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Employment Equity Act, 1998 (Act No. 55 of 1998)

Code of Good Practice

Employment of Persons with Disabilities

5. Definitions and interpretation


5.1 Discrimination on the basis of disability


"Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.3


5.2 Definition of persons with disabilities for participation in broader society


The UN Convention on the Rights of Persons with Disabilities of 2007 adopts a broad definition for general international guidance to ensure the full, equal and effective participation of persons with disabilities in society.4



5.3 Definition of persons with disabilities involving work and employment


The Act includes a definition for persons with disabilities to ensure their full, equal and effective participation on matters pertaining to work and employment.5


The scope of protection for persons with disabilities in employment focuses on the effect of a disability on the person in relation to the working environment, and not on the diagnosis or the impairment.


Persons are considered as persons with disabilities if they:

(a) have a physical or mental impairment;
(b) which is long term or recurring; and
(c) which substantially limits their prospects of entry into, or advancement in employment.


5.3.1 Impairment


An impairment may either be physical or mental or a combination of both.

(a) 'Physical impairment' means a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired, or visually impaired.
(b) 'Mental impairment' means a clinically recognized condition or illness that affects a person's thought processes, judgment or emotions.


5.3.2 Long-term or recurring


(a) 'Long-term' means the impairment has lasted or is likely to persist for at least twelve months.
(b) 'Recurring impairment' is one that is likely to happen again and to be substantially limiting (see below). It includes a constant chronic condition, even if its effects on a person fluctuate.
(c) 'Progressive conditions' are those that are likely to develop or change or recur. Persons living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person are not disabilities.


5.3.3 Substantially limiting


(a) Impairment is substantially limiting, if in its nature, duration or effects it substantially limits the person's ability to perform the essential functions of the job for which they are being considered.
(b) Some impairments are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability unless even with spectacles or contact lenses the person's vision is substantially impaired.
(c) For reasons of public policy, certain conditions or impairments may not be considered disabilities. These include but are not limited to—
(i) sexual behaviour disorders that are against public policy;
(ii) self-imposed body adornments such as tattoos and body piercing;
(iii) compulsive gambling, tendency to steal or light fires;
(iv) disorders that affect a person's mental or physical state if they are caused by current use of illegal drugs or alcohol, unless the affected person is participating in a recognized programme of treatment;
(v) normal deviations in height, weight and strength; and conventional physical and mental characteristics and common personality traits.
(d) An assessment may be done by a suitably qualified person if there is uncertainty as to whether impairment [may be] is [sic] substantially limiting.



3 Article 2 of the UN Convention on people with Disabilities, 2007.


4 "Persons with disabilities" include 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.


5 "people with disabilities" means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment.