PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation in its general comment No. 20 (2009), inserting the phrase “or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination” after the word “preference”.120 As the consistent references to “purpose or effect” in these definitions indicate, it is well established that discrimination occurs both when a person is treated differently from someone in a relevantly similar situation or treated equally to a group of persons placed in a relevantly different situation.121 DEFINING DISCRIMINATION Based on the practice and comments of the United Nations treaty bodies, discrimination may be defined as: any distinction, exclusion, or restriction based on one or more protected grounds that has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms or preventing equal participation in any area of life regulated by law. The prohibition of discrimination includes all forms of discrimination, including ground-based harassment and denial of reasonable accommodation. As the definition implies, the question of comparison has, historically, been central to understandings of discrimination. In the most basic sense, a person or community experiencing discrimination can be understood to be suffering disadvantage in comparison to others. A question in the adjudication of many discrimination cases therefore has been “compared with what” real or hypothetical “comparator” the discrimination has occurred. As examined below, as understanding of discrimination has developed, it is now recognized that discrimination may simply give rise to a detriment, without any clear comparator, and indeed in respect of some forms of discrimination, comparison is not part of the legal definition. As will be examined below, while comparison can be useful for understanding how discrimination occurs and its consequences, failure to identify a comparator should never be a decisive factor in the consideration of cases. MEXICO: ARTICLE 1 (III) OF THE FEDERAL LAW TO PREVENT AND ELIMINATE DISCRIMINATION For the purposes of this law, discrimination shall be construed as any distinction, exclusion, restriction or preference that, by way of action or omission, with or without intention, is not objective, rational or proportional and has as its object or results in hindering, restricting, preventing, undermining or annulling the recognition, enjoyment or exercise of human rights and freedoms, when it is based on one or more of the following grounds …. Thus, as the consensus around the main aspects of the definition underlines, the right to non-discrimination is concerned with protecting individuals from differential treatment or impacts that arise in connection with a personal “characteristic” or “ground of discrimination” and that impair their equal enjoyment of life. Following from this, the right to non-discrimination can be understood as having four dimensions, each of which corresponds to a simple question: • The personal scope of the right: who is protected? • The conduct that is prohibited by the right: from what are people protected? • The material scope of the right: where are people protected and who bears the duty? • The potential justification of the conduct: why is some differentiation permitted? 18 120 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 7. 121 See, for example, Committee on the Rights of Persons with Disabilities, Domina and Bendtsen v. Denmark (CRPD/C/20/D/39/2017), para. 8.3, applying the standard established in European Court of Human Rights, Thlimmenos v. Greece, para. 44.