There is a range of concepts that underlie non-discrimination law which are important to understand.
De jure discrimination (discrimination in law)
Human rights law prohibits discrimination in law. In some countries, electoral legislation sets out that persons with mental disabilities placed under guardianship are not allowed to vote. Under international human rights law, this is an example of discrimination on the basis of disability. It is a distinction, in law, made on the basis of mental disability that has the purpose as well as the effect of nullifying the recognition of the right to vote for some persons with disabilities.
De facto discrimination (discrimination in practice)
Protection against discrimination goes beyond only prohibiting discrimination in law and includes protection from discrimination in practice. For example, it protects against the actions of employers who make decisions based on stereotypes or assumptions about the abilities or performance of staff with disabilities. An employer who refuses to promote a person with a disability because of a belief that the disability will prevent the person from fulfilling the duties of the post without any evidence that this is in fact the case is, on the face of it, discriminating de facto. It is a distinction on the basis of disability which has the purpose and effect of impairing the right to work (including career advancement).
Direct discrimination
Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to disability. Thus, a refusal to accept a student with a disability in the general education system amounts to direct discrimination. Imagine the following scenario: a company has a policy of not hiring anyone with a history of back problems irrespective of the duties of a position. The policy unlawfully discriminates against people with a disability who can meet the inherent requirements of the job. They are being treated less fairly than other job applicants on the basis of a disability.
Indirect discrimination
Indirect discrimination refers to laws, policies or practices which appear neutral, but fail to take into account the particular circumstances of persons with disabilities— which therefore causes direct harm or has a disproportionate impact on the exercise of their rights. For example, an inflexible requirement in the workplace that all employees have lunch at the same time might constitute discrimination against a person with a disability who has to take medication at a certain time or take periodic rests during the day. While the requirement, on the face of it, applies to all staff and does not refer to persons with disabilities, its effect is discriminatory. Combating indirect discrimination helps get to the underlying biases within society that cause discrimination and exclusion in the first place. It is important to note that indirect discrimination can sometimes be hard to prove.
The Convention's preamble recalls the “difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status”. For example, a woman with disabilities might experience discrimination on the basis of sex as well as disability.
Imagine an internally displaced woman fleeing a war. She is very poor, belongs to an ethnic minority and has a physical disability. In many countries affected by conflicts and humanitarian crises this scenario is familiar. The woman could be subject to multiple forms of discrimination owing to her sex and social conditions as well as her disability. Women are often vulnerable to sexual violence during conflict. Persons with disabilities are also often subject to sexual violence because they are hidden or ignored and might face greater challenges in communicating. As a result, women with disabilities might face multiple risks of sexual violence during conflict, particularly if preparedness strategies fail to take them into account.
Unfortunately, much discrimination is systemic. The charity and medical approaches to disability are still very entrenched in all societies and at all levels. Systemic discrimination takes time to change. Partly as a means of tackling systemic discrimination, article 8 of the Convention requires States to raise awareness about persons with disabilities and to foster respect for their rights and dignity.
Persons without disabilities “associated” with a person with disabilities can also be victims of discrimination on the basis of disability. Consider the case of a woman who was dismissed from her job when her employer discovered that she had a hearing-impaired son. The employer assumed that she would need time off work to look after him. Even though she does not have a disability herself, she suffers discrimination on the basis of her son's disability. In other words, there was a distinction on the basis of disability which had the effect of nullifying the woman's right to work.
Harassment occurs when an individual is subjected to comments, ridicule or any other demeaning conduct on the basis of disability. Legislation should protect against harassment. Article 27 (b) of the Convention refers expressly to protection against harassment related to work and employment. For example, a supervisor who consistently makes someone with a disability do menial tasks at work while others with the same qualifications without a disability have more complicated and interesting tasks could be subjecting the staff member with a disability to harassment.
While all discrimination is prohibited, in some cases, it is permissible to treat two people differently on the basis of disability. Consider the following case: a man who has severe back pain and is unable to bend is rejected for a job as a carpet fitter as he cannot carry out the essential requirement of the job, which is to fit carpets.
Not every differentiation of treatment constitutes discrimination. The criteria for assessing justified differential treatment are found in other areas of human rights law:
If a person cannot perform a job and no reasonable accommodation is possible, then differential treatment is justifiable.