The definition of discrimination in the

Convention

The Convention defines discrimination in article 2 as follows:

“Discrimination on the basis of disabil-ity” 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 oth-ers, of all human rights and fundamen-tal freedoms in the political, economic, social, cultural, civil or any other field.

It includes all forms of discrimination, including denial of reasonable accom-modation.

To help understand this definition, it is impor-tant to break it down.

Distinction, exclusion or restriction

Discrimination means any distinction, as well as exclusion or restriction made on the basis of disability. Consequently, the acts that constitute discrimination can be quite varied.

• A “distinction” might be an explicit dif-ferentiation between two people on the basis of disability. For example, if children with certain intellectual impair-ments are subject to forced sterilization

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while other children are not, this is a dis-criminatory distinction.

• An “exclusion” refers to a situation where a person, on the basis of disability, can-not enter a particular space or participate in a particular activity. A policy that does not allow a child with a disability to enter mainstream education is an exclusion which could amount to discrimination.

• A “restriction” refers to a limitation on the right of people to participate in cer-tain aspects of civil, cultural, economic, political or social life. For example, a law stating that persons with intellectual disabilities cannot, prima facie, vote in national elections could amount to a dis-criminatory restriction.

On the basis of disability

The Convention refers to “discrimination on the basis of disability”. This goes further than “discrimination against persons with disabilities” as the focus is not only on pro-tecting persons with disabilities but on com-bating (and ultimately eliminating) discrim-ination itself, whether against persons with disabilities or anyone else. Consequently, discrimination on the basis of disability is not targeting only persons with disabilities but also people who, for different reasons, are associated with persons with disabilities (dis-crimination by association).

This mirrors the Convention’s social/

human rights approach to disability. Rather than “protecting persons with disabilities”, which could be a charity approach in cer-tain situations, the Convention seeks to com-bat discrimination, i.e., the negative attitudes and environment that can put persons with disabilities in a vulnerable or marginalized situation. This is in order to get to the heart

of the problem. If someone suffers discrim-ination on the basis of a perceived disabil-ity, this is evidence that prejudice exists and human rights law seeks to tackle these nega-tive attitudes. In doing so, we can imagine a world without discrimination.

Purpose or effect

Article 2 clarifies that such distinctions, exclusions or restrictions are violations if they have:

(a) The purpose (discriminatory inten-tion); or

(b) The effect (the objective outcome, whether this was the intention or not),

of impairing or nullifying the recognition, enjoyment or exercise of all rights for/by persons with disabilities.

There does not need to be an intention to discriminate for discrimination to occur.

The focus is on the experience of the person suffering the discrimination. Thoughtlessness and neglect can have the same or an even worse discriminatory effect than an intended discriminatory act.

The reference to purpose and effect high-lights the fact that the Convention prohibits both direct and indirect discrimination. While some acts lead directly to discrimination—

for example, restricting the right to vote for persons with intellectual disabilities—much discrimination occurs by treating two per-sons in different situations in the same way.

So building a staircase at the entrance of a hospital is treating persons with and without disabilities in the same way, but the result is discriminatory, as a person in a wheelchair

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cannot enter the hospital while a person who can walk is able to enter. While on the sur-face there does not appear to have been any discrimination (the hospital is open to all) the effect can be discriminatory. The Convention prevents this indirect discrimination as well.

Recognition, enjoyment or exercise

Protection from discrimination extends not only to the recognition of the rights of persons with disabilities, for example, in laws, but also the enjoyment of their rights (such as the benefit of freedoms without hin-drance, e.g., freedom from abuse or torture) and their exercise (such as the capacity to take steps to attain a right, e.g., entering a school and getting an education or deciding to refuse certain medications). This recalls the prohibition in other areas of human rights law of both de jure (discrimination in laws and policies) as well as de facto discrimina-tion (discriminadiscrimina-tion in practice).

Enjoyment of human rights “on an equal basis with others”

The Convention does not seek to cre-ate new rights for persons with disabilities.

Instead, it seeks to combat discrimination, i.e., those barriers and attitudes that pre-vent persons with disabilities from enjoying their rights. The ultimate aim is that every-one, whether with or without disabilities, can enjoy the same human rights.

All human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field The Convention combats discrimination in relation to all human rights, whether civil, cultural, economic, political or social, and in any field. In the past and still today, some

peo-ple and even States have tended to prioritize some rights over others. For example, during the cold war, States with a market economy often put greater emphasis on civil and politi-cal rights, while States with a centrally planned economy tended to focus on economic, social and cultural rights. In the context of disability, there has traditionally been a greater focus on protecting economic, social and cultural rights, and civil and political rights have been given less attention. The Convention clearly states that the protection against discrimina-tion covers all rights in all fields.

Denial of reasonable accommodation The definition recognizes denial of rea-sonable accommodation as a form of dis-crimination. To promote equality and elimi-nate discrimination, State parties must take all appropriate steps to ensure that reason- able accommodation is provided.

“Reasonable accommodation” means, for example, making adaptations to the organization of a work environment, an educational establishment, a health-care facility or transport service so as to remove the barriers that prevent an individual with a disability from participating in an activity or receiving services on an equal basis with others. At work, this might involve physical changes to premises, acquiring or modifying equipment, providing a reader or interpreter, giving appropriate training or supervision, adapting testing or assessment procedures, altering standard working hours or allocating some of the duties of a position to another person.

While the Convention requires the par-ticular needs of an individual with a disabil-ity to be accommodated, it refers to reason-able accommodation. If the accommodation

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imposes a disproportionate or undue burden on the person or entity expected to provide it, then failure to do so would not constitute