How to Address Disability Discrimination in an Article 13 EC Directive?

Professor Lisa WaddingtonEDF Chair in European Disability Law

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Three Core Principles should guide the EC institutions when proposing and adopting any Directive which addresses disability discrimination:

1. Any new Directive should meet the standards set in the UN Convention on the Rights of Persons with Disabilities with regard to combating discrimination.

2. Any new Directive should explicitly be based on the social model of disability.

3. Any new Directive should take as its starting point existing EC legislation addressing discrimination.

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What should be the content of any Directive which addresses disability discrimination?

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How should discrimination be defined? (1)

• Direct discrimination, indirect discrimination, harassment and instruction to discriminate.

• An unjustified failure to make a reasonable accommodation should be explicitly defined as a form of discrimination.

• The reasonable accommodation requirement should be based on an anticipatory obligation to provide an accommodation.

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How should discrimination be defined? (2)

The duty is anticipatory in that covered parties are required to have anticipated the needs of disabled consumers in advance and made their services accessible in advance.

• A failure to provide accessibility should be defined as a form of discrimination.

• The provision of services which impede independence, social and occupational integration and participation in the life of the community should be defined as a form of discrimination.

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What fields should the Directive cover? (1)

Starting points:

• The UN Convention on the Rights of Persons with Disabilities

• Fields covered by the Racial Equality Directive (Art. 3): – social protection, including social security– healthcare– social advantages– education– goods and services available to the public

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What fields should the Directive cover? (2)

• In addition, any Art. 13 directive addressing disability discrimination should cover fields that are specifically relevant in the context of disability.

• Key issue = accessibility.

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How should the directive address accessibility issues? (1)

General issues relating to accessibility

• The directive should provide guidance on what is meant by “accessibility”.

Inspiration can be drawn from Article 9(1) of the UN Convention– involves the identification and elimination of

obstacles and barriers and prevention of new barriers that hamper access, on an equal basis with others, of persons with disabilities

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How should the directive address accessibility issues? (2)

• Failure to provide accessibility should be regarded as a form of discrimination

• The requirements should only apply in as far as the fields fall within the scope of EC law

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In what fields should accessibility be addressed?• Access to information and procedures

• Access to the physical infrastructure:(a) public or private entities that offer facilities and services

which are open or provided to the public(b) buildings where services to the public are provided(c) public transport(d) public spaces(e) buildings which are places of employment or vocational

training(f) all telecommunications, information and communications

technologies(g) housing developments(h) emergency and evacuation facilities(i) elections

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What standards should be set with regard to establish accessibility?

• Member States and covered parties should be presumed to be in compliance with the accessibility requirements, when accessibility is provided in accordance with current and future European standards, codes of practice, the state of the art, and reasonable consumer expectations.

• Directive should require Member States to provide for an independent body to monitor compliance with the established accessibility standards.

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Other issues which should be addressed in any Directive which addresses disability discrimination? (1)

• provide guidance on who is protected from discrimination on the grounds of disability – drawing explicitly on the social model

• pay specific attention to education• provide for a wide scope for positive action in favour

of people with disabilities• provide for the involvement of representative

organisations of people with disabilities in different ways

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Other issues which should be addressed in any Directive which addresses disability discrimination? (2)

• address multiple discrimination• provide for the dissemination of info. on non-

discrimination law in disability accessible formats• provide for a body for the promotion of equal

treatment