D. Linking non-discrimination with equality: specific measures

Combating discrimination requires more than merely prohibiting it. It also requires getting to the heart of indirect discrimination— changing the underlying biases in society that lead to discrimination in the first place—by promoting equality. For this reason, specific measures are often needed to help achieve equality for persons facing discrimination, including persons with disabilities. Specific measures in favour of a person with a disability are not considered discriminatory; they amount to justified differential treatment. This is recognized in the Convention. Article 5 (4) states:

Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

The Convention therefore recognizes that to ensure de facto equality with others, it may sometimes be necessary to adopt measures that are specific to persons with disabilities.

Such measures can be permanent—for example, building accessible car parks in urban areas for vehicles carrying persons with disabilities—or temporary—such as employment quotas for workers with disabilities. Both are permissible under the Convention and do not constitute discrimination as defined in its article 2.

At times, specific measures in favour of a particular individual or group might be resented by others, who see them as being unfair or even discriminatory. Yet such measures are permissible only to the extent that they redress the imbalance in the enjoyment of human rights between persons with and without disabilities. Once equality between them is achieved, specific measures are no longer necessary.

The formula provided in article 5 must be read in conjunction with the specific non-discrimination and equality measures that are attached to the broad range of rights contained in the Convention, such as in matters of marriage, family, parenthood and relationships (art. 23), education (art. 24), health (art. 25), employment (art. 27), standard of living and social protection (art. 28), and participation in public and political life (art. 29).

Take the right to work in article 27. State parties to the Convention have committed to employing persons with disabilities in the public sector and to promoting their employment in the private sector, including through affirmative action programmes. These are specific measures that seek to redress the under-employment of persons with disabilities in an area where the State has direct influence, namely its employment policies. By actively seeking to employ persons with disabilities, the State can promote equal enjoyment of the right to work. By requiring or encouraging the private sector to introduce affirmative action programmes, the State can influence employment indirectly.

One type of affirmative action programme is the introduction of quotas—e.g., a requirement that 5 per cent of employees have a disability and the imposition of a fine on the employer who does not respect the quota. The Convention does not require quotas. Quotas have advantages and disadvantages. They might lead to tokenism, with employers recruiting any person with a disability at any level simply to meet the quota or paying the fine to avoid the measure all together. On the other hand, quotas might be a way to get persons with disabilities into the workplace, which in turn can lead to economic empowerment and the enjoyment of other rights. Given that the Convention refers to affirmative action programmes without specifying what they are, it is advisable to examine what programmes are most likely to lead to sustainable improvements for persons with disabilities and their right to work. In some cases quotas might work, in others not.

The Committee on the Elimination of Discrimination against Women, in its general comment No. 25 (2004) on temporary special measures (art. 4 (1)), identified some measures which could be relevant to identifying specific measures in favour of persons with disabilities. These include: