Discriminationon the basis of disability

Module 5

Understand how discrimination on the basis of disability manifests itself

Recognize different forms of discrimination against persons with disabilities

Understand the link between non-discrimination and equality

Understand who is responsible for combating discrimination and what measures they should take

Group activity – the power walk

Forms of discrimination

Non-discrimination in the Convention

Reasonable accommodation

Examples of discrimination on the basis of disability

Specific measures to promote equality

Who’s responsible?

Objective Module flow

Thinking about discrimination

The power walk

Forms of discrimination

multiplediscrimination

indirect discrimination ?

right based discrimination

? in fact discrimination

direct discrimination

systemic discrimination

?

Discrimination on the basis of disabilityAny 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 othersof all human rights and fundamental freedoms in the political, economic, social, cultural, civil

or any other field. It encompasses all forms of discrimination,

including denial of reasonable accommodation

Reasonable accommodation

Necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms

Reasonable accommodation

Elements

• Is of immediate realization

• Applies in individual cases

• Applies upon request of a person with disability

• Implies an objective reasonableness test

Reasonable accommodationObjective reasonableness test

Elements• Undue burden

• Interactive dialogue

• Objective justification• Relevant• Proportional• Possible• Financially feasible• Economically feasible

Reasonable accommodationUndue burden

• The request of accommodation must be addressed to the duty bearer

• The obligation should be established in law or regulation

• Law or regulations should identify the duty bearer to avoid establishing such burden on the right holder

Reasonable accommodationInteractive dialogue

• The duty-bearer and the right holder should engage in an interactive dialogue in order to identify the necessary accommodations

• If there is agreement among them, the accommodation is provided and the process ends

• If there is no agreement, the duty bearer must prove the objective justification to avoid responsibility on the basis of discrimination

Reasonable accommodationObjective justification

• The duty-bearer must prove that at least one of the objective criteria were not met to avoid responsibility for discrimination on the basis of disability

• Relevance• Proportional• Possible• Financially feasible• Economically feasible

Reasonable accommodationObjective justification

Relevance

• The accommodation must be relevant to its purpose

• The duty-bearer must prove that the accommodation requested was irrelevant for the effective realization of the right concerned

• Particular attention should be paid in inclusive education and employment accommodations

Reasonable accommodationObjective justification

Proportional

• The accommodation must be proportional to its purpose in terms of time, costs, duration, and impact in the realization of the right.

• The duty-bearer must prove that the accommodation requested was disproportional for the effective realization of the right concerned

• Proportionality should be construed on objective criteria and cannot be subject to discretional decisions

Reasonable accommodationObjective justification

Possible

• The accommodation must be possible: it must exist and it must be available

• The duty-bearer must prove that the accommodation requested does not exist as a proven method for the effective realization of the right concerned

• The duty-bearer can also prove that the accommodation exists but is not available (e.g. a software that cannot be imported under customs laws)

Reasonable accommodationObjective justification

Financially feasible

• The accommodation must be financially feasible

• The duty-bearer must prove that exhausted the financial support resources to provide for the accommodation requested

• This obligation includes public and private funding

Reasonable accommodationObjective justification

Economically feasible

• The accommodation must be economically feasible

• The duty-bearer must prove that the implementation of such accommodation jeopardizes the existence of the duty bearer or that it substantially jeopardizes the performance of its core functions

• The duty-bearer must consider its overall assets, and not only the resources of a unit or a department of its structure

Discrimination on the basis of disability

Civil lifeDenial of legal capacity

Forced institutionalizationForced sterilization

Political lifeDenial of the right to vote

Social and cultural lifeSegregated education

Forced medical treatmentExclusion from the community

Inaccessible environmentsNegative attitudes

Economic lifeDenial of reasonable

accommodationDenial of property rights

Specific measures

specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention [art. 5 (4)]

employment in the public sector (art. 27 (1))individualized support (art. 24 (2) (e))

affirmative action, incentives (art. 27 (1))measures to establish support framework (art. 12 (3))

etc.

Who is responsible?Private sector

Community members,families

States

Individual

Laws and policies

Resource allocation

Inclusive services

Awareness-raising

Training

Research

Remedy

Resources

Convention on the Rights of Persons with Disabilities Human Rights Committee, general comment No. 18

(1989) on non-discrimination Committee on Economic, Social and Cultural Rights,

general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights

Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004) on temporary special measures

Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of Convention on the Elimination of All Forms of Discrimination against Women