Employers across the world are recognising the significance and positive business impact of diversity in the workplace. Ensuring inclusive workplaces are no longer merely ‘good to have’ but are also a legal mandate in several jurisdictions and a key driver of business decisions. The Indian employment landscape is not far behind and is rapidly evolving from a diversity and inclusiveness perspective, resulting in new and progressive laws prohibiting discrimination on the basis of gender, pregnancy, disability and HIV status. According to the ‘World report on disability’, produced jointly by the World Health Organization and the World Bank, more than one billion people in the world today experience some form of disability. As per the last Indian Census (2011), 2.21 per cent of the total population of the country are persons with disability. Given the statistics, it is becoming crucial to focus on affirmative, holistic and sustainable inclusion of persons with disability in the workplace. In this article, we attempt to highlight key legal obligations of employers in the private sector to ensure inclusive workplaces for persons with disability.
Until 2017, statutory requirements in India in relation to rights of persons with disability only applied to public sector establishments. The Rights of Persons with Disability Act 2016 (‘RPWD Act’) was brought into effect on 19 April 2017, with the objective of implementing the United Nations Convention on the Rights of Persons with Disabilities. The RPWD Act replaced the former Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. The RPWD Act enhanced the scope of the term disability and extended the applicability of the law to private employers, requiring them to think consciously of ways in which their workplace can be (more) disability friendly. The Ministry of Social Justice and Empowerment introduced the Rights of Persons with Disability Rules 2017 (‘RPWD Rules’) with effect from 15 June 2017.
Disability – meaning and scope
The scope of the term ‘disability’ has been significantly expanded under the RPWD Act. The statute prescribes a list of 21 specified disabilities, broadly classified as physical disability, intellectual disability, mental illness, disability caused due to chronic neurological conditions or blood disorders and multiple disabilities (‘specified disabilities’). It is both interesting and commendable that the statute recognises that disability is a dynamic and evolving concept and empowers the government to add to the list of specified disabilities.
The statute also categorises individuals based on the extent of disability, that is:
• person with disability: a person with long-term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders the individual’s full and effective participation in society equally with others;
• person with benchmark disability: a person with not less than 40 per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority; and
• person with disability having high support needs: a person with benchmark disability certified as a person who needs intensive support, physical, psychological and otherwise, for daily activities, to take independent and informed decisions, to access facilities and to participate in all areas of life including education, employment, family and community life and treatment and therapy.
Obligations of private sector employers
The RPWD Act and the RPWD Rules prescribe several and significant obligations on the government and its establishments, including the obligation to ensure that persons with disabilities enjoy the constitutionally guaranteed right to equality, life with dignity and respect. In the context of private establishments, the key obligations include the following.
Prohibition of discrimination
The RPWD Act emphasises that no person shall be discriminated on the ground of disability, unless it is shown that the act or omission is a proportionate means of achieving a legitimate aim. No person shall be deprived of his or her personal liberty only on the ground of disability. Further, an employer is required to ensure that no promotion is denied to a person merely on grounds of disability.
Discrimination, in relation to disability, has been defined in a significantly broad manner to mean any distinction, exclusion or restriction on the basis of disability with the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field, and includes all forms of discrimination and denial of reasonable accommodation.
While the RPWD Act does not prescribe a grievance redressal mechanism to be followed by the employer, it makes it mandatory for the head of an establishment having 20 or more employees to take action. Specifically, upon receiving a complaint regarding discrimination on the ground of disability, the head of an establishment having 20 or more employees is required to either initiate action or provide a justification to the aggrieved person, in writing, as to how the act or omission is a proportionate means of achieving a legitimate aim.
Equal opportunity policy
The RPWD Act makes it mandatory for every establishment to publish an equal opportunity policy (EOP) specifically with respect to persons with disabilities. The EOP is to be displayed, preferably on the website or at conspicuous places in the establishment. The EOP should contain details of facilities and amenities to be provided to persons with disabilities to enable them to effectively discharge their duties in the establishment.
In addition to the above, if the establishment has 20 or more employees, the EOP should detail:
• a list of posts identified suitable for persons with disabilities in the establishment;
• the manner of selection of persons with disabilities for various posts, post-recruitment and prepromotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation, if any, and other facilities;
• provisions for assistive devices, barrier-free accessibility and other provisions; and
• details of the liaison officer. Every establishment having 20 or more employees is required to appoint a liaison officer to look after the recruitment of persons with disabilities and the provision of facilities and amenities.
A copy of the EOP is required to be registered with the appropriate authority identified under the statute.
Every establishment having 20 or more employees is required to maintain records containing the following information:
• the number of persons with disabilities who are employed;
• date of commencement of employment;
• name, gender and address;
• nature of disability;
• nature of work being rendered; and
• nature of facilities being provided by the employer.
The RPWD Act makes it mandatory for private establishments to comply with the following standards relating to physical environment, transport and information and communication technology:
• standard for public buildings as specified in the Harmonised Guidelines and Space Standards for Barrier Free Built Environment for Persons with Disabilities and Elderly Persons and issued by the Government of India, Ministry of Urban Development, in March 2016;
• standard for Bus Body Code for transportation systems as specified in the notification of the Government of India in the Ministry of Road Transport and Highways in September 2016; and
• website standard as specified in the guidelines for Indian Government websites, as adopted by the Department of Administrative Reforms and Public Grievances, Government of India.
Also, documents to be placed on websites are to be in electronic publication (ePUB) or optional character reader (OCR)-based PDF format. The standard of accessibility in respect to services and facilities is yet to be published by the government.
Existing public buildings, including workplaces, have been allowed a period of five years to adhere to the standards of accessibility prescribed by the government. Further, an establishment is prohibited from compelling a person with disability to partly or fully pay the costs incurred for reasonable accommodation.
In this context, it is important to note that an establishment shall not be granted permission to build any structure if the building plan does not adhere to the standards prescribed by the government with respect to accessibility. Furthermore, no establishment shall be issued a certificate of completion or be allowed to take occupation of a building unless it has adhered to such standards.
The RPWD Act provides that any person who contravenes any of the stature or rules framed thereunder shall be punishable, for first contravention, with fine which may extend to INR 10,000 (US$150) and for any subsequent contravention with fine which shall not be less than INR 50,000 (US$770) but which may extend to INR 500,000 (US$7,700).
Further, the statute imposes personal liability on persons who, inter alia:
• intentionally insult or intimidate with intent to humiliate a person with disability in any place within public view;
• assault or use force to any person with disability with intent to dishonour the individual or outrage the modesty of a woman with disability;
• having the actual charge or control over a person with disability, voluntarily or knowingly deny food or fluids to him or her;
• being in a position to dominate the will of a child or woman with disability and use that position to exploit her sexually; or
• voluntarily injure, damage or interfere with the use of any limb or sense or any supporting device of a person with disability.
The above actions are considered to be very grave and are punishable with imprisonment for a term which shall be not less than six months but which may extend to five years with fine.
Incentives for private sector employers
With a view to encouraging employers in the private sector to recruit persons with disability, the Ministry of Social Justice and Empowerment has launched a scheme which envisages payment of the employers’ contribution under the key contributory social security legislations (ie, the Employees’ Provident Fund and Miscellaneous Provisions Act 1952 and the Employees’ State Insurance Act 1948) by the government for the first three years for employing persons with disability and whose monthly wages are up to INR 25k.
Further, the RPWD Act requires governments and local authorities, within the limit of their economic capacity and development, to provide incentives to employers in the private sector to ensure that at least five per cent of the work force is composed of persons with benchmark disability. We understand from information in the public domain that the government is considering enhancing the incentives available to private employers to include tax breaks to increase employment of persons with disability.
Given the significant population of persons with disability in India, it is high time employers put in play creative methods of workplace inclusion to give meaning to workplace diversity. As Verna Myers, leading author and diversity strategist, said, ‘diversity is being invited to a party; inclusion is being asked to dance’. Therefore, it is critical for employers to make extra effort, not only to employ persons with disability but also to ensure that their workplaces are both inclusive and enabling. With rapidly developing technology, including artificial intelligence, there is huge potential for workplaces to become more accessible and inclusive, in a cost-effective, sustainable and holistic manner.
Nohid Nooreyezdan , Senior Partner
Veena Gopalakrishnan, Partner