Dutch disability discrimination law and further and higher education: A case study based on the Opinions of the Netherlands Institute for Human Rights
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/13582291231165451 |
| Author | Lisa Waddington |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2023, Vol. 23(1-2) 29–59
© The Author(s) 2023
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DOI: 10.1177/13582291231165451
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Dutch disability discrimination
law and further and higher
education: A case study based
on the Opinions of the
Netherlands Institute for
Human Rights
Lisa Waddington
Abstract
Dutch legislation has prohibited disability discrimination with regard to post-secondary
education since 2003, when the Equal Treatment of Disabled and Chronically Ill People
Act came into force. The Act prohibits disability discrimination with regard to, inter alia,
further and higher education. The Netherlands Institute for Human Rights (NIHR) plays
an important role in interpreting and applying all Dutch equality legislation. It has a quasi-
judicial task and, in this capacity, hears individual complaints and issues Opi nions. The
NIHR, and its predecessor, the Equal Treatment Commission, have issued numerous
Opinions in the context of post-secondary education and (alleged) disability discrimi-
nation. For this reason, the Netherlands has been selected for a case study on disability
discrimination in post-secondary education. This article examines 70 Opinions in this area
and explores: whether individuals with particular forms of disabilities or chronic illnesses
are over-represented in the cases brought; the main areas in which cases (alleging)
disability discrimination in the context of post- secondary education have arisen; and the
types of (alleged) discrimination which are at issue.
Keywords
disability, discrimination, reasonable accommodation, further education, higher education, the
Netherlands
Maastricht University, Faculty of Law, Maastricht, The Netherlands
Corresponding author:
Lisa Waddington, Maastricht University, Faculty of Law, PO Box 616, Maastricht 6200 MD, the Netherlands.
Email: lisa.waddington@maastrichtuniversity.nl
Dutch legislation has prohibited disability discrimination with regard to post-
secondary education since 2003, when the Equal Treatment of Disabled and
Chronically Ill People Act
1
(the Act) came into force. The Act therefore prohibits
disability discrimination with regard to further and higher education, which covers,
inter alia, middle level technical vocational training (middelbaar beroepsonderwijs);
higher level technical and vocational training (hoger beroepsonderwijs); and uni-
versity education. Adult ‘lifelong learning courses’are also covered.
2
The Nether-
lands Institute for Human Rights (College voorde Rechten van de Mens) (NIHR) plays
an important role in interpreting and applying all Dutch equality legislation.
3
It has a
quasi-judicial task and, in this capacity, hears individual complaints and issues
Opinions. While these Opinions are not binding, and the NIHR does n ot have the
power to impose sanctions, the Opinions are nevertheless influential. According to the
Institute’s own monitoring, its Opinions which involve a finding of discrimination are
acted on by the defendant institution in about four out of five cases.
4
The Opinions
mayaddressameasurewhichonlyappliestothe complainant, a structural measure, or
a combination of the two.
5
The NIHR, and its predecessor, the Equal Treatment Commission (ETC), have
issued numerous Opinions in the context of post-secondary education and (alleged)
disability discrimination. This is in contrast to many other European states, where
there has not been a plethora of (quasi-)judicial rulings in this field. For this reason,
the Netherlands, and specifically the Opinions of the NIHR and ETC, provide a basis
for a case study on disability discrimination in post-secondary education, and
specifically the application of non-discrimination legislation and related litigation.
This paper carries out such a case study through an examination of 70 Opinions of
the NIHR and ETC involving (alleged) disability discrimination in the context of
post-secondary education. These Opinions cover the period since the Act came into
force until early 2021. Amongst the issues explored in the paper are whether
individuals with particular forms of disabilities or chronic illnesses are over-
represented in the cases brought, the main areas in which cases (alleging) dis-
ability discrimination in the context of post-secondary education have arisen, and
the types of (alleged) discrimination which are at issue. The paper also identifies
prominent or noticeable trends in how the NIHR and ETC have applied the Act. In
this way, the paper provides a case study which explores the issues students with
disabilities and chronic illnesses experience in the context of post-secondary
education.
The 70 Opinions were identified using the search engine of the NIHR. The searches
were carried out in December 2021.
6
The limitations with the search engine mean that it is
not possible to know whether every single Opinion relating to (alleged) disability dis-
crimination in the field of post-secondary education was identified.
7
Nevertheless, these
70 Opinions provide a substantial basis for an analysis, even though one cannot be certain
of the percentage of the total number of Opinions concerning post-secondary education
which they represent.
The paper begins by briefly introducing the relevant Dutch legislation and explaining
the organisation of post-secondary education in the Netherlands. The paper then focuses
30 International Journal of Discrimination and the Law 23(1-2)
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