RPWD Act, 2016: Fostering a Disability-friendly Workplace in Indian Organizations.
| Author | Sarkar, Anita |
| Position | Rights of Persons with Disabilities |
Introduction
According to 2011 census, over 2.68 crore people (approximately 2.21% of the total population of 121 crore) in India are suffering from some forms of disabilities (Government of India, 2016). Category wise disabilities are: seeing (18.8%), movement (20.3%), mental illness (2.7%), mental retardation (5.6%), speech impairment (7.5%), hearing impairment (18.9%), and multiple disabilities (7.9%). According to the same census nearly one-third of total disabled individuals (approximately 36%) are employed.
One of the first legislations with respect to disability related issues was American with Disabilities Act, 1990 (ADA). In UK there is Disability Discrimination Act, 1995 (DDA). Unlike developed nations, India's disabled are socially vulnerable due to lack of support in terms of education, accessibility, medical facility, and overall attitudinal barriers towards acceptance and inclusion (Kothari, 2012). In India, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (PWD), 1995 was enacted twenty years back and meanwhile there were number of changes in the disability sector, in terms of different forms of disabilities and rehabilitation. Thus, in order to make Indian disability legislation in-line with other progressive disability laws recently Rights of Persons with Disabilities Act (RPWD), 2016 came into force from 19th April, 2017. This Act is in-line with the UN Convention of the Rights of Persons with Disabilities (UNCPRD) Treaty, which India signed and ratified without any reservation. The primary philosophy of RPWD is to ensure non-discrimination, equal opportunity, respect and dignity of individuals having disability. In order to ensure non-discrimination and equal opportunity of disabled RPWD has mentioned the roles and responsibilities of different stakeholders like government, both public and private sector organizations, care-givers, disability based organizations, and society at large. Based on RPWD and literature review the present article focuses on how Indian organizations can build a disability-friendly work environment by being sensitive toward employees, suppliers, customers and society at large.
Definition of Disability
Legal definition of disability varies from country to country. In the Indian context earlier PWD Act, 1995 defined disabilities under seven categories, which in RPWD got extended to twenty-one categories of disabilities, by including many new ones like acid attack victims, dwarfism, thalassemia, parkinson's disease, sickle cell disease etc. Though there are still some missing disability categories (for example, AIDs, cancer etc.) but the law has kept the provision to include other categories as and when it will be specified by the Central Government. As per RPWD only persons with benchmark disabilities, having not less than 40% disability would be considered for reservation in posts/services of government organizations. Certificate from competent authority is a must for getting disability related benefits.
Dealing with Disability
Theoretically, there are four existing disability models that try to answer how to deal with disability. Charity Model of disability is based on pitying disability, assuming that disabled are helpless, and dependent on others. Sometimes disabled individuals themselves may assume or reinforce this concept of self-pitying. Medical Model of Disability is based on the assumption that disability is something not "normal" and thus needs to be treated or cured. Social Model of Disability is the one where it gets acknowledged that a person is disabled due to social barriers (physical, attitudinal and institutional). Rights based Model of Disability, similar to Social Model of Disability, recognizes rights of disabled as basic human right, and attempts to work on empowerment and full participation of disabled individuals in the society.
Previous PWD Act, 1995 was critiqued for it being inclined more to Medical Model of Disability (Ghosh, 2016). RPWD, 2016 is prone toward Social and Right based model of disability. Before we move into how organizations can create affirmative action programs and reasonable accommodations for disabled employees we need to focus on rationale for such programs.
Affirmative Action Programs
There is substantial critique of disability laws for putting undue burden on employers for "reasonable accommodation". Reasonable accommodation may require employers to make certain modification/ adjustments for disabilities in an individualized manner and thus changing the so called "neutral" policies, which is based on an assumption that all employees have the same ability. Bagenstos (2003) had put number of interesting arguments in favor of affirmative action and reasonable accommodation for disabled in his article on "rational discrimination".
First, that affirmative action creates a "reverse discrimination" for the non-disabled is based on a narrow conceptualization of equality. Disability related affirmative action programs need to ensure not only that disabled individuals are treated no worse than the non-disabled, but also that in certain cases they are treated differently and arguably better than the non-disabled to achieve a truly equal status.
Second argument which goes against disability related accommodation is that it may restrict legitimate desire of employers to save money, since "reasonable accommodation" can be costly to employer. There are three counter-arguments toward this. (a) As per the legal requirement, employers need not have to take undue hardship or invest a huge amount to provide accommodations for the disabled. (b) For a disabled individual if a building or a certain plant site requires a modification it would stay there for a long time. At the very first place, why such infrastructure was not created was based on a faulty assumption that everyone is having the same level of ability. Thus, making modifications, which are often a major requirement for disability related accommodation, is supposed to be borne by employer. (c) The argument that accommodation reduces legitimate right to profiteering is also based on capitalist rationality argument where employees are treated as mere net marginal product. Accommodation requirement compels employers to take employees in capitalist irrational fashion.
Third, the objective of affirmative action is that as a policy it is supposed to eliminate biases meted out to groups of people who were excluded from the mainstream society. Many a times this social inequality leads to material inequality as well. Studies have reported that majority of the times disabled individuals are also monetarily not well-off (Rao, 2009). Generally disabled individuals are also excluded from various functions and other civic activities due to prejudice or stigma associated with them or simply due to lack of infrastructural support (IANS, 2017). The problem is that as a group if these situations persist then many disabled individuals may not take up improving their skills and a vicious cycle of exclusion may continue, where employers may even discriminate against them more and they in turn would not develop themselves. Oliver (2005) has...
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