Suggested Indicators for Work and Employment

The right to work and employment is framed in Article 27 of the CRPD:

Article 27 - Work and employment

1. States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia:

   a.Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;

   b.Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment, and the redress of grievances;

   c.Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others;

   d.Enable persons with disabilities to have effective access to general technical and vocational guidance programmes, placement services and vocational and continuing training;

   e.Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment;

   f.Promote opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business;

   g.Employ persons with disabilities in the public sector;

   h.Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;

   i.Ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

   j.Promote the acquisition by persons with disabilities of work experience in the open labour market;

   k.Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities.

2. States Parties shall ensure that persons with disabilities are not held in slavery or in servitude, and are protected, on an equal basis with others, from forced or compulsory labour.

The CRPD recognizes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. According to the CRPD, States Parties are obliged to take appropriate steps, including legislative steps to “safeguard and promote the realization of the right to work” and to prohibit discrimination on the basis of disability in all types and stages of employment including for persons who acquire disabilities through the course of employment. 

The ILO has also adopted a similar approach to protecting the right of persons with disabilities to work and employment. The ILO Discrimination (Employment and Occupation) Convention No. 111 - a fundamental ILO Convention that has been ratified by all four countries covered in this report[1] - requires States to promote equality of opportunity and treatment in respect of employment and occupation with a view to eliminating any discrimination (Article 2). Although the ILO Convention No. 111 does not specifically include disability as a prohibited ground for discrimination (Article 1-1-a), it recognizes that special measures to meet the particular needs of persons for reasons of “disablement” are not deemed to be discrimination against other workers (Article 5-2).[2]

Article 27 divided States’ obligation into four major components: the recognition of the right of persons with disabilities to work, the equality with others that persons with disabilities should enjoy, the safeguard and the promotion of the realization of the right to work, and the guarantee of their human dignity through the freedom from all forms of slavery or forced labour. Legal transposition of those obligations includes: 

• measures related to the recognition of the right, the equality with others and the guarantee of human dignity according to specific standards and,
• promotional measures according to a continuous process of monitoring and evaluation that will serve to redress gaps that interfere on the full enjoyment of the right. 

The Committee on Economic, Social and Cultural Rights (CESCR) identifies a core of three levels of specific legal obligations of the right to just and favourable conditions of work which include:

• Respect level: respect the right by refraining from interfering directly or indirectly with its enjoyment, especially when the State is the employer. Protection level: States should “take measures to ensure that third parties, such as private sector employers and enterprises, do not interfere with the enjoyment of the right to just and favourable conditions of work and comply with their obligations […] and impose sanctions and appropriate penalties on third parties, including adequate reparation, criminal penalties, pecuniary measures such as damages, and administrative measures, in the event of violation of any of the elements of the right”.[3]
• Fulfilment level: States should “adopt the measures necessary to ensure the full realization of the right to just and favourable conditions of work”[4], such as “measures to assist workers by according sufficient recognition of the right through laws, policies and regulations” and “introduce quotas or other temporary special measures to enable […] groups that have experienced discrimination to reach high-level posts and provide incentives for the private sector to do so” and should establish system of monitoring and evaluation that could “periodically review the impact of laws and policies, in consultation with workers and employers, with a view to updating standards in the light of practice”.[5]

1. Identification of the attributes of the right to employment

In its analysis of the CRPD provisions related to the right to work for persons with disabilities, CmRPD considers that “persons with disabilities cannot effectively enjoy their work and employment rights, as described in article 27 of the Convention, if the workplace itself is not accessible”.[6] They require “specific measures to enjoy the right to just and favourable conditions of work on an equal basis with others”.[7] The access should be reliable to various aspect of work. OHCHR identifies five main attributes that guide the implementation of the right to work for persons with disabilities as framed by CRPD Article 27:[8]

• The right to access employment in the open labor market, which requires equality of opportunities in the access to, retention of and advancement in all forms of employment including sheltered or supported employment (Article 27-1-a);
• Non-discrimination in work and employment, which requires states to take measures to protect persons with disabilities from discrimination in all aspects of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions;
• Accessibility, which is an overreaching obligation for State parties requiring the elimination of physical and communication barriers as well as socioeconomic barriers at the workplace (Article 9)
• Reasonable Accommodation in employment, which also acts as an anti-discrimination measure (Article 27-1-i);
• Positive measures to promote the employment of persons with disabilities (Articles 27-1-g and Article 27-1-h);

These attributes will serve as a basis to identify relevant Employment Indicators. Other key provisions of the CRPD related to the right to work and employment - such as the requirement to guarantee just and favourable conditions for work and trade union rights on equal basis with others, and to provide protection from forced labour and to promote self-employment - will not be covered by this study as they require a large number of indicators that could be useful for development in a separate study.

2. Identification of Selected Employment Indicators

A limited number of Employment Indicators will be selected to measure legal conformity with the CRPD based on the different attributes and components of the right to work and employment for persons with disabilities as identified above. The right to access employment, which covers all forms of employment, and the prohibition of discrimination in all aspects of employment would require a large number of indicators that are beyond the limited scope of this study. As such, for the purpose of this study, only one indicator will be selected to measure the legal framework’s conformity with the CRPD’s prohibition of discrimination in the access to employment in general (Employment Component 1). Other indicators will be developed to measure the national legal frameworks’ conformity with the CRPD obligations to guarantee accessibility in employment (Employment Component 2), to provide reasonable accommodation in employment (Employment Component 3) and to promote the employment of persons with disabilities through positive measures (Employment Component 4).

(a) Employment Component 1: Non-Discrimination in the Access to Employment

EMPLOYMENT INDICATOR 1:

The legal framework states that no person shall be denied employment on the basis of disability

(b) Employment Component 2: Accessibility in Employment

In parallel to the Accessibility Indicators that will be developed below, a specific indicator is developed to measure conformity with the CRPD obligation to ensure accessibility at the workplace.

EMPLOYMENT INDICATOR 2:

The legal framework states that workplaces in the public and private sector should be accessible to persons with disabilities

(c) Employment Component 3: Reasonable Accommodation in Employment

EMPLOYMENT INDICATOR 3:

The legal framework states that employers have an obligation to provide reasonable accommodation to persons with disabilities

(d) Employment Component 4: Positive Measures to Promote the Employment of Persons with Disabilities

The CRPD obligation to take positive measures to promote employment of persons with disabilities will be addressed through indicators measuring the existence of such measures in the public sector (Employment Indicator 4) and in the private sector (Employment Indicator 5). Separate indicators are developed for employment in the public and in the private sector because the nature of the State’s obligation as defined in the CRPD are different for each sector. In the public sector, the State is the employer and is therefore required under the CRPD to directly employ persons with disabilities. In the private sector, the State is required to take measures targeting private employers in order to promote the employment of persons with disabilities.

EMPLOYMENT INDICATOR 4:

The legal framework establishes measures to increase the employment of persons with disabilities in the public sector

EMPLOYMENT INDICATOR 5:

The legal framework establishes positive measures that aim to encourage the employment of persons with disabilities in the private sector