Preetha Soman
J Sagar Associates, Bangalore
preetha.s@jsalaw.com

Introduction

For organisations worldwide, building and maintaining an inclusive work environment is a crucial need. Though needless to mention, it is a constant and ever-evolving process.

The concept of ‘disability inclusion’ goes beyond mere compliance with legal requirements. It embodies a commitment to creating a workplace that celebrates the unique abilities and perspectives of differently abled individuals. Unfortunately, representation of persons with disabilities in India Inc has been sparce owing to multiple reasons, including the small pool of candidates with the requisite credentials, the nature of the role, difficulties in mapping talent with available vacancies, employers being unable to provide accessible facilities and a welcoming work environment, and the myth surrounding additional expenditure in the recruitment of persons with disabilities. These issues are compounded by a severe lack of awareness of disability inclusion.

The workforce of India Inc is coming into its prime, with more than 65 per cent of the country’s population under the age of 35. India’s largest export is its human resources, yet inadequate representation and utilisation of talent puts Indian employers at a disadvantage compared to its counterparts in other countries. Statistics reveal that in India there are around 30 million persons with disabilities, of which 13 million people are employable, yet only 3.4 million have been employed in the organised and unorganised sectors, via government-led schemes or who are self-employed.^[1] According to the latest workforce data reported by Nifty 50 constituent companies as part of their annual disclosures, only five of these 50 companies have more than one per cent of people with disabilities on their payroll, with four of them being public sector companies.^[2]

Regardless of accommodating laws, disability inclusion has a long way to go. By shying away from hiring people with disabilities, employers put themselves at a disadvantage, wasting the potential of raw, untapped talent.

Disability inclusion: Indian legal considerations

In India, the law has taken bold steps to ensure that inclusivity happens at a grassroots level, fostering an environment of zero tolerance towards discriminatory behaviour, so that persons with disabilities enjoy the right to equality, life with dignity and respect equally with others. The right to equality, life and liberty is a fundamental right, available to all citizens of the country under the Indian Constitution. While fundamental rights can be enforced only by the state, the protections offered by law to people with disabilities do not stop there.

The Rights of Persons with Disabilities Act 2016 (the ‘Disabilities Act’) was enacted by the Indian government to replace the Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act 1995. The Disabilities Act seeks inter alia to ensure that reasonable accommodations are made in all aspects of social life whether by educational institutions, commercial establishments, public buildings and/or transport systems in order to ensure that people with disabilities have access to all such facilities, alongside prohibiting discrimination.

The Disabilities Act recognises 21 types of disabilities, combining disabilities that are both physical and mental, making the scope of the Disabilities Act much larger than its predecessor.

Employer obligations

While the primary intention of the Disabilities Act was to ensure equality, integrity and dignity for disabled persons, it also makes efforts to ensure that active involvement is observed by all relevant stakeholders, including private establishments.

Under the Disabilities Act, every establishment (including a private sector employer) is required to adopt an ‘Equal Opportunity Policy’ (EOP), detailing the measures proposed by the establishment in order to ensure an inclusive work environment and prohibit discrimination in the workplace. Employers are also required to register a copy of the EOP with the Chief Commissioner or the State Commissioner, as the case may be. The Disabilities Act further mandates that establishments with at least 20 employees specify the following details within their EOPs:

• the facilities and amenities provided to persons with disabilities to enable them to effectively discharge their duties in the establishment;
• a list of posts suitable for persons with disabilities within the establishment;
• the selection process for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation (if any) and other facilities;
• provisions for assistive devices, barrier-free accessibility and other provisions;
• details of >the liaison officer appointed by the establishment.

The Disabilities Act mandates the appointment of a Liaison Officer by any establishment with at least 20 employees. The Liaison Officer is required to oversee the recruitment of persons with disabilities and make provisions for facilities and amenities for such employees.

While the Disabilities Act does not mandate private sector employers to employ disabled persons, the Disabilities Act provides certain incentives for private establishments wherein at least five per cent of their workforce is comprised of persons with a benchmark disability.^[3] Employers are also required to maintain certain registers and records containing details of persons with disabilities engaged by them.

Affirmative action: examples

While many Indian employers have embraced affirmative action, in particular in the last couple of years, there is a lot more to be done to ensure inclusivity in its true sense.

Ensuring an inclusive environment for people with disabilities does not end with hiring them. Employers also need to invest in creating the right kind of infrastructure for their personnel with disabilities, whether in the form of appropriate seating facilities or conveniently located workstations, technical aids, accessible washrooms, etc. Equal emphasis also needs to be given to ensure digital accessibility, which is often disregarded or overlooked by employers. Efforts are clearly under way to ensure the inclusion of persons with disabilities within the workplace. For example, some tech giants have run special recruitment drives to hire diverse candidates, including pairing up with non-governmental organisations that predominantly focus on the wellbeing of disabled persons. Some employers have made their spaces wheelchair-friendly, ensured that videos are subtitled and that sign language interpreters are available wherever required, especially at company-wide communication events, to aid employees with hearing challenges. Likewise, visually challenged employees are being provided with text-to-audio compatible devices.

Some companies have taken initiatives to ensure that there are accessible restrooms, workplace, and parking to support people with visual impairment, as well as providing braille stickers in lifts along with high-contrast signage wherever possible. Many employers also conduct sensitisation drives to change the impeding ‘attitude’ that exists at workplaces, encouraging people to welcome employees from all spheres of life.

It's about time for organisations to discard their default thinking patterns and start valuing and adopting differences in order to foster a sense of belonging in the workplace. The goal shouldn't be limited to completing a checklist to meet the legal requirements or conforming to popular practices. In fact, the Supreme Court of India in 2021 noted that merely prohibiting discrimination against individuals with disabilities would be insufficient to ensure their equal and dignified lives. This underscores the necessity of transitioning from a ‘charity-based’ perspective to a ‘rights-based’ approach, aiming to empower people with disabilities.^[4]

Conclusion

Establishing a robust framework for hiring people with disabilities not only fosters the development of a secure, encouraging, honourable and considerate atmosphere, but also leverages the insights and wisdom of a varied workforce to enhance the decision-making procedure. A growing body of evidence highlights a beneficial connection between diversity and inclusion strategies and a thriving work culture, heightened competitiveness, innovation, holistic advancement and enhanced company engagement. Multiple studies also reveal that persons with disabilities are far more disciplined and have a greater commitment towards work. While training them may require some investment, once trained, their productivity is significantly higher.

An organisation’s success is no longer limited to its turnover but is also dependent on its ability to retain and nurture talent besides its progressive mindset. Organisations that aim to get ahead of the competition in terms of output will need to discard several of their preconceived notions and step away from their set trajectories to make the ‘actual difference’!