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What is discrimination? Are some less equal than others?
First off, it must be asked, what is discrimination exactly? There are various definitions in the treaties. These include:
The Convention on the Elimination of Racial Discrimination, Article 1, paragraph 1, stipulates that “'racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights an fundamental freedoms in the political, economic, social, cultural or any other field of public life.'
Council Directive 97/80/EC, Article 2, paragraph 2, defines indirect discrimination as 'indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.' Presumably then, it can be inferred that direct discrimination comes about via a provision, which is not neutral.
In fact, the Racial Equality Directive, Article 2, paragraph 1, defines direct discrimination as occurring 'where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.' It then goes on to define indirect discrimination similarly to Council Directive 97/80/EC: 'indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.'
The Directive establishing a general framework for equal treatment in employment and occupation includes similar definitions too:
'(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.'
Discrimination, then, seems not to be something different then ‘making unlawful classifications or differentiations’ or ‘unequal treatment’. It is a lack of equal treatment, either directly or indirectly, through making differentiations between people on the basis of one of the protected grounds.
The Directives’ definitions give enough stronghold to make a distinction between
arbitrary classifications and discriminatory classifications. While there is some room for exceptions and justifications, such as positive action and special exceptions for religions organisations and there is also some discretionary power for the legislator and/or policy-makers, these exceptions must be narrowly construed. There is a good balance struck, but still a distinction.
The grounds covered by EU Non-Discrimination Law are sex, gender, age, disability, part time/temporary workers, religion or belief, and sexual orientation. There is some debate over whether these should be differentiated between, with some afforded higher protection than others. I would argue that there should be no such prioritisation as this is discrimination in and of itself. The right to equal treatment and freedom from discrimination should equally protect all people. If there were to be a successful justification it could be that in order to achieve substantive equality some wrongs must be put right so that everybody is at the same starting point. For example, women could be considered to be treated less favourably than old people in day-to-day life, so the ground of gender could be prioritized.