n South African Journal on Human Rights - Deconstructing the definition of 'disability' under the employment equity act : legal deconstruction

Volume 23, Issue 1
  • ISSN : 0258-7203



This is the second instalment of a two-part article on the definitional construction of disability under s 6(1) of the Employment Equity Act 55 of 1998. Part I explored the social construction of disability. It argued that a social construction provides meaningful paradigms in which to understand the epistemology of, as well as formulate normative responses to, disability. Because disability is more than just individual pathology, extrinsic disabling factors are integral to a meaningful interpretation of disability. The main thesis in Part I was that the medical model is a limited paradigm for transacting disability in an equality context, and that the social model offers a more nuanced and holistic approach. Part II builds on Part I and appropriates the social construction of disability to the definitional construction of disability under s 6(1). The essential premises of Part II are that both the medical and social models are essential tools for not only understanding, but more significantly, shaping the legal construction of disability. Where the legislative objective is to prevent discrimination, especially, a construction of disability that fails to transcend the medical model risks not only frustrating, but also distorting, in a fundamental manner, the rationale for anti-discrimination law as a tool for combating systematic disadvantage arising from stigma, prejudice, stereotypes or indifferent attitudes. To avoid anomalies in discrimination law or creating a hierarchy of equalities among protected groups, disability should be interpreted in a manner that, qualitatively, enjoys parity with other protected categories such as race, sex and gender.

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