CRPD/C/GC/8
choice of employment in a closed workplace on the basis of disability. The ILO Employment
Policy Convention, 1964 (No. 122), refers to “full, productive and freely chosen
employment”, linking States parties’ obligation to create the conditions for full employment
with their obligation to ensure the absence of forced labour.
14.
The Committee observes that segregated employment, such as sheltered workshops,
includes a variety of practices and experiences, characterized by at least some of the
following elements:
(a)
The persons with disabilities are segregated, away from open, inclusive and
accessible employment;
(b)
The employment is organized around certain specific activities that persons
with disabilities are deemed to be able to carry out;
(c)
The medical and rehabilitation approaches to disability are focused on and
emphasized;
(d)
Transition to the open labour market is not effectively promoted;
(e)
The persons with disabilities do not receive equal remuneration for work of
equal value;
(f)
The persons with disabilities are not remunerated for their work on an equal
basis with others;
(g)
The persons with disabilities do not usually have regular employment contracts
and are therefore not covered by social security schemes.
15.
Segregated employment for persons with disabilities, such as sheltered workshops, is
not to be considered as a measure of progressive realization of the right to work, which is
evidenced only in employment that is freely chosen or accepted and performed in an open
and inclusive labour market. Employment ventures that are managed and led by persons with
disabilities, including those that are jointly owned and democratically controlled, may not be
considered segregated employment if they provide just and favourable conditions of work on
an equal basis with others.
B.
Prohibition of discrimination on the basis of disability (art. 27 (1) (a))
16.
Non-discrimination and equality are core obligations of article 27, extend to the
actions of third parties, such as the business sector, 11 and apply throughout the employment
cycle, which includes recruitment, hiring and employment, continuance of employment,
training programmes and career advancement, as well as searching and applying for work
and exiting work. The Committee has noted in its jurisprudence that to achieve de facto
equality in terms of the Convention, States parties must ensure that there is no discrimination
on the grounds of disability in connection to work and employment. 12 International human
rights practice identifies a number of forms of discrimination, which can occur individually
or simultaneously: direct discrimination, indirect discrimination, denial of reasonable
accommodation, harassment and discrimination by association.
17.
Direct discrimination occurs when persons with disabilities are treated unfavourably
for any reason related to their impairment. An example is a public sector employer not
considering a person with disabilities for a job on the assumption that the person with
disabilities will be unable to do the work.13
18.
Indirect discrimination refers to the application of laws, policies or practices that
appear neutral but have a negative impact on persons with disabilities. It occurs when an
opportunity excludes persons with disabilities because the framing of the opportunity does
not take account of their situation and, as a result, they are unable to benefit from the
opportunity itself. For example, if the only way to enter a public building for a job interview
11
12
13
4
Committee on Economic, Social and Cultural Rights, general comment No. 24 (2017), para. 7.
Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 67.
Ibid., para. 18 (a).