Peter Blanck Comments to Financial Times on Disabilities & the Workplace
Companies grapple with growing legal obligations to disabled people
(Financial Times | May 9, 2018) Unite, the UK union, helped win a legal victory in March that expanded safeguards against discrimination in the workplace established under the 2010 Equality Act to those with “pre-cancer”.
The ruling added to the range of workplace protections for disabled people in the UK. However, a challenge remains in knowing when the law should be applied, particularly in the case of mental health disabilities.
“It can be very difficult to work out whether someone is suffering from a particular impairment,” says Simon Kerr-Davis, a lawyer in the London employment practice at Linklaters. “But once that’s established, most employers are pretty clear as to what their obligations should be.” The scope of employer obligations has expanded in recent decades. In the US, the Americans with Disabilities Act became law in 1990. In the EU, provisions on disabilities were included in the Employment Equality Directive, adopted by member states in 2000.
The UN Convention on the Rights of Persons with Disabilities was adopted in 2006. Article 27 protects people with disabilities from discrimination and recognises their right to work on an equal basis with others.
Across jurisdictions, laws have different characteristics. “While within Europe, we’re all driven by the same directive, there will be differences between the implementations in different jurisdictions,” says Mr Kerr-Davis.
In the UK, part of the definition of a disability is that it has a “long-term” negative effect of 12 months or more on someone’s ability to conduct normal daily activities. This is not the case in the US. “In 2008, the Americans with Disabilities Act was amended and it made the threshold question of who has a disability more open — you don’t have to show a particular time period,” says Peter Blanck, a Syracuse University professor and chairman of the Burton Blatt Institute, which promotes the interests of people with disabilities.
Within the US, state laws sometimes go further than the ADA. “California and New York have very strong additional protections,” says Prof Blanck. “At a minimum they would comply with federal law but they are free to do an even better job" ...