Discrimination on the basis of disability Module 5

Objective Module flow 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 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?

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

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

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 accommodation Objective Reasonableness Test Elements Confidentiality Interactive dialogue Objective justification

Reasonable accommodation Confidentiality Confidentiality should be ensured throughout the process Disclosure of accommodation needs must be up to the individual concerned

Reasonable accommodation Interactive Dialogue The duty bearer and the right holder should engage in an interactive dialogue in order to identify the necessary accommodation 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 The interactive dialogue is natural consequence of the principle of good faith and the recognition of the dignity of the person with disability. Persons with disabilities are experts in their own needs, no one better than themselves can determine what accommodation is the best. By recognizing this, the duty-bearer also allows theirselves to better identify the needs of the person, evaluate resources and avoid acting discriminatorily. If both parties reach to an agreement the process ends. If not the burden of proving that objective criteria was not met, is on the duty-bearer.

Reasonable accommodation Objective Resonableness Test Objective Justification The duty-bearer can deny a reasonable accommodation without incurring discrimination on the basis of disability by demonstrating that either it is not: Feasible (legally or in practice) Relevant (“necessary” and “appropriate”), or Proportional (“disproportionate or undue burden”) The factors must be clear, objectively measureable and neither vague nor ambiguous This is to avoid arbitrariness and prevent discrimination The Committee on the Rights of Persons with Disabilities is currently in the process of addressing the objective reasonableness test in its upcoming General Comment on Article 5 of the CRPD – equality and non-discrimination. Nevertheless, some of its elements were identified (in general terms) in the analysis of the case Jungelin v. Sweden. Drawing from these elements and those identifiable in comparative law, the abovementioned elements of the objective justification can be identified.

Reasonable accommodation Objective justification Feasible Cannot breach the law A requested party can only provide accommodations that exist and are available

Reasonable accommodation Objective justification Relevant 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 accommodation Objective justification Proportional Assessment of the relationship between the: Means employed – time, cost, duration and impact AND The aim – which is the enjoyment of the right concerned Financial feasibility: Focuses on the possible financial options for the requested party Economic feasibility: Looks at the overall assets rather than the cash flow alone Financial feasibility: Some accommodations may have a cost. In order to ensure the exercise of the right, the duty-bearer must exhaust funding alternatives in case of not having funds to implement the accommodation. Economic feasibility: The duty-bearer can prove that by implementing the accommodation it may risk the existence of the entity or the performance of a core function. For instance, a small business in order tob accommodate an employee in a wheelchair may be forced to install an elevator. After evaluating the cost and the financial support its manager might conclude that such accommodation would imply an important burden putting the business in a financial situation that cannot be supported with the regular income of the business, risking its existence.

Request for Reasonable Accommodation Confidentiality Interactive Dialogue Agreement No discrimination No agreement Objective Justification Test Feasible Relevant Proportional

Discrimination on the basis of disability Social and cultural life Segregated education Forced medical treatment Exclusion from the community Inaccessible environments Negative attitudes Civil life Denial of legal capacity Forced institutionalization Forced sterilization Political life Denial of the right to vote Economic life Denial of reasonable accommodation Denial 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 Laws and policies States Individual Community members, families Awareness-raising Training Laws and policies States Individual Research Resource allocation Remedy Inclusive services Slide Three

Resources Convention on the Rights of Persons with Disabilities Equality and non-discrimination under article 5 of the Convention on the Rights of Persons with Disabilities; Report of the Office of the United Nations High Commissioner for Human Rights (2016) Promoting diversity and inclusion through workplace adjustments: A practical guide; ILO (2016) Committee on the Rights of Persons with Disabilities, General Comment on article 5 on equality and non-discrimination (draft) Committee on the Rights of Persons with Disabilities, General Comment on article 6 on women and girls with disabilities