PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation between human rights mechanisms may be noted in respect of these concepts and when applied to concrete cases, there may be some areas of overlap between them.208 These nuances are discussed below. Over time, as understanding of discrimination concepts and the experiences of discriminated groups develops, new forms of discrimination may be identified, which require legal sanction.209 In all cases, it is important that comprehensive anti-discrimination law provides effective protection from all forms of discrimination. This requires, at a minimum, ensuring that all individuals who experience any of the types of prohibited conduct described in this section are provided with appropriate legal mechanisms to assert and vindicate their rights.210 (a) Direct discrimination SUMMARY • Direct discrimination involves treating persons less favourably or subjecting them to a detriment because of their protected characteristics. The prohibition of direct discrimination includes acts or omissions. Direct discrimination can be committed intentionally or unintentionally and may be overt or covert. Anti-discrimination legislation should prohibit direct discrimination. Direct discrimination occurs when a person is treated less favourably than another person is, has been or would be treated in a comparable situation on the basis of one or more protected grounds; or when a person is subjected to a detriment on the basis of one or more grounds of discrimination. Direct discrimination is what many people understand when the word “discrimination” is used in general discourse: treating someone less favourably because of a particular characteristic or characteristics. Examples include an employer refusing to hire someone because of their ethnicity or a restaurant refusing someone entry because of their sexual orientation. While these examples both involve “overt” (open and transparent) unfavourable treatment explicitly related to a particular characteristic, direct discrimination can also be covert or done under a pretext.211 Moreover, direct discrimination does not require motive or intent: the discriminating party does not need to act with the intention (or even the knowledge) to cause harm or disadvantage – what is relevant is the causal link between the harm and the characteristic. DISCRIMINATION AND THE REQUIREMENT OF INTENT Under international human rights law, conduct is prohibited in situations in which it has the “purpose or effect” of impairing the equal enjoyment of rights.212 While the words “purpose” and “effect” are sometimes equated – respectively – with “direct” and “indirect” discrimination, the terms are not synonymous, albeit that they may cover many of the same forms of conduct213 and, when taken together, may provide co-extensive protection to that covered by direct and indirect discrimination. Direct discrimination may occur without an express purpose or intention to discriminate. For example, the Inter-American Commission on Human Rights has commented on the practice of lesbian, gay, bisexual and transgender inmates being placed into lengthy periods of solitary confinement, with the purported justification of “safeguarding” them from a risk of violence. Such practices, according to the 30 208 See, in particular, discussion in part two of the present guide on the overlap between reasonable accommodation and indirect discrimination (sect. I.A.2(d)) and the treatment of segregation (sect. I.A.2(e)). 209 Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), paras. 8 and 15. 210 See further chapter III of part two of the present guide, which sets out those procedural guarantees necessary to ensure effective implementation of anti-discrimination law. 211 See, for example, European Court of Human Rights, Oršuš and others v. Croatia, Application No. 15766/03, Judgment, 16 March 2010. 212 International Convention on the Elimination of All Forms of Racial Discrimination, art. 1; Convention on the Elimination of All Forms of Discrimination against Women, art. 1; Convention on the Rights of Persons with Disabilities, art. 2; Human Rights Committee, general comment No. 18 (1989), paras. 6–7; and Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 7. 213 See, for example, Human Rights Committee, Althammer et al. v. Austria (CCPR/C/78/D/998/2001), para. 10.2; and Committee on the Elimination of Racial Discrimination, L.R. et al. v. Slovak Republic (CERD/C/66/D/31/2003), para. 10.4.