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Different Definition – Same Problems – One Way Out?

 

Aart C. Hendriks[1]

 

1 Introduction

 

The principle of non-discrimination is to a certain extent the corollary of equality. Non-discrimination reflects the idea that no one should be subjected to unfair or less favourable treatment because of personal characteristics that in a given context are irrelevant. This principle constitutes a fundamental human right ("the right to be free from discrimination") and is deeply rooted in contemporary international and national law (McKean 1971).

Non-discrimination law is particularly concerned with redressing structural disadvantage and counterbalancing the underlying power inequalities in society, as a result of which people with some personal characteristics encounter more difficulties in enjoying equal rights and opportunities than others. As with other human rights, the main function of non-discrimination law is to challenge power relations in society with a view to protecting non-dominant groups and strengthening their societal position (Goldschmidt 1997). Non-discrimination law therefore typically seeks to offer protection against unfair or unfavourable treatment on grounds known to correlate with disadvantage, exclusion and the denial of equal opportunities. Having a long history of discrimination is an important factor in determining whether and to what extent a ground is covered by non-discrimination law (Massachusetts Bd. of Retirement v. Murgia, 1976).

Around the world, there is a longstanding practice of excluding people with disabilities from mainstream society and subjecting them to all forms of inhuman and degrading treatment (Wolfensberger 1981; Degener 1995). In fact, people with disabilities were (and still are) often perceived as social outcasts and dangers to society. This was painfully reflected in the opinion of US Supreme Court Justice Oliver Wendell Holmes when upholding the forced sterilisation of a woman with mental disabilities:

three generations of imbeciles are enough (Buck v. Bell, 1927 at 207).

People with disabilities therefore doubtless are constituent among those groups of non-dominant people most in need of and entitled to legal protection against discrimination.

Against this background it is rather surprising, if not disappointing, to note that only a few countries have enacted legislation that offers adequate protection against discrimination on grounds of disability. In the majority of countries, the law continues to condone, endorse and perpetuate disability discrimination by "protecting" the rest of society from people with disabilities through segregation.[2]

International human rights law has so far been unable to rectify this flaw in national law. There are only a few treaties which offer protection against disability discrimination, mostly inadequately by way of an open-ended "or other status" criterion (infra 7.2). The fact that disability discrimination is condemned by a large number of declarations, resolutions and recommendations adopted by all kinds of international organisations and conferences cannot fully compensate for this, since these other instruments – different from treaties – are not legally binding.[3] This also holds true with respect to the United Nations (UN) Standard Rules on the Equalization of Opportunities for People with Disabilities (Standard Rules),[4] by far the most important and comprehensive international instrument guaranteeing the rights of people with disabilities. Due to the vigorous opposition of some UN member states – notably the United States – this text was deprived of the status of a treaty, to become an "international instrument of a different type",[5] which is a euphemism for a non-binding instrument.

The twenty-first century promises to become the century of legal change. It is expected that both the international and national legal landscape with respect to disability discrimination will soon undergo a metamorphosis. Numerous international organisations and countries have committed themselves to expanding the scope of existing non-discrimination treaties and acts to include the ground of disability, or to introduce comprehensive disability specific non-discrimination codes or provisions. Many international organisations and countries have drawn inspiration from the Americans with Disabilities Act (ADA),[6] from the successes and shortcomings of which one can hopefully learn.[7]

The reason why these commitments are not always translated into concrete action often has to do with the difficulties legislatures encounter when seeking to define the term disability. The definitional question is a crucially important aspect of non-discrimination law, since the meaning attached to the term "disability" determines whether an individual is a member of the protected class or not, and can thus file a complaint in case of an alleged violation of his or her right not to be discriminated against. The definition of disability in the ADA, and the (restrictive) way this is currently being interpreted by US courts, has given rise to great controversy, and raises the fundamental question of how to define disability as a prohibitive ground for discrimination.

I will begin this paper with a comparison of various theoretical approaches to disability, as these models underlie present and future disability definitions (§ 2). I will subsequently review a number of disability definitions, focussing on international and national non-discrimination law (§ 3). I submit that all these definitions raise similar "demarcation problems," that is to say, they draw an arbitrary line between people who are protected by the law and those who are not protected, a line which can easily be contested (§ 4). This raises the question whether it is really necessary to define the concept of disability for the sake of non-discrimination law, when we are concerned about people being subjected to unfair or less favourable treatment because of human attributes relating to independent functioning and societal participation (§ 5). I will subsequently argue that, at least with respect to non-discrimination law, it is better to use the neutral and inclusive term "capabilities" instead of the polarised and exclusive term "disability" (§ 6). Thereafter, the application of non-discrimination law, and the choice of the focus of comparison, will be examined in greater detail (§ 7). I conclude by suggesting that we can do without a definition of disability if we are to introduce legislation aimed at eliminating disability discrimination and promoting equal opportunities for people with disabilities, although we should always remain aware of those most vulnerable to disadvantage, exclusion and inequality as persons entitled to the highest level of protection (§ 8).

2 Theoretical approaches to disability

Over the course of the last few decades, there has been an enormous discussion on how to define disability and related terminological issues (Zola 1993). This followed attempts by medical professionals to design, along the lines of the International Classification of Diseases (ICD), a one-dimensional taxonomy stipulating the impact of disease or disorder on the individuals concerned. These efforts resulted, in 1980, in the adoption by the World Health Organization (WHO) of the International Classification of Impairments, Disabilities and Handicaps (ICIDH). This classification has had an immense impact on the medical community and policy makers, but was never accepted by its "users", those being people with disabilities themselves.

2.1 Locating the problems of disability

The discussion of how to define disability has largely been a discussion of where to locate the problem(s) of disability. In this discussion two opposing views – or "pathologies" (Rioux 1997) – can be distinguished (Waddington 1995a).

a Individual models

Disability is traditionally defined as an observable physical, mental, sensory or psychological deviation from normality caused by disease, trauma or another health condition. As a result of these medically defined conditions, a person with disabilities experiences functional limitations, some of which can be prevented by medical interventions or compensated for by way of aids or rehabilitation, while others result in permanent restrictions of life activities. For these reasons the individual model is often called the medical or biomedical model.

All individual models have in common the fact that they situate the problems of disability in the person concerned while paying little or no attention to his or her physical and social environment. In other words, a disability is perceived as an individual attribute, and all problems relating to disability stem from individual functional limitations.

These models heavily rely on medical research. The medical sciences are seen as an objective tool for explaining the genesis of deviation from normality and for understanding the functional limitations thought to be inherent in people with disabilities. Medical research is subsequently applied towards eliminating the disability by developing methods of intervention to bridge the gap between the norm and the deviation, or if such cannot be achieved, to rehabilitating the person concerned to the greatest extent possible or comparatively calculating the loss of "normal" functional capacities.

The individual (and medical) approach to disability underlies almost all medical taxonomies, including the ICIDH (WHO 1980). The latter classification builds on a threefold distinction (impairments, disabilities and handicaps) among what are perceived as impacts from disease or disorder. The medical view is also prominent in the frequently used concepts of quality adjusted life years (QALYs) and disability-adjusted life years (DALYs). A QALY is a unit that quantifies a health situation by correcting the number of life years through a judgment of the quality of life (Van Busschbach 1994), while a DALY is a unit that measures the burden of disease by combining (a) losses from premature death, defined as the difference between actual age at death and life expectancy at that age in a low mortality population, and (b) loss of healthy life resulting from disability (World Bank 1993).

In the literature, various other forms of individual models have been distinguished. One of these is the economic model of disability, which equals disabilities with human harm resulting in a loss of earning capacities (Klosse 1989). These losses can be compensated for either by remedying the injuries – by way of offering rehabilitation and/or by adopting the work or work environment – or by bridging the income gap through welfare support and payments.

Other variations of the individual approach to disability include administrative models that relate to specific areas of life, philanthropic models that are the models presented by charities, and lay models of disability, which determine how the public at large thinks of people with disabilities (French 1994).

b Social models

The social approaches to disability evolved out of dissatisfaction with the individual models, which were allegedly based upon able-bodied assumptions of normality. The social models are, instead, centred around the idea that disability can be seen as a social construct. That is to say, society creates disability by accepting an idealised norm as given and by measuring deviation therefrom. The "social constructionists" therefore reject the causal relationship between individual impairment and disability put forward by the individual models, and contend that disabilities are products of the failure of the physical and social environment to take into account the needs of particular individuals or groups (Oliver 1985; Rebell 1986; Abberley 1986; Liachowitz 1988; Oliver 1990).

The social model focuses on the interaction between people with functional limitations and broader social and economic forces, paying special attention to the question of how institutions, organisations and processes that constitute society compound the functional limitation by constructing social and economic processes that fail to take impairment into adequate account. The disadvantage, exclusion and inequality many people with disabilities experience are therefore not taken for granted, but perceived as a form of injustice which requires a legal and political response.

The social models are reflected in the definitions of disability that are advocated by the international disability movement, such as the famous definition of the Union of the Physically Impaired Against Segregation, that was later on also adopted by Disabled Peoples's International (DPI):

disability [is a] disadvantage or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities. Physical disability is therefore a particular form of social oppression. (UAIPS 1976).

In 1994, on the occasion of the European Day of Disabled Persons, a new definition was presented that also clearly builds on the social concept of disability. This definition reads as follows:

A Disabled Person is an individual in their (sic) own right placed in a disabling situation, brought about by environmental, economic and social barriers that the person, because of their (sic) impairment(s), cannot overcome in the same way as other persons. These barriers are all too often reinforced by the marginalising attitudes of society.

It is up to society to eliminate, reduce or compensate for these barriers in order to allow each individual to enjoy full citizenship, respecting the rights and duties of each individual (Waddington 1995b).

The minority-group model of disability is closely related to the social model of disability. It argues that people with disabilities are a suppressed minority and that discrimination is the major obstacle to them, inhibiting independent functioning and societal participation. In this respect, Barnes even speaks about "disablism" to indicate the similarities between discrimination on the basis of disability, race, sex and other recognised grounds (Barnes 1991). Another eloquent proponent of this view is Hahn, who has written extensively on the minority-group approach (Hahn 1985; Hahn 1986).

2.2. Factors relating to independent functioning and societal participation

Over the course of the last few years, various scholars have argued that the problems related to disability cannot be solely attributed either to the individual or to the environment, as proponents of the individual and social approaches respectively tend to claim, but are much more complex and require a deeper understanding of the various intrinsic and extrinsic factors determining (and hindering) the independent functioning and societal participation of individuals (Groce & Zola 1993; Pinder 1995). Some authors find the social model almost as determinist as the individual model, since its underlying idea is that disability automatically results in disadvantage. Others contend that social models proved to be a very powerful device for demanding social change by identifying society as the main problem for people with disabilities, but that the models said little about people with disabilities themselves. The minority-group model, on the other hand, is also criticised for running the risk of reinforcing separations instead of breaking down walls of exclusion (Shakespeare 1999). It is also maintained that the minority-group model is based upon a forced analogy between racial minorities and disabled people that breaks down at many instances (Bickenbach 1999).

In response to this criticism, some social constructionists have adapted their model (e.g. Priestly 1998). For others, this has been reason to try to develop a new, multi-dimensional model that integrates the individual and social models and focuses on societal participation. Valuable research was carried out by the social anthropologist Fougeyrollas, who studied the determinants of societal participation. He proposes distinguishing between intrinsic factors belonging to the person, extrinsic factors belonging to the environment, and factors relating to the specific life situation (Fougeyrollas 1998). Another important thinker and so-called "universalist" is Bickenbach who, building on the work of the late Zola, asks for policies that respect difference and widen the range of normality (Bickenbach 1999).

Criticism of the individual and social models have also deeply influenced the revision process of the ICIDH, which should lead to the adoption of the ICIDH-II later in the year 2000 (Halbertsma 1995; Bickenbach et all. 1999). The forthcoming classification, which focuses on functioning and disability as an important factor of health, covers disturbances at bodily, individual and societal levels. Functioning and disability are umbrella terms that cover three dimensions: body functions and structure; activities at the individual level; and participation in society.

3 A review of disability definitions

After this examination of theoretical models it becomes time to see how disability has been defined in non-discrimination legislation in the US and some other countries known to have laws prohibiting discrimination on grounds of disability.

From the definitions included in Appendix B it can be learnt that various legislatures have tried to give a very detailed description of the term "disability" as a prohibitive ground for discrimination (Australia, Ireland, New Zealand, South Africa, UK and US), whereas others contented themselves with a basic delineation of disability (Canada/HRA & EEA, OAS, Sweden and UN, see also Commission 2000) or have not even endeavoured to define the ground at all (Canada/Charter, Finland and Germany, see also Council 1996).

The detailed definitions are all centred around the term "impairment" (New Zealand, South Africa, UK and US) or otherwise worded "conditions" that affect a person's bodily or mental functions (Australia and Ireland). These definitions are therefore mainly based on an individual model of disability, even though it is also recognised – at least in some cases – that a disability may only come to light in the interaction between an individual and his or her environment. It remains, however, indispensable for someone allegedly being discriminated against on the basis of disability to provide at least prima facie proof of an impairment (past, present, future or perceived) or similar condition, in order to be recognised as a member of the protected class.

The more basic definitions contain a few characterisations which are deemed to be inherent to disability. All these characteristics focus on "impairment" (Canada and OAS) or "functional limitations" (Sweden and UN). It can therefore be maintained that the basic definitions also situate the main problem of disability in the persons concerned. An alleged victim of disability discrimination accordingly has to prove that he or she has an impairment of a physical, mental, sensory, or psychological nature, as a precondition for being covered by a non-discrimination law.[8] If the plaintiff fails to meet this test, than he or she is not covered by the law and cannot derive protection from it.

It is maintained here that even those non-discrimination laws that do not contain a definition of disability predominantly adhere to an individual model of disability. This follows from the fact that disability is placed among other prohibitive grounds for discrimination that are all personal characteristics of an individual or a group. This is rather clear from Article 6 of the Finnish Constitution which describes the listed grounds as "reason[s] that concern his or her person." It therefore seems logical that the ground of disability is to be understood in an analogous way.

This tripartite classification is, admittedly, a very rough and imprecise categorisation of approaches to disability definitions, and does not even include non-discrimination provisions where disability is or might by covered by other descriptive grounds, such as personal or social conditions and circumstances (Italy and Spain). The mentioned definitions contain many more particularities on the basis of which distinctions can be made. Some of them refer, for example, to the effect of an impairment on "activities" (OAS, UK and US) whereas others equal disabilities with functional limitations (OAS, Sweden and UN). There are also definitions which explicitly include people with a history of disability (Australia, Canada/HRA, Ireland and USA), a perceived or imputed disability (Australia, Ireland, South Africa and USA), and/or a future disability or genetic predisposition (Australia, Ireland, New Zealand, South Africa and Sweden), whereas other confine themselves to covering only present or actual disabilities (UK).

Reference should also be made to the Indian Constitution. The non-discrimination provision (Article 15) does not refer to disability as a prohibitive ground for discrimination, but it is – according to the second paragraph – forbidden to subject a citizen to a disability. The Indian Constitution thus employs a radically different concept of disability, in the sense of an externally imposed disadvantage. In the Indian perception, disability is not an independent prohibitive ground for discrimination but a disadvantage placed on a person which leads to discrimination on another ground. However, it would be wrong to conclude from this that India has adopted a social model of disability.

4 Appraisal

From the above it becomes clear that a wide variety of approaches to disability definition are applied around the world. Nonetheless, they all seem to have in common the fact that they are individually centred, that is to say, they attribute the problems associated with disability to personal characteristics, at least to a certain extent. They therefore mainly embrace an individual model of disability.

The more detailed definitions have in common the fact that they all seek to describe comprehensively and exhaustively the members of the protected class. The advantage of this approach is that it becomes optimally clear, both for potential plaintiffs and defendants, who qualifies as a person with disabilities and who does not. The disadvantage of this approach, however, is that these definitions are rather inflexible and preclude new evolutions from taking place, or at least from being recognised by the law.

The basic descriptions of disabilities may be imprecise, as legislatures confined themselves to giving a few basic characterisations of disability, but they allow for more flexibility and for the incorporation in law of developments in medical and social sciences or society at large. Even more flexibility is offered by an open definition, as may become clear from a judgment of the European Court of Human Rights with respect to the meaning of the term "persons of unsound mind" as laid down in Article 5 para. 1(e) of the European Convention on Human Rights (ECHR). In the Winterwerp case the Court held:

The Convention does not state what is to be understood by the words "persons of unsound mind". This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the [Dutch] Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment developing and society's attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more wide-spread (Winterwerp, 1979 at ¶ 37).

For people coming from the US and other common law (inspired) countries where detailed legal definitions are the norm, it may be surprising to see that there are jurisdictions where the law does not articulate who is a "person with disabilities." Such persons might have the opinion that the absence of a definition would make it difficult, if not impossible, to determine who is qualified for the protection of the law and who is not (Gutow 1998). The experience in countries with basic definitions and open grounds shows, however, that "demarcation problems" in these countries are not necessarily greater than in others (Disability Rights Task Force 1999).

All countries with disability non-discrimination legislation, no matter what type of disability definition or which approach to disability they apply, are confronted with demarcation problems. These problems have given rise to an extensive body of jurisprudence. From this body it becomes abundantly clear that it is rather unpredictable, bordering on arbitrariness, whether a person is covered by a given non-discrimination law or not (for the US, see e.g. Southeastern Community College v. Davis, 1979; Bragdon v. Abbott, 1998; Sutton v. United Airlines, 1999; Murphy v. United Parcel Service, 1999; Albertsons, Inc. v. Kirkingburg, 1999). It is not only this sense of arbitrariness that raises concern, but also the sheer fact that plaintiffs first have to "prove" that they are a member of a protected class. This latter requirement sometimes necessitates the provision of extensive medical evidence to demonstrate that a plaintiff is disabled in the eyes of the law before courts will recognize his or her standing to bring the case. This is a particularly difficult requirement to meet in a case where a person does not have a medical condition that constitutes a disability, but is nevertheless treated – and discriminated against – as if he or she were disabled, because of fears or prejudices related to a medical condition wrongly assumed to be contagious. Various authors have expressed severe criticism of this demarcation problem under the ADA. According to the Canadian scholar Bickenbach, an inordinate amount of time and energy is spent nowadays on determining whether the individual plaintiff qualifies as a member of a group to whom the ADA applies (Bickenbach 1999). As Mayerson has stated, establishing whether a plaintiff has a disability has become a threshold determination in any ADA case (Mayerson 1997).

The typical response to problems with the scope of disability definitions is to call for their enlargement, to make sure that more people who were wrongly excluded will be covered in the future (Disability Rights Task Force 1999). There are also authors who, along the lines of the social models of disability, argue that more attention should be paid to socially constructed limitations (Parmet & Jackson 1997).

5 Do we need a definition of disability after all?

Given the demarcation problems which will likely always exist, one could also ask oneself whether, in legislation that seeks to eliminate disability discrimination and promote equal opportunities for people with disabilities, a definition of disability is needed at all. This depends, it seems, on the meaning of discrimination as a principle of human rights law and the way this has been codified in international and national law.

At the beginning of this paper it was argued that the principle of non-discrimination reflects the idea that no one should be subjected to unfair or less favourable treatment because of personal characteristics. This interpretation is also inherent in the definition of discrimination given by the Human Rights Committee, a UN organ of independent experts established to supervise the implementation of the International Covenant on Civil and Political Rights:

any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition or enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms (Human Rights Committee 1990).

The term "discrimination" therefore has a pejorative connotation[9] and is in several jurisdictions linked to the concept of disadvantage. Discrimination is to be distinguished from (fair) "differentiation" (Skogly 1992; Darby, 1990), that is to say, a form of different treatment for which there is an objective and reasonable justification.[10] Furthermore, discrimination is inextricably linked to redressing structural disadvantage and counterbalancing underlying power inequalities in society, as a result of which people with some personal characteristics encounter more difficulties in enjoying equal rights and opportunities than others. The mere fact that a differentiation is unfair does not automatically constitute discrimination. The term discrimination should be reserved for unfair or less favourable treatment because of particular personal characteristics.

Another reason not to confound discrimination with differentiation is that discrimination[11] also takes place if differently situated persons are, without an objective and reasonable justification, treated the same instead of differently, in proportion to the unalikeness of their situation (Hendriks 1995; Thlimmenos, 2000). Neglecting difference can be as detrimental as overemphasizing inter-human variation.

It is, in this respect, important to note that not every human attribute qualifies as a prohibitive ground for discrimination. The principle of non-discrimination primarily seeks to prevent the unfair or less favourable treatment of people because of immutable characteristics that are either inherent or uncontrollable (such as sex and race), or characteristics which only can be changed or suppressed at the detriment of one's identity (such as religion, political opinion and sexual preference) (Frontiero v. Richardson, 1973).[12] Or, in brief, "grounds relating to personal characteristics of the individual or group" (Andrews v. Law Society of British Columbia, 1989).[13] Making wrongful differentiations on these grounds impairs the equality of human beings. This is also the reason why only a selective number of human attributes, and not all forms of inter-human variation (including e.g. talents, hair colour, voice, memory), are considered as grounds for non-discrimination.

Prohibitive grounds for discrimination are, as becomes clear from the above, always seen as human attributes. This has been motivated by the fact that non-discrimination law is traditionally concerned with persons who, because of individual or group characteristics, are being discriminated against by others. Protected classes are therefore always defined on the basis of personal characteristics, and not on the basis of environmental factors. This approach is at odds with social models of disability which locate the origin of disability problems in the human environment.

It is also important to note that prohibitive grounds for discrimination are also generally formulated in an inclusive way, that is to say, in a manner that covers all human beings and not just the group disproportionately affected by discrimination.[14] This explains why such neutral terms are used as "sex," covering both men and women; "race," which includes people of every race, skin colour, form of descent, and type of national or ethnic origin;[15] "religion," which covers people of every denomination as well as non-believers; "age," a neutral criterion including both young and elderly people, et cetera. The criterion "disability" is inconsistent with these grounds, since disability is not a generally applicable human characteristic, but rather a group characteristic that separates people with disabilities from their able-bodied peers. This is a highly problematic approach, if only because ability-disability is a continuum, with very few people finding themselves at the extreme points of the spectrum. Every point of demarcation (and definition of disability) is therefore inherently arbitrary. This does not mean that the term "disability" should be taken out of all laws and programmes altogether; this exclusive term can still be very useful for defining those entitled to preferential treatment, social security, welfare, and other support and facility measures, but it is less appropriate for non-discrimination law.

The symmetric way of describing prohibitive grounds for discrimination bears in it the risk of concealing structural patterns of discrimination, misrepresenting social problems to which non-discrimination law purports to respond, and ignoring different needs and justified distinctions between people. This approach has therefore also been heavily criticized. In order to reduce the risks inherent in a symmetric approach, it is important to acknowledge that women, racial, religious, national and sexual minorities, and people with disabilities run the risk of experiencing forms of disadvantage, exclusion and barriers to societal integration that their counterparts (men, dominant racial, religious, national and sexual groups, and able-bodied persons) may never face during their life. Able-bodied persons will, for example, never be excluded from the bulk of social activities, nor will they ever feel as embarrassed and humiliated by the way in which able-bodied people and institutions react to people with disabilities. Non-discrimination laws and measures should therefore, despite a neutral formulation of prohibitive grounds for discrimination, primarily be tailored to eliminating discrimination against members of non-dominant groups, thus taking into account disadvantage, exclusion and the denial of equal opportunities (asymmetric approach).

6 From disabilities to capabilities

6.1 Rationale

The concept of discrimination is, by definition, relational or comparative. This follows from the Aristotelian notion of equality according to which "things that are alike should be treated alike and things that are unalike should be treated unalike in proportion to their unalikeness." (Aristotle 1980). A person can therefore only be found to be discriminated against in relation to or in comparison with some other person who serves as a standard. Or, to say it briefly, discrimination entails comparison (Banton 1999).

The same holds true with respect to the term disability. The term has no independent meaning without any form of comparison. This comparative aspect is embedded in the prefix "dis" which indicates that a person does not have the same physical, mental, sensory, or psychological abilities as those that are deemed normal. In other words, the term disabled denotes making a negative distinction between people on the basis of their abilities, or capacities, with able-bodied persons implicitly serving as a focus of comparison.

Disability discrimination can, however, take many forms and also includes, at least in my view, making unjustified distinctions between disabled persons. For example, making adaptations for deaf people but not for blind people, or the other way around. In such cases, the counterpart to whom one is compared is someone who is also, but differently, (dis)abled. This forms an additional reason to avoid the term "disability" in non-discrimination law, since its use may automatically result in comparisons being made between disabled and non-disabled persons, and thus preclude courts from comparing people with different "types" of disabilities.

It is therefore argued here that the inclusive term "capabilities," a short-hand, catch-all expression for those human attributes essential for independent functioning and societal participation, is a better term to be used in non-discrimination law than disability. Capacities is a neutral and inclusive term, covering both able-bodied and disabled persons, and does not suggest that a disability discrimination claim can only be grounded on a comparison made between a disabled person and a similarly situated non-disabled counterpart.

6.2 Interpretation

It is important to interpret the attributes covered by the term capabilities broadly. These should not only include a person's – literal – abilities, but also all those attributes which determine a person's functioning and participation, notably a person's physical, mental, sensory and psychological condition. These attributes are not only a precondition for how certain abilities can be exercised, but may also be the very root-cause of (dis)ability discrimination. In this respect it should be remembered that many people are being discriminated against because of prejudices or other value judgments about their physical, mental, sensory and psychological condition. These judgements, such as fear of contamination or disgust, may be unrelated to any actual loss in a person's ability to function and participate, but they are as disabling in their effect.

6.3 Application

How can disability discrimination be established when the protected class of persons is not confined to people with disabilities, but when the law prohibits the unfair and less favourable treatment of any person because of capabilities? And how does the notion of capabilities relate to the duty to provide effective accommodation (also known as "reasonable accommodation" and "reasonable adjustment")?

Before answering these questions, it should be recalled that the primary objective of non-discrimination law is not the prohibition of differentiation, but the elimination of disadvantage, exclusion and the denial of equal opportunities, particularly for non-dominant groups. Secondly, discrimination only takes place when a prohibited ground for discrimination is used as a selection or exclusion criterion in situations where the ground is irrelevant or where it is possible to provide an effective accommodation which, for unjustified reasons, is being denied. Not hiring a blind person as a taxi driver does not therefore constitute discrimination, since "vision," at least with respect to driving a car, is a relevant capability on the basis of which an employer can – and maybe should – differentiate. The same could hold true with respect to a university who turns down the application of a student with a learning disability. For university study, "intelligence" – leaving aside the issues raised by its definition and measurement – is a relevant capability which justifies differentiation. The situation would be different if a university were to decide to exclude wheelchair users, left handed, blind and deaf students. Mobility, left or right handedness, vision and hearing are capabilities which, in general, are irrelevant selection criteria for universities. A university applying one of these capabilities as a selection criterion therefore runs the risk of being found guilty of disability or capabilities discrimination. In other words, capabilities can only serve as selection criterion when they are directly and closely related to the function(s) to be performed.

These examples should be distinguished from cases where an landlord prefers someone with dark hair over a blond person as tenant, or someone who is tall and thin over a small and obese person. Hair colour, length and weight are not capabilities, although these human characteristics may, in some instances, reflect a certain condition. Differentiation on these grounds therefore, at least generally, does not constitute disability or capabilities discrimination. This is not to say that it is necessarily fair to distinguish on these ground. It should be reminded, however, that non-discrimination is not the equivalent of fairness, but is a right in itself with its own background, aims and taxonomy.

In cases where a person, on the basis of a capability which is directly and closely related to the function(s) to be performed, is at risk of being excluded due to incapacity, then the provider of goods of services should, at least in my view, examine whether the lack of a necessary ability can be compensated for by an effective accommodation. This affirmative duty placed on providers of goods and services, as well as schools, employers, landlords and others, is meant to take away disadvantage and secure equal opportunities, notably for members of groups prone to discrimination. For the latter reason, it is submitted here that the justification for not making such an adaptation or modification should depend on the recipient at issue. In a case where the person concerned pertains to a group that has a history of disadvantage, exclusion and denial of equal opportunities, such as wheelchair users, then the provider of goods and services should furnish more evidence that the necessary adaptation or modification is unreasonable (i.e., constitutes an "undue hardship") than in a case where the potential recipient with a "wrong" capability – e.g. the person is "only" short sighted – is not otherwise disadvantaged and belongs to the dominant societal group.

7 Why "capabilities" should be explicitly recognised as prohibitive ground for non-discrimination

7.1 Introduction

While I need not articulate the precise meaning of non-discrimination as a principle of law and as a legal right, for the purposes of this paper, it is important nonetheless to assess the implications of being or not being covered by an enumerated ground in non-discrimination law, and to have a closer look at the way in which non-discrimination provisions are being applied by courts and quasi-judicial bodies. In doing so, I will largely confine myself to international human rights treaties and their provisions prohibiting discrimination.

7.2 Grounds for non-discrimination

Some people might say that there is no need to discuss the incorporation of "capabilities" as a forbidden ground for discrimination in non-discrimination law, since the law now prohibits all forms of discrimination[16] and thereby also includes disability or capabilities discrimination. This assertion is, however, only partially true.

Many instruments contain an exhaustive list of prohibitive grounds for discrimination.[17] Classifications made on non-enumerated grounds cannot be challenged under such instruments,[18] unless an apparently neutral provision, criterion or practice factually disadvantages a substantially higher proportion of people belonging to a prohibited ground for discrimination than their counterparts. The term "indirect discrimination," also known as "disparate impact," has been coined to refer to these latter situations.

Non-discrimination instruments containing a non-exhaustive list of prohibitive grounds for discriminations do not necessarily offer the required level of protection against disability or capabilities discrimination (Hendriks 1999; Hendriks 2000). These instruments typically contain a – seemingly illustrative – non-exhaustive list of forbidden grounds for discrimination, that is supplemented by the open-ended criterion "or other status."[19] Since disability or capabilities is usually not listed in these instruments, protection against disability or capabilities discrimination is dependent on the way courts and (quasi-)judicial bodies interpret and apply the criterion "other ground." From the case law it becomes clear that courts and (quasi-)judicial bodies make a sharp distinction between listed grounds on the one hand and non-listed on the other. Listed grounds are assumed to correspond with suspect classifications, that is to say, classifications which immediately raise the suspicion of discrimination. This implies that it is commonly sufficient for a plaintiff to deliver prima facie proof of discriminatory acts, after which the court will shift the onus of proving non-discrimination on to the defendant. In the case of a discrimination complaint based on a non-listed ground,[20] courts and (quasi-)judicial bodies commonly require the plaintiff to bear the entire burden of proof, and tend to apply a high standard of scrutiny that effectively leaves defendants with a large margin of discretion to decide what constitutes a justified differentiation. In these cases the plaintiff has to prove that the distinction made by the defendant did not serve a legitimate goal, that the relationship between the goal and the means was disproportionate or that the differentiation was otherwise unreasonable, and that the differentiation did not fall within the margin of discretion of the defendant. It is only in exceptional cases that these discrimination complaints yield success in court.[21]

From the above, I conclude that the protection non-discrimination law offers to people with disabilities is to a large extent dependent on the explicit recognition of capabilities as an enumerated prohibitive ground for discrimination. There is therefore every reason to campaign for the incorporation of "capabilities" or any similar inclusive term in non-discrimination instruments.

7.3 (Defining) the focus of comparison

Non-discrimination instruments usually do not indicate with whom comparisons should be made in order to establish "distinction, exclusion, restriction or preference" (Human Rights Committee 1990).

From the case law of international courts and (quasi-)judicial bodies it can be learnt that a comparison usually takes place on an individual level. A comparison is made with a similarly situated counterpart, that is to say someone who is different from the plaintiff with respect to the invoked non-discrimination ground, but the same or similar with respect to all other relevant features. It is usually evident who should serve as a focus of comparison. There have, however, also been instances where this is not the case. For example, should the way a pregnant woman is treated be compared with the way a man or the way a non-pregnant woman is treated (Bliss v. Attorney General of Canada, 1976)? Can a gay man who is being harassed by his male colleagues be the victim of sex discrimination, or does sex discrimination only offer protection against harassment from people of the opposite sex (Oncale v. Sundowner Offshore Services Incorporated, 1998)? And should the way a member of a religious minority is treated be compared with the way a member of another religious minority is treated, or with a representative member of the dominant religious group, or maybe even with a non-believer? Nonetheless, in general it is not difficult to identify an appropriate counterpart, particularly not if the courts relate the concept of discrimination to the elimination of disadvantage and exclusion and the promotion of equal opportunities. Here it should once more be recalled that discrimination is a pejorative term and not the same as differentiation. In defining the focus of comparison, attention should also be paid to the function of non-discrimination law, which is to redress structural disadvantage and to counterbalance the underlying power inequalities in society with a view to protecting members of non-dominant groups and strengthening their societal position.

The test applied is slightly different in the case of a plaintiff arguing that discrimination is the result of the application of a seemingly neutral provision, criterion or practice, which disadvantages a substantially higher proportion of people on a forbidden ground for discrimination (cf. Griggs v. Duke Power Company, 1971; Jenkins, 1981; Bilka Kaufhaus, 1986; Danmark v. Danfoss, 1989). Establishing indirect discrimination – or "disparate impact" – entails making a group-based comparison and requires that the adverse impact on one's own group can be demonstrated.

The lesson we can learn from this for the elimination of disability or capabilities discrimination is – as said before – that we should not automatically subdivide humanity into disabled and able-bodied persons, wherever this line of demarcation is to be drawn. This particularly holds true with respect to alleged instances of indirect discrimination. Measures or practices that have a significantly negative effect on a particular group of people with disabilities, let us say wheelchair users, do not necessarily have to affect all people with disabilities,[22] and perhaps not even all wheelchair users.[23] I would still argue that in such cases, adversely affected persons should be able to challenge a contested measure or practice in court, something that would probably not be possible if a non-discrimination law that availed itself of the term "disability" only allowed for a comparison between disabled and able-bodied persons. The latter problem can be prevented by using the inclusive term capabilities instead of the exclusive term disabilities as a prohibitive ground for discrimination. The term capabilities allows for optimal flexibility with respect to the choice of the focus of comparison and the definition of affected groups, while acknowledging the disadvantage, exclusion and barriers to societal integration which all people with disabilities face, be it to different degrees.

8 Final remarks

The conclusion of this paper is that there is an urgent need to offer people with disabilities full protection against discrimination by expanding the scope of international and national non-discrimination law. This should not be done, as one might expect, by adding the exclusive ground of "disability," but by using instead the neutral and inclusive term "capabilities" or a similar term indicating that we are talking about "an infinitely various but universal feature of the human condition" (Bickenbach 1999). There is no need to define this term,[24] as long as it is clear that it covers all human attributes essential for independent functioning and societal participation, including a person's physical, mental, sensory and psychological condition.

My plea to refer to "capabilities" should not allow us to close our eyes to the structural disadvantage, exclusion and barriers to societal integration which people with disabilities face in an able-bodied dominated world. It is therefore important for non-discrimination laws to be applied in an asymmetric way[25] to promote real equality. That is to say, our goal should be substantive equality, a notion of equality that is concerned with the construction of equal social conditions that take differences into account, and not just formal equality, a notion of equality that restricts itself to prohibiting the less favourable treatment of individuals who are similarly situated (Vierdag 1973; Loenen 1995; Borgetto 1999). An asymmetric interpretation of non-discrimination law with respect to the term capabilities presupposes that the law recognises structural and historical disadvantages, and that it is particularly concerned with the protection of non-dominant groups and the strengthening of their societal position.

At the same time, we should remain aware of the fact that not all inequality problems will automatically cease to exist after the incorporation of "capabilities" as a prohibitive ground for discrimination in international or national non-discrimination law, or even after the introduction of special laws prohibiting discrimination on grounds of "capabilities." Many of the disadvantages encountered by people with disabilities are more the result of distributive justice problems, and not so much caused by discriminatory measures or practices (Bickenbach 1999). Continuous priority should therefore be given to the respect, the protection and the realisation of social human rights, such as those laid down in the International Covenant of Economic, Social and Cultural Rights, and not only on the promotion of political and civil rights, because "All human rights are universal, indivisible and interdependent and interrelated" (Vienna 1993).

Appendix A

LIST OF ABBREVIATIONS

ACHPR African Charter on Human and Peoples' Rights (1986)

ACHR American Convention on Human Rights (1978)

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women (1979)

CERD International Convention on the Elimination of All Forms of Racial Discrimination (1965)

CFR Code of Federal Regulations

DALY disability-adjusted life years

DPI Disabled Peoples's International

EC Treaty Treaty establishing the European Community (1957, as revised)

ECHR European Convention on Human Rights (1950)

ECOSOC Economic and Social Council of the UN

ESC European Social Charter (1961; revised in 1986)

ICCPR International Covenant on Civil and Political Rights (1966)

ICD International Classification of Diseases

ICESCR International Covenant on Economic, Social and Cultural Rights (1966)

ICIDH International Classification of Impairments, Disabilities and Handicaps

OAS Organisation of American States

QALY quality adjusted life years

UDHR Universal Declaration of Human Rights (1948)

UPIAS Union of the Physically Impaired Against Segregation

UN Charter United Nations Charter (1945)

UK United Kingdom

US United States of America

WHO World Health Organization

Appendix B

REFERENCES TO AND DEFINITIONS OF DISABILITY IN LEGAL TEXTS

AUSTRALIA

Disability Discrimination Act 1992

Section 4 – Interpretation

(1) In this Act, unless the contrary intention appears:

...

"disability", in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person.

CANADA

Canadian Charter of Rights and Freedoms (1982)

Section 15 - Equality rights

1. Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

2. Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Canadian Human Rights Act (1985)

Section 3 - Prohibited grounds for discrimination

1. For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

2. Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex.

Section 25 - Definitions

In this Act,

...

"disability" means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

Employment Equity Act (1995)

Section 2 - Purpose of Act

The purpose of this Act is to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.

Section 3 - Definitions

In this Act,

...

"persons with disabilities" means persons who have a long-term or recurring physical, mental, sensory, psychiatric or learning impairment and who

(a) consider themselves to be disadvantaged in employment by reason of that impairment, or

(b) believe that a employer or potential employer is likely to consider them to be disadvantaged in employment by reason of that impairment,

and includes persons whose functional limitations owing to their impairment have been accommodated in their current job or workplace;

...

European Communities/European Union

European Commission

People with disabilities do not constitute a homogeneous group and there is a broad range of disabilities and issues. Disabilities may be apparent or hidden, severe or mild, singular or multiple, chronic or intermittent. Types of disabilities include mobility/agility, mental/cognitive, hearing, speaking, and visual impairments (Commission 2000 at 4).

"people with disabilities" is taken to include any person with an impairment of a physical, sensory, mental, or intellectual nature who faces obstacles to participation on equal and equally effective terms with all others in all aspects of life of the community (Commission 1996)

FINLAND

Constitution 2000

Section 6 – Equality

Everyone is equal before the law.

No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.

Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.

Equality of the sexes is promoted in societal activity and working life, especially in the determination of pay and the other terms of employment, as provided in more detail by an Act.

GERMANY

Constitution (1949)

Article 3 - Gleichheit vor dem Gesetz [Equality]

(1) Alle Menschen sind vor dem Gesetz gleich [All humans are equal before the law].

(2) Männer und Frauen sind gleichberechtigt. Der Staat fördert die tatsächliche Durchsetzung der Gleichberechtigung von Frauen und Männern und wirkt auf die Beseitigung bestehender Nachteile hin [Men and women are equal. The State supports the effective realisation of equality of women and men and works towards abolishing present disadvantages].

(3) Niemand darf wegen seines Geschlechtes, seiner Abstammung, seiner Rasse, siener Sprache, seiner Heimat und Herkunft, seines Glaubens, seiner religiösen oder politischen Anschauungen benachteiligt oder bevorzugt werden. Niemand darf wegen seiner Behinderung benachteiligt werden [No one may be favoured or disadvantaged because of his sex, his parentage, his race, his language, his homeland and origin, his faith, or his religious or political opinions. No one may be disadvantaged because of his handicap].

INDIA

Constitution 1950

Article 14 Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

IRELAND

Employment Equality Act, Act No. 21 of 1998

Section 2 - Interpretation

(1) In this Act, unless the context otherwise requires-

...

"disability" means–

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunctioning, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

...

Equal Status Act, Act No. 8 of 2000

Part 1 - Preliminary

...

2(1) In this Act, unless the context otherwise requires–

...

"disability" means–

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunctioning, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgement or which results in disturbed behaviour;

...

ITALY

Constitution 2000

Article 3 [Equality]

(1) All citizens possess an equal social status and are equal before the law, without distinction as to sex, race, language, religion, political opinions, and personal or social conditions.

(2) It is the duty of the Republic to remove all economic and social obstacles which, by limiting the freedom and equality of citizens, prevent the full development of the individual and the participation of all workers in the political, economic, and social organization of the country.

NEW ZEALAND

Bill of Rights Act 1990

Section 19 Freedom from Discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute discrimination.

Human Rights Act 1993[26]

Section 21 Prohibited grounds of discrimination.

(1) For the purposes of this Act, the prohibited grounds of discrimination are:

...

(h) disability, which means:

(i) physical disability or impairment;

(ii) physical illness;

(iii) psychiatric illness;

(iv) intellectual or psychological disability or impairment;

(v) any other loss or abnormality of psychological, physiological, or anatomical structure or function;

(vi) reliance on a guide dog, wheelchair or other remedial means;

(vii) the presence in the body of organisms capable of causing illness;

ORGANISATION OF AMERICAN STATES

The Inter-American Convention on the Elimination of All Forms of Discrimination against People with Disabilities (1999)

Article 1

For the purpose of this Convention, the following terms are defined:

Disability

The term "disability" means a physical, mental, or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, and which can be caused or aggravated by the economic and social environment.

SPAIN

Constitution 1978

Article 14

(1) Los españoles son iguales ante la ley, sin que pueda prevalecer discriminación alguna por razón de nacimiento, raza, sexo, religión, opinión o cualquir otra condición o circunstancia personal o social [Spaniards are equal before the law, without any distinction because of birth, race, sex, religion, opinion or any other personal or social condition or circumstances].

SOUTH AFRICA

Employment Equity Act (Act No. 55 of 1998)

Section 1- Definitions

In this Act, unless the context otherwise indicates-

...

"people with disabilities" means people who have long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment;

Promotion of Equality and Prevention of Unfair Discrimination Act (Act No. 4 of 2000)

Section 1- Definitions

In this Act, unless the context indicates otherwise–

...

(viii) "discrimination" means any act or omission, including policy, law, rule, practice, condition or situation which directly or indirectly–

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from,

any person on one or more of the prohibited grounds;

(xiv) "HIV/AIDS status" includes actual or perceived presence in a person's body of the Human Immunodeficiency Virus (HIV) or symptoms of Acquired Immune Deficiency Syndrome (AIDS), as well as adverse assumptions based on this status;

(xxii) "prohibited grounds" are–

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

b) any other ground where discrimination based on that other ground–

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of that a person's rights and freedoms in a serious manner that is comparable too discrimination on a ground in paragraph (a);

SWEDEN

Lag (1999:132) om förbud mot diskriminering i arbetslivet av personer med funktionshinder

Lagens ändamål

1 Denna lag har til ändamål att motverka diskriminering i arbetslivet av personer med funtionshinder. [The aim of this act is to eliminate discrimination at work of persons with functional limitations]

2 Med funktionshinder avses varaktiga fysiska, psychiska eller begåvningsmässiga begränsningar av en persons funktionsförmåga som till fjöld av en skada eller en sjukdom fanns vid födelsen, har uppstått därefter eller kan förväntas uppstå. [Functional limitations are substantial physical, mental or intellectual restrictions of a person's functional capacities as a result of an injury or disease at birth, which have manifested themselves afterwards or which may occur in the future]

UNITED KINGDOM

Disability Discrimination Act 1995 (1995 c. 50)

Section 1 - Meaning of "disability" and "disabled person"

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act "disabled person" means a person who has a disability.

Section 2 - Past disabilities

(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.

(2) Those provisions are subject to the modifications made by Schedule 2.

...

Standard Rules on the Equalization of Opportunities for People with Disabilities (1993)

17. The term "disability" summarizes a great number of different functional limitations occurring in any population in any country of the world. People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature.

UNITED STATES

Americans with Disabilities Act (1990) [42 U.S.C.]

Section 12102 [Sec. 3 – Definitions]

As used in this chapter:

...

(2) Disability – The term "disability" means, with respect to an individual–

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual.

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

Section 12211 [Sec. 511 – Definitions]

(a) Homosexuality and bisexuality – For purposes of the definition of "disability" in section 12102(2) of this title, homosexuality and bisexuality are not impairments and as such are not disabilities under this chapter.

(b) Certain conditions – Under this chapter, the term "disability" shall not include–

(1) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;

(2) compulsive gambling, kleptomania, or pyromania; or

(c) psychoactive substance use disorders resulting from current illegal use of drugs.

Equal Employment Opportunity Commission – Regulations to implement the equal employment provisions of the Americans with Disabilities Act

29 CFR § 1630.2 Definitions.

(h) Physical or mental impairment means:

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Appendix C

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Ramcharan, B.G. (1981). Equality and non-discrimination. In L. Henkin (Ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (pp. 246-269). New York: Columbia University Press.

Rebell, M.A. (1986). Structural Discrimination and the Rights of the Disabled. Georgetown Law Journal, 74 (5), 1435-1489.

Rioux, M.H. (1997). Disability: The Place of Judgement in a World of Fact. Journal of Intellectual Disability Research, 41 (2), 102-111.

Secretary-General (1992). Social Development: Questions Relating to the WorldSocial Situation and to Youth, Ageing, Disabled Persons and the Family; Implementation of the World Programme of Action concerning Disabled Persons and the United Nations Decade of Disabled Persons, U.N. Doc. A/47/415 (11 September 1992).

Shakespeare, T. (1999). What is a Disabled Person? In M. Jones & L.A. Basser Marks (Eds), Disability, Divers-ability & Legal Change (pp. 25-34). The Hague / Boston / London: Martinus Nijhoff Publishers.

Skogly, S. (1992). Article 2. In A. Eide et all. (Eds.), The Universal Declaration of Human Rights. A Commentary (pp. 57-72). Oslo: Scandinavian University Press.

Swiebel, J. (2000). Working Document on the proposal for a Council directive establishing a general framework for equal treatment in employment and occupation. Brussels: European Parliament/Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, PE 285.927 (6 June 2000).

UPIAS (1976). Fundamental Principles of Disability. London: Union of Physically Impaired Against Segregation.

Vienna (1993). Vienna Declaration and Programme of Action. Final document of the World Conference on Human Rights (Vienna, 14-25 June 1993). UN Doc. A/CONF.157/23.

Vierdag, E.W. (1973). The Concept of Discrimination in International Law. The Hague: Martinus Nijhoff Publishers.

Waddington, L. (1995a). Disability, Employment and the European Community. Antwerp: Maklu et al. [under the auspices of METRO - Institute for Transnational Legal Research at the University of Limburg, Maastricht].

Waddington, L. (1995b). Working Towards a European Definition of Disability. European Journal of Health Law, 2 (3), 255-260.

WHO (1980). International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease. Geneva: World Health Organization.

Wolfensberger, W. (1981). The Extermination of Handicapped People in World War II Germany. Mental Retardation, 19 (1), 1-7.

World Bank (1993). World Development Report 1993: Investing in Health. Oxford: Oxford University Press.

Zola, I.K. (1993). Self, Identity and the Naming Question: Reflections on the Language of Disability. Social Science & Medicine, 36 (2), 167-173.

II Case Law

Court of Justice of the EC [http://www.europa.eu.int/cj/en ]

Case 96/80 Jenkins v. Kinsgate [1981] E.C.R., p. 911

Case 170/84 Bilka Kaufhaus v. Weber von Hartz [1986] E.C.R., p. 1607

Case 109/88 Danmark v. Danfoss [1989] E.C.R., p. 3199

Case C-177/88 Dekker v. Stichting Vormingscentrum voor Jong Volwassen Plus [1990] E.C.R., p. I-3941

Case C-450/93 Kalanke v. Bremen [1995] E.C.R., I-3051

Case C-249/96 Grant v. South-West Trains Ltd. [1998] E.C.R., p. I-621

Case C-407/98 Abrahamsson & Anderson v. Fogelqvist [2000] E.C.R., p. I-5539

European Court of Human Rights [http://www.echr.coe.int/ ]

Belgian Linguistic Case (23 July 1968), A-6

Winterwerp v. The Netherlands (24 October 1979), A-33

Abdulaziz, Cabales and Balkandali v. The United Kingdom (28 May 1985), A-94

Darby v. Sweden (23 October 1990), A-187

Thlimmenos v. Greece (6 April 2000), not published yet [www.dhcour.coe.int/hudoc].

Human Rights Committee

Broeks v. the Netherlands (Views adopted on 9 April 1987), Communication No. 172/1984, U.N. GAOR, 42nd Sess., Supp. No. 40, at 139, U.N. Doc. A/42/40 (1987)

Toonen v. Australia (Views adopted on 31 March 1994), Communication No. 488/1992, U.N. GAOR, 49th Sess., Supp. No. 40, Vol. II, at 226, U.N. Doc. A/49/40 (1992)

Debreczeny v. The Netherlands (Views adopted on 3 April 1995), Communication No. 500/1992, U.N. GAOR, 50th Sess., Supp. No. 40, Vol. II, at 59, U.N. Doc. A/50/40 (1999)

Supreme Court of Canada

Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143

United States Supreme Court

Buck v. Bell, 274 US 200 (1927)

Griggs v. Duke Power Company Co., 401 U.S. 424 (1971)

Frontiero v. Richardson, 411 US 677 (1973)

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)

Southeastern Community College v. Davis, 442 U.S. 397 (1979)

Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)

Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998)

Bragdon v. Abbott, 524 U.S. 624 (1998)

Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999)

Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133 (1999)

Albertsons, Inc. v. Kirkingburg, 119 S.Ct. 2162 (1999)



[1] *Aart C. Hendriks, LL.M., M.Pol.Sc., Ph.D. is secretary of the programme on health law evaluation, Health Research and Development Council (ZON), The Hague, The Netherlands and member of the Advisory Board of the Dutch Council of People with Disabilities (Gehandicaptenraad). The views expressed in this paper are strictly personal and do not necessarily reflect those of ZON or the Gehandicaptenraad. The author would like to express his sincere thanks prof.dr. Theresia Degener and dr. Rikki Holtmaat for their thought provoking comments on an earlier draft of this paper. All mistakes remain, however, the sole responsibility of the author.

[2] Many countries have, for example, immigration laws imposing arbitrary entrance and/or residence restrictions on people with disabilities.

[3] The foundations of (binding) international law can be found both in treaty law, international customary law and the general principles of law. Non-binding instruments sometimes reflect emerging international customary law standards.

[4] General Assembly Resolution 48/96, U.N. GAOR, 48th Sess., Supp. No. 49, U.N. Doc. A/48/49 ( 20 Dec 1993).

[5] Resolution 1990/26 on Human Rights and Disability (24 May 1990), U.N. ESCOR 1990, Sess. 1, Supp. No. 1, U.N. Doc. E/1990/69 (1991).

[6] 42 U.S.C.A. §§ 12101-12213. The ADA was signed into law by – then – US President Bush on 26 July 1990.

[7] Cf. the analysis of the – then – UN Secretary General Boutros Boutros-Ghali: "The enactment of specific legislation to guarantee equality and eliminate discriminatory practices is essential, even where constitutional or general legal provisions exist. . . . In line with the recommendation of the Programme of Action, some countries have made efforts to adopt specific disability legislation that protects the rights of disabled persons, e.g. Australia, China, Kuwait, the United States of America. That country's Americans with Disabilities Act (ADA) is considered a breakthrough" (Secretary-General 1992, p. 11, § 38). See also Resolution B3-0580/93 of the European Parliament: "3. Calls on the Commission to set up a forum consisting of disabled persons from the Member States, charged with the task of: (...) – investigating the possibility of introducing anti-discrimination laws based on the US model;" (European Parliament 1993).

[8] In some countries, like Australia, the law also protects family members (e.g., the mother of a disabled child) against disability discrimination.

[9] Many therefore recommend avoiding the term "positive discrimination" for describing measures that are taken to remove inequalities and to ameliorate the position of members of disadvantaged groups. These affirmative action measures, or forms of preferential treatment, are taken to rebut (the consequences of) past discrimination, and do not constitute a form of discrimination in themselves, unless such measures lead to a violation of the right of others not to be discriminated against (Adarand Constructors, Inc. v. Peña, 1995; Kalanke, 1995; Abrahamsson & Anderson, 2000).

[10] Cf. Abdulaziz, Cabales and Balkandali, 1985, § 72: "a difference of treatment is discriminatory if it has ‘no objective and reasonable justification', that is, if it does not pursue a ‘legitimate aim' or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised'."

[11] Non-discrimination law itself is, unfortunately, not always very consistent in this respect. See Ramcharan 1981 and Belgian Linguistic Case, 1968.

[12] Notably Brennan J. at 686.

[13] According to Canadian Supreme Court Justice McIntyre, "discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages, on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society." Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 174.

[14] CEDAW is an exception.

[15] Cf. Article 1 § 1 CERD.

[16] Cf. Art. 24 ACHR. See e.g. also Article 33 § 2 of the Constitution of China: "All citizens of the People's Republic of China are equal before the law"; Article 91 of the Constitution of Latvia: "All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind"; and Article 32 of the Polish Constitution: "(1) All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. (2) No one shall be discriminated against in political, social or economic life for any reason whatsoever."

[17] See e.g. Article 1 § 2 UN Charter; Article E ESC (revised) and Articles 13 and 141 EC Treaty.

[18] Cf. Grant, 1998, where the Court of Justice held that the plaintiff had not been treated unequally on grounds of her sex but because of her sexual orientation, and that EC law did not prohibit discrimination on the basis of sexual orientation.

[19] See e.g. Article 2 UDHR; Article 2 § 2 ICESCR; Articles 2 and 26 ICCPR; Article 14 ECHR; Article 2 ACHPR and Protocol No. 12 to the ECHR.

[20] Courts and (quasi-)judicial bodies in charge of the supervision of non-discrimination treaties and provisions usually require plaintiffs to indicate on which ground they allegedly have been discriminated against. Not all grounds are recognised as deserving protection against discrimination. Cf. Debreczeny v. The Netherlands, 1995.

[21] In some cases, however, courts consider a non-listed ground to be part of a listed ground. Cf. Broeks v. the Netherlands, 1987 (differentiation on the basis of breadwinnership constitutes discrimination on the basis of sex), Dekker v. Stichting Vormingscentrum voor Jong Volwassen Plus, 1990 (differentiation on pregnancy constitutes discrimination on the basis of sex) and Toonen v. Australia, 1994 (differentiation on the basis of sexual orientation constitutes discrimination on the basis of sex).

[22] There are, in fact, few measures and practices I can think of that would be discriminative towards all people with disabilities.

[23] Some wheelchair users can stand and walk for short distances, while others cannot stand at all unaided. Measures and practices affecting wheelchair users can therefore affect them differently.

[24] This is in line with the European Commission's draft Council directive on equal treatment in employment and occupation (Commission 2000), which – although still referring to the term "disability" – does not define "disability." This decision was welcomed by Joke Swiebel, who served as rapporteur of the European Parliament's Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (Swiebel 2000).

[25] In this respect, Article 3 § 3 of the German Constitution is quite unique now that it applies the prohibition of discrimination in an asymmetric way, however only with respect to disability and not with regard to the other grounds.

[26] * On the basis of a description of the act through <www.hrc.co.nz>. The present author was, unfortunately, unable to retrieve a full copy of the act.