PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation serious and lasting impacts. Nor is the difference between the concepts concerned with intent or the extent to which the discriminating party is open about their motives. As discussed above, direct discrimination can be both intentional and unintentional236 and can be both overt (open and transparent) and covert (hidden).237 Indirect discrimination is well established as a form of discrimination under international and regional law. The Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of Persons with Disabilities have each recognized the need to prohibit indirect discrimination in order to ensure the full enjoyment of the right to non-discrimination adopting a broadly consistent definition.238 In each case, this definition centres on an apparently neutral law, policy or practice that has a disproportionate negative impact on the rights of individuals belonging to a protected group.239 As noted previously, both the Committee on the Elimination of Racial Discrimination and the Human Rights Committee define discrimination as “any distinction, exclusion, restriction or preference … which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of all rights and freedoms”.240 Both the Human Rights Committee and the Committee on the Elimination of Racial Discrimination have recognized States’ obligations to eliminate forms of direct and indirect discrimination.241 The African,242 Inter-American,243 European Union244 and the European Court of Human Rights245 human rights systems have all adopted similar definitions of indirect discrimination to those used by the international bodies, with little divergence in approach. ARTICLE 1 (2) OF THE INTER-AMERICAN CONVENTION AGAINST ALL FORMS OF DISCRIMINATION AND INTOLERANCE “Indirect discrimination shall be taken to occur, in any realm of public and private life, when a seemingly neutral provision, criterion, or practice has the capacity to entail a particular disadvantage for persons belonging to a specific group, or puts them at a disadvantage, unless said provision, criterion, or practice has some reasonable and legitimate objective or justification under international human rights law.” 34 236 As noted above, intent may be lacking in cases of direct discrimination, while in some circumstances a prima facie neutral law may be adopted with the clear intention of discriminating against a protected group. See, for example, Committee on the Elimination of Racial Discrimination, L.R. et al. v. Slovak Republic (CERD/C/66/D/31/2003), para. 10.5. 237 See the discussion of intent in section I.A.2(a) of part two of the present guide. 238 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), paras. 7 and 10; Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (b); and Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 16. 239 In its interpretation of article 2 (2) of the International Covenant on Economic, Social and Cultural Rights, for instance, the Committee on Economic, Social and Cultural Rights has defined indirect discrimination as “laws, policies or practices which appear neutral at face value, but have a disproportionate impact … as distinguished by prohibited grounds of discrimination”. A similar definition is adopted by the Committee on the Rights of Persons with Disabilities. See Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 10 (b); and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (b). 240 Human Rights Committee, general comment No. 18 (1989), para. 7. 241 CCPR/C/UZB/CO/5, para. 9 (a); and CERD/C/PSE/CO/1-2, para. 12 (a). See, relatedly, ILO Committee of Experts on the Application of Conventions and Recommendations, General Observation on Discrimination Based on Race, Colour and National Extraction (2018), in which the Committee calls for the adoption of “comprehensive legislation containing explicit provisions defining and prohibiting … direct and indirect discrimination”. 242 African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, para. 1 (m). 243 See, for example, Inter-American Court of Human Rights, Artavia Murillo et al. (in vitro fertilization) v. Costa Rica, Case 12.361, Report No. 85/10, 14 July 2010, paras. 123 and 125. See also Inter-American Convention against All Forms of Discrimination and Intolerance, art. 1 (2). 244 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art. 2 (2) (b); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 2 (2) (b); Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, art. 2 (b); and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), art. 2 (1) (b). 245 European Court of Human Rights, D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, para. 184. The European Committee on Social Rights has adopted a distinctive approach in its definition of indirect discrimination. According to the Committee: “such indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all”. See European Committee on Social Rights, Equal Rights Trust v. Bulgaria, Complaint No. 121/2016, Decision on the Merits, 16 October 2018, para. 87.