The Convention defines discrimination in article 2 as follows:
“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.
To help understand this definition, it is important to break it down.
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.
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 protecting persons with disabilities but on combating (and ultimately eliminating) discrimination 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 (discrimination 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 certain situations, the Convention seeks to combat 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 discrimination on the basis of a perceived disability, this is evidence that prejudice exists and human rights law seeks to tackle these negative attitudes. In doing so, we can imagine a world without discrimination.
Article 2 clarifies that such distinctions, exclusions or restrictions are violations if they have:
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 highlights 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 persons 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 cannot enter the hospital while a person who can walk is able to enter. While on the surface 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.
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 hindrance, 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 discrimination (discrimination in practice).
The Convention does not seek to create new rights for persons with disabilities. Instead, it seeks to combat discrimination, i.e., those barriers and attitudes that prevent persons with disabilities from enjoying their rights. The ultimate aim is that everyone, whether with or without disabilities, can enjoy the same human rights.
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 people 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 political 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 discrimination covers all rights in all fields.
The definition recognizes denial of reasonable accommodation as a form of discrimination. To promote equality and eliminate discrimination, State parties must take all appropriate steps to ensure that reasonable accommodation is provided.
“Reasonable accommodation” means, for example, making adaptations to the organization of a work environment, an educational establishment, a healthcare 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 particular needs of an individual with a disability to be accommodated, it refers to reasonable accommodation. If the accommodation imposes a disproportionate or undue burden on the person or entity expected to provide it, then failure to do so would not constitute discrimination.
In a number of countries, legislation sets out the factors that should be taken into account when assessing whether the accommodation requested amounts to a disproportionate burden. These include:
Reasonable accommodation is a modification made in favour of and at the request of an individual. Thus, an employee who has a car accident and requires certain modifications to continue working can request reasonable accommodation of the employer. This is different from general accessibility measures under article 9 of the Convention which are not necessarily targeted at individuals (although individuals obviously benefit) but at the community at large. While States must achieve general accessibility over time, an individual can request reasonable accommodation immediately and lodge a complaint with a tribunal if it is not made.
The Convention imposes the burden to ensure reasonable accommodation on States. However, given that much of it is needed in the private sector, States should oblige the private sector, through legislation, to provide reasonable accommodation.