Employment for People with Disabilities in the United States Remains Dismal

by Eirca Edwards

This is a cross-post from the Disability and Human Rights blog.

Although employment is a right guaranteed by the UN CRPD and is a building block for inclusion, income, access to resources, health and freedom, it remains an out-of-reach goal for the majority of people with significant disabilities around the world. And, it has not improved since the passage of the Americans with Disabilities Act (ADA) in the US twenty years ago. The US National Council on Disability revealed that the difference in labor market activity rate between those employed with no disabilities versus those with disabilities is large at 57.4% in 2009 and has grown significantly since the passage of the ADA. This report can be found here. Similarly, a 2010 Kessler Foundation/National Organization on Disability study surveyed over 2,000 people with disabilities and no disability across the US. Findings revealed that employment still remains the largest gap between the two groups. A copy of this report can be found here.

Many different goals and strategies across the nation have been introduced to help promote employment among people with disabilities to mitigate this gap, including:

• Integrated employment- paid work alongside others with no disability in a community, non-segregated setting.
• Competitive employment – self-employment or work in an integrated setting that is performed on a full or part-time basis that is at least equal to the higher of the federal or state minimum wage.
• Supported Employment - individualized supervision on the job according to the individual’s abilities. A preferred option is on-the-job assistance and role modeling by peers, supervisors and colleagues, thus there is no differential treatment based on disability. Traditional formal support can be offered as well by state and federally funded job coaches who provide assistance and training to workers with disabilities on the job.
• Customized Employment –  the employer focuses on the discrete contributions of the individual in relation to the employer’s specific needs and crafts a position accordingly. This option leads to competitive employment, but provides an advantage to job seekers who struggle in the competitive job seeking process.   

Although community rehabilitation providers have demonstrated that the last two strategies of supported and customized employment lead to successful hiring and retention among individuals with disabilities, national averages reveal that funding has declined in these areas. Further, many policy and funding disincentives still exist that discourage people with disabilities from seeking integrated employment.

One example of this disincentive is the continued existence of facility-based employment, or sheltered workshops. Sheltered employment is assembly-line type of work offered to people with disabilities in a segregated setting. Participants in these settings are usually paid less than minimum wage. Critics have argued that they are expensive to operate, participants are exploited and remain in poverty, and it directly contradicts the ADA. (For a copy of this report, click here).

Yet, the federal government continues to spend four times more money on segregated adult day programs and sheltered workshops than on supported employment options that can lead to inclusive employment. In fact, only 2% of the costs of the entire US disability system are spent on programs that provide employment services. As a result, most people are unaware that 3 out of 4 people with significant disabilities spend their days in sheltered workshops.

And to make matters worse, the National Survey of Day and Employment Programs in 2009 report that nationally supported employment has been on the decline since the mid 1990’s, and the percentage of those receiving integrated employment as a whole greatly fluctuates between states -  ranging from 4% in Arkansas to 88% in Washington. For a copy of this article, click here.

There is hope, however. Employment First initiatives have spread across many states to advance the goal of integrated, competitive employment. According to the former Assistant Secretary of the Office on Disability Employment Policy, Neil Romano:

“Several states have moved forward to implement policies that focus on integrated, community-based employment earning at or above the minimum wage as the first option for individuals with intellectual and other developmental disabilities. Using these ‘employment first’ policies, states are tapping the skills and contributions of these individuals to match employer demand for a reliable, productive workforce through customized employment opportunities. In these employment first states, sheltered employment with sub-minimum wages and non-work ‘day activities’ are no longer acceptable employment outcomes. (US Department of Labor, Office of Disability Employment Policy Memo, January 15, 2009)

Over 25 states have some type of Employment First initiative, and at least 14 of them have it codified in legislation or policy. In 2007, Vermont was the first state to discontinue state funding for sheltered workshops, and Washington State aligned their Employment First policy by adopting “Pathways to Employment.” This policy allows for individual choice in employment options and gives everyone the opportunity to pursue competitive employment, regardless of disability.  With these values codified into state policies, Washington has reported a 72% employment rate for individuals with intellectual and developmental disabilities ID/DD). Other top tier states that tout a competitive employment rate of more than 40% of those with ID/DD were: Oklahoma, Vermont, New Hampshire, Connecticut and New Mexico.

This national call for integrated, competitive employment is also being echoed in the business community. The U.S. Business Leadership Network (BLN) is a national disability organization representing over 5,000 employers, including small businesses and corporations. Its goal is to assist in career preparation and employment of people with disabilities, improve customer experiences for people with disabilities, and promote the certification and growth of disability-owned business. There are 60 affiliates of BLN spread across the US, and membership is growing. With the continued push of Employment First initiatives across the country and the leadership of businesses in hiring efforts, employment rates may improve; but unless spending priorities match legal mandates, the improvement will be slight, if at all. Thus, as the old adage goes…it is time that government leaders put their money where their mouth is.

Texting Ban in the Congo: The Deaf Community

by Mary Keogh

BBC news reported a story last month on the banning of texting/sms messaging in the Democratic Republic of Congo see here. The decision to ban texting was made by the government on the basis of preserving public order following unrest after the recent elections. The deaf community has raised their concerns about the ban, claiming that it is putting the lives of members of the deaf community at risk and increasing isolation of the deaf community. There are over 1.4 million people living in the DRC who have some form of hearing impairment. Text messaging is widely used by the deaf community for communication. It has been described as an easy way for deaf people to communicate with the rest of the world, see here. The simple act of texting enables deaf people to interact independently with fellow members of the deaf and hearing community with ease.

Not alone, has text messaging opened up easy communication methods for deaf people, it is also being used as a way to communicate in case of an emergency. Text messages are now considering an essential tool for communities to maintain security, as they could spread alerts cheaply, quickly and discreetly to a large number of people who may be in danger. For example in the UK some police services are offering text services for people who are deaf or have difficulty with speaking, see here.

From a development perspective, the use of mobile phone technology and sms messaging is a vital way to communicate with marginalized groups that do not have access to mainstream methods of communication or information services.

For example, radio announcements to stay indoor during times of conflict are usually not accessible to people who are deaf. Mananga Biala, the head of Kinshasa’s main educational centre for deaf people commented that a as a result of this texting ban, members of the deaf community had no alternative means of staying in touch as many did not have access to email or the internet. Additionally he commented that members of the deaf community lives were at risk due to not being able to hear gunfire or protesting. There are many good example of how to make emergency responses inclusive for persons with disabilities in times of conflict and also during natural disasters etc. CBM have produced some useful publications on this matter see links here.

Also it is worth remembering that the Convention on the Rights of Persons with Disabilities (CRPD) provides for the right to safety for persons with disabilities, particularly in times of conflict and emergencies. The Democratic Republic of Congo became a signatory to the CRPD in 2007. By signing the Convention, the DRC is considered to be making a commitment to upholding the rights of persons with disabilities. It is also committed not to take any retro regressive steps, which might undermine the sentiments of the CRPD.  Article 11 of the CRPD asks States to ensure that all “necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters”.

Article 11 can be broadly interpreted as asking States to take a range of measures to ensure the safety of persons with disabilities during times of conflict and natural disasters. These measures can be very broad, but at the very least, should ensure that methods of communication used during times of conflict are accessible to and inclusive of persons with disabilities, and in this particular instance, people from the deaf community in the Congo.

E-Petition Aims to Increase Participation of Persons with Disabilities in Political Life in the UK

Disability Politics UK have initiated an e-petition aimed at increasing the number of disabled MPs in the United Kingdom.  The e-petition "Allow MPs to serve on a job share basis" has now been published.  See here. 

The e-petition reads as follows:

“We the undersigned recognise that for some disabled people (and others), a main barrier to being able to participate in public and political life is that it is not currently possible to job share as a Member of Parliament therefore we ask that the law be changed to allow MPs to serve on a job share basis.”

The underrepresentation of persons with disabilities in political life is well acknowledged.  Article 29 of the United Nations Convention on the Rights of Persons with Disabilities deals with participation of persons with disabilities in political and public life and places obligations on State Parties to the Convention to facilitate greater political participation of persons with disabilities.

You can sign the petition here.

UN Call for Papers on Article 12 of the Disability Convention

The UN Committee on the Rights of Persons with Disabilities has a call for papers on the practical and theoretical measures for the implementation of Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD1). The Committee recently had a call for papers on the legal measures for the implementation of Article 12 of CRPD. The Committee at its fourth session noted that the information that it received from its last call were exclusively on legal measures. The Committee would appreciate papers on the practical and theoretical measures for the implementation of Article 12. The Committee is of the opinion that papers on the theoretical and practical measures necessary to implement Article 12 "... will enable the Committee's Working Group on Article 12 to examine a wider range of issues raised by States Parties regarding the implementation of Article 12." Papers should be emailed to the Committee by 17 July 2011 in either English, Spanish or Arabic. The email address is crpd@ohchr.org

Day 3: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony & Noelín Fox

Professor Gerard Quinn & Professor Michael Stein began morning 3 with a presentation on Article 12 (legal capacity) of the Convention on the Rights of Persons with Disabilities. Professor Quinn noted that even before the advent of the Convention there had been an evolution of thinking on reforming laws on legal capacity. The Council of Europe led the way for a time by way of Recommendation (99) 4E on Principles Concerning the Legal Protection of Incapable Adults. However, the CRPD by way of Article 12 now leads the way. It was noted that theories of personhood might cause difficulties in restoring legal capacity to persons with disabilities.

Professor Quinn spoke about the status approach to legal capacity that linked "deficits" to legal capacity. He suggested that the Convention dissolves these assumptions and presumptions. He then spoke about the outcome approach to legal capacity, which involves an assessment of unwise choices as a test for removal of capacity. He noted that everyone makes unwise choices and repeats unwise choices but that does not result in the loss of legal capacity. The Convention now requires that outcome approaches to the assessment of legal capacity be inconsistent with Article 12. The tensions and concern with risk have led to restricting persons with intellectual disabilities from having intimate relationships and Article 12 requires a move away from this approach.

Professor Stein noted that many voices crafted Article 12 of the Convention on the rights of Persons with Disabilities. At the negotiation of the CRPD there was a suggestion by some State Parties that persons with disabilities could hold rights but not exercise them in the same way that a child could hold rights but not exercise them. Professor Quinn then facilitated a discussion of the different sections of Article 12. He suggested that Article 12(2) is pregnant with ambiguity. There was then a discussion around Article 12(3) and its requirement of supported or facilitated decision making to assist persons with disabilities to exercise their legal capacity.

The discussion then moved to the safeguards provided for in Article 12(4), which might imply that substitute decision making remains. Professor Quinn referred to this as the “co-mingling of two different ideologies”. He suggested that in order to resolve the co-mingling ideologies between supported and substitute decision-making there was a need to look at the object and purpose the CRPD. However, Professor Quinn noted that there is no neat prepackaged answer in relation to questions thrown up by Article 12. There was a discussion around the International Disability Alliance’s position on Article 12. (You can access the IDA’s legal opinion here).

There was then a discussion of the UN Office of the High Commissioner for Human Rights Thematic Study on the Convention (2009). Charles O’Mahony was asked to give an overview of the OHCHR’s statements on the insanity defence. He noted that the OHCHR suggested in the document that Article 12 requires State Parties to the Convention to repeal defences in their criminal law such as the insanity defence and replace them with disability neutral doctrines. He suggested this statement was surprising not least because that issue did not appear to be raised at the negotiations on Article 12. He noted that the defence was linked to many other defences in criminal law such as provocation and infanticide and that reform of the law would be extremely complex and that State Parties would in all likelihood institutively resist this proposal. Eric Rosenthal also made a contribution in relation to the OHCHR’s statements in the same document on Article 14. The OHCHR stated that Article 14 prohibited laws on involuntarily detention and treatment unless they were disability neutral. A participant asked Eric whether Article 12 was relevant to involuntary psychiatric detention and involuntary treatment. He responded that it was profoundly relevant to involuntary psychiatric detention and involuntary treatment.

Dr. Mary Keys from the School of Law at NUI Galway was asked to give an overview of the Irish law reform process on legal capacity. Dr. Keys gave an overview of the current law reform process and the key aspects of the proposed legal capacity legislation that will replace the archaic wardship system. Dr. Keys referred to the review of the Mental Health Act 2001 and suggested that there was a great opportunity to achieve compliance with the Convention. Professor Quinn ended the session by asking participants to consider the following puzzles emanating from Article 12 in a participatory exercise. The puzzles posed are as follows:

1. What does “on an equal basis with others” mean in Article 12(2)?
2. Does Article 12(2) contain an irebuttable presumption of legal capacity to exercise rights?
3. Is substitute decision making ever permissible under Article 12?
4. Is there some elusive point where “supported decision making” amounts to “substitute decision making”? How do you know? Can you successfully guard against it?
5. Is a reservation to Article 12(2) (or a disguised reservation in the form of a declaration of understanding) ever acceptable?
6. Can bits of Article 12 be “progressively achieved”? If so, which parts?

Janet Lord and Rosemary Kayess led the afternoon session. The session considered the development and meaning of Article 19 of the CRPD – the Right to Independent Living and Community Inclusion. The background to this right was outlined including the policy antecedents at UN and European level and the views of various state parties to the debate prior to agreement on the final text. There was discussion on whether the right to independent level represents a new right and the linking by the drafters of the core elements of the right to other international human instruments articles and comments. The independent living right was eventually linked to Article 13 of the Universal Declaration of Human Rights - Freedom of Movement - in order to validate its place as a right. A discussion about whether Article 19 prohibits institutional care in different cultural contexts ensued. The conclusion was that the right is about creating supports in the community, which enable people to live independently, rather than dictating any particular models of housing. Central to this is the need to ensure that families have the supports needed to enable them and their disabled family member live at home.

Participants engaged with an exercise of translating the effects of individual impairments and the societal barriers, which limit participation, into concrete policy proposals to enable people, realise the core elements of Article 19. The feedback on this exercise gave rise to a lively debate about the use of terminology – in particular what constitutes a disability and what constitutes impairment. In working with people from many different cultural backgrounds it was acknowledged that the words used in the CRPD might represent a compromise for some. Whether one uses “person with a disability” or “disabled person” is reflective of the particular standpoint and historical development of the disability movement in different countries. Agreeing on a final wording will not be fully reflective of any one standpoint, but represent a compromise that we all can live with - this is the essence of negotiation.

Day 1: CDLP NUI Galway & Harvard Disability Project Summer School

by Charles O'Mahony

Professor Gerard Quinn and Professor Michael Stein introduced the curriculum of the Summer School to the participants. The Summer School introduces participants to the nature of the Convention, the treaty interpretation in general, the general concept of equality in the convention (and some of the relevant innovations in the CRPD) and other issues. For more information on the Summer School see here. The Faculty includes senior academics, practitioners and policy makers from around the world who have been directly and actively engaged in drafting and implementing the Convention.

Professor Quinn led the first session of the Summer School, where he placed the Convention in the context of other Human Rights Treaties. He also gave very insightful reflections on how the Convention came about and the drafting process. Other members of the Faculty of the Summer School gave personal reflections on their involvement in the negotiation and drafting of the Convention.

Sir Michael Wood (member of the International Law Commission) led the afternoon session. The afternoon session focused on how to interpret the Convention as a legal instrument. He focused on interpretative approaches, the Vienna Convention on the Law of Treaties, criteria for the acceptability of reservations and understanding and opposing interpretative declarations reservations. Sir Michael noted that it was important to note that there was no special international law for interpreting international human rights law. He said that it would be worth considering whether there was any international customary law in relation to persons with disabilities.

He noted that it was essential that the Convention was interpreted in good faith and that the Vienna Convention was a tool that persons interested in the Convention need to become familiar with. Disability lawyers need to interpret the CRPD looking at its ordinary meaning unless a special meaning can be proved and that provisions need to be read against the Convention as a whole and its “object and purpose”. Sir Michael also stated that disability lawyers and advocates should look to the preparatory work of the Convention in order to shed light on the Convention. This is an interesting prospect as examination of the preparatory work of earlier treaties was not possible as notes and official transcripts of the negotiation and drafting processes do not exist. One of the major issues raised in discussions was interpreting the Convention in different languages and problematic translation of the different articles of the CRPD.

In terms of determining the object and purpose of the CRPD the preamble and Article 4 were identified as being significant. There was some debate around the length of the preamble. Sir Michael noted that the CRPD was very successful in not attracting a lot of reservations and interpretive declarations (see the UN website here) and that he considered only a few of these truly objectionable. (Reservations seek to modify the legal effect of a Treaty while an interpretative declaration involves an interpretative statement on Articles of the Convention). There was much discussion around El Salvador’s Reservation, which states that the “Government of the Republic of El Salvador signs the present Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, adopted by the United Nations General Assembly on 13 December 2006, to the extent that its provisions do not prejudice or violate the provisions of any of the precepts, principles and norms enshrined in the Constitution of the Republic of El Salvador, particularly in its enumeration of principles.” This reservation was considered to be extremely vague and uncertain to the extent that it was unclear to what extent that El Salvador accepts its obligations under the CRPD. There was also discussion around Egypt’s interpretative declaration and whether it amounted to a reservation. The importance of Article 46 of the CRPD was highlighted and it requires that reservations “incompatible with the object and purpose of the present Convention shall not be permitted.”

Constitutionally Enshrined Disability Discrimination in Hungary

by Charles O'Mahony

The new Hungarian constitution approved by parliament last month contains provisions that are discriminatory and have been widely criticised by human rights organisations. The new Constitution should enter into force on January 1, 2012. Article XXIII (6) of the new Constitution provides that ”[t]hose deprived of their right to vote by a court by reason of limited mental ability and for a criminal offense shall not have the right to vote.” See here. This provision serves to exclude persons with intellectual disability and or persons with psychosocial disabilities from voting. This is completely at odds with the United Nations Convention on the Rights of Persons with Disabilities. Article 29 
of the Convention relates to participation in political and public life and requires that States Parties to the Convention to “guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others”.

This discriminatory provision in the Constitution is disappointing as Hungary was the first Member State of the European Union to ratify the Convention back in 2007. Mental health and disability organisations have been very critical of this provision. See here, here and here. Mental Health Europe and the European Network of (ex-) Users and Survivors of Psychiatry stated that the New Hungarian Constitution “superficially acknowledges equal rights for all Hungarians” but “such a restriction is entirely unjustifiable, and is based on irrational and shameful prejudices”. See joint statement here. The Executive Director of Mental Disability Advocacy Centre (MDAC) Oliver Lewis stated that

“MDAC believes that the ‘mental ability’ provision is an unsophisticated disguise for disability-based discrimination, as it will likely only be applied to people with intellectual disabilities and people with psycho-social (mental health) disabilities. It is astonishing that the Hungarian government has enacted a Constitution, which does not even provide for universal suffrage for Hungarian adults with disabilities. A test for voting is pointless: no public policy goal is served by looking behind someone’s assertion to vote.” See here.

It is important to note that the new Constitution has also been criticised on other human rights grounds. The definition of marriage in the Constitution is defined as between a man and a woman and implies that a family based on marriage is the only protected by the state. Human Rights Watch and other human rights groups have been critical of the lack of engagement with civil society and opposition groups. See here. In particular, there has been concern with the lack of public debate as a period of only a month was allowed for debate on the constitution before the Hungarian Parliament passed it.