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Post No.: 0829guarantee


Fluffystealthkitten says:


The prohibition of discrimination and the guarantee of equality of treatment is a central provision in International Human Rights Law (IHRL) when it comes to everybody’s civil and political rights. It’s one of the only specific human rights obligations to be explicitly enshrined in the UN Charter. This prohibition and guarantee may impose negative and/or positive obligations and may vary in scope depending on the legal instrument or provision in question.


We looked at the provision and realisation of economic, social and cultural rights in Post No.: 0812 if you haven’t checked that out yet.


Not all distinctions are instances of discrimination – legitimately relevant or appropriate distinctions between people are made routinely (e.g. welfare benefits might depend upon an individual’s age, marriage status or means, qualifications are relevant in hiring contexts, family size may be relevant to social housing decisions). Meanwhile, discrimination is any variance in treatment that doesn’t pursue a legitimate purpose or goes beyond what’s necessary or proportionate (e.g. hiring people with the same qualifications but different ethnicities differently).


At the same time – where situations are markedly different – it may rightfully call for differential treatment or reasonable accommodation. To ignore real differences may result in de facto discrimination (e.g. arguing that it’s equal and thus fair for minors to always be treated the same as adults in front of the law, or that everybody must equally use the stairs even if they’re wheelchair-bound!)


It’s about whether the difference in treatment, or the failure to provide distinct treatment, is arbitrary.


States shall guarantee equality before the law, guarantee the equal protection of the law, prohibit any arbitrary discrimination (including in private relationships such as in the labour market), and guarantee to all persons equal and effective protection against discrimination (which may, controversially, be regarded as a positive obligation to take affirmative action in situations of structural or systemic discrimination where particular social groups are being permanently marginalised or excluded from integration factors like employment, housing or education).


Discrimination may relate to a person’s race, colour, sex or sexual orientation, language, religion, political or other opinion, national or social origin or association, property, birth or other status. Regardless of who is conducting it – discriminatory acts should be prohibited and subject to effective legal sanctions.


If a State denies a person entry into the country based on their ethnicity then the State has violated the rule of equality before the law. If a State denies certain benefits to an unmarried couple that are available to married couples, and the only reason that this couple aren’t married is because they’re in a same-sex relationship and they cannot get married for this reason in this country, then the State has failed to guarantee equal protection of the law. (Denying same-sex partners the right to marry is itself a form of direct discrimination on the grounds of sexual orientation, although many States contest this.)


If a private actor discriminates based on race, and the public authorities of the State fail to go forward diligently and adequately with the criminal prosecution of the private perpetrator of racial prejudice, then the State should face sanctions too i.e. a State can be punished for failing to prohibit discrimination or guarantee equality.


Offender profiling and stereotyping are prohibited. Even though it may be statistically valid to infer how a person might behave based on their apparent membership with a certain group – an individual must be treated as an individual instead of according to their group. ‘Some’ does not mean ‘all’. Meow.


Discrimination can be direct or indirect, conscious or unconscious (e.g. implicit biases or stereotypes). Indirect discrimination can arise when an ostensibly neutral measure, procedure, criterion or practice unfairly specifically or disproportionately impacts a particular group(s), whether deliberately, or unintentionally due to not taking into account how something may systemically exclude particular groups (e.g. racially-biased machine learning algorithms). The adoption of ostensibly neutral measures that in fact discriminate will be considered unlawfully discriminatory if the same legitimate objectives could’ve been attained by the adoption of other measures that don’t discriminate. So it’s about the outcome of discrimination rather than the awareness or intention of it.


This is made possible by analysing statistical data (e.g. understanding how much women get paid compared to men on average when doing the same job). Getting access to such (private) data can however be difficult for the victims, and if the victims don’t know about this data then they’ll likely not even suspect that they’re being discriminated against at all. This may suggest that we should allow potential victims to allege that they’re being discriminated against even though they cannot provide the evidence to back this allegation, but then allow an independent investigation into the data to proceed (e.g. to investigate whether there are unfair disparities in gender pay within the organisation concerned).


Questioning or even noticing discriminations that are based on traditional or cultural norms or expectations is difficult too (e.g. Western interviewers and psychometric tests in recruitment generally like to assess how outwardly ‘passionate’ candidates are, but ‘passion’ isn’t expressed as outwardly by those from many Eastern cultures).


On the surface, societies should logically reward people based on merit. For instance it’d be disproportionate to hire candidates who aren’t sufficiently qualified just to achieve more gender balance. However, below the surface, merit – or what we choose to define as ‘merit’ – can sometimes arise from prejudiced sources. For example if job candidates are selected based on the number of years of professional experience they’ve served then this discriminates against women who, more often than men, must interrupt their careers to raise children, especially in countries where childcare services are expensive or insufficient. Should it matter how many years someone has been working if they can ultimately do the job as well as anyone else anyway? Thus gaps in employment, or other immaterial factors like family status, partner’s income, age, seniority or date of last promotion, should not be given undue weight.


How societies define ‘merit’ is often biased in favour of certain qualities that represent the ‘norm’ too, which therefore disadvantages those who don’t, or find it more difficult to, fit that criteria. It’s not that ‘merit’, ‘qualifications’ or ‘competence’ is irrelevant but we must understand that there are many different ways to define it that we might think are always objective but are in fact subjective.


When tackling a structural or systemic discrimination – ‘preferential treatment’ can be temporarily granted to groups that have been historically disadvantaged and/or suffer from existing inequalities. Thus ‘positive action’ or ‘affirmative action’, to compensate for a negative discrimination, is allowed when it comes to people’s civil and political rights. Such measures could include set-asides, quotas and certain outreach programmes that are specifically targeted at individuals from under-represented groups.


If there are two equally qualified candidates for a job – one female and one male – and females are under-represented at that level or in that role, then a recruiter could select the female candidate in order to help overcome this under-representation; as long as this positive action is proportionate and enables the under-represented group to overcome their disadvantage or engage in an activity that they might not otherwise have been able to do. The aim of affirmative action is to seek to redress past inequalities and barriers for marginalised groups.


It’s not really a ‘preferential treatment’ or ‘reverse discrimination’ though because it’s about promoting de facto equality between different groups of persons by granting special treatments to disadvantaged groups. So deliberately hiring more women to make a company nearer to having 50% female employees isn’t ‘favouring’ women but trying to make their representation more factually equal in proportion to the total population and ratio of the genders who apply to the organisation. Therefore the preferred term is ‘temporary special measures’; and these can also be justified to achieve greater furry diversity in settings where it matters that all segments of the population are represented.


These temporary special measures should be discontinued when the objectives of equality of opportunity and treatment have been substantively and sustainably achieved. Positive measures may, in exceptional cases, need to be permanently implemented though (e.g. providing interpretation services for linguistic minorities, or information in Braille for blind people when accessing healthcare services). But in other cases, the ideal outcome is the adoption of measures that recognise the specific needs of, and improve the situation of, under-privileged or under-represented groups by transforming the environment in which they inhabit, but which don’t imply differential treatment i.e. a system that inherently presents an equality of opportunities without the need for temporary special measures. The goal should be to eliminate the structural barriers or the systemic sources of discrimination themselves.


Whereas temporary special measures don’t question or redress the inherent structures or environments that result in exclusion or discrimination in the first place (they just try to compensate for them) – ‘reasonable accommodation’ goes further. This imposes a duty on organisations to identify, in individual cases and via individualised solutions, what measures could be implemented to ensure that the specific needs of an individual are taken into account, in the context in which they’re seeking access to, say, social security, employment, housing or education, so that they no longer experience a ‘disproportionate burden’; without in turn imposing an unreasonable burden on any others or the organisation. It’s about facilitating the integration of the person who would otherwise be excluded.


It is acknowledged here that societal structures (e.g. the definition of the roles to be performed by the employee, the design of the working environment, etc.) aren’t necessarily neutral – the exclusion has its source not in the individual but in the way these structures have been designed, which may have failed to take into account the specific needs of individuals who don’t conform to the ‘norm’, such as the physically disabled or pregnant women.


Private parties and public services should therefore take all necessary and appropriate steps to promote and guarantee equality and eliminate discrimination by providing reasonable accommodation. A standard cost-benefit analysis won’t satisfy this criterion. Even if there are legitimate reasons to treat a person differently – reasonable accommodation requires eliminating obstacles to their integration, rather than demanding justifications for their exclusion.


Thus if a Sikh refuses to wear a hardhat at work on a construction site because of his turban, then this presents a conflict between his freedom of religion and his right to not be discriminated against, and his safety. It is for his safety – yet the employer, instead of immediately sacking him, should first try its best to accommodate him, such as by training him for a different role in the company.


Meow. Figuring out what is a legitimate distinction and what is discriminatory can lead to some quite heated debates! One example is that some of us agree that homosexual people should be allowed to serve in the armed forces but others think that they’d cause a distraction during missions. There’s also the tension between the notion that ‘universal’ human rights infringe upon specific idiosyncratic national, religious or cultural traditions versus the belief that they enable those rights, which are arguably considered to be shared concerns and basic protections of human dignity, to thrive. Such a case includes Muslim women wearing certain religious headdresses in public – should the individuals who wear them change or should society as a whole change its attitudes when these women claim that it’s their non-coerced choice to wear them? If you wish to weigh in with your views on these complex issues then please use the Twitter comment button just below!


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