Canadian Public Policy

What about a Rights Act for Canada? Practices and Lessons from America, , and the United Kingdom Author(s): Michael J. Prince Source: Canadian Public Policy / Analyse de Politiques, Vol. 36, No. 2 (June/juin 2010), pp. 199-214 Published by: University of Toronto Press on behalf of Canadian Public Policy Stable URL: http://www.jstor.org/stable/25702420 . Accessed: 15/01/2014 18:45

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This content downloaded from 142.157.26.24 on Wed, 15 Jan 2014 18:45:03 PM All use subject to JSTOR Terms and Conditions a What about Disability Rights Act for Canada? Practices and

Lessons from America, Australia,

and the United Kingdom

Michael J. Prince Faculty ofHuman and Social Development University of Victoria,British Columbia

Le gouvernementHarper et la plupartdes partis federaux sontd'accord avec Padoption d'une chartecanadienne des droits des personnes handicapees enmatiere d'acces a differentsservices. L'objectif de cette etude etait de tirer,de l'experience d'autres pays ayant adopte ce typede lois, des lesons qui pourraient etre utiles aux decideurs politiques canadiens. Pour ce faire, j'ai observe ce qui a ete fait aux Etats-Unis, enAustralie et au Royaume-Uni. Si de telles lois en matiere de droits des personnes handicapees semblent tresgeneralement considerees comme necessaires pour permettrede lever les obstacles et eliminer l'exclusion, l'experience montre qu'elles sont loin d'etre suffisantespour promouvoir l'acces des personnes handicapees a differents services. Parmi les autres outils de politiques publiques essentiels dans ce domaine, citons des programmes de soutien a Pemploi, des incitatifsfiscaux et la prestation de difiterentesformes directes de soutien.

Mots clfo : incapacity legislation federate,droits, politique des mouvements sociaux

The Harper government and most national political parties are committed to a federal act for dealing with accessibility rightsfor persons with . The purpose of thisarticle is to identifyprogressive lessons from countrieswith similar legislation for consideration by Canadian authorities. Countries surveyed are theUnited States, Australia, and theUnited Kingdom. While disability rights legislation iswidely accepted to be a necessary policy initiative in lightof ongoing barriers and exclusion, experience suggests that such laws are far from a sufficientresponse to promote access. Other policy instrumentsrequired include sup portive employment programs, tax incentives, and thedirect provision of basic supports.

Keywords: disability, federal legislation, rights,movement politics

Introduction employment, transportation, and housing for Canadians with disabilities" (Conservative Party of Canada Numerous countries world The Conservative Party of Canada has declared 2005, 16). wide have introduced measures on the thatas a federal government itwill "introduce legislative and needs of with disabilities. A a national disability act to promote reasonable ac rights persons House of Commons committee recommended in cess tomedical care,medical equipment, education,

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2008 "that the federal government, in consultation ofCanadians with disabilities, lettingthe governing with provincial and territorial governments and party off the hook for other needed initiatives and stakeholders, continue to develop and implement moving on to the claims of other social groups. On a national disability act to promote and ensure the the other hand, if carefully designed, and in close inclusion of people with disabilities inall aspects of consultationwith disability groups across the coun Canadian society" (Standing Committee on Human try,a disability act could be a modest contribution Resources 2008, 3.17). Other federal parties made to advancing access and inclusion. Not an end in similar promises in the 2008 general election, and itself,a federal disability act should be a beginning theminority governments of Stephen Harper have in federal leadership on a wider disability agenda. reaffirmedtheir party platform to introduce a dis No doubt, negative sentiments toward the govern ability law. Federal government officials are now ment proposing this reform influence adherents of working on such a law, although, to date, this has both the firstand second viewpoints. not resulted in federal legislation. A thirdresponse is favourable, even enthusiastic Activists and groups in theCanadian disability in some parts of themovement, with strong com movement have responded to the idea of a federal mitment to the idea of a federal disability act. Here, disability act in threeways. One response is that people positively identifywith the idea of disability such legislation is unnecessary and,more seriously, legislation,believing itcan energize themovement, holds certain legal and political risks (McCallum raise public awareness, and help forge alliances 2006). Critical concerns are that rather thanmain throughan inclusive policy development process, stream, such legislationmay ghettoize disability as as illustratedby legislative and political experiences a social policy area; thatthe Conservative's promise inOntario during the early 2000s (Lepofsky 2004). ignores jurisdictional issues of the division of re Enthusiastic supportersmay also see a federal dis sponsibilities between federal and provincial orders ability act as an opportunity to formulate a modern of government; that such a law risks sidestepping definition of disability informedby a social model, Charter ofRights and human rightsguarantees; that thereby supplementing the Canadian Charter of disability groups have higher priorities and this Rights and Freedoms as well as federal and prov legislation reformprocess detracts frommobilizing incial human rights codes. efforts to achieve other concrete social program reforms;and that,since this legislation is limited to These differing reactions to a federal disability federal jurisdictions, it risks ignoringmore press law pose challenges for the disability movement ing needs or objectives of certain groups in the in building a consensus, bringing various groups disability community.For example, theDeaf com together to communicate a message to government munity is seeking tohave American Sign Language officials, and in raising public understanding of and Langue des Signes Quebecoise included in the disability issues. Accordingly, this article reviews Official Languages Act. internationalexperiences on the role and nature of such legislativemeasures formeeting theneeds of A second response is a mix ofmild support and people with disabilities. A qualitative, comparative mild concerns. Ambivalent supporters express a policy analysis, the research examines the experi qualified yes to thisreform option, seeing itas some ences ofAustralia, theUnited States, and theUnited what useful for people with disabilities although Kingdom. Through a selective and integrative lit tangential to the core priorities of the disability erature review of the three countries, the analysis movement (Gordon and Hecht 2006). They worry summarizes existing research, highlights issues of thatgovernment officials might regard such a legis policy and practice, and draws lessons forCanada lative initiativeas theirmajor response to theneeds from internationalexperiences. Literature fromfour

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fields is examined: disability studies, law and hu in the disability policy domain, complex relation man rights,political science, and public and social ships along interdepartmental(e.g., health and social policy. The basic question under consideration is: services), intersectoral (public, private, and com What is the impact of disability rights legislation munity), and interbranch(judicial, executive, and on accessibility for persons with disabilities to a legislative) lines?relationships thatconfound pub range of services addressed by such laws? Given lic accessibility, service provision, accountability, the significance of federalism forwhat could be in and policy coherence and innovation (Prince 2004). a Canadian statuteon the rightsof persons with dis abilities, thequestion of intergovernmentalrelations is also considered. The Americans with Disabilities Act of 1990 and AD A AmendmentsAct of 2008 Canada shareswith Australia, theUnited States, and theUnited Kingdom the fundamental features When enacted in 1990, the Americans with Dis of being a liberal democracy with a market econ abilities Act (ADA) was hailed as "a national civil omy and a liberal welfare-state regime. In brief, rights bill for people with disabilities." As one prevailing policy-making emphasizes individual American disability scholar observed: "This was and family responsibilities along withmodest levels the first legal provision to impose an affirmative of public provisions to persons with disabilities, obligation upon members of thedominant majority supplemented by private and charitable services. In in order to bestow equal rightson a disadvantaged all four countries, thehistory of disability is a chron group" (Hahn 2002,171). The ADA built on earlier icle of stigma, pity, and fear toward people with civil rightsmeasures forwomen and minorities by various impairments,disfigurements, or functional theAmerican federal government,and on lawsmore limitations. Disability programs have developed specifically forpeople with disabilities such as the as add-ons to other general programs, over the Rehabilitation Act, 1973, theCivil Rights Restora course ofmany decades, with the consequence that tionAct, 1988, and Fair Housing Act, 1988 as well disability is inconsistentlydefined, and frequently as two decades of state laws and administrative ill-defined, in various areas of public policy. One rules on disabilities (McGuire 1994; Percy 2001a). result of this lengthy and ad hoc development in The ADA's stated aim is toprovide a clear and com programming is the often tense interplaybetween prehensive national mandate for the elimination of medical, economic, and social approaches to dis discrimination against individualswith disabilities, ability. In all four countries as well thereare active including people with physical, mental, and intel disability movements at local and national levels, lectual disabilities. oftendeploying a rightsdiscourse in framing issues of disablement and advancing claims for social The scope of this law includes both the public change (Barnes 2000; Cooper 1999; Goggin and sector (federal, state, and local governments) and Newell 2005; Goodland and Riddell 2005; Percy the private sector (businesses with 15 ormore em 2001b;Torjman 2001). ployees). The ADA contains fourmandate areas: employment protection (Title I); public service, in Canada further shares with Australia and the cluding public transportation(Title II); accessibility United States being a political federationwith two and non-discrimination in public accommodations care orders of sovereign government and the associated (such as hotels, restaurants,and health facili elaborate systems of intergovernmental relations ties) and in services offeredby most private entities as (Cameron and Valentine 2001; Prince 2001). And, (Title III); and telecommunications services, such while theUnited Kingdom is not a federal system, it relay services available todeaf and speech-impaired does sharewith the other threecountries, certainly individuals (Title IV). This range of areas implies

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recognition of "the need to combat the discrimina cautiously optimistic about the ADA's abil tion imposed by a disabling environment" that ity to maintain employment in the short run includes architectural, attitudinal, and communi among thosewho become disabled during their cation barriers, and the need to regard disability work life.However, we must be less sanguine more broadly thanbodily impairmentsand personal about the long-term prospects for the doubly limitations (Hahn 2002, 171). disadvantaged. While theADA can tear down disability-related barriers, it cannot encourage Who is and who is not covered is a prominent employers tohire or keep employees whose skills theme in the literatureon theADA in theUnited prohibit themfrom performing the job. (116) States (Koening 1998;McGuire 1994; Percy 2000). Campbell (1994, 134) offers a useful and critical Studdert and Brennan (1997) examined the extent entree to thiswhen she writes: towhich theADA protects people livingwith HIV infection and AIDS against discrimination.While Disabled persons are not a homogeneous group theADA intended to cover HIV and AIDS as "dis with common needs and equal social power. abilities" under the legislation, and theUS Supreme The disability community is not immune from Court has ruled thatHIV is an impairment (Percy the same stereotypical attitudes about differ 2000,428), statutoryambiguities of theADA along ent disabilities that affect the non-disabled with other factors have limited a clear role of this community; there is a hierarchy of disabilities law for these groups. within the community itself, and people with mental illness are generally among the most One featureof theADA particularly interestingto stigmatized even among thosewith disabilities. a Canadian audience, given our systemof federalism, Since theADA exists in such a stratifiedsociety, is how the legislation relates to intergovernmental evenwithin thedisability community the subtext relations. With the legislation ADA, Congress of theADA legislation reveals stereotypes and claimed thedominant role in creating and enforcing discrimination. non-discriminationmandates to protect the rightsof people with disabilities (Percy 1993). Intended to Thus, Campbell shows how provisions of theADA create national standards across theUnited States, to do with rights to equal opportunity dispropor theADA placed disability rightsmandates and obli tionately underprotect people with psychiatric gations on state and local governments.Specifically, disabilities. Research has also found that people theADA restson theexercise of "pre-emptivepower" with visual impairments rate the effectiveness which, under the supremacy clause of theAmerican of the ADA consistently lower than people with Constitution,enables a federal law todisplace a state hearing and mobility impairments,who are more or local law thusallowing a clear and comprehensive positive about theAmerican legislation (Hinton nationalmandate.1 This exercise of federalpower is 2003; Tucker 1997). regulatoryfederalism?in which the federal govern ment legislatesand enforcescompliance in state,local, Daly (1997) examined theADA in relation to the and private spheres?an approach thoughtto be more "doubly disadvantaged," that is, thosewith a poor effectivethan thepractice until thattime of using the education and poor job skills plus a disability. She federal spendingpower to attachconditions to federal estimated thatas of the early 1990s, about 39 per transferpayments to stategovernments (Percy 2001b). cent ofAmericans with disabilities were so doubly The legislation thereforerepresents a strongassertion disadvantaged. Will theADA assist all Americans of national governmentauthority?a centralized ap with disabilities then?Daly offered a mixed prog proach with national standardsjustified in termsof a nosis, being civil rightsdiscourse and legal protectionculture that

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resonates inAmerican politics. In short,the American perceptions, an explanation thathighlights the size federalgovernment has greaterjurisdiction compared and diversity of the targetgroups and the extent of to theCanadian federal government.Another note change required in the threedomains: worthydifference between theAmerican andCanadian political context is the active role the courts have Due to thesmaller, less diverse targetgroup and the played indefining what is a disability and in shaping smallerdegree of change required [alongwith more theeffect of thisnational rights legislation (Cameron specific implementationrequirements provided for and Valentine 2001; Gostin 2003; Jones 1995; Percy it thanthe other two titles],Title IV (telecommuni 2001 a), a factorthat eventually prompted Congress to cations) was consistentlyrated better in termsof clarifyand amend the legislation. accessibility.Title III (privatesector), which had the largestand most diverse targetgroup and required On employment protections (Title I), research thegreatest amount of change [in expendituresand by economists cast doubt on the effectiveness of inprocesses and procedures],was consistentlyrated this section of the ADA in improving the labour the lowest in itseffectiveness. Public sectoraccess market opportunities forpeople with disabilities, at ibility,covered by Title II,was rankedbetween the least in thefirst several years the law has been in other two titles.The targetgroup size, diversity effect(Burkhauser 1997; Daly 1997; DeLeire 2000; of thegroup, and extentof change required [state Haveman and Wolfe 1999; Mudrick 1997; Yelin and local governments,for example, were subject 1997). Indeed, as one study pointed out, "during to Section 504 of theRehabilitation Act of 1973] the 1990s, theemployment rate amongworking-age were in an intermediateposition in relation to the people with disabilities fell and disability benefit other titles. rolls and expenditures grew" (Burkhauser and Daly 2001, 2). While not all available evidence is dis Numerous studies of theADA have pointed out mal?some informationsuggested educational and its limited success overall and identified various employmentgains over the 1990s forpeople with se factors to account for this partial and inadequate vere disabilities and forpeople with developmental result.Hinton (2003, 216) observed that the "ADA disabilities?"it is the case thatoverall findings are, is an unfunded mandate [that is to say, there is at best, mixed" and "that for themajority of those no dedicated federal funding for implementation covered by the law [j4Di4], few improvementshave of this law] and the costs must be borne by the been realized" (Schwochau and Blanck 2000,273). covered entities." Additional limitations include inadequate enforcementdue to "insufficientstaffing A survey of approximately 150 people with and budgetary resources in the responsible federal disabilities asked theirperceptions about the ef agencies" (Hinton 2003, 217), official inaction by fectiveness of theADA under Titles II, III, and IV in public authoritiesat the stateand local levels, oppos regard to changes in accessibility togoods, services, itionby private sector employers, and resistance by and programs offered by the public sector, private the courts throughhighly restrictive interpretations sector,and telecommunicationsfield (Hinton 2003). of theADA (Hahn 1993, 2000, 2002; Percy 2001a; A majority of respondents (60 percent) rated ac Rioux, Crawford, and Anweiler 2001). cessibility better forTitle IV (telecommunications), while just under half (48 percent) rated accessibility Indeed, a series of narrow and strict interpreta forTitle II (public sector) better,and only one-third tionsof theADA by theUnited States Supreme Court of respondents (32 percent) rated access forTitle and other federal courts, throughthe 1990s and into III (private sector) better since the passage of the the early 2000s, provoked American legislators to ADA. Hinton (2003,218) offersan intriguingpolicy reaffirm,clarify, and strengthenkey provisions of the implementation explanation for these differing 1990 legislation.During thisperiod as well, a number

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This content downloaded from 142.157.26.24 on Wed, 15 Jan 2014 18:45:03 PM All use subject to JSTOR Terms and Conditions 204 Michael J. Prince of statesenacted or enhanced theiranti-discrimination 2008 left some importantand controversial issues laws, surpassingthe scope of thefederal law.The ADA unresolved, such as the coverage of short-termor AmendmentsAct of2008 was theoutcome of growing transitoryimpairments and themeaning of reason discontent and activism by the disability commun able accommodation in employment settings for ity,including incisive legal analysis, and successful individuals regarded as having a disability (Long alliance-building inbipartisan congressional efforts to 2008). Overall, however, initial assessments have both assert and explicate legislative intentionsto the judged the ADA Amendments Act as introducing courts and to federal regulatoryagencies (Feldblum, significantreforms to theADA and todisability law Barry, and Benfer 2008). The legislation's short title in theUnited States (Feldblum, Barry, and Benfer clearly declares thismotivation: "An Act toRestore 2008; Foodrill and McCabe 2009; Thomas and the Intentand Protectionsof theAmericans withDis Gostin 2009). As one legal scholar notes, "many abilities Act of 1990." of the changes thatCongress did make were long overdue and are likely to provide greater coverage Significant changes and elements in the ADA at the initial stage of determiningwhether an indi AmendmentsAct of 2008 are as follows: vidual has a disability thanexisted previously under theAct" (Long 2008, 229). moving away from judicial interpretationsof disability as a severe restriction to reaffirming In addition to changing access, the new legisla theconcept of disability endorsed by Congress as tion has implications for litigation and economic a substantial limitationon a person's activities, costs and benefits,which at thispoint are unknown, as the standard; although some observers suggest the costs will not be thatgreat: including impairments that are in remission or thatare episodic in nature as disabilities if they Theoretically, themore explicit definition of substantially limit a major life activity of the disability should reduce the number of legal person when theyarise; cases brought forth to establish qualifications. However, in practice, more individuals should illustrating through explicit, extensive lists receive protection under theADA with the new (which theADA did not include) many of the amendment,which could result inmore people major life activities to be considered in deter pursuing lawsuits to gain theiraccommodation. mining thepresence and effectof a disability; Although it is not always the case, accommoda tions for people with disabilities more broadly considering therole of uninformedbeliefs, social covered under theamendment tendnot tobe very myths, and stereotypesas factors in any adverse costly. Such accommodations are typically flex actions against an individual with an actual or ible scheduling, working fromhome, and other perceived impairment;and intangible adjustments, rather than expensive equipment. (Foodrill and McCabe 2009, 2) providing specific authority to issue rules on implementing thedefinition of disability in this law to theEqual EmploymentOpportunity Com Australia's Disability Discrimination mission, theAttorney General, and theSecretary Act, 1992 of Transportation. Similar to the politics of disability in theUnited Not surprisinglyfor a major piece of civil rights States in the 1990s, Australia's Disability Dis and social policy, the ADA Amendments Act of criminationAct (DDA) of 1992 received bipartisan

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parliamentary support and came afterother laws on Commission, which is responsible for considering anti-discriminationand rightsfor other groups.As a requests for and granting temporary exemptions federal law, theDDA followed on similar disability from parts of theDDA, limits exemptions to a five legislation by all Australian states except year period, seeking to encourage improvements (Lindsay1996; Mcintosh and Phillips 2002). The to access or opportunitywithin a reasonable time Australian DDA has threeobjectives: (a) to elimin frame. By contrast,disability activists have called ate, as faras possible, discriminationagainst persons for ending exemptions to theDDA on the grounds on thegrounds of disability; (b) to ensure, as far as that they offend other national and international practicable, that people with disabilities have the commitments to rights,and that sufficienttime has same rights to equality before the law as the restof elapsed to enable organizations to adapt and com the community; and (c) to promote recognition and ply with the legislative requirements (Goggin and acceptance within the community of the principle Newell 2005, 207). thatpeople with disabilities have the same funda mental rights as the rest of the community.This Experience inAustralia also underscores how statementon the rightsof persons with disabilities groups see practices as beneficial or threatening, is in thegive-and-take language of negotiation and depending on typesof disability.For example, in the compromise. There are no moral absolutes asserted debates over theCommonwealth disability services here, but ratheraims of achieving desired results as program in 1980s and 1990s, some groups of people far as possible and practicable. This is a common with severe or multiple disabilities, as well as ad feature across disability rights laws, policy guide vocacy groups, expressed concerns that the federal lines, and administrative regulations. Exemptions government's goals of community integrationwere are to be granted, on application by a person or inappropriateand unrealistic, and thatpeople with persons, only in relation to a specified disability severeor multiple disabilitieswould be disadvantaged standard and afterconsulting with affected groups. by having to receive services from small community agencies insteadof large institutionsand towork in In terms of public policy scope, theAustralian open employmentrather than in shelteredworkshops legislationprohibits discrimination in several speci (Lindsay1996; Mcintosh and Phillips 2002). fiedareas: employment (including contractworkers, was partnerships,and employmentagencies); education; The definitionof disability inAustralia's DDA access topremises; provision of goods, services, and no doubt influencedby thebroad definitioncontained facilities; buying land; clubs and associations; sport in theAmericans with Disabilities Act of 1990, in ing activities; theadministration of federal laws and that it includes disabilities thatpresently exist, pre programs; and discrimination involvingharassment viously existed,may exist in the future,or thatare or victimization. imputedto a person. The definitionis castwidely and includes physical, intellectual,psychiatric, sensory, Like other laws of this kind around theworld, neurological, and learningdisabilities, plus physical Australia's DDA includes some exemptions: private disfigurementsand thepresence in thebody of disease life insurance policies, infectious diseases, char consuming organisms, for example HIV/AIDS. The ities, telecommunications, migration and refugee DDA also employs traditionaland outmoded language to law, public pensions, and combat and peacekeep (at least in theCanadian context),referring malfunc a ing duties. This range of exemptions have been tions,malformations, and disfigurementsof person criticized by disability activists and scholars as as part of themeaning of disability under the law. excluding from rights protection "key aspects of the lives of Australians with disabilities" (Goggin As a national law theDDA applies to the fed andNewell 2005,38). The Australian Human Rights eral jurisdiction inAustralia and is not meant to

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exclude or limita law of a state or territoryrelating inclusion? Early assessments, while somewhat to disability anti-discrimination that is operating optimistic, warned about the problems of imple concurrently.This provision is a standard one in mentation due to resource constraints(Cooper 1999; intergovernmental relations and in this case re Tucker1995; Tyler 1993). Newell (1996,430) and flects the fact thatmost states and territorieshad Goggin and Newell (2005, 38) concluded that the anti-discrimination laws about disability before law has had a beneficial impact in some circles; this Commonwealth law came into effect.Unlike specifically, it enhanced accessibility in public the Canadian federation, inAustralia the states transportfor people with physical disabilities, and and the Commonwealth hold concurrently most improved access to communications and informa jurisdictional responsibilities, reflected in active tion for people with sensory disabilities. Areas of intergovernmentalrelations at the executive level slow progress, such as employment, have meant via theSpecial Premiers' Conferences and theCoun less beneficial results for people with intellectual cil ofAustralian Governments. One of the success or psychiatric disabilities, according toGoggin and stories of Australian federalism and social policy Newell. On balance, Newell (1996) is critical of the in the 1990s was the development of a national DDA, claiming that"the teethwhich thedisability agenda on disability services and supports.Again rightsmovement advocated tobe part of the legisla unlike inCanada, "theCommonwealth government tionwas certainly not part of the final legislation, has exclusive responsibility for social securitymat and the onus is on individuals with disabilities to ters, including pension benefits and labourmarket take complaints against well-resourced organisa programs" (Hancock 2001, 46). Fiscal powers are tions,with marked inequities" (430). In addition, farmore concentratedat thenational level, enabling Newell remarks that thecentral government todominate disability policy throughtaxation and agenda-setting (Cameron and therehas been marked dismay amongst people Valentine 2001, 39). with disabilities with regard to theprocesses in volved in setting standardsunder theAct. Unlike At the same time,when thegovernment changes the US legislation, standards are being drafted at the central level, themomentum for reformcan after the legislation in such key areas as employ also change, as occurred under theCoalition govern ment, education and public transport.Yet, the ment of theLiberal andNational parties led by John representationof thedisability rightsmovement Howard from 1996 to 2007, duringwhich therewere in theprocess seems minimal, with non-disabled efforts to restrict the powers of theHuman Rights bureaucratic and provider interestsdominating and Equal Opportunity Commission (HREOC) themembership of draftingbodies. Hence, there to initiate actions on instances of discrimination. is marked dissatisfaction at a grassroots level Moreover, theposition of disability discrimination with the standard settingprocess and a concern commissioner at theHREOC was filled only with that some standards could act contrary to the acting appointments for a number of years (Goggin interestsof people with disability. (1996,430-31) and Newell 2005, 38-39). Under theHoward gov ernments, too, policy measures on welfare towork In a similar vein, Handley (2001) notes that the raised worries among individuals with disabilities DDA has some progressive elements but that in and theirfamilies about increased scrutinyof clients, practice it is delivering at very best only partial forced job placements, and reduced income security improvement. He argues thatAustralians with benefits (Galvin 2004). disabilities are caught between a "rock and a hard place": "They are caught between Commonwealth How effective is theDDA as a vehicle for pre financial retrenchmentson the one hand [for the venting discrimination and advancing access and enforcement of theDDA at the national level] and

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the recently increased emphasis on the role of the with a wide range of other impairments, such States on theother" (522). As a result,"the extent to as chemical sensitivity or even intellectual dis which one might expect one's rights tobe protected ability. (Goggin and Newell 2005, 40) and enforced remains dependent upon the amount of resources that one's home State is prepared to Similarly, progress on thedevelopment of action commit for thatpurpose" (522), likely reproducing plans by service providers to achieve thegoals of the an unevenness in how rights are protected across DDA was quite modest in the first ten years, with jurisdictions inAustralia's federalism (Thornton only 254 plans registeredwith theCommission in 2005). Handley (2001, 526) concluded that "nine 2002. Most of theaction plans came from thepublic years after theDDA was enacted, and despite the sector (79 percent); that is, fromCommonwealth, rights that it established, it has not become con state, territory,and local government bodies, and spicuously easier fordisabled Australians to secure from education providers. Only 11 percent were these rights." from the private sector, and 10 percent were from the non-governmental sector (HREOC 2003, 14). On the key feature in theDDA of developing Issues theCommission identifiesas deservingmore "disability standards,"progress has been remarkably attention throughresearch and policy work include slow.The firststandard, on accessible transport,was "the need formore effectivemeasures of protection not accepted or implemented until 2002, ten years and remedyagainst abuse of people with disabilities after the legislation was passed. According to the in institutionalsettings" and "the psychiatricdisabil Human Rights and Equal Opportunity Commission ity area" (22). No doubt, the Commission reports, (2003), "some of the delay in producing standards "there have been many achievements"?such as results from the approach adopted, and supported increased captioning of television programs?but, by theCommission, of developing standardswith at the same time, the Commission acknowledges thewidest possible consensus, including relevant "there are areas where individuals and advocates industry bodies, the disability community and have expressed concern and frustration over the Federal and State governments" (12). In its 2003 limitsof the law, and where progress has been more report, theCommission observed that the number difficult thanwas hoped when the legislation was of temporary exemptions granted to manage the passed" (2). shift from inaccessible to accessible services and systemshad been "quite small, except in thepublic transportarea" (12). Exemptions have been granted The United Kingdom's Disability toAdelaide buses, public trans Discrimination Acts, 1995 and 2005, port authorities,Melbourne trams,Kendell Airlines, and Equality Act, 2006 Queensland Rail, and theOlympic Roads and Trans portAuthority. An equally importantissue concerns Following after theUnited States andAustralia, the the claim that standardsmay have undesired con United Kingdom passed theDisability Discrimina sequences of reproducing disablement rather than tionAct 1995, thefirst country in Europe to do so. promoting access and prohibiting discrimination. Key provisions and ideas about rights and respon Disability activists warn, sibilities in this legislation are as follows:

Standards tend to reinforcedominant accounts of Employers and providers of goods, services are disability: stereotypes of people with disability and education not allowed to discriminate as people with obvious physical disabilities, such against disabled people. Discrimination is de as users of wheelchairs. Narrowly conceived fined as providing less favourable treatmentfor standards do not address the needs of people a reason related to a person's disability without

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justificationor failing tomake reasonable adjust theuncertain (sometimes subjective) application ments. In relation to theprovision of goods and of the justification defence, the exclusion of services and education, anticipatoryadjustments education and transportfrom the central thrust must be made. If it is believed thatdiscrimination of theanti-discrimination principles, and the lack has occurred, the onus is on thedisabled person of a strategic enforcement agency all combine to bring a case to court or Tribunal. to cast doubt upon themotives behind theAct. (Doyle 1997,78) There has therefore been a marked shift in understanding who has responsibility for tak Other analysts have pointed to these and other "fun ing action so that the state is seen as acting as damental design-flaws of theDDA" (Barnes 2000; regulator, individual disabled people are given a Gooding 2000; Lee 2002; Thornton 2005). The for role in enforcing theirrights, and employers are mation in2000 of theDisability Rights Commission expected tomeet expectations set down in law. (DRC) partly remedied the lack of an enforcement (Goodlandand Riddell 2005, 51) agency. Despite that, some legal analysts saw the DRC as lacking real teeth in powers. Assessments of theDDA 1995 were mixed but ultimately critical (Barnes 2000; Thornton 2005). Another criticism is thatthe DDA 1995 reinforced On the positive side, one legal scholar accurately "the medical model by linking impairmentswith anticipated that theDDA would make some differ the ability to carry out stated day-to-day activities, ences in the areas of employment protection and without allowing for social or physical environ eradication of "some of theworst andmore explicit mental variables thatmay exaggerate or alleviate the discriminatory excesses in the public provision of effects of disability" (Woodhams and Corby 2003, goods and services" (Doyle 1997, 78). The legisla 164; see Barnes 2000 for a similar critique). In the tionalso encouraged businesses tomake reasonable area of employment, theDDA 1995 did not cover adjustments and to alter their views on people all people with disabilities. For example, Barnes, with disabilities, recognizing these individuals as Mercer, and Shakespeare (1999) observed thatthose valuable workers and consumers (Doyle 1997). "who work in sheltered employment and supported Similarly, threedisability studies scholars asserted employment schemes, themajority of whom are that"the disabled people's movement can claim to people with learning difficulties, are not protected have made a significant advance in convincing the under the legislation" (188). In thehotel and catering general public of themerit of anti-discrimination industries,despite theDDA, people with disabilities legislation" and that "rights for disabled people have been "shunned because they are perceived is now firmlyon the political agenda, in complete as 'bad for business'" (188). Moreover, under the contrastwith the situation thirtyyears ago" (Barnes, 1995 legislation, "employers and service providers Mercer, and Shakespeare 1999,172). The DDA 1995 are exempt if theycan show thatcompliance would did create some new statutoryrights and new oppor damage theirbusiness" (163), which also meant that tunitiesfor individuals to challenge discriminatory "little is done to remove the environmentalbarriers practices, including the issue of website access faced by disabled people in theworkplace" (116). ibility.On the critical side, This led observers of theUK situation to conclude that theDDA 1995 was "unlikely to transformthe the nagging awareness remains that in total the employment situation of thedisabled population as Act represents,at best, halfmeasures and reluc a whole" (116). tantreform. The narrow and complex definition of theprotected class, theexemption of small em A final impact of this legislation concerns its ployers, thehybrid definition of discrimination, effecton relationshipswithin theBritish disability

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communityand on thedisability community's links Establishment of the CEHR moves British prac with government. tice closer to theAustralian (and Irish)model of a multidimensional rightsbody rather thana series of The 1995Disability Discrimination Act reopened specific commissions fordifferent social groups and internal divisions and brought to an end the formsof discrimination (as found in such countries uneasy coalition between organizations of and as theNetherlands, New Zealand, and Sweden). Like organizations for disabled people. The former theAustralian model, too, thenew British commis opposed the legislation as too weak and un sion has a division devoted to disability matters. enforceable. In contrast, [several] organizations for disabled people ... agreed towork with the government to implement thenew law. (Barnes, Some Lessons Mercer, and Shakespeare 1999, 163) What do we learn from this inquiry into laws that McGuire (1994) made a similar point regarding the promote the rights of persons with disabilities? Is impact of theAmericans with Disabilities Act on therea single leader on legislating rights to access the disability community in theUnited States as a forpeople with disabilities? An American law pro collective community. fessorwho wrote theoriginal draftof theAmericans withDisabilities Act has observed: "The Australian The Disability Discrimination Act 2005 sought Disability Discrimination Act is extremely compre to address a number of these limitations.The DDA hensive, forceful,and specific.With some accuracy 2005 added the areas of transportand rail vehicles one can describe itas having out-ADAed theADA.... (exempted from key sections of theDDA 1995), The British version of a Disability Discrimination new duties of "disability equality" upon public au Act, in contrast, ismuch less broad, specific, and thorities,and provisions regarding discriminatory substantial than theADA" (Burgdorf 1998,1). While advertisements, group insurance,private clubs and certainly not in disagreement with Burgdorf on the similarassociations of 25 members ormore, housing relative nature of the laws, the evidence presented and commercial premises, and general qualifica here suggests thateach of theAmerican, Australian, tion bodies such as professions. The 2005 law also and British laws on disability rightshas limitations sought to clarify and modestly expand themeaning and each offers some lessons for theCanadian pol of disability, adding cancer, HIV infections, and itical and public policy context. multiple sclerosis to the statutorydefinition, thereby extending coverage to an additional 250,000 people. Nations worldwide in the last generation have According to theBlair government, theDDA 2005 introduced legislative measures on the human represents"the most far-reachingprogramme of dis rightsand social needs of persons with disabilities. ability rights legislation thatany European country While thismay suggest internationalconvergence has so farput inplace" (Office forDisability Issues on this issue, thefirst lesson is that thereare in fact 2006, 4). a number of perspectives on thenature and efficacy of disability legislation. Itwould be misleading to The UK Equality Act 2006 provided forestablish see these trends solely or even mainly as moves ment of theCommission for Equality and Human to civil rights for people with disabilities in the Rights(CEHR); todo so, theEqual Opportunities American style of theADA (Burgdorf 1998). On Commission, the Commission for Racial Equal the contrary,the development of anti-discrimination ity, and the Disability Rights Commission were laws on disability has been more eclectic, with each dissolved. The CEHR took over thework of the countrydrawing on features fromdomestic sources Disability Rights Commission in October 2007. along with internationalsources such as theUnited

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Nations. Ultimately, equality rightslegislation is the Valentine (2001) have concluded thatcompared to result of political, community, and administrative the political party system, the legislative system, compromises (Gooding 1994,2000; Lindsay 1996; or thejudicial branch, federalism is relativelymore McGuire 1994) and their effectwrought in large prominent and significant in Canadian political part by legal actions and regulatory and judicial affairs than inAustralia or theUnited States. The interpretations(Campbell 2005; Gostin 2003; Hahn general influence of Canadian federalism seems 2002; Jones 1995; Percy 2001a; Rioux, Crawford, constraining in thatCanada does not have a national and Anweiler 2001). policy or a robust intergovernmentalprocess on dis ability issues to thedegree thatother federationsdo A second lesson is the political, statutory,and (Cameron and Valentine 2001; Prince 2001, 2004). programming importanceof policy legacies in this Given the intricate federal condition of our body field as inmany other domains of public policy. politic, parliamentarians recognize thatto formulate In the three jurisdictions examined here as well a national disability law inCanada, consultations are as in other countries, the introductionof disability essentialwith provincial and territorialgovernments discrimination laws followed by several years the as well as rightsholders and stakeholders (Canada. enactment of laws dealing with racial discrimina Standing Committee on Human Resources 2008). tion and sexual discrimination at thenational level and, in the case ofAustralia and theUnited States, A fourthlesson is thatthese disability laws benefit also at subnational levels of government. In certain people with disabilities differentially, depending respects, disability discrimination laws were, and among other factorson the type (including its social still are, influenced by the statutoryform of these familiarityand medical acceptance) and the severity earlier rights laws and experiences with them. of impairments.Governmental practices?whether In Canada, in comparison, while there is a dense in the formof anti-discriminationlaws, employment thicket of rightsprotections for persons with dis services, income benefits, or other service provi abilities along with other social groups, there is not sions?vary in theircoverage of people by typesof thepresence of specific disability rights laws across disabilities. Public programs in thecountries surveyed theprovinces anywhere close to the same extent as are relativelymore effective in service delivery for in eitherAmerica orAustralia.2 If thismeans there people with physical disabilities, for people with is less policy learningand public awareness of such mild tomoderate disabilities, and for people living laws across Canada, itmight present challenges to in urban areas. In contrast,countries lag behind in national disability organizations tomobilize wide servicing the needs of individualswith other types spread interestand forge strongalliances with other of disability?notably intellectualdisabilities, learn social movements (Goodland and Riddell 2005; ing disabilities, mental health conditions, severe or Lepofsky 2004; Percy 2001b). profound disabilities, and HIV/AIDS?and people with disabilities living in ruraland remote commun A third lesson concerns the relation between ities. In short,disability rightsand accessibility laws federalism and thedevelopment of disability rights seem to assist people with certainkinds of disabilities policies and programs. In theUnited States, theADA more thanother kinds. Thus, the impactof disability Amendments Act of 2008 illustrates the dynamic anti-discriminationlaws and disability rightson ac interplayof the legislative and judicial branches of cessibilityalso varies across differentsectors, such as government; inAustralia, experience of theDDA employment,public transport,and housing. of 1992 indicates the importance of the executive branch in a Westminster system of parliament All four countries?the United Kingdom as a ary government in shaping the interpretationand unitaryparliamentary system and Canada, Australia, functioningof legislative initiatives.Cameron and and the United States as federations?confront

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similar problems of fragmented policies and While far froma sufficientresponse to discrimina program systems in the disability domain. These tion and advancing accessibility, disability rights problems seem inherent in the history of liberal legislation seems a necessary policy initiative in welfare stateswith market capitalist economies that light of ongoing barriers and exclusion (Prince are influenced significantlyby medical knowledge 2004, 2009). and authorities (Barnes, Mercer, and Shakespeare 1999; Foodrill andMcCabe 2009; Goggin andNew InCanada's case, ideas about a federal disability ell 2005; Hahn 2002; Haveman and Wolfe 1999; act are usually framed in terms of positive action Prince 2009; Thomas and Gostin 2009). legislation.This is in contrast to anti-discrimination legislation thatrelies on complaints, the investiga In view of this tendency in policy outcomes, a tion of individual cases, possibly litigation, and fifth lesson is to strive for a composite of valued court or tribunal orders. Canadian jurisdictions practices in the legislative domain. These practices already have such legal remedies and mechanisms appear to include the following elements: inhuman rightscodes and related legislation. Posi tive action legislation, by comparison, is proactive one or more laws that address a wide range of and systemic indesign with a focus on accessibility, rights and responsibilities (civil, economic, mainstreaming, reducing inequalities, and promot legal, economic, and social/cultural); ing universal design. Core tools of positive action include public awareness, procurementand contract meaningful input at the formulation stage to policies, development of standards, timelines for elicit support from disability groups, families implementationand compliance, and enforcement. and advocates, employers, and service providers The potential scope of a federal act includes tele in public authorities and community agencies; communications, interprovincial and international transportation,broadcasting, banking, justice, im links to an overall officiallyrecognized disability migration, FirstNations, taxmeasures, employment plan or strategyby the centralgovernment based in the federal public service and federally regulated upon a social model of disability and citizenship; sectors (about 10 percent of the overall Canadian labour force), and various other federal programs, legislative objectives thathave measurable indi services, and institutions. cators and can be linked todata sets for tracking results and auditing progress; A final lesson is that to be meaningful for the disability movement to promote and endorse, adequate funding of administration and other such legislation must be adequately equipped on functions; a sustained basis over many years in termsof both delivery capacity and effectiveenforcement mecha support for citizen and community-based nisms, andmust be supplementary to other required advocacy; social policy reforms.A statement in 2007 by the Canadian disabilitymovement declares support for phase-in over a limitednumber of years of full thenotion of a federal disability act if it "allocates range of areas covered by the legislation; and significant resources for improving access and inclusion and ensures a mechanism for strong en legally enforceable duties on public authorities forcementof access and inclusion.The development and private entities topromote access and equal of a Federal Disability Act cannot preclude action ity,raise public awareness, and protect the rights in other areas nor can Canadians with disabilities of people with disabilities. and theirfamilies wait for a Federal Disability Act

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to implement reforms that are desperately needed Burkhauser, R.V. 1997. "Post-AD A: Are People with Dis abilities toWork?" Annals theAmerican now" (End Exclusion 2007,4). Within this context Expected of Political and Social Science 549:71-83. of an agenda of investments and actions, federal Academyof Burkhauser, R.V. and M.C. 2001. "United States legislation is an importantelement in social citizen Daly. DisabilityPolicy ina ChangingEnvironment." FRBSF ship and public policy for advancing equality and WorkingPaper 2002-21,Federal Reserve Bank of San equity forCanadians with disabilities. Francisco.

Cameron, D. and F. Valentine. 2001. "Comparing Policy Making in Federal Systems:The Case of Disability Notes - Policy andPrograms An Introduction."In Disability 1 and Federalism: to An exceptionis ifa stateor local lawprovides greater ComparingDifferent Approaches Full ed. D. Cameron and F. Valentine. or equal protectionfor the rights of individualswith dis Participation, Montreal and McGill-Queen's abilities thanis affordedby theADA (Percy 1993). Kingston: University Press. 2 Ontario's current legislative approach to removing Campbell, J. 1994. "UnintendedConsequences inPublic barriersfor persons with disabilities is theAccessibility Policy: Personswith PsychiatricDisabilities and the for Ontarianswith Disabilities Act (AODA), 2005. The Americans with Disabilities Act." Policy Studies AODA applies toboth thepublic and privatesectors and Journal 22(1): 133-45. a ? setsout process fordeveloping accessibility standards 2005. "Using Anti-Discrimination Law as a Tool of forensuring the removalof physical,attitudinal, infor Exclusion:A CriticalAnalysis of theDisability Dis or communications barriers for mational, technological, crimination Act 1992 and Purvis v.NSW." Macquarie personswith disabilities by 2025. To date, standards Law Journal 5:201-20. have been for customer and will be developed services, Canada. Standing Committee on Human Resources, developed in the further four areas of employment, com Social Development and theStatus of Personswith munications and information, transportation, and the built Disabilities. 2008. Employabilityin Canada: Prepar environment(Law Commissionof Ontario 2010). ing for the Future. House of Commons report, 39th Parliament, 2nd Session.

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