Measures to combat discrimination

The CRPD requires State parties to take measures to eliminate disability discrimination, whether direct or indirect. For instance, State parties must ensure that their laws do not specifically exclude persons with disabilities, such as in accessing education (direct discrimination). States must also ensure that persons with disabilities are not indirectly excluded, such as in failing to provide schools that are physically accessible to students with physical disabilities (indirect discrimination). Accordingly, the CRPD prohibits discrimination that has the purpose or effect of denying persons with disabilities access to their human rights.

Importantly, the CRPD makes clear that the failure to provide reasonable accommodation to persons with disabilities is disability discrimination. Beyond reasonable accommodation provided for an individual with a disability, the CRPD also requires States to put in place measures that will support equality for persons with disabilities. Such measures could include for example, police training on accommodating persons with disabilities or the adoption of a national action plan to retrofit physically inaccessible government offices.

Country Checkpoint

Are persons with disabilities protected from discrimination on the basis of disability in the legal framework in your country?

 

Legislative Highlights – An Example

Right to equal protection and benefit of the law. Constitution of South Africa, Chapter 2, Bill of Rights, Section 9: Equality

  1. Right to equal protection and benefit of the law.
  2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
  3. The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
  4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
  5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Equality and Freedom from Discrimination

  1. All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
  2. Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.
  3. For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.
  4. Nothing in this article shall prevent Parliament from enacting laws that are necessary for:
    • implementing policies and programmes aimed at redressing social, economic or educational or other imbalance in society; or
    • making such provision as is required or authorised to be made under this Constitution; or
    • providing for any matter acceptable and demonstrably justified in a free and democratic society.
  5. Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Constitution.

Good Practices in the Constitutions of some Countries

The following are some good examples in the constitution of some countries promoting and realizing the rights of persons with disabilities in conformity with the CRPD (in the areas of civil, social (education & health), economic, political, general equality and non-discrimination):

  1. Dominican Republic (Constitution 2010, art. 39 (Right to equality)) states: “Persons are born free and equal before the law, they receive the same protection and treatment from the institutions, authorities and other persons and enjoy the same rights, freedoms and opportunities, without any discrimination for reasons of gender, color, age, disability….” (Source: constituteproject.org). www.constituteproject.org › constitution › Dominican
  2. Bolivia (Plurinational State of)'s Constitution of 2009, art. 85): The constitution promotes and guarantees the educational rights for children and adolescents with disabilities. “The State shall promote and guarantee the continuing education of children and adolescents with disabilities, or of those with extraordinary talents in learning, under the same structure, principles and values of the educational system, and shall establish a special organization and development curriculum.” (Source: constituteproject.org) www.constituteproject.org › constitution › Bolivia
  3. Ecuador's Constitution of 2008 (rev. 2021) Article 47: also guarantees free health care services for persons with disabilities. “Persons with disabilities are recognized the following rights:1. Specialized attention in public and private entities that provide healthcare services for their specific needs, which shall include the free provision of medicines, especially for those persons that require lifetime treatment; 2. Integral rehabilitation and permanent assistance, which shall include the corresponding technical aids 9. Free psychological care for persons with disabilities and their families, in particular in the case of intellectual disabilities.” (Source: constituteproject.org) constituteproject.org › constitution › Ecuador_2021
  4. Montenegro (Constitution of 2007, rev. 2013, art. 69, Health protection): The Constitution guarantees free health care services for persons with disabilities: “Everyone shall have the right to health protection. A child, a pregnant woman, an elderly person, and a person with disability shall have the right to health protection from public revenues…” (Source: constituteproject.org) www.constituteproject.org › constitution
  5. El Salvador (Constitution of 1983 with Amendments through 2014, art.37): “The State shall employ all resources that are in its reach to provide employment to manual or intellectual workers, and to ensure him and his family the economic conditions for a dignified existence. In the same form, it shall promote the work and the employment of people with physical, mental or social limitations or disabilities.” www.constituteproject.org › constitution › El
  6. Venezuela (Bolivarian Republic of)'s Constitution of 1999, rev. 2009, art. 81) guarantees the right to work to persons with disabilities. It states “Any person with disability or special needs has the right to the full and autonomous exercise of his or her abilities and to its integration into the family and community. The State, with the joint participation of families and society, guarantees them respect for their human dignity, equality of opportunity and satisfactory working conditions, and shall promote their training, education and access to employment appropriate to their condition, in accordance with law.” (Source: constituteproject.org). www.constituteproject.org › constitution › Venezuela
  7. Bulgaria (Constitution of 1991, rev. 2007, art.48): The Constitution accords the rights to work to safe work environment and to equal renumeration to all citizens including persons with disabilities. Article 48 states “…2. The State shall create conditions conducive to the exercising of the right to work by the physically or mentally handicapped. 3. Everyone shall be free to choose an occupation and place of work. 4. No one shall be compelled to do forced labour. 5. Workers and employees shall be entitled to healthy and non-hazardous working conditions, to guaranteed minimum pay and remuneration for the actual work performed, and to rest and leave, in accordance with conditions and procedures established by law.” www.constituteproject.org › constitution › Bulgaria
  8. Malawi (Constitution of 1994, rev. 2017, art.31.Labour): guarantees every person the right to fair and safe labour practices, right to join trade unions, and right to fair wages and fair renumeration. Persons with disabilities are prohibited from being discriminated upon and are entitled to equal pay for equal work like everyone else: “…Every person shall be entitled to fair wages and equal remuneration for work of equal value without distinction or discrimination of any kind, in particular on basis of gender, disability or race.” www.constitutepíoject.oíg › constitution › Malawi
  9. Fiji (Constitution of 7 Sept. 2013, art. 26, 42): Article 26 prohibits discrimination against persons with disabilities, and Article 42 guarantees the following rights to them: “1. A person with any disability has the right-(a). to reasonable access to all places, public transport and information; (b). to use sign language, Braille or other appropriate means of communication; and (c). to reasonable access to necessary materials, substances and devices relating to the person's disability. 2. A person with any disability has the right to reasonable adaptation of buildings, infrastructure, vehicles, working arrangements, rules, practices or procedures, to enable their full participation in society and the effective realisation of their rights.” ww.constituteproject.org › constitution › Fiji_2013
  10. Uganda (Constitution of, 8 Oct. 1995, rev. 2017, art. 59. Right to vote): Persons with disabilities have the right to vote in Uganda, and the parliament is responsible for facilitating the process for them. Article 59 of the Ugandan Constitution states: “1. Every citizen of Uganda of eighteen years of age or above, has a right to vote; 2. It is the duty of every citizen of Uganda of eighteen years of age or above, to register as a voter for public elections and referenda; 3. The State shall take all necessary steps to ensure that all citizens qualified to vote, register and exercise their right to vote; and 4. Parliament shall make laws to provide for the facilitation of citizens with disabilities to register and vote”.  www.constitutepíoject.oíg › constitution › Uganda