Discrimination on the basis of disability

1. Discriminationon 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 • 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. multiple discrimination Forms of discrimination

4. 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 othersof 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

5. 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

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

7. Reasonable accommodationObjective Reasonableness Test • Elements • Confidentiality • Interactive dialogue • Objective justification

8. Reasonableaccommodation Confidentiality • Confidentiality should be ensured throughout the process • Disclosure of accommodation needs must be up to the individual concerned

9. Reasonable accommodation Interactive Dialogue • The duty bearer and the right holder should engage in an interactive dialogue in order to identify the necessary accommodation • 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

10. Reasonable accommodationObjective Resonableness Test • Objective Justification • The duty-bearer can deny a reasonable accommodation without incurring discrimination on the basis of disability by demonstrating that either it is not: • Feasible (legally or in practice) • Relevant (“necessary” and “appropriate”), or • Proportional (“disproportionate or undue burden”) • The factors must be clear, objectively measureable and neither vague nor ambiguous • This is to avoid arbitrariness and prevent discrimination

11. ReasonableaccommodationObjective justification Feasible • Cannot breach the law • A requested party can only provide accommodations that exist and are available

12. Reasonable accommodationObjective justification • Relevant • 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 accommodationObjective justification • Proportional • Assessment of the relationship between the: • Means employed – time, cost, duration and impact AND • The aim – which is the enjoyment of the right concerned • Financial feasibility: • Focuses on the possible financial options for the requested party • Economic feasibility: • Looks at the overall assets rather than the cash flow alone

15. Discrimination on the basis of disability Social and cultural life Segregatededucation Forcedmedicaltreatment Exclusion from the community Inaccessible environments Negative attitudes Civil life Denial of legalcapacity Forcedinstitutionalization Forcedsterilization Political life Denial of the right to vote Economic life Denial of reasonable accommodation Denial of propertyrights

16. 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.

17. Whoisresponsible? Privatesector Communitymembers, families Awareness-raising Training Laws and policies States Individual Research Resource allocation Inclusive services Remedy

18. Resources • Convention on the Rights of Persons with Disabilities • Equality and non-discrimination under article 5 of the Convention on the Rights of Persons with Disabilities; Report of the Office of the United Nations High Commissioner for Human Rights (2016) • Promoting diversity and inclusion through workplace adjustments: A practical guide; ILO (2016) • Committee on the Rights of Persons with Disabilities, General Comment on article 5 on equality and non-discrimination (draft) • Committee on the Rights of Persons with Disabilities, General Comment on article 6 on women and girls with disabilities