Draft Article 7
24: Some members of the Working Group considered that the Convention should have a specific reference to both direct and indirect discrimination. Other members considered that the distinction between the two forms of discrimination was not sufficiently clear. They considered that both a reference to "all forms of discrimination" in paragraph 1, and the reference to the "effect" of discrimination in paragraph 2(a), would cover the concept of indirect discrimination.
26: This paragraph has not appeared in any of core international human rights treaties, although the concept has been developed in the jurisprudence of the treaty bodies. The Human Rights Committee has included it, for example, in its general comment on Article 26 of the International Covenant on Civil and Political Rights. The Working Group discussed three options for the consideration of the Ad Hoc Committee: a) The paragraph should not appear in the text at all; b) the paragraph should be included only as an exception to the specific prohibition on indirect discrimination, and c) the paragraph should apply to all forms of discrimination. In addition to those options, some members proposed adding the following phrase to the end of the paragraph: "...and consistent with international human rights law;"
The Working Group considered that there was a need for a concept such as 'reasonable accommodation' in the Convention in order to secure compliance with the principle of non-discrimination.
There was widespread agreement in the Working Group on the need to keep the notion both general and flexible in order to ensure that it could be readily adapted to different sectors (e.g., employment, education, etc.) and in order to respect the diversity of legal traditions.
There was also general agreement that the process of determining what amounted to a 'reasonable accommodation' should be both individualised (in the sense that it should consciously address the individual's specific need for accommodation) and interactive as between the individual and the relevant entity concerned. It was understood that an entity should not be allowed to compel an individual to accept any particular 'reasonable accommodation'. It was also felt, however, that in situations where a range of 'reasonable accommodations' was available - each of which was, by definition, reasonable - that an individual did not have the right to choose the one that he or she preferred.
There was general agreement that the availability of state funding should limit the use of 'disproportionate burden' as a reason by employers and service providers not to provide reasonable accommodation.
Some members of the Working Group supported the proposition that a failure to 'reasonably accommodate' should in itself constitute discrimination, some of those members highlighted General Comment 5 of the Committee on Economic, Social and Cultural Rights as supporting this view.
Other members of the Working Group considered that the Convention should not dictate the manner by which the concept of 'reasonable accommodation' should be achieved or framed under relevant domestic legislation. Specifically, they took the view that it was inappropriate for an international legal instrument designed primarily to engage State responsibility to frame a failure to 'reasonably accommodate' on the part of private entities as a violation of the non-discrimination principle.
28: The term "special measures" is used in other international human rights treaties. The Ad Hoc Committee may wish to discuss the appropriateness of using the term in the disability context, and whether alternative terms could be used.