5 - Equality and non-discrimination
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EQUALITY AND NON-DISCRIMINATION
1. States Parties recognise that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. States Parties shall prohibit any discrimination on the basis of disability, and guarantee to all persons with disabilities equal and effective protection against discrimination. States Parties shall also prohibit any discrimination and guarantee to all persons with disabilities equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, source or type of disability, age, or any other status.
2. a. Discrimination shall mean any distinction, exclusion or restriction which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on an equal footing, of all human rights and fundamental freedoms.
b. Discrimination shall include all forms of discrimination, including direct, indirect24 and systemic, and shall also include discrimination based on an actual or perceived25 disability.
3. Discrimination does not include a provision, criterion or practice that is objectively and demonstrably justified by the State Party by a legitimate aim and the means of achieving that aim are reasonable and necessary.26
4. In order to secure the right to equality for persons with disabilities, States Parties undertake to take all appropriate steps, including by legislation, to provide reasonable accommodation,27 defined as necessary and appropriate modification and adjustments to guarantee to persons with disabilities the enjoyment or exercise on an equal footing of all human rights and fundamental freedoms, unless such measures would impose a disproportionate burden.
5. Special measures28 aimed at accelerating de facto equality of persons with disabilities shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; those measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.29
24. Some members of the Working Group considered that the Convention should have a specific reference to both direct and indirect discrimination. Other members considered that the distinction between the two forms of discrimination was not sufficiently clear. They considered that both a reference to "all forms of discrimination" in paragraph 1, and the reference to the "effect" of discrimination in paragraph 2(a), would cover the concept of indirect discrimination.
25. The Ad Hoc Committee may wish to consider the scope of this term, and whether it should apply to the individual's perception of themselves, or society's perception of them.
26. This paragraph has not appeared in any of core international human rights treaties, although the concept has been developed in the jurisprudence of the treaty bodies. The Human Rights Committee has included it, for example, in its general comment on Article 26 of the International Covenant on Civil and Political Rights. The Working Group discussed three options for the consideration of the Ad Hoc Committee: a) The paragraph should not appear in the text at all; b) the paragraph should be included only as an exception to the specific prohibition on indirect discrimination, and c) the paragraph should apply to all forms of discrimination. In addition to those options, some members proposed adding the following phrase to the end of the paragraph: "...and consistent with international human rights law;"
27. The Ad Hoc Committee may wish to consider the following points when considering the term 'reasonable accommodation':
The Working Group considered that there was a need for a concept such as 'reasonable accommodation' in the Convention in order to secure compliance with the principle of non-discrimination.
There was widespread agreement in the Working Group on the need to keep the notion both general and flexible in order to ensure that it could be readily adapted to different sectors (e.g., employment, education, etc.) and in order to respect the diversity of legal traditions.
There was also general agreement that the process of determining what amounted to a 'reasonable accommodation' should be both individualised (in the sense that it should consciously address the individual's specific need for accommodation) and interactive as between the individual and the relevant entity concerned. It was understood that an entity should not be allowed to compel an individual to accept any particular 'reasonable accommodation'. It was also felt, however, that in situations where a range of 'reasonable accommodations' was available - each of which was, by definition, reasonable - that an individual did not have the right to choose the one that he or she preferred.
There was general agreement that the availability of state funding should limit the use of 'disproportionate burden' as a reason by employers and service providers not to provide reasonable accommodation.
Some members of the Working Group supported the proposition that a failure to 'reasonably accommodate' should in itself constitute discrimination, some of those members highlighted General Comment 5 of the Committee on Economic, Social and Cultural Rights as supporting this view.
Other members of the Working Group considered that the Convention should not dictate the manner by which the concept of 'reasonable accommodation' should be achieved or framed under relevant domestic legislation. Specifically, they took the view that it was inappropriate for an international legal instrument designed primarily to engage State responsibility to frame a failure to 'reasonably accommodate' on the part of private entities as a violation of the non-discrimination principle.
28. The term "special measures" is used in other international human rights treaties. The Ad Hoc Committee may wish to discuss the appropriateness of using the term in the disability context, and whether alternative terms could be used.
29. The Ad Hoc Committee may wish to discuss whether special measures in the disability context should be limited in time