Equality and Discrimination

Underlying Concepts

• Dignity (right not to be treated as inferior)

• Economical interests (basically the EU regulation)

Legal Regulation

• ICCPR,

• ECHR,

• Constitutions,

• CEDAW

• CERD

• Special legislation

What is „Discrimination“: Basic Concepts

• Comparability• Formal Equality• Substantive Equality• Equal Opportunities• Equal Outcomes• Affirmative action (Positive Disctimination)• Direct Discrimination • Indirect Discrimination

What is comparable?

• Wine x beer, whisky x rum, bananas x apples

• Young x old, Moslems x Christians etc.

Formal (procedural) Equality

• Equality de iure

• No or little regard to the actual situation

Substantive Equality

• Tailoring based on the actual situation

• (The law tries to overcome the existing inequality).

• Affirmative action (Indian Constitution, forms of affirmative action)

Affirmative action

• Discrimination or equality?

• Forms of affirmative actions (quotas, support, benefits, advertisments).

Direct Discrimination

• The Discrimination

and its reason are

explicitly mentioned.

Indirect Discrimination

• Discrimination in disguise

• Seemingly neutral are put forward – but discrimination occurs. (Stapleton case. D. H. case).

• Intentional v. objective?

Discrimination Grounds

• „Everyone is guaranteed the enjoyment of her fundamental rights and basic freedoms without regard to gender, race, colour of skin, language, faith and religion, political or other conviction, national or social origin, membership in a national or ethnic minority, property, birth, or other status.“ (Art. 3/1 CCFR).

Discrimination on Grounds of Sex

• One of the most important• Usually (due to the historical circumstances) the challenged actions,

provisions etc. are directed against women.• But – Craig v. Boren (An Oklahoma law prohibited the sale of

"nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. The statute was challenged and subsequently declared unconstitutional.).

• In USA – „intermediate scrutiny“ (It must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. Strict scrutiny is a higher standard requiring narrowly tailored and least restrictive means to further a compelling governmental interest).

Discrimination on Grounds of Race and Ethnical Origin

• Strict scrutiny.

• Human dignity at stake.

• Famous cases: Plessy v. Ferguson, Brown v. Board of Education of Topeca, D. H. v. Czech Republic.

• Direct discrimination is generally abolished, indirect discrimination may remain.

D. H. v Czech Republic

• Case of indirect discrimination of Roma children in the education system.

Discrimination on Grounds of (Religious) Belief

• Extremely tricky (false religions, what should get protection?)

• Example: Employment Division v. Smith (use of drugs).

• Problem of public order - What if my religion dictates not to pay taxes, kill people etc.?

• Other cases Hoffman v. Austria,

Leyla Sahin (Religion)

• ECHR case: „In Turkey, wearing a veil or headscarf in higher-education institutions on grounds of religious belief is considered contrary to the principles of secularism and equality. Universities accordingly apply certain dress-codes for their staff and students. Leyla Sahin was a medical student at the University of Istanbul who was denied access to lectures, courses and two written exams because she was wearing an Islamic headscarf. The ECtHR held that this did not constitute a violation of the Convention (focusing foremost on Article 9 thereof, which guarantees the freedom of thought, conscience and religion).“

• Margin of appreciation – does not mean that the ban would be upheld in case of other states

Who Can Discriminate?

• Classical situation: State x Individual (not very controversial)

• New anti-discrimination agenda: Employer x Employees (potential ones or actual), Services and Consumers etc. (very controversial).

• State interferes in the private relationships in order to secure equality.

Not Every Discrimination Is Prohibited

• Taxes, age limits etc.

• Proportionality analysis, discrimination may be legal.

• Not all the grounds are reviewed in the same way (i. e. race – stricter, property – not so strict).

• Special situations

Discrimination and Employment

• Can employers freely choose their employees? Is there a difference between public and private sector?

• Usually may solved by proportionality analysis (legitimate aim, narrow tailoring)

• Generally, it is not considered discriminating, if the employer demands some specific status or abilities necessary for the job (imagine a handicapped football player, chinese actor performing as English King or a stupid lawyer )

Discrimination and Employment

• Hard Cases – Does the employer have to accept black waiter in a racist society?

• Very often connected to discrimination of women (EU Law, Kalanke, Marschall, Abrahamsson).

Consumers Discrimination

• Refusal to provide services

• Different conditions for providing services

• Usually concerns only professional (enterprises x renting of a flat)

Procedural Aspects

• EU Law, Art. 19 of Directive of the European Parliament and of the Council 2006/54: „Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the Respondent to prove that there has been no breach of the principle of equal treatment.“

• Concerning men and women in matters of employment and occupation.