circumstance weighing in favor of their selection (or serving at least as a favorable
tiebreaker), not their rejection.
131. Given the undeniable contents of the right of persons with disabilities to work
under equal conditions, when factual violations of this right take place, it is essential
to find ways of recognizing and remedying the violation, and it is precisely here where
the issue of justiciability of the right to work, specifically, overlaps with the
justiciability of ESCER in general.
132. I would note that, as has been broadly argued in this opinion, the international
and national jurisdictions work together in this mission of recognition and reparation,
forming a single network of protection.
133. It can be seen that the constitutional courts of Latin American nations have
been adopting their readings of the Convention and other human rights treaties in
the sense of recognizing the qualified protection granted to this especially vulnerable
social group’s right to work.
134. Here I would refer in particular to the decision of the Constitutional Court of
Colombia in the case of Ana Cristina Paz Gil v. the Mayor's Office of Bogotá and
Empresa Transmilenio, S.A., handed down in 2014 within the framework of a suit for
protection. At that time, the Colombian Court reinforced the need for its judicial action
to address the situation of exclusion faced by persons with disabilities in public and
in the labor market, invoking its own precedent and thereby highlighting the existing
debate in a multilevel open society:
The obligations of the Colombian state towards the disabled arise not only from the
international treaties and conventions ratified by Colombia, but in general from the
expressions of willingness by the international community to recognize their human
rights and human dignity, principles that, in addition to applying to international law,
are fundamental pillars of Colombian constitutionality.81
135. In the same vein, I would recall the ruling of the Constitutional Court of
Ecuador in case No. 0664-14-EP, handed down in 2018 in a suit for special protection
over the dismissal of a woman with a disability from her position in the Ecuadorian
transportation agency. In the ruling, the Ecuadorian court invoked the case of Lagos
del Campo v. Peru in addressing job stability in the framework of the right to work
and provided that:
In this regard, this Court takes note that the ruling of the Inter-American Court of
Human Rights, of August 31, 2017, establishes a minimum standard of protection from
terminations of the employment relationship that are unjustified or improper. As
recognized in the Constitution of the Republic of Ecuador, the Convention on the Rights
of Persons with Disabilities, and the Organic Law on Disabilities—specifically in its
article 51—persons with disabilities enjoy special protection of their right to work, as
well as job stability guarantees.82
136. Always in terms of the shared language presenting the justiciability of ESCER
as an effective way to protect and promote these rights for the benefit of persons
with disabilities, I would highlight the adoption by the UN system of the procedures
for submitting individual petitions and investigation through the Convention on the
Rights of Persons with Disabilities, which have already been accepted by the vast
majority of inter-American states. These procedures not only help monitor and
protect state compliance with the obligations established in the Convention, but also
help outline states’ duties and obligations in relation to the rights set forth by this
81
82
Constitutional Court of Colombia, Judgment T-192/14.
Constitutional Court of Ecuador, Judgment 004-18-SEP-CC, p. 30.
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