1. Discrimination on the basis of disability
Module 5

2. Objective
Module flow
Understand how discrimination on the basis of disability manifests itself
Recognize different forms of discrimination against persons with disabilities
Understand the link between non-discrimination and equality
Understand who is responsible for combating discrimination and what measures they should take
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?

3. Thinking about discrimination
The power walk

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

5. 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

6. 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

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

8. Reasonable accommodation Objective reasonableness test
Elements
Undue burden
Interactive dialogue
Objective justification
Relevant
Proportional
Possible
Financially feasible
Economically feasible

9. 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
As the reasonableness test is initiated by the right holder, this right holder has the duty to address its request for accommodation to the adequate duty bearer. The entity requested of accommodation that proves that it is not the duty bearer, or that there is a duty bearer with primary obligations can deny the accommodation without incurring in discrimination on the basis of disability. Law or regulations should define the duty bearer to avoid establishing the burden in the person with disability requesting the accommodation to discover such capacity.

10. 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
The interactive dialogue is natural consequence of the principle of good faith and the recognition of the dignity of the person with disability. Persons with disabilities are experts in their own needs, no one better than themselves can determine what accommodation is the best. By recognizing this, the duty-bearer also allows theirselves to better identify the needs of the person, evaluate resources and avoid acting discriminatorily. If both parties reach to an agreement the process ends. If not the burden of proving that objective criteria was not met, is on the duty-bearer.

11. 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
The Committee on the Rights of Persons with Disabilities has not yet defined the reasonableness objective test in a General Comment. Nevertheless, some of its elements were identified (in general terms) in the analysis of the case Jungelin v. Sweden. Drawing from these elements and those identifiable in comparative law, the abovementioned elements of the objective justification can be identified.

12. 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

13. 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

14. 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)

15. 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
Some accommodations may have a cost. In order to ensure the exercise of the right, the duty-bearer must exhaust funding alternatives in case of not having funds to implement the accommodation.

16. 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
The duty-bearer can prove that by implementing the accommodation it may risk the existence of the entity or the performance of a core function. For instance, a small business in order tob accommodate an employee in a wheelchair may be forced to install an elevator. After evaluating the cost and the financial support its manager might conclude that such accommodation would imply an important burden putting the business in a financial situation that cannot be supported with the regular income of the business, risking its existence.

17. Discrimination on the basis of disability
Social and cultural life
Segregated education
Forced medical treatment
Exclusion from the community
Inaccessible environments
Negative attitudes
Civil life
Denial of legal capacity
Forced institutionalization
Forced sterilization
Political life
Denial of the right to vote
Economic life
Denial of reasonable accommodation
Denial of property rights

18. 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.

19. Who is responsible? Private sector Laws and policies States Individual
Community members,
families
Awareness-raising
Training
Laws and policies
States
Individual
Research
Resource allocation
Remedy
Inclusive services
Slide Three

20. 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