Disability rights going Dutch
By Agnes van Wijnen (acvanwijnen@planet.nl)
Acknowledging developments in numerous countries worldwide and in the European Union, the Netherlands is finally following suit and coming close to having the first equal treatment law being passed in the Senate. When this happens it will be a historical moment for people with disabilities in the Netherlands, even though the scope of the law is still quite narrow. Contrary to the expectation that most people seem to have, the Netherlands is literally a developing country when it comes to non-discrimination legislation for people with disabilities or chronic illness. Notwithstanding a ten year lobbying effort, the Netherlands until this very moment has no legislation in force that prohibits discrimination and exclusion of people with a disability or chronic illness.
Accounts of discrimination
This doesn't mean that such legislation is not needed, on the contrary. Numerous accounts of exclusion and discrimination have been reported by Dutch persons with disability. Information from local or national governments for instance is reportedly often not available in diverse formats. Many disabled people have a problem fulfilling their basic civil right to vote since voting premises and machines are unfit for use. People with a past or present of psychiatric treatment have reported exclusion from jobs, or not being taken seriously by their family doctor when they have physical problems.
Medical centers and mobile research labs for early detection of breastcancer have been reported inaccessible for women in wheelchairs, including the instruments used. People with intellectual disabilities who want to live outside an institution in the community face great problems in finding a general practitioner who wants to take them on as a patient. Restaurants and discos refuse on a regular basis various people with disabilities as customers, as do travel agencies and lots of shops. Public space is often reported to be inaccessible or even dangerous throughout the country.
Public transport is time and again reported to be inaccessible and transport companies are still buying inaccessible material. Violent verbal or physical reactions have been reported when disabled persons complain about unequal treatment or refused offered help. The list is endless.
These experiences are supported by official research that reports that disabled persons participate less in public and social life. Their access to care, education, work and public transport is limited. The employment rates among people with disabilities are 38%, compared to 61% among people without disabilities. Public buildings are often highly inaccessible just as mainstream education is. The poverty rate among disabled people is much higher than among people without a disability. The official report also painfully notes that the last 10 years haven't shown much change for the better...
Equal Treatment Law on Disability
Clearly, this situation demonstrates that information and consideration about equal opportunities and design for all -however important in itself - provide insufficient instruments for changing the daily realities of people with disabilities. It is evident that we need another, complementary instrument. We now understand that we need non-discrimination legislation to make sure equal opportunities become a reality.
The deep rooted idea that good care is all people with disabilities need, combined with the impression of Dutch society at large that this population is very well taken care of in the Netherlands, makes change towards a rights perspective a very long road to travel. That the Dutch government has not yet put its heart into equal treatment legislation is evident from the fact that the actual range of the current proposal is very limited. One conclusion that may be drawn from this narrow approach is that the rights perspective hasn't really settled in the hearts and minds of the members of the government yet. The disability movement as a whole, and its lobbyists in particular can and should be concerned by this.
Contents
The draft law covers three fields:
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Employment
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Professional Education
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Public Transport
Definition of disability
Definition of disability; The law, once put into force, protects people from discrimination on the grounds of disability or chronic illness. As such it protects both people with or without disabilities since both can face discrimination on this ground. It equally protects people with a history of disability, people who may have a disability in the future and people who are regarded as having a disability. Furthermore you will find no definition of disability or chronic illness in the law. Trying to learn from the experiences with the Americans with Disabilities Act and the since ongoing struggle in court about the definition of disability, we hope to be better off without one.
Scope of discrimination
Discrimination; The law covers direct and indirect discrimination. Harassment is not covered at the moment but will be added shortly. Discrimination also includes the obligation to provide "where needed in a particular case" an effective accommodation in the areas mentioned. An effective accommodation can be both material and immaterial. To assess whether a requested accommodation is also obligatory under the law, two questions are raised:
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Is the requested accommodation effective, does it solve the problem?
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Is the accommodation necessary to provide equal opportunities?
Effective Accommodation
Contrary to the Americans with Disabilities Act (ADA) and the EU Directive, the Dutch law uses the term "effective accommodation" instead of "reasonable accommodation". In determining what an effective accommodation is, the evaluation of when it amounts to a disproportionate burden to the one who is obliged to make the accommodation is central. Factors such as the following are to be taken into account in this assessment according to the law:
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Size of the company or organisation (number of people employed)
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Volume of necessary investment to realise the accommodation
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Availability of subsidies or other financial support
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Operational and technical feasibility of the accommodation
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Financial capacity of the company or organisation
Employment
Employment; the field of employment is comprehensive, comprising the hiring process from the advertisement of a job to the selection procedures. Included are training and education, salary and other rewards and promotion opportunities, all aspects of access, working hours and work procedures.
Professional Education
Professional Education; the field of professional education includes access to education and career orientation and guidance. This means access to the premises, building and facilities, education material and activities. It also includes access in all aspects of examination procedures.
The weakness of this article and the one on employment is that the responsibility for the initiative to make practical changes in the area of accessibility lies first of all with the individual who needs the accommodation. For instance employers are in principle only required to make effective accommodations after being asked to do so.
Public Transport
Discrimination is prohibited in public transport by bus, tram, metro and train. The transport by bus has to be completely accessible by 2010, transport by train by 2030. Included are access to buildings and all facilities belonging to stations, platforms, and related sites such as ticket machines and service counters. Furthermore all travel information in transport systems and on stations and platforms has to be accessible. Contrary to the fields of employment and professional education the article on public transport presents a general obligation. Providers of transport are responsible for the necessary adjustments; improvements are not dependent on the demands of individual users concerning accessibility of the system.
Reluctance, the dominant Dutch costs perspective
As a member state of the European Community the Dutch government was confronted with the obligation to enact legislation to prohibit discrimination towards people with disabilities in the field of employment and professional education. This obligation follows from Directive 2000/78/EG, passed on November 27, 2000. The directive thus provided the badly needed pressure for the legislative process. Without the Directive, Dutch people with disabilities would probably still be left empty handed.
The area of Public Transport was added to the draft during the debates in the Second Chamber of Parliament where a majority of the members responded positively to our "Rights Now!" Campaign for expanding the range of the draft law. But other fields crucial for living and participating in the community directed by one's own choice were left out. This limitation was motivated by the government with concerns about and the need for further research on effects and costs of non-discrimination legislation in these areas. Benefits are likely to be less observed and taken less seriously.
Investing in a society for all and design for all that fits throughout a lifespan and the long-term benefits for everybody that such policy will generate was obviously not the perspective from which our current government was operating. The focus was more on short-term costs than improving the quality of our society at large. While investment in measures for the sake of safety and the environment have become widely supported, investments in design for all are still seen as beneficiary only to people with disabilities. And that interest in itself seems to have presented a less than good enough motivation to develop comprehensive Equal treatment legislation. Recently we had elections for Parliament, the outcome of which is that the Social and Christian democrats are likely to be in charge together for the next few years. Let's make them put their money where their mouth is!!
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