Accessibility of services and discrimination

Abstract

Today, the field of accessibility to services for persons with disability is often exempted from protection against discrimination under European Union (EU) member states’ legislation, and it is still not regulated under EU legislation. This article argues that antidiscrimination law should apply to accessibility to services for persons with disabilities and discusses how lack of accessibility should be justified. This article proposes a model of three concentric circles for understanding when lack of accessibility to services amounts to discrimination on the grounds of disability. Lack of accessibility for persons with disabilities to a service may amount to discrimination on the grounds of disability (a) in all cases, (b) when it would have been reasonable to ensure accessibility, or (c) only when the service provider did not comply with accessibility standards. This article describes advantages and disadvantages of each of these approaches while drawing on examples of legislation and case law from international human rights law, EU law, Norway, and the United Kingdom. Disability discrimination law pioneers in the development of legally binding duties. The concept of reasonable accommodation for disability has gained great recognition in both international human rights law and national law. Anticipatory reasonable adjustment is a key concept in relation to accessibility to services and will no doubt gain recognition as more countries introduce protection against discrimination on the grounds of disability. The concept of reasonable adjustment is examined in this article. The article also seeks to examine whether statistical indicators exist to measure the practical consequences of adopting each of the three approaches described in the model of concentric circles on accessibility and discrimination. Unfortunately, the statistics which do exist are not conclusive.