What is discrimination?
Discrimination takes place when a person is treated in a way different than other persons in a similar situation because of a certain characteristic that the person possesses such as race, ethnic origin, sex, language, religion or other.
Discrimination is prohibited because it conflicts with the principle of equal treatment, which is fundamental to human rights law.
There are three types of discrimination:
1. Direct
Takes place when the person is directly affected by the difference in treatment.
2. Indirect
Takes place when the law or policy seemingly applies equally to all and is neutral (non-discriminatory), but in fact discriminates against a certain group.
3. Discrimination by association
Takes place when the discriminatory treatment of one person also extends to another person closely linked (associated with) them (e.g., parent – child).
What are the possible grounds for discrimination?
The list is not exhaustive and discrimination may take place on various grounds. The most common are:
- Race, ethnic origin and colour
- Sex, gender and sexual orientation
- Language
- Religion
- Political or other opinion
- Marital or parental status
- Immigration status
Can discrimination be justified?
Yes, not all instances of discrimination are prohibited.
A difference in treatment will not be a violation of human rights if there is an objective and reasonable justification and if pursues a legitimate aim (e.g., protection of national security, restoration of peace or other).
There is also a concept of positive action – favourable treatment of groups that traditionally have been illegally discriminated against (e.g. ethnic minorities and women).
example In the case of Andrle v. the Czech Republic, the European Court of Human Rights found a lower pensionable age (57 or lower) for women who had raised children compared to that for men (60 years) was not unlawful because such law aims “to compensate for the factual inequality between men and women”.
Who protects this right?
As the State is the main guarantor of human rights, it must ensure that the prohibition of discrimination is observed.
The State’s obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something).
The negative obligation requires the public authorities not to discriminate on unlawful grounds.
The positive obligation requires the state to:
- adopt laws that are not discriminatory
- prohibit unlawful discrimination
- effectively investigate cases where a person has suffered from unjustified unfavourable treatment
- otherwise correct the factual inequalities that exist in society (by supporting traditionally more vulnerable or less protected groups)
International recognition of this right
The prohibition of discrimination is derived from the principle of equality: all people are born free and equal. Any characteristic or the status of a person is not a valid reason for unfavourable treatment.
The 1948 Universal Declaration of Human Rights states in Article 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
This prohibition is also found in all of the most important international and regional human rights conventions. In addition, there are numerous specialised conventions that protect different vulnerable groups such as women, people with disability and migrant workers from discrimination.