european yearbook of disability law
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European Yearbook of Disability Law
Editors:
Prof. Gerard Quinn
National University of Ireland, Galway (IRL)
Prof. Lisa Waddington
European Disability Forum Chair in European Disability Law
Maastricht University (NLs)
Editorial Board:
Prof. Theresia Degener
Evangelischen Fachhochschule Rheinland-Westfalen-Lippe (GER)
Prof. Aart Hendriks,
Chair in Health Law, University of Leiden (NLs)
Prof. Bjørn Hvinden
Head of Research & Deputy Director NOVA, (NO)
Dovile Juodkaite
Director, Global Initiative on Psychiatry – Vilnius (LI)
Anna Lawson
Senior Lecturer in Law and Member of the Centre for Disability Studies, Leeds
University (UK)
Oliver Lewis
Executive Director, Mental Disability Advocacy Center, Budapest (HU)
John Parry
Director, Commission on Mental & Physical Disability Law, American Bar
Association (US)
Shivaun Quinlivan
Law Lecturer, National University of Ireland, Galway (IRL)
Advisory Board:
Prof. Peter Blanck
Chairman, The Burton Blatt Institute, Syracuse University (US)
Prof. Christopher McCrudden
Lincoln College, Oxford University (GB)
Prof. Michael Stein
William & Mary School of Law and Executive Director, Harvard Project on
Disability Harvard Law School (US)
Yannis Vardakastanis
President of the European Disability Forum (EU)
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european yearbook of
disability law
Volume 2
Edited by
Lisa Waddington
Gerard Quinn
Antwerp – Oxford – Portland
European Yearbook of Disability Law_03_Voorwerk & Part I.indd 3
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European Yearbook of Disability Law. Volume 2
Lisa Waddington and Gerard Quinn (eds.)
© 2010 Intersentia
Antwerp – Oxford – Portland
www.intersentia.com
ISBN 978-94-000-0128-2
D/2010/7849/124
NUR 825
No part of this book may be reproduced in any form, by print, photoprint, microfilm or
any other means, without written permission from the publisher.
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Acknowledgments
We are immensely grateful to the many people who have contributed, in various
ways, to this volume of the Yearbook. First, we would like to thank Andrea
Coomber (interights, International Centre for the Protection of Human Rights)
who took the lead in authoring the review on the work of the Council of Europe.
We are also very grateful to Colm O’Cinneide (University College London), who
contributed to this section of the review, and to Dalindyebo Shabalala (Maastricht
University), who contributed the section on the proposed Treaty on Copyright
Exceptions and Limitations for Persons with Visual Impairments at the World
Intellectual Property Organization, found in the review of the work of other
European Intergovernmental Organizations and Civil Society Groups. We would
also like to express other thanks to Anna Lawson (Leeds University) who assisted
with the editing of the section on the review of the work of the Council of Europe,
and Janina Arsenjeva (European Disability Forum), who provided us with useful
feedback on the review of work of the European Union. We are grateful to Laura
Visser (student assistant, Maastricht University) who ensured that all the papers
were compliant with the Yearbook’s style sheet and, in particular, Karen Walsh
(NUI Galway) who took the lead in drafting all remaining sections on the review
and provided invaluable assistance and support throughout the production of this
volume. Lastly, we express our thanks to the authors who contributed articles to
this volume, the anonymous peer reviewers who help us to ensure the quality of
the articles published, and members of our editorial and advisory boards.
Lisa Waddington and Gerard Quinn
Intersentia
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Table of Contents
Editorial Tracing an Eventful Year in European Disability Law and
Policy
Gerard Quinn and Lisa Waddington� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 1
Part I: Articles and Practitioners’ Notes� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 5
The UN Disability Convention and (Multiple) Discrimination: Should
EU Non-Discrimination Law Be Modelled Accordingly?
A art Hendriks� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 7
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 7
2.What is (Multiple) Discrimination?� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 10
2.1.Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 10
2.2.Forms of Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 12
2.3.
Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 14
3.Disability and Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � 17
4.Disability, other Protected Grounds and the CRPD Approach
Towards Combating Multiple Discrimination� � � � � � � � � � � � � � � � � � � � � � � 22
5.
Current Protection Offered by EU Law Against Multiple
Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 23
6.Discussion and Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 26
The Law and Politics of US Participation in the UN Convention on the
Rights of Persons with Disabilities
Michael Ashley Stein, Janet E. Lord, and Penelope J.S. Stein � � � � � � � � � 29
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.Overview of American Disability Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Theoretical Underpinnings � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Practical Limitations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.
Consequences of United States Ratification� � � � � � � � � � � � � � � � � � � � � � � �
3.1.Introspective Review� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.2.Fostering Dialogue� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.International Relations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.Transatlantic Dialogue � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
29
30
31
32
35
35
38
40
44
45
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Table of Contents
The Conclusion of the UN Convention on the Rights of Persons with
Disabilities by the EC/EU: A Constitutional Perspective
Delia Ferri� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 47
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Text of the UN CRPD: A Brief Overview� � � � � � � � � � � � � � � � � � � � � �
3.The Conclusion of the UN CRPD by the EC/EU � � � � � � � � � � � � � � � � � � �
4.The UN CRPD: Status and Effects Within the EU Legal System� � � � �
5.
Concluding Remarks� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
47
51
56
62
68
Introduction to the Symposium: Digital Freedom and Disability –
Lessons from Europe and the United States
Rune Halvorsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 73
Digital Freedom for Persons with Disabilities: Are Policies to Enhance
e-Accessibility and e-Inclusion Becoming More Similar in the Nordic
Countries and the US?
Rune Halvorsen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 77
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 77
2.
Comparing Institutional Differences in e-Accessibility and
e-Inclusion Policy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 78
3.E-Accessibility Regulations and Achievements in the Nordic
Countries and the US � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 81
4.Social Redistribution and e-Inclusion in the Nordic Countries and
the US� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 88
5.Explaining the Differing Profiles of Nordic and US e-Accessibility
and e-Inclusion Policy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 92
6.Will Supranational Organizations Further Convergence in
e-Accessibility and e-Inclusion Policy Between the Nordic
Countries and the US? � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 96
7.
Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 101
Law and Policy Challenges for Achieving an Accessible eSociety:
Lessons from the United States
William N. Myhill� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 103
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Patchwork of Federal Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Pre-ICT Proliferation Era� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Public Internet Era� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.Progress and Shortcomings of Federal Law � � � � � � � � � � � � � � � � � � � � � � �
4.Accessibility of the Internet and Higher Education ICTs� � � � � � � � � � �
4.1.Internet Accessibility� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.
Common Law and Litigation � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.Bringing About Uniformity of ICT Accessibility: Legislative and
Alternate Mechanisms � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.1.Select Legislative Solutions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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5.2.Alternative Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 125
6.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 129
Challenging Disabling Barriers to Information and Communication
Technology in the Information Society: A United Kingdom Perspective
Anna Lawson� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 131
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.Equality Law Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Overview � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2Types of Claim � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.1.Disability-Related Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.Reasonable Adjustment Duties� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.1.Scope� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.2.Employment� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.3.Goods and Services (Including Education, Transport and Public
Functions)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.2.4.Reasonable Adjustment and Access to Information� � � � � � � � � � � � � � � �
2.2.3.The Disability Equality Duty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.Enforcement � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.
Market Regulation Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.Social Protection Mechanisms� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.
Conclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
131
134
134
135
135
136
136
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Removing Accessibility Barriers to Telecommunications:
A Pre-Requisite for Social Inclusion of Persons with Disabilities
Contribution from the European Disability Forum
Rodolfo Cattani� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 149
Contribution from the Commissioner for Human Rights of the Council
of Europe
Thomas Hammarberg� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 153
1.Introduction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.The Commissioner’s Approach and Working Methods � � � � � � � � � � � � �
3.Specific Issues of Concern to the Commissioner Regarding the
Human Rights of Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � �
3.1.Implementation of the UN Convention on the Rights of Persons
with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.2.
Children with Disabilities � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.Ageing Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.Persons with Mental Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.4.1.Legal Capacity � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.Future Challenges - Conclusions� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.1.
Combating Discrimination� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.National Action Plans� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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Part II: Annual R eview of European Law and Policy � � � � � � � � � � � � � � � � � 161
The European Union� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 163
1.Background to the European Union and Disability� � � � � � � � � � � � � � � � �
1.1.Strategic Direction� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.1.1. Current Strategy: The European Disability Action Plan 2003-2010� �
1.1.2.EU Disability Strategy 2010-2020� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.Legislative Measures� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.1.Entry into Force of the Lisbon Treaty� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.2. Council Directive 2000/78/EC of 27 November 2000 Establishing
a General Framework for Equal Treatment in Employment and
Occupation� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.3.Proposal for a Council Directive on Implementing the Principle
of Equal Treatment Between Persons Irrespective of Religion or
Belief, Disability, Age or Sexual Orientation (2008)� � � � � � � � � � � � � � �
1.2.4.Proposal for a Regulation Concerning the Rights of Passengers
when Traveling by Sea and Inland Waterway; � � � � � � � � � � � � � � � � � � � � �
Proposal for a Regulation on the Rights of Passengers in Bus and
Coach Transport� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.2.5.EU Telecoms Reform Package� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.3.The EU and International Legal Developments� � � � � � � � � � � � � � � � � � � �
1.3.1.Signature and Conclusion by the EC/EC of the UN Convention on
the Rights of Persons with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � �
1.4.Recent Developments in Miscellaneous Fields � � � � � � � � � � � � � � � � � � � �
2.Activities of the European Commission� � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.Directorate General for Employment, Social Affairs and Equal
Opportunities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.1.Unit for the Integration of People with Disabilities � � � � � � � � � � � � � � � �
2.1.2.Unit for Equality, Action against Discrimination: Legal Questions� �
2.1.3.Unit on Action against Discrimination, Civil Society � � � � � � � � � � � � � �
2.2.Directorate General for Health and Consumers� � � � � � � � � � � � � � � � � � � �
2.3.Directorate General for Mobility and Transport� � � � � � � � � � � � � � � � � � � �
2.4.Directorate General for Internal Market and Services� � � � � � � � � � � � � �
2.5.Directorate General for Competition � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.6.Directorate General for Enterprise and Industry� � � � � � � � � � � � � � � � � � �
2.7.The Information Society and Media Directorate General� � � � � � � � � � �
2.8.Eurostat� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.Activities of the Council of the European Union� � � � � � � � � � � � � � � � � � �
3.1.Activities Under the Open Method of Coordination� � � � � � � � � � � � � � � �
3.1.1.Open Method of Coordination - Social Protection and Social
Inclusion� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.2.Open Method of Coordination – European Employment Strategy� � �
3.2.EU Presidency and Ministerial Conferences on Disability� � � � � � � � � �
4.
Current Activities of the European Parliament� � � � � � � � � � � � � � � � � � � � �
4.1.Activities of the Disability Intergroup of the European Parliament� �
5.
Case Law of the Court of Justice of the European Union� � � � � � � � � � �
5.1.The Powers of the Court of Justice of the European Union � � � � � � � � �
5.2.Recently Decided Cases� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
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5.2.1. Gottwald v. Bezirkshauptmannschaft Bregenz� � � � � � � � � � � � � � � � � � � � �
5.2.2. Joined Cases Gerhard Schultz-Hoff v. Deutsche
Rentenversicherung Bund and Stringer and Others v. Her Majesty’s
Revenue and Customs� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.3.Francisco Vicente Pereda v. Madrid Movilidad SA� � � � � � � � � � � � � � � � �
5.2.4.Ketty Leyman v Institut national d’assurance maladie-invalidite
(INAMI)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.5.Evangelina Gomez-Limon Sanchez-Camacho v Instituto Nacional
de la Seguridad Social (INSS), Tesoreria General de la Seguridad
Social (TGSS) and Alcampo SA � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.6.Petra von Chamier-Glisczinski v Deutsche AngestelltenKrankenkasse � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.3.
Cases Pending� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.3.1.Lucy Stewart v Secretary of State for Work and Pensions � � � � � � � � � �
5.3.2.Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael
Taylor v Secretary of State for Work and Pensions� � � � � � � � � � � � � � � � �
6.European Economic and Social Committee� � � � � � � � � � � � � � � � � � � � � � �
6.1.
2009 Opinions with a Disability Dimension� � � � � � � � � � � � � � � � � � � � � � �
7.Activities of the European Union Fundamental Rights Agency � � � � �
8.Studies and Reports� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.1.Study on the Situation of Women with Disabilities in Light of the
UN Convention on the Rights of Persons with Disabilities – A
Final Report for the DG Employment, Social Affairs and Equal
Opportunities of the European Commission� � � � � � � � � � � � � � � � � � � � � � �
8.2.Report of the Ad Hoc Expert Group on the Transition from
Institutional to Community-Based Care� � � � � � � � � � � � � � � � � � � � � � � � � � �
8.3.International Perspectives on Positive Action Measures – A
Comparative Analysis in the European Union, Canada, The United
States and South Africa� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.
Various Reports Published By The Academic Network of European
Disability Experts (ANED)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.1.European Comparative Data on the Situation of Disabled People:
An Annotated Review� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.2.The Labour Market Situation of Disabled People in European
Countries and Implementation of Employment Policies: A
Summary of Evidence from Country Reports and Research Studies�
8.4.3. Monitoring the Implementation of the UN Convention on the
Rights of Persons with Disabilities in Europe: Principles for the
Identification and Use of Indicators � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.4.The Implementation of EU Social Inclusion and Social Protection
Strategies in European Countries with Reference to Equality for
Disabled People � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.5.Annotated Review of European Legislation which Makes a
Reference to Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
8.4.6.Indicators of Disability Equality in Europe (IDEE) – A Preliminary
List of Indicator Proposals for Discussion� � � � � � � � � � � � � � � � � � � � � � � � �
8.4.7.The Implementation of Policies Supporting Independent Living for
Disabled People in Europe: Synthesis Report� � � � � � � � � � � � � � � � � � � � � �
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8.5.European Research Agendas for Disability Equality (EuRADE) –
Policy Statement� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 240
9.European Day of People with Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � 241
9.1.European Day of People with Disabilities 2009 (3-4 December
2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 241
The Council of Europe� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 243
1.Background to the Council of Europe and Disability� � � � � � � � � � � � � � �
1.1.The Role and Institutions of the Council of Europe� � � � � � � � � � � � � � � �
1.2.The Strategic Direction of the Council of Europe on Disability� � � � �
2.The European Court of Human Rights and Recent Case Law on
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.The Convention and the Court� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Background, Proceedings and Jurisdiction of the Court � � � � � � � � � � � �
2.3.
Court Reform � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.4.Disability and the Court� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.Recent Disability Related Case Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1. General Disability Related Case Law� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.1. Glor v. Switzerland � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.2. G.N. and others v. Italy� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.3.Savin and Savina v. Ukraine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.4.Salontaji-Drobnjak v. Serbia� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.1.5. Codarcea v. Romania� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2. Case Law Concerning Conditions of Detention for Persons with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.1.Paladi v Moldova� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.2.Sławomir Musiał v. Poland� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.3.Kats and Others v. Ukraine � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.5.2.4.Kılavuz v. Turkey� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.Pending Applications of Interest � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.1. Câmpeanu v. Romania � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.2.Farcas v. Romania � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.European Social Charter� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.Background of the European Social Charter and Committee� � � � � � � �
3.2.Recent Conclusions of the European Committee of Social Rights
on State Party Reports on Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.Recent Decisions of the European Committee of Social Rights on
Collective Complaints and Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.3.1.European Roma Rights Centre (ERRC) v. Bulgaria (Revised Social
Charter, Decision of June 2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.European Committee for the Prevention of Torture and Inhumane
or Degrading Treatment or Punishment (CPT).� � � � � � � � � � � � � � � � � � � �
4.1.Background of the CPT� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.2.The CPT Standards and Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.3.The 2009 CPT General Report� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.
Country Visits of the CPT and Disability � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.1. CPT Visit to Azerbaijan (2008) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.2. CPT Visit to the United Kingdom (2008) � � � � � � � � � � � � � � � � � � � � � � � � �
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247
249
251
253
253
253
256
258
260
262
263
263
265
266
268
269
269
271
272
272
274
275
275
276
276
277
278
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4.4.3. CPT Visit to Greece (2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.4. CPT Visit to French Guyana (2008)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.5. CPT Visit to Slovakia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.6. CPT Visit to Sweden (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.7. CPT Visit to Latvia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.8. CPT Visit to Abkhazia, Georgia (2009)� � � � � � � � � � � � � � � � � � � � � � � � � � �
4.4.9. CPT Visit to Moldova (2009) � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.The Council of Europe Human Rights Commissioner and
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.1.Background and Role� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.Recent Activity of the Commissioner on Disability� � � � � � � � � � � � � � � �
5.2.1. Viewpoints� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.1. Viewpoint on Intellectual Disability� � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.2. Viewpoint on Legal Capacity� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.1.3.Viewpoint on De-Institutionalization of Orphans and Children with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2. Country Visits� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.1.Report on Visit to the Netherlands� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.2.Report on Visit to Serbia � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.3.Report on Visit to Monaco� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.4.Report on Visit to Kosovo � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.5.Report on Visit to Turkey� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.2.6.Report on Visit to Bulgaria � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
5.2.3.Recommendations� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.The Parliamentary Assembly and the Committee of Ministers and
Disability � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.1.Resolution 1642 (2009) and Recommendation 1854 (2009) Access to Rights for People with Disabilities and Their Full and
Active Participation in Society, and Committee of Ministers
Response� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.2.Recommendation of the Committee of Ministers to Member
States on Ageing and Disability in the 21st Century: Sustainable
Frameworks to Enable Greater Quality of Life in an Inclusive
Society� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.3.Recommendation of the Committee of Ministers to Member States
on Monitoring the Protection of Human Rights and Dignity of
Persons with Mental Disorder� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.4.Recommendation of the Committee of Ministers to Member States
on Achieving Full Participation Through Universal Design� � � � � � � � �
6.5.Recommendation of the Committee of Ministers to Member States
to Encourage the Education and Social Inclusion of Children and
Young People with Autism Spectrum Disorders � � � � � � � � � � � � � � � � � � �
6.6.Recommendation of the Committee of Ministers to Member States
on Principles Concerning Continuing Powers of Attorney and
Advance Directives for Incapacity� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.7.Recommendation of the Committee of Ministers to Member States
on Deinstitutionalization and Community Living of Children with
Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6.8.
Council of Europe Conference on Women and Disabilities� � � � � � � � �
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281
282
283
283
285
286
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289
289
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291
292
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293
295
296
296
297
297
298
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299
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Other European Intergovernmental Organizations and Civil Society
Groups� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 303
1.European Intergovernmental Organizations� � � � � � � � � � � � � � � � � � � � � � �
1.1.Organization for Economic Co-operation & Development (OECD)�
1.2.World Health Organization – Regional Office for Europe � � � � � � � � � �
1.3.The Proposed Treaty on Copyright Exceptions and Limitations for
Persons with Visual Impairments at the World Intellectual Property
Organization � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.European Civil Society Organizations� � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.1.The European Disability Forum� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.2.Inclusion Europe� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2.3.European Network on Independent Living (ENIL)� � � � � � � � � � � � � � � � �
2.4.The European Coalition for Community Living (ECCL)� � � � � � � � � � �
2.5.
Mental Disability Advocacy Centre (MDAC)� � � � � � � � � � � � � � � � � � � � � �
3.Studies & Reports � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3.1.The International Convention on The Rights of People with
Disabilities and Its Impact on the Spanish Legal System � � � � � � � � � � �
303
303
305
309
317
317
322
327
331
333
337
337
Part III: Literature R eview� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 339
Literature R eview� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341
1.Disability Law and Policy Books� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 341
2.Disability Law and Policy Journal Articles� � � � � � � � � � � � � � � � � � � � � � � � 347
Part IV: Annex of K ey Documentation � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 365
Council Decision of 26 December 2009 Concerning the Conclusion, by the
European Community of the United Nations Convention on the Rights of
Persons With Disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 367
Council Conclusions on Accessible Information Society� � � � � � � � � � � � � � � � � � 379
Recommendation CM/Rec(2010)2 of the Committee of Ministers to member
states on deinstitutionalisation and community living of children with
disabilities� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
385
EDF Proposal for a European Pact on Disability � � � � � � � � � � � � � � � � � � � � � � � � 395
Wasted Time, Wasted Money, Wasted Lives…A Wasted Opportunity? Executive Summary
ECCL Focus Report on how the current use of Structural Funds
perpetuates the social exclusion of disabled people in Central and Eastern
Europe by failing to support the transition from institutional care to
community-based services� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 403
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The UN Disability Convention and (Multiple)
Discrimination: Should EU Non-Discrimination
Law Be Modelled Accordingly?
Aart Hendriks1
1.Introduction
It is increasingly acknowledged that discrimination due to disability constitutes
one of the greatest obstacles to the participation and social integration of people
with disabilities in our societies. It is not the abilities and inabilities of persons
with impairments which lead to and perpetuate their exclusion from the socalled mainstream, but the attitudinal and environmental barriers experienced
by those considered ‘different’ from, if not inferior to, the self-proclaimed ablebodied norm. It should therefore not come as a surprise that the prohibition of
discrimination on the ground of disability is at the heart of the recently adopted
Convention on the Rights of Persons with Disabilities (CRPD).2
The aim of this treaty is, according to Article 1 of the Convention, ‘to promote,
protect and ensure the full and equal enjoyment of all human rights by persons
with disabilities, and to promote respect for their inherent dignity’ (emphasis
added – AH). ‘Full and effective participation’ forms, together with ‘inclusion’
and ‘respect for difference’, one of the principles underlying this treaty (Art.
3(c)-(d)).3 The human rights enshrined in the CRPD apply to – and are, in my
view (see below), confined to – ‘all people with disabilities’ (Art. 1). At the same
time, the CRPD suggests that every person with a disability is equally prone to
disadvantageous treatment or that the experiences of persons with disabilities
Professor of Health Law, Leiden University/Leiden University Medical Centre,
the Netherlands. The author is grateful to his colleague and friend Professor Rikki
Holtmaat for generously sharing her rich, inspiring and original insights with him as
well as the valuable comments from the editors and the anonymous peer reviewers.
2
United Nations Convention on the Rights of Persons with Disabilities and Optional
Protocol, (adopted 13 December 2006, entry into force 3 May 2008). For a more
extensive commentary see A.C. Hendriks, ‘UN Convention on the Rights of Persons
with Disabilities’, 14 European Journal of Health Law 3 (2007), 273 and G. Quinn,
‘A Short Guide to the United Nations Convention on the Rights of Persons with
Disabilities’, in G. Quinn and L. Waddington (eds.), 1 European Yearbook on
Disability Law (2009), (Intersentia, 2009), 89.
3
See also J.E. Bickenbach, ‘Minority Rights or Universal Participation: the Politics of
Disablement’, in M. Jones and L.A. Basser Marks (eds.), Disability, Divers-ability
and Legal Change, (Martinus Nijhoff, 1999), 101.
1
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Aart Hendriks
of discrimination are interchangeable. This seems not to be the case. There is
strong evidence that the extent to which people with disabilities are exposed to
discriminatory treatment is closely related to the nature, type and degree of their
impairments, the visibility of these impairments, as well as the implications of
their impairment in terms of participation and social integration. It is alleged that
these differences are insufficiently acknowledged by European and national nondiscrimination laws.
It is maintained here that discrimination not only occurs because of a sole
feature of an individual, but that there is often a combination of grounds that
cause or contribute to discriminatory reactions by others. Or, according to Sandra
Fredman: ‘The more the person differs from a norm, the more likely she is to
experience multiple discrimination, the less likely she is to gain protection.’4 In
fact, discrimination can mostly only be understood and rebutted by seeing these
grounds as inseparable and by taking into account interpersonal and contextual
factors, such as the behaviour of (potential) victims of discrimination, their
communication skills and their under- or overrepresentation in positions of power
in a given society. This insight advanced the notion that non-discrimination
law should embrace a more integrated, multidimensional and comprehensive
approach, instead of compartmentalizing the identities of the persons concerned
and disconnecting these from their context.5
The CRPD is the first international legally binding instrument which refers
to multiple discrimination as a separate form of discrimination. The drafters of
the Convention considered it necessary to stipulate, in addition to the general
provision on non-discrimination (Art. 5), that States recognize that women and
girls with disabilities are subject to ‘multiple discrimination’ (Art. 6).
The latter provision imposes a duty on States to be particularly vigilant when
it comes to the treatment disabled women and disabled girls receive from other
persons. Neither the female aspect, nor the disability dimension alone, can explain
the pejorative treatment women and girls with disabilities may receive. In other
words, discrimination can sometimes only be understood by taking into account a
combination of interactive or overlapping grounds which is qualitatively different
from what occurs in single ground discrimination.
In addition to this explicit reference to the term ‘multiple discrimination’, the
Preamble of the CRPD contains the following reference to this concept: ‘The
States Parties to the present Convention, … (p) Concerned about the difficult
conditions faced by persons with disabilities who are subject to multiple or
aggravated forms of discrimination on the basis of race, colour, sex, language,
religion, political or other opinion, national, ethnic, indigenous or social origin,
property, birth, age or other social status.’
In this article I will explore the meaning of the concept ‘multiple
discrimination’ and examine whether European Union (non-discrimination) law
S. Fredman, ‘Double trouble: multiple discrimination and EU law’, 2 European AntiDiscrimination Law Review (2005), 13 at 14.
5
D. Schiek, ‘From European Union Non-Discrimination Law Towards
Multidimensional Equality Law For Europe’, in D. Schiek, and V. Chege (eds.),
European Union Non-Discrimination Law: Comparative Perspectives on
Multidimensional Equality Law, (Routledge Cavendish, 1999), 3, as well as other
contributions to this work.
4
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should be reformed or amended to follow the example set by the United Nations’
(UN) CRPD when it comes to combating discrimination because of disability.6
I will do this against the backdrop of concern expressed by Fredman, alleging
that judges and lawmakers are fearful of opening a ‘Pandora’s box’ with respect
to multiple discrimination claims.7 This statement is epitomized by various
authors in their work.8 One of the main points of criticism of these scholars is that
non-discrimination laws and policies are exclusively or predominantly aimed at
one aspect of the identity of individuals, thus denying the fact that people have
several identities or do not want to be labelled with a particular label at all. This
‘unrealistic’ approach to non-discrimination – in terms of contravening the way
people may experience their own identity and discrimination – is presumed to be
detrimental for people encountering discrimination on a combination of grounds,
and whose (combined) self-chosen or attributed ‘identity’ is not recognized by
courts, judges and other tribunals confronted with non-discrimination claims.
Criticism of this approach has spurred research into the origins, manifestations,
prevalence and prevention of multiple discrimination, as well as the way
discrimination on concurrent grounds is experienced by the persons concerned.
Proposals have been made to include provisions on multiple discrimination in
existing or new non-discrimination laws,9 including EU non-discrimination law.
Thus far these studies and proposals are, however, predominantly focused on
gender and race.10
To date, little research has been conducted on multiple discrimination from a
disability perspective, that is to say situations in which one or more other protected
grounds add to discrimination on grounds of disability. Although this article
will not fill this gap, let alone provide empirical data on the prevalence of such
discrimination, it will discuss whether the above mentioned CRPD provision sets
a good example for European non-discrimination law with regard to disability
and multiple discrimination.
This requires, first of all, an analysis and definition of the terms ‘discrimination’
and ‘multiple discrimination.’ In doing so, I will focus on and largely confine
myself to the position of people with disabilities. Subsequently, this article
will reflect upon the question whether European non-discrimination law needs
to be reformed or amended in order to adequately address and tackle multiple
discrimination which adds to disability discrimination.
So far, Europe has always been lagging behind the UN when it comes to the
recognition of the rights of people with disabilities. A.C. Hendriks and Th. Degener,
‘The evolution of a European perspective on disability discrimination’, 1 European
Journal of Health Law 4 (1994), 343.
7
S. Fredman, 2 European Anti-Discrimination Law Review (2005), 13 at 14.
8
Amongst many others, F. Banda and Ch. Chinkin, Gender, minorities and indigenous
peoples, (Minority Rights Group, 2004).
9
United Kingdom Government Equality Office, Equality Bill: Assessing the impact of
a multiple discrimination provision. A discussion document, (Government Equality
Office, 2009).
10
E. Kofman, E. Howard and H. Wray, The use of racial anti-discrimination laws. Gender
and citizenship in a multicultural context, WP5 Methodology Report, January 2009
<http://genderace.ulb.ac.be/rapports/GendeRace%20Methodology%20Report.
pdf> (accessed 24 June 2010).
6
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2.What is (Multiple) Discrimination?
2.1.Discrimination
The prohibition to discriminate between human beings represents a dominant,
but also utterly complex and at times heavily contested, legal norm.11 Often read
in tandem with the principle of equality, non-discrimination embodies both an
intrinsic value (the equal dignity of human beings) and an instrumental value (the
urge to reduce disparities, respect differences, strengthen the position of minorities
and other non-dominant groups in order to promote equal opportunities or equality
of results). Non-discrimination law is therefore dynamic and revolutionary by
nature, given that it is aimed at tearing down the walls of exclusion reflecting the
power structures in society.12
Discrimination is generally understood to mean a form of detrimental or
less favourable treatment, in comparison to other forms of treatment, which is
based on certain actual or perceived human features. Or, to phrase it differently,
discrimination is the denial of equal treatment or the rejection of the equal worth
of a person due to one or more characteristics he or she possesses or is thought
to possess. The reasons why people discriminate against each other vary from
prejudice, pity, stereotyping to outright fear of, or aversion to, those considered
‘different’ from oneself, the group norm, or the societal or legal norm.
It is generally assumed that the characteristics on which people are being
discriminated against form part of the identity of individuals. People may share
this identity with others (group identity) or it may be their personal identity
(individual identity), which distinguishes them from others. Here it is important
to recall that all EU Member States, each of them being a party to the European
Convention of Human Rights, are bound to respect the right to private life, that
encompasses ‘identity’ as one of the most essential aspects,13 and obliged to
recognize and respect ‘diversity and the dynamics of cultural traditions, ethnic
and cultural identities, religious beliefs, artistic, literary and socio-economic
ideas and concepts.’14
The disadvantageous aspect of conduct qualified as discrimination can be
situated in the treatment itself (e.g. intimidation due to a person’s race) and
be the consequence of the way a person is treated (e.g. the denial of a job due
to the seemingly neutral selection criteria employed). In fact, unequal forms
of treatment not resulting in a certain degree of material or immaterial harm
hardly ever lead to non-discrimination cases. For now it suffices to say that
M. Canvanagh, Against Equality of Opportunity, (Oxford University Press, 2002)
and L. Alexander, ‘What Makes Wrongful Discrimination Wrong’, 141 University
of Pennsylvania Law Review 1 (1992), 149.
12
O. Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’, in
O. Mjöll Arnardóttir and Gerard Quinn (eds.), The UN Convention on the Rights
of Persons with Disabilities European and Scandinavian Perspectives, (Martinus
Nijhoff Publishers, 2009).
13
Mikulic v. Croatia, Application No. 53176/99, judgment 7 February 2002, Van Kück
v. Germany, Application No. 35968/97, judgment 12 June 2003, and Daróczy v.
Hungary, Application No. 44378/05, judgment 1 July 2008.
14
Baczkowski et al. v. Poland, Application No. 1543/06, judgment 3 May 2007.
11
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discrimination encompasses 1) human or institutional conduct (‘treatment’); 2)
with respect to a particular feature a person possesses or is thought to possess
(‘ground’); 3) affecting this person or the group of persons he or she belongs to in
a detrimental way (‘disadvantage’).
The obligation to treat people equally and, as a corollary, the prohibition of
discrimination, are widely recognized under international, European and national
law. Non-discrimination law, meaning the body of law restricting the freedom to
disadvantageously treat persons because of certain characteristics, emerged in
response to forms of detrimental treatment deemed objectionable in a society built
on human rights. Treating people less favourably because of particular features
was considered unacceptable, because these distinguishing characteristics were
closely related to human dignity, being ‘the fundamental value and indeed the
core of positive European human rights law – whether under the European Social
Charter or under the European Convention of Human Rights.’15 Thus seen,
discrimination constitutes a denial of the principle that all human beings are of
equal worth and merit equal respect and protection. Discrimination is therefore at
odds with the core values and principles underlying human rights law.
Discrimination needs to be distinguished from mere ‘different’ or ‘arbitrary’
detrimental treatment. Discrimination implies disadvantageous conduct due to
characteristics intimately interrelated with human dignity, such as gender, race,
religion and sexual preference.16 I am not embarking on the debate whether these
characteristics are biological or social constructs.17 For now it suffices that an
individual cannot hide, deny, change or give up such a characteristic without
seriously impairing or distorting his or her identity. This also explains why, in
my view, non-discrimination law should remain focused on offering protection
against disadvantageous treatment based on a confined and exhaustive list of
human characteristics and why we should be reluctant to allow an inflation of
protected grounds.
In relation to this, one can wonder whether such neutral and broad terms as
‘sex’ or ‘gender’, ‘race or ethnicity’ and ‘sexual orientation’, as employed by EU
non-discrimination law, adequately describe the groups that are particularly prone
International Federation for Human Rights (FIDH) v. France, judgment
8 September 2004, [2004] ECSR 14/2003. See also Autism-Europe v. France,
judgment 7 November 2003, [2003] ECSR 13/2002.
16
This is not to suggest that it is easy to define human dignity. Or, according to ECJ
Advocate General Stix-Hackl: ‘There is hardly any legal concept more difficult
to fathom in law than that of human dignity’, Opinion of the Advocate General,
Case 36/02 Omega v. Bonn, [2004] ECR I-09609, para. 74. For some recent
discussions on this concept, see O. Cayla, ‘Dignité humaine: le plus flou des concepts’,
Le Monde, 31 January 2003; Christopher McCrudden, ‘Human Dignity and Judicial
Interpretation of Human Rights’, 19 European Journal of International Law 4
(2008), 655; Chr. Thies (ed.), Der Wert der Menschenwürde, (Ferdinand Schöningh,
2009) and H. Sinding Aasen, R. Halvorsen and A. Barbosa da Silva, Human Rights,
Dignity and Autonomy in Health Care and Social Services, (Intersentia, 2009).
17
Sejdic and Finci v. Bosnia and Herzegovina (GC) Application Nos. 27996/06 and
34836/06, judgment of 22 December 2009, on the definitions of race and ethnicity.
15
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to discrimination. I agree with Rikki Holtmaat18 that it would – as with disability
(see below) – be better to reserve the protection offered by non-discrimination
law to individuals pertaining to groups with a history of discrimination in
(almost) all fields of social life. Following this line of thought, it would be more
accurate to delineate the corresponding protected grounds as ‘women’ and
‘transgender’ instead of ‘sex/gender’, as ‘ethnic or racial minorities’ instead
or ‘race or ethnicity’, and ‘homosexual’ or ‘LGBT (lesbian, gay, bisexual and
transgender)’ instead of ‘sexual orientation’. In most if not all European countries
men, white persons and heterosexuals have, like able-bodied persons, neither a
history of discrimination nor run the risk of becoming discriminated against in
all fields of social life because of their sex, race or sexual orientation. Equally,
detrimental treatment because of one’s type or length of employment contract,
age and marital/civil states may take place, but since these grounds are neither
unchangeable, nor can it be said that such forms of detrimental treatment are
typical for all societal spheres, these grounds do not deserve the same amount of
protection against discrimination than the human dignity related grounds.19
2.2.Forms of Discrimination
EU law acknowledges that discrimination can take a variety of different forms.20
Direct discrimination occurs when a person is treated less favourable than another
similarly situated person because of a particular characteristic. Race, gender and
some other protected grounds are hardly ever considered a relevant criterion for
treating persons differently. The utilization of these grounds to classify persons
and for treating one person less favourably than another constitutes direct
discrimination, unless there is an accepted justification for the difference of
treatment. EU law exhaustively lists these justifications and (other) exceptions,
at least with respect to the grounds sex, race or ethnic origin, religion or belief,
disability or sexual orientation, and to the extent treatment falls within the
material scope (ratione materiae) of EU law.21
Indirect discrimination originates from a differentiation on the basis of an
apparently neutral criterion, which has the effect that the members of a group
H.M.T. Holtmaat, Grenzen aan gelijkheid [Limits to Equality] (Inaugural Lecture
Leiden University), (Boom Juridische Uitgevers, 2004).
19
A.C. Hendriks, ‘Legislation to Combat Age Discrimination in the Labour Market.
An Examination of (the Experiences with) the Dutch Age Discrimination Act’,
20 Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht
(2006), 62.
20
See Directive 2000/43/EC implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, [2000] O.J. L180/22 and Directive
2000/78/EC establishing a general framework for equal treatment in employment
and occupation, [2000] O.J. L303/16 as well as the case-law of the European Court
of Justice. See also L. Waddington and A.C. Hendriks, ‘The Expanding Concept of
Employment Discrimination in Europe: From Direct and Indirect Discrimination
to Reasonable Accommodation Discrimination’, 18 International Journal of
Comparative Labour Law and Industrial Relations 3 (2002), 403.
21
See M.H.S. Gijzen, Selected Issues in Equal Treatment Law: A multi-layered
comparison of European, English and Dutch Law, (Intersentia, 2006).
18
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protected by non-discrimination law are disadvantaged compared to the members
of another group, and no objective justification – such as the promotion of social
integration 22 – can be shown to exist for the applied criterion. The recognition
of indirect discrimination as a form of discrimination is generally considered to
reflect a more substantive interpretation of the notion of equality.23
Harassment, the third form of discrimination recognized under EU law,
occurs when unwanted conduct related to a protected ground – e.g. sex – takes
place with the purpose or effect of violating the dignity of a person and of creating
an intimidating, hostile, degrading, humiliating or offensive environment.
Harassment necessitates, different from other forms of discrimination, no
individual or group comparison and can never be justified under EU law. An
instruction to discriminate, the fourth form of discrimination recognized under
EU law, concerns a discriminatory order given by a party covered by nondiscrimination law – say an employer – to an intermediary person or institution
– e.g. instructing an employment agency or a job recruitment agency not to select
candidates of a particular race or pregnant women.
In addition to these four forms of discrimination, the so-called Framework
Directive (Directive 2000/78/EC) 24 recognizes a fifth form of discrimination –
or, more precisely: a form of treatment necessary ‘to comply with the principle
of equal treatment’ – only with respect to the ground disability.25 Reasonable – or
effective – accommodation discrimination takes place in situations where a party
covered by non-discrimination law fails to take into account the impairments of a
disabled person, that – in the interrelationship with the environment – constitute
a barrier for participation and integration on an equal footing. The duty to provide
a reasonable accommodation requires the covered party to take reasonable and
effective steps to take away the barriers that hinder the equal opportunities of
the disabled person, unless the covered party can, in all reasonableness, not be
expected to make the adaptations needed given the disproportionate burden the
adaptations impose on that party.26
These five forms of treatment are all – more or less explicitly – covered by
the CRPD definition of discrimination, which reads as follows: ‘“Discrimination
on the basis of disability” means any distinction, exclusion or restriction on the
Case 103/08 Gottwald v. Bregenz [2009], judgment of 1 October 2009, not yet
reported. The case concerned the issue of an annual toll free disc for travel on the
motorway to disabled residents of Austria. The (indirect) discrimination alleged in
this case was on the grounds of nationality.
23
T. Loenen, ‘Indirect Discrimination: Oscillating Between Containment and
Revolution’, in T. Loenen and P.R. Rodrigues (eds.), Non-Discrimination Law:
Comparative Perspectives, (Kluwer Law International, 1999), 195 at 199.
24
Directive 2000/78/EC, establishing a general framework for equal treatment in
employment and occupation, [2000] O.J. L303/16
25
Directive 2000/78/EC as well as the case-law of the European Court of Justice.
It should be noted that the draft Council Directive on implementing the principle
of equal treatment between persons irrespective of religion or belief, disability,
age or sexual orientation (2008/0140) stipulates as follows: ‘Denial of reasonable
accommodation ... shall be deemed to be discrimination ...’ (Art. 2(5)).
26
L. Waddington and A.C. Hendriks, 18 International Journal of Comparative Labour
Law and Industrial Relations, 3 (2002), 403.
22
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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 includes all forms of discrimination, including denial of
reasonable accommodation’ (Art. 2). It can thus be concluded that EU law and the
CRPD cover the same five forms of discrimination.
Although implicit, all five forms of discrimination are built on the assumption
that discrimination takes place on one ground and that other protected features
a person may possess are irrelevant when appraising discrimination complaints.
In those – relatively rare – cases where plaintiffs invoke two or more protected
grounds on which they allegedly have been discriminated against, courts, judges
and other tribunals tend to separate these grounds and review each of these
grounds independently to determine whether discrimination has taken place.27
This has fuelled criticism of the single ground approach adopted by the judiciary.28
2.3.
Multiple Discrimination
As mentioned above, discrimination always requires a form of ‘treatment’,
a ‘ground’ and a ‘disadvantage’, falling within the realm of a law prohibiting
discrimination. This holds true for all five of the above discussed forms of
discrimination. Although not explicit in the definitions of discrimination
enshrined in human rights conventions and other legal instruments, establishing
discrimination commonly requires a direct and immediate link between
the detrimental treatment subjected to, and a protected characteristic of the
individual complainant. A – tacit – requirement is that such contested conduct
is directly related to an – or better said: one – particular feature of the victim
that distinguishes him or her from those with the ‘opposite’ feature (e.g. women
versus men) and that the victim of discrimination cannot be held responsible for
the treatment he or she received.29
The term multiple discrimination emerged in the 1980s in response to
dissatisfaction over the equalization of discrimination with the single ground
approach. It was increasingly acknowledged that one feature – e.g. religion –
neither constitutes a person’s identity, nor can it be used as an adequate predictor
with respect to experiences of discrimination. Identities and (any form of)
discrimination can, it was contended, only be understood by taking all relevant
individual, interpersonal and contextual factors into account. Social categories
were thought to intertwine and evolve over time, challenging the idea that
‘identities’ could be equalled with a single characteristic. In fact, everybody has
to a certain extent a unique identity, no matter what actual or perceived group
he or she pertains to. Subsequently, it was maintained that the single ground
approach concealed, instead of revealed, the root causes of unequal treatment and
camouflaged the fact that some people are more vulnerable to discrimination than
See Case No. 1:05-cv-199-RLY-JMS Coffman v. Indianapolis Fire Department, U.S.
Court of Appeals (7th Circuit), judgment of 20 August 2009, not yet reported.
28
S. Fredman, 2 European Anti-Discrimination Law Review (2005), 13 at 14.
29
Koppi v. Austria, Application No. 33001/03, judgment 10 December 2009. Here
the Court took into account that Koppi’s religious community had not applied for
recognition as a religious society.
27
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others.30 In other words, the single ground approach did not reflect social reality
and was only instrumental in combating some forms of discrimination. For victims
of (multiple) discrimination seeking legal redress, it was considered undesirable,
if not alienating, for them to bring forward claims attributing the received
detrimental treatment to distinct, isolated grounds and thus to compartmentalize
their experiences, when they were convinced that the treatment they received was
due to a combination of intrinsically interrelated factors.
In continuation, it was argued that non-discrimination policies and laws should
not be – exclusively or primarily – single ground oriented, given that such an
approach misconceives the reality of those who are the victim of discrimination
on a combination of grounds. It was increasingly felt, and recognized, that the
nature, type and intensity of discrimination was closely related to the number of
overlapping ‘unfavourable’ characteristics, making some people more prone to
discrimination than others. For example, a Hindu woman can be discriminated
against because of her sex, her religion and a combination of the two. In response
the term ‘multiple discrimination’ was coined, a term whose intellectual property
is attributed to Kimberle Crenshaw.31 It is also only by looking at all relevant
individual, interpersonal and contextual factors that one can understand why
persons, seemingly having the same ‘identity’ – let’s say Muslim or male – are
treated differently by the same employer. The employer might, for example,
very much want to employ a Muslim woman but not a Muslim man, distinguish
between female candidates wearing a headscarf and those who do not, or
differentiate on the basis of language skills, place of birth, age or with respect
to the Islamic denomination the person belongs to. In addition, interpersonal
factors such as ‘recognition’ and ‘sympathy’, as well as contextual factors such
as the homogeneity or heterogeneity of the existing workforce may influence
the outcome of a decision. Not taking these aspects into account makes it very
difficult to judge whether religion is the or one of the grounds on which a rejected
candidate has been discriminated against or has had no influence whatsoever on
this decision. It should be emphasized here that taking individual, interpersonal
and contextual factors into account is not only essential to understand and rebut
multiple discrimination, but any form of discrimination.
In 2001, the term ‘multiple discrimination’ was first enunciated by the United
Nations at the occasion of the Durban World Conference Against Racism,
Racial Discrimination and Related Intolerance.32 Since then, this term has been
reiterated by such international and European bodies as the UN Committee on
the Elimination of Racial Discrimination (CERD),33 the UN Committee on the
Combahee River Collective, ‘A Black Feminist Statement’, in Cherrie Moraga and
Gloria Anzaldúa (eds.), This Bridge Called My Back. Writings by Radical Women of
Color, (Persephone Press, 1981), 210.
31
K. Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and
Violence Against Women’, 43 Stanford Law Review 6 (1991), 1241.
32
T. Makkonen, Multiple, Compound and Intersectional Discrimination: Bringing the
experiences of the most marginalized to the core, (Institute for Human Rights, Åbo
Akademi University, 2002).
33
See e.g. CERD, General Recommendation No. 30 (2004), Discrimination Against
Non Citizens, UN Doc CERD/C/GC/30.
30
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Elimination of All Forms of Discrimination against Women (CEDAW),34 the
European Commission against Racism and Intolerance (ECRI)35 and the European
Commission.36 Following the adoption of the CRPD, on 13 December 2006, the
UN Committee on Economic, Social and Cultural Rights explicitly recognized
the term multiple discrimination in its general comment on non-discrimination.37
According to the Committee ‘Some individuals or groups of individuals face
discrimination on more than one of the prohibited grounds … Such cumulative
discrimination has a unique and specific impact on individuals and merits
particular consideration and remedying.’38 This is not to deny that international,
European and national (inter)governmental and (quasi) judicial bodies seemingly
prefer to avoid this term, and rather speak about ‘particularly vulnerable’ persons.
This term is also used as a synonym for (single ground) non-dominant societal
groups, such as women, ethnic, religious and sexual minorities, young and elderly
persons. In other words, by referring to ‘particularly vulnerable’ persons and
groups, the reality of multiple discrimination remains largely concealed.
Over the course of years, the term multiple discrimination has been elaborated
upon by various scholars. More terms were developed to refer to situations in
which individuals were being discriminated against because of a combination of
protected grounds or of ‘mixed’ identities.39
The terms ‘compound’, ‘concurrent’ and ‘aggravated’ discrimination are
sometimes used to describe situations in which one or more protected grounds
add to discrimination on another ground(s). Compound discrimination might
arise where selection criteria exclude persons on various grounds, e.g. ‘married
man’ (excluding women, single persons and – in countries not recognizing gay
marriage – homosexuals40) or ‘having completed military service’ (in many
countries reserved for non-disabled men within a certain age range41). Compound
discrimination may also take place in case a heterosexual man is not allowed to
become a member of a lesbian motorbike club, at least as long as we recognize that
members of the dominant groups can be discriminated against also. Compound
discrimination can therefore be defined as discrimination on more than one
ground, each ground leading to discrimination on its own.
See e.g. CEDAW, General recommendation No. 25 (2004), Article 4, paragraph 1, of
the Convention on the Elimination of All Forms of Discrimination against Women,
on temporary special measures, UN Doc CEDAW/C/GR/25.
35
See e.g. ECRI report on Hungary (fourth monitoring cycle), 24 February 2009,
http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Hungary/HUNCbC-IV-2009-003-ENG.pdf.
36
H. Bielefeldt, Tackling Multiple Discrimination. Practices, policies and laws, (Office
for the Official Publications of the European Communities, 2007).
37
CESCR, General Comment No. 20 (2009), Non-Discrimination in Economic, Social
and Cultural Rights, UN Doc E/C.12/GC/20.
38
Idem, para. 17.
39
T. Makkonen, Multiple, Compound and Intersectional Discrimination, 12-13 and
J. Gerards, ‘Discrimination Grounds’, in D. Schiek, L. Waddington and M. Bell
(eds.), Cases, Materials and Text on National, Supranational and International
Non-Discrimination Law, (Hart Publishing, 2007), 33 at 170.
40
Case 267/06 Maruko v. Versorgungsanstalt der deutschen Bühnen [2008] ECR I-1757.
41
Glor v. Schwitzerland, Application No. 13444/04, judgment 30 April 2009.
34
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The term ‘intersectional discrimination’ emerged to refer to situations where
discrimination results from a unique mixture of grounds in a given context.
Intersectional discrimination thus exemplifies the reality in which two or more
protected grounds can interact concurrently, cumulatively or otherwise cross-cut
to constitute a new – real or perceived – ‘identity’. The forced sterilization of
Roma women is an example of intersectional discrimination. Policies of forced
sterilization against Roma women can only be truly understood by looking
at the combination of sex and ethnicity.42 Other examples of intersectional
discrimination may occur in case of the denial of a job to a Muslim woman with
a headscarf, or the refusal to allow a blind lesbian to become a foster parent.
In both cases, the rejected women might have had a fair chance if they were
either only Muslim or only wearing a headscarf, or respectively only lesbian or
only blind. It is the combination of these ‘unfavourable’ and visible features that
make these women face (more) discrimination than others. Different from cases
of compound discrimination, in situations of intersectional discrimination the
discriminatory aspect of the conduct can only be understood by considering the
combination of protected grounds at stake – not by a separate analysis of each of
the grounds.
It can thus be concluded that the concept of multiple discrimination has been
officially recognized in the CRPD and by the UN Committee on Economic, Social
and Cultural Rights, in response to studies demonstrating that discrimination
does not always take place on just one protected ground. So far, the CRPD is the
only international legally binding instrument which includes a reference to this
concept. This paper has described different categories of multiple discrimination.
In the rest of this contribution I will use the term multiple discrimination as a
blanket term, encompassing both compound and intersectional discrimination,
and consider whether EU non-discrimination law should incorporate a norm akin
to the prohibition on multiple discrimination as laid down in the CRPD.
3.Disability and Multiple Discrimination
‘Disability’ – a term heavily debated amongst scholars and activists, but used here
in the absence of a better alternative – is, after years of neglect, nowadays commonly
considered a human characteristic deserving protection from discrimination. As
with other features protected by human rights and non-discrimination law, a
‘disability’ or ‘impairment’ is first of all a personal characteristic, not merely a
term describing the reaction of the environment to an individual.43
CEDAW nevertheless studied such a complaint only under the angle of sex
discrimination (CEDAW, A.S. v. Hungary [2006] 4/2004, UN Doc CEDAW/
C/36/D/4/2004), whereas the ECtHR ignores the discriminatory dimension (K.H. et
al. v. Slovakia, Application No. 32881/04, judgment 9 October 2007), or only seems
concerned about discrimination on the basis of race (V.C. v. Slovakia, Application
No. 18968/07, judgment 16 June 2009). See also I.G., M.K. & R.H. v. Slovakia,
Application No. 15966/04, judgment 22 September 2009.
43
A.C. Hendriks, ‘Different Definitions – Same Problem – One Way Out?’, in
M.L. Breslin and S. Yee (eds.), Disability Rights Law and Policy. International and
National Perspectives, (Transnational Publishers, 2002), 195.
42
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It can be argued that the CRPD lacks a clear definition of ‘disability’. In
fact, the CRPD contains merely an illustrative description instead of a precise
designation of ‘persons with disabilities.’44 It is nevertheless clear that this
convention, intentionally or not:
–Is ‘only’ aimed at protecting the rights of people with particular impairments
causing disabilities (instead of the rights of everybody);
–Portrays people with disabilities as people who all encounter similar problems
with respect to the enjoyment and realization of their human rights;
–Acknowledges that some people with disabilities are more vulnerable to
human rights violations than others;
–Attributes differences with respect to vulnerability to such other grounds/
factors as sex (Art. 5), age (Art. 6), lack of mobility (Art. 20) and lack of
education (Art. 24).
All these features of the Convention are relevant when discussing the need to
recognize multiple discrimination as an additional form of discrimination in EU
law. Even though the EU as such is not yet a party to the CRPD45 – a possibility
explicitly left open by the Convention (Art. 44) – the EU cannot ignore its
existence and relevance. The importance of human rights for the EU, notably in
the relations between its citizens and the EU institutions, has increased since the
entering into force of the Treaty of Lisbon on 1 December 2009. Besides that,
most of its Member States have already ratified or have expressed the intention
to ratify the Convention by signing this document. Moreover, by becoming a
State Party to the Convention, these Member States have accepted to ‘ensure and
promote the full realisation’ of all human rights of people with disabilities. These
Member States cannot derogate from this obligation by claiming that they are also
bound by EU law that stipulates otherwise. Instead, accepting the human rights
obligations enshrined in the CRPD entails the States committing themselves to
strive towards the alignment of EU law with the CRPD to the extent necessary to
avoid the CRPD from becoming undermined.
The terms ‘disability’ and ‘persons with disabilities’ only apply to a category
of people who have a disability or are considered as disabled within the meaning
of the Convention. This reflects an asymmetric approach to equality, to the
extent that the CRPD recognizes that people with disabilities are generally more
vulnerable to discrimination and other forms of human rights violations than
non-disabled persons. In this respect, the CRPD differs from most other human
rights treaties and non-discrimination instruments, where the protected group is
formulated in ‘neutral’ terms and the standard of review is the same, independent
of whether the (sub)group in society is likely to encounter discrimination or
not. Terms such as ‘race’, ‘sex’, ‘religion’, ‘age’ and ‘sexual orientation’ protect
‘Persons with disabilities include those who have long-term physical, mental,
intellectual or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with others’
(Art. 1 CRPD).
45
The EC signed the Convention on 30 March 2007. See also Council Decision
2010/48/EC concerning the conclusion, by the European Community, of the United
Nations Convention on the Rights of Persons with Disabilities, [2009] O.J. L.23/35.
44
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people of all races, of all sexes, of all religions, of all ages and of all sexual
orientations against discrimination, whereas the CRPD is designed in such a way
that it exclusively protects the rights of people with disabilities. In this respect,
the CRPD is modelled on the approach adopted by Convention on the Elimination
of All Forms of Discrimination against Women (‘Women’s Convention’, 1979)
and the Convention on the Rights of the Child (‘Children’s Convention’, 1989),
both of which are human rights treaties articulating the rights of a particular
group of people (women and children). The fact than men and adults may face
similar human rights violations does not imply that they can derive rights from
these treaties or successfully claim that they have been discriminated against on
grounds of sex or age.
The disability-specific approach of the CRPD also has implications for the
meaning of this treaty with respect to the prohibition of multiple discrimination:
to the extent that this form of discrimination is forbidden under the CRPD, this
only applies to persons who themselves are, or who are considered by others as
being, disabled. The European Court of Justice, in the famous Coleman case,46
adopted a different view on the designation of the protected group of persons.
The case concerned the voluntary redundancy accepted by Ms. Coleman, the
(non-disabled) mother of a disabled child, who alleged that she had been harassed
and discriminated against by her former employer because of her disabled child.
After her redundancy she lodged a complaint arguing that she had been subject
to unfair constructive dismissal and had been treated less favourably than other
employees because she was the primary carer of a disabled child. This raised
the question whether the prohibition of discrimination, as laid down in EU
law, was confined to people with disabilities. The Court of Justice held that the
purpose of Article 13 EC Treaty and of Directive 2000/78/EC was to combat
all forms of discrimination on grounds of disability, and not just discrimination
against a particular group of people because of their disabilities. The fact that
Directive 2000/78/EC includes provisions exclusively designed to meet the needs
of disabled people does not, according to the Court, lead to the conclusion that
the principle of equal treatment enshrined in that directive must be interpreted
strictly. The Court thus suggests that the focus of non-discrimination law should
be on eradicating discriminatory behaviour and not (just) on offering protection
to people who possess specific characteristics, such as a disability, religion or
belief, age or sexual orientation. Ms. Coleman could subsequently successfully
claim, before the national court, that she was a victim of discrimination based on
disability.
The UN Committee on Economic, Social and Cultural Rights meanwhile
has endorsed this view, holding that ‘Membership [of a group] also includes
association with a group characterized by one of the prohibited grounds (e.g. the
parent of a child with a disability) or perception by others that an individual is
part of such a group ... ’.47 Sympathetic as this interpretation may appear at first
glance, from a conceptual point of view it is – as noticed above – unconvincing
or at best confusing and may undermine the legal position of those most in need
of protection against disability discrimination: namely, people with disabilities.
46
47
Case 303/06 Coleman v. Attridge Law [2008] ECR I-5603.
CESCR, General Comment No. 20 (2009), Non-Discrimination in Economic, Social
and Cultural Rights, UN Doc E/C.12/GC/20, para. 16.
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Even though the CRPD, in Article 2, also contains a reference to ‘discrimination
on the basis of disability’, it is more than clear that this treaty – like the Women’s
Convention and the Children’s Convention – focuses on offering human rights
protection to one specific group: people with disabilities. This is not only
reflected in the title of this treaty (‘Convention on the Rights of Persons with
Disabilities’ instead of ‘Convention on Human Rights and Disability’), but
becomes also very clear from its material provisions. Article 1 of the Convention
states, for example, that its purpose is to ‘promote, protect and ensure … all
human rights by people with disabilities and promote their inherent dignity,’ and
not ‘by people with or without disabilities … and everyone’s dignity’. I therefore
think that the personal scope (ratione personae) of the Convention is – justly –
confined to people who are, or are assumed to be, disabled. Finding, like the
ECJ and its Advocate General Poiares Maduro did in the Coleman case,48 that
the focus of combating disability discrimination should be on discriminatory
behaviour and not so much on protected grounds (although a certain link
towards disability remains relevant), goes contrary to the very meaning of (an
asymmetric approach of) non-discrimination law, which is to protect individuals
from detrimental treatment because of certain actual or perceived ‘unfavourable’
individual characteristics known or perceived as disabilities.49 And whether we
like it or not, disability is considered less favourably than able-bodiedness. The
same holds true, at least in the EU, with regard to women, Muslims, gays and
lesbians and people of colour compared to men, Christians, heterosexuals and
white persons. This – sad – reality also urges us to adopt an asymmetric approach
if we do not want to confuse discrimination with differentiation.50 The fact that
discrimination affects many more people than those who are the primary target
group of discriminatory behaviour does not justify an extension of the personal
scope of non-discrimination law of the nature favoured by the ECJ in Coleman,
despite the fact that the ECJ acknowledges the importance of an association with
disability. However, broadening this scope by including those – no matter how
defined – ‘associated’ with people with disabilities (or with any other protected
ground) may in the end backlash against those most in need of protection and thus
undermine the effectiveness of the norm, since it fails to acknowledge that people
with disabilities themselves are the primary targets of disability discrimination
and that unfavourable treatment experienced by non-disabled persons because of
their association with a disabled persons will always qualitatively be different.
More importantly for our discussion on multiple discrimination is the
misleading suggestion made by the CRPD that people with disabilities constitute
a coherent and identifiable group. Even though the CRPD, at the same time,
recognizes the diversity of disabled people (e.g. (e) under Preamble and Art. 1),
the emphasis is on what people with disabilities share. This is understandable,
because the CRPD would not have any right of existence without a target group
Opinion of the Advocate General, Case 303/06 Coleman v. Attridge Law [2008]
ECR I-5603.
49
A.C. Hendriks, in M.L. Breslin, and S. Yee (eds.), Disability Rights Law and Policy.
International and National Perspectives, 195.
50
A.C. Hendriks, ‘Disabled persons and their right to equal treatment: Allowing
differentiation while ending discrimination’, 1 Health and Human Rights
2 (1995), 152.
48
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to protect, but defining the group of disabled people as ‘similar’ and ‘dissimilar’
in one and the same document is at least confusing.
In any case, what have people with a disability in common? And what are
the limits of the personal scope of the CRPD? The CRPD is not very clear on
these issues: are the ‘impairments’ people with disabilities have their common
denominator or is it assumed that people with disabilities encounter similar
problems when seeking the enjoyment and realization of their human rights? In
other words, are people with disabilities a ‘minority group’ or are they grouped
together by the same human rights struggle?51
One does not have to be a sociologist to have noticed that people with
disabilities – however defined – are everything but a homogeneous group. What
have a blind gay rights activist in Norway, an institutionalized psychiatric patient
with a Roma background in Moldova, a wheelchair user imprisoned in Spain
because of his active membership of ETA and a single unemployed mother with
intellectual disabilities living in the suburbs of Liverpool in common? Probably
the sole answer to this question is that all four persons are perceived, by their ablebodied peers, as being less able than and deviant from – what able-bodied persons
consider – ‘normal’. The latter may create a sense of solidarity and communality
between the four concerned persons, despite the fact that the nature, type and
degree of their impairments are fundamentally different and all four of them most
likely encounter totally different attitudinal and environmental barriers towards
societal participation and integration. The ties that hold this group together are
therefore rather weak. This is also exemplified by the fact that organizations of
people with disabilities are often disability specific (organization of blind persons,
organization of parents of children with intellectual disabilities etc.) instead of
representing all people with disabilities.
It is precisely these differences, and varying interpersonal and contextual
factors, that explain why some people with disabilities are entitled to social
security benefits and personal assistance, whereas others are not. For the same
reasons, some disabled persons are institutionalized or have a guardian taking
decisions on their behalf, whereas for other people with disabilities there is no
cause whatsoever to consider such measures. It is therefore sometimes rather
difficult for people with impairments to identify themselves with a person with a
‘different’ impairment, who encounters totally dissimilar human rights obstacles.
And what if an employer prefers a deaf employee over an employee with chronic
back pain? Does the decision not to hire the employee with back pain amount to
discrimination because of disability? Or could the employer justly argue that the
decision to hire a deaf employee, who had been unemployed for various years,
instead of person with chronic back pain with a permanent employment contract,
could be labelled as a positive action measure?
It follows that both the minority group model and the human rights model
have strong and weak points when it comes to explaining why people with
different impairments can and should be considered as constituting members
of one group. Unfortunately, the UN Disability Convention falls short in
recognizing the essential importance of the – actual or perceived – communal
factors and differences within the group of persons labelled as disabled. Personal
51
J.E. Bickenbach, in M. Jones and L.A. Basser Marks (eds.), Disability, Diversability and Legal Change, 101.
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qualifications – such as impairments, but also level of education, social skills and
background – have an impact on the functional (in)dependence of a person in a
given context. When discussing multiple discrimination we should therefore also
look at the individual experiences and perceptions of the person concerned, as
well as the attitudinal and environmental barriers.
4.Disability, other Protected Grounds and the
CRPD Approach Towards Combating Multiple
Discrimination
The concept of multiple discrimination is founded on the idea that a protected
ground may either by itself, or combined with one or more other protected features,
give rise to discrimination. Truly understanding and eventually rebutting multiple
discrimination implies examining the combination of protected grounds in close
conjunction, as if they were inseparable – at least in a given situation.
The CRPD is the first international – and so far only binding – human rights
instrument recognizing that multiple discrimination is a reality affecting people
with disabilities. As mentioned before, the preamble of the CRPD acknowledges
that people with disabilities may face multiple discrimination in combination with
their ‘race, colour, sex, language, religion, political or other opinion, national,
ethnic, indigenous or social origin, property, birth, age or other social status.’
The Convention itself only refers to multiple discrimination on the grounds of
sex or, more precisely, affecting disabled women and disabled girls (Art. 6), while
recognizing the need for awareness-raising measures to pay special attention to
sex and age (Art. 8).
There are at least three reasons why this approach, that seemingly lacks
internal consistency, falls short in offering adequate protection against all forms
of multiple discrimination.
First and as argued above, the ground ‘disability’ is more heterogeneous
than homogeneous. The extent to which people with disabilities are exposed to
(single) disability discrimination is dependent on the nature, type and degree of
their impairments, the visibility of these impairments, as well as the implications
of their impairments in terms of participation and social integration. It is most
likely that the precise character and manifestation of an impairment is a good
predictor for disability discrimination. The same holds true with respect to the
other grounds that may add to disability discrimination. Being disabled and
having (other) features of non-dominant groups (being female or a member of a
racial, ethnic, religious or sexual minority group) may increase the likelihood of
multiple discrimination, whereas having features of dominant groups may – in
the eyes of others – ‘compensate for’ impairments and lead to equal treatment.
Understanding and rebutting multiple discrimination requires, whenever needed,
a critical assessment of the disabilities and other grounds involved.
Second, the CRPD fails to provide clear and convincing reasons why it has
confined the meaning – and therewith the protective function – of ‘multiple
discrimination’ to disability discrimination affecting women and girls. Does this
mean that the CRPD does not offer protection against other forms of multiple
discrimination, such as on grounds of disability and race? And what is the rationale
behind this limitation, that shades pale against the wording of the Preamble of the
CRPD, where it is recognized that multiple discrimination can affect many more
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individuals and groups. And how does this relate to the obligation of States to
undertake awareness-raising measures paying attention to the interrelationship of
disability on the one hand, and sex and age on the other?
Third, multiple discrimination cannot be studied in isolation, but should
always take interpersonal and contextual factors into account. The CRPD does
not offer guidance as to how to do this, but is very much focused on the personal
dimension (‘ground’) of discrimination, thereby following the medical model of
disability instead of the social.
5.Current Protection Offered by EU Law Against
Multiple Discrimination
It follows from the above that the CRPD is, at least until now, the only international
legally binding instrument explicitly prohibiting multiple discrimination with
respect to disabled women and disabled girls. The term multiple discrimination
has, so far, not been recognized under EU law. The Charter of Fundamental
Rights, that became legally binding for the EU as of 1 December 2009, does not
bring any change in this situation either. Whereas it is true that Article 21 (1) of the
Charter extends protection against discrimination to more grounds (‘such as sex,
race, colour, ethnic or social origin, genetic features, language, religion or belief,
political or any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation’), the assumption is still that discrimination
takes place because of one specific ground (embodied by the word ‘or’), and not
a combination of grounds (‘and’).
Does this mean that discrimination on a combination of protected grounds
– be it ‘compound’ or ‘intersectional’ discrimination – is not prohibited under
EU law?
At present, EU law inhibits the recognition of multiple discrimination
by courts, national legislatures and policy makers, or at least intersectional
discrimination, as a new form of discrimination. This is a result of its very
structure.52 Within the scope of application of EU law Article 18 of the Treaty
on the Functioning of the European Union (TFEU)53 prohibits discrimination
on the ground of – and restricted to – nationality. At the same time Article 157
TFEU54 prohibits discrimination because of sex in relation to certain aspects of
employment and occupation. Both provisions have no overlap whatsoever with
respect to their material scope, thus ruling out the possibility of recognizing
multiple discrimination on these two grounds. However, EU law offers more
possibilities for prohibiting discrimination. Article 19 TFEU55 entitles the Council
of Ministers to take measures to combat discrimination based on sex, racial or
ethnic origin, religion or belief, disability, age or sexual orientation within the
limits of the powers conferred on the Council by the Treaty.
A. Brigola, Das System der EG-Grundfreiheiten: Vom Diskriminierungsverbot zum
spezifischen Beschränkungsverbot, (Verlag C.H. Beck, 2004).
53
Before 1 December 2009: Article 12 of the Treaty establishing the European
Community (EC).
54
Formerly Article 141 EC.
55
Formerly Article 13 EC.
52
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These provisions, and the Directives based on them, thus have a different
material and personal scope. Multiple discrimination crossing these material
or personal restrictions is therefore rarely recognized, let alone considered as
a special form of discrimination under EU law. In addition, of the five forms of
discrimination mentioned above – direct and indirect discrimination, harassment,
an instruction to discrimination and the failure to provide a reasonable
accommodation – only direct and indirect discrimination are prohibited by
EU law with respect to all protected ground in all areas covered by EU law
(harassment and an instruction to discriminate have not been recognized with
respect to (EU-)nationality; ‘reasonable accommodation’ is recognized only
with respect to disability). This implies that a multiple discrimination claim
with respect to a failure to provide a reasonable accommodation by definition
cannot yield any success, whereas multiple discrimination claims invoking
harassment or an instruction to discriminate cannot be considered with respect
to certain ground combinations and in certain areas. The fact that the prohibition
of nationality discrimination has a slightly different historical and instrumental
background (and is less focused on protecting human dignity) than the prohibition
of discrimination with respect to the other, primarily human rights law inspired
grounds does not, in my view, justify that these type of different normative
standards continue to exist.
The situation becomes even more complex given that the various nondiscrimination directives contain ground specific exceptions and justifications.
Without exaggeration it can be said that EU non-discrimination law is a patchwork
lacking an easily accessible manual on how to use it.
However, this is not to suggest that EU law cannot be invoked to prohibit cases
of multiple discrimination altogether. First, it should be recalled that the ECJ, as
early as 1974, recognized that ‘the rules regarding equality of treatment … forbid
not only overt discrimination by reason of nationality but also all covert forms of
discrimination which, by the application of other criteria of differentiation, lead
in fact to the same result’.56 On the basis of this line of reasoning, the concept of
indirect discrimination developed as a separate entity under EU law. This is a
concept that can be used to tackle certain forms of multiple discrimination. To
give an example, salary and pension rights are often dependent on experience
and age. These seemingly neutral criteria may adversely affect women who – due
to pregnancy and childrearing years – may fall behind when it comes to work
experience. These criteria may also be detrimental to disabled workers, who often
encounter delays in finishing their education. Besides indirect discrimination
on grounds of sex and disability, these criteria may also constitute a form of
age discrimination given that direct reference is made to age. The use of these
criteria can therefore be challenged on various grounds, and in theory also on a
combination of grounds. So far, however, national courts have asked the ECJ only
to review such cases from a single ground perspective.57
The ECJ has also recognized that a distinction made on criteria inseparably
linked to a protected ground, such as pregnancy or transsexualism, can also
Case 152/73 Sotgiu v. Deutsche Bundespost [1974] ECR 153.
See e.g. Case 88/08 Hütter v. Technische Universität Graz, Judgment of 18 June
2009, not yet reported.
56
57
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constitute a form of (direct) discrimination.58 This is despite the fact that not all
women become pregnant and that transsexualism is a relatively rare condition. In
addition, the protection offered by EU law does not cease to exist if a person has
been discriminated against on the basis of a combination of grounds. In the above
mentioned case of Coleman, it is not unlikely that the treatment Ms. Coleman
received could also – or mainly – be explained with reference to her sex (her
status as a mother) and not only as a person who was, according to the ECJ,
associated with a disabled person. It could be argued that the same holds true with
the case of Feryn. This case concerned an employer in Belgium who had publicly
stated that he would not hire mechanics with a certain ethnic background since
that would be contrary to the wishes of his clients. His clients allegedly did not
want such mechanics to come to their houses. As an entrepreneur doing business
he had to comply with such wishes. The Court qualified this statement as direct
discrimination on the ground of racial or ethnic origin in respect of recruitment.59
Much as this decision is in line with the object and purpose of the Racial Equality
Directive (2000/43/EC),60 it could be maintained that the Court was dealing in
this instance with a typical case of multiple discrimination. When the employer
made his statement, probably everybody assumed that he referred to male, ablebodied mechanics within a certain age range, let us say 18-45 year. Assuming that
the statement of the employer reflected the wishes of – at least part of – his clients,
would his clients – and he himself – have acted as negatively when a female,
disabled or elderly mechanic of a certain ethnic background applied for work?
I am not so sure at all about this. Whereas in this case, the ground racial or ethnic
origin was decisive for the statements made, this ground did not stand on itself,
but should have been seen in close conjunction with other protected grounds.
Although the protection offered by EU law against discrimination is not
necessarily confined to discrimination on a single ground, the preliminary
rulings of the European Court of Justice all concern requests for single ground
judgments. It is hoped that national courts will also refer requests for preliminary
rulings with regard to multiple discrimination. Even though such judgments
still have to materialize, it can already be concluded that the protection offered
against typical forms of multiple discrimination, and particularly intersectional
discrimination, is rather weak. The reasons for this are the mutually exclusive
personal and material scopes of various non-discrimination provisions and
directives, hampering the review of a combination of grounds; a focus of nondiscrimination law on personal grounds instead of combining this outlook with
an assessment of interpersonal and contextual factors; single ground specific
exceptions and justifications for detrimental treatment; and, last but not least, the
absence of a multiple discrimination provision in EU non-discrimination law, as
a result of which national legislatures, policy makers and courts are not alerted to
the possibility of multiple discrimination.
Case 177/88 Dekker v. VJV-Centrum [1990] ECR I-3941 and Case 13/94 P. v. S. And
Cornwall County Council [1996] ECR I-2143.
59
Case 54/07 Feryn v. Centrum voor gelijke kansen en voor racismebestrijding [2008]
ECR I-5187.
60
Directive 2000/43/EC, implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, [2000] O.J. L180/22.
58
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6.Discussion and Conclusions
In this article I have argued that discrimination is an utterly complex concept,
affecting individuals, groups and our societies at large. Discrimination has been
defined here as a form of detrimental treatment based on one or more actual
or perceived personal characteristics closely related to human dignity, such
as disability. Against this background I object to the extension of the circle
of protected individuals to include people associated with individuals with
a protected ground, such as parents of a disabled child, as was decided by the
European Court of Justice in the case of Coleman,61 and favoured by the UN
Committee on Economic, Social and Cultural Rights.
This is not to suggest that discrimination can only be understood and rebutted
by focusing on the ground that has most explicitly been used to categorize or
otherwise distinguish a human being. In the first place, it should be noticed that
discrimination is conduct in response to a combination of grounds, be it compound
or intersectional, some of which may strengthen discriminatory reactions,
whereas others may ‘compensate for’ each other. In the second place, a ground
specific perspective runs the risk of failing to acknowledge that interpersonal and
contextual factors are crucially important to understanding why some persons, in
a given situation, are discriminated against whereas others are not. These insights
advance the notion that non-discrimination law should embrace a more integrated
approach, focused on discovering the combination of grounds that give rise to
discriminatory forms of treatment and taking into account interpersonal and
contextual factors.
The UN Disability Convention is the first – and so far the only – international
legally binding instrument recognizing and offering protection against multiple
discrimination. Despite this groundbreaking approach, the relevant CRPD
provisions were criticized above. It is not clear why the protection offered by the
CRPD against multiple discrimination confines itself to the grounds disability and
sex – or more precisely disabled women and disabled girls. Moreover, the CRPD
above all portrays disabled persons as a coherent group, as if discrimination does
not take place amongst and between people with disabilities depending on the
nature, type and degree of their impairments, the visibility of these impairments,
as well as the implications of their impairments in terms of participation and
social integration.
Having established that multiple discrimination is a reality, also in Europe,
and not confined to people with disabilities, it was concluded that EU nondiscrimination law offers, at best, scattered protection against this form of
discrimination. This deficiency cannot just be overcome by inserting a reference to
multiple discrimination in the Treaty or the EU directives on non-discrimination,
be it alone that the standards set by the CRPD have been criticized here. As
long as EU non-discrimination law is basically pieced together from different
Treaty provisions and various – mostly ground specific – directives, each of them
with their own personal and material scopes, definitions of discrimination and
ground specific exceptions and justifications, the protection against multiple
discrimination offered by EU law is at best weak. This is not to say that EU nondiscrimination law cannot gain strength and become more effective by explicitly
61
Case 303/06 Coleman v. Attridge Law, Steve Law [2008] ECR I-5603.
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embracing the concept of multiple discrimination. Yet, before amending EU
non-discrimination law accordingly, and modelling it on the CRPD, it is equally
important to harmonize the personal and material scopes of existing and future
EU non-discrimination instruments, the five different forms of discrimination
and the exceptions to and justifications for differential treatment, recognize that
interpersonal and contextual factors are crucially important to understanding
discriminatory treatment and acknowledge that disabled persons are individuals,
all with different impairments and experiences with respect to attitudinal and
environmental barriers, as well as the enjoyment and realization of their human
rights. Discrimination, including multiple discrimination, can only be effectively
combated by a comprehensive approach, taking all these elements into account.
This requires more that the copying of a few provisions from the CRPD, but a
fundamental reform of EU non-discrimination law, not taking the lowest common
denominator as a starting point, but building a comprehensive non-discrimination
framework emphasizing the communalities between the various grounds and
risks of multiple discrimination, acknowledging the need for uniform norms and
exceptions, and designing a standard of review that is easy to apply and allowing
its outcomes to be easy to predict.
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