The National Human Rights Commission (NHRC) reviewed the February 2004 Ministry of Labor (MOL) draft bill to amend the existing “Employment Promotion and Vocational Rehabilitation of Disabled Persons Act” (hereafter, “draft amendment”) and submitted an opinion stating that the proposed provision for granting exemptions to the obligatory hiring of disabled persons should be abolished, and that the bill should expand the pool of persons who carry out vocational rehabilitation for the disabled to include persons who have been shown to be qualified and specialized in vocational rehabilitation.
Although the Commission acknowledges that the amendment expands opportunities for disabled persons to find employment by reducing the occupations qualifying for exceptions to the obligations to employing the disabled, the very fact of having exception in itself defines disabled persons as intrinsically unfit to carry out certain job duties, with the underpinning assumption that disabled persons are different from non-disabled persons, and second, conversely since such exceptions, stemming from perceptions that non-disabled persons are all qualified to carry out all types of those job duties, they create discrimination and infringement of human rights.
Additionally, there are no grounds for which to claim that qualified disabled persons are unfit to carry out jobs such as those in the judiciary, public prosecution, and police systems, as educators, and other specific public official capacities. The Commission has concluded that without consideration for the type of job and the individual disabled person’s circumstances, simply concluding that all disabled persons cannot even work in such occupations constitutes an infringement of the freedom to choose one’s occupation.
Further, “exceptions to the obligation to hire disabled persons” strengthens prejudice by making whether a person is disabled or non-disabled a criteria for measuring relative capacity to carry out work responsibilities. In a situation where we have been unable to achieve obligatory employment of disabled persons and lack real sanctions to enforce such obligations, acknowledging broad sectors as exempt from such obligation constitutes discrimination.
In the NHRC written opinion, there may exist occupations where it would be realistically difficult for a disabled person to be employed; however, what this means is not that it would be impossible for disabled persons to work at those jobs, but rather that the conditions enabling disabled persons to work are relatively more difficult. Under the assumption that the removal and restoration of disabled persons to workplaces and state responsibility are inevitably linked, (1) the state and local government must strike out the clause (article 21) exempting workplaces from the obligation to employ disabled persons, and (2) it would be appropriate to remove article 23: clause 4, which has been the grounds for this, in future amendments to the law.
In article 16 of the bill to amend the enforcement rules for this law, there are provisions to foster creation of a workforce to provide services to disabled persons such as vocational rehabilitation services. The Commission’s opinion statement recommends expanding the qualifying conditions from government officials in welfare and personnel officers and other administrative officers to include: persons with vocational rehabilitation counseling credentials, vocational educators under the special act to promote education, and other persons who have had their qualifications verified to act in such a capacity.
The NHRC also requests that (1) government organs with jurisdiction on the matter review the need for upwardly adjusting the rate of obligatory employment of disabled persons, and that (2) the state and local government make efforts to reach the statutory rate of obligatory employment levels of disabled persons in all government sectors. Additionally, there is a need to discuss reform of related laws such as the Act on the Promotion of Employment for Disabled Persons and Vocational Rehabilitation, so as to make the scope of application, the criteria for who is a disabled person, and the scope of who is an employee versus a self-employed entrepreneur conform more closely to the institutional intent; thus, the Commission has requested future reform of the Act on the Promotion of Employment for Disabled Persons and Vocational Rehabilitation and related laws.
