Discrimination
on the basis of disability
Module 5
Objective

Module flow
Understand how
discrimination on the basis of
disability manifests itself

Group activity – the power walk

Forms of discrimination

Recognize different forms of
discrimination against persons
with disabilities

Non-discrimination in the
Convention

Understand the link between
non-discrimination and
equality

Reasonable accommodation

Examples of discrimination on the
basis of disability

Specific measures to promote
equality

Who’s responsible?

Understand who is
responsible for combating
discrimination and what
measures they should take
Thinking about discrimination
The power walk
Forms of discrimination
indirect
discrimination
?
right based
discrimination
?
in fact
discrimination
direct
discrimination
systemic
discrimination
multiple
discrimination
Discrimination on the basis of disability
Any distinction, exclusion or restriction
on the basis of disability
which has the purpose or effect
of impairing or nullifying
the recognition, enjoyment or exercise
on an equal basis with others
of all human rights and fundamental freedoms
in the political, economic, social, cultural, civil
or any other field.
It encompasses all forms of discrimination,
including denial of reasonable
accommodation
Reasonable accommodation
Necessary and appropriate modification and
adjustments not imposing a
disproportionate or undue burden, where
needed in a particular case, to ensure to
persons with disabilities the enjoyment or
exercise on an equal basis with others of all
human rights and fundamental freedoms
Reasonable accommodation
Elements
•
Is of immediate realization
•
Applies in individual cases
•
Applies upon request of a person with disability
•
Implies an objective reasonableness test
Reasonable accommodation
Objective reasonableness test
Elements
•
Undue burden
•
Interactive dialogue
•
Objective justification
• Relevant
• Proportional
• Possible
• Financially feasible
• Economically feasible
Reasonable accommodation
Undue burden
•
The request of accommodation must be addressed
to the duty bearer
•
The obligation should be established in law or
regulation
•
Law or regulations should identify the duty bearer
to avoid establishing such burden on the right
holder
Reasonable accommodation
Interactive dialogue
•
The duty-bearer and the right holder should
engage in an interactive dialogue in order to
identify the necessary accommodations
•
If there is agreement among them, the
accommodation is provided and the process ends
•
If there is no agreement, the duty bearer must
prove the objective justification to avoid
responsibility on the basis of discrimination
Reasonable accommodation
Objective justification
•
The duty-bearer must prove that at least one of
the objective criteria were not met to avoid
responsibility for discrimination on the basis of
disability
•
•
•
•
•
Relevance
Proportional
Possible
Financially feasible
Economically feasible
Reasonable accommodation
Objective justification
Relevance
•
•
•
The accommodation must be relevant to its
purpose
The duty-bearer must prove that the
accommodation requested was irrelevant
for the effective realization of the right
concerned
Particular attention should be paid in
inclusive education and employment
accommodations
Reasonable accommodation
Objective justification
Proportional
•
•
•
The accommodation must be proportional to
its purpose in terms of time, costs, duration,
and impact in the realization of the right.
The duty-bearer must prove that the
accommodation requested was
disproportional for the effective realization
of the right concerned
Proportionality should be construed on
objective criteria and cannot be subject to
discretional decisions
Reasonable accommodation
Objective justification
Possible
•
•
•
The accommodation must be possible: it
must exist and it must be available
The duty-bearer must prove that the
accommodation requested does not exist
as a proven method for the effective
realization of the right concerned
The duty-bearer can also prove that the
accommodation exists but is not available
(e.g. a software that cannot be imported
under customs laws)
Reasonable accommodation
Objective justification
Financially feasible
•
•
•
The accommodation must be financially
feasible
The duty-bearer must prove that
exhausted the financial support resources
to provide for the accommodation
requested
This obligation includes public and private
funding
Reasonable accommodation
Objective justification
Economically feasible
•
•
•
The accommodation must be economically
feasible
The duty-bearer must prove that the
implementation of such accommodation
jeopardizes the existence of the duty
bearer or that it substantially jeopardizes
the performance of its core functions
The duty-bearer must consider its overall
assets, and not only the resources of a
unit or a department of its structure
Discrimination on the basis of disability
Civil life
Denial of legal capacity
Forced institutionalization
Forced sterilization
Political life
Denial of the right to vote
Social and cultural life
Segregated education
Forced medical treatment
Exclusion from the community
Inaccessible environments
Negative attitudes
Economic life
Denial of reasonable
accommodation
Denial of property rights
Specific measures
specific measures which are necessary
to accelerate or achieve de facto equality
of persons with disabilities shall not be
considered discrimination under the terms
of the present Convention [art. 5 (4)]
employment in the public sector (art. 27 (1))
individualized support (art. 24 (2) (e))
affirmative action, incentives (art. 27 (1))
measures to establish support framework (art. 12 (3))
etc.
Who is responsible?
Private sector
Awarenessraising
Training
Laws and
policies
States
Research
Individual
Resource
allocation
Inclusive
services
Remedy
Community members,
families
Resources
 Convention on the Rights of Persons with Disabilities
 Human Rights Committee, general comment No. 18
(1989) on non-discrimination
 Committee on Economic, Social and Cultural Rights,
general comment No. 20 (2009) on non-discrimination
in economic, social and cultural rights
 Committee on the Elimination of Discrimination against
Women, general recommendation No. 25 (2004) on
temporary special measures
 Committee on the Elimination of Discrimination against
Women, general recommendation No. 28 (2010) on the
core obligations of States parties under article 2 of
Convention on the Elimination of All Forms of
Discrimination against Women