito, and Johannes R Anema, ‘Workplace Interventions to Prevent Disability from both the Scientific and Practice Perspectives: A Comparison of Scientific Literature, Grey Literature and Stakeholder Observations’ (2016) 26(4) Journal of Occupational Rehabilitation 417. Rojas v. Beacon Products Pty Ltd [2018] FWC 4317. Ibid. [99]. Mawdsley and Lewis, ‘Lean and Mean: How NPM Facilitates the Bullying of UK Employees with Long-Term Health Conditions’, 317. Workplace Health and Safety Queensland, How to Manage Work Health and Safety Risks Code of Practice 2011, 1.2. Workplace Health and Safety Queensland, Managing Noise and Preventing Hearing Loss at Work Code of Practice 2011, Table A2.

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chapter has already flagged that employers often exclude workers with psychosocial disabilities from workplaces in order to protect OSH. The question analysed now is whether the employers OSH duties can require employers to help workers manage their disability safely and healthily in the workplace. It can be challenging for employers to consider all the complicated needs of disability inclusion.44 While it would be challenging for an employer to embrace universal design and accommodate a wider range of ability diversity than is current industry practice, it is a different proposition to expect an employer to respond where a worker has disclosed their disability and has provided expert evidence on how their impairment can be appropriately accommodated in the workplace. In theory, employers do attract such a duty; in practice, employers are largely responding poorly to the health needs of workers with psychosocial disabilities. Where workers have disclosed a psychological disability, businesses often fail to make reasonable accommodations and appropriately manage health risks at work.45 For example, in the inquest into the death of Paula Michele Schubert, a worker was diagnosed with schizophrenia, was discriminated against, harassed and demoted by management.46 As a result of her treatment at work, the worker took her own life. In other situations, businesses are aware of a worker’s psychosocial disability and fail to make reasonable accommodations, which results in the worker’s condition being aggravated, and then dismiss the worker on the basis that the worker’s aggravated state violates OSH laws. The management of psychosocial risks at work was a key issue raised during the public consultation process for the 2018 review of the model OSH laws.47 The summary notes that there is great uncertainty about how to respond to psychosocial risks at work. The summary observes that the existing OSH laws ‘do not sufficiently focus on psychological health and that the “how” part of ensuring the psychological health and safety of workers is not clear’.48

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The CRPD art 1 identifies physical, sensory, mental and intellectual impairments. All of these impairments have their own accommodation needs. Understanding how to accommodate is one barrier to take up of universal design. See Paul Harpur, ‘From Universal Exclusion to Universal Equality: Regulating Ableism in a Digital Age’ (2013) 40(3) Northern Kentucky Law Review 529. Damian Millifont, Jennifer Smith-Merrym and Justin Newton Scanlan, ‘Disabling Accommodation Barriers: A Study Exploring How to Better Accommodate Government Employees with Anxiety Disorders’ (2016) 55(3) Work 549. Inquest into the death of Paula Michele Schubert [2018] NTLC 020. Safe Work Australia, ‘Public Consultation Summary’ (Report, 17 August 2018), Australian Government. www.safeworkaustralia.gov.au/system/files/documents/1808/2018-review-publicconsultation-summary.pdf. Ibid.

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B Failing to Discharge the Duty to Protect Workers’ Psychological Health: When Asking for Help Results in Unfavourable Treatment Many employers offer employment assistance programs or operate worker mental wellness programs to, inter alia, discharge their OSH duties to help support their workers’ health.49 While these programs are intended to help workers’ health, there is a risk that these efforts can be captured by employers’ efforts to discharge other OSH duties. People with mental impairments, or even the less serious, mental illness, confront a troubling choice: do they disclose their health concerns to a health professional or employer, and manage or cure their condition, or do they remain silent? While remaining silent may cause them personal harm, and if the individual is a real threat, potentially increase the probability of that threat materialising, seeking help may result in unfavourable treatment at work. The challenges of balancing OSH and psychological health has become a significant policy challenge for university administrators. To reduce campus violence, university administrators now expect ‘college mental health professionals to provide threat assessments for students of concern’.50 This means that a staff member or student who seeks medical assistance may have their confidential medical information disclosed to the university, which then uses this information to implement strategies to reduce the threat from harm.51 These risk assessments are not just the province of psychologists and psychiatrists; other staff who identify concerning conduct should report this conduct. One concern is that many people who are reporting threats of potential harm have no qualifications to assess mental health, and thus people are being adversely treated based upon flawed information.52

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Baicker, Katherine, David Cutler and Zirui Song, ‘Workplace Wellness Programs Can Generate Savings’ (2010) 29(2) Health Affairs 304; Lisa C Kaspin, Kathleen M Gorman and Ross M Miller, ‘Systematic Review of Employer-Sponsored Wellness Strategies and Their Economic and Health-Related Outcomes’ (2013) 16(1) Population Health Management 14. Marisa A Giggie, ‘Virginia Tech as a Sentinel Event: The Role of Psychiatry in Managing Emotionally Troubled Students on College and University Campuses.’ (2015) 23(6) Harvard Review of Psychiatry 413. Eugene Deisinger and Mario J Scalora, ‘Threat Assessment and Management in Higher Education in the United States: A Review of the 10 Years Since the Mass Casualty Incident at Virginia Tech’ (2016) 3(3-4) Journal of Threat Assessment and Management 186. Christie M. Letarte, ‘Keepers of the Night: The Dangerously Important Role of Resident Assistants on College and University Campuses’ (2013) 2 Kentucky Journal of Higher Education Policy and Practice 4.

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The sensitivity to any social interactions outside the ‘norm’ also influences employer responses.53 Workers are often reluctant to inform their employer of actual and potential risks to health and safety.54 In this climate of fear and discriminatory responses, arguably workers are even more reluctant to disclose any mental diversity, as it could jeopardise their livelihood. Workers have OSH duties to avoid creating work health and safety risks and to follow their employers’ policies.55 In addition to disclosing conditions, this can require them to comply with medical advice pertaining to medication.56 This means a worker that fails to disclose a medical condition that can create a risk to health and safety may themselves have violated OSH laws. While a regulator is highly unlikely to prosecute a worker with a disability for failing to disclose their impairment, the fact the worker who failed to disclose has caused their employer and themselves to breach OSH laws would provide additional grounds for their employer to sanction them. Moreover, there is a view that employers can have a duty to dismiss workers for their own health and safety in certain situations.57 These factors are highly likely to make workers with disabilities nervous about discussing their situation with their employers, colleagues, and possibly of most concern, with health professionals. As workers realise that disclosing any mental diversity will result in harm, those workers remain silent. Since measures rely heavily upon self-disclosure to manage threats, if those policies result in people not disclosing, they have the unintended consequence of reducing the effective management of threats posed by mental diversity.

C Employers’ Failure to Protect Workers’ Psychological Health Can Contribute Bullying and Violence at Work Employers can be approached by a person with a disability seeking reasonable accommodations. When those accommodations are not made, then this can 53 54

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See Section III of this chapter. Paul Harpur, ‘The Gap between Law and Practice When Workers Are Silent Witnesses to Workplace Violence: Evidence from the Health Sector’ (2014) 30(1) Journal of Health, Safety and Environment 9; Wayne Lewchuk, ‘The Limits of Voice: Are Workers Afraid to Express Their Health and Safety Rights’ (2013) 50 Osgoode Hall Law Journal 789. Richard Johnstone, Elizabeth Bluff and Alan Clayton, Work Health and Safety Law and Policy, (3rd ed, 2012) Thomson, chapter 5. Bruce Arnold, Patricia Easteal, Simon Easteal and Simon Rice, ‘It Just Doesn’t Add Up: ADHD/ADD, the Workplace and Discrimination’ (2010) 34 Melbourne University Law Review 359. Jesse Elvin, ‘Can an Employer be Under a Duty to Dismiss an Employee for His Own Good in Order to Protect His Health?’ (2003) 62(1) Cambridge Law Journal 20.

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result in the worker’s condition being aggravated, and then the employer can move to dismiss the worker on the basis that their aggravated state violates OSH laws. This disturbing chain events occurred in an educator/student relationship in Purvis v. New South Wales, the leading High Court of Australia authority on direct discrimination.58 In Purvis, Hoggan was a student with a range of psychosocial disabilities.59 His conditions resulted in him lashing out at people in certain situations. Behaviour plans were prepared and not followed by the school. Psychological experts said suspending him would be regarded as a reward by Hoggan, yet the school suspended him rather than adopting appropriate sanctions. Other psychological experts offered behavioural plans, yet the school ignored them and did not take account of Hoggan’s disability in their treatment of him. The school’s incompetence created an environment where problems escalated and, ultimately, the student was expelled. Hoggan’s foster parents, Purvis, unsuccessfully argued the school had directly discriminated against Hoggan. While the treatment of Hoggan was held not to be direct discrimination,60 the school did fail to manage his psychological health. While the school was not prosecuted for failing to manage psychological health, it is clear that the school had a role to play in creating the circumstances that resulted in dismissal.

iii how occupational health and safety laws can restrict psychosocial diversity at work The previous section analysed how employers have a duty to take reasonably practicable steps to ensure the psychological health of workers. If employers breach this duty, then it can contribute to workers engaging in conduct which itself breaches OHS laws and policies. OSH laws construct non-ideal social interactions as threats to workplace health and safety. This section will analyse how OSH and anti-bullying laws can reduce psychosocial diversity at work.

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Purvis v. New South Wales (2003) 217 CLR 92. Ibid., 108. For a critical analysis of reasoning see Belinda Smith, ‘From Wardley to Purvis: How Far Has Australian Anti-discrimination Law Come in 30 Years?’ (2008) 21(12) Australian Journal of Labour Law 1.

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A Employers’ Occupational Safety and Health Duty to Respond to Non-Ideal Social Interactions at Work To discharge their OSH duties, employers must follow a risk management process, which involves identifying hazards, assessing risks, and implementing measures to eliminate or control the risks and review those measures.61 There are various tools developed to help implement and operationalise the risk management approach; one such measure is the ‘fault tree analysis’. The fault tree analysis is a three-stage process to identify all actual and potential causes of a health or safety incident.62 First, the actual health and safety incident must be identified and clearly described. Next, every proximate cause to this incident must be identified and its role investigated. Finally, each proximate cause must be investigated to understand what may have led to the proximate cause actually or potentially contributing to the incident. At each stage of the fault tree analysis, the capacity of the health and safety professional to be certain about their conclusions is reduced. While it is possible to accurately state a crane collapsed, it is harder to define each contributory factor, and harder still to determine precisely what enabled each contributory factor to arise. As a result, OSH practices regularly deal in potential and speculative risks to health and safety. This chapter argues that the focus on non-ideal social interactions means that OSH laws are reducing psychosocial diversity at work. In contrast, workers with physical and sensory disabilities have their work opportunities limited by OSH laws, more often than not, in ways that is reasonable. For example, it would be reasonable to prevent a worker with low vision working on machines where good eyesight is required for safety. This chapter will argue that workers with mental disabilities experience unfavourable work outcomes, not because their impairment creates a risk to OSH, but because ignorance, prejudice and sanist attitudes results in unnecessary erroneous perceptions of risk. OSH laws and health and safety professionals are required to focus on actual and potential risks. The risks created by some impairments are certain: a person with uncorrected low vision cannot fly an aircraft,63 and a person with extremely high blood pressure is not safe to drive a motor vehicle.64 While the nature of other hazards are identifiable, the probability of the

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This risk management process has a long history in OSH. See for discussion Richard Johnstone, Occupational Health and Safety Law and Policy (2nd ed, 2004) Lawbook Co 25–27. John Channing, Safety at Work (8th ed, 2014) Routledge, 240. Sutton v. United Air Lines, Inc., 527 US 471, 489 (1999). Gordon v. Commonwealth of Australia [2008] FCA 603.

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hazard eventuating can be quite speculative. Transmission of HIV/AIDS is a real risk, but the potential of it occurring could be very low and difficult to predict in many settings.65 While it is difficult to predict the impact of wellunderstood impairments, it is even more difficult when the impairment itself is complex and not widely understood.66 The causes, impact and treatment of mental disabilities is widely misunderstood. People with mental disabilities have confronted significant discrimination following high profile violent acts.67 Reflecting on violence on university campuses, Marisa Giggie reflected that ‘[c]ollege students with severe mental illness may potentially engage in extreme violence’.68 It seems widely accepted that perpetrators who engage in intentional acts of mass violence look at the world differently than mainstream society. NPR’s (National Public Radio) headlines following the October 2017 mass shooting event in Las Vegas shouted: ‘1 Crazy, Insane Nut Made This All Happen’.69 President Trump in one statement calls the perpetrator ‘evil’, and in other statements calls the perpetrator a ‘sick’ and ‘demented man’.70 Following such events, health and safety and security professionals scramble to attempt to implement measures to manage the risk of copycat violence in spaces they control, which include monitoring people with mental disabilities to continually assess their threat or to exclude anyone who poses a risk.71 People who engage in threatening conduct, whether it be assault or battery, are criminalised. OHS laws require businesses to seek out risks and control them. To manage the risk of violence, employers are required to have policies

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Katrina Atkins and Richard Bales, ‘HIV and the Direct Threat Defense’ (2002) 91 Kentucky Law Journal 859. Anne Harriss and Kerry Ricketts, ‘Dealing with Dyslexia’ (2009) 61(11) Occupational Health 18. Mary Fletcher Pena, ‘Reevaluating Privacy and Disability Laws in the Wake of the Virginia Tech Tragedy: Considerations for Administrators and Lawmakers’ (2008) 87 North Carolina Law Review 305. Giggie, ‘Virginia Tech as a Sentinel Event: The Role of Psychiatry in Managing Emotionally Troubled Students on College and University Campuses’, 413. 1 Crazy, Insane Nut Made This All Happen: Las Vegas Mayor on Mass Shooting (2 October 2017) National Public Radio. http://ideastations.org/radio/all-things-considered/npr-5551703461-crazy-insane-nut-made-all-happen-las-vegas-mayor-mass. Adam Edelman, ‘Trump: Las Vegas shooter a “sick” and “demented man”’, NBC News (online) 3 October 2017. www.nbcnews.com/storyline/las-vegas-shooting/trump-las-vegasshooter-sick-demented-man-n807096. JH Dunkle, ZB Silverstein and SL Warner, ‘Managing Violent and Other Troubling Students: The Role of Threat Assessment Teams on Campus’ (2007) 34 Journal of College and University Law 585.

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to prohibit threatening or violent conduct and to monitor and enforce such policies.72 To manage psychosocial hazards, the ILO advises employers to, inter alia, manage interpersonal relationships so that the workplace ‘is free of physical and psychological violence’, and to ‘ensure that there are supportive relationships between supervisors and workers’.73 One option to reduce the risk from violence is to reduce the number of people in the workplace who may cause violence. Indeed, if an employer discovers that their worker has dangerous propensities, then, depending upon the level of this risk, then the employer must protect fellow workers and the public from this worker.74 If an employer retains a worker after they know of this risk, and if that risk manifests and causes harm, then that employer could be sued for negligent retention.75 As people with mental disabilities can be more likely to engage in violence, one measure is to exclude all people with mental disabilities from the workplace. While this can be unlawful, screening out those who may have violent tendencies is an approach which has gained traction.76 The OSH regulator in the Australian State of New South Wales released a report in September 2017 to inform policy discussions on how law and practices can better regulate the exposure of employees to psychosocial risks at work. Part of the report provides examples of current approaches taken by employers to manage

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See for example: Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (Ontario) s 32.0.3; Safety, Health and Welfare at Work Act 2005 (Ireland) s 8(2)(b). International Labour Organisation, ‘Workplace Stress: A Collective Challenge’ (Report, 2016). www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/safework/documents/publication/ wcms_466547.pdf. Rosanne Lienhard, Negligent Retention of Employees: An Expanding Doctrine, (1996) 63 Defense Counsel Journal 389. Bruce D Platt, ‘Negligent Retention and Hiring in Florida: Safety of Customers versus Security of Employers’ (1992) 20 Florida State University Law Review 69. S J Beaver, ‘Beyond the Exclusivity Rule: Employer’s Liability for Workplace Violence’ (1997) 81 Marquette Law Review 103; Janet E Goldberg, ‘Employees with Mental and Emotional Problems – Workplace Security and Implications of State Discrimination Laws, the Americans with Disabilities Act, the Rehabilitation Act, Workers’ Compensation, and Related Issues’ (1994) 24 Stetson Law Review 201; Jack L Howard, ‘Employee Awareness of Workplace Violence Policies and Perceptions for Addressing Perpetrators at Colleges and Universities’ (2009) 21(1) Employee Responsibilities and Rights Journal 7; Jack N Kondrasuk, Herff L Moore and Hua Wang ‘Negligent Hiring: The Emerging Contributor to Workplace Violence in the Public Sector’ (2001) 30(2) Public Personnel Management 185; Vicki A Laden and Gregory Schwartz ‘Psychiatric Disabilities, the Americans with Disabilities Act, and the New Workplace Violence Account’ (2000) 21 Berkeley Journal of Employment and Labor Law 246; K B Slora, D S Joy and W Terris, ‘Personnel Selection to Control Employee Violence’ (1991) 5 (3) Journal of Business and Psychology 417; D Sullivan, ‘Employee Violence, Negligent Hiring, and Criminal Records Checks: New York’s Need to Reevaluate Its Priorities to Promote Public Safety’ (1998) 72(2) St. John’s Law Review 581.

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psychosocial risks in the workplace,77 including ‘recruitment screening, to prevent workers with mental ill-health entering the workplace, or exit strategies, to remove workers who are experiencing mental ill-health. Both of these approaches increase stigma and the causes and impacts of mental illhealth . . .’78 While some psychological conditions cause a person to have an extremely high risk of violence, medication can reduce the risk of violence to a very low risk. For example, people who have bipolar disorder can receive treatment, including lithium carbonate, which can enable them to operate in society. Despite prejudice to the contrary, once a worker with bipolar disorder is receiving treatment the worker does not pose a notable risk.79 B Bullying and Mobbing Laws Intensify Employer Attention on Preventing Non-Ideal Social Interactions at Work While there remains considerable interest in the risks from physical workplace violence, there has been an increase in legislative and scholarly attention to psychological forms of workplace violence.80 Some of these measures are sourced through criminal stalking laws, and others in criminal bullying laws.81 These criminal provisions generally target the perpetrators and not employers. In contrast, bullying laws in industrial relations statutes impact upon everyone in the workplace. As bullying provisions in industrial relations laws can adversely impact on employers, it is arguable such laws have motivated employers to take additional measures to stamp out conduct that falls outside normal social interactions. The health and safety problems associated with bullying and mobbing have been recognised across the globe.82 Lawmakers have recognised the negative 77 78 79

80

81 82

SafeWork NSW, ‘Mentally Healthy Workplaces in NSW’ (Discussion Paper, September 2017). Ibid., 19. Collier v. Austin Health [2009] VCAT 565 is an example of where co-workers viewed bipolar in a negative manner. The worker worked part-time to manage her bipolar. She had six months off work to rehabilitate her health. On her return the employer refused to provide the worker a position. In smoking gun e-mails the employer admitted they regarded the worker as a liability risk due to her bipolar. The worker had difficulties in framing a comparator which resulted in her claim being summarily dismissed. Richard Johnstone, The Australian Regulatory Framework for Preventing Harassment and Bullying at Work: Psychosocial Risks in Labour and Social Security Law (2017) Springer. See, for example: Crimes Amendment (Bullying) Act 2011 (Vic). See, for examples: Ursula Connolly and Shivaun Quinlivan, ‘Accessing Justice in Cases of Occupational Bullying in Ireland’ (2016) 5(1) Irish Community Development Law Journal P18; Susan Harthill, ‘The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act’ (2010) 78

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impact of bullying and mobbing and introduced provisions in industrial relations and labour laws requiring employers to protect employees against non-ideal behaviours which may cause harm.83 The primary reason that bullying laws create problems for psychosocial diversity is that people with mental disabilities can have impairment-related behaviours that would be regarded as bullying. For example, research demonstrates that it is common for workers with autism to be erroneously accused of bullying.84 While education on psychosocial diversity and workplace modifications can reduce or even eliminate the issue, a failure to create inclusive workplaces can result in situations unnecessarily escalating. This is harmful for everyone concerned and can result in the worker with a disability being constructed as a bully, perpetrator and a worker to retrain and/or exclude. The problems of appropriately balancing anti-bullying laws and psychosocial diversity at work has is present in Australia’s federal industrial relations scheme. Australia introduced bullying into the Fair Work Act 2009 (Cth) on 1 January 2014.85 The anti-bullying jurisdiction does not seek to unreasonably constrain managerial prerogatives or replace anti-discrimination laws. Importantly, reasonable management action carried out in a reasonable manner does not constitute bullying.86 This means an employer’s refusal to make adjustments to the work environment or how the work is performed, as part of a reasonable accommodation request under anti-discrimination laws, can only be held to be bullying if the employer is not acting reasonably. It would be very difficult to prove that a manager was acting unreasonably if they were held to be acting reasonable under disability anti-discrimination laws. The anti-bullying jurisdiction is focused on targeting abnormal and harmful conduct and protecting workers from the impact of such conduct. This protection sanctions and excludes bullies, and the concept that the bully

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University of Cincinnati Law Review 1250; Susan Harthill, ‘Workplace Bullying as an Occupational Safety and Health Matter: A Comparative Analysis’ (2011) 34 Hastings International and Comparative Law Review 253; Sarah E Morris, ‘Tackling Workplace Bullying in Tort: Emerging Extreme and Outrageous Conduct Test Averts Need for Statutory Solution’ (2016) 31 ABA Journal of Labor & Employment Law 257. Ho Squelch and Guthrie, ‘The Australian Legal Framework for Workplace Bullying’ (2010) 32 (1) Comparative Labor Law and Policy Journal 15; Andrew Stewart, Stewart’s Guide to Employment Law (5th ed, 2015) Federation Press, chapter 15; G Vega, DR Comer and JA Cogin, ‘Bullying and Harassment in the Workplace’ in Roland E Kidwell (ed), Managing Organizational Deviance (2005) SAGE Publications, 183–210. R Simone, and T Grandin, Asperger’s on the Job: Must Have Advice for People with Asperger’s or High Functioning Autism, and their Employers, Educators, and Advocates (2010) Future Horizons. Fair Work Amendment Act 2013 (Cth) Schedule 3. Fair Work Act 2009 (Cth) s 789FD(2).

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could be acting out due to ableism at work is beyond the scope of the regime. Section 789FB of the Fair Work Act explains that bullying will occur where an individual or group of workers repeatedly behaves unreasonably towards a worker, or a group of workers, of which the worker is a member and where that behaviour creates a risk to health and safety. The risk to psychosocial diversity arises where employers are seeking to regulate social interactions which fall outside the norm. A reasonableness test is employed to determine if conduct is in breach of s 89FB. The Fair Work Commission defined this test of reasonableness in Application by S.D. in the following terms: ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.87

There are numerous examples of where the anti-bullying jurisdiction has been used to protect workers’ psychosocial health. This jurisdiction is regularly used to protect workers against dangerous management action. For example, in Darren Lacey and Chris Kandelaars v. Murrays Australia Pty Limited, employed drivers applied for stop-bullying orders against the manager and their employer after the manager allegedly subjected them to abrupt and aggressive management and unreasonable disciplinary actions, including shouting at workers.88 The workers argued this created unnecessary stress and placed their psychological health at risk. Orders were not made, as the manager in question was removed from the supervisory role. Similarly, in Application by Ms A, a manager sent excessive e-mails during and outside work hours, which included insulting and derogatory language, which were distributed to others in the workplace.89 The Fair Work Commission accepted that the manager had valid grievances with the worker; however, the frequency, timing and content of the e-mails was unreasonable management action which endangered the worker’s psychological health. Antibullying orders were made which required the manager to contact the worker through an intermediary, only contact the worker outside ordinary business hours when it was an emergency, and to use professional language. Antibullying orders can also be obtained to help protect senior workers. In Ari

87 88

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Application by S.B [2014] FWC 2104, [43]. Darren Lacey and Chris Kandelaars v. Murrays Australia Pty Limited; Andrew Cullen [2017] FWC 3136. Application by Ms A [2018] FWC 4147.

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Kypuros, three directors of the company acted abusively and aggressively towards each other.90 To stop the escalation of psychological and physical violence, anti-bullying orders prohibited the parties from directly communicating or coming within ten meters of each other at work. Section 798FB of the Fair Work Act does not regulate all unreasonable conduct; it will only regulate conduct that creates a risk to occupational safety and health. It is necessary to draw some link between the conduct complained of and the risk to OHS, which will be established where there is a ‘causal link between the behaviour and the risk to health and safety’.91 It is not necessary that the harm that flows from this risk has eventuated. Accordingly, s 789FB can be satisfied where there is a possibility of danger to health and safety.92 This risk, however, must be real and not merely conceptual.93 This means that it is not necessary to prove there has been an actual injury,94 there need only be the risk of an injury arising.95 The probability of an employer being adversely impacted by a bullying order under the Fair Work Act 2009 (Cth) is substantially higher than the risk from an OSH prosecution for a risk arising from a psychological harm. The first substantial difference is that OSH laws are criminal, and follow prosecution by a regulator beyond a reasonable doubt.96 A worker who believes they have been bullied at work can apply directly to an informal industrial relations tribunal called the Fair Work Commission.97 The Fair Work Commission has power under s 789FF to make a range of orders where it is ‘satisfied’ a worker is bullied at work. These orders are preventative, and do not seek to compensate or punish. As a consequence, there is a comparatively low burden of proof to be successful in obtaining an order that will impact upon the workplace. Even if a worker is unable to obtain an order, it is highly probable that the Fair Work Commission will provide the employee an opportunity to present their case in the Commission.98 Even if the application is struck out, the fact the

90 91 92 93 94 95

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Ari Kypuros [2017] FWC 3082. Re Ms SB [2014] FWC 2104, [44]. Thiess Pty Ltd v. Industrial Court of New South Wales [2010] NSWCA 252, [65]–[67]. Re CG [2014] FWC 6988, [49]–[50]. Application by L.P [2015] FWC 6602, [50]. Application by Purcell [2016] FWC 2308, [209]; Mac v. Bank of Queensland & Ors [2015] FWC 774. Elizabeth Bluff, Richard Johnstone, Maria McNamara and Michael Quinlan, ‘Enforcing Upstream: Australian Health and Safety Inspectors and Upstream Duty Holders’ (2012) 25(1) Australian Journal of Labour Law 23. Fair Work Act 2009 (Cth) s 789FC. See e.g. John Krnjic [2017] FWC 3688.

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application has been made and considered by the court can result in reputational damage. The pressure from anti-bullying laws and norms has had an impact on employers’ treatment of bullying allegations. In Biffin v. XL Express Pty Ltd T/ A XL Express there was evidence of bullying in the workplace.99 There was hearsay evidence that a particular employee had participated in bullying, but this allegation was not put to the employee until after they were dismissed. The employee successfully argued in their unfair dismissal claim that the employer had dismissed them to protect the reputation of the employer and of another worker who was more likely to have been the bully. While corporate rhetoric may accept psychosocial diversity, it is arguable that corporate practice screens out workers whose propensity to bully is not offset by their value to the corporation in other ways. There is a significant body of research which analyses and recommends responses to workplace bullying.100 Common interventions include educative programming, bullying champions/advocates, and zero-tolerance policies which construct bullying as an act requiring sanction.101 There does not appear to be any primary research that analyses the impact of bullying provisions upon psychosocial diversity to date. There is a need for research which analyses how anti-bullying policies are being implemented within organisations to understand how such provisions could be impacting on people with psychological impairments, which may or may not be disclosed to their employers. C Limitations on Excluding Workers due to Manifestations of Their Disability: The Limited Role of Anti-discrimination Law When equality and OSH laws regulate the same work relationship, employers need to balance equality with health and safety issues. This section analyses how the legislative regime encourages employers to manage the overlapping objectives of equality and OSH. Arguably, the way in which equality and 99 100

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Biffin v. XL Express Pty Ltd T/A XL Express [2017] FWC 3702. Antonio Ariza-Montes, Juan M Arjona-Fuentes, Rob Law and Heesup Han, ‘Incidence of Workplace Bullying among Hospitality Employees’ (2017) 29(4) International Journal of Contemporary Hospitality Management 1116; Christopher Magee, Ross Gordon, Laura Robinson, Peter Caputi and Lindsay Oades, ‘Workplace Bullying and Absenteeism: The Mediating Roles of Poor Health and Work Engagement’ (2017) 27(3) Human Resource Management Journal 319; Nicole J Saam, ‘Interventions in Workplace Bullying: A Multilevel Approach’ (2010) 19(1) European Journal of Work and Organizational Psychology 51. Elizabeth Quinlan, Susan Robertson, Natasha Miller and Danielle Robertson, ‘Interventions to Reduce Bullying in Health Care Organizations: A Scoping Review’ (2014) 27(1–2) Health Services Management Research 33.

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OSH duties are operationalised has created a compliance hierarchy. This compliance hierarchy encourages employers to diligently develop, implement and monitor OSH measures, and to regard anti-discrimination issues as having secondary importance. Workplace health and safety professionals are encouraged to identify, assess and craft control measures, and then consider the equality implications.102 In many cases, a line manager may develop a OSH measure without considering broader anti-discrimination implications. Indeed, prioritising OSH is the advice of many health and safety texts before equality issues,103 while other texts do not consider equality issues at all in managing health and safety at work.104 Consequently, by the time an employer considers anti-discrimination issues, that employer would have devoted considerable time and resources to crafting a measure and may be reluctant to alter their measure to maximise equality outcomes. Anti-discrimination laws do not require employers to adopt a risk management process to reduce discrimination in society.105 Rather, disability antidiscrimination duties are framed as prohibitions or negative duties that can be implemented after a measure has been adopted. These prohibitions are a form of command that is controlled by weak enforcement regimes.106 Under the command-and-control model, the content of the command is critical: it is the command that will alter conduct and achieve the objective of the intervention.107 A command that prohibits conduct will encourage regulated parties to find strategies to avoid breaching the prohibition, strategies which are not always free from negative unintended consequences. For example, in the United States, the prohibition against discrimination has been linked with

102

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Neil Foster discusses the process of settling on a OSH measure and then testing if it breaches equality laws: Neil Foster, Workplace Health and Safety Law in Australia (2012) Lexis Nexis 12.23. Benjamin Alli, Fundamental Principles of Occupational Health and Safety (2nd ed, 2008) International Labour Office; John Channing, Safety at Work (8th ed, 2014) Routledge; Thomas D Schneid, Workplace Safety and Health: Assessing Current Practices and Promoting Change in the Profession (2014) CRC Press, chapter 12. Phil Hughes and Ed Ferrett, International Health, Safety and Work: For the NEBOSH International General Certificate (2nd ed, 2013) Routledge. Paul Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled (2017) Cambridge University Press, chapter 8. Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled, 233–237. Lisa Heinzerling, ‘Selling Pollution, Forcing Democracy’ (1995) 14 Stanford Environmental Law Journal 300, 302 (‘in a command-and-control system, the government dictates the technology that must be installed to control pollution’); C Sunstein, ‘Problems with Rules’ (1995) 83 California Law Review 953 (‘all industries must adopt the same control technology’).

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employers avoiding employment disability discrimination by not employing persons with disabilities.108 Arguably, where OSH management systems encourage employers to identify, manage and review their policies and practices, prohibitions encourage employers to ask whether or not their current policies are defendable and treat ability equality as an afterthought, if it is considered at all. It is difficult to ascertain the impact of negative anti-discrimination duties on how employers approach the interaction between equality and OSH measures. There are positive duties found under the Canadian Charter of Human Rights and Freedoms, in the Equality Act 2010 (UK) s 149 (public sector equality duty) and the Australian State of Victoria’s Equal Opportunity Act 2010 (Vic) Part 3. These positive measures generally operate alongside negative duties and have less enforceability; nevertheless, it is possible that OSH practices where such positive anti-discrimination laws operate could be different from OSH practices where purely negative anti-discrimination duties regulate conduct. By analysing reviews of the public sector Equality Act 2010 (UK), Harpur concluded that s 149 had a limited impact on the capacity of persons with print disabilities to access the written word in such jurisdictions.109 There are situations where making all reasonable accommodations and adjustments will not reduce the health and safety risks of a disability to an acceptable level. As analysed in this section, where the individual right of employment is not compatible with the public interest in health and safety, then the individual right is overridden to the extent of such an inconsistency. The fact that occupational health and safety overrides ability equality where there is a genuine conflict does not necessarily infringe the CRPD; it depends on how the differing regulatory interests are balanced. Courts prioritise health and safety over disability inclusion. There are situations where OSH laws grant employers an exceptionally high level of deference when it comes to assessing what impairment-related risks should result in exclusion of a person with a disability. Some circuits in the United States, for example, permit employers to discriminate without adequate

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Some scholars have argued that the introduction of anti-discrimination duties had the unintentional impact of motivating employers to reduce their hiring of persons with disabilities. For a discussion of this debate see: Samuel Bagenstos, ‘Has the Americans with Disabilities Act Reduced Employment for People with Disabilities? The Decline in Employment of People with Disabilities: A Policy Puzzle’ (2004) 25 Berkeley Journal of Employment and Labor Law 527. Harpur, Discrimination, Copyright and Equality: Opening the E-Book for the Print Disabled, chapter 8.

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consideration of how the disability can be accommodated in the workplace safely.110 Canada and New Zealand adopt an approach to balancing OSH and workers with disabilities, which appears to reflect the position in Australia.111 Overall, courts are unlikely to order accommodations for workers with disabilities who have already engaged in any actual or threatened harm.112 For example, accommodations have been refused following a worker’s unrelated sexual harassment,113 and where a worker’s depression and paranoia resulted in abusive and profane conduct that placed other workers at risk.114 The extreme challenges confronting a plaintiff suing for direct discrimination or disparate treatment continue even when the court is satisfied that these tests are made out. Once a plaintiff has proven that direct discrimination or disparate treatment has occurred, then the burden of proof shifts and enables the employer to defend their conduct. Australian OSH laws enable employers to engage in disability discrimination if a worker with a disability is not able to safely perform the inherent requirements of the job.115 This defence most commonly arises for workers with disabilities and the operation of the inherent requirement defence in the Disability Discrimination Act 1992 (Cth) s 21 and Fair Work Act 2009 (Cth) s 351(2)(b).116 The leading judgement on this issue is the High Court of Australia’s decision in X v. Commonwealth,117 in which the High Court held that being able to ‘bleed safely’ in combat was essential in the armed forces. As bleeding safely was an essential requirement of the job, the court held it was not unlawful to dismiss a soldier who had HIV.118 Following this judgment, Atkins and Bales, ‘HIV and the Direct Threat Defense’, 859. Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’HydroQuébec [2008] 2 SCR 561; In New Zealand different treatment based upon disability is permitted where ‘the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others . . . and it is not reasonable to take that risk’: Human Rights Act 1993 (NZ) s 29(1)(b). 112 Paul Harpur and Ben French, ‘Is It Safer Without You? Analysing the Intersection between Work Health and Safety and Anti-discrimination Laws’ (2014) 30(1) Journal of Health, Safety and Environment 167. 113 McElwee v. Cty. of Orange, 700 F 3d 635, 645–646 (2nd Cir, 2012). 114 Palmer v. Circuit Court, Soc. Serv. Dep’t, 905 F Supp 499, 511 (N D Ill, 1995). 115 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law (3rd ed, 2018) Federation Press, 7.7.59–7.7.74, 8.7.59–8.7.62 and 11.2.31–11.2.35. 116 Andrew Stewart, Stewart’s Guide to Employment Law (5th ed, 2015) Federation Press, 259–260. 117 X v. Commonwealth (1999) 200 CLR 177. 118 X v. Commonwealth (1999) 200 CLR 177, [40] (McHugh J) ‘In determining whether the employee poses a risk to the health or safety of other employees (or other persons or property) ordinarily it will be relevant to have regard both the degree of the risk (in the sense of the chance of it being realised) and the consequences of it being realised (in the sense of the 110 111

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and the line of authorities that have embraced this approach, employers are able to dismiss workers where they pose a sufficient risk to OSH. The complexity arises in determining where it is reasonable or unreasonable to expect the employer to accommodate a person with a disability. To defend disability discriminatory conduct on OSH grounds, employers will need to first establish a sufficient link between the medical condition and safely performing an inherent requirement. This requires employers to carefully analyse the process and findings of medical assessments and the requirements of the job in question. In Gordon v. Commonwealth an employer medical assessment found a job applicant was not able to drive safely;119 since driving was an inherent requirement of the job, the employer withdrew their offer of employment. Justice Heerey found that the job applicant’s medical condition could have been remedied within two weeks. Consequently, as driving a vehicle was not an inherent requirement of the job in the first two weeks of employment, the Commonwealth could not rely upon the inherent requirement defence to discriminate. Second, employers must consider if they can reasonably adjust the position to enable a worker to perform the job safely. In Tanevski v. Fluor Australia Pty Ltd an employee had worked as a rail maintenance supervisor for 31 years.120 Unfortunately, the employee was unable to read the new workplace health and safety manual, and the employer subsequently dismissed him. The tribunal found that the employer could have used another employee to read the short manual to the employee and could have had other employees assist with the short, written reports. In the circumstances, the employer was not able to argue that they were forced to dismiss the employee to comply with their OSH requirements. The tribunal considered the objectives of the Occupational Health and Safety Act 2000 (NSW), and the cost and practicality of the alternative intervention, and held the discrimination was unlawful.121 Finally, employers must establish that the worker has the medical condition alleged. In Carman v. Torrens Transit Services (North) Pty Ltd, a functional assessment was performed on the worker to assess their fitness as part of a recruitment process.122 The employer’s medical assessment found the worker

seriousness of the harm that will ensue if it is realised)’. Gummow and Hayne JJ (with whom Gibbs CJ and Callinan J agreed) reached similar conclusions, at [109]; Gummow and Hayne JJ emphasised the importance of finding a causal relationship between the disability and being unable to carry out the inherent requirements of the employment, at [101]. 119 Gordon v. Commonwealth [2008] FCA 603. 120 Tanevski v. Fluor Australia Pty Ltd [2008] NSWADT 217. 121 [2008] NSWADT 217, [73] and [74]. 122 Carman v. Torrens Transit Services (North) Pty Ltd [2009] SAEOT 6.

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failed to meet the physical requirements of the job and rejected the worker’s employment application. Following this rejection, the aspiring worker had his general practitioner perform a full medical assessment. The general practitioner found that the worker did not pass a functional assessment, but this did not mean the worker was not fit for the job. The general practitioner concluded the functional assessment should have formed one step in a process to determine if the worker was able to perform these duties. When the general practitioner performed a full medical assessment, he found the worker was able to perform the inherent requirements of the job safely. The Court held that the employer’s medical assessment failed to correctly determine the worker’s capacity to work safely. When the regulatory approaches between OSH and disability discrimination laws interact, a hierarchy of duties emerges. Employers are required to take all reasonable practicable steps to ensure workers are, inter alia, not exposed to bullying or violence at work. Workers with certain psychosocial disabilities have a propensity to engage in different social interactions, which may attract sanction. Even if these interactions are, in fact, not threatening, anti-discrimination laws do little to curb managerial prerogative. This regulatory situation requires workers with psychosocial disabilities to take additional steps to manage their impairments and overall reduces the capacity for workers with such disabilities to exercise their right to work and employment.

conclusion OSH laws require employers to take positive conduct to manage ability diversity at work. These laws require employers to take a twin track approach. First, employers are required to take reasonably practical steps to avoid causing harm to workers’ physical, sensory or mental health. Secondly, OSH laws require employers to ensure that ability diversity at work does not create risks to other workers. This chapter has argued that employers’ duty to protect workers’ health has received insufficient attention from advocates, employers and regulators. Research has suggested that regulators are often reluctant to investigate and prosecute for failure to appropriately manage psychosocial risks.123 It might be

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Richard Johnstone, Michael Quinlan and Maria McNamara, ‘OHS Inspectors and Psychosocial Risk Factors: Evidence from Australia’ (2010) 49(4) Safety Science 547; House of Representatives Standing Committee on Education and Employment, Workplace Bullying: We Just Want It to Stop (2012) 163–174.

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thought that recent legislative interventions to promote psychosocial health at work would have increased prosecutions and sanctions. Professor Richard Johnstone has analysed the operation of the increase of bullying and harassment occupational health and safety laws,124 the strengthening of the lowerorder sanctions enforcement has focused mainly on education and advice, and the absence of the prospect of strong enforcement has undermined the preventative potential of the interventions.125 The lack of regulatory attention is driven, not by disinterest, but by limited resources. Australia has National Compliance and Enforcement Policy,126 which has been adopted across all harmonised jurisdictions.127 The National Compliance and Enforcement Policy provides the nationally agreed principles for monitoring and enforcing compliance with OSH laws. Importantly, the National Compliance and Enforcement Policy prescribes how regulators determine where they should devote resources to investigate a complaint, take enforcement action and prosecute: Consistent with the principles of proportionality and responsiveness, resources available for investigation of incidents are devoted to the most serious cases. It is not possible for work health and safety regulators to investigate all issues of non-compliance with the law which are uncovered in the course of an inspection, or in response to a complaint.128

Within this rubric, a breach of OSH duties which impact upon psychosocial health would generally be a very low priority indeed. In contrast, where violence has actually occurred, then employers are required to act against the perpetrator, and a failure to do so will attract regulatory intervention.129 Considering the numbers of workplace fatalities, disablements and near misses each year,130 regulators need to consider how they devote

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In particular the passage of ‘Brodie’s Law’, which extended the crime of stalking in Victoria to make serious bullying an offence: Crimes Amendment (Bullying) Act 2011 (Vic). Johnstone, The Australian Regulatory Framework for Preventing Harassment and Bullying at Work, chapter 15. Safe Work Australia, National Compliance and Enforcement Policy (2011). Worksafe, ‘Enforcement Options’ (2018). www.worksafe.qld.gov.au/laws-and-compliance/ compliance-and-enforcement/workplace-inspections/enforcement-options. Safe Work Australia, National Compliance and Enforcement Policy (2011) 4. For example, Ambulance Victoria pleaded guilty and was fined $400,000 after a paramedic with easy access to opioid painkillers died of an overdose: State of Victoria v. Ambulance Victoria (Warrnambool Magistrates Court, Unreported, 12 March 2018). There are around 200 workers killed at work each year in Australia: Safe Work Australia, ‘Fatality Statistics’. www.safeworkaustralia.gov.au/statistics-and-research/statistics/fatalities/ fatality-statistics.

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resources when dealing with breaches of health and safety. The result is under-enforcement of OSH duties to protect health, in favour of OSH duties to protect safety. For workers with psychosocial disabilities, this means that their capacity to benefit from OSH laws is reduced, and their capacity to exercise their right to work and employment is limited.

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9 Sanism and Ableism in the Law’s Response to Injured Workers

introduction The regulation of injured workers across the globe is plagued by ableism and sanism. When workers are injured at work, there is a pervasive approach of discriminating against workers who have been mentally injured at work. This discrimination manifests, inter alia, in the legal tests used to determine whether a worker injured at work should obtain protection and the extent of that protection. The roles of ableism and sanism in workers’ compensation and employer negligence laws is expressly provided for in statute, and supported by countless judgments in all jurisdictions analysed in this monograph. Building on the author’s previous work with Ursula Connolly and Peter Blanck,1 this chapter argues that socially constructed hierarchies of impairment are substantially disabling workers who have been mentally injured at work.2 This hierarchy of impairments is supported by federal and state jurisdictions, and courts across the globe. It was openly enshrined in law and strongly supported by legal and social institutions until the Convention on the Rights of Persons with Disabilities swept in a new paradigm.3 The CRPD has not resulted in a sudden and massive shift in law and society, but it has

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Paul Harpur, Ursula Connolly and Peter Blanck, ‘Socially Constructed Hierarchies of Impairments at Work: Example of the Australian and Irish Workers’ Access to Compensation for Injuries’ (2017) 27 Journal of Occupational Rehabilitation 4, 50. While the term ‘psychosocial’ is used in other places in this monograph, the preponderance of workers’ compensation legislation uses the terms mental, nervous shock and psychological injury. To avoid confusion this chapter will use term ‘mental injury’ unless the language of the statute can be used without creating confusion. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).

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established a new disability human rights paradigm against which state conduct can be judged. The CRPD requires states to promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.4 While this requirement could be read to include a right to workers’ compensation and rehabilitation, the non-discrimination and ability equality rights, discussed in Sections II and III of this chapter, are more relevant. The question analysed in this chapter is not whether states have workers’ compensation schemes; instead, this chapter critically analyses how states enshrine hierarchies of impairments in workers’ compensation schemes and how mental injury liability is interpreted by courts. Before analysing the presence of sanism in workers’ compensation schemes, this chapter will first explore the jurisdictions being analysed to explain how the comparative analysis will be performed. Where Australia, Canada and the United States largely regulate the issues analysed in this monograph at the federal level, workers’ compensation is regulated at the state and provincial level in each of these jurisdictions. As workers’ compensation is regulated by the states and provinces, this makes a total of six Australian, ten Canadian and fifty United States jurisdictions (plus the federal and territorial jurisdictions). The freedom of all these jurisdictions from federal restraint has resulted in a wide range of approaches to defining when a mental injury is worthy of compensation and support.5 To deal with this massive comparative project, this chapter will focus on the area of regulation that is most relevant to each country. Australia, Canada, New Zealand and the United States have strong workers’ compensation systems. Accordingly, the discussion in Section II of this chapter will focus on workers’ compensation in Australia, Canada, New Zealand and the United States. The law of torts is an important means through which workers injured at work seek redress in Australia, Ireland and the United Kingdom. Accordingly, Section III of the chapter will focus on the presence of ableism against workers with psychosocial disabilities in the law of torts in Australia, Ireland and the United Kingdom.

4 5

CRPD art 27(1)(k). Logan Burke, ‘Finding a Way Out of No Man’s Land: Compensating Mental-Mental Claims and Bringing West Virginia’s Workers’ Compensation System into the 21st Century’ (2015) 118 West Virginia Law Review 889, 890; Adam Tucker, ‘A Matter of Fairness: How Denying Mental-Mental Claims Frustrates the Central Purposes of Workers’ Compensation Law’ (2010) 31 Journal of Legal Medicine 467, 468.

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i comparing and analysing systems for compensating workers injured at work This section will analyse how the six countries approach the regulation of workers injured at work. The United Kingdom has no workers’ compensation scheme. Instead, employers in the United Kingdom are required to obtain and maintain private insurance against liability for bodily injury or disease sustained by their employees, and arising out of and in the course of their employment.6 In contrast, this section will analyse how Australia, Canada, Ireland and the United States have workers’ compensation schemes that provide workers with financial and rehabilitation support when they acquire injuries attributed to their work. These schemes are a form of social insurance, primarily funded through employer contributions.7 Importantly for this monograph, the Australian, Canadian and United States schemes interfere with workers’ right to sue in the event of employer liability for workplace injuries, whereas Ireland does not. In Ireland, workers are permitted to simultaneously sue their employer in negligence and seek compensation for their injuries.8 In Australia, employees must first make a claim under the relevant workers’ compensation scheme. Every jurisdiction in Australia has workers’ compensation laws, consisting of the Commonwealth (Federal),9 the states,10 and the mainland territory jurisdictions.11 Under these laws, a worker who is injured at work does not have to prove that their employer was at fault to be entitled to compensation. The entitlement to compensation arises where a worker has suffered a prescribed type of injury arising out of or during work. If the employee is accepted into the scheme, then the Australian employee receives compensation payments until their condition stabilises. When the condition

6 7

8

9

10

11

Employers Liability (Compulsory Insurance) Act 1969 (UK) s 1. Bruce D Meyer, ‘Unemployment and Workers’ Compensation Programmes: Rationale, Design, Labour Supply and Income Support’ (2002) 23(1) Fiscal Studies 1. Paul Harpur, Ursula Connolly and Peter Blanck, ‘Socially Constructed Hierarchies of Impairments at Work: Example of the Australian and Irish Workers’ Access to Compensation for Injuries’ (2017) 27(4) Journal of Occupational Rehabilitation 507. Military Rehabilitation and Compensation Act 2004 (Cth); Safety, Rehabilitation and Compensation Act 1988 (Cth); Seafarers Rehabilitation and Compensation Act 1992 (Cth). Return to Work Act 2014 (SA); Workers’ Compensation Act 1987 (NSW); Workers’ Compensation and Injury Management Act 1981 (WA); Workers’ Compensation and Rehabilitation Act 2003 (Qld); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Return to Work Act; Workers’ Compensation Act 1951 (ACT).

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stabilises, if they meet the lump sum criteria, they are offered a lump sum or may make the irrevocable decision to reject the lump sum offer and sue their employer for negligence. In return for gaining the benefits of the worker’ compensation scheme, workers in Canada and the United States are excluded from suing their employer for injuries at work.12 Drafters of these laws operated on the basis that no fault compensation provided ‘the most efficient, most dignified, and most certain form’ of providing financial and medical benefits for workers injured at work.13 The Supreme Court of California case of King v. Comppartners, Inc. illustrates how workers’ compensation schemes exclude litigation for work injuries:14 the employee sustained a work-related back injury, which led to chronic pain, anxiety and depression. He sought to sue in tort, but the Supreme Court of California held that the workers’ compensation law provided the exclusive remedy for the employee’s physical and mental injuries and pre-empted the employee’s tort claims. New Zealand has adopted the most revolutionary approach to reforming tort law out of all the jurisdictions analysed in this monograph.15 In 1967, the Woodhouse Report criticised the fault approach to compensating people in New Zealand,16 and lawmakers responded by abolishing fault compensation, and introducing a new scheme. While some jurisdictions have introduced nofault compensation for workers, the Accident Compensation Act 2001 (NZ) applies to all accidents in New Zealand.17

12

13

14 15 16

17

Terence G Ison, ‘Reflections on the State of Workers’ Compensation and Occupational Health & Safety in the United States and Canada’ (2015) 47(1) Compensation and Benefits Review 27; EA Wise, ‘Psychological Injuries, Workers’ Compensation Insurance, and Mental Health Policy Issues’ (2016) 9(4) Psychological Injury and Law 283. See, for a non-exhaustive list of statutes on this: Canada: Workers’ Compensation Act (Alberta) s 23: United States: 2017 Florida Statutes: TITLE XXXI Labor, s 440.11; 2017 Mississippi Code: Title 71 Labor and Industry, s71–3-9; 2017 New Mexico Statutes: Chapter 52 Workers’ Compensation, s 52-1-9; 2016 North Carolina General Statutes: Chapter 97 Workers’ Compensation Act, s 97-10.1; 2017 Tennessee Code: Title 50 Employer and Employee, s 50-6-108. Ashley R Bailey, ‘Stress Is [Not] Part of the Job: Finding the Appropriate Balance between Fairness and Efficiency to Compensate Posttraumatic Stress Disorder under Workers’ Compensation Statutes’ (2015) 3 Wisconsin Law Review 507, 513. King v. Comppartners, Inc., 5 Cal. 5th 1039 (2018). Peter H Schuck, ‘Tort Reform, Kiwi-Style’ (2008) 27 Yale Law and Policy Review 187. Joan M Matheson, ‘Compensation for Personal Injury in New Zealand: The Woodhouse Report’ (1969) 18(1) International and Comparative Law Quarterly 191. Marie Bismark and Ron Paterson, ‘No-fault Compensation in New Zealand: Harmonizing Injury Compensation, Provider Accountability, and Patient Safety’ (2006) 25(1) Health Affairs 278.

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ii workers’ compensation laws failing workers mentally injured at work and enshrining a hierarchy of impairments This section will analyse a range of workers’ compensation laws, which adopt measures to substantially curtail the capacity of workers to obtain compensation and support simply because their injuries are mental. While sanism is present across the globe, there are jurisdictions that recognise injuries are injuries, whether or not they are mental, physical or sensory. In Saskatchewan, for example, the workers’ compensation statute contains a presumption that workers who develop mental injuries developed them at work.18 This statute provides that, ‘unless the contrary is proven, if a worker or former worker is diagnosed with a psychological injury by a psychiatrist or psychologist, that injury is presumed to be an injury that arose out of and in the course of the worker’s employment’.19 This chapter argues that, while it is common for workers’ compensation schemes to treat mental injuries as less worthy than physical and sensory injuries, this approach is based upon historic and continuing prejudice in society and should be abolished. Legal distinctions between physical and sensory impairments on one hand, and mental on the other, has a long history in workers’ compensation laws. This distinction played out in the United States’ civil war pension schemes, and resulted in soldiers with mental disabilities receiving little or no compensation. This analysis aims to establish that the current hierarchy of impairments is extremely well established and reflects core beliefs about what injuries are worthy of support and protection. A Higher Burden of Proof: Hierarchy of Impairments in Who Is Entitled to Workers’ Compensation Payments A critical component of all workers’ compensation schemes is to determine whether a person is sufficiently injured to warrant compensation. Using a medical assessment as a vehicle to determine whether a person is entitled to compensation or not or to determine quantum, in itself, is not problematic. What is problematic is when the type of impairment is a factor to regulate entitlements. The disability human rights paradigm is arguably infringed when a law provides that some impairment categories are more deserving than others, not based upon need or extent of injury, but upon prejudice and 18 19

Workers’ Compensation Act, 2013 (Saskatchewan) s 28.1(2). Ibid.

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value judgments. This section will now analyse how workers’ compensation statutes impose a higher burden of proof when workers are claiming for mental injuries when compared with either physical or sensory injuries. The point of workers’ compensation schemes is that they are ‘no fault’: a worker need only demonstrate that their injury is connected with their work.20 These schemes operate on the basis that workers are worthy of compensation for work injuries. The problem is that lawmakers appear to be influenced by beliefs that mental injuries are not real, and to the extent they are real, workers are not worthy of compensation. In many jurisdictions, the discrimination between mental and other impairment categories is explicit. The statute in California explains the intent behind the approach of imposing a higher burden on mental injury claims: the relevant workers’ compensation statute provides that it ‘is the intent of the Legislature in enacting this section to establish a new and higher threshold of compensability for psychiatric injury . . .’21 Provisions in a number of workers’ compensation statutes across Australia, Canada and the United States contain additional barriers to having an injury regarded as a workplace injury if the impairment is mental in nature. These additional barriers do not exist for workers who have experienced physical or sensory impairments. Accordingly, the existence of a mental impairment can be the trigger for a denial of rights. Using different and harder tests is one regulatory means of discriminating against workers who have been mentally injured at work. One common means of enshrining a hierarchy of impairments is to create burdens of proof that are nearer beyond reasonable doubt for mental injuries, while adopting either the balance of probabilities or even a lower burden for physical and sensory injuries. This approach is most visible in the state jurisdictions in the United States. Some jurisdictions simply adopt higher tests: To prove a mental injury has occurred, the workers’ compensation scheme in Wyoming requires the worker to prove the link between a physical injury at work and a mental injury ‘by clear and convincing evidence’.22 In Alaska, that work is the ‘predominant

20

21 22

Robert H Ashford and William G Johnson, ‘Negligence vs. No-Fault Liability: An Analysis of the Workers’ Compensation Example’ (1981) 12 Seton Hall Law Review 725; Jean C Love, ‘Actions for Nonphysical Harm: The Relationship between the Tort Systems and No-Fault Compensation (with an Emphasis on Workers’ Compensation)’ (1985) 73 California Law Review 857; Michael J Trebilcock, ‘Incentive Issues in the Design of No-Fault Compensation Systems’ (1989) 39 University of Toronto Law Journal 19. Workers’ Compensation and Insurance, Div 4, Cal Labor Code § 3208.3(c) (2017). Labor and Employment Act, 27 Wyo Stat Ann § 27-14-102(j) (2017).

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cause of the mental injury’;23 and in Arkansas, Oklahoma and Vermont that the mental injury and its cause is demonstrated by a ‘preponderance’ of the evidence.24 In Florida, the mental injury must be proven by ‘clear and convincing medical evidence’ and, as there is a requirement to link the mental injury with a physical injury, this link must be established and maintained so that, ‘as determined by reasonable medical certainty must be at least 50 percent responsible for the mental or nervous condition as compared to all other contributing causes combined’.25 The Alaskan workers’ compensation scheme demonstrates a trend to impose a very low burden of proof to demonstrate an injury is linked with work, unless the injury is mental. The Alaskan workers’ compensation scheme illustrates the blatant discrimination against workers who have experienced mental injuries. The statutory presumptions provide that, where a worker is making a claim for compensation it can be presumed that, in the absence of substantial evidence to the contrary, the claim meets the requirements of the workers’ compensation scheme.26 This presumption does not apply, however, if the claim is for a ‘mental injury resulting from work-related stress’.27 The statues in California, Oregon and Michigan not only impose a higher burden of proof; these statutes also place the workers’ perspective of events under additional scrutiny. In California, the worker must prove, ‘by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury’.28 In Oregon, that there is clear and convincing evidence that the mental disorder arose out of and in the course of employment and that the employment conditions which caused the ‘mental disorder exist in a real and objective sense’.29 In Michigan, mental disabilities are only compensable where they arise out of ‘actual events of employment, not unfounded perceptions thereof, and [where] the employee’s perception of the actual events is reasonably grounded in fact or reality’.30 These provisions focus the decision-makers on factors that are largely immaterial to the causation of injuries. Whether or not a worker’s

23 24

25 26 27 28 29 30

Alaska Labor and Workers’ Compensation Laws, 23 Ala Code § 23.30.395(17) (2017). Workers’ Compensation Act, 11 Ark Code Ann § 11-9-113(a)(1) (2017); Administrative Workers’ Compensation System, 85A Okla Stat § 1 (2017); Vermont Labor Code, 21 Vt Stat Ann § 601(11) (j). Florida Labor Code, 31 Fla Stat § 440.093(1) (2017). Alaska Labor and Workers’ Compensation Laws, 23 Ala Code § 23.30.120(b) (2017). Alaska Labor and Workers’ Compensation Laws, 23 Ala Code § 23.30.120(c). Workers’ Compensation and Insurance, Div 4, Cal Labor Code § 3208.3(1)(b). Trade Practices, Labor and Employment Act, 14 Or Rev Stat § 656.802(3)(a) and (d) (2017). Worker’s Disability Compensation Act, 418 Mich Comp Laws: Chapter § 418.401(b) (2017).

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interpretation of circumstances is accurate, it is how they perceive and experience the circumstances which causes the mental injury. While it could be unreasonable to compensate a worker who has taken comments out of context and developed a mental injury, is this any more unreasonable than a worker being compensated for being inattentive and slipping down perfectly safe steps and developing a physical injury? In both circumstances, a worker lacks normal fortitude and is injured at work; but only the worker with a mental injury is denied compensation.

B Scrutinising the Event Which Led to the Mental Injury: Traumatic or Unusual The use of arbitrary restrictions to curtail access to workers’ compensation laws reaches new heights in New Zealand. The workers’ compensation provisions adopt an exceptionally curious approach, which applies a range of arbitrary exclusions that have no relevance of whether or not a worker was mentally injured at work. The New Zealand workers’ compensation scheme adopts a very narrow test, which only recognises mental injuries that are caused by a ‘single event’.31 Even if the mental injury flows from a single event, the injury is only compensable if the worker ‘experiences, sees, or hears directly’ the single event and that the single event is one which reasonably could be expected to cause mental injury.32 The New Zealand scheme then restricts the observing of an event to directly observing the event and that the worker is in close physical proximity to the event at the time it occurs.33 A worker does not directly observe an event if they observe it through a secondary source, such as ‘seeing it on television (including closed circuit television) . . . or hearing it on radio or by telephone’.34 This restriction would mean an air traffic controller who made an error, which sent a plan crashing into the sea, would not be able to claim compensation if they only observed the crash by radar and radio, or a miner who had remote control of a machine which crushed workers would not be able to claim compensation for mental injuries. Medical evidence is required to prove a mental injury exists for all injuries, but only for mental injuries do workers need to prove that the cause of the injury was sufficiently dangerous to cause an injury. In St. John’s, Newfoundland and Labrador, mental stress is only recognised as an injury where it is 31 32 33 34

Accident Compensation Act 2001 (NZ) s 21B(1). Accident Compensation Act 2001 (NZ) s 21B(2). Accident Compensation Act 2001 (NZ) s 21B(5). Accident Compensation Act 2001 (NZ) s 21B(6).

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caused by an ‘acute reaction to a sudden and unexpected traumatic event’,35 and does not include stress other than an acute reaction to a ‘traumatic event’ in New Brunswick, Nova Scotia, Manitoba and in Prince Edward Island.36 This is peculiar, as a worker can be declined compensation even if the medical evidence points to mental stress being caused by a sudden event that most people would not regard as traumatic. Further, many mental injuries can be caused by sustained exposure to work stresses. Where these workers’ compensation schemes exclude workers who have developed mental injuries from a number of non-traumatic events, they all provide compensation to workers who have developed repetitive strain injuries caused by performing many non-traumatic tasks of an extended period of time. The workers’ compensation scheme in British Columbia expressly recognises that mental injuries can be caused by a reaction to one or more traumatic events arising out of and in the course of employment.37 The British Columbian scheme goes further and recognises that simply stress can cause an injury.38 This statute provides that a worker is entitled to compensation for a mental disorder which is ‘predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment’.39 Traumatic events can be regular occurrences in some professions. If traumatic events are usual, then this can result in mental injury claims being denied. In many jurisdictions, normal working conditions cannot found a claim for compensation for workplace mental injuries. Where such tests exist, they require that the condition is not just linked to work, but the circumstances at work which caused the injury to differ from normal conditions. In Oregon, the grounds which caused the mental injury must be ‘conditions other than conditions generally inherent in every working situation’.40 In Missouri, the work stress must be ‘extraordinary and unusual’.41 In Tennessee, there must be a ‘sudden or unusual stimulus’.42 In Vermont, the statute 35

36

37 38 39 40 41 42

Workplace Health, Safety and Compensation Act (St. John’s, Newfoundland and Labrador) s 2 (1)(o). Workers’ Compensation Act (New Brunswick) s 1; Workers’ Compensation Act (Nova Scotia) s 2; Workers’ Compensation Act (Manitoba) s 1; Workers’ Compensation Act (Prince Edward Island) s 1(1). Workers’ Compensation Act (British Columbia) 5.1 (1)(a)(i). Workers’ Compensation Act (British Columbia) 5.1 (1)(a)(ii). Ibid. Trade Practices, Labor and Employment, 14 Or Rev Stat § 656.802(3)(b). Labor And Industrial Relations, 18 Mo Rev Stat § 287.120(8). Employer and Employee, 50 Tenn Code Ann § 50-6-102(17).

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compares the worker’s situation objectively, requiring the circumstances to be ‘extraordinary and unusual in comparison to pressures and tensions experienced by the average employee across all occupations’.43 The states of Arizona, Nebraska and South Carolina have a more reasonable approach where the test provides that the mental injury must be linked with a physical injury, or that the circumstances that gave rise to the mental injury must be abnormal, unexpected, unusual or extraordinary stress related to the employment’.44 Even though this approach is more reasonable, the requirement need not be satisfied by workers who are claiming physical or sensory injuries. The requirement to have something abnormal cause the injury only applies to mental injuries. A worker could lose concentration walking on a perfectly safe piece of carpet and fall and injure themselves, but if the injury is physical or sensory in nature the worker would be compensated. However, if the injury is mental, the worker would not be compensated. Mental injuries are real and can result in disablement; workers’ compensation schemes should reflect this act and remove hierarchies of impairments. C Mental Injuries That Are Caused by the Exercising of Managerial Prerogative Are Not Normally Recognised Managerial prerogative is strongly supported by workplace laws and its institutions,45 and workers’ compensation schemes follow this trend. Across Australia, Canada and the United States, workers are excluded from claiming mental injuries simply because their injuries are caused by their employers’ exercising their managerial prerogative. Essentially, if an employer is in the business of injuring their workers’ mental health, then in many jurisdictions those workers are expected by workers’ compensation schemes to have the mental fortitude not to become injured. Management conduct or working conditions cannot give rise to compensation where management action or personnel decisions are made: in good

43 44

45

Labor Code, 21 Vt Stat Ann § 601(11)(j). Labor Code, Chapter 6: Workers’ Compensation, 23 Ariz Rev Stat Ann § 23-901(11)(b); Labor Code, 48 Neb Rev Stat § 48-101.01(2); Workers’ Compensation, 42 SC Code Ann § 42-1-160(b). Sean Cooney, Peter Gahan and Richard Mitchell, ‘Legal Origins, Labour Law and the Regulation of Employment Relations’ in Michael Barry and Adrian Wilkinson (eds), Research Handbook of Comparative Employment Relations (2011) Edward Elgar 75.

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faith in Alaska, Hawaii, Minnesota, Missouri, New Hampshire and New York,46 Massachusetts;47 principally out of a bona fide, personnel action in Australian Capital Territory, New South Wales, Northern Territory, Oregon (USA) and Western Australia.48 In deciding what are reasonable operational decisions about workloads and staffing, courts are reluctant to second-guess management, and generally hold that poor management decisions are not necessarily unreasonable management decisions.49 Management action will almost always be reasonable where a worker’s conduct warranted the intervention. In Bartlett v. Workers’ Compensation Regulator, the worker had a ‘disaffected and anxious state of mind’ which developed into a psychological condition when his employer performance-managed him for his failure to arrive at work on time.50 Even though the performance management caused a mental injury, the management action was reasonable and therefore the injury was not compensable. In contrast, if the management action does not warrant the intervention, then this is often held to be unreasonable. In Cannon v. Department for Health and Ageing, the ending of a romantic relationship resulted in an aggrieved party making a large number of unfounded assertions about their former partner to the police.51 The allegations included assault and necrophilia. The worker told his employer that the police were only considering the assault charge and had disregarded all other allegations. The ex-partner and the former romantic relationship had no connection with the employer. The employer interviewed the worker about the assault charge and then operated on the mistaken belief he was charged with sexual offences and necrophilia. The employer suspended the worker and then contacted the police, who informed the employer that the assault charge was the only allegation to be considered for prosecution. The employer then lifted the suspension of the worker, but the worker had developed a

46

47 48

49 50 51

Alaska Labor and Workers’ Compensation Laws, 23 Ala Code § 23.30.395(17) definition of ‘injury’; Workers’ Compensation Law, 386 Haw Rev Stat § 386-3(c); Workers’ Compensation Act, 176 Minn Stat § 176.011; Labor and Industrial Relations Act, 18 Mo Rev Stat § 287.120(9); Labor Act, 23 NH Rev Stat Ann § 281-A:2 definition of ‘personal injury’; Workers’ Compensation, 1 NY Law Article § 2(7). Workers’ Compensation Act, 152 Mass Gen Laws § 1(7). Workers’ Compensation Act 1951 (Australian Capital Territory) s 4; Workers’ Compensation Act 1987 (New South Wales) s 11A(1); Return to Work Act (NT) s 3A(2); Trade Practices, Labor and Employment, 14 Or Rev Stat § 656.802(3)(b); Workers’ Compensation and Injury Management Act 1981 (WA) ss 4(e) (definition of injury) and s 49. Wicks v. Workers’ Compensation Regulator [2018] QIRC 063. Bartlett v. Workers’ Compensation Regulator [2017] QIRC 049. Cannon v. Department for Health and Ageing [2015] SAWCT 5.

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mental injury following his suspension. The court found the employer had acted unreasonably and the worker could obtain compensation. In the jurisdictions which exclude bona fide, good faith and reasonable management action, workers who have been mentally injured at work are still able to obtain compensation where employers are unreasonable. Some jurisdictions go further in supporting managerial prerogative. The exclusions from compensation in the Canadian provinces of British Columbia, Ontario, and St. John’s, Newfoundland and Labrador, and the states of Connecticut and Tennessee in the United States do not require employers to have acted bona fide, good faith or reasonably in their employment decisions which cause mental injury to the worker.52 In these jurisdictions, workers are unable to claim for stress caused by the employer unilaterally changing the work to be performed or the working conditions, disciplining the worker or terminating the worker’s employment. If an employer engaged in a string of unreasonable employment practices, then even workers with strong mental fortitude would become stressed. This approach sends a message to employers that their failure to manage the mental health of workers is accepted, and to workers that any variance from strong mental abilities, even if it is strongly contributed to by their employer’s conduct, is not worthy of compensation. In a strange approach, in Canada the Northwest Territories and Nunavut workers are not entitled to workers’ compensation for ‘mental stress arising out of labour relations between the worker and the employer. . . unless the act or omission that caused the mental stress was made with intent to harm the worker’.53 Similarly, in Massachusetts, where a bona fide management decision led to a mental injury, a worker can claim where the management action involved the intentional ‘infliction of emotional harm’.54 It would seem exceptionally rare for an employer to intentionally cause a worker an injury. Indeed, managers who intend to cause harm may also have breached criminal laws in Massachusetts; after all, a person who wilfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, even if there is no physical contact, can breach the crime of stalking and can be sentenced

52

53 54

Workers’ Compensation Act (British Columbia) s 5.1(1)(b); Labor, Workers’ Compensation Act, 31 Conn Gen Stat § 31-275(16)(b)(ii); Workplace Health, Safety and Compensation Act (St. John’s, Newfoundland and Labrador) s 2(o); Workplace Safety and Insurance Act, 1997 (Ontario) s 13(5); Employer and Employee, 50 Tenn Code Ann § 50-6-102(17). Workers’ Compensation Act (Northwest Territories and Nunavut) s 12(b). Workers’ Compensation Act, 152 Mass Gen Laws § 1(7).

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by imprisonment for not less than one year and not more than five years.55 Rather than having intent as a requirement for compensation, the presence of intent should be included to provide workers additional compensation. D A Bizarre and Unfounded Assumption: Mental Injuries without an Associated Physical or Sensory Injury Are Not Real This section will analyse the bizarre requirement in some jurisdictions to link mental injuries with physical injuries. In Arkansas, Connecticut, Florida, Oklahoma and Wyoming, it is necessary to establish that a mental condition is caused by a physical injury to have the injury recognised under the workers’ compensation schemes.56 The South Dakota scheme goes further and provides that a mental injury is only compensable as long as a compensable physical injury is and remains a major contributing cause of the mental injury.57 In effect, this reduces the potential for a worker to continue to obtain compensation and support for a mental injury once their physical injuries are resolved. Requiring a person with a mental disability to link their condition with a physical condition to obtain compensation and protection is as absurd as requiring a worker with a physical condition to link their condition with a mental condition. While some people who have a physical injury develop a mental injury, many workers do not.58 Essentially, a worker can break their toe without getting depressed and get depressed without breaking their toe. Limiting mental injuries to workers who have associated physical or sensory injuries is simply a tool to reduce the capacity of persons, who have been mentally injured at work, from obtaining compensation. The Australian approach to the link between mental and physical or sensory injuries also is divorced from the real medical causes of the injuries. Rather than requiring a link with physical injuries, a number of workers’ compensation laws in Australian states regard secondary mental injury claims as unworthy of protection and support. The workers’ compensation schemes in New South Wales, South Australia and Victoria exclude any mental

55 56

57 58

Crimes and Punishments, 1 Mass Gen Laws § 43. Workers’ Compensation Act, 11 Ark Code Ann § 11-9-113(a)(1); Labor Code, 31 Conn Gen Stat Chapter 568 – Workers’ Compensation Act, s 31-275(16)(b)(ii); Labor Code, 31 Fla Stat § 440.093(1); Labor and Employment, 27 Wyo Stat Ann § 27-14-102(j) definition of injury; Administrative Workers’ Compensation System, 85A Okla Stat § 85A A.1. Workers’ Compensation, 62 SD Codified Laws § 7. Tal Araten-Bergmana, Patricia Tal-Katzb and Michael Ashley Stein, ‘Psychosocial Adjustment of Israeli Veterans with Disabilities: Does Employment Status Matter?’ (2015) 50 Work 59.

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impairment claim where that claim is secondary to a primary physical injury.59 This means a worker could require a few weeks off work for their physical impairment and receive support and protection. If that worker develops a secondary mental impairment, then this secondary impairment is not regarded as a workplace injury and falls outside the protection and support afforded by workers’ compensation laws. The fact the secondary impairment has arisen as a direct consequence of the first impairment is immaterial. The reason one group of workers’ compensation schemes can accept primary mental injuries but reject secondary, and another reject primary mental injuries and accept secondary claims, is because neither approach is based on medical science or sound legal principles. The next section of this chapter will analyse how tort law deals with claims for mental injuries. While there are restrictions, there is no blanket rejection of either primary or secondary claims. E Where Workers Mentally Injured at Work Are Deemed Less Unworthy Even though workers compensation schemes generally construct mental injuries as less worthy than physical and sensory ones, some statutes deem certain classes of mentally injured workers less unworthy by focusing upon the cause of their injury. In Arkansas and Oklahoma the requirement to link the mental injury with a physical injury does not apply to any victim of crimes of violence.60 Similarly, the Ohio workers’ compensation scheme does not require the mental injury to be linked to a physical injury where the mental injury has ‘arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate’.61 In California, the workers’ compensation statute recognises that workers’ who are survivors of a violent act or from direct exposure to a significant violent act, are more probable to develop a mental injury; nevertheless, the test is not lowered for such workers.62 As a consequence, workers are required, whether or not their mental injuries are connected with violence, to demonstrate by a ‘preponderance of the evidence’ that actual events of employment were a substantial cause of their injury. Other workers’ compensation regimes recognise that some workers are more likely to experience mental injuries at work. First responders are 59

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Workers Compensation Act 1987 (NSW) ss 65A and 66; Return to Work Act 2014 (SA) s 56(3)(a); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 56. Workers’ Compensation, 11 Ark Code Ann § 11-9-113(a)(1); Administrative Workers’ Compensation System, 85A Okla Stat § 85A.A.1. Administrative Workers’ Compensation System, 85A Okla Stat § 85A.A.1. Workers’ Compensation and Insurance, 4 Cal Labor Code § 3208.3(2).

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regularly exposed to tragedy, death and high-pressure situations. The level of stress means that first responders are more susceptible to developing mental injuries at work than the wider working population.63 Recognising both the higher probability of first responders to develop mental injuries and their vital importance to society has motivated a number of jurisdictions to enhance the capacity for first responders to obtain compensation and support for their workplace mental injuries.64 Despite accepting the greater trauma experienced by workers in such positions, it is extraordinary that military personnel, the workers who, in combat situations, have arguably the most stressful job possible, receive inadequate recognition for mental injuries.65 F Hierarchy of Impairments in Compensating Workers for Mental Injuries This chapter argues that workers’ compensation laws unnecessarily restrict where workers can obtain compensation and support for their mental injuries. Unfortunately, the unequal treatment does not stop there. Many laws then reduce the level of compensation and support that a worker will receive based 63

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C Regehr and VR LeBlanc, ‘PTSD, Acute Stress, Performance and Decision-Making in Emergency Service Workers’ (2017) 45(2) The Journal of the American Academy of Psychiatry and the Law 184. Travis J Foels, ‘Rescuing the Rescuer: Reforming How Florida’s Workers’ Compensation Law Treats Mental Injury of First Responders’ (2017) 69 Florida Law Review 1439; Workers’ Compensation Act (Alberta) s 24; Workplace Safety and Insurance Act 1997 (Ontario) s 14 (5); Workers’ Compensation Act (New Brunswick) s 7.1(2); Workers’ Compensation Act, 31 Conn Gen Stat § 31-275(16)(b); Labor And Industrial Relations, 18 Mo Rev Stat § 287.120(10); Labor Code, 48 Neb Rev Stat § 48-101.01; Labor Code, 21 Vt Stat Ann § 601(11)(i). Peter Blanck, ‘Civil War Pensions and Disability’ (2001) 62 Ohio State Law Review 109; B Karpinos and A Glass, ‘Disqualifications and discharges for neuropsychiatric reasons, World War I and World War II’ in AJ Glass and RJ Bernucci (eds), Medical Department United States Army: Neuropsychiatry in World War II volume I: Zone of Interior (1966) Office of the Surgeon General, Department of the Army, 13–14; RA Kulka, WE Schlenger, JA Fairbank, RL Hough, BK Jordan, CR Marmar, DS Weiss and DA Grady, Trauma and the Vietnam War generation: Report of findings from the National Vietnam Veterans Readjustment Study (1990) Brunner/ Mazel; Larry M Logue and Peter Blanck, Heavy Laden Union Veterans, Psychological Illness, and Suicide (2018) Cambridge University Press; MC Russell and CR Figley, ‘Is the Military’s Century-Old Frontline Psychiatry Policy Harmful to Veterans and Their Families? Part Three of a Systematic Review’ (2017) 10(1) Psychological Injury and Law 72; MC Russell, S Butkus and CR Figley, ‘Contribution of Military Organization and Leadership Factors in Perpetuating Generational Cycle of Preventable Wartime Mental Health Crises: Part One’ (2016) 9(1) Psychological Injury and Law 55; Mark C Russell, Shawn R Schaubel and Charles R Figley, ‘The Darker Side of Military Mental Healthcare Part One: Understanding the Military’s Mental Health Dilemma’ (2018) 11(1) Psychological Injury and Law 22; Mark C Russell, Shawn R Schaubel and Charles R Figley, ‘The Darker Side of American Military Mental Healthcare – Part Three: Five More Harmful Strategies to Manage Its Mental Health Dilemma’ (2018) 11(1) Psychological Injury and Law 69.

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upon their impairment. When the stigma of mental injuries is combined with the difficulties in obtaining a medical diagnoses and satisfying the legal tests to obtain compensation, workers should certainly be treated equally when it comes to compensation, regardless of whether their injuries are mental, physical or sensory. Instead, the additional barriers confronting workers with mental injuries still has an impact when it comes to compensation. One approach is to limit the entitlement to protection based upon the impairment. In Florida, for example, where there is a requirement to link mental injuries with a physical injury, a worker who has acquired a mental injury has their compensation payments capped at six months after the date of maximum medical improvement for the injured employee’s physical injury or injuries.66 Australian workers’ compensation schemes are explicit in their creation of a hierarchy of attributes and their relegating of mental impairments to the bottom of this hierarchy. Australian workers’ compensation laws expressly provide that mental impairments should receive different treatment than physical and sensory ones regarding who is offered lump sum offers. Once a work injury has stabilised, and providing that the degree of permanent impairment is above a certain percentage, the employee will be offered a different range of entitlements in Australia depending on whether they have a mental or other type of injury. In South Australia, a worker is entitled to a lump sum payment if their permanent impairment is over 5 per cent – unless that worker has experienced a ‘psychiatric injury’, in which case the worker has no entitlement to lump sum compensation for economic or noneconomic loss.67 While New South Wales, Queensland and Victoria entitle workers who have experienced mental injuries to lump sum payments, they limit where this is available. These jurisdictions limit the capacity of workers with mental impairments to receive lump sum compensation by creating different whole person impairment percentage thresholds for accessing lump sum compensation. In New South Wales the whole person impairment percentage is 10 per cent for all injuries, unless the claim is for either a psychological or psychiatric injury, where the percentage must be over 15 per cent to obtain a lump sum permanent payout.68 Similar to New South Wales, in Victoria lump sum compensation is only available for workers experiencing mental injuries when they are experiencing a greater degree of

66 67 68

Labor Code, 31 Fla Stat § 440.11 (Exclusiveness of liability). Return to Work Act 2014 (SA) ss 56(3) and 58(3). Workers’ Compensation Act 1987 (NSW) s 66.

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whole person impairment. Workers who are experiencing non-mental impairments are entitled to compensation where they have 10 per cent impairment, whereas workers experiencing mental impairments can only access the same lump sum compensation if they have whole person impairment over 30 per cent.69 In Queensland, lump sum compensation is available for impairments that are over 20 per cent,70 which applies equally for all types of impairments. Where the whole person impairment is above 30 per cent, this creates an entitlement to additional lump sum compensation, providing the impairment is not mental in nature. The additional lump sum compensation that is associated with more substantial impairments is not available to workers who are experiencing psychiatric or psychological impairments. Those workers are compensated at the lower rate associated with 20 per cent whole person impairment. Reinforcing the lower priority of mental injuries to lawmakers, workers who have been mentally injured at work confront additional barriers when obtaining compensation compared to workers who have acquired physical or sensory injuries. For example, in Nova Scotia a worker who has developed a serious mental disability and needs to spend time in hospital can have their payments suspended. This only applies to mental injuries and not to physical or sensory ones. The Workers’ Compensation Act (Nova Scotia) provides that where a worker ‘is confined to a psychiatric institution, prison or other institution. . .’ their payments can be suspended. 71 Treating a worker who has been disabled by their workplace on the same footing as a criminal who has been tried and imprisoned by the judiciary focuses upon the deprivation of liberty without considering the cause; that is, unless lawmakers regard mental illness as socially unacceptable as criminal activities. While this provision is discretionary, it is unfortunate that the possibility that a worker with dependents and a mortgage, who is sent to a mental hospital because of an accepted claim, runs the risk that the board could determine that the worker’s family’s income is suspended. This provision follows a pervasive trend across workers’ compensation laws to regard workers who are mentally injured at work as either unworthy or less worthy of support when compared to workers who have acquired physical or sensory injuries at work.

69 70 71

Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 211 and 212. Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 188 and 192. Workers’ Compensation Act (Nova Scotia) s 78.

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iii negligence at work: judicial distinctions between physical and mental impairments This section will focus upon how the law of negligence in Australia, Ireland and the United Kingdom distinguish between physical and mental injuries.72 The law of torts distinguishes between mental injuries which have a tangible physical cause, and those which do not, such as nervous shock, emotional harm or psychiatric damage.73 Where the mental injuries are caused by a combination of physical and verbal attacks, then courts are more willing to accept the validity of the mental claim and provide compensation. For example, in Mathews v. Winslow Constructors (Vic) Pty Ltd, a worker endured daily harassment, which included being physically grabbed by workmates who then pretended to perform sex acts on her; shown pornographic material and asked if she would do what she was being shown, and regularly referred to her as being ‘useless’, a ‘spastic’ and a ‘bimbo’.74 The court accepted medical evidence that the employee was now unlikely to ever work again, having been diagnosed with chronic psychiatric illnesses, including bipolar and post-traumatic stress disorders and severe anxiety and depression. The worker was awarded AUD$ 1.36 million, which is the approximate equivalent of 17.5 years income, based upon the average Australian annual income in 2015.75 The presence of sanism creates hierarchies of remedies where the damage is not caused by physical contact with the worker, such as an assault, and where the damage is purely mental in nature.

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74 75

The entitlement to obtain injury benefits in Ireland does not, on its face, distinguish between mental health and other injuries. Providing the work has contributed to an employee’s personal injuries, the employee is entitled to move through the process to commence negligence proceedings: Social Welfare Consolidation Act 2005 (Ireland) s 74. Marios C Adamou and Anthony S Hale, ‘PTSD and the Law of Psychiatric Injury in England and Wales: Finally Coming Closer?’ (2003) 31(3) Journal of the American Academy of Psychiatry and the Law 327; Brenda Barrett, ‘The Protection from Harassment Act Enters the Workplace’ (2005) 34(3) Industrial Law Journal 261; Nancy Levit, ‘Ethereal Torts’ (1992) 61 George Washington Law Review 13; Pat McInerney, ‘Negligently Inflicted Psychological Harm and the ‘Sudden Shock’ Requirement: A Comparative Analysis’ (2009) 13(3) Electronic Journal of Comparative Law 1. Kate Mathews v. Winslow Constructors (Vic) Pty Ltd [2015] VSC 728. Australian Bureau of Statistics, ‘6302.0 – Average Weekly Earnings, Australia, May 2015’. www.abs.gov.au/ausstats/[email protected]/7d12b0f6763c78caca257061001cc588/23237c9b3c076c32ca 257f630014e0d9!OpenDocument.

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A The Gap between the Cause of Mental Injuries and the Legal Right to Seek Redress Employers may cause their worker to suffer mental injuries, but this does not mean the worker has a cause of action against their employer in tort.76 Sutherland v. Hatton has established steps to determine where workers can sue employers for mental injuries related to stress.77 The Sutherland v. Hatton principles, subsequently approved by the House of Lords in Barber v. Somerset,78 restate traditional negligence principles and expand upon them to reflect the particular nature of mental injury cases. The principles contain a number of statements that demonstrate the onerous burden faced by litigants with mental impairments. In the United Kingdom, the Court of Appeal in Yapp v. Foreign and Commonwealth Office applied Hatton where the employer’s complaint centred on an unfair disciplinary process.79 The court in Hatton held that unavoidable pressures and demands are part and parcel of everyday working life and one should also assume that it is a normal characteristic of employment. Yapp involved a flawed disciplinary process, and the employer’s one-off mistake caused the employee’s mental injury. However, the court held that flawed disciplinary processes were a normal characteristic of the employment relationship and that the worker was unable to obtain compensation. Illustrating the belief that all workers should have strong mental abilities, the court held, ‘it will in my view be exceptional that an apparently robust employee, with no history of any psychiatric ill-health, will develop a depressive illness as a result even of a very serious setback at work.’ Nevertheless, not all workplace stress cases in the United Kingdom have read employers’ duty so narrowly: in Johnstone v. Bloomsbury Health Authority, the English Court of Appeal held that a junior doctor could not be required to work so much overtime that his health might be damaged.80 The courts in Australia and Ireland have been more willing to hold employers accountable for causing mental injuries to their workers. In Ireland, damages were recoverable in actions classified as ‘nervous shock’ actions, where claims for mental injury were upheld when the claimant feared 76 77 78 79 80

Des Butler, Employer Liability for Workplace Trauma (2002) Routledge, Chapter 1. Sutherland v. Hatton [2002] EWCA Civ 76. Approved by the House of Lords in Barber v. Somerset [2004] 2 All ER 385. Yapp v. Foreign and Commonwealth Office [2015] IRLR 112. Johnstone v. Bloomsbury Health Authority [1992] QB 333; see, for discussion of this point: Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton and Stewart’s Labour Law, (6th ed, 2016) Federation Press 16.16.

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physical injury to themselves81 or others.82 In addition, occupational injury actions have recognised the right to recover damages where the claimant suffers stress and has been bullied,83 and in Ireland where the claimant develops a mental impairment caused by negligent exposure to environmental risks.84 To provide a principled framework for mental injury cases, the Australian and Irish courts have classified occupational mental injury actions into three kinds. In Ireland, these categories are known as ‘nervous-shock’ actions, ‘fear of disease’ actions, and ‘stress-related injury’ actions.85 This typology reflects the position in the Australian courts,86 where actions for occupational mental injury have been recognised for nervous shock,87 stress-related injury at work88 and purely mental injuries flowing from workplace bullying or victimisation.89

B Judicial Limitations on Damages for Mental Injuries In actions for psychiatric injury, Australia, Ireland and the United Kingdom have a control mechanism with the requirement that the mental impairment constitutes a medically recognised psychiatric illness before recovery is allowed. A worker may recover for monetary damage that flows from a minor physical or sensory injury; however, workers who suffer damage that flows from mental disabilities only may seek compensation if those mental injuries rise to the status of a psychiatric illness.90 This restrictive attitude to mental

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84 85 86

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For Ireland, see Byrne v. Southern and Western Ry Co (February 1884) CA; and for Australia, see Tame v. New South Wales [2002] 211 CLR 317. For Irish examples, see Mullally v. Bus Éireann [1992] ILRM 722 (HC), Kelly v. Hennessy [1995] 3 IR 253 and in Australia Giffard v. Strang Patrick Stevedoring Pty Ltd [2003] 214 CLR 269. In Ireland, see McGrath v. Trintech Technologies [2005] IR 382; in Australia Arnold v. Midwest Radio Limited (1998) Aust Torts Rep 81-472 for early examples of these types of cases. Fletcher v. Commissioners for Public Works in Ireland [2003] 1 IR 465. McGrath v. Trintech Technologies [2004] IEHC 342 [53] (Laffoy J) Handford, Peter, ‘Liability for Work Stress: Koehler Ten years 0n’ (2015) 39 University of Western Australia Law Review 150. For example, see New South Wales v. Fahy [2007] HCA 20; Tame v. New South Wales [2002] 211 CLR 317. For example, see Gillespie v. Commonwealth (1991) 104 ACTR 1; Zammit v. Queensland Corrective Services Commission [1998] QSC 169; Sinnott v. FJ Trousers Pty Ltd [2000] VSC 124, and Koehler v. Cerebos (Australia) Ltd (2005) 222 CLR 44. Mathews v. Winslow Constructors (Vic) Pty Ltd [2015] VSC 728; Wolters v. University of the Sunshine Coast [2013] QCA 228. Rachael Mulheron, ‘Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims’ (2012) 32 Oxford Journal of Legal Studies 77.

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injury actions is an historic one. As stated by Lord Wensleydale in 1891, ‘mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.’91 For instance, in the Irish case of Kelly v. Hennessey,92 it was found that, to recover for nervous shock, a central requirement was that the illness was medically recognised.93 Similarly in McGrath v. Trintech Technologies,94 in a case of stress-related injury, Justice Laffoy required proof that the mental impairment was a ‘recognisable psychiatric illness’.95 In Australia, this threshold requirement also is reflected in the case law. In Koehler, the High Court refers to the establishment of proof of a ‘recognised psychiatric illness’,96 and in S v. New South Wales, where Justice Macfarlane stated that the exact nature of the illness was irrelevant so long as the injury was a ‘serious psychiatric disorder’.97 By applying this standard, negligently caused mental harm falling short of a recognised psychiatric injury, such as grief, loss, severe upset, distress and loss, however damaging, are not recoverable. By contrast, the slightest of physical impairments are actionable. Courts in both jurisdictions have sought to justify this requirement on policy grounds rather than on the basis of legal and medical reasoning. They cite the need to set a limit on liability and restrict the number of claimants, and voice the view that mental injury is more readily fabricated when compared against physical and sensory injuries.98 A leading Australian review, called the Ipp Report, went further in stating that, with limited resources, ‘it is more important to compensate people for physical harm than for pure mental harm’.99 In this statement, evidence of the impairment hierarchy is apparent.

91 92 93 94 95 96 97

98 99

Lynch v. Knight (1891) 9 HLC 577, 598 (Lord Wensleydale). [1995] 3 IR 253. Kelly v. Hennessey [1995] 3 IR 253, 258 (Hamilton CJ). [2005] 4 IR 382. McGrath v. Trintech Technologies [2005] IR 382 [103]. Koehler v. Cerebos (Australia) Ltd (2005) 222 CLR 44 [14]. S v. State of New South Wales [2009] NSWCA 164 [52] (Macfarlane JA). This line of reasoning is consistent with the recommendations of the Australian Review of the Law of Negligence Final Report [50]. Tame v. New South Wales [2002] 211 CLR 317 [192]. Negligence Review Panel, Principle Based Review of the Law of Negligence (Final Report, September 2002) 135.

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C Litigants with Mental Impairments as Responsible for Their Own Well-Being The principles of negligence are applied differently to cases involving physical and sensory injuries, compared to those involving mental injuries. Although there are differences in the approach of the courts in Australia, Ireland, and the United Kingdom, all the jurisdictions apply the principles of negligence in a manner that distinguishes between those with mental and physical impairments. In Ireland, negligence actions for physical injuries are decided in a manner which reflects a paternalistic model of employment. This is evident in the Irish physical impairment case of Barclay v. An Post,100 where the court considered whether an employee who voluntarily opted for overtime that put him in danger of further injury may be compensated. Mr Barclay had returned to work following a back injury and opted to take overtime on a delivery route, which carried a heightened risk of injuring his back. When a further back injury ensued, he successfully sued his employer for not preventing him from putting himself at risk to his back. In her judgment, Justice McGuinness found for Mr Barclay, stating: ‘It should be part of the duty of care of higher management to ensure that line management executives such as inspectors bear in mind the welfare, health and safety of ordinary postmen.’101 In response to the fact that Mr Barclay had volunteered for the overtime, Justice McGuinness cited with approval an extract from McMahon and Binchy, which states that voluntary assumption of risk is no longer a defence in employment cases.102 Despite such rulings, many courts have excused employers that cause stressrelated mental injuries, on the basis the employee did not resign or inform their employer they needed to take stress leave. The view is that the employee is an equal partner with the employer in protecting against impairment, and in some situations the employer may abdicate all responsibility. Thus, in the Irish case of McGrath v. Trintech Technologies,103 Justice Laffoy adopted the principles laid down in the seminal case of stress-related injury in England and Wales: Sutherland v. Hatton.104 These form the guiding principles for stress-related injury actions in Ireland.

100

[1998] 2 ILRM 385. Barclay v. An Post [1998] 2 ILRM 385, 399. 102 Ibid. 103 [2005] IR 382. 104 [2002] EWCA Civ 76. 101

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In essence, they restate traditional principles of negligence and expand upon them to reflect the particular nature of mental injury cases. The principles contain a number of statements that demonstrate the onerous burden faced by litigants with mental impairments. In considering what would constitute reasonable steps by an employer once there is foreseeability of injury, Lady Justice Hale, in keeping with traditional principles, found that this is a matter to be decided based on the circumstances of the case, including the cost of eliminating the risk and the probability of the risk resulting in injury.105 Nonetheless, Lady Justice Hale goes on to state that in situations where the only options available to the employer are to demote or dismiss the employee, the employer will not be in breach of its duty by doing nothing.106 In outlining the relative responsibilities of employers and employees in such instances, she states, ‘it has to be for the employee to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable’.107 Essentially, this line of cases holds that, if an employee volunteers to undertake the risk, there is no ensuing liability for the employer in tort, findings which are at odds with the approach in cases of physical injury, as described above. Raising the voluntary nature of the employee’s risk-taking as a defence for employers echoes the defence of voluntary assumption of risk. This defence has been abandoned in jurisprudence on occupational injury, but only insofar as physical injury is concerned.108 To reintroduce it in cases of mental injury is arguably inconsistent and inappropriate, particularly as those at risk of a mental injury may be less likely in certain circumstances to appreciate that risk than a comparable employee at risk of a physical injury. Arguably, workers also are more likely to devote effort to monitoring their physical health and less likely to visit a social worker, psychologist, or psychiatrist for a check-up, and thus be less aware that they are at risk of a mental impairment or injury. Even where there is no bullying or mobbing, Australian laws and courts accept that workplaces may be stressful environments.109 The right to recover 105 106 107 108 109

Sutherland v. Hatton and other appeals [2002] EWCA Civ 76 [34]. Sutherland v. Hatton and other appeals [2002] EWCA Civ 76 [34]. Sutherland v. Hatton and other appeals [2002] EWCA Civ 76 [34]. Civil Liability Act 1961 (Ireland) s 34(1). See, for a recent example, Wearne v. State of Victoria [2017] VSC 25, where the court awarded a state government employee, with known mental health issues, who suffered a ‘breakdown’ after managers failed to properly consider her condition when they addressed a mounting

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for stress-related injury, however, is limited by the importance of contractual terms in determining an employee’s right to recover damages. In the seminal High Court of Australia case of Koehler v. Cerebos (Australia) Ltd,110 referenced above, an employee moved from a full-time to a part-time position. The employee complained orally and in writing that she was overworked, fatigued and unable to cope. When the employee developed a psychiatric condition because of her overwork, the High Court of Australia unanimously held she was not entitled to compensation. The court determined that the employee had not identified that she was concerned for her mental health and, accordingly, her employer was not liable. It is probable that a different outcome would be reached if the injury had been physical. For example, an employee who acquires physical injuries due to work fatigue, such as a night-shift casino employee who drives home in the pre-dawn hours, may obtain compensation if their employer does not help them manage and warn them of fatigue risks.111 Furthermore, workplace health and safety laws impose a proactive duty upon employers to manage their employees’ physical and psychological health. More significantly, however, courts place the employee’s contractual responsibilities at the heart of any determination of liability. In Koehler, the employee was contracted to carry out the work, but she was incapable of doing so without injury to her health. The court held that requiring her to do this work could not lead to liability stating that ‘[i]nsistence upon performance of a contract cannot be in breach of a duty of care’.112 While the common law courts expect employers to identify and manage physical risks, courts exhibit a reluctance to require employers to adopt the same level of care for mental health issues. In the Australian case, Hegarty v. Queensland Ambulance Service,113 an ambulance officer developed a psychiatric disability after experiencing repeated traumatic events. When considering whether the employer had a duty of care to seek out and manage mental disabilities, the court observed: . . . while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee’s physical wellbeing, special difficulties may attend the proof of negligent infliction of

conflict with a supervisor, $210,000 damages for pain and suffering and loss of enjoyment of life and $415,345 in pecuniary losses. 110 Koehler v. Cerebos (Australia) Ltd (2005) 222 CLR 44. 111 Fraser v. Burswood Resort (Management) Ltd [2014] WASCA 130. 112 Koehler v. Cerebos (Australia) Ltd (2005) 222 CLR 44 [29]. 113 [2007] QCA 366.

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psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.114

Applying this reasoning, the court held that the employer was not liable.115 This highlights the double standards which are at play. On the one hand, the court accepts, as it is required to, a duty to protect against mental injury. On the other hand, this duty is couched in language of such uncertainty and obfuscation, such that employees with mental impairment face greater barriers to obtain legal remedies for workplace injuries. Coupled with the supremacy of the contract in the Australian courts, and the onus placed on the employee to be vocal and aware of their susceptibility to mental harm, this places Australian workers with mental impairments in a more onerous position than physically impaired workers. In Ireland and the United Kingdom, the position, although different, is no less discriminatory.

conclusion Discrimination against workers who have acquired mental injuries at work is enshrined in statutes and judgments across Australia, Canada, Ireland, New Zealand, the United Kingdom and the United States. Whether it is workers’ compensation or the law of tort, a worker who has been mentally injured at work will be substantially less likely to obtain compensation and support than a worker who has had a physical or sensory injury. While mental strength is often portrayed as a virtue, mental injuries are regarded as suspect and intangible, and experiencing a mental injury is understood as a personal choice which shows a lack of moral fibre.116 It is only when mental injuries are linked with a physical or sensory injury that the mental injury is constructed as genuine and quantifiable.117 Even though the CRPD and medical science supports the notion that mental, physical and sensory injuries are all real and 114 115 116

117

Ibid. [41] (Keane JA) Ibid. [101]. Dora L Costa and Matthew E Kahn, Heroes and Cowards: The Social Face of War (2010) Princeton University Press. Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (2009) Hart Publishing, 149.

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worthy of compensation and protection, laws embrace a hierarchy of impairments for workers who are injured at work. Lawmakers defend the adoption and continuation of hierarchies of impairments on two key grounds. First, they point to concerns around evidentiary proof and, secondly, to ‘floodgate’ litigation fears. Regarding the first argument, the law’s response to ‘non-physical’ harm still is strongly influenced by attitudes and policies that reflect a flawed socio-cultural legacy.118 Traditional scepticism of the legal validity of mental impairment, which made it difficult for claimants to prove they experienced a mental injury, has recently given way somewhat119 through acceptance of the legitimacy of diagnostic tools, such as by the Diagnostic Statistical Manual (DSM) and the International Classification of Mental and Behavioural Disorders (ICD).120 Further, enduring concerns around evidentiary proof relate to the causative uncertainty of mental impairment and its manifestations. This argument also implicates that the causes of mental injury may relate to an individual’s personal life (outside work), factors that are not within the employer’s control and for which the employer would typically not be responsible.121 Still, these criticisms ignore the same critique that may be made of physical injuries. Surprisingly, this has not led to the same scepticism of these injuries before the courts. It also undermines the legal principles of causation, which allows for apportioning of liability ‘as it falls’. Turning to the second concern, the ‘floodgate’ fears are associated with a discriminatory hierarchical impairment approach to damages in torts claims for mental injuries and impairments.122 Courts refer to the fear of ‘unacceptable increase in claims’123 and the ‘possibility of the courts being swamped with trivial and unmeritorious claims’124 if a relaxation of rules in relation to mental impairment is permitted. These particular statements, although illustrative, concern ‘nervous shock’ cases,125 with potential for large numbers of

118

Patrick Bracken, Trauma: Culture, Meaning and Philosophy (2002) Whurr. Sutherland v. Hatton and other appeals [2002] EWCA Civ 76 [5]. 120 The DSM developed by the American Psychiatric Association and first published in 1952 is now its fifth edition (published in May 2013). The ICD was developed by the World Health Organisation in 1990 and is in its tenth revision (the eleventh revision is due in 2018). 121 Sutherland v. Hatton and other appeals [2002] EWCA Civ 76 [47]. 122 Vito Zepinic, ‘Fear of the “Floodgate of Liability” and Acknowledgment of the Recognisable Psychiatric Damage into English Law of Tort’ (2015) 11(4) Canadian Social Science 1. 123 White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455 (Lord Hoffman). 124 Fletcher v. Commissioner for Public Works in Ireland [2003] 1 IR 465 (Keane CJ). 125 For example, see Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310; White v. Chief Constable of South Yorkshire Police [1999] 2 AC 455; Page v. Smith [1996] AC 155; McLoughlin v. O’Brian [1982] 2 All ER 298. 119

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witnesses to traumatic events, and arguably are not directly relevant in cases of occupational mental impairment where the parties to the tort may fall within a well-established duty category of employer and employee. Taken together, these law and policy reasons, in conjunction with the less favourable attitude towards mental impairments described above, contribute to an unequal application of laws as applied to claimants in occupational actions seeking compensation for mental injuries and related impairments.

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10 Advancing Psychosocial Diversity Using Contract and Unfair Dismissal Laws

introduction This monograph has analysed how ableism is present in laws that are intended to protect worker rights. The previous chapters have focused on highlighting regulatory failures, and how disablement is regulated and experienced differently between impairment categories. This regulatory analysis has resulted in a range of important recommendations for reforming law, policies and practices. This chapter moves away from identifying regulatory gaps and proposing reforms, and instead analyses how existing laws could provide an imperfect remedy for those who are not protected by anti-discrimination laws. Labour laws across the globe have moderated employers’ managerial prerogative by pushing them to act fairly towards their employees in certain situations. Traditionally, interventions that moderated the conduct of employers are categorised as anti-discrimination laws and labour rights (protected through industrial relations laws and instruments).1 The ILO’s 1998 Declaration on Fundamental Principles and Rights at Work was a watershed moment which utilised all available regulatory frameworks to help promote rights at work.2 Developments in international human rights have altered how the right to work applies to persons with disabilities. These developments alter how

1

2

Belinda Smith, ‘Fair and Equal in the World of Work: Two Significant Federal Developments in Discrimination Law’ (2010) 23(3) Australian Journal of Labour Law 199. ILO, Declaration on Fundamental Principles and Rights at Work, adopted June 1998 by the General Conference of the ILO during its Eighty-Sixth Session; Philip Alston, ‘Core Labour Standards and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law 457; Philip Alston and James Heenan ‘Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?’ (2004) 36 New York University School of Law 221, 254–255.

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existing international labour law protections operate with respect to this group of workers, and creates a new disability human rights work paradigm. Reflecting these international law trends, domestic industrial relations laws are increasingly used to promote traditional human rights at work, with some jurisdictions introducing broad discrimination protections into their industrial relations landscape.3 The Australian Fair Work Act 2009 (Cth), for example, has general protections which protect a range of workplace rights,4 such as freedom of association,5 and workers with a range of anti-discrimination related attributes, such as disability.6 While industrial relations interventions that are specifically targeted at vulnerable workers,7 including workers with disabilities,8 have attracted considerable scholarship, there has been little consideration of how provisions that promote fairness generally in work relationships can assist workers with disabilities. This chapter will fill this gap, and using the disability human rights work paradigm, will analyse how statutory duties of fairness operate to protect workers with disabilities’ workplace rights. Unfair dismissal options protect all workers against certain forms of dismissal.9 This remedy seeks to address unfair contractual treatment and not discriminatory treatment. A positive element of these provisions is that there is no need to prove disability, or come out with a disability if it is invisible. This is a huge benefit for those who have a range of abilities which may not qualify as a disability under anti-discrimination laws, or who may desire not to identify as having a disability to themselves, their families or their employers. 3

4 5 6 7

8

9

Paul Harpur, Ben French and Richard Bales, ‘Australia’s Fair Work Act and the Transformation of Workplace Disability Discrimination Law’ (2012) 30 Wisconsin International Law Journal 190; Paul Harpur, Ben French and Richard Bales, ‘Australia’s Solution to Disability Discrimination Enforcement’ (2011) 11 Cornell HR Review 1–8. These are rights arising from workplace laws: Fair Work Act 2009 (Cth) s 341. Fair Work Act 2009 (Cth) s 346. Fair Work Act 2009 (Cth) s 351. Anna Chapman, ‘Protections in Relation to Dismissal: From the Workplace Relations Act to the Fair Work Act’ (2009) 32(3) UNSW Law Journal 746; Beth Gaze and Anna Chapman, ‘Human Right to Non-Discrimination as a Legitimate Part of Workplace Law: Towards Substantive Equality at Work in Australia’ (2013) 29 International Journal of Comparative Labour Law and Industrial Relations 35; Simon Rice and Cameron Roles, ‘‘It’s a Discrimination Law Julia, But Not As We Know It’: Part 3-1 of the Fair Work Act’ (2010) 21(1) Economic and Labour Relations Review 13. Ben French, Paul Harpur and Olav Muurlink, ‘A Pandora’s Box of General Protections under the Fair Work Act 2009’ in Bruce Hearn-Mackinnon, Leanne Morris, and Kerrie Saville (eds), The Fair Work Act: Revision or Restitution (2012) Heidelberg Press Australia. For the technical limitations see for analysis: Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton and Stewart’s Labour Law (6th ed, 2016) Federation Press, 23.39–23.43.

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I Fairness and Termination of Employment Contracts

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i fairness and termination of employment contracts under international labour and human rights laws Anti-discrimination laws are the primary legal mechanism to promote equality at work. These laws, however, form only one tool in the struggle for ability equality at work. The relative importance of anti-discrimination laws is reflected in the way in which the CRPD deals with such interventions. The CRPD speaks of avoiding discrimination, but it also promotes a range of other concepts. The general principles in article 3, for example, mention avoiding discrimination in one paragraph.10 In addition to these critically important measures, the general principles in CRPD article 3 also refer to principles of dignity,11 inclusion,12 diversity,13 equality,14 accessibility,15 and respect.16 Other points of focus also appear throughout the Convention; for example, the concept of fairness.17 To reflect the general principles of the CRPD and wider notions of equality, it is important to analyse how measures outside antidiscrimination laws can provide a means to promote disability inclusion in the workplace. This includes considering how mainstream industrial relations regulatory protections can be used to advance ability equality at work. The CRPD provides a disability rights lens, through which mainstream industrial relations must be interpreted when applying to persons with disabilities. The CRPD does not refer specifically to fairness in work contracts; however, it does expressly reference equal access to general work protections. CRPD article 27(1)(b) requires State Parties to ‘protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and . . . protection from harassment, and the redress of grievances’. The right to equal access requires States to ensure that persons with disabilities can exercise their rights on an equal basis as persons without disabilities. CRPD article 27 contains the minimum steps that States must enshrine in domestic laws and policies. Article 27 includes 28 measures across 12 articles, including the prohibition on discrimination at work,18 ensuring that persons with disabilities are able to

10 11 12 13 14 15 16 17 18

CRPD art 3(b). CRPD Preamble (a), (h) and (y), art 1 and art 3(a). CRPD art 3(c). CRPD art 3(d). CRPD art 3(e) and (g). CRPD art 3(f ). CRPD art 3(h). With respect to provision of health care: CRPD art 25(e). CRPD art 27(1)(a).

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exercise their labour and trade union rights on an equal basis with others,19 promoting self-employment and employment in the private and public sectors,20 ensuring reasonable accommodations are made,21 and that persons with disabilities are not held in slavery or in servitude.22 ILO conventions regulate the terms on which employers can terminate employment contracts.23 The ILO has created well-established legal norms around fairness and dismissal. The ILO’s Convention Concerning Termination of Employment at the Initiative of the Employer provides that: ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’.24 The ILO conventions focus on supporting injured workers to recover and return to work; workers that cannot recover are provided little support by ILO conventions.25 Even though ILO soft law encourages employers to make reasonable accommodations and adjustments to promote disability inclusion at work,26 such concepts are not found in any ILO conventions. The Convention Concerning Termination of Employment at the Initiative of the Employer article 5 provides that dismissal on the basis of specified attributes is prohibited, but does not mention disability. The grounds on which dismissals are prohibited consist of ensuring worker representation, by protecting union and workers’ representatives; protecting workers’ right to be free from victimisation for raising complaints; and a list of human rights attributes including ‘race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin’. Significantly, disability or impairment is not included in this list. Prior to the CRPD, the omission of disability from the Convention Concerning Termination of Employment at the Initiative of the Employer could be read to deny or reduce persons with disabilities’ right to termination protection

19 20 21 22 23

24

25

26

CRPD art 27(1)(c). CRPD arts 27(1)(e), (f ), (g) and (h). CRPD art 27(1)(i). CRPD art 27(2). Termination of Employment Instruments, Background Paper for the Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No 158), and the Termination of Employment Recommendation, 1982 (No 166) (ILO, Geneva). Convention Concerning Termination of Employment at the Initiative of the Employer, adopted 22 June 1982, 1412 UNTS 160 (entered into force 23 November 1985). Paul Harpur ‘Collective versus Individual Rights: The Able Worker and the Promotion of Precarious Work for Persons with Disabilities Under Conflicting International Law Regimes’ (2017) 41 Loyola Law School Los Angeles International & Comparative Law Review 1 51. Ibid.

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II Statutory Unfair Dismissal Protections

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on an equal basis as others. The CRPD has transformed the rights of persons with disabilities, and now the CRPD article 27 is read with the Convention Concerning Termination of Employment at the Initiative of the Employer so that ‘capacity’ should be read to include the concept of ability diversity. The concept of ability diversity in the CRPD includes an obligation to reconsider the notion of what it means to be a worker and the range of capacity that should be regarded as within the normal range.

ii statutory unfair dismissal protections Employment contracts are generally formed when an employer offers to provide the potential employee certain working conditions and a rate of pay in return for the potential employee’s service. The parties agree on how the contract may be brought to an end within the bounds dictated by law.27 Fixedterm contracts are terminated by the expiration of the time period, whereas continuing contracts are terminated by an act of the parties.28 The terms on which parties are able to terminate employment attracts some form of regulation in most jurisdictions. In England, for example, the terms on which employment contracts could be entered into and terminated were first regulated by statute in 1349.29 Similar provisions were adopted across the British Empire; thus statutory or common law restrictions operate to some extent in most jurisdictions.30 The regulation of termination of employment has shifted within and across jurisdictions as economic and political circumstances alter.31 The United 27

28

29

30

31

D Brodie, ‘How Relational Is the Employment Contract?’ (2011) 40 Industrial Law Journal 232; Brooks, A, ‘Myth and Muddle – An Examination of Contracts for the Performance of Work’ (1988) 11 University of New South Wales Law Journal 48; K Stone, ‘The Decline in the Standard Employment Contract: A Review of the Evidence’ in K V W Stone and H Arthurs (eds), Rethinking Workplace Regulation (2013) Russell Sage Foundation, 3666. G J McCarry, ‘Termination of Employment Contracts by Notice’ (1986) 60 Australian Law Journal 78. Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton and Stewart’s Labour Law (6th ed, 2016) Federation Press. S Jacoby, ‘The Duration of Indefinite Employment Contracts in the United States and England: An Historical Analysis’ (1982) 5 Comparative Labor Law Journal 85, 86–91; A Merritt, ‘The Historical Role of Law in the Regulation of Employment – Abstentionist or Interventionist?’ (1982) 1 Australian Journal of Law and Society 56, 60–67; John Howe and R Mitchell, ‘The Evolution of the Contract of Employment in Australia: A Discussion’ (1999) 12 Australian Journal of Labour Law 113. T Donaghey, Termination of Employment (2nd ed, 2013) LexisNexis Butterworths; Paul Harpur, ‘Work Choices: An International Comparison’ (2007) 6 QUT Law & Justice Journal 1, 89; B Hough and A Spowart-Taylor, ‘Theories of Termination of the Contract of Employment’ (2003) 19 Journal of Contract Law 134; K Stone, ‘Revisiting the At-Will Employment Doctrine:

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States has no federal statutory dismissal protection, and many employment contracts are structured as employment-at-will contracts.32 Employment-atwill contracts enable either party to terminate the contract without cause and unfairness is not a bar to dismissal.33 Irish statutory dismissal protection differs from the Australian, Canadian and United Kingdom approaches, in that there is a conflating of some discriminatory protection into the unfair dismissal protections. The Irish Unfair Dismissals Acts 1977–2015 requires fairness in the termination of certain employment contracts, but also includes a limited range of grounds that are also protected under anti-discrimination laws. These grounds include religion, race and pregnancy, but do not include disability or impairment. The combining of anti-discrimination attributes may provide additional scope for understanding how unfair dismissal can be utilised and developed to assist persons with disabilities in Ireland and other jurisdictions with dismissal protections. The position in Australia, Canada and the United Kingdom are reasonably similar. The statutory unfair dismissal protections in these three jurisdictions do not expressly include dismissals that are discriminatory; however, it might be possible to utilise the notion of just dismissal where a protected attribute is one small aspect of a group of reasons that led to the dismissal. Part III of the Canada Labour Code prohibits unjust dismissals. The Employment Rights Act 1996 (UK) s 94 provides that employees have a right not to be unfairly dismissed by their employers.34 The current federal statute in Australia, the Fair Work Act 2009 (Cth), regulates almost every employment relationship in Australia and provides that termination of employment contracts, subject to some threshold requirements, must be fair.35

32

33

34

35

Imposed Terms, Implied Terms and the Normative World of the Workplace’ (2007) 36 Industrial Law Journal 84. Matthew W Finkin, ‘Privatization of Wrongful Dismissal Protection in Comparative Perspective’ (2008) 37(2) Industrial Law Journal 149 (explaining the United States position by reference to public choice theory). Richard Epstein, ‘In Defence of the Contract at Will’ (1984) 51 University of Chicago Law Review 947. Hugh Collins, Keith Ewing, and Aileen McColgan, Labour Law (2012) Cambridge University Press, chapter 19. Fair Work Act 2009 (Cth) s 385.

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III No Need to Identify or Prove the Presence of Disability

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iii impairment irrelevant: no need to identify or prove the presence of disability This section will analyse Australian unfair dismissal laws to demonstrate how workers who manifest symptoms, which could amount to a psychosocial disability, have obtained a remedy without the need to identify as having a disability. Where anti-discrimination laws focus on the treatment of human rights attributes, unfair dismissal laws focus on unfair termination of employment contracts. An employee can pursue a claim of unfair dismissal where they are an employee who has been dismissed by their employer. While these laws have a range of threshold criteria, such as completing a probationary period of time with the dismissing employer and not being classified as a highearning employee, these statutory protections do not require a worker to prove impairment or that they are disabled by their employer’s conduct. Disability only arises in unfair dismissal cases where this is relevant to the claim of unfair contractual treatment.

A Proving the Presence of Disability Can Be Challenging The freedom to run an unfair dismissal action, from beginning to end, without mentioning disability, is empowering for persons with disabilities. Anti-discrimination laws take a range of abilities and determines where this qualifies for protection. Chapters 5 and 6 of this monograph have analysed a number of situations where persons with psychosocial disabilities are excluded from anti-discrimination laws, not because of the inequalities they experience, but purely on value judgments of who should be protected and by antidiscrimination laws. Other chapters have analysed how hierarchies of impairment at work are disabling workers with psychosocial disabilities. This has resulted in many persons with episodic, addiction and other disabilities being denied justice. As the question of disability is not relevant to an unfair dismissal suit, then the fact a range of abilities are not classified as a disability is immaterial.

B The Disclosure Conundrum and Unfair Dismissal Laws As analysed in Chapter 7 of this monograph, workers with invisible disabilities have the choice about whether or not they will disclose their medical history to others. A blind person using a white cane or a person in a wheelchair have visible disabilities, in that a person who sees the person immediately

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recognises the presence of an impairment. Most psychosocial disabilities, and some sensory and physical disabilities, are not readily visible. A person who experiences anxiety could hide their impairment by explaining they do not like crowds or a person with low hearing could explain they are a little hard at hearing. While it is exceptionally challenging to hide all manifestations of impairment for an extended period of time, some workers nevertheless choose to endure this burden rather than expose themselves to the negative stigma associated with disability. The disclosure conundrum facing persons with highly stigmatised disabilities is that, in order to get support from the State and their employer, they need to highlight their need for assistance. The disclosure conundrum also applies when deciding whether to seek a remedy for ability inequalities at work. If the employee is being treated unfairly due to their abilities, but that worker has not come out as having a disability, then that worker may desire to seek a remedy that does not need them to identify as having a disability. If the worker comes out to sue for disability discrimination, then that worker is making a public statement of their disability status. Unfair dismissal proceedings are public and it is almost certain that subsequent potential employers will become aware of the litigation and disability status. Consequently, a successful claim under anti-discrimination laws can amount to a Pyrrhic victory. Even though the employee is the one wronged, the stigma attached to disability discrimination litigation has deterred persons with disabilities from commencing litigation to enforce their anti-discrimination rights.36 Persons with disabilities confront vulnerabilities which are particular to complainants with such attributes. People who view disability through a medical model lens regard impairment as the cause of disablement. Under this approach, there is an expectation that inequalities are the norm, and that persons with disabilities should be grateful for any efforts to improve their disabled lives.37 While such an approach goes against the Convention on the Rights of Persons with Disabilities (‘CRPD’) and the human rights paradigm, this approach arguably finds traction in certain sectors of the community. Lennard Davis has eloquently analysed how society constructs those who make any efforts to accommodate persons with disabilities as ‘bending over

36

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Paul Harpur, ‘Naming, Blaming and Claiming Ableism: The Lived Experiences of Lawyers and Advocates with Disabilities’ (2014) 29(8) Disability and Society 1234; Paul M Secunda, ‘Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections for Bullied Special Education Students’ (2015) University of Illinois Law Review 175. Tobin Siebers, Disability Theory (2008) University of Michigan Press, 34.

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III No Need to Identify or Prove the Presence of Disability

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backwards‘, even where these efforts fall short of obligations under antidiscrimination laws.38 Persons with disabilities who desire to exercise their rights have been labelled as narcissists, and been accused of excessive hyperindividuality, unreasonable self-focus and unjustly blaming the wider community for their sorrows.39 Under the disabling ‘bending over backwards’ paradigm, persons with disabilities are pressured to be grateful for the help they have received and strongly discouraged from taking any action to enforce their rights. Rather than being encouraged to fight for equality, persons with disabilities are encouraged to be satisfied with sub-optimal and unequal treatment. Within this disabling paradigm, persons with disabilities are discouraged from arguing that employers are not doing enough to combat inequalities at work. A worker who files for unfair dismissal in contrast need not disclose their disability. Arguably, the stigma that attaches to a worker who challenges their employer’s contractual practices is substantially lower than the stigma attached with certain psychosocial disabilities. A worker who linked their consumption of alcohol to addiction would be exposing themselves to significant negative stigma. Workers have used unfair dismissal laws to seek a remedy for alcohol drinking misconduct, without the need to construct their consumption of alcohol as a manifestation of a disability. In the following case, the worker in question may or may not have had a disability; the point is they were not required to come out as having a disability in the course of the dispute. In Jurgen Rust v. Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad, an employed captain had lodged an internal bullying case against their manager.40 The employer accepted the bullying had occurred, but determined to take no action. Almost three years after the complaint, the matter had not been appropriately resolved when the captain encountered the target of their bullying. The captain consumed a small amount of alcohol, in violation of the ‘zero tolerance’ policy of the employer. The employer tested the captain for alcohol and dismissed them. The Fair Work Commission held this dismissal was unfair and said the employer should have considered rehabilitation options and appropriately responded to the bullying by the manager.

38

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40

Lennard J Davis, Bending over Backwards: Disability, Dismodernism, and Other Difficult Positions (2002) New York University Press. Lennard J Davis, ‘Bending Over Backwards: Disability, Narcissism, and the Law’ (2000) 21(1) Berkeley Journal of Employment and Labor Law 193. Jurgen Rust v. Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad [2017] FWC 3426.

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iv the notion of ‘fairness’ incorporates ability diversity Under the Fair Work Act 2009 (Cth), an employee is unfairly dismissed where: (a) they are dismissed from their employment; and (b) their dismissal was harsh, unjust or unreasonable; and (c) their dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) their dismissal was not a case of genuine redundancy.41 In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the relevant administrative tribunal (the Fair Work Commission) must take into account eight broad factors.42 The factors used when considering when if a dismissal was fair or unfair can be conveniently divided into three categories. These three groupings include: 1. Factors that analyse whether or not the employee was afforded procedural fairness in the way in which they were dismissed;43 2. factors that analyse whether or not the employer had a valid reason for the dismissal;44 and 3. all other matters the Fair Work Commission regards as relevant.45 When determining whether a dismissal was fair or unfair, the commission considers all the above factors individually and in light of the totality of the conduct of the parties.46

A Procedural Fairness in the Fair Work Act 2009 (Cth) s 387(b)–(g) Procedural fairness, also referred to as natural justice,47 is a cornerstone of fair decision-making in administrative, criminal, employment and a range of other areas of law. In the unfair dismissal jurisdiction, procedural fairness operates to

41 42 43 44 45 46 47

Fair Work Act 2009 (Cth) s 385. Fair Work Act 2009 (Cth) s 387. Fair Work Act 2009 (Cth) s 387(b) – (g). Fair Work Act 2009 (Cth) s 387(a). Fair Work Act 2009 (Cth) s 387(h). Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371. See for an example where these terms were used interchangeably: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v. Abigroup Contractors Pty Ltd [2013] FCAFC 148.

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IV The Notion of ‘Fairness’ Incorporates Ability Diversity

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ensure that employers have all the relevant facts when deciding whether or not to dismiss a worker for cause.48 If a worker is denied procedural fairness, then it is possible that the employer may not have all relevant facts when deciding whether there are grounds to dismiss the worker. The failure to follow procedural fairness shifts the burden of proof substantially in the workers’ favour. Even where there appears to be valid grounds, employers need to demonstrate that the failure to provide procedural fairness did not taint the decision.49 This can be difficult as employers are often not in a position to predict what the worker will submit and accordingly are not in a position to pre-judge the outcome. In the absence of procedural fairness, a dismissal will only be held to be fair where the gravity of the proven misconduct is not capable of mitigation.50 Where procedural fairness is not present, the law operates on the basis that it is inherently unfair to not provide the worker with an opportunity to hear the allegations against them and to respond. Accordingly, workers can be successful in contesting their dismissal by simply pointing to the absence of procedural fairness.51 The worker’s cases is significantly strengthened, however, if they can demonstrate that the failure to provide procedural fairness had a tangible impact on the information upon which the decision was made. Misunderstandings about mental impairments can lead to unfavourable work outcomes. In some situations, incorrect assumptions are made about mental impairments, and in other situations, the causes of non-ideal social interactions can be explained by the presence of psychosocial disabilities. In both of these situations, workers with mental impairments can experience unfavourable outcomes based upon misinformation. Procedural fairness laws ensure that decision-makers at least give workers with psychosocial disabilities the opportunity to educate decision makers of their impairment and possibly to reduce the disabling impact of prejudice. Unfair dismissal laws apply to the full range of mental health concerns, from situational and undiagnosed stress, anxiety and the like, to considering psychological and psychiatric conditions. 48 49

50 51

Andrew Stewart, Stewart’s Guide to Employment Law, (5th ed, 2015) Federation Press, 373. In Joby Cherunkunnel v. Alfred Health [2015] FWC 1127, the Fair Work Commission held that the investigation was flawed. Failing to interview an employee under investigation and provide them an opportunity to defend their conduct was a breach of natural justice. Regardless of this breach, however, the employer had sufficient grounds to issue the nurse with a final warning. The employer was aware of the nurse’s position about the transition and had sufficient evidence that the nurse had breached the new policies to ground their conclusions). McGrath and Anor v. Sydney Water Corporation [2013] FWC 793. The employee had provided various grounds for dismissal but their dismissal was found to be unfair as they were denied procedural fairness: Bigg v. Nortec Employment & Amp; Training [2016] FWC 8163.

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Regardless of the extent of the psychosocial diversity, unfair dismissal laws require that workers are provided procedural fairness. The judgment in Vernham v. Jayco Corporation Pty Ltd illustrates how the procedural fairness aspect of unfair dismissal laws can promote psychosocial diversity at work.52 The worker in Vernham engaged in non-ideal social behaviour. Allegations were made against him and he was dismissed without the employer appropriately investigating or giving the worker a chance of responding to the allegations prior to being dismissed. In finding the dismissal unfair, the Fair Work Commission set an extremely high bar for employers when responding to non-ideal behaviours at work. The Fair Work Commission did more than just requiring employers to notify employees of allegations and respond to them; it was held that employers can have a positive duty to seek out information about their employees’ mental health. The employer in Vernham formed the view that the worker was ‘mentally scattered’.53 In addition, the employer was advised the worker was suicidal and that his medical practitioner had been contacted.54 The employer argued they had no positive duty to seek out information about their employee’s mental health and that they did not know the ‘details’.55 The Fair Work Commission held that these facts provided ‘signals/sufficient information for the [employer] . . . to conclude that . . . [the worker] was mentally unwell’.56 This placed the employer on notice to seek out further and better particulars about the extent of the worker’s mental illness and whether or not this had had an impact on the worker’s conduct. The Fair Work Commission found, if the employer had ‘asked the relevant questions, it would have discovered that . . . [the worker] had commenced treatment . . . the day following the sending of the emails and would have also been appraised of the diagnosis of a posttraumatic stress disorder. This is a matter that the . . . [employer] should have taken into account, as a mitigating factor, in deciding whether to dismiss’ the worker.57 Ultimately, the failure of the employer to act on the evidence of the mental health concerns resulted in a breach of procedural fairness and a finding that the dismissal was unfair. As reinstatement was not an option, the worker was

52 53 54 55 56 57

Vernham v. Jayco Corporation Pty Ltd [2015] FWC 8185. Ibid. [76]. Ibid. [77]. Ibid. Ibid. [78]. Ibid. [79].

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awarded damages.58 This case illustrates that fairness dictates that employers cannot ignore signs of mental health problems when deciding whether to dismiss workers for conduct. While discrimination laws require workers to surmount a substantial hurdle of linking their disability and conduct, unfair dismissal laws require employers to embrace investigatory processes that respond to signs of psychosocial diversity in the workplace. If employers become aware of mental health concerns regarding an employee that they are dismissing, they need to demonstrate they have considered the impact of mental health on the conduct of the worker. In Ronaldo Salazar v. John Holland Pty Ltd TA John Holland Aviation Services Pty Ltd, an employee who was off work receiving psychological and psychiatric treatment was dismissed on three grounds.59 Two of the grounds were without foundation. One ground claimed an employee refused a crew change when they had ultimately accepted the change and satisfied the requirements imposed by the employer to finalise that crew change. Commissioner Ryan held the employer’s position was ‘simply unsustainable’.60 The worker disputed, but finally accepted the change. The employer then required the worker to take certain steps before he could commence work again, which the worker satisfied. Another ground for dismissing the worker was his continued assertion that he had not received certain training. A miscommunication occurred and the employer thought the worker had completed that training and took his assertion as a ground for dismissal. Commissioner Ryan held that the employer’s allegation was ‘without foundation’.61 The only ground held to be valid was an e-mail sent by the worker to a range of senior managers in the employer. The e-mail responded to the worker’s dispute with the employer and included a range of assertions in it, including threatening to go to the media and regulators about problems in the company. This e-mail was sent while the worker was medically unfit for work and on leave. The worker argued he wrote the e-mail while he was psychologically unfit for work and that this should mitigate the impact of his conduct.

58

59

60 61

Vernham v. Jayco Corporation Pty Ltd [2016] FWC 1646; The employer was ordered to pay the employee $20,301.83 (gross). Ronaldo Salazar v. John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd [2014] FWC 4030 was successfully appealed. The Full Bench in Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v. Mr Ronaldo Salazar [2014] FWCFB 7813 remitted the matter to Commissioner Roe on 17 October 2014 and the parties resolved by agreement the case later that day. [2014] FWC 4030, [79]. Ibid. [129].

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Commissioner Ryan determined that the employer did not pay sufficient regard to the worker’s mental health issues. Since the worker was off work for serious mental health issues, and these mental health issues clearly played a role in the worker’s decision to send an e-mail, the failure of the employer to consider the role of mental health meant their decision was unfair and compensation was awarded.62 There is a long history of employees lying to their employers about their health, which most commonly manifests as workers taking personal leave or sick leave when they are not in fact unwell.63 People also claim to have disabilities when in fact they do not have them in order to claim various benefits. It is entirely possible that an employee who has engaged in misconduct could claim to be stressed, anxious or suffering some other form of mental health problems. Even if this is not supported by medical evidence, this claim requires the employer to take steps to determine whether in fact the worker had a medical condition at the time of the incident in question and the impact of that condition if they did have one. If an employee is not lying and has been receiving treatment, then it is relatively easy to obtain evidence from their treating practitioners. If, however, the worker has not received treatment, it can be challenging for a medical practitioner to make a diagnosis on a person’s mental state several months after the event. Of course, unfair dismissal does not require medical evidence to support such claims, but clearly such evidence helps the employer and tribunal of fact distinguish between an employee who genuinely has a medical condition and one that is claiming to have mental health difficulties to help exculpate themselves. Mulroney v. Alfred James & Sons Pty Ltd illustrates how employers and tribunals of fact approach employees who are making unsubstantiated or irrelevant claims of mental health.64 Whether or not the employer believes the worker is misrepresenting or mistaken about the existence or impact of mental health problems, the initial process is the same: the employer needs to invite the worker to adduce evidence to demonstrate that they have mental concerns, and then show how these medical factors should be taken into consideration when determining how to respond to their conduct.

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Ronaldo Salazar v. John Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd [2014] FWC 4030 was successfully appealed. The Full Bench in Holland Pty Ltd T/A John Holland Aviation Services Pty Ltd v. Mr Ronaldo Salazar [2014] FWCFB 7813 remitted the matter to Commissioner Roe on 17 October 2014 and the parties resolved by agreement the case later that day. Alecia Thompson, ‘Chucking a Sickie: A Workplace Entitlement or Grounds for Disciplinary Action?’ (2017) 69(3) Governance Directions 17. Mulroney v. Alfred James & Sons Pty Ltd [2015] FWC 621.

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The worker in Hackett was involved in an accident that caused stress, and was mentally unwell due to an extended termination of a romantic relationship.65 Matters were complicated as the conduct was engaged in and outside the workplace. Further, the person the worker was accused of harassing was their former romantic partner, who was also an employee of the same employer. The worker argued that his persistent and extended misconduct was impacted upon by mental health difficulties brought on by stress. The worker did not adduce medical evidence explaining his condition was significant or that it was treated. Further, the worker did not show how and why his stress should be taken into account considering the seriousness of the allegations against him. Importantly, the employee did not recognise that their previous conduct was unacceptable, which meant there was a reasonable probability that this form of conduct could reoccur.

B Whether There Was a Valid Reason for the Dismissal Related to the Person’s Capacity or Conduct (Including Its Effect on the Safety and Welfare of Other Employees) – Fair Work Act 2009 (Cth) s 387(a) A dismissal is often fair if there are valid grounds for the dismissal. What then are valid grounds for dismissal? Justice Northrop explained in Selvachandran v. Peteron Plastics Pty Ltd that the ‘adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason. . .’.66 The question of whether or not there were valid grounds for the dismissal thus focuses on the totality of the conduct of all the relevant parties. Manifestations of psychosocial disabilities can sometimes provide valid grounds for fair dismissal based upon conduct or occupational health and safety. The interaction between occupational safety and health and mental disability has already been analysed in Chapter 8 of this monograph. Similar to the inherent requirements defence, if an employee engages in violence, this can give valid grounds for dismissal. Similarly, if the worker cannot perform the requirements of the job, then this lack of capacity can justify dismissal. Often, there are a mixture of valid and invalid grounds for acting. The Fair Work Commission will weigh up all the grounds to determine whether the decision was valid or not. Anders v. The Hutchins School is a good example of a case involving mental issues and both valid and invalid considerations.67 65 66 67

Hackett v. Australian Federal Police [2017] FWC 2518. Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371. Anders v. The Hutchins School [2016] FWC 241.

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The worker in Anders experienced situational depression that had culminated in an interpersonal dispute. The dispute became public with the dismissed employee making disparaging comments on Facebook about an unresolved industrial dispute. The Fair Work Commission found that the worker’s behaviour demonstrated a ‘lack of wisdom’. Not all of the employer’s grounds for acting were found to be valid. Some of the allegations made by the employer were ‘problematic’ – at least one of the complainants was involved in investigating their own complaint. Further, some of the allegations were held to be proven merely ‘on the say so’ of complainants. The Fair Work Commission concluded that a number of the employer’s grounds for acting failed to ‘constitute a sound and rational basis’ for a finding of loss of trust and confidence in the worker. Consequently, the Fair Work Commission held that the employer had not established a valid reason for termination. It can be difficult to prove that the employer lacked sufficient valid grounds for dismissing a worker. Psychosocial diversity can create difficulties for interpersonal relationships and, if employers fail to make appropriate accommodations, this can result in matters escalating so that valid grounds for dismissing emerge. While this mixture of valid and invalid grounds can cause a dismissal to be unfair, it can be a challenge to prove overall that the grounds were invalid. One of the biggest benefits with the unfair dismissal jurisdictions is that workers do not need to prove a decision was invalid to obtain a remedy. The question of the validity of the dismissal is analysed separately from the harshness of the decision.68

C Any Other Matters that the FWC Considers Relevant – Fair Work Act 2009 (Cth) s 387(h) A dismissal based on valid grounds can be held to be unfair if it is harsh.69 It is, comparatively, far easier to prove an employer acted harshly towards an employee in dismissing them, than the equivalent legal and evidential requirement to prove that an employer unlawfully discriminated against an employee on the basis of their disability. The lower legal and evidential requirements mean that, where a worker believes they have experienced ableism at work, the unfair dismissal jurisdiction can offer workers with mental disabilities a remedy where no such remedy would exist in antidiscrimination laws.

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B, C and D v. Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, [21]. Fair Work Act 2009 (Cth) s 385(b).

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Employers are required to consider the impact of mental health in deciding whether dismissal is warranted. The presence of a mental health condition is most likely to explain and excuse misconduct where the condition causes a temporary divergence from acceptable conduct, and where treatment or circumstances indicate that it will not occur again.70 For example, in Wattie v. Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW), the employer dismissed the worker as they had lost confidence in their abilities, based upon intentional misconduct and a belief that this misconduct would reoccur.71 The worker presented ‘reliable medical evidence’ that explained his past conduct and reduced the fears of reoccurrence. Commissioner Murphy found the worker’s conduct was ‘caused by or contributed to by mental illness that he was suffering at the time of the incidents which led to his dismissal’. Commissioner Murphy concluded, ‘Weighing all of these mitigating factors against the seriousness of the misconduct, I am of the opinion that the dismissal of [the officer] was, in all the circumstances, harsh’. The worker was reinstated, with service being unbroken, but was not awarded wages for the period he was off work as he had contributed to his dismissal. While mental health can be used to excuse misconduct, a dismissal will only be harsh if the worker is able to demonstrate they are unlikely to reoffend. Unlike disability discrimination laws that contain duties to make reasonable accommodations and adjustments, unfair dismissal laws do not alter workplaces to accept psychosocial diversity; instead, they provide that it is harsh to take substantial action against an employee who has mental health problems that caused them to engage in an isolated unacceptable act. In Rust v. Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad, the employer had contributed to a failed alcohol test by failing to appropriately manage workplace disputes.72 The employer had not resolved and finalised a dispute involving the worker in question. On the day before the failed alcohol test the worker had an encounter which had a psychological impact on the worker. The worker responded by consuming alcohol and then lied to his employer and failed a random alcohol test. The Fair Work Commission full bench – Deputy Presidents Gostencnik and Clancy and Commissioner Saunders – found the employer

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Illawarra Coal Holdings Pty Ltd T/A South32 v. Matthew Gosek [2018] FWCFB 1829. Wattie v. Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036. Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad v. Rust; Rust v. Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad [2017] FWCFB 4738.

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had contributed to the worker’s misconduct; however, the worker had previously breached the employer’s alcohol and drug policies. The fact this was the third breach demonstrated that the worker was likely to reoffend, and this history of offending needed to be factored in to determine whether the dismissal was harsh overall. As this was not considered at first instance, the matter was sent back for retrial. The presence of psychological factors can be used to excuse an isolated act of misconduct, but only where the worker recognises their past conduct was unacceptable. In Belinda Paris v. Cox Purtell Staffing Services Pty Ltd T/A Cox Purtell, the worker was experiencing anxiety and was taking pain medication for another condition.73 While experiencing these medical conditions, the worker told a client she had sent an e-mail and then consistently lied about sending this e-mail to the client and during an internal disciplinary investigation. Although the worker tried to use her medical condition to mitigate her conduct, her failure to admit her dishonesty compounded the seriousness of her misconduct and contributed to a finding that her dismissal was not harsh. Deputy President Booth held ‘it was apparent (the recruiter) considers the response to her misconduct disproportionate to its gravity. In effect, she characterises her conduct as a series of honest mistakes’. Through continuing to defend the indefensible, the worker was not able to construct her error of judgment as an isolated event, contributed to by mental health problems, that was out of character and unlikely to reoccur. Unfair dismissal laws will protect employees from harshness, but will not protect employees from all forms of misconduct, whether or not it is caused by their neurodiverse state. Employees are in the strongest position where they have received treatment, the treatment is effective, and medical experts can attest that the treatment substantially reduces the probability of the worker reoffending. On the one hand, the unfair dismissal jurisdiction will offer workers with mental disabilities a means of combating ableism; on the other hand, this jurisdiction reinforces the concept that the ideal worker is one that is able to manage their psychosocial diversity and operate as a ‘normal’ worker. While unfair dismissal laws provide a helpful remedy to some workers with disabilities, the focus of this jurisdiction is upon contractual fairness and not on promoting human rights or equality. While it is far from a perfect fix, it does provide a remedy that many workers with psychosocial disabilities are utilizing.

73

Belinda Paris v. Cox Purtell Staffing Services Pty Ltd T/A Cox Purtell [2016] FWC 727.

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conclusion This chapter moves away from identifying regulatory gaps and proposing reforms, and instead considers how statutory unfair dismissal laws can provide a remedy for workers with psychosocial disabilities. After considering how international disability and labour laws intersect, this chapter considered how unfair dismissal laws can provide a means of protecting workers with psychosocial disabilities who have been dismissed. While this remedy is far from perfect, it does have some advantages over anti-discrimination law remedies in certain cases. A key theme throughout this monograph is that impairment is experienced differently. A key difference between most sensory and physical impairments and most psychosocial impairments is the visibility of the ability diversity. Claiming and proving the presence of disability is a requirement for all antidiscrimination laws; thus, people who have invisible psychosocial impairments do not have the option to keep their ability diversity secret if they use unfair dismissal laws. Considering the exceptional level of prejudice confronting people with all disabilities, it is not surprising that many people with invisible impairments desire to keep their medical situation confidential. This chapter targets workers who are unable or unwilling to have their range of abilities classified as a disability and analyses a means by which they can obtain some form redress when they experience ableism at work. As unfair dismissal laws are not targeted at addressing discrimination, the remedies that are available to workers will not address many of the causes of ability inequalities at work. Unfair dismissal laws do not require fairness throughout the contractual relationship and are not focusing on disability. While an imperfect option, it is being used by workers who have conditions that could be categorised as psychosocial impairments.

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Index

ability differences, 32 actual causes of disablement, 28 autonomy, 25

impairment prong under the ADA, 96 inclusion, 32 inclusive design, 129 indirect discrimination, 137 Indirect discrimination can be justified, 141 intermittent impairments, 90

bending over backwards, 215 bifurcates, 137 biological factors, 87 brutal oppression, 7, 25 business justification, 141

justify social exclusion, 141 cure, 7, 25 Declaration of Independence, 33 Declaration of Independence for persons with disabilities, 33 defining disability, 86 deserving, 87 direct discrimination, 137 Disability human rights paradigm, 1, 20, 30–38, 81, 108, 121, 128, 181, 184 disability is mitigated, 114 discriminatory practice is justified, 141 disparate impact, 137 disparate treatment, 137, 175 equalization of opportunities, 32 eugenics, 7, 25 excessive hyperindividuality, 215

legitimate aim, 141 legitimised, 140 less favourably, 137 long-term impairments, 92 Marxist critique, 28, 72 medium-term impairments, 101 minority group, 86 minority group approach, 87 mitigated state, 115 mitigated the functional limitations of impairment, 95 mitigated the functional limitations of their impairments, 95 mitigating a disability and curing a disability, 114 mitigating circumstances, 114

facially neutral practices, 140 narcissists, 215 Healthism, 103 human rights agenda, 32 hyper-individuality, 215

open definition, 89 oppressed group, 86

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Index

paternalistic, 25 proportionality analysis, 141 proportionate means of achieving a legitimate aim, 141

strong social model, 28, 71 Sutton Trilogy, 95 three step unified test, 136 tsocial contract, 25

right to work for persons with disabilities, 34 separate but equal, 31 short -term, 101 short-term and medium-term impairments, 90 social consciousness, 28 social model, 5, 28–29 social model approach, 28 social model tenets, 29

underlying discriminatory policies and practices, 140 undeserving, 87 universal design, 129 universalist approach, 87 Universalist approach, 86 unnecessary and have no business justification, 141

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