Momm, Willi

Momm, Willi

Address: Vocational Rehabilitation Branch, International Labour Office, Bureau 9-82, 4, route des Morillons, 1211 Geneva 22

Country: Switzerland

Phone: 41 22 799 6834

Fax: 41 22 798 8885

E-mail: frehab@hq1.ilo.ch

Education: MD, University of Heidelberg, Germany

Areas of interest: Training and employment policies for disabled persons

 

The Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) and Vocational Rehabilitation and Employment (Disabled Persons) Recommendation, 1983 (No.168),  which  supplement  and  update  the  Vocational  Rehabilitation (Disabled) Recommendation, 1955 (No. 99), are the principal reference documents for a social policy on the issue of disability. However, there are a number of other ILO instruments which explicitly or implicitly make reference to disability. There are notably the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111), the Human Resources  Development  Convention,  1975  (No. 142)  and  the Human Resources Development Recommendation, 1975 (No.150)

In addition, important references to disability issues are included in a number of other key ILO instruments, such as: Employment Service Convention, 1948 (No. 88); Social Security (Minimum Standards) Convention, 1952 (No. 102); Employment Injury Benefits Convention, 1964 (No. 121); Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168); Employment Service Recommendation, 1948 (No. 83); Labour Administration Recommendation, 1978 (No. 158) and Employment Policy (Supplementary Provisions) Recommendation, 1984 (No. 169).

International labour standards treat disability basically under two different headings: as passive measures of income transfer and social protection, and as active measures of training and employment promotion.

One early objective of the ILO was to ensure that workers receive adequate financial compensation for disability, in particular if it was caused in relation to work or war activities. The underlying concern has been to ensure that a damage is adequately compensated, that the employer is liable for accidents and unsafe working conditions, and that in the interest of good labour relations, there should be fair treatment of workers. Adequate compensation is a fundamental element of social justice.

Quite distinct from the compensation objective is the social protection objective. ILO standards which deal with issues of social security look at disability largely as a “contingency” which needs to be covered under social security legislation, the idea being that disability can be a cause of loss of earning capacity and therefore be a legitimate reason to secure income through transfer payments. The principal objective is to provide insurance against loss of income and thus guarantee decent living conditions for people deprived of the means of gaining their own income due to impairment.

In a similar way, policies which pursue a social protection objective tend to provide public assistance to people with disabilities not covered by social insurance. Also in this case the tacit assumption is that disability means incapacity to find adequate income from work, and that a disabled person has therefore to be the responsibility of the public. As a result, disability policy is in many countries predominantly a concern of the social welfare authorities, and the primary policy is that of providing passive measures of financial assistance.

However, those ILO standards which deal explicitly with disabled persons (such as Conventions Nos. 142 and 159, and Recommendations Nos. 99, 150 and 168) treat them as workers and put disability—quite in contrast to the compensation and social protection concepts—in the context of labour market policies, which have as their objective to ensure equality of treatment and opportunity in training and employment, and which look at disabled people as being part of the economically active population. Disability is understood here basically as a condition of occupational disadvantage which can be and should be overcome through a variety of policy measures, regulations, programmes and services.

ILO Recommendation No. 99 (1955), which for the first time invited member States to shift their disability policies from a social welfare or social protection objective towards a labour integration objective, had a profound impact on law in the 1950s and 1960s. But the real breakthrough occurred in 1983 when the International Labour Conference adopted two new instruments, ILO Convention No. 159 and Recommendation No. 168. As of March 1996, 57 out of 169 member States had ratified this Convention.

Many others have readjusted their legislation so as to comply with this Convention even if they have not, or not yet, ratified this international treaty. What distinguishes these new instruments from the former ones is the recognition by the international community and by employers’ and workers’ organizations of the right of disabled persons to equal treatment and opportunity in training and employment.

These three instruments now form a unity. They aim to ensure active labour market participation of disabled people and thus to challenge the sole validity of passive measures or of policies which treat disability as a health problem.

The purposes of the international labour standards which have been adopted with this objective in mind can be described as follows: to remove the barriers which stand in the way of full social participation and integration of disabled people in the mainstream, and to provide the means to promote effectively their economic self-reliance and social independence. These standards oppose a practice that treats disabled people as being outside the norm and excludes them from the mainstream. They object to the tendency of taking disability as a justification for social marginalization and for denying people, on account of their disability, civil and workers’ rights which non-disabled people enjoy as a matter of course.

For the purpose of clarity we may group the provisions of international labour standards which promote the concept of the right of disabled people to active participation in training and employment into two groups: those which address the principle of equal opportunity and those which address the principal of equal treatment.

Equal opportunity: the policy goal which lies behind this formula is to ensure that a disadvantaged population group has access to the same employment and income-earning possibilities and opportunities as the mainstream population.

In order to achieve equal opportunity for disabled people, the pertinent international labour standards have established rules and recommended measures for three types of action:

    • Action  to  empower  the  disabled  individual to  achieve  the  level of competencies and abilities required to take advantage of employment opportunity and to provide the technical means and the required assistance which would enable that individual to cope with the demands of a job. This type of action is what essentially constitutes the process of vocational rehabilitation.
    • Action which helps to adjust the environment to the special needs of disabled persons, such as worksite, job, machine or tool adaptations as well as legal and promotional action which helps to overcome negative and discriminatory attitudes that cause exclusion.
    • Action which ensures disabled people real employment opportunities. This includes legislation and policies which favour remunerative work over passive income support measures, as well as those which entice employers to employ, or to maintain in employment, workers with a disability.
    • Action which sets employment targets or establishes quotas or levies (fines) under affirmative action programmes. It also includes services by which labour administrations and other bodies may assist disabled people to find jobs and to advance in their careers.

           

          Therefore, these standards, which have been developed to guarantee equality of opportunity, imply the promotion of special positive measures to help disabled people make the transition into active life or to prevent unnecessary, unwarranted transition into a life reliant upon passive income support. Policies geared to establish equality of opportunity are, therefore, usually concerned with the development of support systems and special measures to bring about effective equality of opportunities, which are justified by the need to compensate for the real or presumed disadvantages of disability. In ILO legal parlance: “Special positive measures aimed at effective equality of opportunity … between disabled workers and other workers shall not be regarded as discriminating against other workers” (Convention No. 159, Article 4).

          Equal treatment: The precept of equal treatment has a related but distinct objective. Here the issue is that of human rights, and the regulations which ILO member States have agreed to observe have precise legal implications and are subject to monitoring and—in case of violation—to legal recourse and/or arbitration.

          ILO Convention No. 159 established equal treatment as a guaranteed right. It furthermore specified that equality has to be “effective”. This means that conditions should be such as to ensure that the equality is not only formal but real and that the situation resulting from such treatment puts the disabled person into an “equitable” position, that is one which corresponds by its results and not by its measures to that of non-disabled persons. For example, to assign a disabled worker the same job as a non-disabled worker is not equitable treatment if the worksite is not fully accessible or if the job is not suited to the disability.

          Present Legislation on Vocational Rehabilitation and Employment of Disabled Persons

          Each country has a different history of vocational rehabilitation and employment of disabled persons. The legislation of member States varies due to their different stages of industrial development, social and economic situations, and so on. For example, some countries already had legislation on disabled persons before the Second World War, deriving from disability measures for disabled veterans or poor people at the beginning of this century. Other countries started to take concrete measures to support disabled persons after the Second World War, and established legislation in the field of vocational rehabilitation. This was often expanded following the adoption of the Vocational Rehabilitation of the Disabled Recommendation, 1955 (No. 99) (ILO 1955). Other countries only recently started taking measures for disabled persons due to the awareness created by the International Year of Disabled Persons in 1981, the adoption of ILO Convention No.159 and Recommendation No. 168 in 1983 and the United Nations Decade of Disabled Persons (1983–1992).

          The current legislation on vocational rehabilitation and employment of disabled persons is divided into four types according to different historical backgrounds and policies (figure 1).

          Figure 1. Four types of legislation on rights of persons with disabilities.

          DSB050T1

          We must realize that there are no clear divisions between these four groups and that they may overlap. Legislation in a country may correspond not only to one type, but to several. For example, the legislation of many countries is a combination of two types or more. It seems that the legislation of Type A is formulated in the early stage of measures for disabled persons, whereas the legislation of Type B is from a later stage. The legislation of Type D, namely the prohibition of discrimination because of disabilities, has been growing in recent years, supplementing the prohibition of discrimination on the basis of race, sex, religion, political opinion and so on. The comprehensive nature of legislation of Types C and D may be used as models for those developing countries which have not yet formulated any concrete legislation on disability.

          Sample Measures of each Type

          In the following paragraphs, the structure of legislation and measures stipulated are outlined by some examples of each type. As measures for vocational rehabilitation and employment of disabled persons in each country are often more or less the same, regardless of the type of legislation in which they are provided for, some overlaps occur.

          Type A: Measures for disabled persons on vocational rehabilitation and employment which are provided for in general labour legislation such as employment promotion acts or vocational training acts. Measures for disabled persons may also be included as part of comprehensive measures for workers in general.

          The characteristic of this type of legislation is that measures for disabled people are provided for in the acts which apply to all workers, including disabled workers, and to all enterprises employing workers. As measures on employment promotion and employment security for disabled persons are basically incorporated as part of comprehensive measures for workers in general, the national policy gives priority to internal rehabilitation efforts of enterprises and to preventive activities and early intervention in working environments. To this end, working environment committees, which consist of employers, workers and safety and health personnel are often set up in enterprises. The details of the measures tend to be provided for in regulations or rules under the acts.

          For example, the Working Environment Act of Norway applies to all workers employed by most enterprises in the country. Some special measures for handicapped persons are incorporated: (1) Passageways, sanitary facilities, technical installations and equipment shall be designed and arranged so that handicapped persons can work in the enterprise, as far as possible. (2) If a worker has become handicapped in the workplace as a result of accident or sickness the employer shall, as far as possible, take the necessary measures to enable the worker to obtain or retain suitable employment. The worker shall preferably be given an opportunity to continue his or her former work, possibly after special adaptation of the work activity, alteration of technical installations, rehabilitation or retraining and so on. The following are examples of action that must be taken by the employer:

            • procurement of or changes to technical equipment used by the worker—for instance, tools, machinery, and so on
            • alterations to the workplace—this could refer to alterations to furniture and equipment, or to alterations to doorways, thresholds, installation of lifts, procurement of wheelchair ramps, repositioning of door handles and light switches, and so on
            • organization of the work—this could involve alteration of routines, changes in working hours, active participation by other workers; for instance, recording on and transcribing from a dictaphone cassette
            • measures in connection with training and retraining.

                   

                  In addition to these measures, there is a system which provides employers of handicapped persons with subsidies concerning the additional cost to adapt the workplace to the worker, or vice versa.

                  Type B: Measures for disabled persons which are provided for in special acts which deal exclusively with vocational rehabilitation and employment of disabled persons.

                  This type of legislation usually has specific provisions on vocational rehabilitation and employment dealing with various measures, while other measures for disabled people are stipulated in other acts.

                  For example, the Severely Disabled Persons Act of Germany provides for the following special assistance for disabled persons to improve their employment opportunities, as well as vocational guidance and placement services:

                    • vocational training in enterprises and training centres or in special vocational rehabilitation institutions
                    • special benefits for disabled persons or employers—payment of application and removal costs, transitional allowances, technical adaptation of workplaces, payment of housing costs, assistance in acquiring a special vehicle or additional special equipment or in obtaining a driving licence
                    • the obligation for public and private employers to reserve 6% of their workplaces for severely disabled persons; compensation payments must be paid in respect of the places not filled in this manner
                    • special protection against dismissal for all severely disabled persons after a period of six months
                    • representation of the interests of severely disabled persons in the enterprise by means of a staff counsellor
                    • supplementary benefits for severely disabled persons to ensure their integration into occupation and employment
                    • special workshops for disabled persons who are unable to work on the general labour market because of the nature or severity of their impediment
                    • grants for employers of up to 80% of the wage paid to disabled persons for a period of two years, as well as payments in respect of the adaptation of workplaces and the establishment of specified probationary periods of employment.

                                   

                                  Type C: Measures for the vocational rehabilitation and employment of disabled persons which are provided for in comprehensive special acts for disabled persons linked together with measures for other services such as health, education, accessibility and transportation.

                                  This type of legislation usually has general provisions concerning the purpose, declaration of policy, coverage, definition of terms in the first chapter, and after that several chapters which deal with services in the fields of employment or vocational rehabilitation as well as health, education, accessibility, transportation, telecommunications, auxiliary social services and so on.

                                  For example, the Magna Carta for Disabled Persons of the Philippines provides for the principle of equal opportunity for employment. The following are several measures from chapter on employment:

                                    • 5% of reserved employment for disabled persons in departments or agencies of the government
                                    • incentives for employers such as a deduction from their taxable income equivalent to a certain part of the wages of disabled persons or of the costs of improvements or modifications of facilities
                                    • vocational rehabilitation measures that serve to develop the skills and potentials of disabled persons and enable them to compete favourably for available productive and remunerative employment opportunities, consistent with the principle of equal opportunity for disabled workers and workers in general
                                    • vocational rehabilitation and livelihood services for disabled people in the rural areas
                                    • vocational guidance, counselling and training to enable disabled persons to secure, retain and advance in employment, and the availability and training of counsellors and other suitably qualified staff responsible for these services
                                    • government-owned vocational and technical schools in every province for a special vocational and technical training programme for disabled persons
                                    • sheltered workshops for disabled individuals who cannot find suitable employment in the open labour market
                                    • apprenticeship.

                                                   

                                                  Furthermore, this act has provisions concerning prohibition of discrimination against disabled persons in employment.

                                                  Type D: Measures for prohibition of discrimination in employment on the basis of disability which are provided for in a comprehensive special anti-discrimination act along with measures for prohibition of discrimination in areas such as public transportation, public accommodation and telecommunications.

                                                  The feature of this type of legislation is that there are provisions which deal with discrimination on the ground of disability in employment, public transportation, accommodation, telecommunications and so on. Measures for vocational rehabilitation services and the employment of disabled people are provided for in other acts or regulations.

                                                  For example, the Americans with Disabilities Act prohibits discrimination in such important areas as employment, access to public accommodations, telecommunications, transportation, voting, public services, education, housing and recreation. As for employment in particular, the Act prohibits employment discrimination against “qualified individuals with a disability” who, with or without “reasonable accommodation”, can perform the essential functions of the job, unless such accommodation would impose “undue hardship” on the operation of the business. The Act prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training and other terms, conditions and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits and all other employment-related activities.

                                                  In Australia, the purpose of the Disability Discrimination Act is to provide improved opportunities for people with a disability and to assist in breaking down barriers to their participation in the labour market and other areas of life. The Act bans discrimination against people on the grounds of disability in employment, accommodation, recreation and leisure activities. This complements existing anti-discrimination legislation that outlaws discrimination on the grounds of race or gender.

                                                  Quota/Levy Legislation or Anti-discrimination Legislation?

                                                  The structure of national legislation on vocational rehabilitation and employment of disabled persons varies somewhat from country to country, and it is therefore difficult to determine which type of legislation is best. However, two types of legislation, namely quota or levy legislation and anti-discrimination legislation, seem to emerge as the two main legislative modes.

                                                  Although some European countries, among others, have quota systems which are usually provided in the legislation of Type B, they are quite different in some points, such as the category of disabled persons to whom the system is applied, the category of employers on whom the employment obligation is imposed (for example, size of the enterprise or public sector only) and the employment rate (3%, 6%, etc.). In most countries the quota system is accompanied by a levy or grant system. Quota provisions are also included in the legislation of non-industrialized countries as varied as Angola, Mauritius, the Philippines, Tanzania and Poland. China is also examining the possibility of introducing a quota system.

                                                  There is no doubt that a quota system that is enforceable could contribute considerably to raising the employment levels of disabled persons in the open labour market. Also, the system of levies and grants helps to rectify the financial inequality between the employers who try to employ disabled workers and the ones who do not, while levies contribute to accumulating valuable resources that are needed to finance vocational rehabilitation and incentives for employers.

                                                  On the other hand, one of the problems of the system is the fact that it requires a clear definition of disability for recognizing qualification, and strict rules and procedures for registration, and therefore it may raise the problem of stigma. There may also be the potential discomfort of a disabled person being at a place of employment where he or she is not wanted by the employer but is merely tolerated to avoid legal sanctions. In addition, credible enforcement mechanisms and their effective application are required for quota legislation to achieve results.

                                                  Anti-discrimination legislation (Type D) seems to be more appropriate for the principle of normalization, ensuring disabled persons equal opportunities in society, because it promotes employers’ initiatives and social consciousness by means of environmental improvement, not employment obligation.

                                                  On the other hand, some countries have difficulties in enforcing anti-discrimination legislation. For example, remedial action usually requires a victim to play the role of complainant, and in some cases it is difficult to prove discrimination. Also the process of remedial action commonly takes a long time because a lot of complaints of discrimination on the basis of disability are sent to courts or equal rights commissions. It is generally admitted that anti-discrimination legislation has still to prove its effectiveness in placing and maintaining large numbers of disabled workers in employment.

                                                  Future Trends

                                                  Although it is difficult to forecast future trends in legislation, it appears that anti-discrimination acts (Type D) are one stream which both developed countries and developing countries will consider.

                                                  It seems that industrialized countries with a history of quota or quota/levy legislation will watch the experience of countries such as the United States and Australia before taking action to adjust their own legislative systems. In particular in Europe, with its concepts of redistributive justice, it is likely that the prevailing legislative systems will be maintained, while, however, introducing or strengthening anti-discrimination provisions as an additional legislative feature.

                                                  In a few countries like the United States, Australia and Canada, it could be politically difficult to legislate a quota system for disabled people without having quota provisions also in relation to other population groups that experience disadvantages in the labour market, such as women and ethnic and racial minority groups currently covered by human rights or employment equity legislation. Although a quota system would have some advantages for disabled people, the administrative apparatus required for such a multicategory quota system would be enormous.

                                                  It appears that developing countries which have no disability legislation may choose legislation of Type C, including a few provisions concerning prohibition of discrimination, because it is the more comprehensive approach. The risk of this approach, however, is that comprehensive legislation which cuts across the responsibility of many ministries becomes the affair of a single ministry, mostly that responsible for social welfare. This may be counterproductive, reinforce segregation and weaken the government’s ability to implement the law. Experience shows that comprehensive legislation looks good on paper, but is rarely applied.

                                                   

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                                                  Friday, 11 February 2011 21:07

                                                  Disability: Concepts and Definitions

                                                  Preliminary Considerations

                                                  Most people seem to know what a disabled person is and are certain that they would be able to identify an individual as disabled, either because the disability is visible or because they are aware of a specific medical condition that lends itself to be called disability. However, what precisely the term disability means is less easy to determine. A common view is that having a disability makes an individual less capable of performing a variety of activities. In fact, the term disability is as a rule used to indicate a reduction or deviation from the norm, a shortcoming of an individual that society has to reckon with. In most languages, terms equivalent to that of disability contain the notions of less value, less ability, a state of being restricted, deprived, deviant. It is in line with such concepts that disability is exclusively viewed as a problem of the affected individual and that the problems indicated by the presence of a disability are considered to be more or less common to all situations.

                                                  It is true that a disabling condition may affect to varying degrees the personal life of an individual and his or her relations with family and community. The individual who has a disability may, in fact, experience the disability as something that sets him or her apart from others and that has a negative impact on the way life is organized.

                                                  However, meaning and impact of disability change substantially depending on whether the environment and the attitudes of the public accommodate a disability or whether they do not. For example, in one context, the person who uses a wheelchair is in a state of complete dependency, in another he or she is as independent and working as any other person.

                                                  Consequently, the impact of an alleged dysfunction is relative to the environment, and disability is thus a social concept and not solely the attribute of an individual. It is also a highly heterogeneous concept, making the search for a homogeneous definition a virtually impossible task.

                                                  Despite many attempts to define disability in general terms, the problem remains concerning what renders an individual disabled and who should belong to this group. For example, if disability is defined as dysfunction of an individual, how to classify a person who despite a serious impairment is fully functional? Is the blind computer specialist who is gainfully employed and has managed to solve his or her transport problems, secure adequate housing and have a family still a disabled person? Is the baker who can no longer exercise his profession because of a flour allergy to be counted among disabled job-seekers? If so, what is the real meaning of disability?

                                                  To understand this term better, one has first to distinguish it from other related concepts that are often confused with disability. The most common misunderstanding is to equate disability with disease. Disabled people are often described as the opposite of healthy people and, consequently, as needing the help of the health profession. However, disabled people, as anyone else, need medical help only in situations of acute sickness or illness. Even in cases where the disability results from a protracted or chronic illness, such as diabetes or a cardiac disease, it is not the sickness as such, but its social consequences that are involved here.

                                                  The other most common confusion is to equate disability with the medical condition that is one of its causes. For example, lists have been drawn up that classify disabled people by types of “disability”, such as blindness, physical malformations, deafness, paraplegia. Such lists are important for determining who should be counted as a disabled person, except that the use of the term disability is inaccurate, because it is confounded with impairment.

                                                  More recently, efforts have been made to describe disability as difficulty in performing certain types of function. Accordingly, a disabled person would be someone whose ability to perform in one or several key areas—such as communication, mobility, dexterity and speed—is affected. Again, the problem is that a direct link is made between the impairment and the resulting loss of function without taking into account the environment, including the availability of technology that could compensate for the loss of function and thus render it insignificant. To look at disability as the functional impact of impairment without acknowledging the environmental dimension means to put the blame for the problem entirely on the disabled individual. This definition of disability still stays within the tradition of regarding disability as a deviation from the norm and ignores all other individual and societal factors that together constitute the phenomenon of disability.

                                                  Can disabled people be counted? This may be possible within a system that applies precise criteria as to who is sufficiently impaired to be counted as disabled. The difficulty is to make comparisons between systems or countries that apply different criteria. However, who will be counted? Strictly speaking, censuses and surveys that undertake to produce disability data can count only people who themselves indicate that they have an impairment or a functional restriction on account of an impairment, or who believe that they are in a situation of disadvantage because of an impairment. Unlike gender and age, disability is not a clearly definable statistical variable, but a contextual term that is open to interpretation. Therefore, disability data can offer only approximations and should be treated with utmost care.

                                                  For the reasons outlined above, this article does not constitute yet another attempt to present a universal definition of disability, or to treat disability as an attribute of an individual or a group. Its intention is to create an awareness about the relativity and heterogeneity of the term and an understanding about the historical and cultural forces that have shaped legislation as well as positive action in favour of people identified as disabled. Such an awareness is the prerequisite for the successful integration of disabled people in the workplace. It will permit a better understanding of the circumstances that need to be in place to make the disabled worker a valuable member of the workforce instead of being barred employment or pensioned off. Disability is presented here as being manageable. This requires that individual needs such as skill upgrading or the provision with technical aids, be addressed, and accommodated by adjusting the workplace.

                                                  There is currently a vivid international debate, spearheaded by disability organizations, regarding a non-discriminatory definition of disability. Here, the view is gaining ground that disability should be identified where a particular social or functional disadvantage occurs or is anticipated, linked to an impairment. The issue is how to prove that the disadvantage is not the natural, but rather the preventable result of the impairment, caused by a failure of society to make adequate provision for the removal of physical barriers. Leaving aside that this debate reflects primarily the view of disabled people with a mobility impairment, the possible unwelcome consequence of this position is that the state may shift expenditures, such as for disability benefits or special measures, based on disability, to those that improve the environment.

                                                  Nevertheless, this debate, which is continuing, has highlighted the need to find a definition of disability that reflects the social dimension without sacrificing the specificity of the disadvantage based on an impairment, and without losing its quality as an operational definition. The following definition tries to reflect this need. Accordingly, disability can be described as the environmentally determined effect of an impairment that, in interaction with other factors and within a specific social context, is likely to cause an individual to experience an undue disadvantage in his or her personal, social or professional life. Environmentally determined means that the impact of the impairment is influenced by a variety of factors, including preventive, corrective and compensatory measures as well as technological and accommodative solutions.

                                                  This definition recognizes that in a different environment that erects fewer barriers, the same impairment could be without any significant consequences, hence without leading to a disability. It stresses the corrective dimension over a concept that takes disability as an unavoidable fact and that simply seeks to ameliorate the living conditions of the afflicted persons. At the same time, it maintains the grounds for compensatory measures, such as cash benefits, because the disadvantage is, despite the recognition of other factors, still specifically linked to the impairment, irrespective of whether this is the result of a dysfunction of the individual or of negative attitudes of the community.

                                                  However, many disabled people would experience substantial limitations even in an ideal and understanding environment. In such cases the disability is primarily based in the impairment and not in the environment. Improvements in environmental conditions can substantially reduce dependency and restrictions, but they will not alter the fundamental truth that for many of these severely disabled people (which is different from severely impaired) participation in social and professional life will continue to be restricted. It is for these groups, in particular, that social protection and ameliorative provisions will continue to play a more significant role than the aim of full integration into the workplace which, if it takes place, is often done for social rather than for economic reasons.

                                                  But this is not to suggest that persons thus defined as severely disabled should live a life apart and that their limitations should be grounds for segregation and exclusion from the life of the community. One of the major reasons for exercising utmost caution as regards the use of disability definitions is the widespread practice of making a person thus identified and labelled the object of discriminatory administrative measures.

                                                  Nevertheless, this points to an ambiguity in the concept of disability that gives rise to so much confusion and that could be a main reason for the social exclusion of disabled people. For, on the one hand, many campaign with the slogan that disability does not mean inability; on the other, all existing protective systems are based on the grounds that disability means inability to make a living on one’s own. The reluctance of many employers to hire disabled people may be founded in this basic contradiction. The answer to this is a reminder that disabled people are not a homogeneous group, and that each case should be judged individually and without bias. But it is true that disability may mean both: an inability to perform according to the norm or an ability to perform as well as or even better than others, if given the opportunity and the right kind of support.

                                                  It is obvious that a concept of disability as outlined above calls for a new foundation for disability policies: sources of inspiration for how to modernize policies and programmes in favour of disabled persons can be found among others in the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) (ILO 1983) and the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (United Nations 1993).

                                                  In the following paragraphs, the various dimensions of the disability concept as it affects present law and practice will be explored and described in an empirical manner. Evidence will be provided that various disability definitions are in use, mirroring the world’s different cultural and political legacies rather than giving cause for the hope that a single universal definition can be found which is understood by everyone in the same manner.

                                                  Disability and normality

                                                  As mentioned above, most past regulatory attempts at defining disability have fallen prey, in one form or another, to the temptation of describing disability as primarily negative or deviatory. The human being afflicted with disability is seen as a problem and becomes a “social case”. A disabled person is assumed to be unable to pursue normal activities. He or she is a person with whom all is not quite in order. There is an abundance of scientific literature that depicts disabled people as having a behavioural problem, and in many countries “defectology” was and still is a recognized science that sets out to measure the degree of deviation.

                                                  Individuals who have a disability generally defend themselves against such a characterization. Others resign themselves to the role of a disabled person. Classifying persons as disabled disregards the fact that what disabled individuals have in common with the non-disabled usually far outweighs that which makes them different. Further, the underlying concept that disability is a deviation from the norm is a questionable value statement. These considerations have incited many people to prefer the term persons with disabilities to that of disabled persons, as the latter term could be understood as making disability the primary characteristic of an individual.

                                                  It is thoroughly conceivable that human and social reality be defined in such a way that disability be regarded as consistent with normalcy and not as a deviation from it. In fact, the Declaration that was adopted in 1995 by the heads of state and government at the UN World Summit for Social Development in Copenhagen describes disability as a form of social diversity. This definition demands a conception of society which is a society “for all”. Thereby previous attempts at defining disability negatively, as deviation from the norm or as deficiency, are no longer valid. A society which adapts itself to disability in an inclusive manner could substantially overcome those effects of disability which were previously experienced as overly restrictive.

                                                  Disability as identity

                                                  Despite the danger that the label will invite segregation and discrimination, there are valid reasons to adhere to the usage of the term disability and to group individuals in this category. It cannot be denied, from an empirical standpoint, that many individuals with disability share similar, mostly negative, experiences of discrimination, exclusion and economic or social dependency. There exists a factual categorization of human beings as disabled, because specific negative or censorious social behaviour patterns appear to be based upon disability. Conversely, where there are efforts made to fight discrimination on the basis of disability, it also becomes necessary to stipulate who should have the right to enjoy protection under such measures.

                                                  It is in reaction to the way society treats people with disabilities that many individuals who have experienced discrimination in one form or another because of their disability join together in groups. They do so partly because they feel more at ease among individuals who share their experience, partly because they wish to advocate common interests. They accordingly accept the disabled role, if indeed for very different motives: some, because they want to induce society to view disability, not as an attribute of isolated individuals, but rather as the result of action and neglect on the part of the community which unduly curtails their rights and opportunities; the others, because they acknowledge their disability and demand their right to be accepted and respected in their difference, which includes their right to struggle for equality of treatment.

                                                  However, most individuals who, on account of an impairment, have a functional limitation of one form or another appear not to see themselves as disabled. This creates a problem not to be underestimated for those engaged with the politics of disability. For example, should those who do not self-identify as disabled be counted among the numbers of disabled persons, or only those who register as disabled?

                                                  Legal recognition as disabled

                                                  In many constituencies definitions of disability are identical with an administrative act of recognizing a disability. This recognition as disabled becomes a prerequisite for the claiming of support on the basis of a physical or mental limitation or for litigation under an anti-discrimination law. Such support can comprise provisions for rehabilitation, special education, retraining, privileges in the securing and preserving of a place of employment, guarantee of subsistence through income, compensation payments and assistance with mobility, etc.

                                                  In all cases in which legal regulations are in force in order to compensate for or to prevent disadvantages, there arises the need to clarify who has a claim on such legal provisions, be these benefits, services or protective measures. It follows thereupon, that the definition of disability is conditioned by the type of service or regulation which is offered. Virtually every existing definition of disability thus mirrors a legal system and draws its meaning from this system. Being recognized as disabled means to fulfil the conditions for benefiting from the possibilities presented by this system. These conditions, however, may vary among constituencies and programmes and, consequently, many different definitions may coexist side by side within a country.

                                                  Further evidence that the legal realities of the respective nations determine the definition of disability is offered by those countries, such as Germany and France, which have introduced a regulation including quotas or the levying of fines in order to assure disabled people access to employment opportunities. It can be demonstrated that with the introduction of such legislation, the number of “disabled” workers has risen drastically. This rise is to be explained only by the fact that employees—often on the recommendation of employers—who in the absence of such a law would never have designated themselves as disabled, register themselves as such. These same individuals were also never previously registered statistically as disabled.

                                                  Another legal difference among countries is the treatment of a disability as a temporary or permanent condition. In some countries, which offer disabled persons specific advantages or privileges, these privileges are limited to the duration of a recognized disadvantage. If this state of disadvantage is overcome through corrective actions, the disabled person loses his or her privileges—independently of whether medical facts (e.g., the loss of an eye or a limb) remain. For example, an individual who has successfully completed rehabilitation that has re-established lost functional abilities may lose entitlements to disability benefits or may not even enter a benefit scheme.

                                                  In other countries, lasting privileges are offered to offset real or hypothetical handicaps. This practice has resulted in the development of a legally recognized disability status bearing elements of “positive discrimination”. These privileges often apply even to those who are no longer actually in need of them because they are socially and economically well integrated.

                                                  The problem with statistical registration

                                                  A definition of disability that can be applied universally is impossible, since every country, and practically every administrative body, works with different concepts of disability. Every attempt to measure disability statistically must take into account the fact that disability is a system-dependent, and therefore a relative, concept.

                                                  Consequently, most regular statistics contain information only about the beneficiaries of specific state or public provisions who have accepted disability status in accordance with the operative definitions of the law. People who do not view themselves as disabled and manage alone with a disability usually do not come within the purview of official statistics. In fact, in many countries, such as the United Kingdom, many disabled people avoid statistical registration. The right not to be registered as disabled is in keeping with the principles of human dignity.

                                                  Therefore, occasionally, efforts are made to determine the total number of disabled persons through surveys and censuses. As already argued above, these come up against objective conceptual limits which render the comparability of such data between countries practically impossible. Above all, it is controversial what precisely such surveys are meant to prove, in particular as the notion of disability, as an objective set of findings that is equally applied and understood in all countries, cannot be sustained. Thus, a low number of statistically registered persons with disability in some countries does not necessarily reflect an objective reality, but most likely the fact that the countries in question offer fewer services and legal regulations in favour of disabled persons. Conversely, those countries which have an extensive social protection and rehabilitation system are likely to show a high percentage of disabled individuals.

                                                   

                                                  Contradictions in the use of the concept of disabled persons

                                                  Objective results are, therefore, not to be expected on the level of quantitative comparison. But there is also no uniformity of interpretation from a qualitative point of view. Here again, the respective context and the intention of lawmakers determine the definition of disability. For example, the effort to guarantee disabled persons social protection requires disability to be defined as the inability to earn one’s own living. In contrast, a social policy whose goal is vocational integration endeavours to describe disability as a condition that, with the help of appropriate measures, need not have any detrimental effects on the level of performance.

                                                   

                                                  International Definitions of Disability

                                                   

                                                  The concept of disability in Convention No. 159 of the International Labour Organization

                                                  The above considerations also underlie the framework definition used in the Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159) (ILO 1983). Article 1.1 contains the following formulation: “For the purposes of this Convention, the term ‘disabled person’ means an individual whose prospects of securing, retaining and advancing in suitable employment are substantially reduced as a result of a duly recognized physical or mental impairment”.

                                                  This definition contains the following constituent elements: the reference to mental or physical impairment as the original cause of the disability; the necessity of a state recognition procedure that—in accordance with the respective national realities—determines who should be considered disabled; the determination that disability is not constituted by the impairment itself but by the possible and real social consequences of an impairment (in this case a more difficult situation on the labour market); and the established entitlement to measures which help to secure equality of treatment on the labour market (see Article 1.2). This definition consciously avoids an association with concepts such as inability and leaves room for an interpretation which holds that disability can also be conditioned by misconceived opinions held by an employer which may result in conscious or unconscious discrimination. On the other hand, this definition does not rule out the possibility that, in the case of a disability, objective limitations with respect to performance can occur, and leaves open whether or not the equal treatment principle of the Convention would apply in this case.

                                                  The definition in the ILO Convention does not make a claim to be a comprehensive, universally applicable definition of disability. Its sole intention is to provide for a clarification of what disability could mean in the context of employment and labour measures.

                                                   

                                                  The concept of disability in light of the definition of the World Health Organization

                                                  The International Classification of Impairments, Disabilities and Handicaps (ICIDH) of the World Health Organization (WHO 1980) offers a definition of disability, in the area of health policy, which differentiates between impairment, disability and handicaps:

                                                  • “In the context of health experience, an impairment is any loss or abnormality of psychological, physiological, or anatomical structure or function.”
                                                  • “In the context of health experience, a disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being.”
                                                  • “In the context of health experience, a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual.”

                                                   

                                                  The new and distinctive aspects of this conceptual differentiation do not lie in its traditional epidemiological approach and its classificatory apparatus, but rather in its introduction of the concept of handicap, which calls on those concerned with public health policy to reflect on the social consequences of specific impairments on a person affected and to regard the treatment process as part of a holistic concept of life.

                                                  The WHO clarification was especially necessary because the words impairment and disability were previously often equated with concepts such as crippled, mentally retarded and the like, which convey an exclusively negative image of disability to the public. A categorization of this kind is, in fact, not suited to a precise definition of the concrete situation of a disabled individual within society. The WHO terminology has since become a reference for the discussion on the concept of disability at the national and international levels. It will, therefore, be necessary to dwell on these concepts a little more.

                                                  Impairment. With this concept, health professionals customarily designate an existing or developing injury to bodily functions or to vital life processes in a particular person that affects one or more parts of the organism or that indicates a defect in the psychic, mental or emotional functioning as the result of an illness, accident or congenital or hereditary condition. An impairment can be temporary or permanent. The influences of professional or social contexts or of the environment as a whole are not taken into consideration in this category. Here, the physician’s assessment of a person’s medical condition or an impairment is exclusively at issue, without consideration of the consequences that this impairment may have upon that person.

                                                  Disability. Such impairment or loss can result in substantial limitation to the active lives of persons afflicted. This consequence of impairment is termed disability. Functional disorders of the organism, such as, for example, psychic disorders and mental breakdowns, can lead to more or less severe disabilities and/or negative effects in the execution of specific activities and duties of daily living. These effects can be temporary or permanent, reversible or irreversible, constant, progressive or subject to successful treatment. The medical concept of disability designates, therefore, functional limitations which arise in the lives of specific individuals as the direct or indirect result of a physical, psychosocial or mental impairment. Above all, disability reflects the personal situation of the individual who has an impairment. However, as the personal consequences of a disability depend upon age, sex, social position and profession, and so on, the same or similar functional disorders can have thoroughly different personal consequences for different individuals.

                                                  Handicap. As soon as persons with physical or mental impairments enter their social, professional or private context, difficulties may arise which bring them into a situation of disadvantage, or handicap, in relation to others.

                                                  In the original version of the ICIDH, the definition of handicap signifies a disadvantage which emerges as the result of an impairment or a disability, and which limits an individual in the performance of what is regarded as a “normal” role. This definition of handicap, which bases the problem exclusively upon the personal situation of the person afflicted, has since come under criticism, for the reason that it does not sufficiently take into account the role of the environment and the attitude of society in bringing about the situation of disadvantage. A definition which takes these objections into account should reflect upon the relationship between the disabled individual and the manifold environmental, cultural, physical or social barriers that a society reflecting the attitudes of non-disabled members tends to erect. In light of this, every disadvantage in the life of a specific person that is not so much the result of an impairment or a disability, but of negative or unaccommodating attitudes in the largest sense, should be termed “handicap”. Further, any measures taken towards the improvement of the situation of disabled individuals, including those that help them to fully participate in life and in society, would contribute to preventing the “handicap”. A handicap thus is not the direct result of an existing impairment or disability, but the result of the interaction between an individual with a disability, the social context and the immediate surroundings.

                                                  It may not be assumed at the outset, therefore, that a person with an impairment or disability must automatically also have a handicap. Many disabled individuals succeed, despite the limitations caused by their disability, in the full pursuit of a profession. On the other hand, not every handicap can be attributed to a disability. It can also be caused by a lack of education that may or may not be linked with disability.

                                                  This hierarchical system of classification—impairment, disability, handicap—can be compared with the various phases of rehabilitation; for example, when the purely curative treatment is followed by rehabilitation of functional and psycho-social limitations and is completed with vocational rehabilitation or training for an independent pursuit of life.

                                                  The objective assessment of the degree of a disability in the sense of its social consequences (handicap) cannot, for this reason, rely solely upon medical criteria, but must take into account the vocational, social and personal contexts—especially the attitude of the non-disabled population. This state of affairs makes it quite difficult to measure and unequivocally establish a “state of disability”.

                                                   

                                                  Definitions in Use in Various Countries

                                                   

                                                  Disability as a legal category for the establishment of claims

                                                  Disability status is determined, as a rule, by a competent national authority on the basis of findings after an examination of individual cases. Therefore, the purpose for which disability status should be recognized plays an essential role—for example, where the determination of the presence of a disability serves the purpose of laying claim to specific personal rights and legal benefits. The primary interest in having a legally sound definition of disability is thus motivated not by medical, rehabilitative or statistical reasons, but rather by juridical reasons.

                                                  In many countries, persons whose disability is recognized can lay claim to the right to various services and regulatory measures in specific areas of health and social policies. As a rule, such regulations or benefits are designed to improve their personal situation and to support them in overcoming difficulties. The basis for the guarantee of such benefits thus is an act of official recognition of an individual’s disability on the strength of the respective statutory provisions.

                                                  Examples of definition from legislative practice

                                                  These definitions vary widely between different states. Only a few examples that are currently in use can be cited here. They serve to illustrate the variety as well as the questionable character of many definitions. As it cannot be the purpose here to discuss specific legal models, the sources of the quotations are not given, nor is an evaluation of which definitions appear more adequate than others. Examples of national definitions of disabled persons:

                                                  • Those who are afflicted with a not only temporary functional impairment which is due to an irregular physical, mental or psychological condition or any who are threatened with such a disability. If the degree of disability amounts to at least 50%, it is considered a severe disability.
                                                  • All those whose working capacity is diminished by at least 30% (for physical disability) or at least 20% (for mental disability).
                                                  • All those whose opportunities to obtain and hold (secure and retain) employment are restricted by either a lack or limitation in their physical or mental capabilities.
                                                  • All those who because of an impairment or invalidity are hindered or prevented from the accomplishment of normal activities. The impairment may concern both mental and bodily functions.
                                                  • All those whose ability to work is permanently restricted because of a physical, psychical or sensory defect.
                                                  • All those who need care or special treatment to assure the support, development and restoration of their vocational capabilities. This includes physical, mental, psychical and social disabilities.
                                                  • All those who because of a permanent limitation to their physical, mental or sensory capabilities—independent of whether hereditary or acquired—enjoy only restricted opportunities to pursue an education and participate in vocational and social life.
                                                  • Victims of industrial accidents, war disabled and individuals who suffer from a physical, mental or psychical impairment. The reduction of working capacity must amount to at least 30%.
                                                  • All those who because of an impairment, illness or hereditary disease experience substantially reduced opportunities in securing and retaining employment appropriate to their age, experience and qualifications.
                                                  • Persons with a physical or mental impairment which, to a significant extent, restricts an important part of their life activity or those who are assumed to suffer from such an impairment or for whom earlier records about such impairments exist.
                                                  • Persons who are afflicted with a functional disorder or disease that leads to: (a) a total or partial loss of physical or mental functions; (b) illnesses caused or which will forseeably be caused by the presence of organisms in the body; (c) a loss of normal function due to deformation of body parts; (d) the appearance of learning difficulties not present in individuals without functional disorders or restrictions; (e) an impairment to behaviour, thought process, judgement and emotional life.
                                                  • Persons who, due to physical or mental impairment as a result of a birth defect, illness or accident, are presumed incapable of earning their living, either permanently or for an extended period of time.
                                                  • Persons who, as a result of an illness, injury, a mental or physical weakness, are not in the position for a period of at least six months to earn, from work that corresponds to their potential abilities and cultural level, a specific fraction (1/3, 1/2, 2/3) of that income, which an individual in good condition in the same profession and at the same cultural level would receive.
                                                  • The term disability means, with respect to an individual: (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such impairment.

                                                   

                                                  The multitude of legal definitions which partially supplement and partially exclude one another suggest that definitions serve, above all, bureaucratic and administrative goals. Among all the listed definitions not one can be considered satisfactory, and all raise more questions than they answer. Beyond a few exceptions, most definitions are oriented towards the representation of an individual deficiency and do not address the correlation between an individual and his or her environment. What in reality is the reflection of a complex relativity is reduced in an administrative context to an apparently clear-cut and stable quantity. Such oversimplified definitions then tend to take on a life of their own and frequently force individuals into accepting a status that is commensurate with the law, but not necessarily with their own potential and aspirations.

                                                  Disability as an issue for sociopolitical action

                                                  Individuals who are recognized as disabled are, as a rule, entitled to measures such as medical and/or vocational rehabilitation or to draw on specific financial benefits. In some countries, the range of sociopolitical measures also includes the granting of certain privileges and support as well as special protective measures. Examples include: a legally embodied principle of equality of opportunity in vocational and social integration; a legally established right to needed assistance in the realization of equal opportunity, a constitutional right to education and vocational integration; the furtherance of vocational training and placement in employment; and a constitutional assurance of increased support in case of need of special help from the state. Several states proceed from the absolute equality of all citizens in all areas of life and have set the realization of this equality as their goal, without seeing a reason for treating the special problems of disabled persons in laws enacted expressly for that purpose. These states usually refrain from defining disability altogether.

                                                  Disability in the context of vocational rehabilitation

                                                  In contrast to the establishment of pension claims or privileges, the definition of disability in the area of vocational integration emphasizes the avoidable and correctable effects of disability. It is the purpose of such definitions to eliminate, through rehabilitative provisions and active labour market policies, the vocational disadvantages connected with disability. The vocational integration of disabled persons is supported by the allocation of financial assistance, by accompanying provisions in the area of vocational training and by the accommodation of the workplace to the special needs of the disabled worker. Here again, the practices vary greatly between different countries. The range of benefits runs from relatively slight and short-term financial allocations to large-scale, longer-term vocational rehabilitation measures.

                                                  Most states set a relatively high value on the furtherance of vocational training for disabled individuals. This can be provided in ordinary or special centres run by public or private agencies, as well as in an ordinary enterprise. Preference given to each differs from country to country. Sometimes the vocational training is conducted in a sheltered workshop or provided as on-the-job training that is reserved for a disabled worker.

                                                  As the financial implications of these measures can be considerable for the taxpayer, the act of recognizing a disability is a far-reaching measure. Often, however, the registration is done by a different authority than that which administers the vocational rehabilitation programme and which meets its costs.

                                                  Disability as a permanent disadvantage

                                                  While the goal of vocational rehabilitation is to overcome the possible negative effects of disability, there exists wide agreement in disability legislation that further protective social measures are sometimes necessary to assure the vocational and social integration of rehabilitated individuals. It is also generally recognized that disability presents the continuing risk of social exclusion independent of the existence of an actual functional disorder. In recognition of this permanent threat, legislators provide a series of protective and supportive measures.

                                                  In many countries, for example, employers who are prepared to employ disabled persons in their companies can expect subsidies towards the wages and social security contributions of the disabled workers, the amount and duration of which will vary. Generally, an effort is made to assure that disabled employees receive the same income as non-disabled employees. This can result in situations wherein disabled individuals who receive a lower wage from their employers are refunded up to the full difference through arrangements made by the social protection system.

                                                  Even the establishment of small businesses by disabled individuals may be supported through various measures such as loans and loan guarantees, interest subsidies and rent allowances.

                                                  In many countries, the protection of disabled individuals from dismissal and the protection of their right to re-employment is handled in different ways. Many states have no special legal regulation for the dismissal of disabled persons; in some, a special commission or institution decides on the justification and legitimacy of a dismissal; in others, special regulations for victims of industrial accidents, for severely disabled workers and for workers on extended periods of sick-leave are still in effect. The legal situation with regard to the re-employment of disabled individuals is similar. Here too, there are countries which recognize a general obligation of the enterprise to keep a worker employed after injury or to re-employ him or her after completion of rehabilitation measures. In other countries, businesses are not under any obligation to re-employ disabled employees. Furthermore, there exist in some countries recommendations and conventions as to how to proceed in such cases, as well as countries in which the employee who has suffered a specific occupational disability is guaranteed either redeployment or return to the previous job after his or her medical recovery is complete.

                                                  Differences in treatment by cause of disability

                                                  The above overview helps to illustrate that laws provide different types of legal claim which bear clear consequences for the respective national concept of disability. Also the reverse is true: in those countries which provide no such legal entitlements, there exists no need to define disability in legally clear and binding terms. In such cases, the predominant inclination is to recognize as disabled only those who are visibly and markedly disabled in a medical sense—that is, persons with physical impairments, blindness, deafness or mental handicap.

                                                  In modern disability legislation—though less in the realm of social security provision—the principle of finality is becoming more grounded. This principle means that not the cause of a disability, but exclusively the needs associated with the disability and the final outcome of measures should be the concern of legislators. Nevertheless, the social status and the legal claims of disabled individuals are often dependent on the cause of their disability.

                                                  In consideration of the cause of disability, definitions differ not only in meaning but also in the implications they have in terms of potential benefits and assistance. The most important distinctions are made between disabilities that result from hereditary or birth-related physical, mental or psychological deficiencies or impairments; disabilities brought on by diseases; disabilities caused by home, work, sport or traffic accidents; disabilities brought on by occupational or environmental influences; and disabilities as a result of civil strife and armed conflict.

                                                  The relative preference shown to some disabled groups is often the consequence of their respectively better coverage under the social security system. Preference can also reflect the attitude of a community—for instance in the case of war veterans or accident victims—that feels a co-responsibility for the incident that led to the disability, while hereditary disability is often regarded as a problem of the family only. Such societal attitudes towards disability often have more significant consequences than official policy and can sometimes exert a decisive influence—negative or positive—on the process of social reintegration.

                                                  Summary and outlook

                                                  The diversity of historical, legal and cultural situations renders the discovery of a unitary concept of disability, equally applicable to all countries and situations, virtually impossible. For lack of a common and objective definition of disability, statistics are frequently provided by authorities as a means of keeping client records and interpreting the outcome of measures—a fact that makes an international comparison very difficult, as systems and conditions vary greatly among countries. Even where reliable statistics exist, the problem remains that individuals may be included in statistics who are no longer disabled or who, after successful rehabilitation, are no longer inclined to consider themselves disabled.

                                                  In most industrialized countries, the definition of disability is, above all, connected with legal entitlements to medical, social and vocational measures, to protection against discrimination or to cash benefits. As such, most definitions in use reflect legal practice and requirements that differ from country to country. In many cases, the definition is linked to an act of official recognition of disability status.

                                                  Owing to developments as different as the emergence of human rights legislation and technological advancements, traditional concepts of disability that led to situations of protected exclusion and segregation are losing ground. A modern concept of disability puts the issue at the intersection between social and employment policies. Disability is thus a term of social and vocational, rather than of medical, relevance. It demands corrective and positive measures to ensure equal access and participation, rather than passive measures of income support.

                                                  A certain paradox arises out of the understanding of disability as, on the one hand, something which can be overcome through positive measures, and, on the other, as something lasting which necessitates permanent protective or ameliorative measures. A similar frequently encountered contradiction is that between the idea of disability as fundamentally an issue of individual performance or function restriction, and the idea of disability as the unjustified cause for social exclusion and discrimination.

                                                  Opting for one all-encompassing definition can have grave social consequences for particular individuals. Were it declared that all disabled persons are able to work, many would be deprived of their pension claims and social protection. Were all disabled persons judged to show a reduced productivity/performance, hardly a disabled individual would obtain employment. This means that a pragmatic approach must be sought that accepts the heterogeneity of the reality that an ambiguous term such as disability tends to conceal. The new view of disability takes into account the specific situation and needs of disabled individuals as well as the economic and social feasibility of removing barriers to integration.

                                                  The goal of preventing undue disadvantage that may be linked with a disability will best be achieved where a flexible definition of disability is applied that takes into account the specific personal and social circumstances of an individual and that avoids stereotyped assumptions. This calls for a case-by-case approach to recognizing disability, which still is needed where different statutory rights and entitlements, notably those to achieve equal training and employment opportunities, are granted under various national laws and regulations.

                                                  Nonetheless, definitions of disability are still in use that evoke negative connotations and that contradict integrative concepts by overemphasizing the limiting effects of an impairment. A new view of the matter is called for. The focus should be on recognizing disabled individuals as citizens endowed with rights and abilities, and on empowering them to take charge of their destiny as adults who want to take part in the mainstream of social and economic life.

                                                  Likewise, efforts must continue to instill in the community a sense of solidarity that no longer uses a flawed concept of disability as grounds for the careless exclusion of fellow citizens. Between excessive care and neglect there should exist a sober conception of disability which neither mystifies nor underestimates its consequences. Disability can, but need not always, provide the grounds for specific measures. It should in no case provide a justification for discrimination and social exclusion.

                                                   

                                                   

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