discrimination on the basis of disability module 5
TRANSCRIPT
Discriminationon the basis of disability
Module 5
Understand how discrimination on the basis of disability manifests itself
Recognize different forms of discrimination against persons with disabilities
Understand the link between non-discrimination and equality
Understand who is responsible for combating discrimination and what measures they should take
Group activity – the power walk
Forms of discrimination
Non-discrimination in the Convention
Reasonable accommodation
Examples of discrimination on the basis of disability
Specific measures to promote equality
Who’s responsible?
Objective Module flow
Thinking about discrimination
The power walk
Forms of discrimination
multiplediscrimination
indirect discrimination ?
right based discrimination
? in fact discrimination
direct discrimination
systemic 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 exerciseon 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 accommodationObjective reasonableness test
Elements• Undue burden
• Interactive dialogue
• Objective justification• Relevant• Proportional• Possible• Financially feasible• Economically feasible
Reasonable accommodationUndue 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 accommodationInteractive 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 accommodationObjective 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 accommodationObjective 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 accommodationObjective 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 accommodationObjective 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 accommodationObjective 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 accommodationObjective 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 lifeDenial of legal capacity
Forced institutionalizationForced sterilization
Political lifeDenial of the right to vote
Social and cultural lifeSegregated education
Forced medical treatmentExclusion from the community
Inaccessible environmentsNegative attitudes
Economic lifeDenial of reasonable
accommodationDenial 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
Community members,families
States
Individual
Laws and policies
Resource allocation
Inclusive services
Awareness-raising
Training
Research
Remedy
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