Is it possible to ‘legally desegregate’ sheltered employment? General comment no. 8 of the committee on the rights of persons with disabilities and the Benelux countries

Abstract

In 2022, the UN Committee on the Rights of Persons with Disabilities issued General Comment No. 8 on the right of persons with disabilities to work and employment. The general comment most notably recommends States parties to expeditiously phase out segregated employment, including sheltered workshops. After covering the contents of the general comment on this issue in Section I, this contribution argues that the Committee does not take into account that sheltered employment is a complex notion and that domestic sheltered employment systems can evolve. Since General Comment No. 8 outlaws segregated (sheltered) employment, the question becomes, can sheltered employment be legally desegregated, and hence does not have to be expeditiously phased out? Section III illustrates, based on examples from the Benelux countries, that domestic sheltered employment systems do not necessarily exhibit the distinguishing features of segregated employment, as described in General Comment No. 8. Section IV explains that this leaves the CRPD Committee with a decision to make. It could assert that sheltered employment is ipso facto segregated employment, which is to be phased out. It could also draw on its non-exhaustive list of the distinguishing features of segregated employment to incite States parties to at least desegregate sheltered employment legally if they decide not to phase it out entirely.