A discriminatory verdict wrapped in “justified legal logic”
By Yeom Hyeong-guk
Published: April 17, 2012
Translated by Marilyn Hook
Editor’s
note: In the case of a
disabled woman seeking compensation after being denied admittance to a bath
house because she wasn’t accompanied by a chaperone, the court has ruled in
favor of the establishment’s proprietor. Attorney Yeom Hyeong-guk, member of the
Korean Public Interest Lawyers’ Group, Gong-Gam, raises questions about the
decision. This article was also posted on Gong-Gam’s blog.
Bath house owner: “If the visually impaired come alone, we
won’t let them in.”
On December 14, 2010,
a Ms. Kim, a visually impaired woman with Level 1 (total) blindness, went to
the ticket office of a public bath house with the help of a male “public
assistant” provided by local government. Ms. Kim had used this bath house
unaccompanied by a same-sex chaperone several times before. Each time, she had
gotten around, undressed, and bathed with the help of bath house staff.
However, this time,
the proprietor saw that Ms. Kim had come with no female chaperone, and said,
“How can a visually impaired person come in alone? Next time, if you don’t
bring someone to help you, we won’t let you in.” Because of this remark, the
public assistant began to curse and Kim and the assistant argued with the bath
house proprietor, and the proprietor eventually barred Ms. Kim from entering
the bath house.
After being denied
entrance because she had no assistant, the visually impaired Kim sued the owner
of the bath house for damages. On February 15th, the Daejeon District Court
ruled that the incident did not constitute discrimination against a disabled
person.
A decision that gives rise to ignorance regarding the
visually impaired
As it denied the
claim of the plaintiff Kim, whose humiliation and frustration at being denied
entrance to the bath house were so serious that she developed a sleep disorder,
the reason that the court gave for its decision was generally as follows:
①
In order for the Level 1 visually
impaired plaintiff to use the bath house, continuous help would need to be provided
for her entrance, undressing, use of the shower, hot bath, cold bath and sauna,
dressing, and exit. It is difficult to
find grounds to unilaterally burden the private defendant (the bath house
proprietor) with providing this kind of help.
②
If
we induce the defendant to admit and provide help to a visually impaired person
who came alone, this constitutes unilaterally shifting the cost or expenses for
protecting the disabled, which should be a public service, onto an individual,
and thus is unfair.
③
If
the plaintiff has an accident while using the bath house, the proprietor, the
defendant, would never be free of responsibility. Some provincial governments
operate a bath house for the use of disabled people. Furthermore, it appears that the plaintiff
has the ability to obtain a public assistant through the Welfare of Disabled
Persons Act.
Considering these
points, the admission of a visually impaired person who is alone into the bath
house would cause an excessive burden or substantially difficult situation for
the bath house’s proprietor.
In reality, however,
many visually impaired people with total blindness are not stopped from going
to bath houses alone. They ask about the location of their locker and the shower
or bath. In many cases, they end up getting help for a moment from the person
next to them. If they go a few times, they learn the locations of everything
and can bathe without help.
The judgment that
someone needs continuous help from others to use a bath house because she is
visually impaired comes from a lack of knowledge about the visually impaired.
The court also said
it was hard to find clear grounds to unilaterally burden the defendant, a
private citizen, with the task of providing help to visually impaired
customers. However, the Anti-Discrimination Against and Remedies for Persons
With Disabilities Act stipulates that the disabled must be allowed to participate
equally in the same activities as the non-disabled. To achieve this, refusing
to provide facilities for different types of disabilities is labeled
“discrimination” and is prohibited.
Does giving a little
help for a short time really cause an excessive burden and a substantially
difficult situation in the operation of a bath house?
Reasoning that is able-centric and excludes and isolates the
disabled
The
“Anti-Discrimination Against and Remedies for Persons With Disabilities Act”
clearly states that refusing a disabled person entrance to a facility is not
allowed. Above is part of one of the
pamphlets the National Human Rights Council has published about the act. ⓒ the National Human Rights Council
Text:
Anti-Discrimination Against and Remedies for Persons With Disabilities Act –
Chapter on Unlawful Discrimination
Facility Access and Use (Article 18)
A
disabled person, as well as that person’s guide dog or auxiliary aids, shall
not be prohibited or refused entry or use of any facility, and necessary
justifiable accommodation for the access to and movement within the facility
shall be provided.
The court’s citing of
points like, “If the plaintiff has an accident while using the bath house, the
proprietor, the defendant, would never be free of responsibility,” and,
“Provincial governments operate a bath house for the use of disabled people,”
as grounds is very dangerous reasoning.This reasoning clearly reflects the
violence of an able-centric society that limits, excludes, segregates and
denies the disabled.
It is in the same
vein as reasoning like “the danger that they will have an accident that
insurance will have to cover is great so they are shouldn’t be allowed to
obtain insurance,” “if disabled people in assisted living facilities are free
to go out, there is danger of an accident, so they must not be allowed to go
outside of the facility,” or “those with intellectual disabilities are
dangerous, so they cannot live in the community and we must forcibly commit
them to mental hospitals.”
If we really want to
prevent the risk of an accident in advance like this, no one should be allowed
to go to a bath house, no one should get life insurance, and everyone should be
sent to a facility or mental hospital. The prejudice that someone has a higher
risk of an accident because he is disabled is really an expression of the
collectivism of the non-disabled, who don’t want to put up with any inconvenience.
They only think of their own comfort, and never consider the unspeakable shame
and humiliation that others go through.
Also, what does it
mean that they say some provincial governments operate bath houses for the use
of the disabled? Are they saying to take express trains, as if they are going
travelling, just to bathe? Or is it that they do not want to mix with the
disabled, so it is a way of telling them to use bath houses for the disabled
and go to special schools for the disabled? No matter how nicely one tries to
interpret these words, it seems hard to avoid judging them as discriminatory
thinking that isolates and excludes the disabled.
In truth, when
providing separate, special facilities or education, one needs to be careful since
so-called “consideration” may become discrimination in some aspects.
Decisions
discrimatory toward the disabled but packaged in this kind of "justified
legal reasoning" prevent the disabled from being fully active and further
solidifies able-centric culture.
We live in this
society together - if we refuse to give a minimum of consideration...
The reason that
refusing to provide reasonable accommodation for the disabled is labeled
"discrimination" in the Anti-Discrimination Against and Remedies for
Persons With Disabilities Act is that if we don't require this kind of
provision of accommodation, the disabled cannot participate equally in the same
activities as the able-bodied. This is because in our reality, the provision of
accommodation to the disabled is not already offered as basic human kindness.
As we live, we try to
build community with others. Making a better place to live requires imposing
the duty of a minimum of consideration, even on individuals. If we refuse that
duty even in the absence of an excessive burden or substantially difficult
situation, this kind of community becomes difficult to maintain and cannot
avoid the path to dissolution.
By the reasoning of
the precedent set by this decision, the visually impaired can’t go to a
restaurant alone, ride the subway alone, or go to a bookstore alone. This is
because if they want to use such a facility, a minimum of accommodation must be
provided by the facility – and because “imposing such a responsibility on an
individual, though, is shifting the cost or burden of protecting the disabled
person onto the individual without his consent, and thus is unfair.”
Bathing in a public
bath house, eating in a restaurant, striding down the street─these
are absolutely not special rights. On the contrary, to the non-disabled, they
are natural activities that may not even be recognized as rights. For the
disabled, however, those activities are not something they can take for
granted; they have to fight for the “special rights.” This
is because disabled people are not seen as members of society who are equal to
non-disabled people.
In conclusion, the
first thing that we need to do in order to create a world without
discrimination is recognize the violence inside ourselves.
*Original article:
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