Wednesday, August 24, 2011

Equal Pay for Employees with Disabilities

by Charles O’Mahony

There is an interesting article in the Winnipeg Free Press about discriminatory laws that permit the payment of below minimum wages to persons with disabilities. See here. Employment law in Manitoba, Alberta and Saskatchewan authorise this underpayment provided that the responsible Minister issues a permit. A freedom of information request showed that 15 permits have been issued in the past 5 years. See here. There is a similar provision in Irish law by way of section 35 of the Employment Equality Acts 1998-2008. Section 35 provides that it is not unlawful for an employer to pay a different rate to an employee with a disability “by reason of that disability, the employee is restricted in his or her capacity 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.” It is my understanding that this provision is rarely used in Ireland. The rationale presumably for allowing different rates of pay to disabled employees is to facilitate persons with disabilities to acquire the skills and experience necessary to actively participate in the labour market. However, these types of provisions are ineffective, seldom used and ultimately serve to undermine the social capital of persons with disabilities. Regardless of the intentions the practice raises many issues from a human rights perspective, particularly in light of the UN Convention on the Rights of Persons with Disability.

Article 27 
of the CRPD on the work and employment requires States Parties to recognise “… the right of persons with disabilities to work, on an equal basis with others”. It is hard to reconcile how the discrimination in terms of payment made to persons with disabilities squares with this requirement of “on an equal basis with others”. Article 27(1)(b) specifically requires that State Parties “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”. Article 27(1)(h) does place an obligation on State Parties to the Convention to “Promote the employment of persons with disabilities in the private sector through appropriate policies and measures” and in Article 27(1)(j) to promote the acquisition by persons with disabilities of work experience in the open labour market. However, the State cannot legitimately achieve these goals through the diminution of the terms and condition of work. To do so runs counter to the core message of the Convention that persons with disabilities like everyone else are rights holders. Legislation that facilitates discrimination in pay sends a negative message as to the value of employees with disabilities and ultimately undermines the goals of empowerment and inclusion.

The evolution of anti discrimination law in many countries to extend into the field of discrimination was seen as an important development in enabling persons with disabilities to challenge discrimination in access to and acquisition of employment. The Americans with Disabilities Act in 1990 in the US introduced the concept of reasonable accommodation, which requires the removal of barriers that restrict opportunities for persons with disabilities (including the sphere of employment). However, there has been a growing awareness about the ineffectiveness of the anti-discrimination law in facilitating greater participation of persons with disabilities in the labour market. This limits of anti-discrimination law is also evident in Ireland where despite the introduction of very comprehensive anti-discrimination legislation by way of the Employment Equality Acts 1998-2008 there still remains an underrepresentation of persons with disabilities in the labour market. (See a ANED Report I co-authored with Claire Bruton on the employment and disability in Ireland.)

The issue of supported, sheltered or protected work settings also raises concerns in terms of the exploitation. In Ireland supported, sheltered or protected work settings are a prevalent feature of the employment of persons with intellectual disabilities. See here. The employment rate of persons in this group is very low. According to the National Intellectual Disability Database in 2007 there were a total of 4315 attending sheltered work centres. The National Intellectual Disability Database shows that only a small minority of persons in receipt of sheltered employment services are considered to be in employment. The majority of persons are in what is classified as sheltered work. The concern with this is that the normal employment relationship does not apply to persons in sheltered employment and persons falling into this category are not entitled to avail of the national minimum wage and earnings of these persons are nominal. This is an experience that is replicated in many other jurisdictions. State Parties to the CRPD need to realise that these practices are completely at odds with their obligations. Article 27(2) specifically requires State Parties to “ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.”