Human Rights and Disability A Manual for National Human Rights Institutions Not surprisingly, the equality and non-discrimination provision informs the whole text of the Convention. Indeed, most of the substantive rights it sets out are said to be secured “on an equal basis with others”. Article 5(1) (on equality and non-discrimination) more specifically recognises that: … all persons [with disabilities] are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. Further, article 5(2) requires States to take action to: … prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. This does not mean that material differences are to be ignored. On the contrary, these differences are to be acknowledged and positively accommodated. Accordingly, the UN CRPD borrows from advanced anti-discrimination law in different parts of the world to include ‘reasonable accommodation’59 within the definition of discrimination (article 2): Discrimination on the basis of disability…includes all forms of discrimination, including denial of reasonable accommodation. [emphasis added] Reasonable accommodation, in turn, means: … necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.60 The reasonable accommodation obligation was first included in the United States Civil Rights Act (on the basis of religion, as interpreted by the courts)61 and gradually became one of the defining features of modern disability discrimination law. It was interpreted as an essential feature of early anti-discrimination law in America in relation to disability (Rehabilitation Act, 1973)62 and then became the cornerstone of the Americans with Disabilities Act (1990).63 This Act is one of the most admired and copied pieces of disability legislation in the world, with variations enacted in the 1990s by Australia, the United Kingdom, Ireland and Sweden. Even the 2000 European-level Directive on non-discrimination copied its provisions on reasonable accommodation.64 Most famously of all, that obligation is now codified in the definition of discrimination in UN CRPD. A fundamental distinction between ‘reasonable accommodation’ and traditional ‘positive action measures’ is that the former are individualised and tailored to the person, while the latter are more general in nature. The obligation to provide reasonable accommodation applies to both public and private bodies and across all the rights and obligations in the UN CRPD; for example, in relation to transport, education, employment and access to justice. Further, the obligation is both immediate and compulsory, 22 59 For more information on reasonable accommodation, see C. Jolls, ‘Antidiscrimination and Accommodation’, Yale Law School, Faculty Scholarship Series, Paper 1455, 2001; L. Waddington and A. Hendriks, ‘The Expanding Concept of Employment Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’ in International Journal of Comparative Labour Law and Industrial Relations, Vol. 18, 2002, p. 403; P. Karlan and G. Rutherglen, ‘Disabilities, Discrimination, and Reasonable Accommodation’ in Duke Law Journal, Vol. 46, 1996, p. 1. 60 Article 2, Convention on the Rights of Persons with Disabilities. 61 Available at www.eeoc.gov/laws/statutes/titlevii.cfm. 62 Available at www.disability.gov/rehabilitation-act-1973/. 63 Available at www.ada.gov/2010_regs.htm. 64 On the extension of this obligation at a regional level, see L. Waddington, ‘EU Disability Anti-Discrimination Law: the UN CRPD, Reasonable Accommodation and CJEU Case Law’, presentation to the Academy of European Law, December 2014; www.eracomm.eu/oldoku/Adiskri/07_Disability/2014_Dec_WADDINGTON_EN.pdf.