Workplaces must accommodate all levels of ability
What use is it employing someone who is a wheelchair user if he or she cannot negotiate a flight of steps into a building?
PEOPLE enact laws – and people must apply them fairly and consistently for all people to benefit. Whoever they may be. South Africa has wonderful legislation to protect and promote the rights of persons with disabilities. But what is it worth if we don’t give effect to it? What are we saying about our willingness to work with people irrespective of their impairment? What are we saying about our unconquered prejudices, or our sense of humanity?
Section 9 of the Bill of Rights enshrined in our Constitution guarantees that people may not face discrimination on the basis of disability (among other prescripts). It is unambiguous, and clear.
Section 10, further, guarantees the right to human dignity. The word “dignity”, in the modern context, has come to mean “respect” or “status”, and these are valid definitions; but historically – and legally – it has another meaning: worthiness. That is what the Latin word dignitas, from which it is derived, actually means.
The right to human dignity, thus, refers to the right to be valued, respected and treated ethically. To have worth.
That’s worth thinking on: what dignity really means, and how we respect others’ dignity. Or not.
On a more practical level, our Employment Equity Act (EEA) – enacted in 1998, nearly 20 years ago – is intended to give effect to Section 9 of the Constitution. In legal terms, it is meant to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.
In simple terms, that means giving persons with disabilities a fair shake at finding and winning a job, and being able to do a job well and be promoted. The EEA requires employers (both private and the state) to take steps to promote equal opportunity and eliminate unfair discrimination.
Important term
This brings into play another important term: reasonable accommodation. What that means is that employers are required to create workspaces which all people can equitably access and work in.
What use is it employing someone who is a wheelchair user if he or she cannot negotiate a flight of steps into a building or there is no lift for him/her to access the building, for example? Or if the employer has not been sensitised about the reasonable accommodation rights of persons with disabilities?
Too often, this is not done, with the excuse that there is insufficient funding, or that buildings are not suitable. The upshot is that persons with disabilities are not appointed or are placed in a compromising situation.
The question is, why is this so? Why do persons with disabilities make up less than 1 percent of our country’s working population? Persons with disabilities are, after all, just as smart, well educated, motivated, capable and worthy as able-bodied people. Could it be that they are being discriminated against because of their disability, which is illegal?
The National Council of and for Persons with Disabilities (NCPD) has taken up the cudgels on behalf of a paramedic who is currently enduring such discrimination – and whose managers, instead of accommodating him, have made his working conditions intolerable and ignored his complaints. Would they have done the same to an able-bodied person? I think not.
In short, the paramedic (whom we shall not name, as his complaint is ongoing) is a wheelchair user. This does not stop him from doing an important – and lifesaving – job: he is an emergency care officer in a provincial control room, where he dispatches ambulances to emergencies and telephonically provides medical advice.
Lifts not maintained
But, because the control room is situated in a government building where reasonable accommodation has not been applied – even though it was officially opened in 2015, years after the Promotion of Equality and Prevention of Unfair Discrimination Act and EEA came into effect – and the lifts have not been maintained, making it impossible for him to get to the control room. There is no parking for persons with disabilities, doors are not accessible and there is no fire escape.
His managers’ solution? Without official notification, they shipped him off to a district control centre in a hospital 35km away, where he has sat at a desk between a casualty waiting room full of sick, coughing people and a smelly sluice room.
The patients can hear his conversations, compromising the confidentiality of the people he assists. And there are no emergency exits for persons with disabilities, putting him at risk. He is also unable to access training and promotion opportunities, so his career is hampered. The provincial health department for which he works has, on top of the laws it is supposed to obey, its own Code of Good Practice on Employment of Persons with Disabilities.
This lofty document states that employers must reasonably accommodate persons with disabilities to reduce the impact of their impairment on their ability to do their work; employers must use cost-effective ways to provide equitable working space and experience.
Have his employers actually followed their own code of practice when it comes to him? Of course they have not. Have they discriminated against him in the way they have treated him? Of course they have.
And they add insult to injury by ignoring his pleas to be accommodated, which they are obliged to do. Have they treated him as a worthy member of staff? Again, would they likely behave in this way with an able-bodied employee?
The NCPD took this matter up on the paramedic’s behalf – but his management ignored us, too, forcing us to take the legal route. Now, months down the line, management has backed down: the lifts in the provincial building have just been repaired, allowing him to return to work at his original place of work. Parking is also now being made available to him, and the lack of a fire escape – in a building that is less than five years old – is being investigated, as is improving ground-floor access.
But the paramedic still faces discrimination, in other ways. Now that he is being returned to his original workplace, he is being penalised by being made to work office hours only – on statistics – instead of paramedic shift work. So he will no longer earn overtime for working nights, weekends and public holidays.
Reality
Mr Bumble, the henpecked husband in Charles Dickens’ classic Oliver Twist, declares that “the law is an ass” – a donkey, a fool, because it assumes he has control over his domineering wife. In reality, our laws are smart and we are the fools: we have these wonderful tools at our disposal to end discrimination and indignity. But in our hearts we still harbour unjustifiable prejudice against persons with disabilities, and so we choose to break the law instead.
Yet it doesn’t have to be that way, and the NCPD can assist. The NCPD is a wonderful resource for all employers to use in creating workplaces that accommodate all levels of ability. We are available to advise and consult on how to apply reasonable accommodation in the workplace, and how to include persons with disabilities into a workforce and embrace a diverse workforce.
It is, after all, the law. But the law doesn’t apply itself; people do that. People discriminate, and other people suffer, but people also have the capacity to end discrimination and restore human dignity. Therina Wentzel is the national director of the NCPD.