For the first time, a court of first instance in Switzerland has ruled that a spa located in the Canton of Apenzell had discriminated against handicapped children by prohibiting them access to the spa.
On January 4, 2012, teachers at the Heerbrugg Healing Teacher's School along with five mentally and physically handicapped children wanted to visit the spa. The group was refused access to the spa on the grounds that their presence unduly disturbed other bathing guests. In a follow-up letter to the Heerbrugg Healing Teacher's School, the chairman of the spa wrote that spa visitors often feel disturbed by visitors with disabilities. Therefore, groups of disabled persons cannot be granted free access at any time chosen, as the spa operates as a business and cannot afford to lose disgruntled clients. The chairman was, however, willing to discuss special opening times for the handicapped groups.
"The Act expressly states that " private persons offering public services may not discriminate against disabled persons on the basis of their disability."
The Ausserrhoder Kantonsgericht in Trogen decided now in first instance that both the refusal of access and the letter constituted a discrimination under the Swiss Invalidity Equality Act of 2002. The Act expressly states that "private persons offering public services may not discriminate against disabled persons on the basis of their disability". After failed mediation attempts, the disability organizations Procap, Pro Infirmis and Insieme had jointly filed a court action which was supported by the Heerbrugg Healing Teacher's School.
"A guiding court decision which takes the implementation of the Swiss Invalidity Equality Act of 2002 one step further."
For the first time in Switzerland, a court action on discrimination against people with disabilities has been approved. Urs Dettling, Head of Social Policy at Pro Infirmis, speaks of a particularly appalling case. Procap, Pro Infirmis and Insieme called the court decision to be «a guiding principle which takes the implementation of the Swiss Invalidity Equality Act of 2002 one step further» and will hopefully spread throughout Switzerland. The organizations are also confident that the court decision will further raise the public's awareness for the cause of handicapped people in Switzerland.
It is still unclear whether the Oberrhoder Obergericht, the competent court of second instance, will be called upon. The spa wants firstly review the court decisions' rationale and then decide on a possible appeal, whilst the Municipality of Heiden, sole shareholder of the spa, already distanced itself from the discriminatory acts of the spa's management.
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