2024 Volume 74 Issue 4 Pages 677-696
The traditional discrimination theory takes into account the distinction between direct discrimination（a traditional concept）and reasonable accommodation（a new concept）and introduces the key concepts of the sameness and difference models of discrimination. This paper clarifies that such a theory cannot appropriately explain the relationship between direct discrimination and reasonable accommodation and the relationship between reasonable accommodation and affirmative action. This paper also opines that a new discrimination theory, based on several of my previous papers, should replace the traditional discrimination theory to explain these relationships more adequately.
The proposed new discrimination theory understands disability discrimination as referring to treating persons with disabilities and persons without disabilities differently by either considering or not considering the disability when it is a “nonessential part of the matter” and when both of them have the same aptitude that is an “essential part of the matter.” The legal rule prohibiting discrimination against persons with disabilities resists the “ability principle（ableism/disabilism）” in favor of the “matters principle” and distances itself from the “disability（positive inclusion）principle.”
The duty of reasonable accommodation is equivalent to the prohibition of direct discrimination in that it strictly adheres to the rule which requires people to be treated equally concerning the “essential part of the matter（aptitude）” under the “matters principle.” On the other hand, affirmative action differs from the duty of reasonable accommodation because the former violates the rule to positively correct the historical and structural disadvantages of persons with disabilities under the “disability（positive inclusion）principle.”
