Worker’s Obesity Could Be Disability Under ADA, Judge Says

A Missouri federal judge ruled on Thursday that a former employee of a car dealership who has accused his employer of firing him for his weight has sufficiently supported his claim that he is disabled within the meaning of the Americans with Disabilities Act, rejecting the dealership’s motion to dismiss the suit.
U.S. District Judge Stephen N. Limbaugh Jr. said dealership chain America’s Car-Mart Inc. relied on outdated case law in arguing that former employee Joseph Whittaker’s “severe obesity” isn’t a disability under the ADA.

“Plaintiff sufficiently alleges a factual basis from which inferences supporting the legal conclusion that he is disabled within the meaning of the ADA may be drawn,” Judge Limbaugh wrote.

Whittaker claimed in a suit initially filed in July that America’s Car-Mart violated the ADA and the Civil Rights Act by terminating his seven-year employment in November 2012.

The plaintiff said he could fully perform the “essential elements” of his job as the general manager of the Jefferson City, Mo., dealership without any special accommodations, but America’s Car-Mart canned him because of his weight. In an amended complaint filed in January, Whittaker added a claim that the dealership retaliated against him by threatening to terminate business with any entities that employ him.

America’s Car-Mart countered that Whittaker’s severe obesity is not an actual disability under the ADA unless it is related to an underlying physical disorder or condition and asserted that the plaintiff hasn’t alleged such facts.

Judge Limbaugh wrote in Thursday’s order that the defendant relied on case law construing disability based on the more restrictive approach applied before Congress passed the broader Americans with Disabilities Amendments Act of 2008. America’s Car-Mart’s reliance on a statement in U.S. Equal Employment Opportunity Commission guidelines that obesity is only considered a disability in rare circumstances is likewise misguided as that language was omitted following the passage of the 2008 act, the judge said.

Whittaker has sufficiently pled a claim that his severe obesity is a disability within the meaning of the ADA, according to the order. The plaintiff alleged that the dealership regarded him as having a physical impairment and being substantially limited in one or more major life activities, including walking, the judge wrote.

Judge Limbaugh also denied America’s Car-Mart’s motion to strike the plaintiff’s amended complaint. The dealership alleged that Whittaker lodged the amended complaint without its consent and without leave of the court, but the judge found that the plaintiff clearly requested a time extension to file the new complaint.

Whittaker is seeking back pay with interest, damages for emotional distress and further awards to be determined at trial.

The EEOC has said that merely being overweight doesn’t usually amount to an impairment that would allow a worker to avail themselves of the law’s protection, but severe obesity — a body weight more than 100 percent more than the norm — could cross the threshold into “disability.”

In 2011, a federal judge in Louisiana ruled that under the EEOC’s guidelines, this kind of severe obesity could be considered a protected disability even if it isn’t caused by some kind of physiological disorder.

“According the EEOC guidelines to the ADA the appropriate deference, the court should recognize that severe obesity qualifies as a disability under the ADA and that there is no requirement to prove an underlying physiological basis,” said U.S. District Judge Ivan L.R. Lemelle, refusing to toss an EEOC case against a nonprofit that fired a 527-pound woman.

Whittaker is represented by Michael L. Jackson.

America’s Car-Mart is represented by Kevin D. Case and Ryan S. VanFleet of Case Linden PC.

The case is Whittaker v. America’s Car-Mart, Inc., case No. 1:13-cv-00108, in the U.S. District Court for the Eastern District of Missouri.

Source: http://www.law360.com/articles/531566/worker-s-obesity-could-be-disability-under-ada-judge-says

UN: People With Disabilities Free To Make Own Decisions

A United Nations committee has issued new guidelines urging countries to recognize the importance of supported decision-making for people with disabilities. (UN/Jean-Marc Ferré)

A United Nations committee has issued new guidelines urging countries to recognize the importance of supported decision-making for people with disabilities. (UN/Jean-Marc Ferré)

People with even the most severe disabilities have the right to make their own decisions, no matter if their choices are risky or ultimately turn out to be mistakes, a United Nations panel says in new guidelines to nations.

The comments come from the U.N. Committee on the Rights of Persons with Disabilities — an 18-member group charged with monitoring the implementation of the Convention on the Rights of Persons with Disabilities — in a statement Tuesday designed to dispel misunderstandings about the international treaty.

Under the convention, nations commit to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.”

In practice, however, many people with disabilities around the world are denied fundamental rights including the opportunity to vote, marry and start a family based solely on their level of mental capacity, the U.N. committee said.

Rather than make choices on behalf of those with special needs, the panel clarifies in its new guidelines that the convention calls on nations to recognize the importance of supported decision-making where individuals are aided in fulfilling their own wishes.

In cases where it’s not reasonable to know what an individual wants, decisions should be based on the “best interpretation of their will and preference,” the committee said.

“Respect for the freedom to make choices should be accorded to all persons with disabilities, no matter how much support they need,” said Theresia Degener, a member of the Committee on the Rights of Persons with Disabilities. “People with disabilities, including those with psychosocial or cognitive impairments, must be supported in making decisions, and not have decisions made for them, even when it is thought to be in their ‘best interests.’”

At present, 145 countries have ratified the Convention on the Rights of Persons with Disabilities, which calls for greater community access and a better standard of living for people with disabilities around the world. The United States signed the treaty in 2009, but efforts to ratify it have so far been unsuccessful.

Soruce: http://www.disabilityscoop.com/2014/04/23/un-disabilities-free-decisions/19303/

A victory for Poland’s disabled children

After a sit-in protest at Poland’s parliament, lawmakers are set to raise government aid to carers of disabled youth.

Warsaw, Poland  In response to protests that occupied Poland’s parliament for 17 days, the country’s Senate has now voted to boost welfare benefits for parents who leave their jobs to care for their disabled children. The amount will rise from $270 per month to $431 by 2016 – an increase of 60 percent. Next week, the Polish parliament will vote on whether to ratify the Senate’s bill.

“In 20 years of Polish democracy, there has not been an effective welfare system established supporting a family taking care of a child with a disability,” said Iwona Hartwich, the leader of the protests that ran during March and April.

“We represent a group of 104,000 parents and have been knocking on the door of Prime Minister Donald Tusk asking – actually begging – him for help,” she said. “We believed in his promises made in 2011 that we will never have to go on the streets again and fight for the acknowledgement of our children’s rights. Years passed by and nothing has happened.”

Piotr Broda-Wysocki, a political science lecturer at Warsaw’s Cardinal Stefan Wyszynski University, said that, although the law recommends adjusting carer allowances every three years in line with the cost of living, Poland had not raised allowances in 10 years. Broda-Wysocki said Poland’s social welfare system could “make only survival possible – but sometimes not even this”.

‘Extreme burden for parents’

Jolanta’s 14-year-old son, Szymon, suffers from spina bifida and is not able to walk. Jolanta, who asked that her surname not be published, said she receives about $400 a month, consisting of a $270 carer’s allowance and three other child benefits, which she uses to cover the costs of rehabilitation and buy her son the expensive orthopaedic shoes he needs.

She told Al Jazeera the level of child support she receives from the government would need to be tripled in order for her to live in dignity.

Four years ago, her son needed a specialised wheelchair, costing $4,600. “That wheelchair would help me take him for a walk. Saving $4,600 from my monthly $400 was not possible. We had luck as we were approached by a group of young people who organised a charity concert for Szymon and collected the funds. What about other kids? Why can’t we be provided with sufficient help from the government?” she asked.

Unlike Poland, Scandinavian countries including Denmark, Norway and Sweden directly employ carers for disabled children. In Germany, carertakers’ allowances can add up to about $2,760 per month, covering the costs of qualified nurses taking care of the disabled children at home.

Raimund Schmid, CEO of the German organisation Kindernetzwerk [“Children’s Network”], told Al Jazeera that, while “taking care of a disabled child around the clock is an extreme burden for the parents”, the German welfare system guarantees them and their children a life with dignity.

Limited access and pressuring principals 

Poland has ratified the UN Convention on the Rights of Persons with Disabilities, which prohibits the exclusion of disabled children from the education system on the basis of having special accessibility requirements.

“Integrated schools have been established. There is no lack of integration classes and adopted schools,” said Polish Minister of Labour and Social Policy Wladyslaw Kosiniak-Kamysz.

But parents say they face a different reality. Many of them, especially those in smaller towns, become frustrated with limited access to educational institutions for their children and decide to move to larger cities where the chances of finding a school that integrates children better are much higher.

An EU report stated that, although the Polish Act on the Education System grants equal access for all children, “individual principals of mainstream schools may still put pressure on parents of children with disabilities to place the child in a special school”.

Janina Arsenjeva, programme manager at the International Federation for Spina Bifida and Hydrocephalus, said a review process could help ensure the UN convention is adhered to:

“Countries need to adopt a long-term strategy of how they are going to move towards inclusive education, and have to report to the UN concerning their respect for the provisions of this convention.”

Parents of disabled children demanded higher child benefits – and won a proposed increase of 60 percent [AFP]

‘Smart money’

Broda-Wysocki said perceptions must change so that the entire social welfare system is considered an investment in the future of Polish society.

“Funds for social benefits, especially for the young generation, need to stop being considered a wasted expenditure. This is smart money. If we can improve someone’s health condition, providing for him in the future will be much less expensive. Moreover, if we can educate these children and help them become independent, we will have a good citizen and taxpayer in the future.”

With this in mind, Polish parents emphasised that the government amendment to boost carertakers’ allowances is just a first step, and they’ll demand more measures to improve their children’s standard of living.

Hartwich said the protest had been suspended but parents are determined to enforce their demands – and may travel to Brussels to win the attention of the EU Parliament.

Asked about the current system of welfare guarantees, Minister Kosiniak-Kamysz told Al Jazeera: “Although the situation improves each year, it still does not reflect my dreams.”

Source: http://www.aljazeera.com/indepth/features/2014/04/victory-poland-disabled-children-201441413846809787.html

The Senate Can Pass A Treaty To Protect Fish But Not One To Protect Disability Rights

The U.S. Senate last week without fanfare performed one of their primary functions, one that they have managed to avoid for years. By a voice vote, without a word of opposition, the upper house of Congress ratified not one, not two, but four international treaties. In doing so, they broke a logjam that has been in place since the previous Congress and made the world a little safer for the fish of the Pacific — but continued to ignore a crucial treaty on their agenda dealing with the rights of the disabled.

The Constitution gives the president the power to make treaties, but only “by and with Advice and Consent of the Senate … provided two thirds of the Senators present concur.” That function is one of the levers of power that separates the Senate from the lower chamber of Congress and is closely guarded. In recent years, however, exercising it has proved even more difficult than usual. The last treaty to make it through the Senate was in 2010, when the contentious New START, which placed limits on the number of nuclear weapons the United States and Russia can possess, passed in a lame-duck session. Even formerly non-controversial tax treaties — international legal documents intended to prevent double taxation on U.S. citizens living abroad — have been unable to break through the Senate chamber since then.

That all changed last week. The four international treaties that broke the nearly four-year long drought all deal with supporting the $70 billion commercial fishing industry and protecting their interests off the U.S.’ shores. The Port State Measures Agreement commits member-states to “prevent, deter, and eliminate illegal, unreported, and unregulated fishing;” the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, and its counterpart for the South Pacific Ocean, aims to “ensure the long-term conservation and sustainable use” of fisheries; the fourth is an amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. All sailed through on a basic voice vote.

Those treaties were the first to be ratified since 2010, but they weren’t the first to reach the Senate floor. In winter 2012, in the lame duck session that followed the elections, the full Senate voted on the Convention on the Rights of Persons with Disabilities (CRPD). While not expected to be as easy as the passage of the recent treaties and their focus on protecting fish, a treaty designed to urge countries to provide the same level of access to public spaces for the disabled as the United States, and the same protections under the law, seemed guaranteed ratification as the clerk began to call the roll.

Former Sen. Bob Dole (R-KS) sat on the Senate floor in the wheelchair that marked his recent hospitalization as votes rolled in. One by one, the former majority leader who once served as his party’s standard-bearer watched as friends and colleagues who had personally pledged their support suddenly shifted, throwing their votes into the “nay” column. Minutes later, the tally told the tale: the Disabilities Treaty had failed, coming just five votes shy of ratification.

The failure of the CRPD was a “bitter moment” in the words of one Senate staffer. Several of the Republicans who voted against had told the aging Dole that their backing of the treaty was firm before casting their “no” votes before Dole’s very eyes. The fact that the Disabilities Treaty is based solely on the American Disabilities Act (ADA) and would require no change in law didn’t prevent their opposition. The argument that many Republicans gave at the time was that voting on another treaty in a lame duck session was a bridge too far.

But Senate Foreign Relations Committee chair Sen. Robert Menendez (D-NJ) has refused to let the Disabilities Treaty languish after that defeat, working with the administration last fall to raise the treaty’s profile and give senators the time they needed to review the document. Two hearings were held this session of congress to vet the CRPD once again, including one featuring testimony from two of Menendez’s Republican colleagues. “I am still convinced that we give up nothing, but get everything in return,” Secretary of State John Kerry said at the second hearing. “Our ratification does not require a single change in American law and isn’t going to add a penny to our budget.”

Kerry’s appearance before the committee he’d once chaired, speaking on the treaty he had tried to shepherd through the last congress, was just a part of a full-court press from the administration on the treaty. Vice President Joe Bidenmet with leaders of national disabilities and veteran’s advocacy groups, along with top Obama adviser Valerie Jarrett. U.S. Ambassador to the U.N. Samantha Power lobbied Congress and spoke on the CRPD’s benefits at a POLITICO event. And the White House and Menendez made sure to emphasize the bipartisan support for the treaty, particularly that of Sen. John McCain (R-AZ) who has been a vocal proponent.

treaties fixed

CREDIT: ANDREW BREINER

Things seemed to be going well until just before the Christmas holidays at the Capitol building. It was then that SFRC ranking member Sen. Bob Corker (R-TN) decided to voice his opposition to the treaty, despite previously showing a wary openness towards moving it forward. Specifically, Corker announced that in his view no combination of reservations, understandings, and/or declarations (RUDS) would bring him around anytime soon. RUDS are additional modifying language added onto treaties’ authorizations in the Senate to make them more palatable to the United States. Much like the controversial “signing statements” heavily utilized under the Bush administration, RUDS make crystal clear just what the U.S. believes a treaty says, and which parts it thinks do not apply to it.

“I remain uncertain that even the strongest RUDS would stand the test of time, and I believe any uncertainty on this issue is not acceptable,” the Tennessee senator said in a statement. “Ultimately, I’m unable to vote for a treaty that could undermine our Constitution and the legitimacy of our democratic process as the appropriate means for making decisions about the treatment of our citizens.”

Advocates were extremely disappointed in Corker for his reversal, particularly that it was dropped at a time when few would be paying attention to the treaty process. “The number one concern about this has been sovereignty, so we we want to make sure that the United States is predominant decision maker,” VetsFirst director of Veterans Affairs Chris Neiweem told ThinkProgress in January, adding that it was “frustrating” that Corker acknowledged neither the protections of American sovereignty already contained in the treaty nor that the military and veterans — charged with defending that sovereignty — are backing the CRPD. “So the sovereignty defending organizations are in full support but aren’t mentioned in this statement that comes out right before the holidays,” Neiweem said.

Menendez made his own frustration at his Republican counterparts apparent in the statement released following the fishing treaties’ passage. “Approving these treaties demonstrates that a bipartisan commitment to protecting our oceans and our fishing industry exists in the U.S. Senate,” Menendez said. “It is not only possible, but necessary to put aside extremist politics, engage with the international community, and fulfill our Constitutional duty concerning treaties,” he continued, a subtle dig at the continued roadblock the Disabilities Treaty faces.

Former Congressman Tony Coelho (D-CA), the sponsor of the original ADA, seemed stunned that the Senate could have moved on the fish conventions ahead of the Disabilities Treaty. “I think it’s real interesting as someone who has a disability … that [Senate conservatives] could pass multilateral agreements to protect fish internationally, but are unwilling to pass a multilateral agreement to protect one billion people with disabilities worldwide,” Coelho, who himself has epilepsy, told ThinkProgress. “I don’t know how people can make that judgment and live with it.” Coelho pointed to the bipartisan nature of both the original ADA and the ADA Amendments Act, lamenting that ultraconservatives in the Republican Party seem unwilling to back the treaty even with substantial reservations attached to it. Adoption of the fisheries conventions is a stark realization that the opposition to the Disabilities Treaty is more than what’s on the face of it, Coelho said, that it’s more of a political move from the Republicans in question as opposed to a reality with regards to international treaties.

It hasn’t been as though the Senate Democrats and administration have been unwilling to work with the Republicans currently blocking passage. Menendez’s office had been working with Corker’s office and the State Department on a RUDS package prior to Corker’s shunning, a Senate Foreign Relations Committee staffer told ThinkProgress. There’s tons of room for people to work, staffers say, but ultraconservative Republicans like Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) remain unwilling to move.

David Kaye, an international law professor at the University of California – Irvine, spoke to ThinkProgress earlier this year on the stalling of the CRPD in the Senate. Kaye pointed to a piece from Cruz in the Harvard Law Review on the futility of treaties as an example on how far the Senate has slid from its past willingness to pass treaties. The first President Bush sent the International Covenant on Civil and Political Rights to the Senate, Kaye noted, and got it passed through the Senate Foreign Relations Committee — with substantial reservations — at a time noted archconservative Sen. Jesse Helms chaired the committee. “These RUDS satisfied Jesse Helms, they don’t satisfy Ted Cruz?” Kaye asked ThinkProgress incredulously.

The unwillingness of the Senate to pass multilateral agreements now is already having negative impacts on negotiations on future treaties. “If you talk to people at State who regularly negotiate treaties and who’ve done it for a long time, they’ll say maybe ten, fifteen years ago, if we were in the middle of a treaty negotiation with our partners or potential partners, we might say we need something in this if we’re going to get the Senate to ratify,” Kaye said. “They can’t say that anymore.” International partners now believe that the Senate just won’t ratify the treaty no matter what, so why accommodate the United States?

They may have a point, as the list of treaties that the United States has agreed to but not passed through Congress continues to grow: the Convention on the Rights of the Child; the Convention on the Elimination of Discrimination Against Women; the Comprehensive Test Ban Treaty on testing nuclear weapons; the Law of the Sea, which has not been signed and received its own full court press in the first term of the Obama administration; and the U.N. Arms Trade Treaty — which has yet to even be sent to the Senate for consideration.

There will be no third hearing on the Convention on the Rights of Persons with Disabilities in the current congress. The next time that the chance will arise to swing Republican votes will come in mid-June with the release of the Supreme Court’s decision in a little known case that has become the main conservative argument against moving forward with the CRPD now. In Bond v. United States a chemical weapons treaty is being used to prosecute a case against an American citizen, who is accused of attempting to poison a rival for her husband’s affections. Corker specifically cited Bond in his statement last December as a reason to hold off on supporting the treaty, a point of linkage that advocates and the administration alike dismiss. A verdict that places limits on the federal government’s ability to broadly interpret treaties in cases like Bond, however, could potentially swing Corker and other skeptics back into the supporting camp.

The chances of a potential reversal in the Senate, one that will find the votes needed to bring the treaty over the finish line, remain slim — but not utterly impossible. After all, one senate staffer ThinkProgress spoke to in January was unable to think of any treaty that would pass through the current Senate climate — an observation that the passage of the fishing conventions has proved wrong. “What we need is to have some of the enlightened Republicans — and there are many — who have been unwilling to support the treaty to come up with RUDS that will bring around the necessary votes to adopt it,” Coelho said. Advocates are working on it, he continued, and they remain hopeful that process can get process started in the next few weeks.

But this is an election year, one in which the Republicans are poised to retake the Senate, and the odds of action dwindle as the full force of campaign season come upon Washington. And the Senate won’t move on the CRPD when the votes aren’t there to ensure that there won’t be a repeat of the heartbreak on the floor in December 2012. Despite the insistence last year that as many as nine Republicans remain on the radar for possible conversion, without Corker’s support to provide momentum out of committee the goal of getting the 67 votes needed seems just out of reach. So for now it appears that the fish of the world can count on the support of the U.S. Senate. The disabled population around the globe? Not so much.

Source: http://thinkprogress.org/world/2014/04/11/3424367/senate-fish-crpd/

The Senate Can Pass A Treaty To Protect Fish But Not One To Protect Disability Rights

The U.S. Senate last week without fanfare performed one of their primary functions, one that they have managed to avoid for years. By a voice vote, without a word of opposition, the upper house of Congress ratified not one, not two, but four international treaties. In doing so, they broke a logjam that has been in place since the previous Congress and made the world a little safer for the fish of the Pacific — but continued to ignore a crucial treaty on their agenda dealing with the rights of the disabled.

The Constitution gives the president the power to make treaties, but only “by and with Advice and Consent of the Senate … provided two thirds of the Senators present concur.” That function is one of the levers of power that separates the Senate from the lower chamber of Congress and is closely guarded. In recent years, however, exercising it has proved even more difficult than usual. The last treaty to make it through the Senate was in 2010, when the contentious New START, which placed limits on the number of nuclear weapons the United States and Russia can possess, passed in a lame-duck session. Even formerly non-controversial tax treaties — international legal documents intended to prevent double taxation on U.S. citizens living abroad — have been unable to break through the Senate chamber since then.

That all changed last week. The four international treaties that broke the nearly four-year long drought all deal with supporting the $70 billion commercial fishing industry and protecting their interests off the U.S.’ shores. The Port State Measures Agreement commits member-states to “prevent, deter, and eliminate illegal, unreported, and unregulated fishing;” the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean, and its counterpart for the South Pacific Ocean, aims to “ensure the long-term conservation and sustainable use” of fisheries; the fourth is an amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. All sailed through on a basic voice vote.

Those treaties were the first to be ratified since 2010, but they weren’t the first to reach the Senate floor. In winter 2012, in the lame duck session that followed the elections, the full Senate voted on the Convention on the Rights of Persons with Disabilities (CRPD). While not expected to be as easy as the passage of the recent treaties and their focus on protecting fish, a treaty designed to urge countries to provide the same level of access to public spaces for the disabled as the United States, and the same protections under the law, seemed guaranteed ratification as the clerk began to call the roll.

Former Sen. Bob Dole (R-KS) sat on the Senate floor in the wheelchair that marked his recent hospitalization as votes rolled in. One by one, the former majority leader who once served as his party’s standard-bearer watched as friends and colleagues who had personally pledged their support suddenly shifted, throwing their votes into the “nay” column. Minutes later, the tally told the tale: the Disabilities Treaty had failed, coming just five votes shy of ratification.

The failure of the CRPD was a “bitter moment” in the words of one Senate staffer. Several of the Republicans who voted against had told the aging Dole that their backing of the treaty was firm before casting their “no” votes before Dole’s very eyes. The fact that the Disabilities Treaty is based solely on the American Disabilities Act (ADA) and would require no change in law didn’t prevent their opposition. The argument that many Republicans gave at the time was that voting on another treaty in a lame duck session was a bridge too far.

But Senate Foreign Relations Committee chair Sen. Robert Menendez (D-NJ) has refused to let the Disabilities Treaty languish after that defeat, working with the administration last fall to raise the treaty’s profile and give senators the time they needed to review the document. Two hearings were held this session of congress to vet the CRPD once again, including one featuring testimony from two of Menendez’s Republican colleagues. “I am still convinced that we give up nothing, but get everything in return,” Secretary of State John Kerry said at the second hearing. “Our ratification does not require a single change in American law and isn’t going to add a penny to our budget.”

Kerry’s appearance before the committee he’d once chaired, speaking on the treaty he had tried to shepherd through the last congress, was just a part of a full-court press from the administration on the treaty. Vice President Joe Bidenmet with leaders of national disabilities and veteran’s advocacy groups, along with top Obama adviser Valerie Jarrett. U.S. Ambassador to the U.N. Samantha Power lobbied Congress and spoke on the CRPD’s benefits at a POLITICO event. And the White House and Menendez made sure to emphasize the bipartisan support for the treaty, particularly that of Sen. John McCain (R-AZ) who has been a vocal proponent.

treaties fixed

CREDIT: ANDREW BREINER

Things seemed to be going well until just before the Christmas holidays at the Capitol building. It was then that SFRC ranking member Sen. Bob Corker (R-TN) decided to voice his opposition to the treaty, despite previously showing a wary openness towards moving it forward. Specifically, Corker announced that in his view no combination of reservations, understandings, and/or declarations (RUDS) would bring him around anytime soon. RUDS are additional modifying language added onto treaties’ authorizations in the Senate to make them more palatable to the United States. Much like the controversial “signing statements” heavily utilized under the Bush administration, RUDS make crystal clear just what the U.S. believes a treaty says, and which parts it thinks do not apply to it.

“I remain uncertain that even the strongest RUDS would stand the test of time, and I believe any uncertainty on this issue is not acceptable,” the Tennessee senator said in a statement. “Ultimately, I’m unable to vote for a treaty that could undermine our Constitution and the legitimacy of our democratic process as the appropriate means for making decisions about the treatment of our citizens.”

Advocates were extremely disappointed in Corker for his reversal, particularly that it was dropped at a time when few would be paying attention to the treaty process. “The number one concern about this has been sovereignty, so we we want to make sure that the United States is predominant decision maker,” VetsFirst director of Veterans Affairs Chris Neiweem told ThinkProgress in January, adding that it was “frustrating” that Corker acknowledged neither the protections of American sovereignty already contained in the treaty nor that the military and veterans — charged with defending that sovereignty — are backing the CRPD. “So the sovereignty defending organizations are in full support but aren’t mentioned in this statement that comes out right before the holidays,” Neiweem said.

Menendez made his own frustration at his Republican counterparts apparent in the statement released following the fishing treaties’ passage. “Approving these treaties demonstrates that a bipartisan commitment to protecting our oceans and our fishing industry exists in the U.S. Senate,” Menendez said. “It is not only possible, but necessary to put aside extremist politics, engage with the international community, and fulfill our Constitutional duty concerning treaties,” he continued, a subtle dig at the continued roadblock the Disabilities Treaty faces.

Former Congressman Tony Coelho (D-CA), the sponsor of the original ADA, seemed stunned that the Senate could have moved on the fish conventions ahead of the Disabilities Treaty. “I think it’s real interesting as someone who has a disability … that [Senate conservatives] could pass multilateral agreements to protect fish internationally, but are unwilling to pass a multilateral agreement to protect one billion people with disabilities worldwide,” Coelho, who himself has epilepsy, told ThinkProgress. “I don’t know how people can make that judgment and live with it.” Coelho pointed to the bipartisan nature of both the original ADA and the ADA Amendments Act, lamenting that ultraconservatives in the Republican Party seem unwilling to back the treaty even with substantial reservations attached to it. Adoption of the fisheries conventions is a stark realization that the opposition to the Disabilities Treaty is more than what’s on the face of it, Coelho said, that it’s more of a political move from the Republicans in question as opposed to a reality with regards to international treaties.

It hasn’t been as though the Senate Democrats and administration have been unwilling to work with the Republicans currently blocking passage. Menendez’s office had been working with Corker’s office and the State Department on a RUDS package prior to Corker’s shunning, a Senate Foreign Relations Committee staffer told ThinkProgress. There’s tons of room for people to work, staffers say, but ultraconservative Republicans like Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) remain unwilling to move.

David Kaye, an international law professor at the University of California – Irvine, spoke to ThinkProgress earlier this year on the stalling of the CRPD in the Senate. Kaye pointed to a piece from Cruz in the Harvard Law Review on the futility of treaties as an example on how far the Senate has slid from its past willingness to pass treaties. The first President Bush sent the International Covenant on Civil and Political Rights to the Senate, Kaye noted, and got it passed through the Senate Foreign Relations Committee — with substantial reservations — at a time noted archconservative Sen. Jesse Helms chaired the committee. “These RUDS satisfied Jesse Helms, they don’t satisfy Ted Cruz?” Kaye asked ThinkProgress incredulously.

The unwillingness of the Senate to pass multilateral agreements now is already having negative impacts on negotiations on future treaties. “If you talk to people at State who regularly negotiate treaties and who’ve done it for a long time, they’ll say maybe ten, fifteen years ago, if we were in the middle of a treaty negotiation with our partners or potential partners, we might say we need something in this if we’re going to get the Senate to ratify,” Kaye said. “They can’t say that anymore.” International partners now believe that the Senate just won’t ratify the treaty no matter what, so why accommodate the United States?

They may have a point, as the list of treaties that the United States has agreed to but not passed through Congress continues to grow: the Convention on the Rights of the Child; the Convention on the Elimination of Discrimination Against Women; the Comprehensive Test Ban Treaty on testing nuclear weapons; the Law of the Sea, which has not been signed and received its own full court press in the first term of the Obama administration; and the U.N. Arms Trade Treaty — which has yet to even be sent to the Senate for consideration.

There will be no third hearing on the Convention on the Rights of Persons with Disabilities in the current congress. The next time that the chance will arise to swing Republican votes will come in mid-June with the release of the Supreme Court’s decision in a little known case that has become the main conservative argument against moving forward with the CRPD now. In Bond v. United States a chemical weapons treaty is being used to prosecute a case against an American citizen, who is accused of attempting to poison a rival for her husband’s affections. Corker specifically cited Bond in his statement last December as a reason to hold off on supporting the treaty, a point of linkage that advocates and the administration alike dismiss. A verdict that places limits on the federal government’s ability to broadly interpret treaties in cases like Bond, however, could potentially swing Corker and other skeptics back into the supporting camp.

The chances of a potential reversal in the Senate, one that will find the votes needed to bring the treaty over the finish line, remain slim — but not utterly impossible. After all, one senate staffer ThinkProgress spoke to in January was unable to think of any treaty that would pass through the current Senate climate — an observation that the passage of the fishing conventions has proved wrong. “What we need is to have some of the enlightened Republicans — and there are many — who have been unwilling to support the treaty to come up with RUDS that will bring around the necessary votes to adopt it,” Coelho said. Advocates are working on it, he continued, and they remain hopeful that process can get process started in the next few weeks.

But this is an election year, one in which the Republicans are poised to retake the Senate, and the odds of action dwindle as the full force of campaign season come upon Washington. And the Senate won’t move on the CRPD when the votes aren’t there to ensure that there won’t be a repeat of the heartbreak on the floor in December 2012. Despite the insistence last year that as many as nine Republicans remain on the radar for possible conversion, without Corker’s support to provide momentum out of committee the goal of getting the 67 votes needed seems just out of reach. So for now it appears that the fish of the world can count on the support of the U.S. Senate. The disabled population around the globe? Not so much.

Source: http://thinkprogress.org/world/2014/04/11/3424367/senate-fish-crpd/

Zambia: Identifying Disability As Civil Rights Movement

DIANE Driedger, a Jamaican-born historian for her thesis leading to attainment of her masters’ degree in history studied the genesis and evolution of the disability rights movements and its peculiarities.

She concluded that it was the last major human civil rights movements, considering the rise of the blacks and other minorities’ emancipation movements, the fight against colonialism, the fight against apartheid, the gender equality fight.

This move makes the disability movement as the last human rights movement. It is not a surprise that a similar pattern evolved in Zambia starting with the fight against colonialism, then the fight for multiparty democracy, then gender equality now it’s the turn for the disability movement to take centre-stage.

Like any other human activity, opportunists are busy positioning themselves to rip off some benefits.

In support of the movement, the United Nations has from its inception in 1945 always had disability on its agenda, although earlier programmes were driven by mass causative factors of disability such as care for those maimed as a result of combat or workplace related disabilities.

Such were done through UN Agencies like the International Labour Organisation (ILO) through labour and employment related recommendations and conventions.

The other UN agency that had indirect work with disability through prevention and rehabilitation is the World Health Organisation (WHO).

Through primary healthcare, immunisations continue to be administered to children in preventing disabling conditions such as smallpox, infantile paralytic polio-myelitis and other programmes for eradication of tropical diseases like blindness to mention a few.

In brief, specific milestones by the UN system on disability are;

– 1981 declared as international year of persons with disabilities (IYDP)

– 1982 to 1992 international decade of persons with disabilities

– 1982 publication “world programme of action concerning persons with disabilities”

– 1996 UN standard rules of equalization of opportunities

The documents were not legally bidding, as such state parties were not legally obliged to it seriously.

By 2006, the United Nations convention on the rights of persons with disabilities finally declared the document legal which state parties are required to ratify and domesticate.

With all this international good will and support to persons with disabilities why do our people with disabilities still remain the poorest of the poor, have low education levels and more likely to be unemployed.

Thanks to the Patriotic Front (PF) Government, the disability landscape is set for a permanent change, this is because the UNCRPD has been domesticated through the enactment of the persons with disabilities Act number 6 of 2012 and also the provisions of the PF manifesto on disability.

This is an opportunity for persons with disabilities to get organised and establish credible organisations based on good governance principles of transparency, accountability and sustainability to ensure representation of the interests of all categories of disabilities at all levels of governance.

This could start with wards and area development committees building up to constituency or district development coordinating committees way up to provincial development coordinating committees.

The disability Act of 2012, aims to promote mainstreaming of disability in all development programmes being undertaken by all Government ministries and spending agencies. Through constructive dialogue, leaders of the disability movement should demand for the provision of quality aesthetic assistive devices, promote the fabrication of such by Zambians with disabilities as a way of employment creation.

Demand for accessible environment starting with markets in residential areas and other public places.

Demand for priority in consideration for gainful formal employment by way of job reservations and prior skills and vocation training.

Demand that those running modern shopping malls take into consideration the need of persons with disabilities through signage for those with low vision and the deaf, tactile surfaces for the visually impaired and non slippery tiles for the physically disabled or rather provision of motorized scooters for shopping purposes.

Demand for barrier free accessible public transport of the right size and adequate space in between seats for easy mobility.

Demand for respite care for children with severe disabilities and persons with multiple disabilities to relief the family from the burden of care.

This starts with understanding article 33 of the UNCRPD in this case a strengthened and well-supported Zambia Agency for Persons with Disabilities will ensure that services to persons with disabilities are delivered in accordance to the UN convention on the rights of persons with disabilities, the ILO Vocational Rehabilitation and Employment (Disabled Persons) convention ( No. 159) and Recommendation ( No. 168)

More specific articles will follow to specifically inform the nation on the work being done to improve the lives of persons with disabilities in line with the principles of leadership, accountability, transparency and sustainability within the available resources for human and material.

(The author is Director General, Zambia Agency for Persons with Disabilities, a post-polio person and disability independent living movement campaigner.

For comments; email;silwimbaf@yahoo.co.uk – 0977412840)

Source: http://allafrica.com/stories/201404070046.html?viewall=1

Living with a disability and the occupation

Members of MAP outside the warwick arts centreSince 2009 MAP have worked through DFID, in partnership with BirZeit University, Centre for Developmental Studies, on a scheme to improve the quality of life for Palestinians living with a disability.

“When it takes you two whole days to cross a border, whereas it only takes a matter of hours to arrive in London; that is one meaning of freedom. When you are searched three times between the Palestinian and Israeli border, and don’t get searched once when you’re inside London, that is also freedom. This system [here] is freedom,” says Suleiman, reflecting on his recent journey from Palestine to England.

“Imagine a bird in a cage that has been neglected and left in a weak condition,” he continues. “But when the cage is open, the bird can fly in and out and will get stronger and healthier. The bird will grow and develop, and will bring in new chicks that it would teach how to fly and hunt. Palestine is like this. If we opened the door to it, it would develop.”

Suleiman has come to the UK with Medical Aid for Palestinians (MAP) as part of a delegation to speak about his experience of living under occupation; day-to-day life in the occupied territories is made even harder by the fact that he has a disability. With him are Latifah and Amal; though Latifa and Suleiman had not met Amal before – they are from Gaza and she is from the West Bank – they interact and share their stories passionately and openly.

According to MAP, over 87 per cent of Palestinians with a disability are unemployed and one third of them will never be able to get married. Over one third of Palestinians with a disability have never been to school whilst many do not use public transport as it is not adapted sufficiently. It is these practical barriers which make living with a disability extremely hard under occupation.

For Latifa, the siege on the Strip means that the electricity is cut off often and it is too dangerous for her to continue down the stairs in the darkness, affecting her mobility. Lifts, in the buildings that have them, go in and out of use. She recalls the 2008-2009 war in Gaza which meant people with disabilities were confined to their houses whilst the fighting raged outside. Many lost limbs, their eyesight and hearing from the attacks.

Finding employment is another issue, despite legislation approved in 1999 which promised to grant disabled citizens the right to equal opportunities in society; few achievements have been made in terms of its application.

“We have law 99 that stipulates that the Ministry of Social Affairs is responsible for a person with a disability,” protests Latifa, but “basically, the ministry doesn’t work in accordance with the needs of people with disability or with the international conventions of creating equal opportunities for everyone. The problem is that we are under siege and if people without disabilities are suffering a lot, imagine the level of suffering on the part of people with disabilities.”

Treatment abroad is out of the question because it is too expensive, believes Suleiman, whilst schools often do not treat people with disabilities equally, or have the facilities to teach people with visual or hearing impairments, for example. Many have dropped out as a result and never learn to read and write.

“As for how a person with a disability views himself in light of all of this,” he says, “he might adapt to the circumstances around him, but that doesn’t happen very often. After 20 years of living in his community, he might come to the realisation that he’s different from the rest; he feels weird and strange. One American asked a Palestinian what his wishes in life were. The Palestinian replied: my wish is to get a job and buy a house and a car. The American said, I didn’t ask you about your rights; I asked you what you wish for in life.”

Not only do Palestinians have to suffer from the functional difficulties of living under occupation, but they also have to negotiate the social stigma which comes from within their own communities. Amal describes being a woman in Palestinian society as a form of disability: “Now imagine a woman with a disability, imagine how much of a burden that would be to most families and the society around her who can choose whether or not to accept her.”

Her grandmother wanted Amal to be named after her but, after finding out that her granddaughter had a disability, she refused this. “She didn’t want her name to be associated with the disability or be at the receiving end of the misuse,” Amal says. Meanwhile, her father was in denial when she was growing up, but now it is he who is pushing her to integrate into society.

“I don’t know if he behaves that way because of the guilt he feels or if he wants to compensate for my condition,” she reflects. “He bought me unique toys that were different from the toys other children had, but I wasn’t aware of that difference. It was only later that I understood the reason was to break down barriers between me and other children, so I wouldn’t face them not wanting to sit, play or interact with me. I don’t know, but subconsciously or consciously this helped the way in which I was able to deal with people and the community in the future.”

Since 2009, MAP have worked through the Department for International Development (DFID), in partnership with BirZeit University’s Centre for Developmental Studies, on a scheme to improve the quality of life for Palestinians living with a disability, to become advocates and ask for their rights and promote positive attitudes towards them in the community. Amal, Suleiman and Latifa are currently participating in this project; for Amal doing so has changed her life.

The first workshop she attended was led by someone with a disability. She was shocked, and recognised that she had grown up believing people with disabilities couldn’t do anything, and that this sentiment was reinforced in her. She refused to go back the next day, until eventually her dad persuaded her to return.

“I thought that I had to adapt myself to the environment because I was the problem, not the other way around,” she says. “That was the main thing that I was thinking about when I started the programme. After that I became more aware. I didn’t know what ‘rights’ meant. I considered the word to hold huge significance, so I wrote it on a piece of paper and stuck it on my closet. What does freedom mean? What do rights mean? I couldn’t see beyond the boundaries I had drawn for myself. I couldn’t get out of the confines of my own life. I managed to do so based on my interaction with the community.

“A building can be changed within a year,” she continues, “but changing how a person thinks takes time and work in order for them to become convinced. The whole idea is to see people with disabilities as capable of doing things that are commonly perceived as impossible for them.”

Soruce: https://www.middleeastmonitor.com/articles/middle-east/10662-living-with-a-disability-and-the-occupation

Amelia Smith