71.
Likewise, the Supreme Federal Court of Brazil has found that the Convention on
the Rights of Persons with Disabilities was incorporated into the Brazilian legal system
as a constitutional norm. In this regard, it found a law excluding maritime workers from
the public policy for inclusion of persons with disabilities to be unconstitutional. Based
on article 27 of the CRPD, said Court established that physical disability does not, in and
of itself, disqualify a worker from working on boats, as there is no legal or conventional
requirement of full physical capability for any and all maritime activity. It likewise found
that leaving out maritime jobs when calculating the number of vacant positions filled
with persons with disabilities was both unreasonable and disproportionate, constituting
a discriminatory legal differentiation and an arbitrary obstacle to work by reducing the
availability of positions open to this category persons.94
72.
Additionally, in reviewing the decision of an appeals court upholding the firing of
a person with disability, the Constitutional Court of Ecuador found that beyond a mere
review of the legality of and authority to unilaterally terminate temporary service
contracts, a constitutional analysis was both necessary and obligatory. This analysis
required reviewing whether or not the entity guaranteed the rights and dignity of persons
with disabilities, and whether it fully considered all the regulatory instruments applying
to the matter that were enacted to make this group of citizens a priority and provide
them with special protection in order to guarantee them true equality in the workplace.95
73.
In view of the foregoing, this Court notes that, in the public sector, states have
an enhanced responsibility to respect the right to work of persons with disabilities. This
obligation translates, first of all, into a prohibition on any act of discrimination based on
disability with respect to the exercise of their labor rights, particularly with respect to
the selection and hiring of the employee, as well as their permanence in the position or
promotion, and workplace conditions. Second, deriving from the mandate of real or
material equality, it translates into an obligation to take affirmative action to incorporate
persons with disability into the labor force, action that must be aimed at progressively
removing the barriers that prevent them from fully exercising their labor rights. In this
regard, states are required to adopt measures to ensure that persons with disabilities
have effective and equal access to competitive public hiring processes through vocational
training and education, as well as by making special adjustments to the evaluation
mechanisms so as to enable them to participate on an equal footing and make it possible
to employ persons with disabilities in the public sector.
74.
This Court additionally finds that the enhanced obligation to protect the right to
work of persons with disabilities entails specific obligations for authorities hearing
complaints alleging acts of discrimination in the workplace.96 This obligation requires
rigorous diligence in guaranteeing and respecting the rights of persons with disabilities
in the context of administrative and judicial remedies analyzing violations of the right to
work.97 First, therefore, the authorities must refrain from basing their decisions on
94
95
Cf. Supreme Federal Court of Brazil, Direct Constitutional Challenge No. 5,760 of September 13, 2019.
Cf. Constitutional Court of Ecuador, ruling 258-15 of August 12, 2015, pg. 20.
Cf. Mutatis mutandis, Case of Furlán and Relatives v. Argentina. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of August 31, 2012. Series C No. 246, para. 201
96
Cf. Case of Furlán and Relatives v. Argentina. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of August 31, 2012. Series C No. 246, paras. 201 and 202. Similarly, see Supreme Court of Justice of the
Argentine Nation, Terruli, Jorge Miguel v. González, Manuel Enrique et al. on mortgage foreclosure, judgment of
December 22, 2015, considering paragraphs 7 and 13, and Brasilia Regulations Regarding Access to Justice for
Vulnerable People, adopted during the 16th Ibero-American Judicial Summit held in Brasilia in March 2008, rule 25.
97
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