1. Discrimination on the basis of disability
Module 5

2. 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?

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

4. 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

5. 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

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

7. Reasonable accommodation Objective Reasonableness Test
Elements
Confidentiality
Interactive dialogue
Objective justification

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

9. 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.

10. 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.

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

12. 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

13. 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.

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

15. 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

16. 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.

17. 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

18. 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