PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW (a) Purpose Primarily, it is the purpose of positive action measures that both necessitates and justifies targeted measures and thus distinguishes these measures from direct discrimination:503 the anticipated result of positive action is increased equality, while the result of discrimination is increased inequality. PART TWO – I Thus, as the Committee on the Elimination of Racial Discrimination has noted, “special measures do not amount to discrimination when taken for the ‘sole purpose’ of ensuring equal enjoyment of human rights and fundamental freedoms”.504 The Committee has noted that this “motivation should be … apparent” from the measures themselves, the arguments used to justify them, and the instruments to give effect to them. It has further clarified that: “The reference to ‘sole purpose’ limits the scope of acceptable motivations for special measures within the terms of the Convention.”505 The Committee on the Elimination of Discrimination against Women has stated that special measures “should aim to accelerate the equal participation of women”, reiterating that “such measures … do not discriminate against men”.506 The Committee on the Rights of Persons with Disabilities has noted simply that: “Specific measures not to be regarded as discrimination are positive or affirmative measures that aim to accelerate or achieve de facto equality of persons with disabilities.”507 The Human Rights Committee has clarified that preferential measures will be legitimate “as long as such action is needed to correct discrimination in fact”,508 a position echoed by the Committee on Economic, Social and Cultural Rights.509 Positive action measures must not serve to undermine equality, nor be justified by reference to discriminatory criteria or stereotypes. Measures taken with the stated purpose of “protecting” certain groups based on stereotypes – such as rules precluding women from holding certain jobs (on the basis that women need to be “protected” from carrying out such work), rules barring persons with disabilities from working at all (because disqualified from the workforce by legal provisions entitling them to social support), or automatic rules striking older persons from eligibility for insurance or driving licences – are not positive action measures but directly discriminatory policies. Thus, in Medvedeva v. Russian Federation, the Committee on the Elimination of Discrimination against Women firmly rejected arguments that ostensibly “protective” measures based on gender stereotypes – in that case regulations that prevented women from carrying out certain jobs considered to be dangerous or harmful – were special measures, instead finding them directly discriminatory.510 The Committee on the Rights of Persons with Disabilities has noted that positive action measures “must not result in perpetuation of isolation, segregation, stereotyping, stigmatization or otherwise discrimination”.511 (b) Time-limited and subject to review As positive action measures involve differential treatment based on a ground of discrimination, it is essential that such measures are in place only for as long as required to redress an existing inequality; the maintenance of such measures beyond this point would constitute direct discrimination. Both the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women state that positive action measures must not lead to the maintenance of unequal or separate standards.512 As the Committee on the Elimination of Racial Discrimination has set out, this limitation is “functional” and means that “the measures should cease to be applied when the objectives 503 See, for example, Human Rights Committee, general comment No. 18 (1989), para. 10: “as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant”. 504 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 21. 505 Ibid. 506 Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 18. 507 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 28. 508 Human Rights Committee, general comment No. 18 (1989), para. 10. 509 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 9: “Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved.” 510 Committee on the Elimination of Discrimination against Women, Medvedeva v. Russian Federation (CEDAW/C/63/D/60/2013), para. 11.3. 511 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 29. See further discussion on this point in section I.A.4(b) of part two of the present guide. 512 Convention on the Elimination of All Forms of Discrimination against Women, art. 4 (1); and International Convention on the Elimination of All Forms of Racial Discrimination, art. 2 (2). 63