Equality and Non-Discrimination Flashcards
Formal equality
Equal treatment for all. Very basic level of equality.
Substantive equality
Formal equality may not be enough. Treating people equally may not result in ‘fairness’. Need to take into account certain advantages that certain groups have.
2 versions of substantive equality
- Equality of opportunity: We don’t come to the world or develop with the same opportunities, due to factors beyond don control. The obligation is for those pre-existing disadvantages to be neutralized. Does not have to guarantee that there won’t be any winners or losers.
- Equality of results: Here the expectation is not only that they have the same starting point but also that they reach the end at the same time. No winners or losers.
Intended vs unintended discrimination
For international human rights purposes, its irrelevant whether it was intended or unintended - all that matters it the effect it had. It it is discriminatory then that is contrary to the right of equality.
Subordinate norms
Impose an obligation to treat equally different individuals as far as the application of the rights contained in a given Human Rights Treaty is concerned.
Autonomous Norms
Prohibits discrimination in general. Includes the application of the rights contained in the treaty, but also the rights beyond the treaty. Equality before the law.
Prohibited grounds of discrimination
General guarantee of equality. Exhaustive list of prohibited grounds: You cannot discriminate on the grounds of A,B,C,D, all other grounds are fair game. Still have an interpretative problem: What does B exactly entail? Open-ended list of prohibited grounds: This creates an ambiguity in terms of what are those other grounds.
Legitimate grounds of discrimination
Legitimate aim + proportionality: How is the discrimination you are going to apply to this person vis a vis the benefits you will gain? Cost of benefit has to be balanced. Not all discrimination is necessarily illegitimate. You may be able to justify it. Affirmative action (special measures of protection): Obligation to respect equality, obligation to protect equality, obligation to promote, guarantee and secure equality (implies the obligation to not just remove obstacles, but go beyond and remove systemic/structural forms of discrimination).
Council Directive 76/207/EEC
Art. 2(1): Non-discrimination between men and women
Art. 2(4): Measures to promote equality of opportunity.
The Kalanke case (1995)
Automatic hiring priority to women over men. Equality of results. Exception had to do with forms of discrimination that promoted equality of opportunity: Man was questioning the legitimacy of the norm applied by employers to give automatic hiring to women over men provided that they are equally qualified. Violated Art. 2(1), but the question was whether it can be justified under Art. 2(4). Court concluded that it was not justified: giving automatic hiring to female candidate went beyond creating equal opportunities, it was trying to create equal results.
The Marschall case (1997)
Difference between this one and in Kalanke case: Non-automatic hiring priority to women over men. There was an ‘unless’ component. Left room for the employer to still hire the male candidate if they found that despite them being equally qualified, there were other relevant reasons to the job that made him a better option. Court understands that the purpose of the law did not go beyond art. 2(4), it was about creating equal opportunities. As a result, this is justifiable under 2(4).
