opportunity and treatment. In this sense, the positive measures adopted to achieve
equality shall not be considered discriminatory.88 ILO Recommendation 168 established
that persons with disabilities “should enjoy equality of opportunity and treatment in
respect of access to, retention of and advancement in employment which, wherever
possible, corresponds to their own choice and takes account of their individual suitability
for such employment.”89
68.
It should be noted that one of the objectives of the 2030 Agenda for Sustainable
Development, approved in September 2015 by the UN General Assembly, is to "create
conditions for sustainable, inclusive and sustained economic growth, shared prosperity
and decent work for all.” The instrument indicates that half of the world's population
lives on the equivalent of 2 US dollars per day, which requires reflection on the "slow
and unequal" progress, and reviewing [the] economic and social policies aimed at
eradicating poverty." Additionally, in order to achieve this objective, a specific goal was
set: “[b]y 2030, achieve full and productive employment and decent work for all women
and men, including for young people and persons with disabilities, and equal pay for
work of equal value”90
69.
The Court also notes that the highest courts in the region have addressed the
scope of the protection of the right to work for persons with disabilities, specifically with
regard to protection from dismissal. The Constitutional Court of Colombia has found that
the right to job security enjoys enhanced protection with regard to workers with
disabilities, such that a person with a disability cannot be dismissed without the
authorization of the Ministry of Labor. The Court also found unconstitutional any legal
provision or action preventing access to positions to people “(i) whose disability is not
demonstrated to be on compatible with the essential functions to be performed; (ii) who
have disabilities that are incompatible with functions of the position that are incidental,
accessory, or can be delegated, but are compatible with the essential function; (iii) who
can adequately perform the functions of the respective position or job if reasonable
workplace adjustments are made."91
70.
For its part, the Supreme Court of Justice of the Nation of Mexico has found that
in order to head off any potential discriminatory violation, the jurisdictional authorities
hearing cases where the worker alleges having been fired due to a situation of
discrimination have an enhanced obligation to justify their decisions.92 According to the
court, this is because "when a decision is made or action taken based on a discriminatory
situation, the agent who is acting or deciding often does not recognize that the central
or real motive behind their decision is discrimination—rather, they tend to conceal it.”93
Cf. ILO, Convention on Vocational Rehabilitation and Employment, adopted on June 20, 1983 (Num.
159), articles 2-5.
88
89
ILO, Vocational Rehabilitation and Employment (Num. 168). 1983, para. 7.
United Nations. Resolution 70/01. Transforming our World: The 2030 Agenda for Sustainable
Development, approved by the General Assembly on September 25, 2015. 8.
90
91
Cf. Constitutional Court of Colombia, Judgment T-340/17, of May 19, 2017, pgs. 26 and 27.
92
Cf. Supreme Court of Justice of the Nation of Mexico, direct amparo appeal number 3708/2016, of May 2017,
pg. 28.
93
Supreme Court of Justice of the Nation of Mexico, direct amparo appeal number 3708/2016, of May 2017,
pg. 29.
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