Disabled Persons and their Right to Equal Treatment: Allowing Differentiation While Ending Discrimination

The principle of equality encompasses the right not to be discriminated against. It is important to distinguish between discrimination and differentiation when seeking to promote and protect the right to equal treatment of disadvantaged or otherwise vulnerable groups. The achievement of equality not only prohibits abstaining from discrimination, but also entails a positive obligation to rectify inequalities. Differentiation may be an adequate means to remedy disadvantages and to enhance the equal rights of vulnerable groups. Discrimination against disabled people may occur as a result of both differentiation and a lack thereof. The admissibility of differentiating between able-bodied and disabled persons ultimately depends on the relevance of using disability as a criterion to distinguish between individuals or groups. Differentiating is acceptable if the absence or presence of an individual quality or group attribute is of paramount importance, or when an effort is made to rectify inequalities. Differentiation, however, becomes discriminatory when distinctions are made arbitrarily, or when they have the purpose or effect of denying or restricting the equal enjoyment and exercise of human rights.