PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation While the core United Nations human rights instruments do not make explicit use of the terms direct and indirect discrimination, human rights treaty bodies have consistently recognized both as forms of prohibited conduct falling within the scope of the right to non-discrimination.223 In its general comment No. 20 (2009), the Committee on Economic, Social and Cultural Rights noted that both direct and indirect discrimination fall within the scope of article 2 (2) going on to define direct discrimination as the situation in which “an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground”.224 A similar definition has been adopted by the Committee on the Rights of Persons with Disabilities.225 The Committee on the Elimination of Discrimination against Women has used a slightly more expansive formulation, omitting reference to less favourable treatment and noting simply that “direct discrimination against women constitutes different treatment explicitly based on grounds of sex and gender differences”.226 Neither the Committee on the Elimination of Racial Discrimination nor the Human Rights Committee have attempted to define direct or indirect discrimination in their general comments,227 although both Committees have recognized the concepts228 and have urged States to adopt comprehensive equality legislation prohibiting all forms of direct and indirect discrimination.229 Regional human rights mechanisms have tended to approach direct discrimination cases through the broad discrimination prohibition, from which indirect discrimination has been identified and differentiated as a discrete form of prohibited conduct.230 Differential or unfavourable treatment, related to one or more prohibited grounds, nonetheless remains central to these definitions.231 32 223 See, illustratively, CCPR/C/UZB/CO/5, para. 9 (a); CERD/C/PSE/CO/1-2, para. 12 (a); E/C.12/GIN/CO/1, para. 19 (a); CEDAW/C/QAT/CO/2, para. 14 (b); CRPD/C/IND/CO/1, para. 13 (a); CRC/C/BLR/CO/5-6, para. 15 (a); and CMW/C/MOZ/CO/1, para. 28. 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”. 224 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 10 (a). 225 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18. 226 Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), para. 16. 227 Although the Committee on the Elimination of Racial Discrimination does explicitly reference “direct and indirect discrimination” as a heading (namely, B) in its general recommendation No. 32 (2009). 228 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. 229 See, for example, CCPR/C/UZB/CO/5, para. 9 (a); and CERD/C/PSE/CO/1-2, para. 12 (a). 230 Thus, for instance, in its Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (para. 82 (i)), the African Commission on Human and Peoples’ Rights calls on States to “ensure no direct or indirect discrimination in social security schemes on any of the prohibited grounds of discrimination”, but only “indirect discrimination” is defined in paragraph 1. See, similarly, Inter-American Commission on Human Rights, Artavia Murillo et al. (in vitro fertilization) v. Costa Rica, Case 12.361, Report No. 85/10, 14 July 2010, paras. 120–125; and Inter-American Convention against All Forms of Discrimination and Intolerance, art. 1 (1)–(2). The European Court of Human Rights defines discrimination broadly to include any “difference in the treatment of persons in analogous, or relevantly similar, situations” that is “based on an identifiable characteristic”. Such a difference in treatment may amount to indirect discrimination in situations in which it takes “the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group”. See, respectively, European Court of Human Rights, Carson and others v. the United Kingdom, Application No. 42184/05, Judgment, 16 March 2010, para. 61; and European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016, para. 103. 231 The general definition of discrimination typically refers to distinctions, exclusions or restrictions. See, for example, Inter-American Convention against All Forms of Discrimination and Intolerance, art. 1 (1). See also 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. 19; 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); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 2 (2); 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 (a)–(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) (a) and (2); and European Court of Human Rights, D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, para. 184. See also European Committee of Social Rights, Equal Rights Trust v. Bulgaria, Complaint No. 121/2016, Decision on the Merits, 16 October 2018, para. 87.