PROMOTING ACCESS TO AFRICAN RESEARCH

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

Log in or Register to get access to full text downloads.

Remember me or Register



Does Albinism Fit Within the Legal Definition of Disability in the Employment Context? A Comparative Analysis of the Judicial Interpretation of Disability under the SA and the US Non-Discrimination Laws

Maureen Mswela

Abstract


South Africans with albinism are among the most marginalised and  vulnerable citizens yet very little attention is paid to protecting them from human rights violations. There have been several calls by people with albinism in South Africa to be classified as disabled. The question of whether albinism is classified as a disability or not is a controversial legal one, which does not always have a straightforward answer. A literature search indicates that in South Africa no comprehensive and analytical study has been carried out on the subject of albinism and disability, whereas this has already been addressed in court cases in the United States of America. This paper anticipates addressing this gap within a legal perspective. The objective of such an analysis is to understand the construction of disability under the Employment Equity Act in order to shed light on whether people with albinism qualify for the protection, which is afforded to people with disabilities in the work place. Foreign case law and international human rights law could shed new light on this longstanding grey area or stimulate the development of novel legal analytical strategies. This paper reviews the nature of disability claims in the workplace on grounds of albinism in the United States context, including factors contributing to disability claims; assessing the degree of impairment and the guidelines in assessing albinism related disability. Prior to this discussion, the paper explores the current working definition of disability in South Africa, which stems from the IMATU case, which relied significantly on a foreign precedent; the Sutton v United Airlines case as there was no indigenous precedent in South Africa to fall back on. It will be argued that the Sutton v United Airlines decision, referred to in the IMATU case is based on an insufficiently inclusive definition of disability. Specific cases that relied on the Sutton v United Airlines decision as a persuasive authority in determining whether albinism is a disability or not, will also be examined. While the United States of America has struck down the decision in the Sutton v United Airlines and amended its legislation to include a broader and less restrictive definition of disability, which includes present as well as past conditions and a subjective component of perceived disability, the South African definition of disability still remains narrow and less inclusive. The United States of America's amended legislation does not contain an exhaustive definition of disability; rather, an equality-based framework was chosen which considers changing biomedical, social and technological developments. This new definition highlights the fact that the emphasis must be on whether discrimination occurred rather than adherence to a strict definition of disability. Such a framework of disability includes a socio-political aspect, which places emphasis on human dignity, respect and the right to equality. Against this background, the comparative analysis raises specific issues that deserve attention, in particular that the unique disadvantages and negative stereotyping suffered by people with albinism should be recognised as unlawful conduct against people with disabilities as defined by legislation. Put differently, the discussion calls for a broader approach to viewing disability, which includes both a social and a human rights perspective. In taking the position that albinism related discrimination is socially constructed, the article also explores the mandate of the Convention on the Rights of Persons with Disabilities in as far as it relates to the social construction of disability. The paper argues that the Convention on the Rights of Persons with Disabilities affords a direction for an analysis of the discrimination faced by persons with albinism.

Keywords: Albinism; disability; employment; the right to equality; Employment Equity Act, Americans with Disability Amendment Act; Convention on the Rights of Persons with Disabilities.




AJOL African Journals Online