Inadequacy of Weaker Party Protection in Relation to Substantive Equality: A Capabilities Approach to Grounds for Discrimination and the Privatization of Disability Services

This article explores how status-based roles embraced in private law may lead to unfair situations in which the role of a stronger party is given to an individual, for example a person with disabilities, who is unable to carry out the duties associated with this role accordingly. This is particularly obvious and problematic when fundamental care services are privatized. We draw on the normative capability approach, proposed by Martha Nussbaum, in arguing that grounds for discrimination should also play a role in the sphere of private contracting. The commitment to substantive equality inevitably requires that the scope of grounds for discrimination should extend beyond their traditional role, which is limited to the evaluation and establishment of prohibited unfavourable treatment under non-discrimination law. We discuss the employer model laid down in the Finnish Act on Disability Services and Assistance and two interconnected decisions given by the Supreme Court on the application of the legislation to demonstrate the blind spots of private law with respect to grounds for discrimination.