Background -The Need for the Equal Rights Law
In Israel, there are currently more than 600,000 people who live with physical, mental, and/or emotional disabilities. People with disabilities in Israel are discriminated against in nearly every area of life. Their unemployment rates are exceedingly high. Most public places are not accessible to them. People with disabilities are routinely sent to live in institutions isolated and far removed from the general society. Children with special needs are sent to specialized schools, and the few that do integrate into the general educational system do not receive the special services necessary to address their needs.
Thus a vicious circle is formed. People not challenged by disabilities form stigmas against those who are challenged: 'They are different' - 'They can't learn with us' - 'They aren't able to work.' People without disabilities do not have readily available opportunities to meet those with disabilities in stores lacking accessibility, in schools, in the work place, and in their apartment buildings. Therefore, the opportunity to break stereotypes and stigmas never arises. Because of the physical distance between these two sets of people, stereotypes and erroneous preconceptions are actually on the rise, and because of the stigmas, the decision to separate the two sets of people gains more legitimacy. This vicious circle must be broken.
The Legislative Process
In 1995, Bizchut drafted the proposed Equal Rights Law for People with Disabilities, legislation designed to ensure the inclusion of people with disabilities into the communal life of the broader society, and their partnership with that society in all areas of life.
The draft legislation was introduced to the Knesset by then MK David Zucker, and passed its first reading in March 1996. Following its introduction, the Minister of Justice and the Minister of Labor and Welfare formed a public committee to evaluate the draft legislation, headed by Dr. Israel Katz and with the participation of ministry officials, academics, and a representative of Bizchut. The committee devoted much energy to its investigation, and after eight months it published its conclusions:
'Only a comprehensive and detailed law can bring about a reduction in the existing gap between the reality that people with disabilities live with and the principles of equality and human dignity, which are the fundamental principles of Israeli society.' (Report of the Public Committee to Check the Comprehensive Legislation: Rights of People with Disabilities, 1997)
Following the committee's publication of its findings, the draft legislation was returned to the Knesset for consideration. In February 1998, several articles of the draft passed their second and third readings in the Knesset, and these articles constitute the Equal Rights Law for People with Disabilities, of 1998. The remaining articles were introduced to the Knesset by MK Ilan Gilon, where they passed their first reading on December 19, 2000. These articles constitute the proposed Equal Rights Law for People with Disabilities (Amendment - accessibility, etc.), of 2000, heretofore known as the draft amendment.
What does the Equal Rights Law Include?
The Equal Rights Law, which came into effect in January 1999, includes four main sections:
Fundamental Principles: This section expresses the change in understanding that is the basis of the law: we are not asking for charity, rather demanding the right of a person with disabilities to equality, human dignity, and active participation in society in all walks of life. No more patronizing intrusions into personal autonomy, rather the right of a person with disabilities to make decisions regarding his/her own life. This section of the law also establishes the universalist principle, that a person with disabilities will be able to exercise his/her rights within the existing institutions of society, and not in segregated frameworks.
Employment: This section establishes the prohibition of discrimination against people with disabilities in applying for work, in work conditions, in professional advancement, in firing, etc., provided that the individual is qualified for the job. An employer must modify the work place (or certain job specifics) to meet the needs of an employee with disabilities or candidate for employment with disabilities. Among the modifications mentioned in this section are: the placement of ramps for workers who use wheelchairs; additional time on entrance examinations for job candidates with learning disabilities; flexible work hours for a worker who needs to receive treatment related to his/her disability or the disability of his/her child, etc. This section also establishes that in any business with over 25 employees, there must be fair and proportional representation of people with disabilities.
Public Transportation: This section establishes the right of people with disabilities to accessible transportation services, modified to address their needs. These include intra- city buses, trains, plains, and ships.
An Equal Rights Commissioner for People with Disabilities: This section establishes the appointment of a commissionership, an independent body financed by the government, and charged with the mission of advancing the rights of people with disabilities and enforcing the Equal Rights Law. The commission would include a commissioner and an advisory committee made up primarily of people with various disabilities.
EQUAL RIGHTS FOR PEOPLE WITH DISABILITIES LAW, 5758-1998
STATE OF ISRAEL
MINISTRY OF JUSTICE
CHAPTER ONE: BASIC PRINCIPLES
Basic Principles
1. The rights of people with disabilities and the commitment of Israeli society to such rights, are based on the recognition of the principle of equality and the value of human beings created in the Divine image.
Purpose
2. The purpose of this Law is to protect the dignity and freedom of a person with a disability, to enshrine her/his right to equal and active participation in society in all the major spheres of life, and, furthermore, to provide an appropriate response to the special needs of a person with a disability, in such a way as to enable her/him to live with maximum independence, in privacy and in dignity, realizing her/his potential to the full.
Affirmative Action
3. Action taken in order to correct prior or present discrimination against people with disabilities, or to promote the equality of people with disabilities, does not constitute discrimination.
Right to make decisions
4. A person with a disability has the right to make decisions that pertain to her/his life according to her/his wishes and preferences; this right shall be exercised in conformity with the law.
CHAPTER TWO: INTERPRETATION
Definitions
5. In this Law -
'A person with a disability' - means a person with a physical, emotional or mental disability, including a cognitive disability, permanent or temporary, as a result of which that person's functioning is substantially limited in one or more of the major spheres of life;
'Representative employees' organization' - has the same meaning as in the Collective Agreements Law, 5717-1957;
'Commission' - has the same meaning as the Commission for Equal Rights for People with Disabilities in Chapter Six of this Law.
CHAPTER THREE: GENERAL PRINCIPLES
Implementation of rights and the provision of services - principles
6. (a) Rights of a person with disabilities shall be implemented, and services to a person with disabilities shall be provided, as follows:
(1) Strict attention shall be paid to the dignity and freedom of the person and to the protection of the person;
(2) within the framework of services provided in society and aimed at the general public, adjustments shall be made as required by the particular circumstances, and as stated in this Law;
(3) the implementation of rights and the provision of services by a public body shall be to an appropriate standard, within a reasonable time and within a reasonable distance from the place where the person concerned lives; the provisions of this sub-section shall be carried out within the framework of the financial resources available to the public body concerned.
`(b) In this section 'public body' - means one of the following:
(1) A government ministry, including divisions and associated divisions of a government ministry;
(2) a local authority;
(3) a body corporate, where a local authority holds at least half of the body's voting powers or the right to appoint at least half of the body's directors;
(4) a body corporate established by law;
(5) a government company as defined in the Government Companies Law, 5735-1975, which the Minister of Justice has designated [as a public body for the purposes of this section], with the consent of the Ministers stated in the said law;
(6) any other body which is a comptrolled body within the meaning given to such term in Section 9 of the State Comptroller Law, 5718-1958 (Consolidated Version), and which the Minister of Justice has designated [as a public body for the purposes of this section], with the approval of the Law and Constitution Committee of the Knesset.
Determination of entitlement
7. An investigation or enquiry whose purpose is to determine a person's entitlement to rights or services by reason of her/his disability shall be conducted in such a way as gives maximum consideration to the person's regular lifestyle.
CHAPTER FOUR: EMPLOYMENT
Prohibition of discrimination in employment
8. (a) An employer shall not discriminate among his employees or people seeking employment on account of disability, in each of the following below, provided such individuals are qualified for the job or position concerned:
(1) hiring, including hiring tests;
(2) employment conditions;
(3) promotion;
(4) training or professional education;
(5) dismissal or severance pay;
(6) benefits given, and payments made, to an employee in relation to retirement.
(b) For the purpose of sub-section (a), setting irrelevant conditions shall be regarded as discrimination.
(c ) An act or omission necessitated by the essential requirements of a job or position shall not be regarded as discrimination.
(d) The provisions of this section shall also apply, with the necessary changes, to a person who has a record of disability, to a person regarded as having a disability, and to a relative of a person with a disability who takes care of such person.
(e) For the purpose of this section -
'Relative' means
(1) a spouse, parent or child;
(2) a spouse of a parent, a spouse of a child, brother or sister, spouse of brother or sister, grandparent, grandchild - where such person is primarily responsible for financial maintenance of a person with a disability.
'Discrimination' - includes failure to carry out the adjustments required by virtue of the special needs of a person with disabilities which will make the the employment of such a person possible;
'adjustment(s)' - includes adjustments with respect to the workplace, equipment at the workplace, requirements of the job, work hours, hiring tests, instruction and training and work practices, provided that such adjustment does not impose an undue burden upon the employer;
'undue burden' - means a burden that is unreasonable in the circumstances having regard to, inter alia, the cost and nature of the adjustments, the size and structure of the business, the scope of its operations, the number of employees, the make-up of the workforce, and the existence of external or state funding for the purpose of carrying out adjustments.
Appropriate representation of people with disabilities
9. (a) Where the employer sees that the composition of his/her workforce does not give appropriate expression, in the circumstances of the case, to representation of people with disabilities, (hereinafter - appropriate representation), s/he should take measures in order to promote appropriate representation, including the making of adjustments.
(b) Action taken by an employer pursuant to this section may be by way of a programme which provides for preference to be given to the hiring and promotion of people with disabilities who are qualified for the job or position concerned and who possess qualifications similar to those of other candidates for the job or position.
(c ) The Minister of Labour and Social Affairs, in consultation with the Commission, with organizations dealing with the promotion of rights of people with disabilities, in accordance with the Basic Principles of this Law and with the approval of the Labour and Social Affairs Committee of the Knesset, may -
(1) prescribe supplementary provisions, relating to a particular case or to types of cases, including provisions concerning the type or severity of disability of persons to be employed or promoted;
(2) make regulations concerning obligations of employers to report on implementation of measures taken pursuant to this section;
(3) make regulations concerning exceptions to obligations of employers under this section.
(d) In this section -
'Employer' - means an employer who employs more than 25 employees, with the exception of the State or any other employer to whom the provisions of section 15A of the Civil Service (Appointments) Law, 5619-1959, apply;
'Adjustments' - have the same meaning as in section 8(e).
Protection of Complainant
10. (a) An employer shall not prejudice an employee as to any of the matters enumerated in section 8 by reason of a complaint or claim of the employee in relation to the provisions of this Chapter or because s/he assisted another employee in connection with a complaint or claim under this Chapter.
(b) In a criminal or civil proceeding for an infringement of subsection (a) - it shall be a good defence if the employer, acted in relation to a false complaint, or in relation to assistance with a false complaint, made or given maliciously in the knowledge that the complaint was false.
Advertisements of offers of employment
11. (a) An employer or a person seeking an employee shall not publish an advertisement offering employment or referral to vocational training which is discriminatory by virtue of the provisions of section 8.
(b) The provisions of this section shall not apply to an advertisement offering employment or referral to vocational training to which section 8 (c ) applies.
Right of action
12. Actions in relation to an infringement of the provisions of this Chapter may be brought by -
(1) an employee;
(2) the representative employees' organization at the place of employment concerned or, if there is no such employees' organization, the employees' organization of which the employee is a member;
(3) The Commission or an organization dealing with the promotion of the rights of people with disabilities, provided that the employee has consented to the bringing of the action.
Application of provisions of Employment (Equal Opportunities) Law
13. The provisions of sections 5, 9(a), 11, 13, 14, 16, 17, 18 and 21 of the Employment (Equal Opportunities) Law, 5748-1988 shall apply to the provisions of this Chapter, with the necessary changes.
Jurisdiction and remedies
14. The Labour Court shall have sole jurisdiction in a civil proceeding for infringement of the provisions of this Chapter and may -
(1) award compensation, even if no monetary damage has been caused to an amount deemed appropriate by it in the circumstances of the case;
(2) make a prohibitory or mandatory order if it considers that the grant of compensation alone will not be just; in making such an order, the court shall have regard, inter alia, to the effect of the order on labour relations at the place of employment and the possibility of another employee being prejudiced. The provisions of this subsection shall apply notwithstanding the provisions of section 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970.
Penalties
15. (a) A person who contravenes the provisions of sections 8, 10 or 11, is liable to double the fine prescribed in section 61(a)(1) of the Penal Law, 5737-1977.
(b) In the case of a contravention of the provisions of section 11, only the employer of a person seeking an employee shall bear criminal responsibility.
(c ) The provisions of this section shall not apply to failure to carry out adjustments as defined in section 8(e).
Programmes
16. (a) The Minister of Labour and Social Affairs shall initiate, develop and prepare programmes concerning the following -
(1) employment and rehabilitation for people with disabilities, with preference being given to the integration of people with disabilities in regular places of work;
(2) the establishment of systems for the determination of suitable employment for people with disabilities, in order to secure the integration of people with disabilities in the employment field;
(3) the provision of advice and professional guidance to employers and employees regarding the integration of people with disabilities in the employment field.
(a) The Minister of Labour and Social Affairs shall present to the Labour and Social Affairs Committee of the Knesset, an annual report concerning programmes stated in subsection (a).
Implementation and regulations
17. (a) The Minister of Labour and Social Affairs is charged with the implementation of the provisions of this Chapter and may make regulations as to any matter relating to its implementation, including regulations concerning the nature of adjustments required by the provisions of this Chapter.
(b) The Minister of Labour and Social Affairs and the Minister of Finance shall provide by way of regulations for aid in the financing of adjustments as defined in Section 8(e).
(c ) The Minister of Labour and Social Affairs shall, in consultation with the Minister of the Interior, make regulations concerning priority provision of parking spaces in places of work for people with disabilities.
(d) (1) Regulations under this Chapter shall be enacted in consultation with the Commission and with organizations dealing with the rights of people with disabilities, in accordance with the Basic Principles of this Law and with the approval of the Labour and Social Affairs Committee of the Knesset.
(2) Regulations under subsections (b) and (c) shall be enacted in consultation, additionally, with such representative employees' organizations as are considered by the Minister of Labour and Social Affairs to be connected with the subject matter of the regulations; and in consultation with such employers' organizations as are considered by the Minister of Labour and Social Affairs to be representative and connected with the subject matter of the regulations.
(e) Regulations under this Chapter shall be presented for approval to the Labour and Social Affairs Committee of the Knesset within a year from the date of publication of this Law.
Temporary provision
18. Section 9 shall be in force for seven years from the date of publication of this Law.
CHAPTER FIVE: PUBLIC TRANSPORT SERVICES
19. (a) A person with a disability is entitled to public transportation services that are accessible, suitable for his/her use, and available at frequent intervals; this includes the right to access to stations, ports and airports in the confines of which public transport services operate.
In this section 'public transport services' means - buses operating on city routes, trains, air travel and ships, where such services are designated for public use.
(b) Public transport operators and local authorities, within their respective areas of responsibility, shall make provisions for access as stated in subsection (a).
(c ) The Minister of Transport and the Minister of Finance shall enact regulations providing for access in accordance with this section, including the manner and time period for providing access; regulations as aforesaid shall be made in consultation with other ministers connected with the subject matter of this section, in consultation with the Commission, with bodies representing public transport operators, with organizations dealing with the promotion of rights of people with disabilities, and with the approval of the Law and Constitution Committee of the Knesset; regulations under this section shall be presented for approval to the Law and Constitution Committee of the Knesset within a year of the date of publication of this Law.
(d) A person who contravenes the provisions of this section is liable to the fine prescribed in section 61(a)(3) of the Penal Law, 5737-1977.
CHAPTER SIX:
COMMISSION FOR EQUAL RIGHTS FOR PEOPLE WITH DISABILITIES
Establishment of the Commission
20. The Commission for Equal Rights for People with Disabilities is hereby established.
Functions of the Commission
21. The Commission shall take action as follows:
(1) to promote the Basic Principles of this Law;
(2) to promote equality for, and prevent discrimination of, people with disabilities;
(3) to encourage the integration and active participation of people with disabilities in society;
(4) to carry out the functions imposed on the Commission by this Law.
Commissioner for equal rights for people with disabilities
22. (a) The Government, in consultation with the Minister of Justice and the Minister of Labour and Social Affairs, shall appoint a Commissioner for Equal Rights for People with Disabilities (hereinafter - The Commissioner).
(b) The Commissioner shall be charged with carrying out the functions of the Commission.
Qualifications of the Commissioner
23. The Commissioner shall be an Israeli citizen resident in Israel, in possession of an academic degree in a profession related to the areas covered by the functions of the Commission; the Commissioner shall be a civil servant and notification of his/her appointment shall be published in Reshumot.
Employees of the Commission
24. The employees of the Commission shall be civil servants.
Commission budget
25. The budget of the Commission shall be prescribed in the Budget Law under a separate budget section, as defined in the Foundations of the Budget Law, 5745-1985.
Advisory committee
26. (a) The Minister of Labour and Social Affairs and the Minister of Justice shall appoint an advisory committee to the Commission; notification of the appointment of the Advisory Committee and the composition of the Committee shall be published in Reshumot.
(b) The members of the Advisory Committee shall be people with various disabilities or their representatives, as the case may be, representatives of organizations dealing with the promotion of rights of people with disabilities, experts in the areas of the Commission's activity, lawyers and public representatives; a majority of the Advisory Committee members shall be people with disabilities.
(c ) The Commissioner shall consult with the Advisory Committee as to matters related to functions of the Commission.
CHAPTER SEVEN: MISCELLANEOUS PROVISIONS
Amendment of Labour Courts Law
27. The following shall be added to the Second Schedule to the Labour Courts
Law, 5769-1969: 'Chapter Four of the Equal Rights for People with Disabilities
Law, 5758-1998.'
Amendment of the Civil Service (Appointments) Law
28. [Amends section 15A of Civil Service (Appointments) Law, 5719-1959, so as to
extend 'appropriate representation' provisions of section 15A of such Law to
people with disabilities: cf section 9 above.]
Commencement
29. This Law shall come into force on 13th Tevet 5759 (1st January 1999).
15/3/98
