On November 12, 2024, the Minister of Youth, Social Development and Seniors, Tinée Furbert gave a speech. At that time, the minister promised that the Government would pass a Disabilities Act that will “empower individuals with disabilities, providing them with access to services, facilities and employment that they deserve”. As a practitioner of anti-discrimination law, I am heartened by the minister’s comments.

It is clear that, as a country, we have a long way to go when it comes to accommodating our residents with disabilities. Bermuda, however, already has legislation that can achieve many of the objectives set out by the minister, which is the Human Rights Act 1981.

While our Human Rights Act remains a work-in-progress, having been amended 22 times, it remains as Bermuda’s primary legislative tool for safeguarding individuals against unlawful discrimination. The Act prohibits numerous types of discrimination, but it expressly holds that discrimination on the basis of physical and mental disability is unlawful concerning:

• The sale or rental of a property

• The provision of goods facilities and services

• Employment

• Membership in organisations

The Human Rights Act also affords a generous enforcement regime where complainants are given options when it comes to laying a claim that their rights have been breached.

The first enforcement mechanism is the statutory right to lay a complaint directly with the Human Rights Commission. Provided that a complaint is laid within six months of the incident, the HRC will have complete jurisdiction to investigate the complaint, which may be ultimately referred to a tribunal. If a tribunal ultimately hears a complaint, the HRC will offer to provide a lawyer to represent that complainant’s interests at the hearing, free of charge. If the tribunal finds that the complainant’s human rights were violated, it may then exercise its statutory powers to order that the discrimination stop and/or award the complaint financial compensation.

The second mechanism available for the enforcement of one’s human rights is that of a civil law suit, which may be filed with the Supreme Court of Bermuda. The cause of action for such a claim is expressly provided for by the Human Rights Act, but the plaintiff(s) would be obliged to hire their own lawyers. The deadline for filing a lawsuit pursuant to the Human Rights Act is six years from the date on which the alleged discrimination ended, as opposed to the six-month limitation period that applies to a complaint laid through the HRC.

While legislative protection for those with disabilities is essential, the passage of further, competing legislation may only result in a further muddling of the jurisdiction of the Human Rights Act, which already overlaps with the purview of the Employment Act 2000. Simply put, if a new Disabilities Act is to passed, the Government would have to create the means of enforcing that legislation. This means staff will need to be hired to establish and operate a bureaucracy to oversee the administration of the new Act. This is unattractive, given that we already have an independent agency and tribunal system that safeguards the rights of the disabled — under the Human Rights Act.

Having said this, there remains room for improvement when it comes to safeguarding the rights of the disabled, as guaranteed by the Human Rights Act. One practical way to affect necessary change would be for the minister to table an amendment to the Human Rights Act that would include a statutory “duty to accommodate short of undue hardship”, applicable to the provision of goods, facilities and services. That amendment could require stores, offices and businesses to install ramps and larger bathroom facilities to accommodate those with mobility issues, where their existing layout is inadequate. By extension, a further amendment could afford the power to a tribunal, or court, to order a third party, such as the Department of Planning, or the landlord of a residential or commercial tenant, to allow reasonable structural changes to be made for the benefit of the disabled.

In closing, if anyone reading this thinks that their human rights may have been violated, all you need to do is call the Human Rights Commission. It is free. You do not need to hire a lawyer.

It takes courage to lay a complaint and see it through to its conclusion. Just know that the Human Rights Commission has staff who understand the law and are ready to assist you.

• Allan Doughty serves as senior counsel with the dispute resolution team at Kennedys