Forms of Discrimination

Direct discrimination may be established where different reasons from those given are established as the motive for a decision.²¹⁹⁰

In fulfilling the prohibition on indirect discrimination there will also be a need to take account of relevant differences between groups or classes of persons.²¹⁹¹

Furthermore a failure to make reasonable accommodation, i.e., a modification of, or adjustment to a job, an employment practice, the work environment, or the manner or circumstances under which a position is held or customarily performed, in order to make it possible for a qualified individual to apply for, perform the essential functions of, and enjoy the equal benefits and privileges of employment could – especially in the context of disability – amount to discrimination.²¹⁹²

It should be noted that harassment – i.e., unwanted conduct related to a prohibited ground/origin, which takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment – has been explicitly deemed to be discrimination in some instruments²¹⁹³ and may be construed as required under other less specific instruments and may be construed as contrary to more general prohibitions of discrimination.²¹⁹⁴

A State will be responsible for discrimination that occurs when its functions are delegated or sub-contracted to a private entity or individual.²¹⁹⁵

Furthermore there is a positive obligation on a State to protect persons against discrimination by private entities.²¹⁹⁶

However, the provision of separate education by reference to the gender of pupils or for religion or linguistic reasons, as well as the maintenance of private educational arrangements, has been specifically excluded from the definition of discrimination in respect of education.²¹⁹⁷

Apartheid – i.e., denial of the right to life and liberty of a person, murder, the infliction of serious bodily or mental harm, torture, cruel, inhuman or degrading treatment or punishment, arbitrary arrest and illegal imprisonment, imposition of living conditions calculated to cause physical destruction in whole or in part, measures calculated to prevent participation in the political, social, economic and cultural life of the community, measures to effect segregation and exploitation by submission to forced labour by reference to membership of a racial group, as well as persecution for opposition to apartheid – is an aggravated form of discrimination which, as a crime against humanity, attracts international criminal responsibility for those who commit, participate in or directly incite or conspire in its commission.²¹⁹⁸