6. Discrimination Flashcards
How are direct and indirect discrimination defined? What do direct and indirect discrimination have in common? How are they different?
Direct discrimination occurs when a distinction is based on a prohibited ground (eg. race, ethnicity, religion, gender, etc.) or the distinction is arbitrary because it is unrelated to a legitimate objective or is disproportionate. Such distinctions cannot be reasonably and objectively justified.
Indirect discrimination is the adoption of an apparently neutral measure that disadvantages a particular group or has a disproportionate impact on that group. It occurs when a situation is treated equally when it requires a differentiated treatment.
Both direct and indirect discrimination can be conscious or unconscious.
Whereas direct discrimination can be formal or substantive, indirect discrimination is necessarily substantive (ie. defacto) discrimination.
What are positive action measures or temporary special measures?
Special measures are a derogation of which human right?
These measures seek to promote defacto equality to specific groups by granting specific treatment to the disadvantaged. This is sometimes referred to as preferential treatment. They are often subject to strict conditions. They are allowed so long as they do not lead to the maintenance of unequal or separate standards. Examples include quotas. These measures compensate for existing inequalities and counter the effects; they may also compensate for the impacts of past inequalities.
Special measures are a derogation from the principle of formal equality and therefore are allowed only under strict conditions.
The International Convention on Economic, Social and Cultural Rights obligates States to guarantee the rights of the Covenant without discrimination noting that achieving this will require discrimination to be eliminated both formally and substantively. What does this mean?
The elimination of formal discrimination requires ensuring that a State’s laws and policies do not discriminate on prohibited grounds.
The requirement to eliminate substantive or defacto discrimination requires that the State pays attention to the groups that have historically encountered prejudice and look more deeply at attitudes and conditions. The State must immediately adopt measures which will prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive discrimination. This may require, or even obligate States to adopt special measures to suppress conditions that perpetuate discrimination.
There are four obligations of non discrimination - a) equality before the law b) equal protection of the law c) to prohibit any discrimination d) to guarantee to all persons equal and effective protection against discrimination. What do all of these mean?
a) equality before the law – the law must be applied without discrimination. This is the responsibility of courts and law enforcement authorities. Eg. ethnic profiling at airports
b) equal protection of the law – the law should not create any discrimination either directly (making distinctions that cannot be justified) or indirectly (ie. treating equally situations which require differentiated treatment). This is the responsibility of judges and law makers. Eg. legally a pension transfer is allowable for a heterosexual partner but not a homosexual partner
c) prohibit discrimination - any discrimination by State actors or private actors should be prohibited and subject to legal sanctions. This is a positive obligation requiring those enforcing the law (ie. anyone in the system) to forbid discrimination and apply legal sanctions and judicial remedies. Eg. police/prosecutor decide not to press charges on a discriminatory decision occurring in a workplace. (The right to respect for private life tends to limit the scope of the State obligation to prohibit discrimination between private individuals.)
d) to guarantee to all persons equal and effective protection against discrimination. This is also a positive obligation that requires States to combat systemic forms of discrimination. Eg. unequal pay
Karnel Singh Bhinder v Canada 1989. A sikh wears a turban in his daily life, as he considers this part of his religious duties. He therefore refuses to wear safety headgear during his work on a construction plant. This results in the termination of his labour contract, because safety rules impose a “hard hat” policy on the site. What two rights could this sikh argue have been violated?
Freedom of religion (restriction applied here which the HRC argued was legitimate due to the need for public safety)
Non - discrimination (indirect discrimination has potentially occurred due to this requirement having a disproportionate impact on a particular cultural segment)
Central Okanagan School District v Renaud 1992. An employee refuses to work a Friday evening shift because it occurs on his Sabbath. The union refuses to accommodate, and the school terminates his employment. How did the Court rule and why?
The court concludes that the appellant was victim of discrimination and unlawful dismissal. The judge explained that the duty resting on the employer to accommodate the religious beliefs of employees extends to require an employer to take reasonable measures short of undue hardship ie. undue interference with the business or undue expense. The judge argued that the employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. The Court also noted that the complainant has a duty to do their part by accepting a reasonable proposal.
What is ‘reasonable accommodation’?
Reasonable accommodation imposes a duty on actors to identify, by individual, which measures could be taken to ensure that the specific needs of an individual are taken into account, in the context in which he or she is seeking access to things like employment, housing or education. These are individualised and context-specific measures. These are measures which must be applied unless it imposes a disproportionate burden (eg. would threaten the viability of the employers business). This applies particularly to the rights of people with a disability.
Why are profiling and stereotyping unacceptable even when the assumptions may be statistically valid?
Because generalisations about a particular individual because of the group to whom they belong are prohibited.
Not all distinctions are considered discriminatory. What characteristics does discrimination have?
It is arbitrary. ie. without justification
It does not pursue a legitimate objective or because the difference in treatment goes beyond what is necessary to achieve that objective.
Disproportionate distinctions may also be considered discriminatory.
To ignore real differences may result in defacto/indirect discrimination
What 5 forms can discrimination take?
a) Direct, (formal or substantive)
b) Indirect, (defacto/substantive). Apparently neutral measures that result in disadvantage to certain groups; ‘disparate impact’. Substantive law is the law that governs how people should behave (ie. rights and obligations) as distinct from procedural law ( processes and procedures)
c) failure to provide reasonable accommodation
d) failure to adopt positive action measures,
e) structural or systemic discrimination (ie. where certain groups are excluded from factors like employment, housing) which may require the adoption of positive measures
Non-discrimination clauses in treaties can take two forms - independent clauses and those that are not independent. What does this mean?
Independent clauses protect from discrimination in all fields - not limited to the human rights obligations that are in the particular legal instrument in which they appear
Clauses that are not independent can only be invoked in combination with the other substantive provisions within the treaty concerned
