Accessibility of services and discrimination
| Published date | 01 March 2015 |
| DOI | 10.1177/1358229114558545 |
| Author | Maria Ventegodt Liisberg |
| Date | 01 March 2015 |
| Subject Matter | Articles |
Article
Accessibility of services
and discrimination:
Concentricity,
consequence, and the
concept of anticipatory
reasonable adjustment
Maria Ventegodt Liisberg
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 pro-
poses 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 devel-
opment 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 ser-
vices and will no doubt gain recognition as more countries introduce protection against
discrimination on the grounds of disability. The concept of reasonable adjustment is
Danish Institute for Human Rights, København K, Denmark
Corresponding author:
Maria Ventegodt Liisberg, Danish Institute for Human Rights, 1403 København K, Denmark.
Email: mvl@humanrights.dk
International Journalof
Discrimination and theLaw
2015, Vol. 15(1-2) 123–144
ªThe Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229114558545
jdi.sagepub.com
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. Unfor-
tunately, the statistics which do exist are not conclusive.
Keywords
Disability, accessibility, human rights, discrimination, anticipatory reasonable adjustment,
EU, Norway, UK
Introduction
An accessible society is a society where persons with disabilities enjoy a high level of
equality of opportunity. But to what extent shall private service providers ensure that the
services that they provide are accessible to persons with disabilities? The right to acces-
sibility epitomizes the new approach to disability under human rights law which is based
both on rights and on a social model of disability.
1
Accessibility is closely related to
equality, and the present article explores when lack of accessibility to services may be
characterized as discrimination.
Disability discrimination law has been groundbreaking with the introduction of the rel-
atively far-reaching duty to make reasonable accommodation. Lack of fulfillment of the
duty to make reasonable accommodation has been recognized as a form of discrimination
in the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD)
and in some European Union (EU) member states.
2
Also, the EU Employment Framework
Directive imposes a duty to provide reasonable accommodation.
3
However, in relation to services, it is doubtful whether the concept of reasonable
accommodation in itself is adequate to promote effective accessibility for persons with
disabilities. In many cases, a consumer who cannot access a service will simply buy the
service in question from another service provider, if possible. Also, it may be difficult to
challenge the lack of general access to a service with reference to lack of access for an
individual. Effective access to services should therefore be ensured through an anticipa-
tory duty to ensure access or to make reasonable adjustments which is neither reactive
(dependent on request from an individual) nor targeted toward ensuring access for one
individual.
In response to this need for stronger protection of the right to access to services, the
anticipatory duty to ensure access or to make reasonable adjustments for persons with
disabilities has been developed in the United States, Australia, Canada, and the United
Kingdom.
4
Also, the proposal for a horizontal EU Directive on discrimination on the
grounds of disabilities, which has now been blocked, contained a duty to make anticipa-
tory adjustments to ensure access to services for persons with disabilities.
5
The CRPD
does not recognize the concept of anticipatory adjustments but does include Article 9
on accessibility, and as will be discussed below, the Committee has adopted a General
Comment on accessibility which argues for strong action to ensure accessibility for
persons with disabilities to goods, products and services which are open or provided
to the public.
6
124 International Journal of Discrimination and the Law 15(1-2)
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