DISABILITY MANAGEMENT LITERATURE REVIEW RESEARCH FRAMEWORK

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Early Developments

The development of a civil rights-based approach to human rights in the USA has a long history, but it became formalised only during 1963. The initial process was race-based and did not make specific reference to disability but more the general development of a civil rights approach. This was preceded by a decade or longer of insistent civil rights activism. The turning point came during the spring of 1963 when “…Americans and the world were shocked to see civil rights demonstrators beaten, attacked by police dogs, sprayed with high pressure hoses, arrested and jailed” (www.eeoc.gov/abouteeoc/40th/panel/firstprinciples.html). Shortly thereafter an incident occurred whereby a court order of the federal district court had to be enforced by the Alabama National Guard. The court order related to the admission of two black students to the University of Alabama (www.eeoc.gov/ abouteeoc/40th/panel/firstprinciples.html). Dr Martin Luther King Jnr made his “I have a dream” speech on 28 August 1963 which also had an impact on the proposed legislation. His speech was followed by the bombing of a black church in Alabama and the killing of several children. This led to the further strengthening of the key provisions of Title VII. The key features of this process included the establishment of the US Equal Employment Opportunity Commission and made Title VII applicable to all employers with more than 25 employees. The bill was sent to the Rules Committee the day before President Ph.D (Labour Relations Management) – 95 – Kennedy was assassinated and it was signed into law on 2 July 1964 (www.eeoc.gov/abouteeoc/40th/panel/firstprinciples.html). The legislation which came about as a result of these developments was the first major American civil rights legislation. Specifically Title VII of the legislation dealt with prohibitions of discrimination in employment.

Present legislative and policy framework

The Americans with Disabilities Act of 1990 (ADA) is the pillar of the American disability management strategy. It aims to advance the civil rights for persons with disabilities. “The ADA was the nation’s commitment that its sorrowful legacy of oppression, segregation and inequality in dealing with disability would be overturned by ADA’s ‘clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ in which sweeping protections were provided in employment, public services, public accommodation and services operated by private entities, transportation and telecommunications. The ADA has been the impetus for a revolution in the inclusion, integration and empowerment of Americans with disabilities” (Introductory Paper: The Americans with Disabilities Act of 1990, October 2002). The ADA is comprehensive legislation and aims to legislate on all matters related to persons with disabilities. Other relevant legislation is the Rehabilitation Act of the USA which, as the title suggests, focuses on rehabilitation. Employment of persons with disabilities is a critical aspect of the American disability strategy and as a result is comprehensively dealt with in the ADA. The focus of further discussions will therefore be the ADA.

EVOLVEMENT OF LABOUR LEGISLATION

In 1977, the government appointed the Wiehahn Commission to investigate South Africa’s labour legislation. The Commission recommended the incorporation of specific anti-discrimination principles into South African legislation: “The Commission cannot avoid the conclusion that in due course discrimination in the field of labour on the grounds of race, colour, sex, political opinion, religious belief, national extraction or social origin will have to be outlawed and criminalised in South Africa’s labour dispensation” (The Complete Wiehahn Report (1982) part 5 paragraph 4.127.14, Dupper 2007:9). The transition period between 1979 and 1994 cannot be unequivocally described as a harmonious and co-operative process but, the foundations for greater democracy in the workplace were firmly laid (Kemp 1992:6 as quoted by Ehlers 2002). Until 11 November 1996, the day on which the Labour Relations Act, 108 of 1995 (LRA) came into effect, employers were at liberty to refuse to appoint someone on the basis of, for example, gender, race or trade union membership. Applicants for work enjoyed no protection under the previous Labour Relations Act, 28 of 1956.
This meant that an applicant for work had no legal standing to declare a labour dispute with an employer, even though he or she may have been the victim of unfair discrimination (Dupper 2007:9). The situation for employees (as opposed to applicants for work) was somewhat better. Some legislative provisions specifically permitted discrimination in employment, such as the Wage Act, 5 of 1957, which permitted differentiation between categories of employees on grounds, inter alia, of sex or race and the Industrial Conciliation Act, 28 of 1956, which introduced statutory job reservation, meaning that the Minister of Labour had the authority to reserve any job for Whites. There was no specific legislation or legislative provision which expressly and comprehensively outlawed racial or sexual discrimination in the workplace. The other vulnerable groups, like persons with disabilities, were also not protected by means of legislation (Dupper 2007:9).

THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

Since 27 April 1994, the date the interim Constitution of the Republic of South Africa, 1993 came into operation, equality has assumed a central position in South African law. Section 8, the equality provision of the interim Constitution, contained a guarantee that the law would protect and benefit people equally and it also contained a specific prohibition on unfair discrimination. In addition, it provided for measures designed to achieve the protection and advancement of people disadvantaged by unfair discrimination (Dupper 2007:11). The Constitution, 1996 which replaced the interim Constitution, 1993 and which has been operational since 4 February 1997, retains equality as a fundamental constitutional value in very similar terms to that of the interim Constitution. The preamble of the interim Constitution referred to “…a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races …”. The preamble of the Constitution, 1996 further provides that the Constitution is adopted as the supreme law of the Republic and that it aims to “…establish a society based on democratic values, social justice and fundamental human rights… and every citizen is equally protected by law…”. In addition, section 1(a) of the Constitution, 1996 lists the “…achievement of equality…” as one of South Africa’s foundational values (Dupper 2007:16).

READ Catholic education and the challenges and opportunities of diversity and multicultural education

THE LABOUR RELATIONS ACT, 66 OF 1995.

The LRA, which for the most part became operational on 11 November 1996, contains a number of provisions that specifically prohibit discriminatory treatment of employees and applicants for work. Section 187(1)(f) states that the dismissal of an employee is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, either directly or indirectly, on one or more of a number of non-exhaustive prohibited grounds. However, in terms of subsection (2) the dismissal may be fair if the reason for the dismissal is based on an inherent requirement of the job or if the employee had reached the normal or agreed retirement age for persons employed in that capacity.

THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR

DISCRIMINATION ACT, 4 OF 2000 In order to comply with section 9(4) of the Constitution, 1996 (which places a duty on the state to pass national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality), the PEPUDA was enacted. Although the Act does not apply to “any person” to the extent to which the EEA applies, section 5(3) does have an impact on the employment sphere. Except for the exclusion of those bound by the EEA, PEPUDA binds the state and all persons, and has precedence over any other applicable law except for the Constitution, 1996 (section 5(1) and (2)). PEPUDA covers a wide range of practices, including labour and employment, education, health care services and benefits, housing, insurance services, pensions, provision of goods, services and facilities, clubs, sports and associations (section 29 and Schedule 1).

LIST OF CONTENTS :

APPRECIATION
SUMMARY
LIST OF CONTENTS
LIST OF FIGURES
LIST OF TABLES
ACRONYMS
CHAPTER GENERAL INTRODUCTION
- 1.1. BACKGROUND TO THE RESEARCH
- 1.2 RESEARCH PROBLEM STATEMENT
- 1.3 RESEARCH QUESTIONS
- 1.4 RESEARCH OBJECTIVES
- 1.5 THESIS STATEMENT
- 1.6 DELINEATION
- 1.7 LIMITATIONS
- 1.8 DEFINITION OF TERMS AND CONCEPTS
- 1.9 UNDERLYING ASSUMPTIONS
- 1.10 SIGNIFICANCE OF THE RESEARCH
- 1.11 DISABILITY MANAGEMENT LITERATURE REVIEW RESEARCH FRAMEWORK
- 1.12 CHAPTERS OF THE THESIS
- 1.13 SUMMARY
CHAPTER CONSTRUCTS AND TERMINOLOGY
- 2.1. INTRODUCTION
- 2.2 MOTIVATION FOR THE DISCUSSION OF THE RELEVANT CONSTRUCTS
- 2.3. THE CONSTRUCT: DISABILITY
- 2.4 THE CONSTRUCT: DISABILITY MANAGEMENT
- 2.5 THE CONSTRUCT: LABOUR RELATIONS
- 2.6 THE CONSTRUCT: CONSTRAINTS
- 2.7 VARIOUS HUMAN RESOURCE MANAGEMENT PRACTICES
- 2.8 THE CONSTRUCT: DISABILITY MANAGEMENT STRATEGY
- 2.9 PREFERRED DISABILITY MANAGEMENT TERMINOLOGY
- 2.10 SUMMARY
CHAPTER DISABILITY IN THE CONTEXT OF EMPLOYMENT
- 3.1 INTRODUCTION
- 3.2 DIFFERENT APPROACHES TO DISABILITY MANAGEMENT
- 3.2.1 MEDICAL MODEL
- 3.2.2 SOCIAL MODEL
- 3.2.3 THE SOUTH AFRICAN MODEL
- 3.3 SUMMARY
CHAPTER INTERNATIONAL DISABILITY MANAGEMENT POLICY FRAMEWORK
- 4.1 INTRODUCTION
- 4.2 SOCIAL SECURITY
- 4.2.1 DEVELOPMENT OF THE EARLY WELFARE SYSTEMS
- 4.2.2 THE DIFFERENT STRANDS OF SOCIAL SECURITY
- 4.3 THE CONTRIBUTION OF THE INTERNATIONAL LABOUR ORGANISATION TO DISABILITY MANAGEMENT
- 4.4 THE CONTRIBUTION OF THE UNITED NATIONS TO DISABILITY MANAGEMENT
- 4.5 SELECTED EXAMPLES (COUNTRIES) OF INTERNATIONAL DISABILITY MANAGEMENT
- 4.5.1 REASONS FOR SELECTING CERTAIN COUNTRIES
- 4.5.2 DISABILITY MANAGEMENT IN THE UNITED STATES OF AMERICA
- 4.5.3 DISABILITY MANAGEMENT IN THE UNITED KINGDOM
- 4.6 SUMMARY
CHAPTER SOUTH AFRICAN DISABILITY POLICY FRAMEWORK
- 5.1 INTRODUCTION
- 5.2 EVOLVEMENT OF LABOUR LEGISLATION
- 5.3 THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
- 5.4 THE LABOUR RELATIONS ACT, 66 OF
- 5.5 THE EMPLOYMENT EQUITY ACT, 55 OF
- 5.6 THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT, 4 OF
- 5.7 CODE OF GOOD PRACTICE: KEY ASPECTS ON THE EMPLOYMENT OF PERSONS WITH DISABILITIES IN THE WORKPLACE
- 5.8 THE SOUTH AFRICAN INTEGRATED NATIONAL DISABILITY STRATEGY
- 5.9 THE TECHNICAL ASSISTANCE GUIDELINES ON THE EMPLOYMENT OF PERSONS WITH DISABILITIES
- 5.10 CODE OF GOOD PRACTICE: INTEGRATION OF EMPLOYMENT EQUITY INTO HUMAN RESOURCE POLICIES AND PRACTICES
- 5.11 THE SMALL, MEDIUM AND MICRO ENTERPRISE WHITE PAPER
- 5.12 NATIONAL BUILDING REGULATIONS
- 5.13 IMPLEMENTATION STRUCTURES
- 5.14 DISCUSSION OF THE SOUTH AFRICAN DISABILITY MANAGEMENT FRAMEWORK
- 5.15 SUMMARY
CHAPTER PREVALENCE OF PERSONS WITH DISABILITIES IN SOUTH AFRICA
- 6.1 INTRODUCTION
- 6.2 STATISTICAL STUDIES AND TRENDS IDENTIFIED PREVIOUSLY
- 6.3 PREVALENCE AT NATIONAL LEVEL
- 6.4 PREVALENCE OF PERSONS WITH DISABILITIES BY GENDER AND POPULATION GROUP
- 6.5 PREVALENCE BY PROVINCE
- 6.6 PREVALENCE BY GENDER AND AGE
- 6.7 PREVALENCE BY LEVEL OF EDUCATION
- 6.8 PREVALENCE BY TYPE OF DISABILITY
- 6.9 EMPLOYMENT OF PERSONS WITH DISABILITIES
- 6.10 SUMMARY
CHAPTER CONSTRAINTS IN THE EFFECTIVE EMPLOYMENT OF PERSONS WITH DISABILITIES
- 7.1 INTRODUCTION
- 7.2 DESCRIBING CONSTRAINTS
- 7.3 COMPLEXITY OF DISABILITY MANAGEMENT AS A FIELD OF RESEARCH
- 7.4 COMPLEX DEFINITION OF DISABILITY
- 7.5 COMPLEX LEGAL AND POLICY FRAMEWORK
- 7.6 NEGATIVE PERCEPTIONS CONCERNING PERSONS WITH DISABILITIES
- 7.7 ABSENCE OF RELEVANT DISABILITY MANAGEMENT POLICY AND CAPACITY IN ORGANISATIONS
- 7.8 HUMAN RESOURCE MANAGEMENT PRACTICES CONSTRAINING THE EMPLOYMENT OF PERSONS WITH DISABILITIES
- 7.9 THE CONSTRAINTS DERIVED FROM THE UN CONVENTION
- 7.10 REASONS FOR PRIORITISING DISABILITY MANAGEMENT BY EMPLOYERS
- 7.11 SUMMARY
CHAPTER RESEARCH DESIGN AND METHODOLOGY
- 8.1 INTRODUCTION
- 8.2 RESEARCH DESIGN
- 8.3 PARADIGMATIC ASSUMPTIONS AND PERSPECTIVES
- 8.4 DISCUSSION OF THE DIFFERENT DESIGN APPROACHES AND THE DESIGN APPROACH SELECTED FOR THIS STUDY
- 8.5 RESEARCH METHOD
- 8.5.1 DEVELOPMENT OF THE QUESTIONNAIRE
- 8.5.2 RELIABILITY AND VALIDITY OF THE QUESTIONNAIRE
- 8.5.3 POPULATION AND SAMPLING
- 8.5.4 DATA COLLECTION
- 8.5.5 CHARACTERISTICS OF THE SAMPLE
- 8.5.6 DATA PROCESSING AND ANALYSIS
- 8.6 ETHICAL CONSIDERATIONS
- 8.7 SUMMARY
CHAPTER RESEARCH FINDINGS AND DISCUSSION
- 9.1 INTRODUCTION
- 9.2 PRESENTATION OF THE RESEARCH FINDINGS
- 9.2.1 SECTION 2: DEFINING DISABILITY QUESTIONS 11 TO
- 9.2.2 SECTION 3: USEFULNESS OF THE SOUTH AFRICAN LEGAL AND POLICY FRAMEWORK QUESTIONS 15 AND
- 9.2.3 SECTION 4: GENERAL PERCEPTIONS QUESTIONS 17 TO
- 9.2.4 SECTION 5: AVAILABILITY OF DISABILITY MANAGEMENT POLICY, CAPACITY AND COMMITMENT OF KEY ROLEPLAYERS IN RESPONDENTS’ ORGANISATION QUESTIONS 28 –
- 9.2.5 SECTION 6: PREVALENCE OF EMPLOYEES WITH DISABILITIES QUESTIONS 36 TO
- 9.2.6 SECTION 7: HUMAN RESOURCE MANAGEMENT PRACTICES
- 9.2.7 SECTION 8: REASONABLE ACCOMMODATION – QUESTIONS 69 TO
- 9.2.8 SECTION 9: GENERAL QUESTION
- 9.3 SUMMARY
CHAPTER CONCLUSIONS, HUMAN RESOURCE MANAGEMENT STRATEGY, REFLECTION AND RECOMMENDATIONS
- 10.1 INTRODUCTION
- 10.2 CONCLUSIONS AND STRATEGY TO RESOLVE THE CONSTRAINTS PREVENTING THE EMPLOYMENT OF PERSONS WITH DISABILITIES
- 10.3 REFLECTION AND RECOMMENDATIONS
- BIBLIOGRAPHY