Discrimination: living with it or fighting against it?

Discrimination and the stigma of being disabled have long been experienced by all PWDs (Purdie 2009). Studies have shown that it is not impairment that deters PWDs from enjoying an equivalent lifestyle to that of their non-disabled counterparts, rather it is the "restrictive environments and disabling barriers" embedded in a culture or society that unjustly claims that: "to be a disabled person means to be discriminated against" (Barnes 1992: 55). Discrimination against PWDs has existed all along and will continue to exist regardless of nation, society or culture. Undeniably, discrimination is happening and negatively affecting the lives of all PWDs. Therefore, the more relevant and critical questions to ask would be what are the types, degree and magnitude of discrimination that are leveled against PWDs, and what are the current efforts that are underway to fend off and fight against such discrimination. As lamented by Purdie (2009), "People with disabilities have suffered from discrimination throughout the ages and it still persists today. The truth remains though — they are perceived differently, treated differently and struggle to attain the acceptance enjoyed by the great majority of their non-disabled peers."

For instance, even in developed economies like the United Kingdom, PWDs are not spared from discrimination. They continue to endure different forms of discrimination and receive negative treatments such as being treated as 'deviant' and getting substandard treatments; being shunned by family, friends and society, being perceived as 'sub-human' or a 'burden' on society; being socially and physically excluded. They are associated with negative images, and to make matters worse, some PWDs even become victims of physical abuse, assault and violence (Purdie 2009). The scenario is even worse in less developed nations like Vietnam whereby traditional dogmas and steep cultures still dictate everyday living. This has been demonstrated by a recent study by the Institute for Social Development Studies of Vietnam (funded by The Ford Foundation) that widespread stigma from Vietnamese communities had caused different forms of discrimination and hindered PWDs from full participation in mainstream socio-economic life (ISDS n.d.). 1 Findings from this study revealed that all types of negative pre-conceptions and misperceptions were formed about PWDs claiming that PWDs were "lazy, dependent on others and a burden to society" (pp. 81-82). Additionally, this study also found that disabled Vietnamese suffered from added distress and humiliation especially for those born in the "countryside" in more rural and primitive villages.

In a society that is still deeply influenced and shaped by age-old dogmas and traditions, PWDs in rural Vietnam had to succumb to aspects of "superstition" — an aspect that is less dominant and not so often encountered by PWDs in Western societies. In rural Vietnam, for example, encountering PWDs was considered "bad luck" and as a result of this, they were subjected to discriminatory behavior and bad treatment (ISDS n.d.: 82). Inevitably, this makes it doubly challenging for a Vietnamese PWD to be accepted and integrated into society given the fact that they were "blamed" and intentionally avoided for daily affairs in life. Vietnamese PWDs were often humiliated and unwelcome where people openly 'avoid' them before an important event (i.e. to do business, to go for tours, to take exams, etc.). Their presence was so unwelcomed that shop proprietors or restaurant owners were reluctant to have business dealings with PWDs if they were the first customer of the day believing that sales for the rest of the day will be minimal due to the 'curse' of PWDs. In some more superstitious families, PWDs were not even allowed to visit newborns as people were afraid that disabled people will bring bad luck to the newborn (ISDS n.d.: 82).

Nonetheless, as societies develop and modernize, PWDs are slowly emerging from the shadows of their able-bodied counterparts. To dispel the above negative perceptions as myths and distorted truth, policy reforms are presently underway to champion for the rights of PWDs as equal citizens in a modern society. More crucially, current policy reforms are advocating that PWDs should be accorded equal education and employment opportunities so that they can be independent and self-reliant. The subsequent sections will discuss how employment matters for PWDs and review the different types of anti-discrimination laws that are available.

How employment matters

The term 'employment' connotes a positive impression about a person's status and socio-economic position in society. According to scholars (Mansour 2009), being in gainful employment does not only endow a person economically but also uplifts a person's status, self-esteem and dignity in a society. But in reality, the opportunities for employment are unevenly distributed where employment benefits and privileges are mainly enjoyed by able-bodied citizens (of a country) marginalizing their counterparts who are disabled. Given the rigidities and barriers (i.e. attitudinal, physical, etc.) imposed by the norms, beliefs and traditions of most societies and cultures, inevitably, the opportunity to obtain employment is something unthinkable and far-fetched for disabled people. There is a perception that the impairments of disabled people somehow make them incomplete and, as a result, not good enough to be employed as productive labour in the workforce. Arguably, the way PWDs are marginalized, excluded and deprived from employment further aggravates and compounds their dependency on the wider society — a move that is neither inclusive nor sustainable in the long run.

However, the plights of PWDs are gradually and eventually gaining attention for change in the global platform. A growing body of opinion has since emerged, articulating a litany of neglect, challenges and lack of viable policy options to advocate for disabled people's rights towards equitable employment opportunities (ILO 2006 n.d.; Cornell 1993). But unfortunately, initiatives and awareness towards realizing this course is unevenly distributed between developed and developing nations. At this juncture, most of these discourses come from more advanced nations (i.e. US, UK, Europe) where there is better awareness. Nonetheless, strands of research although limited, are slowly emerging from less developed economies like those in Asian (i.e. China, Thailand, Vietnam) and African regions (i.e. Ethiopia, Malawi, Namibia, South Africa, Tanzania, Zambia, Zimbabwe) (ILO 2009). This first step towards promoting awareness and change is vital to integrate and reinstate the role of PWDs in the labour market.

Based on these studies, it has been reported that there was voluminous economic loss for not utilizing and capitalizing the 'untapped resources' provided by PWDs. In reality, PWDs are actually productive labour that can spur productivity and growth of a nation if given the opportunity to do so. Studies have estimated that the total annual loss linked to disability (in value of global GDP) ranged between USD1.37 and USD1.94 trillion (Metts 2000; quoted in ILO 2009: 1). In Asian countries alone, the economic cost of excluding PWDs from the labour force ranged between 2.99% of GDP in Vietnam and 4.64% of GDP in Thailand (ILO 2009). Clearly, these figures have much to tell with regard to 'how employment matters' as a source of personal income to PWDs and collectively towards the overall growth and development of a country's economy.

The acknowledgement that PWDs are able to contribute positively to society gathered momentum when the winds of change eventually set in witnessing a radical paradigm shift from the 'charity approach' to the 'human rights approach' (ILO 2006). This shift has certainly enhanced the role and position of PWDs in the society. In the literature, the 'charity approach' and the 'human rights approach' are two contrasting approaches that occupy the extreme opposites of the conundrum. Broadly, the 'charity approach' seems to suppress and oppress the potentials of PWDs while the 'human rights approach' aims to unleash the hidden potentials of PWDs so that they can be independent and self-sufficient in today's globalizing society. Under the 'charity approach', for example, PWDs were perceived as helpless incapacitated beings of society with zero contribution towards the wider economy. Worse still, PWDs were frequently labeled as objects of charity and sympathy where they depended on society to continuously extend a helping hand to them. The 'charity approach' has indirectly stifled and suppressed the potentials of PWDs to be dependent and self-reliant.

By contrast, the emergence and increasingly popular 'human rights approach' is quickly replacing the 'charity approach' especially in developed countries (i.e. UK, Europe) (ILO 2006). As clearly denoted by the two words "human rights," this approach advocates and lobbies for the rights of PWDs towards equal employment opportunities similar to that accorded to their able-bodied peers (ILO 2006). Dissimilar to the 'charity approach' that oppresses and plays down the role of PWDs in society, the 'human rights approach' asserts that PWDs ought to be recognized for their roles and abilities to function and contribute sustainably in mainstream society and economy. Now that we understand the importance of integrating PWDs into the labour market, the subsequent section will review some key examples of anti-discrimination laws at the workplace both in advanced economies as well as in Malaysia. These laws and legislations, if properly implemented, are intended to advocate and protect the rights of PWDs at the workplace.

Anti-discrimination laws at the workplace

It is not within the scope of this paper to review all the anti-discrimination laws in the world. For the purpose of this paper, only two more established and comprehensive acts, namely the United Kingdom's Disability Discrimination Act 1995 (DDA) and The Americans with Disability Act (ADA) will be reviewed. With reference to the UK's Disability Discrimination Act 1995, an employer is considered to discriminate against a disabled employee if "…for a reason which relates to the disabled person's disability, he treats him less favorably than he treats or would treat others whom that reason does not or would not apply; and he cannot show that the treatment in question is justified."

In addition, discrimination by an employer is also manifested if "he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person." As a result, the ADA 1995 imposed on all employers to make "reasonable adjustments" to their workplaces to facilitate the needs of their disabled employees. Importantly, this imposition does not only apply to the course of employment (or typical working day), but also extended to cover recruitment events, job offers and other contractual arrangements between employer and employee.

Similarly, in the United States, there are distinctive laws and legislations by the government to fend off 'disability discrimination' at the workplace. These laws are governed by the U.S. Equal Employment Opportunity Commission. According to The Americans with Disability Act (ADA) and the Rehabilitation Act (only for federal employees and applicants), 'disability discrimination' happens when "an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability." 2 Generally speaking, the scope and coverage of the ADA is rather extensive and comprehensive. As in the UK, laws in America also require employers to provide reasonable accommodation to an employee or job applicant with disability, unless by doing so it would incur significant difficulty and financial outlay for the employer ("undue hardship"). In addition, American law also "protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability)." Put simply, in America, it is considered illegal and unlawful to discriminate against an employee just because his/her spouse has a disability. More uniquely, the law does not only protect disabled Americans after they have commenced work as employees; but also protect disabled applicants before employment, that is, during employment application and the interview stage. At the point of application and interview, the law strictly limits employers from asking disabled job applicants to answer medical questions, take a medical exam, or identify a disability before extending a job offer. Employers are also restricted from asking job applicants if they have a disability or probe them about the nature of an obvious disability.

In Malaysia, legislative reforms for PWDs are also underway. On 16 May 1964, for instance, Malaysia signed the Proclamation on Full Participation and Equality of People with Disabilities in the Asia and Pacific Region. In ensuring more employment opportunities are extended to PWDs, the Malaysian Government issued and circulated a General Order (PP 10/1988) to allot and offer at least 1% of civil service positions to disabled people. Subsequently on 25 February 1998, the cabinet approved the establishment of the National Coordinating Body (known as the National Advisory and Consultative Council for People with Disabilities). This council was established to substitute the National Implementation Committee (for the well-being of the Disabled) which was earlier formed on 30 August 1990. On 13 December 2006, the United Nations Convention on the Rights of Persons with Disabilities was adopted by the United Nations General Assembly and was opened for signature on 30 March 2007. Following this adoption, Malaysia signed the Convention on 8 April 2008 and later on 9 January 2008, the Persons with Disabilities Act 2008 (Act 685) was published in Gazette on 24 January 2008 (Ainul 2012: 1).

To further encourage PWDs to enter the labour market, the Malaysian Government is committed to disburse a monthly allowance of RM300 to PWDs who are currently working but with monthly income less than RM1,200)(SCH 2009). In Malaysia's attempt to move the rights of PWDs to the forefront of socio-economic policies, the Laws of Malaysia Act 685 (Persons with Disabilities Act 2008) have called for a switch to a "(human) rights-based" approach that advocates better provision of employment opportunities and accessibility by employers towards PWDs. With reference to Section 29 of the Malaysian Laws under Persons with Disabilities Act 2008, the allocations and provisions for access to employment encompass the following:

Nonetheless, based on a content analysis and comparison of the syntax, language and title of the various acts and legislations available overseas and locally; it is pertinent to note that unlike laws in the UK and US, although Malaysia claims to lobby and advocate the rights of PWDs, but the root word 'discriminate' and the phrase 'to protect PWDs against discrimination' do not distinctively and visibly appear anywhere in the laws and legislations of Malaysia.

In fact, as highlighted by Ainul (2012: 3), there is some inconsistency in the definition of disability adopted by Malaysia as compared to that by the UN Convention on the Rights of Persons with Disabilities (2007). According to the UN Convention, disability is defined as: "Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others." However, Ainul (2012: 3) has highlighted that the Malaysian definition has omitted the phrase 'on an equal basis with others.' Clearly, this omission in the Malaysian definition questions the notion of equality between a disabled person and his/her able-bodied counterparts.

Socio-economic aspects

In total, 478 PWDs were identified as respondents for this study. The division according to ethnic groups is as follows: 'Malay' (57.5%, 275), 'Chinese', (26.8%, 128), 'Indian' (15.1%, 72) and 'Others' (0.6%, 3). The distribution of gender in this study was quite imbalanced, as male PWDs (63.0%, 301) greatly outnumbered their female counterparts (36.6%, 175). Close to one third (31.2%, 149) of the respondents in this study were '44-years-old and above' whilst only a tiny percentage of 1.5% (7) fell under the '15 — 19 years' cohort. The balance of the respondents was between '20 to 44 years old'. This age distribution pattern was purposely constructed for this study because the emphasis is on respondents in the '16 years and above' cohort who are 'productive entities' to the broader economy.

In an overview, 74.9% (359) respondents reported that they were already employed, 18.4% (88) were still unemployed and 6.7% (32) were not able to furnish information about their current employment status. In terms of salary, this study did not illustrate a distinctive trend. The range of salary was found to be wide and varied spanning from RM100 to RM5000 per month. Almost half (47.7%, 228) of the respondents earned a monthly income between RM100 to RM999, whilst a smaller percentage (11.5%, 55) earned between RM1000 — RM1,999 each month. The percentage of respondents decreased as the level of income increased. For instance, there was only 4.9% (23) whose income fell within the range of RM2000 — RM2999 and merely 2.8% (14) had income that exceeded RM3000 each month. When asked whether they encountered any problems with their employer or colleagues, only 18.8% (50) respondents answered that they faced problems with their employers whilst 13.4% (36) stated that they had issues with their colleagues. In this study, it was discovered that the percentage of respondents that had problems with their employers or colleagues was higher in the private sector than in the public sector. The respondents also highlighted that the nature of work in the private sector was more challenging than the public sector. Taking into account that the private sector is more competitive and performance-driven (based on an individual's ability and achievement) has incurred a lot of stress on the PWDs that were interviewed.

Discrimination, exploitation and bullying

However, incidences and evidence of workplace discrimination and exploitation against Malaysian PWDs began to surface after analyzing the qualitative data. To further aggravate the situation, some PWDs were even bullied by their colleagues and were forced to handle and take over tasks (i.e. projects) that were not within their capabilities as stated below:

Whenever there are projects that he (his colleague) cannot do, he will pass it over to me. When the deadline is over and the job is not completed, I will get scolded for not doing the job well. Initially, I do not know how to go about doing this job at all, but I am learning slowly.

                            (Malay male, respondent with hard of hearing)

The focus group discussions also disclosed the voice of discontentment of PWDs due to their heavy workload that are not commensurate with their monthly salaries as quoted here:

My salary is a problem because what I receive is not the same as what normal employees receive even though we do the same work. My salary is less because my boss says I am slow in my work. My workload is the same as other normal employees but my pay rise is very little. The difference in salary is very drastic between my able-bodied colleagues and I. Even though we do the same work, my colleague earns RM2000 whilst I only earn RM800 and I have worked here for 15 years. I dare not complain because I know they (employer) would not bother to listen simply because I am a PWD. It is very difficult to voice my opinions here.

                            (Malay male, respondent with hearing loss)

The preceding quote showed that PWDs were generally shy and afraid to complain about any issues that they encountered at work. Normally, they would either quit the job or opt to search for other avenues if they could not stand the pressures at work as stated by a respondent with learning disability in the following quote:

I am now working with my sibling and I enjoy the work. The work I do now is a far cry from the work I had before. In the past, I used to work in a coffee shop earning a meager wage of only RM3.00 per day. I have to do all the work like washing all the dishes and cups, sweep the floor and wipe the tables. I used to start work at 10.00am and work till late in the night but only get paid RM3.00. Worse still, for my meals, my previous employer will give me stale Nasi Lemak that has gone bad!

                            (Indian male, respondent with learning disability)

It was disappointing to learn that even more educated and qualified respondents like those with a Sijil Pelajaran Malaysia (O-level equivalent) certificate faced discrimination too where they received inequitable and substandard levels of salary. When enquired whether he was being remunerated fairly, this was the respondent's reply:

I am not really happy with my salary. My salary is considered very low as I have worked for more than 5 years already. My gross salary is only RM787 before the deduction of EFP and Socso. After deduction, my nett salary is even less which is RM705. If I work outside, the salary that I will get is about RM950 — RM1000. I have already approached my management but no response until today. They give me the reason that this is a non-government organization (NGO) and they do not have enough funds. I feel that all these are merely excuses. It is not fair.

                            (Indian male, respondent with visual impairment)

Likewise, this issue of being underpaid and overworked was also highlighted by another respondent. It is sad to discover that the ability to secure a job does not guarantee a good future for PWDs. PWDs were frequently exploited by their employers and yet they were unable to take any action stop the exploitation. The following quote is another depiction of exploitation and discrimination at the Malaysian workplace.

I have worked for four year and yet my salary is still stuck at RM400. Each time I ask for a pay rise from my employer, he will repeatedly tell me the same thing over and over again. He will ask me to be satisfied and count my blessings because I have a job and I am entitled for the monthly Disabled workers allowance of RM300. I am constantly scolded by my boss for being slow in my work. In actual fact, I really cannot help it because my hands are weak and I am unable to work to the (fast) speed required by my boss.

                            (Indian male, respondent with physical disability)

Based on the evidence obtained from this study, clearly, discrimination against PWDs was prevalent and rampant at Malaysian workplaces. The most common form of discrimination was inequality in terms of salary, workload and career advancement for PWDs, as in the above example where the respondent earned a stagnant and meager salary of RM400 for four years consecutively without any increment. Despite the additional monthly disability allowance of RM300 from the Government, the respondent's monthly salary (i.e. RM700) was still below Malaysia's current poverty line which is RM720 (Bhattacharjee 2012). This will inadvertently cause Malaysian PWDs to suffer double discrimination/stigma, namely, (i) disability-related stigma; and then (ii) poverty-related stigma.

Such forms of stigma have caused PWDs to be treated differently and inequitably when compared to their able-bodied peers. For instance, PWDs do not enjoy the same opportunities for career advancement. As elucidated from the above evidence, the years and experience that PWDs have accumulated in a job are intentionally overlooked and disregarded by their employers to avoid granting PWDs a salary increment that they rightfully deserve. In fact, in some cases, employers even felt that they were already doing PWDs a "great deed/favour" by offering them a job. According to these ruthless employers, PWDs should "count their blessings"; and not bargain or negotiate for better salary. The substandard treatment of unequal remunerations, exploitation and discrimination against PWDs is considered a breach of the provisions state in Act 685 that asserts the following: "The employer shall protect the rights of persons with disabilities, on equal basis with persons without disabilities, including equal opportunities and equal remuneration for work of equal value…" However, the evidences gathered from this study revealed that the reality was a far cry from the provisions and grandiose statements that are stated under the Malaysian laws for PWDs.

To find out whether their workplaces were modified based on "reasonable adjustments," PWDs were asked whether their employers have undertaken the necessary and reasonable types of adjustments to accommodate their needs. Sadly, the response was undesirable. Merely 30% (50) of PWDs reported that their employers provided proper parking facilities for them. Although there were provisions for disabled-friendly infrastructure, the percentages were minimal as reported here: Ramp (15%), accessible toilets (23%), emergency lighting (9%), signage (11%), rest areas (17%) and transportation (13%). Further analysis also revealed that employers in the private sector were more empathetic and sensitive towards the need to provide disabled-friendly amenities for PWDs compared to employers in the Government departments. At the time of this study, Government offices only provided disabled-friendly amenities like parking (33%) and signage (29%), whereas the private sector had advanced further by providing accessible toilets, accessible walkways, emergency lightings and even allocated rest areas for their employees. The most obvious discrepancy was the provision of transportation services. Only a very small percentage of respondents (2.1%) who worked for the civil service were provided with transportation services by their employers compared to 21.8% by employees in the private sector. This scenario is rather ironic because the public sector as policy-maker should be the key agent to spearhead and provide better amenities to PWDs. Such inadequacies (on the Government's part) should be overcome as soon as possible in order to facilitate the entry and integration of more PWDs into the Malaysian labour force. Additionally, the plight of being deprived of adequate amenities was found to be doubly challenging for respondents in less developed states such as Kedah and Perlis as stated here:

Most of the accessible amenities and support services for PWDs are concentrated in Kuala Lumpur and not in other less developed states. Penang has these amenities too but not Kedah and Perlis. In my state (referring to Perlis), transportation for PWDs is a great problem. There should be standardized accessible amenities for all states in Malaysia and not only in more developed states such as Kuala Lumpur and Penang. There are PWDs here who want to go out from their houses too but are deterred by the unfriendly transportation system.

                            (Malay female, respondent with physical disability)

More important, it is pertinent to discover that discrimination against PWDs did not come solely from employers in the private sector, but from the public sector (i.e. Malaysian Government) as well. It was asked during the focus group discussions whether the Malaysian Government is doing enough to integrate PWDs into the country's mainstream workforce; regrettably, the answer was "No". Based on the sentiments and responses gathered, the respondents were clearly very disillusioned and disappointed with the Government's lackadaisical role in lobbying for the rights of PWDs. The feeling of dissatisfaction can be felt from quote below when asked if the Malaysian Government is currently doing enough to help PWDs secure jobs:

The Government is not doing enough at all. They (referring to Government officers) have already selected their own people. From 100 PWDs who apply, only 5 — 8 PWDs are given jobs from the Government. I have a friend who applied but had to wait very long for an answer. The Government just gives empty promises but with no action taken.

                            (Indian male, respondent with visual impairment)

To exacerbate the situation, it was even more disheartening and shocking to know that PWDs who were motivated and earnest in their desire to begin their own businesses were not treated respectfully during the application process. The bad treatment and discriminatory behavior by the Government officials are highlighted in the quote below:

When my wife (also a PWD) wanted to set-up a tailoring shop, she approached the Labor Department of Sungai Petani. The officers there were fooling around and playing tricks. They told us to fill up all the forms and submit to Sungai Petani and then to proceed to Alor Setar. When their counterparts at Alor Setar received our application, no action was taken. They should process it and send to Putrajaya. When I phoned them to ask a few times, they threatened to object my application. They even threatened to cancel my applications if I contact Putrajaya directly. Finally, I contacted Putrajaya Headquarters and talked to Senior Secretary of Dato' Dr. Subramaniam (Minister of Human Resource Development) and he told me to fill up a proper complain so that proper processing can proceed. This is how they treat OKU people.

                            (Indian male, respondent with visual impairment)