This chapter will analyse how the duration test limits the capacity of persons experiencing episodic impairments from being defined as disabled for legal protections and support. Attribute-based remedial interventions target a particular group. Sorting society is challenging, especially when it is being applied across large populations with complex and varied experiences and needs. This chapter will analyse how some definitions of disability require that a medical condition is experienced for a particular duration of time before that condition will be regarded as a disability. When length of impairment is used in this fashion, the duration of a medical condition becomes an arbitrary factor that determines an entitlement to protection and support. This chapter concludes that the decision to leave persons with episodic disabilities without adequate protections and support is not based upon a medical assessment, cost to employers or adherence to international norms. Instead, the arbitrary decision to deploy duration tests is based upon a failure to conceptualise how ability diversity manifests.

This chapter critically analyses the concerning treatment of certain psychosocial disabilities that are deemed ‘unacceptable‘ by law and policymakers. Beyond disability, not all lifestyle choices are real 'choices'. Healthism in society can result in inequalities and such health discrimination is often linked with other attributes. As a consequence, laws have regulated how these programmes can be implemented so that the programmes do not slip into disability discrimination. This chapter is not dealing with laws and policies which seek positive health outcomes, but instead with laws and policies which seek to reduce the visible presence of certain psychosocial disabilities in society. The process of marking certain impairments as ‘unacceptable‘, implementing policies to stigmitise and exclude such conditions, is unique to people with psychosocial disabilities. The singling out of particular psychosocial disabilities for stigmatising and permitting discrimination on that attribute are designed to reduce certain forms of ability diversity in the community and to reinforce an ability apartheid.

OSH laws can hinder persons with disabilities, but they also contain provisions that can be used to promote psychosocial diversity at work. The operation of OSH duties to protect workers’ psychological health requires increased attention following the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD introduces a new paradigm for analysing international and domestic OSH laws. This chapter argues that if workplace practices followed the psychological health component of OSH laws, then OSH laws change from being a barrier to equality to a means of supporting psychosocial diversity at work. While OSH laws have the potential to promote psychosocial diversity at work, although not appropriately enforced by the state, they also represent a significant roadblock to ability equality. OSH laws require businesses to intervene where manifestations of psychosocial diversity can create actual, probable or perceived risks to health and safety. The failure to appropriately discharge OSH duties for a worker with psychological needs results in that worker with a disability being disadvantaged by the operation of other OSH laws.

This chapter will introduce the CRPD Committee and analyse the extent to which the Committee has identified the presence of hierarchies at work. It will first introduce the CRPD Committee, then Sections II–IV will analyse its jurisprudence. Section II will analyse the Concluding Observations (COs) on States Parties to the CRPD to illustrate how the CRPD Committee accepts that there is a hierarchy of impairments in law and practice and that is having a tangible impact upon how the right to work is exercised by different impairment groups. While the CRPD Committee’s critique of the hierarchy of impairments at work is positive, there are substantial inconsistencies across COs. The CRPD Committee aims to have ability equality mainstreamed, and disability apartheid abolished; to advance this agenda, the CRPD Committee should ensure consistency across COs to empower those on the right side of the disability debate.

The CRPD recognises that the measures that are appropriate for one category and severity of impairment may not be appropriate for others. This leads to substantial challenges for crafting regulatory options that support the most vulnerable people in the disability community, without holding back those who are more able, as well as not adopting models which enable those who can become highly competitive in the open labour market to do so at the expense of those who cannot. These policy challenges are being experienced when considering the right to work and the sheltered work debate. In 1955, the ILO issued a recommendation that called for the adoption of sheltered work arrangements for workers “who cannot be made fit for ordinary competitive employment … for those disabled persons who, for physical, psychological or geographical reasons, cannot travel regularly to and from work.”[1] The regulation of ability diversity at work has substantially shifted over the last few decades and, as analysed in this chapter, there has been considerable pressure inside and outside the disability community to close sheltered workshops.

This chapter moves away from identifying regulatory gaps and proposing reforms, and instead analyses how existing laws could provide an imperfect remedy for those who are not protected by anti-discrimination laws. Unfair dismissal options protect all workers against certain forms of dismissal.[1] This remedy seeks to address unfair contractual treatment and not discriminatory treatment. A positive element of these provisions is that there is no need to prove disability, or come out with a disability if it is invisible. This is a huge benefit for those who have a range of abilities which may not qualify as a disability under anti-discrimination laws, or who may desire not to identify as having a disability to themselves, their families or their employers.

This chapter will analyse how international legal norms have approached the regulation of ability equality in one area of life: exercising the right to work. The regulation of labour rights has traditionally been the province of the International Labour Organization (ILO). The ILO has been the primary source of international labour law since its formation 100 years ago in the Treaty of Versailles. Section I of this chapter will analyse how the ILO has approached ability diversity at work and then Section II will show how the Convention on the Rights of Persons with Disabilities (CRPD), with its disability human rights paradigm and statement on the right to work and employment, has transformed how international law regulates the rights of persons with disabilities to work.

The problem of ableism against workers with psychosocial disabilities is not confined to a single jurisdiction and permeates across all jurisdictions analysed in this monograph. The stigma, exclusion and devaluing of worth is not caused by rogue workers or invisible social forces, but by lawmakers who turn bills into statutes and by courts who silently apply ableist norms and discriminate against workers because of their impairment type. This monograph highlights an unacceptable truth: to live with ability diversity is to live with adversity.

When workplaces are designed and managed for a worker with a 'normal' range of abilities, then workers with different abilities are disabled at work. Human rights and anti-discrimination laws create duties upon employers and others to adjust workplaces to accommodate workers with disabilities. This chapter argues that reasonable accommodation and adjustment laws privilege workers with physical and sensory impairments compared to workers who have psychosocial disabilities. Workers with invisible psychosocial disabilities are victimised if they disclose their disability and the law is comparatively less likely to recognise the request of a worker with a psychosocial disability as reasonable. The failure by law and work practices to address ableism at work perpetuates a hierarchy of impairments, which leaves workers with psychosocial disabilities unable to exercise their right to work on an equal basis as workers without disabilities, or with less stigmatised impairments.

The regulation of injured workers across the globe is plagued by ableism and sanism. When workers are injured at work, there is a pervasive approach of discriminating against workers who have been mentally injured at work. This discrimination manifests, inter alia, in the legal tests used to determine whether a worker injured at work should obtain protection and the extent of that protection. The roles of ableism and sanism in workers’ compensation and employer negligence laws is expressly provided for in statute, and supported by countless judgments in all jurisdictions analysed in this monograph.