Defining discrimination

3.6.2.1. The definition of discrimination in the CRPD

100. Article 2 of the CRPD, drawing on similar definitions under the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women, provides:

“’Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation”.

3.6.2.2. National approaches

101. Where a national law adapts a non-discrimination model or guarantees rights without discrimination on the basis of disability, a definition of what is understood by discrimination is an important part of the legislative framework. This is especially so if there is a need to make clear that a substantive equality approach is being taken and that ensuring equality for persons with disabilities may in important respects be different from other equality guarantees. Not all national laws contain a definition of discrimination; in some cases the meaning of the term can be derived from external sources, such as case law or other relevant interpretive materials.

purposes of national legislation implementing the CRPD would simply be to incorporate the CRPD definition directly, or with minor adaptation, as part of domestic law (a number of countries have adopted this approach with the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women).

103. Republic of Korea: The 2007 Law of the Republic of Korea takes the approach of combining a general definition of direct and indirect discrimination with a number of specific actions which are declared to be discrimination for the purposes of the law (as opposed to unlawful acts that might promote discrimination):

“A discriminatory act under this Act means any of the following:

(i) Treating persons with disabilities unfavorably through restriction,

exclusion, segregation or denial based on disability without legitimate grounds;

(ii) Applying disability-blind standards that cause persons with disabilities to be unfairly treated without legitimate grounds despite the absence of any unfavorable treatment, such as restriction, exclusion, segregation or denial;

(iii) Refusing to provide legitimate accommodation to persons with disabilities without legitimate grounds;

(iv) Directly placing, permitting or promoting any advertisement that indicates or encourages the unfavorable treatment of persons with disabilities, such as restriction, exclusion, segregation or denial without legitimate grounds. As such, an ‘advertisement’ includes any act considered customarily to have an effect of advertising the promotion of unfair treatment;

(v) Committing any of the acts under paragraphs (i) through (iv) against individuals representing or accompanying persons with disabilities for the purpose of offering assistance (including parents or guardians of children with disabilities or other persons reasonably recognized to offer assistance to persons with disabilities) (the “related persons” hereinafter). As such, any act committed by the related persons against persons with disabilities is also subject to the determination of a discriminatory act prohibited under this Act; or

(vi) Interfering with the rightful use of a guide dog or an auxiliary aid, or committing any act prohibited under paragraph (iv) against such guide dog or auxiliary aid”(Republic of Korea 2007, article 4).

104. Another approach to defining discrimination is that found in the Hong Kong Disability Discrimination Ordinance, as well as in Australian, New Zealand and United Kingdom of Great Britain and Northern Ireland legislation. While these vary, they commonly define direct discrimination on the ground of disability as well as indirect discrimination on the ground of disability. Section 6 of the Hong Kong Ordinance provides a typical example:

“A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Ordinance if

(a) on the ground of that other person's disability he treats him less favourably than he treats or would treat a person without a disability;

(b) he applies to that other person a requirement or condition which he applies or would apply equally to a person without a disability but (i) which is such that the proportion of persons with a disability who can comply with it is considerably smaller than the

proportion of persons without a disability who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the disability or absence of the disability of the person to whom it is applied; and

(iii) which is to that person's detriment because he cannot comply with it; or

(c) on the ground of the disability of an associate of that other person he treats him less favourably than he treats or would treat a person without such a disability” (Hong Kong, China 1995).

105. Section 8 provides: “A comparison of the cases of persons with or without a disability under section 6 shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other”(Hong Kong, China 1995).

106. There have been a number of problems identified with these types of definition, both generally in relation to discrimination legislation and specifically in relation to disability. For example, the problems of finding an appropriate comparator, and the question whether any reasonable accommodation that would permit a person to carry out a job or function should be taken into account in determining whether the circumstances are materially different, have been criticized in the context of the definition of direct discrimination. The definition of indirect discrimination has been criticized for being too complex and confusing, in particular the proportionality test, lack of clarity about the criteria for determining “justifiability” or “reasonableness”. 107. In mid-2009, amendments to the Australian federal Disability Discrimination Act (many of which were recommended by the Productivity Commission) designed to address some of these limitations were enacted by Parliament. While addressing the problems, they are nevertheless an extremely complex set of provisions (Australia 2009a).

108. United Kingdom of Great Britain and Northern Ireland: The United Kingdom Disability Discrimination Act also seeks to make the definition less complex:

“Meaning of ‘discrimination’

(1) For the purposes of this Part, a person discriminates against a disabled person If –

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty”(United Kingdom of Great Britain and Northern Ireland 1995, section 3A).