There are about 54 million Americans or one-fifth of the total population of the U.S.A is living with some form of disability. Hence, to safeguard the interests of these vulnerable sectors, American Disability Act was introduced in 1992. The main intention of the Act is that civilians receiving benefits or services through the measures of local and state governments may not be differentiated on the fundamentals of the individual’s physical disabilities. This Act has prevented showing discrimination against disabled individuals in employment and offered enhanced access to public facilities.
The main objective of the Americans Disability Act, 1992 [ADA] is to thwart showing discrimination against persons with disabilities. The Act is not as clear as it has not explained different varieties of disabilities that fall under this statute. Congress has not defined the varied types of disabilities but whether or not a specific physical incapacity rises to the extent of a disability is being determined on a case by case basis.
A disability has been defined under ADA as “mental or physical mutilation that significantly restricts one or many of the major life functions of such persons. ADA coverage is wide and it covers local, state governments, and the private sector also.
ADA also safeguards the civil rights of those with physical or mental disabilities and such rights cannot be refused to them under the Civil Rights Act. In the illustrious judgment namely Tennessee v. Lane, the court held that if a court was unreachable to a handicapped individual, that individual was permitted to sue even the courts for denying such rights. Under ADA, employers are required to transform the workplace to accommodate those with impairment.
The present ADA has fallen short of some perceived aims and especially, discrimination in employment remains a major cause of concern. Among the scores of litigations filed with the Employment Opportunity Commission over the last two decades, about 60% of such litigations were unsuccessful since the authority could not seek “reasonable cause “to make a decision in favor of employees. In the first 10 years of the introduction of ADA, about 83% of ADA complainants failed in their appeals in federal courts to get relief. Respondents were able to be successful in these cases due to the fact that the court’s narrow interpretations of ADA. Hence, the U.S. government has introduced the ADA Restoration Act of 2007 [ADAAA] to address these issues and its passage is still pending. [Meneghello et al 22].
American Disabilities Act Amendment Act is making some transformation in the definition of disability due to the recent Supreme Court verdict in Sutton v.United Airlines thereby denying the mitigating steps which will reject many disabled persons legitimate claims under the safeguard offered by ADA. Further, the proposed amendment also limits the limited interpretation of “substantiality limits “used in Toyota Motor Mfg. case. [Grossman n.d]
Moreover, under the present ADA, many legal cases have lost their stand on the interpretation of the ‘disability ‘stage itself and this has negated the genuine claims of discrimination interpreted on merits.
Supreme Court was of the view in Toyota’s case that the act has to be construed by interpreting with “a changing scenario or demanding standard” for its coverage.
Some critics have argued that under ADA, the disabled earn less and work far less than they were entitled prior to the introduction of ADA. According to Daron Acemoglu, an economist, since 1997, employers have witnessed more than 40,000 legal suits per annum under the ADA and they spent about $ 1, 70,000 on average to protect their interest. It is to be observed that labor markets are intricate in nature and it is undesirable to intervene in them to generate specific results.
U.S business communities are arguing that the ADAAA will empower individuals with negligent or phony medical conditions to claim benefits from employers thereby not only troubling the business community and but also minimizing the employment opportunities for disabled people. However, this is untrue as ADAAA permits benefits to those disabled persons which limit their major life activities. Further, the education community is of the opinion that the enlargement of the “disability “definition will compromise academic standards and this is also untrue as courts have offered reverence in deciding whether a proposed accommodation is matching with academic standards or not. [Bagenstos n.d].
The insertion of new Subsection 5[A] in the ADAAA will be helping to construe the definition of “disability” in a broad manner rather than in a narrower perspective as laid down in Sutton and Toyota cases. Thus, this will serve as a tool to find a solution when there is equivocalness rather than employed to beget one.
Further, there is an ambiguity in defining the substantially in the present ADA and courts have used this vagueness to inflict on the ADA the minutest possible elucidation of the term. By incorporating Section 3[2] in the ADA, ADAAA is offering a solution to this narrower interpretation hitherto followed by courts.
Thus, ADAAA is the right step towards this end and will address the major issues created by the limited judicial decisions on the interpretation of “disability.”
Works Cited
Andrew Grossman, Senior Legal Policy Analyst, and Heritage Foundation. “Americans with Disabilities Act.” FDCH Congressional Testimony (n.d.). Master FILE Premier. Web.
Bagenstos, Samuel R. “Americans with Disabilities Act “FDCH Congressional Testimony. Master FILE Premier. Web.
Meneghello, Richard, and Helen Russon. “Creating a Movement: The First 18 Years of the ADA.” Momentum (19403410) 1.4 (Fall2008 2008): 21-25. Master FILE Premier. Web.
Human society is a phenomenon that has always presupposed the struggle between those who consider their rights to be violated and those who violate those rights. It is no surprise, thus, that various conflicts were the results of such struggle in the past, while in the modern world they result in numerous legislative acts, laws, etc. One of the aspects of the inequality of rights in human society is the issue of equal rights for employment, especially for those people who due to a certain disability or impairment should be given special accommodations by the employers to fulfill the working functions properly (Noe, 2007). In the USA, this issue was attempted to be solved by the Americans with Disabilities Act (ADA) of 1990, and by the Amendments Act to the ADA of 2008. The articles under consideration are concerned with the essence of the amendments mentioned and try to see their positive and negative sides.
The first article is titled The ADA Amendments Act of 2008 Expands the Protections of the Americans with Disabilities Act of 1990. Its author is not specified but its relevance for the topic of equality of rights for people with disabilities is not lessened because of this fact. The article under consideration reports about the signing of the ADAAA (The ADA Amendments Act of 2008) that took place in the USA on September 25. Moreover, the essence of the major amendments to the ADA is disclosed in the article using comparison and implications of those changes for the public use in the spheres of employment and human resources management in various organizations and the society on the whole (Mondaq Business Briefing, 2008).
For example, the article considers several US Supreme Court cases that were solved differently the Congress after the adoption of the ADAAA and states that the category of people who will now be protected by the ADA and amendments to it. Thus, a person who managed to cope with his or her disabilities or impairments temporarily using some measures or devices is to be considered a disabled person irrespective of this fact. Moreover, the ADAAA clarifies and extends the meaning of the category of “major life activities” (Mondaq Business Briefing, 2008) to the list including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the immune, digestive, respiratory, and circulatory systems” (Mondaq Business Briefing, 2008).
Another article under consideration is titled Commentary: ADA amendment expands protection. Its authors are Daniel O’Toole and Jovita Foster, and the essence of the article lies in the analysis of the ADA Amendments Act signed by President Bush on September 25, 2008. This article, as well as the previous one, is concerned with the comparison of the ADA and Amendments Act in respect of 5the larger level of protection for people with disabilities provided by the ADAAA. However, O’Toole and Forster are also concerned with the ambiguity of the definitions presented by the Amendments Act and state the need for respective clarifications to be given by the US Supreme Court (O’Donnel, T. & Foster, J., 2008).
The authors of the article also argue about the practical application of the principles and changes introduced by the ADAAA that comes into effect on January 1, 2009. Furthermore, the article examines the major extensions and clarifications that were made to the terms of ADA, including the definition of the term “disability” which now comes to include the state of being “substantially limited in a major life activity” and with the EEOC (Equal Employment Opportunity Commission) to regulate the relations between employers and employees as for this definition (O’Donnel, T. & Foster, J., 2008).
Main Issues of Both Articles
Implied/Factual Impact of the Main Issues on Organization
The articles under consideration have a considerable practical implementation, especially for those people whose needs and rights are covered with the newly introduced ADAAA of 2008. The first, and the most peculiar, side of the Amendments Act is the impossibility of court claims about the so-called “reverse discrimination” (Mondaq Business Briefing, 2008) when a person sues a company for discriminating him or her for the lack of any disabilities. This is a rather useful change in the legislation and the public attitude towards the problem as far as recently the claims of the employees have come to be completely absurd which the above mentioned reverse discrimination lawsuits prove. The rights of people with disabilities should be protected but those who have no disabilities should not be entitled to benefit from the misfortunes and impairments of others.
Concerning the practical changes that organizations and companies will have to implement by the ADAA, the following points can be singled out. First of all, the statutes and handbooks of organizations will have to be correlated with the demands of the Amendments Act. Respective modifications should be made in the written documents of the companies whose employees should be informed about the recent changes in the company’s policies in time. Moreover, the managerial staff and especially the Human Resources Management of the companies should be trained specifically to match the criteria of ADAAA which among others demand more tolerant and revering treatment of employees with disabilities and applicants of the same category. The cases when the employees were refused the help or special accommodations by the employers based on the Americans with Disabilities Act of 1990 should be reconsidered to fit the criteria of the Amendments Act of 2008 (O’Donnel, T. & Foster, J., 2008).
To start the procedure of reconsideration, Congress and the House of Representatives have reviewed the cases of the US Supreme Court that concerned the ADA definitions. For example, in the case of “Sutton v. United Airlines, Inc., myopic twin sisters sued an airline under the ADA after it refused to hire them as pilots” (O’Donnel, T. & Foster, J., 2008). This case, accompanied by the case Murphy v. United Parcel Service, Inc. when a mechanic of the company had high blood pressure but could normalize it with pills for working hours, led to the amendment according to which employers still consider those people disabled who can temporarily cope with their impairments but can not eliminate them. All this shows that the ADAAA is an increase of means of protection for employees with disabilities while employers are made less protected by this act as far as its interpretation is planned to be made in favor of employees and increases considerably the number of people whom the ADAAA covers (Mondaq Business Briefing, 2008).
Text Comparison
Thus, it is obvious that the articles considered in this paper disclose the important stage in the history of the US civil rights system. However, this topic was considered by other authors and scholars among whom Raymond A. Noe with his work Employee Training and Development is one of the best examples. The author considers all the aspects that an employer should take into consideration so that to ensure the effective and prosperous performance of his or her organization. Among them, Noe (2007) enumerates the importance of skillful and properly carried out educational and training programs which consist of two major steps. Namely, they are the identification of needs of this or that employee and the determination of the rate of readiness of that employee for the training he or she is to take up. Special attention is paid by Noe to the issues of training and education of people with disabilities who should be provided with special accommodations and aids to fulfill their working functions (Noe, 2007). In these aspects, the book by Noe correlates with the thoughts expressed in the articles considered above. It is obvious for the authors of the three works that people with disabilities should be presented with means for easier working based on their impairments but discrimination towards these people should be eliminated from society.
However, there is one major point where the articles do not meet with the book. It is the amendments to the ADA that were made by the ADAAA in 2008. The point is that the last edition of the book by Noe was published in 2007, several months before the ADAAA was signed by President Bush. That is why the major points expressed by the Amendments Act are either not reflected or only predicted by Noe in his book. For example, the book predicts, although implicitly, the widening of the category of the people with disabilities, by applying to the fact that modern companies suffer serious losses paying the compensations to those employees who considered them to be discriminated on the disability basis and sued the company (Noe, 2007). Nevertheless, the very amendments and extensions to the main definitions of the ADA are not stipulated in the book. This is not surprising due to the different publication dates of sources, but this is, nevertheless, the major point of disagreement between the articles considered and the book by Raymond Noe.
So, to conclude this paper, it is necessary to state that the articles by Mondaq Business Briefing and Daniel O’Toole and Jovita Foster reflect one of the most important changes for the system of civil rights of the United States of America. The former is concerned with presenting the basic changes that the Amendments Act of 2008 will bring to the social life and spheres of employment and human resources management. Also, this paper deals with the implications of the ADAAA provisions for employers and the system of the US legislation on the whole. At the same time, the second article, along with the topics of the first article, touches upon the ambiguity in the law that the ADAAA provisions could bring and the increase in the category of people with disabilities covered by the ADA Amendments Act of 2008.
References
Mondaq Business Briefing. (2008). The ADA Amendments Act Of 2008 Expands The Protections Of The Americans With Disabilities Act Of 1990.
Noe, R. (2007). Employee Training and Development. McGraw-Hill Education Singapore.
O’Donnel, T. & Foster, J. (2008). Commentary: ADA amendment expands protection. Missouri Lawyers Weekly.
Federal Laws on Discrimination in Higher learning institutions
Primarily, there are two federal legislations that offer protection to individuals who are disabled. These federal laws protect individuals from discrimination within learning environments. These legislations include the Americans with Disability Act of 1990 (ADA), and Section 504 of the Rehabilitation Act of 1973.
The protection for individuals with disabilities was enhanced through the ADA Amendments Act of 2008. The ADA was signed into law in the year 1990 by President George Bush. The law offers protection against discrimination to various individuals with disabilities in colleges and universities within the United States (Russo & Osborne, p 14).
According to the ADA, all individuals should be given an equal chance in life irrespective of their conditions. The ADA is divided into various subsections, which address certain aspects of the Act. In a general sense, ADA condemns any discrimination based on an individual’s disability. Title II of the ADA requires state and local institutions to avoid discrimination based on an individual’s disability.
Therefore, title II covers institutions of higher learning as it prohibits these institutions from discriminating against individuals with disabilities. Title II of the same Act addresses the issue of discrimination in private institutions. Apart from the ADA, there is Section 504 of the Rehabilitation Act of 1973, which requires all programs that get federal financial assistance to avoid discrimination based on disability.
This section covers all learning institutions that get direct or indirect federal financial assistance. Therefore, this section applies to virtually all institutions of higher learning. It can be asserted that the ADA and Section 504 are essentially geared towards protecting individuals with disabilities in higher learning institutions against discrimination (Russo & Osborne, p. 15).
The laws on the American higher education are meant to protect students who are disabled against discrimination from the learning institutions. This is because most of the higher learning institutions do not offer the appropriate services to such students that are meant to enhance their education. Instead, they disregard these students, and that the students are unable to get the right facilities. The federal law gives students the right to acquire the right education, just like the normal students in the same institution (Leap, p. 3).
The federation committee does this by identifying the students who have such disabilities. This is achieved by getting such information from a certain institution where the student has been admitted, as well as dealing with any complains arising from the students from the various institutions.
The students who are found with disabilities are briefed on their rights regarding education. They are also given advice in case they face discrimination from the institution. Discrimination in learning institutions takes various forms and can be found in learning facilities, accommodation facilities or other benefit denied by the institution. Therefore, the institution is liable for any suffering of the student that arises from discrimination (Leap, p. 6).
The federal law requires that an institution is supposed to offer the right and the best accommodation facilities to the disabled students. Nonetheless, these students must meet the academic qualifications. This is normally funded by the department of education in the United States.
Accommodation for students with Disabilities
In institutions of higher education, students with different disabilities are required to register with the institution. This enables the institutions to plan on the students that need special attention. The student is supposed to do this in advance so as to make the work easier for the institution.
Once the student has made the request, the office checks and confirms on whether the student qualifies to get assistance or accommodation from the institution. After the confirmation, the respective course tutors or lecturers receive a letter indicating that the student should be given some special attention.
This is done in order to enhance participation of the student in demonstrating his or her learning abilities. It also offers an equal opportunity in learning for all students. Any facility that is provided to disabled students in the institution of higher learning should not give the student a greater advantage than the normal students. In addition, this should not alter any aspect of the course offered within the institution.
Accommodations for students depend on the disability type that the student has, and whether the disability allows the student to get an accommodation in the institution. Also, this is dependent on the severity of the disability (Schwab, Gelfman, and Tirozzi, p.297).
Some of these facilities include classrooms, admission facilities, and preparation tests, which makes these students to qualify for the facilities in the institutions of higher learning. If the concerned course instructor is not able to assist the student, he or she should work closely with the student in a private and confidential manner.
On the other hand, the instructor can consult with the office that offers support services to students with disabilities so as to assist the student comprehensively. Some of the recommended facilities that should be provided to enhance education for disabled students have been discussed below.
Classroom
In terms of class room accommodation, there are various aspects that need to put into consideration so as to avoid disregarding these students and denying them the right to education. These students should be offered accessible classrooms that are within their reach during classwork. There should also be a demonstration in class to enable the students understand what is taught.
In addition, there should be a longer time for assignments to enable the students finish their assignments effectively. Also, there should a provision of visual aids for students with visual disabilities. Short assignments should be given to ease their work. Lectures that are tape recorded should be provided to enhance learning for the blind students that have a hearing ability. These students should be given assistance on how the assignments should be carried out.
The students should be provided with devices for learning. Such devices include braille for those students who have visual disabilities; and modification of sitting arrangements in a class to ensure that the students can access what is being taught. Braille and large prints should be used during the learning hours.
It is also important to ensure that these students are kept away from distraction and disturbance of any kind during examination time. Also, these students should be provided with microprocessors to ease their learning process. Classroom accommodation can also be obtained through offering alternative course materials such as braille for the blind and digital notes among others. It can also be obtained by hiring specialists in interpretation or other ways of delivering oral information to the disabled student (Huger, p. 10).
Admission
During admission of the disabled students, there are several admission issues that should be considered. This will ensure that the student gets the right access to the learning environment. There are various requirements that should be observed in order to eliminate discrimination during admission to any college or university.
The students should be admitted to undertake any course in the institution as long as he or she qualifies for the same or meets the requirements of that course. For any course, students should be given standard entrance tests that are usually given to other student applying at the same university. For instance, a test meant for normal students can be given to a blind student provided that the blind student has the right facilities for the test.
The procedure used during regular admission should be similar for all students. However, each institution is supposed to come with its own means according to the law. In addition, the student is supposed to take an exam that is meant for a certain disability. There are other aspects that are necessary.
These include interviews, which are also carried out involving the assessment of certain knowledge. It is also important to enhance communication between parents. In addition, schools and teachers should be provided. Guidance and counseling programs should also be offered on admission. Finally, the student should also be allowed to participate in extracurricular activities within the institutions.
Preparation tests such as TOEFL and GRE and GMAT
Students with disabilities should have a preparation test that allows them to be admitted in a given institution. There are various requirements under the preparation test to enable the student qualify for admission and benefit from the institution. Before admission, the students should take standardized tests such as the TOEFL. Students must obtain English language verification from their respective teachers, which should be in written form.
The student is also supposed to submit scores of an English assessment test from an internationally acceptable test like TOLFL. In addition, the student should take a test that involves computer-based English, which tests the real life measures for the student’s language ability (Koenig, p. 82).
Housing
Any student with a disability is supposed to get the appropriate housing within an institution. For the student to benefit from the institution in terms of housing for accommodation, there are various concerns that should be addressed. The housing facility should be accessible and supportive to the student.
It should be designed to reduce discomfort among the students. For example, the housing should be within the institution, and/or it should not be far from the lecture halls. The housing should also be able to meet the students’ needs. In addition, the housing cost should be affordable to the student.
Can a student with disabilities be provided with accommodation in college?
It is true that students with disabilities can be provided with sensible accommodation in colleges or any other institution of higher learning. Institutions of higher learning do this by modifying their facilities to accommodate students with disabilities. This is done through adjusting policies that govern the institutions.
Modification practices can also include the provision of extra time for the students during exams and other tests. These students should be approached with some leniency in that penalties for minor mistakes should be limited. Also, the course content should be reduced so as to reduce the workload.
These students should also be provided with an extended time for completion of degree courses. It is also important to provide personal care for students who have serious disabilities. These students should be provided with extra aid and other services.
However, if doing so is likely to alter the normal operations of the institution, then the extra aid and other services can be avoided. These institutions must avoid discrimination of any kind against students with disabilities. Nonetheless, there is an official process for getting accommodation (Jaeger and Bowman, p. 181).
Process of getting accommodation
Before any student with a disability is allowed in any institution of higher learning in American, he or she must be confirmed to be eligible to get accommodation as a disabled student. The procedure followed by students who want to get accommodation in institutions differs depending on the institution.
This is because different institutions have different facilities depending on the courses offered. Therefore, this forces the student with disabilities to contact the service program for the disabled students to get guidance regarding the issue of accommodation. If this is not the case, then the student should the dean of students or any academic advisor on the way forward.
Sometimes the disabled student may not be able to identify the appropriate accommodation that they need from the institution. In this case, they should contact the support service program found in the school. After all these have been accomplished, the student should write a letter requesting for accommodation. In this letter, the student should indicate that he or she is disabled and state the disability that can affect his or her full engagement.
The student should also quote the appropriate accommodation that will make him or her comfortable. Again, it is important for the deadline in respect to application for accommodation to be indicated. After this, students are supposed to wait for the response from the concerned authority. If the student does not get any response after the deadline, then the student should appeal or make complains regarding the decision to deny him or her right to accommodation.
If the school does not provide accommodation even after making appeals, there is a procedure that has to be followed. This ensures that the student gets the right to learning without discrimination. The student can talk to the head of faculty or the course instructor regarding the issue.
Also, the student can get help from the disability staff office. The student also has the option of reporting to the dean of faculty or the departmental heads. If all these fail, the student can look for any other avenue to address the issue internally, or liaise with the office of disability services to make a follow up on behalf of the student. Finally, if all of these processes do not bring any success, the student is allowed to file a case with the department of education in the United States in order to get a solution for the situation (Huger, p. 76).
Are there any documents that a disabled student should submit to get accommodation?
There are certain documents a disabled student should have so as to get accommodation in any higher learning institution. However, this again depends on the institution because different institutions have different requirements for accommodation facilities. Any institution of higher learning should ease the requirements so as to accommodate the disabled students.
This is because most students tend to feel discriminated when the requirements are too high or expensive for them to meet. One of the documents that should be presented by the student with a disability is a report from the medical doctor. The document should be current, and should indicate the essential needs for the student who has the disability.
The document should be a medical report that has been signed and administered by a professional doctor. This report should show that some diagnosis has been carried out by a professional doctor; and that, disability characteristics have been detected. Therefore, the doctor should recommend the student for special facilities in any learning institution using the diagnosis results. Some of the disability diagnosis types include hearing impairment, visual impairment, and injuries to the brain that affect the thinking capacity.
The written report to be submitted also should contain various elements as a proof for the disability. The report should have a history of clinics attended up to the last date the student visited the doctor.
It should also contain the current condition of the disability; the degree of seriousness of the disability problem; the process that was used in the identification and verification of the disability; the medication prescribed to the student; symptoms associated with the disability; and the recommendation for the accommodation, which should be very specific in relation to the learning abilities of the student (Wright, p. 240).
Every disability has its own unique documentation; for example, a student having a learning disability cannot have the same documentation of a student who has a hearing disability or is blind. This means that every student should present a document that is quite different from others, and should be examined and considered depending on the disability.
Advice to students with a disability in case they are discriminated in colleges
Discrimination of any kind should be discouraged in all ways possible. The situation becomes critical when discrimination is directed towards individuals with disabilities. In colleges or institutions of higher learning, students with disabilities are often predisposed to various forms of discrimination. There is no doubt that the demands for students with disabilities are many compared to normal students.
For the student who has been discriminated upon, it is advisable to file a complaint to the relevant authorities within the learning institutions. The student has to ensure that he or she exhausts all the internal avenues for complaint before involving other people. If the situation becomes complicated, the student is advised to involve the office of support services in the department of education. The student can also file a case in a court of law.
It is advisable for those students who have disabilities to enroll in institutions that can serve their unique needs. This aims at avoiding unnecessary discrimination issues. The students who have disabilities should not remain silent when they are discriminated upon; instead, they need to come forward and seek redress from the relevant authorities (Brading, and Curtis, p. 226).
This way, the problem of discriminations shall be dealt with in a comprehensive manner. In fact, as mentioned earlier, individuals with disabilities are offered protection by the various federal legislations that have been enacted. The ADA and Section 504 are examples of the federal laws enacted to guard against discrimination in learning institutions based on disability.
Works Cited
Brading, Jean, and John Curtis. Disability Discrimination: A Practical Guide to the New Law. London: Kogan Page, 2000. Print.
Huger, Marianne S. Fostering the Increased Integration of Students with Disabilities. San Francisco: Jossey-Bass, 2011. Print.
Jaeger, Paul T, and Cynthia A. Bowman. Disability Matters: Legal and Pedagogical Issues of Disability in Education. Charlotte, N.C: Information Age Pub, 2009. Print.
Koenig, Judith A. Reporting Test Results for Students with Disabilities and English-Language Learners: Summary of a Workshop. Washington, DC: National Academy Press, 2002. Print.
Leap, Terry L. Tenure, Discrimination, and the Courts. Ithaca, NY: ILR Press, 1995. Print.
Russo, Charles J, and Allan G. Osborne. Section 504 and the Ada. Thousand Oaks, Calif: Corwin Press, 2009. Print.
Schwab, Nadine, Mary H. B. Gelfman, and Gerald N. Tirozzi. Legal Issues in School Health Services: A Resource for School Administrators, School Attorneys, School Nurses. New York: Authors Choice Press, 2005. Print.
Wright, Jim. RTI. Toolkit: A Practical Guide for Schools. Port Chester, NY: Dude Publishing, 2007. Print.
Competence of and Performance Expectations for Workers with Disabilities and Older Workers
Social perception applied to individuals with disabilities and older adults have been dictating their workplace experiences and employment opportunities. In particular, negative perceptions of people with disabilities and the focus on such potential disadvantages as reduced working capacity, poor performance, and the lack of effectiveness as professionals has made these groups of people some of the least desired kinds of employees at most workplaces (HM Government, 2009; Munnell, Sass, & Soto, 2006).
The major similarity between the perceptions of older people and individuals with disabilities is based on the belief that they are slow and could slow down the other workers and the idea that the managers should have lower expectations when evaluating their performance. However, people with disabilities are seen suited for certain kinds of jobs that require competencies that are not impacted by their disability, thus making a worker with a disability just as effective as their non-disabled peers. At the same time, there are very few jobs that are deemed suitable for older adults because age is perceived to have a negative impact on both physical and mental capacities of a person. This tendency dictates the main difference in the workplace experiences of and attitudes towards people with disabilities and older adults.
The Americans with Disabilities Act and the Rehabilitation Act of 1973
The Americans with Disabilities Act (that is also known as the ADA) dates back to 1990; it is based on the Civil Rights Act what was singed in the middle of the 1960s. The major purpose of the ADA is to prohibit discrimination against individuals with disabilities and grant them opportunities of fitting in the American life as equals to everyone else in regard to purchasing services and goods, employment, and the participation in different programs and services of local, as well as state level (United States Department of Justice, n.d.).
In turn, the Rehabilitation Act is a much older legislation that was signed into law in the 1970s. Apart from protecting people with disabilities from being discriminated against, this Act also provides the individuals with a broad scope of services, thus facilitating their inclusion in the American society and helping them function normally and independently regardless of the challenges posed by their cognitive or physical impairments (“United States Laws,” n.d.). In fact, this Act has been amended two times since the 1970s, and one of its amended sections (Section 504) served as the basis that helped model the Americans with Disabilities Act.
The ADA is a narrower piece of legislation that aims at the protection of the civil rights of people with disabilities whereas the Rehabilitation Act offers services helping these individuals become proper members of the American society.
Respectful Language
In the provided list of questions, there were several inquiries that could be identified as questionably legal or insensitive to make during a job interview with a person who has a disability. In particular, question A (Do you consider yourself handicapped in any way?) includes the word “handicapped” that is known as an inappropriate term to use when referring to people with disabilities; instead, one is advised to use the term “a person with a disability (disabilities)”. In addition to the aforementioned concern, question A also qualifies as an attempt to solicit information about a disability that is also considered inappropriate during a job interview with a person with disabilities (MTU, n.d.). In that way, the entire question should not be asked at all.
Another questionably legal inquiry is question B (Is there a history of chronic illness in your family?) because it is aimed at soliciting private health-related information. Such questions are inappropriate and unrelated to the professional competencies and duties of the applicants. However, it could be possible to rephrase this question in order to direct it towards the job under discussion; differently put, the appropriate version of this question would be “do you think your health status could affect your performance of the job?”
The next questionable inquiry is question G (Given that you are in a wheelchair, how do you think you’ll be able to do this job?) – this question can be recognized as inappropriate due to the insensitive language. “In a wheelchair” is an inappropriate way to refer to a person with a disability. However, overall, the employers have a right to inquire applicants with disabilities about their ability to perform tasks included in the job (MTU, n.d.). In that way, the reworded version of this question should exclude the first part and be the following: “do you think you will be able to perform job-related activities effectively?”
Further, question H (We are looking for someone who can effectively relate with college students; you are 47 years old?) is another questionably legal inquiry because all questions regarding the applicants’ age are deemed inappropriate during a job interview. In order to transform this question into a more suitable version, it is necessary to omit the part about age. The following is the appropriate version of this inquiry: “We are looking for someone who can effectively relate with college students, do you believe you are such a person? Please elaborate on your argument.”
In addition, questions C and I also should not be asked directly at a job interview because they are rather personal, intrusive, and can be perceived by the interviewees as judgments. Instead, such questions should be reworded in order to focus on job-related factors. The version for question I should be “Have you ever had problems due to breaching company policies regarding the use of tobacco or alcohol?” and for question C – “will you be able to work additional hours and go on work-related trips if needed?”.
Munnell, A. H., Sass, S. A., & Soto, M. (2006). Employer attitudes towards older workers: Survey results. Work Opportunities for Older Americans, 3, 1-14.
Anti-discrimination policies, laws and acts have had a significant impact on nursing practice. Historically, there has been an evolving struggle for equality in rights, possibilities and opportunities. The Americans with Disabilities Act had a lot of resonance and found its way into many more directions than other practices. Its introduction influenced both the attitude towards the nurses themselves and the requirements in relation to patients.
The implementation of the act has influenced the need for institutions to consider candidates for vacancies without bias towards certain deviations. In the modern world, people with disabilities often have fears about a special attitude, in connection with which they hide their disabilities or are afraid to talk about them (Neal-Boylan & Miller, 2017). However, the Americans with Disabilities Act mandates that students with disabilities be treated on an equal footing with others, thereby reducing permissible discrimination against characteristics that do not directly affect an employee’s performance (Moraras et al., 2020). This commitment increases competition for positions in the healthcare sector but is humanistic and supports the fight for equality.
Additionally, the Americans with Disabilities Act legally directs health centers to provide a variety of facilities for people with specific disabilities. In this case, it is meant that health care should be in the public domain. The provision of such conditions includes general access to medical facilities and the provision of appropriate conditions (Ordway et al., 2021). Providing appropriate conditions should include changes to space plans and adding new specific practices. Nurses, as hospital representatives, are also required to follow the new practices.
In conclusion, the practices that nurses work with on an ongoing basis are subject to change. Acts such as the Americans with Disabilities Act affect not only the political and legal environment in a country but also the rights and responsibilities of nurses. Due to the act, nurses are more likely to obtain preferable employment rights in the event of a disability, but at the same time, are required to provide equal conditions for patients with special health conditions.
A person with a disability is an individual who has certain limitations of his abilities, who cannot actively participate in all spheres of social activity. He or she should have equal rights and opportunities with other members of society. Throughout the world, the social movement of people with disabilities to protect their rights to freedom of choice, self-determination, and open access to participation in all areas of society is growing.
The state bill of interest is AB-196 Paid family leave, which wishes to amend Section 3301 of the Unemployment Insurance Code. The latter is related to the issue of paid family leave, where one gets paid for taking care of a person with a disability, for example, a family member. The current law obliges a disability insurance program to pay a person, who is taking care of a person with a disability, a certain percentage of the wage. The calculation process involves determining the quarter with the highest wages and paying an employee a portion of the given sum. The bill wishes to amend the existing law to pay 100% divided by 13 as a wage to employees on temporary family paid leave, who are taking care of people with disabilities.
The main change in section 3301 of the Unemployment Insurance Code is 3301b2, which mandates to pay 100% of the highest base wage during the paid leave divided by 13 and not the portion of the sum, as it is now. The weekly benefit is provided for no more than six weeks, which can be paid for 12 months (“AB-196 Paid family leave,” 2019). It is important to note that the amount cannot exceed the weekly benefit on maximum workers’ compensation temporary disability indemnity established by the Department of Industrial Relations.
If the bill passes, people with disabilities will get paid more than usual, because the amendment removes loopholes for reducing the total weekly benefit amount. The family, the immediate environment of a person with disabilities, is the main link in the system of his or her care, socialization, the satisfaction of needs, support, and career guidance. The problems of families with the advent of a person with disabilities are increasing. In the first place, these are material, domestic, financial, and housing problems. In such families, sometimes insurmountable tasks arise associated with the acquisition of food, clothing, shoes, the simplest furniture, and household appliances. Housing is usually not suitable for a person with a disability because there is no separate room or special facilities for this individual. Services for people with disabilities in such families are mostly paid. All this requires large sums of money, and the majority of families have a modest income, which consists of the caregiver’s wage and the person’s social disability benefits.
The social protection of families with people with disabilities is based on an appropriate regulatory framework. The law should encourage and differentiate the benefits provided to a person with a disability and his family, that is, all family members living together. Additional benefits for caregivers are provided by law for them to provide a person with a disability with complete care. The social protection of a family with such an individual should be focused not only on solving specific problems, but, first of all, on strengthening and developing their potential. In this process, the role of social services and specialists working in these institutions becomes especially significant. In addition, the law should not only help the family overcome daily difficulties but also provide sufficient funds, help them build their life scenarios by the highest possible level of quality of life.
This process must begin with the family since the role of the family in the rehabilitation of people with disabilities is simply difficult to overestimate. The involvement of family members, especially the caregiver, is crucial in the outcome of the rehabilitation. However, the significance of the family can be not only positive but also negative in case of insufficient funds. Because of this, this law must be implemented to provide caregivers with the necessary financial resources. Parents should be prepared for the rehabilitation of people with disabilities at home. The role of the social worker in these cases is extremely great since it is from him that they expect advice and help. The lack of faith in caregivers in security during care hurts the lifestyle of a person with a disability. Whereas the belief in security forms a positive psychological climate, the socio-economic activity of caregivers, which, in turn, contributes to the adaptation, success of care, and the entire process of integrating a person with a disability into society.
Prior to the enactment of this bill, some people barred the disabled from accessing public facilities. This discriminated against people with disabilities, especially those with service animals. This bill was aimed at ensuring that people with disabilities enjoyed same rights as those without disabilities. It was also meant to prohibit false presentation of service animals.
Definition
Assistance animals
Assistance animals are those animals, which are specially trained to assist a person with disability. To qualify, the animal must not be a pet or emotional support animal. Additionally, it must be trained to give assistance to a person with disability. The animal can be either a dog or a miniature horse.
Emotional Support Animal
Emotional support animal is also known as a comfort animal. This animal is defined as one that accompanies a person with disability whenever required for comfort. Moreover, the animal must not do tasks aimed at assisting the person with disability. Moreover, it should not accompany the individual with disability at all times.
Therapy animals
Therapy animals, like emotional comfort animals, accompany a disabled person whenever required. However, they are not to do tasks that benefit the disabled person. Moreover, they are not to accompany the disabled individual at all times. In essence, they are only used when required for therapy purposes.
Service Animals
Service animals refer to all animals that have been trained or are being trained to assist a person with disability. Service animals can be a dog or a miniature horse. In essence, they are animals that can provide beneficial services to a person with disability. That is, they exclude comfort or emotional support or therapy animals (Rodriguez, 2013).
Candidates and selection of Service Animals (in New Mexico)
Breeds, ages and other specifications for service animals are usually managed carefully to avoid hazards, which may be caused, by the animal or the disabled person. Breeds of dogs utilized for service include German shepherd. Additionally, others include retrievers, among others. The dog must also pass aptitude test. In addition, it must be 12 months old or more. The dog must also be healthy with clean teeth.
Miniature breeds consider for service to disabled persons include Rottweiler and Chihuahuas, among others. The horses must be examined thoroughly for certification. They should be at most 26 inches high and in good health. However, the minimum age depends on size and ability to pass the certifications.
For animals to be used for service to disabled persons they must prove that they cannot harm people or give wrong directions. Additionally, their size and health must be within the required levels. In this regard, only dogs and miniature horses have proved consistency in achieving this (Drum, Krahn & Bersani, 2009).
Qualifying and Qualifications of Service Animals
Training requirements
Qualified service animals must undergo aptitude test to determine their suitability. According to ADA, service animals must be trained individually to assist a disabled person. Moreover, the service animal must be trained to behave in an acceptable manner especially in public places (ADA, 2011).
Selection of candidates of service animals
Service animals that can be selected to assist persons with disability must be either a dog or a miniature horse. In addition, the candidates for selection must pass the aptitude and be certified to be allowed to assist persons with disability.
Qualifications requirements
Service animals must qualify to assist persons with disability. In this regard, service animals that meet the following qualifications require certification to assist persons with disability. First, they must be well behaved, follow command, be healthy, remain in heel position when approaching structures, and be trained to assist a disabled person. The service animal must also undergo aptitude test to determine its suitability.
Recertification requirements
Service animals should be monitored for compliance with certification guidelines. Moreover, service animals must be taken periodically for recertification to achieve success in assisting disabled persons. Service animals taken for recertification must meet the requirements for qualification requirements.
Types of Disability that requires the use of service animals
Disabilities that require use of service animals include partial blind persons, visually impaired persons, and totally blind persons. Additionally, people with other disabilities such as Parkinson’s disease can also use service animals. Other disabilities that would require assistance of service animals include the deaf, hard of hearing as well as physically disabled (mobility impaired) people who may need miniature horses to pull their wheel chairs (Disabled World, 2013).
Admittance and Limitations of Service Animals
Public and private places
Service animals are to be allowed into all public places without payment of additional charges if the animal is accompanied by it trainer or the disabled person. Admittance to all public places must be allowed to persons with disability when accompanied by service animals. This should also be extended to areas where employees of public places have access (even if the area is closed to the public). However, the owner must have ability to command his /her service animal. Moreover, the person with the animal shall be liable for any damage caused by the animal. However, service animals shall not be allowed to access private property without permission from the management of the building.
Accommodations of Service Animal in Emergencies
Responsible parties
During emergencies, accommodation should be provided to service animals until they are reunited with their trainer or their owners. This can also happen when the trainer or the owner is to be transported in an emergency such as an accident or evacuation. In all cases, all should be done to reunite service animals with their owners or trainers.
Death of Owner
When the owner of a service animal dies, effort should be made to reunite the service animal with its trainer. In case the trainer is unavailable, the service animal should be under control of a qualified trainer.
Threats
When service animals becomes a threat to the public
When a service animal turns violent through observable signs like growling and barking or showing of teeth then the service animal may be refused admittance to public buildings until it is under the control of its owner or trainer. Nonetheless, the owner of the service animal should not be refused services or goods without the violent service animals. In case the service animal is out of control, all should be done to control it by a qualified trainer. Additionally, the owner is liable for any damage caused to the public.
When other animals becomes a threat to the service animal and owner
When other animals become a threat to service animal and its owner, efforts should be made to secure the safety of the person with disability. After which safety should be made to the service animal. Additionally, efforts should be made to reunite the owner and the service animal in case of emergency evacuation to avert threat from other animals.
False presentation of Animals as Qualified Service Animal
What and why
False presentation of animals as qualified service animals occurs when an individual enjoys the services of non-qualified service animal. This may involve use of animals that have not undergone certification or animals whose certification has expired. In each case, the user is guilty of misdemeanor.
Problems with false presentation
False presentation can lead to accidents because the animal may not be intelligent enough to provide service to its owner. In addition, there is high chance that the animal would not be under complete control of its owner. Additionally, false presentation would allow anyone to come with any animal as a service animal if not regulated.
Policy Making Cycles
This bill was introduced and passed to ensure that assistance animals are renamed with the view of prescribing both criminal and civil penalties on breaches of service animal act. This was done to avert the possibility of an individual presenting (with full knowledge of action) non-qualified animal as a service animal.
Factors influencing policy
This bill impacted use of service animals in a big way. For instance, not every animal could be presented as service animal. Moreover, certification was to be sought before presenting an animal as service animal. Additionally, discrimination of persons with disability when accompanied with service animals in public places was reduced.
Problems for SB320’s amendment of the law regarding service animals
Initial passing of the bill was found to contain issues that obstructed its smooth implementation. For instance, there was controversy on the definition of service animals, certification requirements as well as the rise in new breeds and animals usable as service assistance to persons with disability.
Problems
Non-qualified animals as service dogs causes what problems
Non- qualified animals can cause issues ranging from disobedience to chaos in public places. Moreover, they may not be intelligent enough to perform the tasks required of them by persons with disability. Additionally, they may be difficult to control, train and qualify for the tasked prescribed for them. They may also be too strong or too big to offer the services required. Furthermore, they may be too small or too big to provide the required tasks (Michigan State University College of Law, 2013).
Regulations put in place – why
In this regard, regulations have been put in place to ensure that only the right animal is trained to be a service animal. Moreover, these regulations are to help safeguard the safety of both the public and persons with disability. Additionally, they are in place to assist in serving both the disabled and the public fairly. This is to ensure equal rights are served to both sides.
Other problems on people trying to have non-qualified animals pass as service animals
Other problems include abuse of animals and animal safety. For instance, some people may abuse animals through use in areas they cannot manage adequately. When considering the qualifications for animals to provide services, the regulators also consider the safety of animals whenever they provide such tasks. Therefore, using non-qualified animals may expose unhealthy or weak animals to hazardous situations (GCD, 2011).
Conclusion
Service animal act was introduced by Nancy Rodriguez to help provide for qualified service animals as well as to prohibit presentation (with full knowledge) of non-qualified service animals. Additionally, it was introduce to prescribe penalties for breaches to the act. On a broad perspective, the bill was meant to minimize discrimination against persons with disability who own service animals in public places as long as they are in control of the animals.
References
ADA (2011). Service Animals. Web.
Disabled World (2013). Information on Disability Service Animals for Blind and Persons with Disabilities. Web.
Drum, C., Krahn, G., & Bersani, H. (2009). Disability and Public Health. Washington, DC: American Public Health Association. Print.
GCD (2011). Disability Law: Americans with Disabilities Act (ADA). Web.
Michigan State University College of Law (2013). New Mexico: Consolidated Assistance Animal/Guide Dog Laws. Web.
Rodriguez, N. (2013). 51st Legislature- State of New Mexico- First session. Web.
The determination of the Employment Equity Act was generated to guarantee that there are one and the same chances for all people that exist in Canada. The Employment Equity Act primarily aims four assemblies of the population that involve females of the country, aboriginal peoples, individuals with disabilities, and observable subgroups of the population. Furthermore, the Employment Equity Act assists as a significant part of the employees because it traces any discernment and eliminates it efficiently.
If the Employment Equity Act is applied appropriately, the Act will guarantee that people in the labour force are given the opportunity of the equivalent admission to job openings along with identical management in the place of work. A lot of entities accept as true that managers are not very expected to encounter the conditions of discernment as they go through the acquisition procedure, along with correctly applying the Act in a specific labour force. As a result, the complication of the Employment Equity Act is reasonable; though it is not obligatory to ensure the Act is applied in countless places of work in Canada.
The following report aims to evaluate the effectiveness of the Employment Equity Act, especially focusing on the section written for Aboriginal Peoples and Person with Disabilities. In order to do so, several features should be included in the paper. First of all, the history of the legislation will be discussed in order to begin to assess the law from the moment of its implementation. Furthermore, various articles of legislation and their applicability to human resources will be considered. Moreover, challenges that the Employment Equity Act has posed will be observed along with the recent changes that have been made to the legislation and their effectiveness. The last section of the report will provide several recommendations to advance the Employment Equity Act.
History of the Employment Equity Act
The Employment Equity Act of Canada was first conceived in 1986 by Judge Rosalie Silberman Abella, Commissioner of the Royal Commission (SOURCE) and aimed to protect specific groups in the labour market against discrimination. The EEA aims to allow equity in the workplace for women, persons with disabilities, aboriginals and visible minorities. This Act is enforced in not only the public sector but also in portions of the federal public administration (schedule I to IV and V). Ontario enacted their EEA two years later in 1988. In Ontario, the EEA covers both the public and private sectors of the workforce.
In order for an employer to conduct and uphold the standards of the EEA, they are expected to run job and workplace analyses regularly. They are obligated to make sure if there is a sector lacking one of the protected groups, that they find out the reason behind it and find a way to fix the problem. The EEA states that each employer must state clear and positive policies that the employer must follow in every stage from recruitment to acceptance of the job, and in the workplace. In accordance with paragraph 9(1)(b), employers are obligated to remove any barriers that would discriminate against employees, to the point of undue hardship.
Two years later, in 1988, groups who were all interested in the equality of the workplace created a coalition. The coalition’s mission was to convince the federal government that the equality program in place needs to become more effective. For years after the creation of the EEA, it seemed as if it was not going to go anywhere or get any better, but that was until 1993 when the EEA began to cover both public and private sector workplaces.
At this time there was also an agreement formed with the government of Nunavut. It became Article 23 in the Agreement: “each government organization shall prepare an Inuit employment plan to increase and maintain the employment of Inuit at a representative level.” (SOURCE) By 1996 representation of Aboriginal Persons had finally been pushed forward. The federal government, the assembly of Manitoba Chiefs and also the Canadian Human Rights Commission had finally come to an agreement; increase the representation of our Aboriginal Persons.
The beginning of the 2000s brought on more changes to the Employment Equity Act. Another push towards hiring 1-in-5 minorities was created by the Embracing Change Initiative, included in this was funding towards reaching the goal, which never managed to achieve their goals, even though this became the first voluntary act by employers. In 2004 the Senate Standing Committee on Human Rights decided it was time to interview different witnesses of Employment Inequality.
Finally, by 2006, the Federal Government released the Public Service Employment Act; it contained rules and regulations towards employment and staffing in the public sector. In 1995, when the Conservatives took control of the government, they placed a cap on public sector pay equity funding, which ran out in 1999.
In the end, Canada is trying to make sure that every one of its citizens is treated fairly and equally, including employers, who are only obligated to follow this Act to the point of undue hardship, at which point excluding one of the protected groups no longer becomes discrimination.
Legislative Provisions and Its Applicability to Human Resources
The main applicable provisions from the Employment Equity Act, which need to be considered by Human Resources are under articles I to IV of the Act. These articles specifically involve principles, interpretation, obligations, and audit and enforcement by the Commission, pertinent for ensuring that the public sector engages in employment practices that will increase the representation of women, visible minorities, Aboriginal persons and persons with disabilities, to ultimately have workforces that truly represents its society (“Employment Equity Act (S.C. 1995, c. 44)”). An overview will be discussed below to the significances of the articles for guiding human resources to advise employers and ensure policies and practices are in accordance with the Act.
Article I: Employment Equity
Article I of the Act, outlines five principles of employment equity applied throughout the public sector, which are: duty to ensure recruitment and employment is free of barriers, including systemic and deliberate discrimination against members of the four designated groups; assurance that positive and supportive measures are taken without causing undue hardship to the employer; and making certain efforts are made to reflect the four designated groups within all occupational categories and at all levels of employment (“Employment Equity Act (S.C. 1995, c. 44)”).
Section 9 & 10
The article also outlines obligations when implementing employment equity initiatives. Under section 9 of the Act, an employer needs to analyze and review the representation of the designated groups employed in the workforce, to which the review will enable the employer to remove barriers, including procedures and policies that are unfavourably affecting the designated groups.
Further to the review and analysis, an employer is obligated to prepare an employment equity plan which will include the information on eliminating barriers, the necessary measures that will be taken to correct the underrepresentation, and specify the goals and timetables for short-term and long-term for the matters discussed, in addition to the composition for increasing the representation of persons in the designated groups (“Employment Equity Act (S.C. 1995, c. 44)”).
Section 18
Under section 18 of the Act, reports of private-sector employers outlines the responsibility of private-sector employers to prepare an annual report which will contain: industrial sector; location; the total number of applicants; and with appropriate qualifications along with information for applicants from the designated groups and the number employed in all occupational groups, highlighting the designated groups within; the salary ranges of employees highlighting the designated groups within; and the number of employees promoted and terminated for all designated groups. The report shall then be filed with the Canadian Human Rights Commission on or before June 1 in each year, in addition, made available to employee’s representatives and employees (“Employment Equity Act (S.C. 1995, c. 44)”).
Thus, it is the responsibility that Human Resources encourages and is committed to implementing employment equity practices and policies, guided by article I, to ensure administration of recruitment and selection, and employment practices comply with legislation.
Article II: Compliance
Article II of the Act, dictates the duty of the Canadian Human Rights Commission to assure that employers are complying with an article I of the Act. The Commission will audit organizations with more than 500 employees, which indicate the representation of the members of the designated group below the average with a comparison with its sector. The Commission will inform these employers about a possible audit, in which the employer has two weeks to provide the Commission with a workforce analysis.
If the analysis indicates a good demonstration of the designated group, they will receive a report from the Commission regarding accomplishments and challenges. However, if the employer fails to demonstrate good representation, an audit will be conducted that will include an on-site visit that includes interviews with employees, managers and union representatives, with an overall duty to provide a report specifying actions the employer will take to comply with the Act (“Employment Equity”).
The aforementioned are applicable to Human Resources as it is a shared responsibility with the employer to investigate any failures and communicate strategies to ensure efforts to upgrade the employment equity program to be in good practice by creating formalized and objective policies, provide training on employment equity to personnel that are involved with workforce decisions, and deliberation on strategies to increase diversity.
Article III: Violations
As having the “traditional roles of obtaining, maintaining, and retaining an optimal workforce” it is the duty of Human Resources to not only ensure that a productive workforce is maintained but to participate in ensuring the organization is not in violation with regarding laws governing the employment relationship (Schwind, 2013). Thus it is of great importance that Human Resources reviews and understands article III of the Act, which outlines what constitutes a violation of the employment equity legislation.
Under section 35 of the Act, violations are described as failing to file an employment equity report, exclusion of essential information as outlined in section 18, and providing false or misleading information in the report that employer knows, to be untrue (“Employment Equity Act (S.C. 1995, c. 44)”). If a violation is found the employer will have an opportunity to “present evidence and make representations” to the alleged violation, therefore, it is critical that Human Resources maintains appropriate records of human resource management endeavours.
Article VI: General
Under section 42 (3), it is important to note that the Minister makes available labour market information of the designated groups “in the Canadian workforce in order to assist employers in fulfilling their obligations” (“Employment Equity Act (S.C. 1995, c. 44)”). Accordingly, the Government of Canada provides tools, resources, publications and databases to assist employers and Human Resources in fulfilling their obligations. It should also be noted that section 44(1), review of the operation the of Act, states that at the end of every five years, a committee of the House of Commons will conduct a comprehensive review of the provisions and operation of the Act. As a result, employers and Human Resources need to be vigilant of any changes to the Act that may arise from the review.
Overall it is of importance that human resource professionals are aware of all provisions of the Employment Equity Act to ensure company policies and practices, in regards to employment relation management, are inclusive, non-discriminatory, free of violations, valid, and up-to-date, to integrate the principles and goal of the Act fully.
Challenges that the EEA has posed
There is the good intention behind the Employment Equity Act, but like every other legislation, it does not come without challenges. A few of the main challenges that the Employment Equity Act creates is the lack of understanding surrounding the Act, it is federally regulated, and there is a lack of punishment for those who do not follow the legislation. The positive thing about these issues is that they can be improved for the future.
The first main challenge in relation to the Employment Equity Act is the ignorance surrounding the Act. More specifically, entry-level employees may not be informed on how the Act is applied within an organization. This happens when CEOs and government officials neglect to inform employees about how a certain percentage of the workforce should include the disadvantaged groups. As a result, entry-level employees may feel reverse discrimination and resent the practice within the company (Falkenberg & Boland, 1997). Not only are these employees impacted by ignorance surrounding the Act, but employers are also subjected to a lack of knowledge and understanding. This maybe because of how unspecific the legislation is in regards to the extent of changes that need to be implemented by employers (Falkenberg & Boland, 1997).
The second issue in relation to the Employment Equity Act is that it is regulated at a federal level. With a focus on federal employers, this disregards provincial employers requiring a separate form of legislation altogether. As far as regulation goes, the Act is tracked** by the Commission when they conduct random audits on companies with 500 or more employees (Canadian Human Rights Commission, 2015). This, in itself, poses an issue. If organizations with less than 500 employees are not even subjected to being audited, then there is a large number of companies possibly not following the legislation. Thus, it is difficult to regulate who is actually applying the Act (Government of Canada, 2015).
The third challenge of the Employment Equity Act is that there is a lack of punishment for organizations who do not follow the law. Consequences for employers are carried out by the Commission when they conduct random audits on the company ensure they are complying with the Act (Canadian Human Rights Commission, 2015).
The problem is that the punishment is very weak. If an employer is not abiding by the legislation, then the Commission will issue a letter to the employer so that changes can be made within four months (Canadian Human Rights Commission, 2015). If no action has been taken to correct the equity discrepancy, then the Commission will impose corrective measures (Canadian Human Rights Commission, 2015). Ultimately this random audit lacks incentive for employers to apply the Employment Equity Act within their organizations. Especially if they are caught, they have four months to start to change their practices.
Overall the challenges of the Employment Equity Act arise out of systemic issues that include a lack of knowledge and understanding, the federal focus, and the lack of consequence. The fortunate thing about these challenges is that steps can be taken to combat these issues.
Recent Changes that Have Been Made to the Legislation
The Canadian government adopted a report in 2000 that was released by the Task Force on the Participation of Visible Minorities in the Federal Public Service. It offered a three-year funding plan to “shape a federal public service that is representative of its citizenry”. The government set up different developmental programs to assist visible minorities in the workplace (or lack thereof). With the help of these developmental programs, 3000 visible minorities were hired between 2003 and 2004.
On April 3, 2001, Deputy Minister Ranald A. Quail became the head of the Task Force on Modernizing Human Resources Management. This program was developed to update modern policies, legislations and institutional framework. Bill C-25 was passed on November 7, 2003. This Bill (Public Service Modernization Act) changed how recruiting and hiring was done.
The duty to accommodate became part of the Employment Equity Act in 2002. The Act aimed to rid the workplace of any barriers workers with disabilities may face, and to allow them an equal opportunity just like any other employee. Different guidelines (Guidelines for Fair Assessment in a Diverse Workplace: Removing Barriers to Members of Visible Minorities and Aboriginal Peoples and Guide for Assessing Persons with Disabilities in the Appointment Process) were published in 2002 to help employers, and HR Managers understand how and what to do when dealing with accommodating disabled workers.
While a small amount of progress had been made since the Employment Equity Act was implemented, in 2004 the Federal Pay Equity Task Force took a look at Canada’s statistics and noticed protected groups were still suffering pay discrepancies, and that tougher action in the law must be taken to protect them. The Canadian Centre for Policy Alternatives report, “A Living Wage as a Human Right” explains how this discrimination and lack of strict laws makes it harder for many average workers to make a living.
In 2006 Canada passed a Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) which contained provisions on the Employment Equity Act in the public service. During 2007, and again in 2010, the Senate Standing Committee on Human Rights developed two different reports. The first one, entitled “Employment Equity in the Federal Public Service – Not There Yet” stated that there was not enough progress being made towards Employment Equity.
The second report the Senate released in 2010 had more research into the topic. It detailed “the failure of the federal public service to achieve employment equity after 15 years under the Act” (Public Service Alliance of Canada, 2013). In 2012, the Federal government removed legal requirements for Federal contractors and left the Minister to decide requirements. Then in 2013, again, the Federal government reduced the number of employers that were covered and reduced any requirements.
Recommendations to Improve the Legislation
The first recommendation that can be made to improve the Employment Equity Act is to increase its scope. Currently, it only applies employers under federal jurisdiction with 100 or more employees. This means the majority of Canadians are employed in organizations not covered by the Act. Increasing it beyond just federally regulated businesses, so it represents a greater proportion of the Canadian workforce, would have better results for the affected groups.
Another recommendation for improving the legislation would be to increase the level of government involvement. Henry and Jain (1991) suggested inequality has been prevalent for so long that current voluntary programs won’t work, and the only remedy would be increased government intervention. There are currently no incentives for employers to comply with the Act, and few sanctions are ever imposed on employers who do not adhere to the rules of the Act.
The Employment Equity Review Tribunal may impose fines of up to $50,000 for continued violation of policies, but this does not pose a meaningful deterrent to a lot of employers. (Mentzer, 2002) There needs to be increased monitoring of how programs are implemented within businesses, incentives for complying with all program requirements, which would compel organizations to develop and regulate their own equality programs (Falkenberg & Boland, 1997), and meaningful penalties for continual non-compliance.
There is also currently insufficient monitoring of equity programs. The government Evaluation of Employment Equity Programs, published in September this year, found that the performance measures in place to monitor the effectiveness of the programs were being underused. There needs to be better, and more frequently produced, evaluations of how the Act is working in order to determine improvements that can be made to the programs more accurately. Further, these performance measures do not provide an accurate idea of program outcomes because they focus more on compliance with reporting than on whether the business is actually adhering to the standards the Act is designed to promote. (Evaluation, 2015)
A final suggestion of how to improve the legislation is to increase understanding and change employer and employee perceptions of the Act. Falkenberg and Boland (1997) argue that employee participation is vital to the success of programs. They propose educating workers to change their attitudes and prejudices towards designated groups, as well as about the reasons for the Act, and discriminations faced by the target groups. Without this, and an understanding of the reasons behind the policy, they say employees will be resentful of what they may perceive as reverse discrimination within the Act.
With regard to the Aboriginal population, the government Evaluation of Employment Equity Programs (2015), found that it is increasing at twice the rate of the general population, and this obviously, in turn, means that there will be soon more Aboriginal peoples looking for work. The report stated that policymakers do not currently consider Aboriginal communities to be a source of skilled workers. Therefore they and employers need to be educated that Aboriginals’ skills and potential are being underused, and should be more actively explored, particularly in times of skills shortages.
With relation to people with disabilities, the need to accommodate goes beyond hiring requirements and covers the job itself. Vital to the employment of people with disabilities was the degree to which employers’ were willing and able to accommodate them. The report found that employers were focused on obvious disabilities and needed more education on less obvious ones, such as hearing, learning, and mental disabilities and the accommodations they might require, such as the provision of interpreters or tele-typewrites, as well as a better recognition and understanding of mental health problems. Many employers cited the cost of accommodation as the main barrier to hiring someone with a disability. However, the report suggests the estimated cost of providing the necessary accommodation would be less than $500 per person.
The forecasted increase in the rate of growth in all designated groups over the coming years will almost certainly increase the number of those people in need of support, meaning we have to correct these policies now, to ensure smoother transitions into the workforce for disadvantaged groups in the future.
Conclusions
The insinuations of the Employment Equity Act appear to be reasonable, and if applied properly, the Employment Equity Act could and will be operative and efficient. Nonetheless, in a case, if the Act is not being applied reliably, the inferences could be observed that it appears to be not essential in Canada. The Employment Equity Act is covered with decent objectives because it strives for eliminating the obstacles that females of the country, aboriginal peoples, individuals with disabilities, and observable subgroups of the population are facing; although discernment is made deceptive up to this day. As they go through the acquisition procedure, the managers are obliged to search for and discover the best applicant for the occupation rather than employing a person based on the evaluation of their gender or position in the society.
The Quality that is proposed by a singular person should reproduce the way they are able to donate an affirmative development and affluence among the employees. These qualities should have a leading role and be searched for while employing a person. Due to the fact that the Employment Equity Act is not correctly applied and exposed to have defects, variations should be implemented to the Act to make it work efficiently and assist the manager along with the workplace surroundings. The changes should be made in accordance with the historical past of the Employment Equity Act. The existing Employment Equity Act has to be adapted so that it can be applied appropriately, constructing it the way it would be essential to apply.
References
Canadian Human Rights Comission. (2015). Employment Equity. Web.
Cornish, M., Yao-Yao Go, A., & Rae, J. (2013). Employment equity laws ensure workplace fairness | Toronto Star. Web.
Falkenberg, L., & Boland, L. (1997). Eliminating the Barriers to Employment Equity in the Canadian Workplace. Women in Corporate Management, 16(9), 963-975. Web.
History of Employment Equity in the Public Service and the Public Service Commission of Canada. (2011). Web.
Mentzer, M. (2002). The Canadian Experience with Employment Equity Legislation. International Journal of Value-Based Management, 15(1), 35-50. Web.
Peng, P., & Singh, P. (2009). Pay equity in Ontario: The case of a non-profit seniors service organization. Canadian Public Administration, 52(4), 613-625. Web.
Public Service Alliance of Canada. (2013). Web.
Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13 ). (2003). Web.
Schwind, H., Das, H., Wagar, T., Fassina, N., & Bulmash, J. (2013). Legal Requirements and Managing Diversity. In Canadian Human Resource Management: A Strategic Approach, 10th Edition (10th ed., p. 129-164). McGraw-Hill Ryerson. Web.
When it comes to discussing what should account for our attitude towards disabled people, it is important to understand that there are two types of disabilities which can be generally referred to as ‘mechanic’ and ‘genetic’. Mechanic disabilities occur as a result of physical injuries.
Genetic disabilities, on the other hand, come as a result of a developing embryo being affected by genetic mutations, while in the womb.
The foremost difference between these two disabilities is that whereas, a majority of ‘mechanically’ disabled people are nevertheless quite capable of continuing to act as society’s productive members, ‘genetically’ disabled individuals represent nothing more than a society’s burden.
It is due to the fact that it is not only that their continuous sustenance costs taxpayers dearly, but also, as practice indicates, these people often end up passing their genetic disabilities to the representatives of next generations. The earlier suggestion provides us with the insight into how we should perceive the very notion of disability.
First, it can be questioned whether any form of physical or mental disability can be referred to as something that deserves to be ‘celebrated’, as the promoters of political correctness want us to believe. The reason for this is simple – the term ‘disability’ is synonymous to the notion of suffering.
It is namely the fact that it now has become a common practice on the part of politically correct but utterly ignorant individuals, to refer to disabled people’s suffering in euphemistic terms, which makes this suffering even worse.
As it was pointed out by Mairs: “I am a cripple. I choose this word to name me. I choose from among several possibilities, the most common of which are ‘handicapped’ and ‘disabled’… ‘Cripple’ seems to me a clean word, straightforward and precise” (1).
Considering the fact that many disabled people never cease experiencing an acute physical pain throughout the course of their lives, it is utterly preposterous to think that they might be sensitive enough to feel insulted upon being called ‘cripples’.
The term ‘disabled’ appears semantically adequate as well. Unfortunately, the same cannot be said about the term ‘uniquely abled’ – clearly the byproduct of its inventors’ perceptional ignorance.
Second, the fact that there is nothing to gain out of being crippled does not mean that some disabled individuals should not be looked upon as ‘role models’. The validity of this statement can be well explored in regards to those individuals who sustained crippling injuries during socially beneficial but dangerous duties, such as disabled soldiers, police officers, firefighters, etc.
These people sacrificed their physical adequacy for the sake of ensuring society’s integrity. In return, society has to make sure that they are being treated with utter respect and that they never suffer from the loss of dignity.
There are also quite a few disabled individuals who proved themselves to be courageous enough to refrain from succumbing to depression because of having sustained accidental injuries. Just as it is being the case with disabled soldiers, police officers and firefighters, these people also deserve to be praised for the sheer strength of their willpower.
Nevertheless, it is utterly inappropriate to suggest that disabling physical deficiencies should be celebrated as ‘thing in itself’:
I’d walk among them – the fat women, the short – statured men commonly called dwarfs and midgets, the folks without legs, the supposed half men/half women, the conjoined twins… I am looking for teachers and heroes to show me the way toward new pride (Clare 226).
Apparently, it never occurred to the author that it is not only that disability cannot be ‘taught’, but also that even attempting to ‘teach’ disability accounts for highly immoral act. The same can be said about some authors’ tendency to try to convince readers to adopt positive attitude towards disabling emanations of people’s mental inadequacy.
For example, as for today, such genetically predetermined form of mental illness as autism is being increasingly discussed in terms of ‘neurodiversity’.
Thus, as students in Western countries are taught that diversity is necessarily a ‘good thing’, “a growing and vocal set of autistic activists – under the banner of ‘neurodiversity’ – are demanding that autism be accepted and respected not as a disorder, but as a variation in ‘brain wiring” (Jurecic 423).
Nevertheless, it does not take overly bright individual to realize the sheer absurdity of such claims. The reason for this is quite apparent – these claims stand in striking opposition to the most basic laws of nature that enable survival of the fittest.
Just as it continues to be the case with plants and animals, people never cease being fully subjected to these laws. Biologists, however, know perfectly well that the violation of laws of nature necessarily leads to degradation and death.
Therefore, it does not come as a particular surprise that today autism, as well as other forms of mental illnesses, in Western countries has long ago attained the subtleties of an epidemic, which threatens society’s very foundations. After all, if genetically predetermined physical/mental illnesses are not the source of suffering but the source of ‘pride’.
Why then should there be a need to resist the spreading of these disabling illnesses? This is exactly the reason why, as contemporary realities indicate, more and more genetically disabled people grow convinced that there is nothing wrong with them trying to conceive as many potentially deficient babies as possible.
It simply could not be otherwise, given the fact that the mainstream Medias (especially popular TV talk-shows) continue to popularize the idea that society will only win from nourishing as many physically deformed and mentally impaired citizens as possible.
After all, the more disabled imbeciles, mental retards, and paralytics are in wheel chairs, the more ‘diversity’ is there. As a result, we now have large populations of essentially useless ‘mouths’ which do not only suffer, but also cause people around them to suffer as well.
If such situation continues to have place in the future, it would only be the matter of time before Western societies crumble under the weight of social deficits – there are indications that it begins to happen as we speak.
Therefore, it must be reinstated again that whereas, ‘mechanically’ disabled people should be provided with an opportunity to lead normal lives (especially if the loss of their physical adequacy occurred on the line of duty), it is socially irresponsible to be turning their disability into some sort of fetish.
As it was shown earlier, many of such people do not like being subjected to the emotional ‘care-taking’ on the part of hypersensitive advocates of political correctness.
In regards to people with genetically predetermined disabilities, we can only say that it is not only that they cannot be referred to as ‘heroes’ or ‘role models’ (they are nothing but victims of their parents’ sexual irresponsibleness), but that they should, in fact be sterilized, in order to prevent them from being able to proliferate their genetic defectiveness.
Works Cited
Clare, Eli “Gawking, Gaping, Staring.” Disability and the Teaching of Writing: A Critical Sourcebook. Eds. Cynthia Lewiecki-Wilson, Brenda Jo Brueggemann, Jay Dolmage. New York: Bedford/St. Martin’s, 2007. 225-228. Print.
Jurecic, Ann “Neurodiversity.” College English, 69.5 (2007): 421-442, Print.
Mairs, Nancy “On Being a Cripple.” San Francisco State University, 2010. Web.
It is very important for people, irrespective of their being normal or with disabilities, to have access to recreational activities. Unfortunately, people with certain disabilities have to come across certain hurdles in order to take advantage of the available recreational activities (Harris Survey, 1998).
There may be scores of reasons for this situation e.g., knowledge deficiency pertaining to the available facilities, unapproachable facilities, absence of proper guidance from the facilities providers, and absence of recreation paraphernalia that may be customized for the handicapped people.
A survey conducted on Americans suffering from disabilities suggested that almost 69% people suffering from some or the other disability felt that their disabilities thwarted their efforts of socializing (Harris Survey, 1998). It is even more appalling to note that people with disabilities, living in rural areas, face more of such hurdles (Rowley, 1999, p. 6).
Even the mindset of people in the society has been molded in a manner that they don’t visualize people with disabilities taking part in any recreational activities such as swimming, games, etc. But has anyone ever thought why it is so intricate for people with disabilities to involve themselves in recreational activities. Why is it that only a few instances can be found where customized recreational facilities are available for the disabled people?
Why can’t the people with disabilities choose their favorite recreational activities? Why do people with disabilities have to commute to distant places in order to avail their selective recreational activities? All these questions, and many more, demand answers from the society and the government.
It is estimated that, “Between 1990 and 2000, the number of Americans with disabilities increased 25 percent” (Disability Stats and Facts, 2012, para. 2). Another estimate claims that, “There are 36 million people who have at least one disability, about 12 percent of the total US population” (Latest US Disability Statistics and Facts, 2011, para. 4).
In order to minimize the sufferings or disadvantages of the people with disabilities, various steps are advisable. First of all, it is very crucial to spread general awareness about the available recreational resources and the advantages linked with taking part in the recreational activities. “An increase in awareness is often the first step to an increase in recreation participation” (About the North Carolina Recreation Resource Guide, n.d., para. 1).
It is observed that people with disabilities usually desist from taking part in such activities. The partaking rates of such people should be increased. It should be understood that simply increasing the partaking rates will not solve the problem. The recreational activities should be reachable to all and at all places (Participant Sports and Recreation Facilities, 2001, para. 22).
Even the number of customized recreational equipments should be increased so as to enable the people with disabilities to choose from. There should be certain guidelines for the recreation facility providers to impart proper and required information about the equipments.
Their objective should be to cater to the needs of the local people (Managing Facilities, 2008, para. 3). The society should also be more committed towards the sustenance of such projects.
This project will be executed by the ‘National Public Charitable Trust’ (NPCT). NPCT is a charitable organization engaged in the resurgence of the disabled people. NPCT has, in the past, made its presence felt in many developing countries. The trust has effectively executed various development ventures based on grants.
As an initial step towards starting the project, it is proposed that a community resource mapping will be conducted. On an average, 40 resources will be spotted in every community. The surveyors, from among the society, will gather the required data from the providers of recreational facilities. Such data will be compiled and used as a resource index by way of a website.
In accordance to the data, the required training will be provided to the providers. In addition to the awareness about disability, the training will also include information about the various acts pertaining to the disabled people.
After the completion of the training, such providers will be shortlisted who show commitment towards utilizing the funds provided to them, in the required manner. Such providers will also have to give an undertaking that they will keep on giving access to people with disabilities.
All the information pertaining to the community mapping, distribution of grant, available recreational facilities, and other details will be made accessible to people by installing a computer at each community centre.
The project director will be responsible for maintaining the budgetary requirements, hiring people, marketing the venture, preparing news articles, addressing the audience, arranging training schedules, organizing the various reports, and other things that might be required from time to time.
The remuneration for employees will be as follows:
Designation
No.
Hourly rate in US $
Number of hours for the first year
Number of hours for the second year
Total hours for each person
Amount in US $
Project Director
1
Full time
Full time
Full time
Full time
60,000
Consultant
1
35
400
200
600
21,000
Training Coordinator
2
20
300
100
400
16,000
Surveyors
5
15
500
100
600
45,000
Total (1)
142,000
Table 1: Salaries
In addition to the salaries, other expenses (for two years) are as under:
Account head
@
Amount in US $
Training schedules
30 schedules
700 each schedule
21,000
Travelling expenses
9375 miles
$0.64 per mile
6,000
Office supplies, including postage, printing, etc.