1. Discrimination on the basis of disability Module 5

2.  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? ObjectiveModule flow

3. Thinking about discrimination The power walk

4. Forms of discrimination multiple discrimination indirect discrimination ? right based discrimination ? in fact discrimination direct discrimination systemic discrimination ?

5. Discrimination on the basis of disability 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 encompasses all forms of discrimination, including denial of reasonable accommodation

6. 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

7. Reasonable accommodation Elements Is of immediate realization Applies in individual cases Applies upon request of a person with disability Implies an objective reasonableness test

8. Reasonable accommodation Objective reasonableness test Elements Undue burden Interactive dialogue Objective justification Relevant Proportional Possible Financially feasible Economically feasible

9. Reasonable accommodation Undue 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

10. Reasonable accommodation Interactive 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

11. Reasonable accommodation Objective 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

12. Reasonable accommodation Objective 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

13. Reasonable accommodation Objective 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

14. Reasonable accommodation Objective 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)

15. Reasonable accommodation Objective 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

16. Reasonable accommodation Objective 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

17. Discrimination on the basis of disability Civil life Denial of legal capacity Forced institutionalization Forced sterilization Civil life Denial of legal capacity Forced institutionalization Forced sterilization Political life Denial of the right to vote Political life Denial of the right to vote Social and cultural life Segregated education Forced medical treatment Exclusion from the community Inaccessible environments Negative attitudes Social and cultural life Segregated education Forced medical treatment Exclusion from the community Inaccessible environments Negative attitudes Economic life Denial of reasonable accommodation Denial of property rights Economic life Denial of reasonable accommodation Denial of property rights

18. 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.

19. Who is responsible? Private sector Community members, families Private sector Community members, families States Individual Laws and policies Resource allocation Inclusive services Awareness- raising Training Awareness- raising Training Research Remedy

20. 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