Introduction
I was listening to the CBC podcast Ideas, which was randomly replaying one of Margaret Visser’s 2002 Massey Lectures – Beyond Fate. I was jolted by Visser’s claim that “no way of enforcing rights has ever been found.”
The day before I had been prompted to download the United Nations Convention on the Rights of Persons with Disabilities, dated 6 December 2006. I wondered, over the past 20 years, had we found a way of enforcing the rights of persons with disabilities, despite the fact they were affirmed after Visser’s lectures?
In Australia it is possible to call people who violate the rights of people with disability to account via the Human Rights Commission and by invoking anti-discrimination legislation. But such action tends to be reserved for the most egregious violations. And even then, this recourse does not assure rights are respected and honoured into the future – for the aggrieved individual, or fellow sufferers.
It’s time to rethink what is a fair thing to anticipate when asserting the right to enjoy an inalienable right.
What does a right really mean?
Rights are an interesting idea from the point of view of a person with a disability. People may agree you have them, but then may act as if you do not. You see, a right is consensual. To have it, you must act as if you have it, and so must everyone else. If you act as if you have a right and others do not – you don’t really have it. Rights are, in fact, subject to dispute and disagreement.
A right is “a moral or legal entitlement to have or do something” (Oxford Dictionary). The UN Convention speaks of “the inherent dignity and worth and the equal and inalienable rights of all members of the human family.” Inalienable means something cannot be taken away or surrendered. A right must be declared inalienable by others. Even so, that does not mean it is a contract, let alone a law.
This would be good language – if it had a worthwhile meaning. But it doesn’t. A “moral entitlement” is meaningless because it requires common assent and a powerful cultural or communal commitment to which all are bound. Violation must have undesirable consequences. We don’t live in that kind of environment these days.
A legal entitlement is another matter, provided there is a will, and the means, to enforce it. There are a multitude of reasons why this is an unattractive and ineffectual option. Australians are not inherently litigious – so getting up a head of steam of moral outrage is a lot harder than in the USA. The pool of skilled litigators might be another, through want of practice. I don’t want to get too deep into this theme. It merits a more legally articulate comment than I can offer. The history of government departments defending against flagrant violations of the rights of staff members with determined passion doesn’t help either.
Violators of rights in ways that cause serious injury can escape being held to account with comparative ease. And chilling tales of the deeply aggrieved pursuing justice to the point of financial and psychological ruin offers no comfort.
I am not saying that pursuit of rights through tribunals and courts is pointless and fruitless, just that doing so can be fraught, handled incompetently, and fail. The ‘system’ is not tuned to favour the victim – from the instance of violation of a right through subsequent responses to the point where adjudication of the matter is sought.
It is safe to say that rights in any practical sense, are fragile and vulnerable. They are expressions of genuine noble sentiment. But a declaration of a right, even if expressed in legislation, is not a magic wand.
Despite efforts to the contrary, a right isn’t a real thing. It isn’t property. At best it is an agreement concerning conduct that is often imposed upon people whose goodwill and assent must be obtained for that imposition to have meaning and value.
The victimization of victims
Staff with disability who experience violations of their rights are routinely turned into accusers, not of their oppressors, but of the agency the oppressors represent. The burden of proving a case falls upon the victim, with a presumption of innocence being accorded to the manager, who is often the alleged perpetrator. This seems like natural justice, but it is not.
Part of the role of management is to ensure that staff with disability do not find themselves in a position where they are aggrieved. The belief that a grievance is most likely unjustified is favoured by managers because that forces the onus of proof on the victim.
It is far more likely that a grievance is justified, and that the matter of concern was preventable. In the time I worked with staff with disability to find a resolution to their grievances concerning violation of their rights I encountered only one instance of the complaint being objectively unfounded. It was, however, triggered by psychological stress which had to be addressed in any case.
Vexatious complaints are rare and may be triggered by an underpinning issue that may or may not have anything to do with work. This is a far more complex matter than it may at first seem.
The raising of a complaint is usually a signal that a situation has been ineptly managed. It is this fact that a complaint has been raised that should be the focus of concern. This shifts the focus to human-centred management, where the rights and dignity of staff matter, and away from a quasi-legal adversarial approach. Historically this approach has been designed to favour those in positions of power. It has no place in contemporary management practice.
Exactly why a manager should be more representative of an organization than a productive employee shouldn’t be a hard question. Get rid of a highly skilled and experienced worker who complains about discrimination or keep an incompetent discriminatory manager? That’s so often a no-brainer. But so often the manager is the one who stays.
Those who manage look after their own. Management culture readily turns those below them into others – members of an out-group. This complex reality of organizational hierarchies is under-estimated in the practice and perpetuation of discriminatory conduct.
Just before I left my department in June 2021 a new approach to complaints was circulated. It was well-intended. But it distinguished between managers and workers. Really? I as a subject matter expert with near on 20 years’ experience was a ‘worker’? And a manager with far less expertise that was a class above me? They were in a different role category – performing a role I had no interest in. But they were not in a different class. This class divide between managers and workers is ancient and tenaciously persistent. This is despite the reality that managers and ‘workers’ mostly come from the same social class these days. This is a major factor in the persistent failure of organisations to honour the rights of staff (workers) with disability (and others).
Let’s think about the rights of a person with disability
In an organization – a department, business, or community the exercising of the rights of a person with disability may mean adjustments must be made to the physical and cultural environment.
The problem is that while people may be fine with adjustments to the physical environment- because other people benefit as well – that does not mean they are going to be okay about adjusting their beliefs, attitudes, values, or behaviours. Individuals are not usually personally invested in adjustments to the physical environment. But they are personally invested in changes to the cultural environment – where that includes them.
Many will be prepared to make a ‘reasonable adjustment’ to their attitudes, beliefs, values, and behaviours – but on their terms. We must remember that there are other demands on individuals, and that such changes can be very demanding – cognitively and emotionally.
There is interesting brain research that suggests that if an organization wants to increase the extent to which its staff respond supportively to staff members with disability it must accommodate a range of variables that can impede the desired reaction:
- Mandatory awareness training can have the opposite effect if it adds a cognitive and emotional burden, and there is no motivated personal commitment.
- Work related stress lowers willingness to change attitudes and behaviours.
- Unconscious and implicit bias can lead people to violate rights while believing they are upholding them.
There is a spectrum of willingness to adapt, and a spectrum of capacity to adapt. At the top extreme there is high willingness and high capacity. At the bottom end is low willingness and low capacity. We are all somewhere on that spectrum.
The challenge for any organization is to determine where it draws a line on that spectrum to signal the extreme of the negative response it is prepared to live with. Diversity Equity and Inclusion (DEI) advocates have urged businesses to respond to the evidence that high willingness to create optimal DEI conditions has a bottom line pay off. But the lure of lower cost and higher income does not always work. The attitudes of senior leaders may not be that idealistic or pragmatic.
Public sector organizations have an obligation to treat all members of the community they represent fairly and equally, so their line on the spectrum must be toward the highest level of willingness. This isn’t a pragmatic option. There is a fundamental difference between profit and equity bottom lines that applies in relation to private and public organisations. It is that one can opt out of a shared value and the other may not.
However, a moral obligation to not opt out does not translate as an actionable duty to opt in. This is what confuses many who assume that an assertion of their rights is an affirmation they will be honoured – and then find they are not. Worse, the people who ignore or violate them persist in insisting they do, in fact, honour those rights.
The fundamental difference between private and public organisations
The private sector has a discretion about whether it agrees to abide by laws of a nation or state. It can choose to leave, or it can choose to violate the laws. In many countries it can be cheaper to violate. The right to violate can be bought at a good price. In the US corporations seem to be frequently sued for violations of rights. That suggests that there is a calculation that such violations are often successful – and this is something the organisation’s leadership culture is comfortable with.
The public sector of a country, or state, does not have the option of departing. It must choose to violate at an acceptable cost. This is what usually happens. Governments accept a burden of non-compliance against their own laws by their own sector is a cost of doing business.
Evidence that this is a real assessment is demonstrated in the fact that the cost of insurance premiums for workplace related injury is going up, despite the fact reasons for preventable injury are known. This is especially the case concerning psychological injury. The cost of prevention is deemed higher than the cost of compensation. Prevention is seen as a cost, not an investment.
Private sector businesses are constrained by investors making rational choices based on a profit motive. The public sector is shaped by less rational choices. Whether it has the means to engage in needed reforms and growth is resource dependent. And beyond that, it is a question of values and will.
Public sector problems
A morally responsive public sector must ensure equal access and participation across increasingly diverse communities. There is obviously a political dimension to how this response plays out. That’s not a topic for this essay.
In public sector organisations, upholding the rights of people with disability (and others) may not be a value shared by its workforce. It then has a challenge concerning how it is going to ensure that most of its workforce is on the high side of the spectrum of acceptance of those rights, which is reflected in a high capacity to uphold them.
In the New South Wales public sector there is a code of conduct which requires conduct consistent with the declared rights of people with disability. But it is not specific or clear about how violations of these rights are assessed, and what penalties, if any, are imposed.
Conclusion
I am starting to think we need to move away from the idea of rights and think more in terms of obligation or duty. If we see it as a two-sided equation and recognise that one side is not keeping up its end of the deal, it all falls apart. Rights walk with 2 legs – assertion and confirmation. With only one leg, we have rights with disability – not disability rights.
To assert “I have a right…” is to essentially assert a nice sentiment, which may not be shared by those you are speaking to. They may have been told they are required to share the sentiment, and they may say they do, but their actions may not agree. What is more important is the capacity of an organization to self-police its ability to stand by its self-described and self-declared duty to treat its workforce with equal dignity.
I conclude that Margaret Visser is right – “No way of enforcing rights has ever been found.” Twenty years has made no difference to the acuity of that insight.