Veena Gopalakrishnan
Trilegal, Bangalore
veena.gopalakrishnan@trilegal.com  

Vinduja Menon
Trilegal, Bangalore
vinduja.menon@trilegal.com

Introduction

Fostering an inclusive and diverse work environment is a moral imperative and critical societal need, in particular when it comes to addressing the unique requirements and rights of persons with disabilities.

There has been legislation in place to promote disability diversity in the workplace in India for the last few decades, ensuring that persons with disabilities are protected from discrimination and provided with equal opportunities, fair treatment and necessary accommodations. Moreover, the Constitution of India enshrines the right to freedom from discrimination as a fundamental entitlement for every citizen.

In recent years, public and private sectors in India have taken significant strides towards recognising and safeguarding the rights of persons with disabilities in the workplace. Increasingly, companies acknowledge the need to provide a supportive environment that accommodates persons with disabilities, in line with their inclusivity and equality commitments and in recognition of the integral role diversity and inclusion play in creating a vibrant workplace culture.

This article delves into the evolving landscape of disability rights within Indian workplaces, outlining both the challenges and progressive initiatives that are shaping a more accessible and equitable professional environment for all.

The Rights of Persons with Disabilities Act 2016

The cornerstone of disability diversity law in India is the Rights of Persons with Disabilities Act 2016 (RPWD Act), which replaced the earlier Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (the ‘1995 Act’).

The RPWD Act aims to align India's legislative framework on disability rights with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). India signed and ratified this international treaty in October 2007. Like the UNCRPD, the RPWD Act defines a ‘person with disability’ as someone with long-term physical, mental, intellectual or sensory impairment, which in interacting with various barriers may hinder their full and effective participation in society on an equal basis with others.

While the 1995 Act included just seven disabilities, the RPWD Act has expanded protection to a larger portion of the population through the inclusion of 15 disabilities, such as dwarfism, victims of acid attack, autism spectrum disorder and specific learning disabilities.

Among other principles, the RPWD Act emphasises non-discrimination, effective participation and inclusion in society, equal opportunity, accessibility and respect for the evolving capacities of children with disabilities, and respect for the right of children with disabilities to preserve their identities.

Some of the key provisions set out in the RPWD Act with regard to the workplace include:

• Equal opportunity: discrimination against persons with disabilities in various contexts, including employment, is prohibited. Employers are mandated to provide equal opportunities for persons with disabilities when it comes to recruitment, promotion and other aspects of employment.
• Reasonable accommodations: employers are obligated to make reasonable accommodations to ensure that persons with disabilities can perform their duties effectively. Reasonable modifications include modifications to the workplace buildings, campuses, facilities or equipment to suit the needs of persons with disabilities.
• Reservations: a minimum of four per cent of the total number of government vacancies must be reserved for persons with disabilities,  with one per cent reserved for persons suffering from benchmark disabilities.
• Non-discrimination: persons with disabilities are entitled to work in a respectful and inclusive workplace free from harassment.
• Accessibility: information and communication must be provided in formats that are accessible to persons with disabilities.
• Appropriate government: a government body at the central and state levels is designated to oversee the implementation of the provisions outlined in the RPWD Act, including addressing grievances and promoting awareness.
• Social security: various social security measures, including insurance and pension schemes, have been provided to support the financial well-being of persons with disabilities.

Obligations for private establishments

The RPWD Act defines ‘private establishment’ to include a company, firm, factory or such other establishment. While private employers are not mandated to reserve job roles for persons with disabilities, they are prohibited from discriminating against an individual on the grounds of disability, unless the establishment can prove that the impugned discrimination is a proportionate means of achieving a legitimate aim.

Private establishments must maintain records of persons with disabilities employed by them, including inter alia name, gender, nature of disability, nature of work performed, and the infrastructure facilities provided.

The RPWD Act also mandates that private establishments with 20 or more employees publish an Equal Opportunity Policy (EOP) detailing the measures taken to give effect to the provisions of the RPWD Act. The EOP must be registered with the Central or State Commissioner, as applicable, as well as published on the establishment’s website or in a conspicuous place on the premises. It must detail the facilities and amenities provided to persons with disabilities to ensure that they are able to perform their duties effectively, including, inter alia, assistive devices, barrier-free accessibility, posts identified as suitable for persons with disabilities, and the manner of selection of persons with disabilities. In addition, a liaison officer must be appointed by the establishment to oversee the recruitment of persons with disabilities and infrastructure mandates prescribed by the RPWD Act.  

In addition to the RPWD Act, the Rights of Persons with Disabilities Rules, 2017 (the ‘Rules’) prescribe certain additional obligations on private employers. The Rules mandate that private employers must comply with guidelines regarding the physical environment, transport, and information and communication technology. This includes maintaining a minimum width for walkways, ensuring that materials on the website are in a PDF-based format optimised for optical character reader (OCR) technology, etc. The building must also have elevators and ramps for wheelchair users. In accordance with the RPWD Act, both existing structures and newly constructed buildings must comply with the accessibility standards specified for public buildings under the Harmonized Guidelines and Space Standards for Barrier-Free Built Environment for Persons with Disabilities and Elderly Persons.

Incentives for private employers

The Ministry of Social Justice and Empowerment introduced a scheme in 2008 to encourage private sector companies to hire persons with disabilities. Under this programme, the government sponsors the employer's portion of the contribution as required under the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952, and the Employees’ State Insurance Act, 1948 for a period of three years, for persons with disabilities whose monthly wages are up to INR 25,000.

Conclusion

The significance of embracing disability diversity cannot be overstated; it is not just key to fostering inclusivity, but also a catalyst for innovation in the workplace. While the RPWD Act has established a robust legislative framework to protect the rights of persons with disabilities in the workplace, implementing it effectively remains a challenge. Accessibility issues, attitudinal barriers and a lack of awareness continue to hinder the full and meaningful inclusion of persons with disabilities in a professional setting.

However, the RPWD Act and related rules and regulations are a step in the right direction, providing a framework for creating an inclusive work environment where persons with disabilities can contribute their skills and talents. By embracing diversity and removing barriers to equity and inclusion, India can move towards a more equitable and productive workforce that benefits everyone.