Equality and non-discrimination

Question 1

What is the difference between equality and non-discrimination?

Answer 1

Equality focuses on that people are to be treated equally vs. non-discrimination that precludes differential treatment on unreasonable grounds

Question 2

What does it mean that the term non-discrimination corresponds to the more limited concept of formal equality?

Answer 2

This notion focuses on the process rather then the outcome: equality if achieves if individuals in a comparative situation are treated equally, regardless of result

Question 3

What does it mean that the term equality stresses the need for a more positive approach aimed at substantive equality?

Answer 3

It recognizes that a merely formal notion of equality as procedural fairness can in fact perpetuate existing patterns of disadvantage, equality must go beyond consistent treatment of likes

Question 4

What are the two main variants of substantive equality?

Answer 4

• Equaliy of opportunity: equality is not achieved before we are treated equally and given the same opportunities
• Equality of result: goes further and aims to achieve an equal distribution of social goods such as education, employment, healthcare, and political representation

Question 5

What is transformative equality? And what convention is built on this concept?

Answer 5

• focuses on structural change, equality embraces differences
• four dimensions: 1. redessing disadvantage, 2. addressing stigma, stereotyping, prejudice and violence on the basis of disability, 3. enhancing participation and voice of people with disabilities, 4. accommodating difference by achieving structural change
• CRPD is based on this concept of equality

Question 6

What is discrimination under the human rights?

Answer 6

• a distinction, exclusion, restriction or preference
• based on X grounds (grounds depends on the treaty text)
• between similarly situated individuals or groups
• with the purpose of or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms

Question 7

When is discrimination justified?

Answer 7

The 2 limb test: any difference in treatmest must pursue a legitimate aim and be proporionate

Question 8

How is the burden of proof in discrimination cases?

Answer 8

• the complainant need to show that there has been a difference in treatment or outcome, that theres is a ground of distinction (depends on the treaty) and that there exists a comparable situation
• the state has to show that there has been a justification for the distinction (objective and reasonable, proportional to the aim)

Question 9

What is the difference between subordinate and autonomous norms of non-discrimination? (give examples of where this can be found)

Answer 9

• subordinate: discrimination is only prohibited in the enjoyment of the rights set forth in the enjoment of the rights and freedoms otherwise set forth in the respective instrument (ex. ECHR art. 14 and ICCPR art. 2 (1))
• autonomous: free standing, discrimination is not only prohibited in other rights but in general (ex. ICCPR art. 26)

Question 10

What forms of discrimination exists?

Answer 10

• direct: when a person, in a similar situation, is being treated differently/less favorably then others because of their status/characteristic for a reason related to a prohibited ground (ex. age)
• indirect: laws, policies appearing neutral, but that has disproportionately negative impact on a particular group defined by reference to one of the prohibited grounds

Question 11

What is the difference between art. 2 (1) and art. 26 of ICCPR?

Answer 11

• art. 2 is a principle, works as an interpretative tool, does not operate by itself
• art. 26 is a substantive, self-standing right

Question 12

What does it mean that the state has to take positive action to ensure that discrimination doesn’t take place? What are some examples of this?

Answer 12

Besides the states duty to respect (laws comply with non-discrimination) and protect (prevent discrimination from non-state actors), the state has to take postive action (promote, guarantee, and secure equality) by taking proactive steps to eliminate structural patterns of disadvatange and further social inclusion.

An example is provisions of ‘reasonable accommodation’ for individuals in certain circumstances. Anther example is ‘special measures of protection’, which in its strongest form involve preferential treatment of member of previously disadvataged groups of people in different situations.