Redefining Disability in the South African Workplace: A Human Rights-Driven Paradigm Shift

The Employment Equity Amendment Act (Act No. 4 of 2022) introduces a critical shift in the way South Africa defines and engages with disability in the workplace. Moving away from a purely medical model, the new approach aligns with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the South African Human Rights Commission’s (SAHRC) Toolkit by recognising the role of societal barriers, not just impairments, in disabling individuals.

1. From medical to human rights-based definitions

The traditional definition in the 2002 Code of Good Practice on the Employment of Persons with Disabilities focused on individuals with long-term or recurring physical or mental impairments that “substantially limit” their employment prospects. While this had some practical utility, it inherently placed the burden on the individual, not on the system that excludes them.

The new understanding, drawn directly from the CRPD (2006)—to which South Africa is a signatory—defines persons with disabilities as:

“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.”
— UN CRPD, Article 1.

This marks a global shift from seeing disability as an individual “deficiency” to understanding it as a condition shaped by context and environment.

2. Legal and policy frameworks supporting the shift

The Employment Equity Amendment Act and associated updates to the Code of Good Practice reinforce the need for a workplace culture that values inclusion and dismantles structural barriers to full participation. As such, employers must interpret disability inclusively and adopt an enabling approach.

The SAHRC’s “Human Rights and Persons with Disabilities” Educational Booklet and the Department of Employment and Labour’s workplace guidance both echo this progressive model. The SAHRC emphasises that disability stems from environmental inaccessibility and societal prejudice, and not merely from the impairment itself.

3. Implications for employers

Employers must now:

• Adopt inclusive definitions: Recognise all forms of disability, including psychosocial, intellectual, and episodic impairments, as legitimate grounds for protection and accommodation.
• Provide reasonable accommodation: As per the Code of Good Practice, employers must “reasonably accommodate” employees or applicants where impairments affect job access or performance. Examples include:
  • Assistive technology (e.g. screen readers, magnifiers)
  • Modifications to the physical environment
  • Flexible schedules or work-from-home arrangements
• Support voluntary disclosure: The Code makes it clear that disclosure is a choice. However, access to accommodations often hinges on it, necessitating sensitive, stigma-free environments.
• Eliminate indirect discrimination: As per the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), 2000, employers must proactively remove barriers that unfairly exclude persons with disabilities from equal opportunities.

4. Beyond compliance: building a culture of inclusion

The SAHRC Toolkit on the Right to Work for Persons with Disabilities calls on employers to shift focus from compliance to cultural transformation. This includes:

• Training staff in disability awareness
• Using inclusive language (e.g. “person with a disability” rather than “disabled person” or “handicapped”)
• Ensuring universal design in recruitment, development, and promotion
• Involving persons with disabilities in policy formulation and workplace committees

5. A business and social imperative

The World Report on Disability (2011) estimated that 15% of the global population lives with some form of disability. In South Africa, Census 2011 placed the national disability prevalence rate at 7.5%, with even higher figures among women and older adults. Yet employment remains disproportionately low.

The Department of Employment and Labour’s “Persons with Disability in the Workplace” guide makes the case that, with reasonable accommodation, persons with disabilities can be just as productive as their peers, highlighting the importance of removing misconceptions, not people.

Conclusion: Toward a barrier-free economy

The evolving definition of disability, rooted in dignity and inclusion, compels South African employers to reassess not just policies, but mindsets. Compliance with the Employment Equity Amendment Act and alignment with global conventions like the CRPD are no longer optional, they are essential steps in creating a fair, inclusive, and prosperous economy.

As the SAHRC rightly states: “The person comes first—not the disability.”

References:

1. Employment Equity Amendment Act, 2023 (Act No. 4 of 2022)
2. Code of Good Practice on the Employment of Persons with Disabilities (as amended)
3. United Nations Convention on the Rights of Persons with Disabilities (CRPD), 2006
4. SAHRC, Human Rights and Persons with Disabilities: Educational Booklet, 2023
5. Department of Employment and Labour, Persons with Disability in the Workplace, 2023
6. Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), Act 4 of 2000
7. World Report on Disability, WHO and World Bank (2011) – ISBN: 9789241564182
8. Statistics South Africa, Report No. 03-01-37 (2024): “Profiling the Socio-Economic Status and Living Arrangements of Persons with Disabilities in South Africa, 2011–2022”