PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation 3. Material scope Comprehensive anti-discrimination law must provide protection from discrimination in all areas of life regulated by law and cover the conduct of all persons, including public and private actors. The prohibition of discrimination applies in all areas of life regulated by law. The duty to refrain from discrimination applies to all persons, including (but not limited to) public authorities and private entities. 4. Justifications In some circumstances, differences in treatment or the differential impacts of provisions, criteria or practices arising on the basis of a protected ground of discrimination may be justified. Any justification should be assessed against clear criteria, established in comprehensive anti-discrimination legislation. These criteria should include the existence of a legitimate aim and confirmation that the means of achieving such an aim are appropriate, necessary and proportionate. A legitimate aim may never be justified by reference to discriminatory stereotypes. Certain forms of prohibited conduct (including harassment, sexual harassment and victimization) cannot – by definition – be justified. Direct discrimination may only be justified exceptionally, on the basis of strictly defined criteria. Any provision, criterion or practice adopted pursuant to a legitimate aim that is appropriate, necessary and proportionate to that aim will not give rise to a finding of discrimination. Direct discrimination may be justified only very exceptionally. B. Positive action Comprehensive anti-discrimination legislation must explicitly both permit and require the adoption of positive action measures. Positive action – sometimes referred to as affirmative action, specific measures or temporary special measures – includes any targeted measures developed for the purpose of advancing or achieving equality and redressing disadvantage. Positive action must not result in the perpetuation of isolation, segregation, stereotypes or stigma or lead to the maintenance of unequal or separate standards. Positive action measures must be time-limited, although they must also be established for sufficient time to bring about durable positive change in eliminating disadvantage. The right to equality requires the adoption of positive action. Positive action includes any targeted legislative, administrative or policy measures to reduce or overcome inequality and realize equality. Such measures should be time-limited, subject to regular review and proportionate to their purpose of advancing or achieving equality. Time-limited should not be interpreted to mean necessarily short in duration. Positive action measures must be discontinued once their purpose has been achieved. Positive action does not amount to discrimination. xiv