Originally published here.
The United Nations Convention on the Rights of Persons with Disabilities(UNCRPD) dates back to 2006.
Since its adoption, the UNCRPD has triggeredthe amendment of previous laws in the field of discrimination and employmentof disabled people in many countries with important changes occurring incountries with different legal traditions such as, for example, Italy, Japan orNew Zealand.The UNCRP has also been ratified by the European Union (EU) and by eachof the member States most of which already had specific laws regulating at leastsome of the issues that the UNCRPD takes into consideration while the EU itselfhad already set directives against discrimination as one of its historical pillars.
The UNCRPD is a major step forward in the transition from the conceptionof disability as a natural condition of physical or psychological impairment to arelational concept, resulting from the interaction between persons with impairments and attitudinal and environmental barriers.This new conception of disabilities has probably been the most difficultdirective to implement for national legislators because it affects the legal definitionof disabilities in each legal system.
Indeed, those definitions commonly developedin continuity with those included in previous legislation that often dates back tothe First World War or even further back in time when disability was considered amatter of charity or assistance and, as such, as a financial burden on the State.Scholars have identified two different policies in the field of employmentfor disabled persons, namely the ‘equality of opportunity approach’ which is based on the recognition of civil rights for disabled people considered as a politicalminority and the ‘employment quota approach’ which considers the disabledperson only as a welfare recipient. This distinction reflects the difference betweenthe social model and the medical model of disability with the second modelreinforcing the ‘separate treatment’ doctrine.
The USA and Japan have long been considered as typical examples of thosetwo ends of the spectrum of employment protections for the disabled.I argue that this description of the different models which scholars haveadopted is too categorical and is indeed difficult to reconcile with both theEuropean model and that of Japan which has been profoundly reformed byrecent amendments to the Act on Employment Promotion of Persons withDisabilities (AEPPD) in 2013 inspired by the UNCRPD.
Indeed, on the one hand, one of the issues with a quota system is that itcommonly requires a clear-cut definition of disability in order to specify thetarget of the placement system explicitly, and this often results in the persistenceof forms of ‘certification’ of disability released by medical commissions orcommittees of experts.
As a result, also the idea of a disability based on a medical statement tendsto endure.However, on the other hand, all the European countries that first introducedthe quota system after the First World War (for example Italy, France or Germany) coupled it with antidiscrimination provisions at a later stage so that the formeris nowadays framed as a positive action aiming at boosting the participation ofdisabled persons in society and the labor market.In other words, the quota system is a useful tool to rebalance the lack ofopportunity that disabled people often have to face in the labor market, givingthem a real chance to gain a more equal position in the society.Moreover, a proper assessment of any legal framework also depends on the way the reasonable accommodation duty has been embedded and on what itsfunction in it is. Indeed this duty plays a key role in the completion of the shiftfrom the medical to the social approach to disability.
The comparison between Italy and Japan is of interest because the keyelements of the most recent amendments introduced in the latter country, suchas a broader definition of persons with disabilities under the law, the introductionof the prohibition of discrimination against persons with disabilities and theobligation to provide reasonable accommodation brought the Japan system muchcloser to a third group of mainly European countries which had already mergedthe quota system with dispositions against discrimination.
The regulations of the two countries under scrutiny will be presented startingfrom the interpretation of the Constitutional provisions which enable the legislationon this subject. Some information about other dispositions more broadly relatedto disabled persons will be furnished although the focus will be on the anti-discrimination law at the workplace as well as on the mechanism of employmentfor disabled persons (the quota system).
In the case of Japan, some clarifications related to the Japanese labor lawpeculiarities will be underlined to explain better the rationale underpinning certainprovisions which might not be readily intelligible without such elucidations.
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