Disability Equity

What Constitute A Disability?

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Why Two Important Considerations?

• Definition of disability:– Can identify and assist– Know what their rights are– Consult and plan as required by the

EEA

• Suitably qualified:– Show that fair treatment is the issue

not incapacity

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A Broader Perspective on Disability

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EMPLOYMENT EQUITY ACT, NO. 55 OF 1998

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• "People who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment."

First, a person must have an impairment

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• A physical impairment means "a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired or visually impaired" (Code, Paragraph 5).

First, a person must have an impairment

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• A mental impairment is a clinically recognised condition or illness that affects a person’s thought processes, judgement or emotions.

Secondly, the impairment must also be long-term or recurring

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• Long-term means the impairment has lasted or is likely to persist at least 12 months. Recurring means the impairment is likely to happen again and to be substantially limiting

Secondly, the impairment must also be long-term or recurring

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• Progressive conditions are those that are likely to develop or change or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting.

Thirdly, the impairment must be substantially limiting

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• An impairment is substantially limiting if its nature, duration or effects substantially limit a person’s ability to perform essential functions of the job for which she/he is being considered.

Two categories of impairments are excluded

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• The first category are impairments, which are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability unless even with

spectacles or contact lenses the person's vision is substantially impaired

Two categories of impairments are excluded

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• The second category refers to what are called public policy exclusions:– sexual behavior disorders that are against

public policy– self-imposed body adornments such as tattoos

and body piercing– compulsive gambling, tendency to steal or light

fires– disorders that affect a person’s mental or

physical state if they are caused by current use of illegal drugs

– normal deviations in height, weight and strength

Examples of Assessments

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• NB Disclaimer – Let the appropriate professional do an assessment, this is just an example to show the thought process in determining disability;

• Appropriate professionals could include:– Occupational health practitioner– Occupational therapist– Psychiatrist/Psychologist

NB – Do Not Use As Diagnostic Tool – See

Disclaimer

Criteria Question Yes No Comments

Physicalimpairment

Do you have a physicalimpairment that may limit yourability to perform the essentialfunctions of the job?

This includes sensory impairments.

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NB – Do Not Use As Diagnostic Tool – See

Disclaimer

Criteria Question Yes No Comments

Mentalimpairment

Do you have difficulty followingstandard written or verbalinstructions?Do you have difficulty performingwhen you feel extremelystressed?

If yes to either of these or similar mentalor emotional conditions, has aprofessional identified this as a clinicallyrecognised condition?.

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NB – Do Not Use As Diagnostic Tool – See Disclaimer

Criteria Question Yes No Comments

Long-term Is this impairment a once-offoccurrence or does it fluctuate?

Long-term is defined for the purpose ofthis exercise as 12 months or longer.

Recurring Recurring means that the impairment islikely to occur again and includeschronic conditions even if its effects onthe person fluctuate.

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NB – Do Not Use As Diagnostic Tool – See Disclaimer

Criteria Question Yes No Comments

Substantially limits

Can the effect of your disabilitybe easily controlled withmedication?Can this disability be easilycorrected, e.g. with a device?Can the effect of the disabilitybe reduced by, e.g. medicaltreatment??

.

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Employment Equity Act of 1998

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• Section 20(3): – For the purposes of this Act, a person may

be suitably qualified for a job as a result of any one of, or any combination of that person's-•formal qualifications;•prior learning;•relevant experience, or•capacity to acquire, within a reasonable time, the ability to do the job.

Employment Equity Act of 1998

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• Section 20(5):– In making a determination under

subsection (4), an employer may not unfairly discriminate against a person solely on the grounds of that person's lack of relevant experience.

Employment Equity Act of 1998 – Par 6

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It is not unfair discrimination to:• “to prefer or exclude any person on the basis

of an inherent job requirement”• The Code of Good Practice define inherent

requirements as:• The inherent requirements of the job

are the purposes for which the job exists. The essential functions and duties of the job are what are necessary to get the job done

Technical Assistance Guidelines on the Employment of People with

Disabilities

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• “If the person for the job with the right qualifications, capabilities and experience, also happens to be a person with a disability, then accommodating that person within the workplace (reasonable accommodation without unjustifiable hardship) is recognised as important for securing and developing the right person for the job. It is not seen as an additional burden that has to be taken on in order to meet the requirements of the Act”

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