a ppt on the topic descrimiination faced by poeples

This ppt is about the descrimination faced by peoples in daily life

1. A Denial of a Reasonable Accommodation:
Direct Discrimination,
Indirect Discrimination,
or a Third Form of Discrimination?
Lisa Waddington,
EDF Chair in European Disability Law

2. Faculty of Law
How to classify a denial of a reasonable
accommodation? What kind of
discrimination is it?
•The reasonable accommodation duty is a complex and
often misunderstood concept -any approach should seek
to add clarity and not create more confusion.

3. Faculty of Law
Should a Denial of a Reasonable
Accommodation be classified as Direct
Discrimination?
•Definition of direct discrimination: where one person is
treated less favourablythan another is, has been, or
would be treated, in a comparable situation on the
ground of disability.
•A denial of a reasonable accommodation could be
classified as direct discrimination, but there are problems
with this approach:

4. Faculty of Law
1. Comparator Issue
•In general a comparator is required to establish direct
discrimination.
•Identifying a comparator can be difficult in a case of a
denial of a reasonable accommodation.
•The comparator requirement sits rather uneasily with the
reality of the way the reasonable accommodation duty
works.
•Possible solution: Remove the comparator requirement
for reasonable accommodation claims, and say that
direct discrimination includes the failure to create equal
opportunities.
•However, this is a complicated approach.

5. Faculty of Law
2. Justification Issue
•Direct discrimination is generally prohibited outright and
there are no possible justifications. Cost is never accepted
as a legitimate justification or reason for direct
discrimination.
•However cost (disproportionate or undue burden) can be a
justification for a denial of a reasonable accommodation.
•Recognisingcost as a legitimate reason for a denial of a
reasonable accommodation (as direct discrimination),
could undermine the strict prohibition of direct
discrimination that exists elsewhere, and imply that cost
could be a reason to justify other forms of direct
discrimination.

6. Faculty of Law
3. Conclusion: A denial of a reasonable
accommodation can be regarded as a form
of direct discrimination but there are
problems:
•This approach fits uneasily with the requirement to have
a comparator to establish direct discrimination.
•This could undermine the strict prohibition of direct
discrimination which otherwise does not permit cost as a
justification.
•This could result in confusion concerning the concepts of
direct discrimination and reasonable accommodation.

7. Faculty of Law
Should a denial of a Reasonable
Accommodation be classified as Indirect
Discrimination?
•Definition of indirect discrimination: An apparently neutral
provision, criterion or practice which would put persons
having a particular disability at a disadvantage,
•unless the apparently neutral provision, criterion or
practice is justified by a legitimate aim, and the means
chosen for achieving that aim are appropriate and
necessary.
•A denial of a reasonable accommodation could be
classified as indirect discrimination, but there are
problems with this approach:

8. Faculty of Law
1. Indirect Discrimination is a form of
discrimination directed at groups not
individuals
•Indirect discrimination is assessed in terms of groups –
one group of people e.g. wheelchair users must be
disadvantaged in comparison with another group –e.g.
people who can walk upstairs with little effort.
•In some cases this comparison would identify a denial of
a reasonable accommodation as a form of discrimination
–but not in all cases.

9. Faculty of Law
2. A Reasonable Accommodation is an
Individualised Measure
•A reasonable accommodation is an individualisedmeasure,
and does not require that the absence of the
accommodation disadvantage anyone other than the
claimant.
•Where a specific individualisedreasonable accommodation
is at issue, it might be impossible to establish the group
based disadvantage required for indirect discrimination –
meaning that no indirect discrimination could be identified.
•Possible solution: Classify any unjustified failure to make a
reasonable accommodation as an act of indirect
discrimination.
•However, this is a complicated approach.

10. Faculty of Law
3. Different Justifications
•The justification for what would otherwise be an
indirectly discriminatory act (legitimate aim, and means
chosen to fulfil legitimate aim are appropriate and
necessary)is different from the justification for a denial
of a reasonable accommodation (disproportionate or
undue burden).
•Are these justifications the same or different in practice?
Not clear …

11. Faculty of Law
4. Conclusion: A denial of a reasonable
accommodation can be regarded as a
form of indirect discrimination but there
are problems:
•This approach fits uneasily with the group-based
assessment inherent to indirect discrimination.
•The justification tests for denial of reasonable
accommodation and indirect discrimination are worded
differently.

12. Faculty of Law
What is the overall conclusion?
•A denial of a reasonable accommodation could potentially
be classified as a form of direct discrimination or as a
form of indirect discrimination.
•In both cases it would need to be defined as a special
non-typical form of such discrimination.
•These two approaches would be in accordance with the
CRPD.

13. Faculty of Law
Denial of a reasonable accommodation as
a third form of discrimination
•However, the favoured approach is to define a denial of a
reasonable accommodation as a third and separate form
of discrimination:
•Emphasizes the difference between discrimination in the
form of a denial of a reasonable accommodation and
other forms of discrimination.
•Helps to heighten awareness of the existence of
discrimination in the form of a denial of a reasonable
accommodation.
•Does not create additional confusion with regard to the
concepts of direct and indirect discrimination.