Showing posts with label reasonable accommodation. Show all posts
Showing posts with label reasonable accommodation. Show all posts

Tuesday, August 2, 2022

Triputa HC: Employer's Failure To Meet Needs Of Disabled Persons Breaches Norms of "Reasonable Accommodation" [Judgement included]

Court: Tripura High Court, Agartala, India

Bench/Judge: Hon'ble Mr. Justice Arindam Lodh

Case Title:   WP(C) 694 of 2020 | Sri Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corporation Limited (TSECL) and Ors.

Date of Judgement:  01 Aug 2022

Cases Referred/quoted : Vikash Kumar Vrs. Union Pulbic Service Commission & Ors., (2021) 5 SCC 370. 

The case in brief

The petitioner was an employee of Tripura State Electricity Corporation Limited. During the course of performing his duties, he met with an accident which rendered him disabled. He was not paid salary by the Corporation because he could not perform the duties he owed to the Corporation as their employee, though he was willing to join and perform duties which would be commensurate with his disability.

The Tripura High Court observed that employers must "reasonably accommodate" persons with disabiliteis into service and that failure to do so violates their rights under  The Rights of Persons with Disabilities Act, 2016.

The Court also refered to Secction 47 of the Persons with Disabilties  Act 1995 (now repealed) and a DoPT Memorandum dated 25 Feb 2015 on subject "Amendment to Central Civil Service (Leave) Rules, 1972 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995)- regarding" and  expressed that the aforesaid memorandum dated 25th February, 2015 was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

It is pertinent to note that the protections available under Secction 47 of the PWD Act 1995 have been contined in Section 20(4) of the RPWD Act 2016 as below:

"20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."

The single bench presided by Mr. Justice Arindam Lodh in his order remarked,  "The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation."

It is the case of the petitioner that while the petitioner was discharging his duties he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It is the contention of the respondents that the salary of the petitioner was duly paid upto 16.03.2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. From the report of the Standing Medical Board, it is clear that the petitioner was not in a position to perform his official and field level activities which may work out throughout the State. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

Court noted that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person. He expressed his willingness to join his duties by submitting an application to the authority concerned. But it was refused on the pretext that the petitioner was not physically appeared before the concerned authority which is not at all expected. The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve.

Keeping in view the above objective, the court directed the respondents to "reasonably accommodate" the petitioner and passed the folloiwng order:

"(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;
(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made here-inabove;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7 (seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again."

What is missed in this judgement.

The judgement though extends relief to the petitioner, it  adopts some very poor legal reasoning for the relief provided.

Firstly, the judgement fails to appropriately explain the “reasonable accommodation” & its relation to the employment rules. In fact there was no reference needed to be made with reasonable accommodation since the law is clear on the protections available under the Act to a person acquirng disability while in service. It ensures that such a person will not be discriminated against merely because of the disabilty acquired and his job, post and related benefits would be protected even when the person is unable to perform any functions. 

Secondly, it presents that the barriers faced by disabled persons arise from their medical condition of disability, rather than the disabling environment around them which mmay be inform of inaccessible built environment, discriminatory employment policies and practices.

Thus the thought processs and the reasoning given in the judgemement doesn't gel with the overal scheme of the RPWD Act and jurisprudence developed through various case laws since 1996.

Read the judgement embedded below:

Tuesday, July 26, 2022

Degree of disability no ground to deny reasonable accommodation : Supreme Court of India [Judgement Included]

Court: Supreme Court of India

Bench:   Justice Dr Dhananjaya Y Chandrachud ; Justice Indira Banerjee and Justice Sanjiv Khanna

Case Number & Title: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.

Date of Judgement: 11 February 2021

Cases refered/quotedJeeja Ghosh vs. Union of India (2016)  7 SCC 761V Surendra Mohan vs. State of Tamil Nadu;  Rajive Raturi v. Union of India and Ors., 2017 ; Disabled Rights Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.

Case Brief:

On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). 

The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).

Case details:

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. 

The Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India…A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”

The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … the accommodation which the law mandates is ‘reasonable’ because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence…”

In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.

The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.

The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 

In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.

The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution

The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 

The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.

The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.

Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.

Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.

Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.

Thursday, October 31, 2013

Denying the disabled

Indian courts have shown that they are ready for progressive interpretations of the law on the rights of persons with disabilities. Therefore, any new law that aims to replace the Persons with Disabilities Act, 1995, needs to be a significant improvement on it. By JAYNA KOTHARI

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment. For any marginalised group, including persons with disabilities, equality in employment is a benchmark for full participation in society.

In Union of India vs National Federation for the Blind and Others, the Supreme Court passed on October 8 a landmark judgment in this battle on reservation of jobs for persons with disabilities. The PWD Act, though a restricted statute mainly concerned with providing reservation in jobs and seats in public employment and education, has slowly been nudged by courts, lawyers and disability rights activists to become far more progressive than was ever imagined. Section 33 of the Act states that “every appropriate government shall appoint in every establishment such percentage of vacancies not less than 3 per cent for persons or class of persons with disability...”. Section 32 requires the appropriate government to identify jobs for persons with disability and review the list of identified jobs every three years.

In spite of Section 32, the reality on the ground since 1996 has been that hardly any jobs were identified by the governments as suitable for persons with disabilities. A 2009 World Bank report, titled “People with Disabilities in India: From Commitment to Outcomes”, found that only 10.2 per cent of the posts in all Ministries/departments and public establishments had been identified as suitable for persons with disabilities. The situation in 2013 is not very different. In a 2010 judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr, the Supreme Court held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities.

In the National Federation for the Blind case, the core question was whether the 3 per cent reservation should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts. Cadre strength refers to the total number of posts in the cadre. At present, if at all reservation for and appointment of persons with disabilities are made, it is only on the basis of the vacancies that arise in “identified” jobs, which are far fewer than the total number of posts in the cadre. The Supreme Court held that from a bare reading of Section 33 it was clear that the intention of the legislature was that the 3 per cent reservation was computed on the basis of total vacancies in the cadre strength. This interpretation is significant as it will lead to an unprecedented increase in the number of appointments in State and Central government jobs for persons with disabilities.

One of the most interesting observations of the court in this judgment pertains to reservation in the private sector. Section 41 of the Act states that incentives should be given to public and private establishments so that they provide 5 per cent reservation for persons with disabilities. The Supreme Court held that “on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector”.

This expansive observation of the court has gone unnoticed amid the excitement over its statement on reservation based on the cadre strength. This opens up new avenues for implementing reservation for persons with disabilities in the private sector as well. This opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which stated that the definition of “establishments” under the PWD Act did not include private companies. Now, however, the full Bench of Justice P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by observing that the intention of the legislature was to ensure reservation of posts for persons with disabilities not only in the public sector but in the private sector as well.

Draft Bill, 2012 
This judgment comes at the right time as the Draft Rights of Persons with Disabilities Bill, 2012, is pending consideration. The Supreme Court even relied on the Bill for its reasoning. However, with regard to equality in employment rights for persons with disabilities, the Bill does little to improve upon the provisions of the PWD Act and does not include the exciting new possibilities that the Supreme Court judgment promises. It does not mandate reservation of jobs in the private sector at all for persons with disabilities although this was clearly included in the draft of 2011. Unless the private sector is mandated to reserve jobs for persons with disabilities, it is unlikely that their conditions of employment in the country will change significantly. If one were to review any significant disability rights legislation in other jurisdictions, one would notice that all of them contain employment obligations for the private sector as well.

This has become even more urgent now as India has ratified the United Nations Convention on the Rights of Persons with Disabilities. Perhaps, the Supreme Court decision will prompt a revision of the relevant provisions in the Draft Bill. The Draft Bill also needs to address the problematic requirement of “identification of jobs”, which has been reproduced from the PWD Act. Identification of jobs is a concept that is considered outdated by disability rights activists the world over because it has a history of segregating persons with disabilities into the most menial jobs available, making it difficult for them to apply for other jobs. In the last century, the strategy of identifying particular professions for persons with disabilities was practised in the United Kingdom. But, as Anna Lawson, professor at Leeds University and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing, 2008), points out, the occupations that were selected were of low status such as car park attendants and lift operators. In associating disabled people with such jobs, there is the danger of creating or reinforcing negative stereotypes about them and their abilities.

For example, in India, the stereotypical jobs reserved for the blind and persons with low vision are those of music teacher and telephone operator. These difficulties were recognised in the U.K. as early as 1956 by the Piercy Committee in its report of the Committee on the Rehabilitation, Training and Resettlement of Disabled Persons, and although initially the disabled community supported the strategy of identifying certain jobs for its members, such schemes were finally abolished.

In India, the battle for reservation of jobs has often been stalled by the government’s not identifying posts as suitable for persons with disabilities. Such identification is often restrictive and arbitrary; for example, in Group A, the job of an agricultural scientist specialised in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability but not for someone with a hearing disability. There is also a great variance between the Central government and different State governments on what posts are suitable for persons with disabilities, and this has led to intense litigation.

As the World Bank report says, the list of identified jobs is based on the assumption that the characteristics of impairment are the exclusive determinants of an individual’s ability to hold a position at a particular skill level and such identification ignores the potential influences of individual characteristics (motivation, age at disability onset), the person’s access to employment services, and the characteristics of the workplace and labour market. Even though there is a statutory obligation to identify posts, what posts are identified is left to the discretion of the government, which decides on the basis of the nature of the posts and its requirement. The government often conveniently denies people with disabilities jobs by not identifying enough posts in each department for them. Thus, the whole concept of identification of posts is problematic. The Supreme Court recognised this in its recent judgment, saying: “[E]xperience has shown that identification has never been uniform between the Centre and States and even between the departments of any government. For example, while a post of middle schoolteacher has been notified as identified as suitable for the blind and low vision by the Central government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc.”

Reasonable accommodation 
Unfortunately, the requirement of identification of jobs is retained in the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced, with the only difference being an increase in the reservation from 3 per cent to 5 per cent. If this requirement is removed from the Bill, this, coupled with the obligation the Bill places on the employer to provide “reasonable accommodation”, every job could potentially be suitable for persons with disabilities. The concept of reasonable accommodation, or adjustment, lies at the heart of civil rights advancement in the context of disability. Its significance is that it is a way of accommodating difference. A 2004 baseline study by the European Union Network of Independent Experts of Disability Discrimination, titled “Disability Discrimination Law in the E.U. Member States”, noted: “The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case.”

Essentially, the concept stems from a realisation that the achievement of equal treatment can only become a reality when some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. In employment, it is the duty of the employer to make reasonable accommodations to any physical features of the premises or to the duties of the job which would place disabled persons at a substantial disadvantage in comparison with those who are not disabled. As stated in the E.U. report, reasonable accommodation as provided in other legislations could include adjustments to premises; reallocation of duties; redeployment to an existing vacancy; alteration of working hours; reassignment to a different place of work; allowing absence for rehabilitation; assessment or treatment; training; acquisition of equipment; modification of equipment, instructions, reference manuals and testing or assessment procedures; and provision of a reader, interpreter or supervision. Thus, the need to identify jobs would not arise at all as every job could be done by a person with a disability. With India ratifying the U.N. Disabilities Convention, the concept of reasonable accommodation has not only been brought under the Draft Bill, but also recognised by the Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.

Finally, only token improvements to the PWD Act have been made in the Bill. Instead of the seven disabilities stated in the PWD Act, the Bill provides for 5 per cent reservation of jobs for persons with “benchmark disabilities”, which means those found with 40 per cent or more of the specified 18 disabilities. However, the provisions for reservation of jobs only mentions that out of the 5 per cent of jobs, with 1 per cent each being reserved for persons with blindness and low vision, hearing impairment, locomotor disability, autism and intellectual disability, and mental illness. These provisions do not adhere to the progressive social model of disability, which does not view disability as a medical impairment (with 40 per cent or more of a certain characteristics) but as a form of discrimination due to social and environmental barriers. If these medical models of understanding disability are reproduced in the new law, one can hardly say that the Bill is in conformity with the U.N. convention, which was supposed to be the basis for the whole drafting exercise.

The Supreme Court decision signals that Indian courts are ready for progressive interpretations of the law on the rights of persons with disabilities. These interpretations have breathed life into the PWD Act and transformed it from a limiting statute into a legislation that has been successful in changing the lives of persons with disabilities, at least in the field of public employment. This judgment bears in it the seeds for further reform. This requires a serious reconsideration of the Draft Bill, which needs to take all these concerns into account. The disability rights movement has worked hard for the last 17 years to make the PWD Act what it is today, and any new legislation that replaces it needs to make a significant improvement to it.

Jayna Kothari is an advocate practising in the Karnataka High Court and a director of the Centre for Law and Policy Research. She is the author of The Future of Disability Law in India and can be contacted at

Tuesday, August 27, 2013

Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.

Thursday, September 6, 2012

Delhi High Court directs Private Schools to appoint 2 special educators

Dear colleagues,

Division Bench of the Delhi High Court has directed private schools to appoint two special educators to respect the mandate of the RTE Act. The court had already directed the Govt. of Delhi to appoint 2 Special educators in all government schools. This is a welcome step and calls for drastic changes in the way we look at education of children with disabilities.

Here is the news report from the Time of India.

'Special educators must in private schools’
Abhinav Garg, TOI

NEW DELHI: Disabled students enrolled in private schools received a unique gift from the Delhi high court on Teachers' Day - special educators.

A division bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed all private unaided schools in the capital to hire two qualified special educators as per the mandate of the Right to Education Act (RTE).

The bench made it clear that special educators are required not just in government-run or aided schools but should also in private schools as they too enroll disabled students with special needs. HC was hearing a plea by civil rights organization Social Jurist which sought to extend appointment of special educators to private schools.

The court has already directed the government schools to appoint special educators for disabled children in 2009. It re-iterated the ruling earlier this year while hearing a contempt plea against the government for its failure to fill up vacancies for special educators.

The PIL, filed through advocate Ashok Agarwal, highlighted that 2039 unaided private schools and 258 aided schools lack basic physical and academic infrastructure, including special educators for those suffering from blindness, hearing impairment or mental retardation. "The failure on the part of these unaided and aided schools to have these facilities in place violates the fundamental and human right to education of the children with disabilities as guaranteed to them by the Constitution, RTE Act (2009) and UN Convention on the Rights of the Persons with Disabilities (2008)," the PIL had argued.

On its part, the state government agreed with the need to have special educators and said all the unaided private schools of Delhi are required to make provisions for special educators for children with special needs. Earlier HC had directed the action committee of unaided private schools to file affidavit explaining about their position on recruitment of special educators, availability of provisions of ramps and special toilets etc. for the children with disabilities.

Source: Times of India

Wednesday, October 12, 2011

We need sensitized and qualified Disability Commissioners in States

Dear colleagues,

The recent case of Ms. Nilima Surve (a visually impaired employee) is an example of how departments can label an employee with disability as "incompetent" and remove him/her from job on such grounds for no fault of his/her. The actual reason being the refusal of employer to provide reasonable accommodation to the employee with disabilities and refusal to accept the technological advances in the work environment. 

Ms. Surve was appointed as a Junior Clerk-cum-typist in Chetana's Hazarimal Somani College of Commerce at Bandra (E), Maharastra in November 2006, and was dismissed from service in March 2007 on the grounds that her work was unsatisfactory and there were typing errors in her work. The employee asked for screen reading software in the computer so that she could do the job effectively. The college, however, not only refused to provide the software but even refused to allow her to organize one on her own! 

The matter was taken up with the Court of Commissioner -Disabilities who mentioned the need of software and technology to avoid typing errors in future but did not bind the employer to provide one for the employee and remarked, "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software." while upholding the  termination of the employee vide its order dated 30 October 2010 ! 

Left with no option after such an insensitive order from the Commissioner disabilities, Ms. Surve then approached Mumbai High Court through a writ petition challenging the impugned order.  The bench on 10th October 2011 giving relief to Ms. Surve directed the State Government to make an exception and provide her with the devices, including gadgets and software to enhance her performance.

The root cause of the problem

(A) Incompetent and Unqualified Persons appointed as Commissioners-Disabilities

This is important to stress here that the Commissioner for Persons with Disabilities are appointed under sub-section (1) of section 60the Persons with Disabilities Act 1995; which is reproduced below for the benefit of readers:

Extract from the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 -

"60. Appointment of Commissioners for persons with disabilities.- (1) Every State Government may, by notification appoint a Commissioner for persons with disabilities for the purpose of this Act.
(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension,
gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the
State Government.
(4) The State Government shall determine the nature and categories of officers and other employees required to assist the Commissioner in the discharge of his functions and provide the Commissioner with such officers and other employees as it thinks fit.
(5) The officers and employees provided to the Commissioner shall discharge their functions under the general superintendence of the Commissioner.
(6) The salaries and allowances and other conditions of service of officers and employees provided to the Commissioner shall be such as may be prescribed by the State Government.

61.Powers of the Commissioner.- The Commissioner within the State shall-
(a) coordinate with the departments of the State Government for the programmes and schemes for the
benefit of persons with disabilities;
(b) monitor the utilisation of funds disbursed by the State Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities;
(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner."

However, the State Governments rarely bother to implement section 60 (2) in right spirit which mandates that  a person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.  Mostly the civil servants of the state are appointed or given extra charge of Commissioner- Disabilities. These officers are expected to be custodians of the legal duty to safeguard the rights and interests of the persons with disabilities. Since they have no special knowledge or interest in respect of matters related to the rehabilitation of persons with disabilities, they are bound to commit such blunders and display such apathy and negative attitudes. 

As legal practitioner, I have often seen that the work of the State Commissioner Disabilities is delegated to District Magistrates/District Commissioners in the districts as an additional charge. Therefore, there is no check whether the appointed officer is aware about disability rehabilitation issues. The whole system gets apathetic because often they have no time, knowledge, sensitization or interest to do justice to the additional duty!

(B) Lack of clearly written instructions for employers

Second lesson is lack of information and instructions to the recruiting/employing departments about the rights of the employees with disabilities at workplace. They don't seem to be aware that providing software, barrier free environment, assistive aids and devices that provide a level playing field are to be provided at the cost of the Government! 

Section 42 of The persons with Disabilities Act 1995 clearly provides as below: 

"42. Aids and appliances to persons with disabilities.- The appropriate Governments shall by notification make schemes to provide aids and appliances to persons with disabilities."

Similarly Section 48 of the Act provides that the appropriate government and local authorities shall promote and sponsor research, inter alia, in the following areas:

(a) prevention of disability;
(b) rehabilitation including community based rehabilitation;
(c) development of assistive devices including their psycho-social aspects;
(d) job identification;
(e) on site modifications in offices and factories

The UN Convention on the Rights of Persons with Disabilities that India is signatory to has defined "Reasonable accommodation" as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

Article 27, UNCRPD -"Work and Employment" mandates the states to ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

And making provisions for a level playing field would be covered within the meaning of Reasonable Accommodation.

The general trend

The right to technology and assistive aids and devices for a level playing field, in other words "reasonable accommodation" at work places is increasingly gaining center-stage with a humongous number of persons with disabilities claiming their right to employment.   There is a 3% minimum reservation for the persons with disabilities in India in the government sector and as per law, those selected on their own merit by contesting against the general list can not be adjusted against the reserved quota of jobs. This means a large number might find a good career in the Govt. jobs.

However, the employers - both in government and private  sector are not aware and sometimes even when aware are reluctant to provide the necessary level playing field (read reasonable accommodation) to the workers with disabilities. I know of several blind employees in the banks who were employed as Clerks, Stenos etc however, continue to sit idle since the banks have moved to computerization and there is hardly any job assigned to them. The banks have not updated themselves with the required technology to put the services of the visually impaired employees to use. The employees feel redundant and the department feels the employee is good for nothing! Since these banks are run by government they can not turn them away, but such situation is neither in the interest of employees nor the bank. This also sets a wrong precedent in the eyes of the senior management in banks about the utility of  new employees with disabilities who might fill the reserved vacancies in future.

The road ahead

The lessons from these cases only give us strong reminders that the State implement the Disabilities Act properly and stop the lip service. It is an ideal opportunity that instead of civil servants and government officers, the states recruit qualified persons with knowledge and experience of disability rehabilitation for the posts of Commissioner or District Commissioner/Additional Commissioner under the Disabilities Act and immediately put a stop to the current practice of appointing unqualified officers.

Secondly it is high time that the Government issues clear, unambiguous instructions /notification highlighting the equipment /softwares / devices etc required for each disability for each post besides a barrier free environment based on Universal design in each office/workplace.

Similar notifications must be issued/adopted by States to ensure that the Persons with Disabilities do not face such hostile environment and get a level playing field/reasonable accommodation so as to contribute to their maximum for the growth of their career and the development of nation.

Here are few links to the news coverage of Ms. Surve's case.

Subhash Chandra Vashishth

MUMBAI: In a victory for visually impaired Nilima Surve who was fired by a college trust for typing errors, the Bombay high court on Monday directed the state government to make an exception and provide her with devices, including gadgets and software, to enhance her performance.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi also directed the college trust to permit Surve to resume work.The judges were hearing a petition filed by Surve challenging an order dated October 30, 2010, by the commissioner for disabilities upholding her termination.

Surve was appointed as a junior clerk-cum-typist at Chetana's Hazarimal Somani College of Commerce at Bandra (E) in November 2006 and dismissed in March 2007 on the grounds that her "work was not satisfactory and there were typing errors".

Her advocate Chetan Agrawal said the commissioner, in his order, acknowledged the use of software to avoid mistakes in future but the college refused to provide or allow installation of the software provided by her.

The judges, in December 2010, had observed that the "disabled need support, not sympathy".On January 15, the court isued a general order directing the state government to provide special gadgets and software to its employees, including those in public sector undertakings, universities and colleges.

On Monday, the judges observed that the state will take time to implement their directive. Justice Shah said, "There is no reason why as a special case such devices for the petitioner should not be provided in the meantime.'' 

The judges have asked Surve to send a requisition to the government for the devices and the software required by her and directed the state to make them available to her three weeks thereafter. "In short, the government will immediately make payment to the supplier for such gadgets or devices and software which the petitioner requires for enhancing her performance in typing and other desk work."

Monday, December 27, 2010

Disabled employees suffering as employers not aware of disability provisions

"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.