Equality and Non-discrimination

Non-discrimination and equality are core elements of the international human rights normative framework. Article 2 of the Universal Declaration of Human Rights (UDHR) states that every human being is entitled to all rights and freedoms “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Similarly, the International Covenant on Civil and Political rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) require the respective States parties to guarantee the enjoyment of all rights without discrimination of any kind. Both also have specific provisions for the “equal right” of men and women in the enjoyment of all rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Articles 11e and 14), the International Convention on All Forms of Racial Discrimination (CERD, Article 5) and the Convention on the Rights of Persons with Disabilities (CRPD, Article 28) likewise enshrine a prohibition of discrimination in the enjoyment of the rights set out in each Convention, including the right to social security.  The right to equality and non-discrimination with respect to social protection has been underlined by ILO social security standards. While the focus of older instruments was on migrants and ensuring equality of treatment through the impetus of bilateral agreements (ILO Conventions No. 118 and 157), Recommendation No. 202 (para 3d) highlights the need to streamline the principle of non-discrimination throughout the life cycle, taking account while being responsive to special needs who may experience structural discrimination, when implementing comprehensive social protection systems.

Under international human rights law, States are expected to eliminate direct and indirect discrimination in law and practice; on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status; when it has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to social security. It also requires states to take special measures to protect the most vulnerable segments of the population as a matter of priority (Committee on Economic, Social and Cultural Rights, General Comment 19, paras 29-30). States parties have the obligation to pay special attention to those individuals and groups who traditionally face difficulties in exercising this right (General Comment 19, para 31) throughout the processes of design, implementation and evaluation. The principles of equality and non-discrimination must be respected in all stages of a social protection programme, from the selection of the beneficiaries to the delivery system chosen. Giving priority to the most disadvantaged sector of society makes it critical to gather disaggregated data to be able to identify them.

Selection of beneficiaries

As stated previously (see universality of protection), States must ensure the right to social security, including social insurance, for all without discrimination of any kind. Article 2.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 26 of the Convention on the Rights of the Child (CRC) oblige States Parties to take effective measures, within their maximum available resources, to fully realize this right. From a human rights perspective, social protection programmes should also be child-sensitive in their design, implementation and evaluation. The CRC (the Preamble, Articles 2 and 23 in particular) emphasizes that the best interests of children should be respected at all times, and their special needs should be accommodated. A child-sensitive social protection programme is one which ensures the rights of the child, and takes into account all the factors that might place children in a vulnerable position (see also the joint publication Advancing Child-Sensitive Social Protection). Programmes are required to factor in age- and gender-specific risks and vulnerabilities at each stage of the life course, especially considering the needs of families with children. Special provisions should be made for children without parental care and those who are marginalized within their families due to gender, disability, ethnicity, HIV/AIDS status or other markers of identity. To achieve these ends, it is necessary that intra-household dynamics be carefully considered, including the balance of power between men and women. A child-sensitive programme must also include the voices and opinions of children and youth, and their caregivers in design and implementation processes.

Persons with disabilities face various impediments to the enjoyment of their human rights, and thus social protection programmes must employ the utmost sensitivity with regard to their needs. Programmes must ensure their effective coverage and access to social protection benefits, support services as well as to information related to assistive technology and other facilities. This requirement is laid down in the CRPD (Article 4). Article 3 states that social protection programmes must incorporate the chief principles of the CRPD:

  • respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
  • non-discrimination;
  • full and effective participation and inclusion in society;
  • respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  • equality of opportunity;
  • accessibility; and
  • equality between men and women.

The CRPD also stresses that the special needs of women and children with disabilities must be duly taken into account (Articles 3, 6 and 7).

Various other characteristics, such as ethnicity, health status, sexual orientation or geographical location can also impede the equal enjoyment by some people of their economic, social and cultural rights, including their right to social security. Each of these characteristics must be taken into account when a social protection programme is designed and implemented. Inclusion of those who are disadvantaged and marginalized is the first step but it is not enough. The provision of quality social services needed by different groups is equally important. For example, building maternal health clinics in rural areas does not necessarily meet the state’s obligations if the services provided in those clinics are worse than in clinics elsewhere in the country or if they do not meet standards set in similar contexts.

Substantive equality

Social protection programmes must work towards substantive equality, a concept which has been promoted in key human rights treaties to illustrate and address the fact that inequality can be structural and discrimination indirect, that equality has to be understood in relation to outcomes as well as opportunities, and that universal protection does not necessarily mean uniform measures. ‘Different’ treatment may be required to achieve equality in practice (UN Women’s Progress of the World’s Women, 2015-2016).

Substantive equality differs from formal equality in that the latter refers to the adoption of laws and policies that treat everyone equally, while substantive equality is concerned with the results and outcomes of these laws, policies and practices, in particular ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience.

Policy makers must take into consideration the needs of different groups, and works towards rectifying the effects of past discrimination, social norms and power dynamics that contribute to inequality.

All social security policies and programmes must respect, protect and fulfil the rights of marginalized and disadvantages groups, ensuring non-discrimination and equality.

Expert Commentaries

Social Protection for Indigenous Persons with Disabilities

Worldwide, the prevalence of disability tends to be higher within indigenous communities than among non-indigenous groups.1 This high prevalence of disability is both a cause and a consequence of severe poverty, violence and unsafe living conditions, including exposure to environmental degradation, toxic waste and the adverse impacts of development project.2 Indigenous persons with disabilities are […]

Key Issues

Minorities

  Generally, under human rights instruments, rights are granted to ‘everyone’ without discrimination of any kind. Thus, minorities (national or ethnic, religious and linguistic minorities) should enjoy all rights including the right to social security on the same footing as the majority of the population. The protection of the rights of minorities is provided for under article 27 […]

Legal Instruments

Prevention of Discrimination Act, Chapter 99:09

This Act prohibits discrimination in employment, training, recruitment and membership in professional bodies, and promotes equal pay between men and women who perform work of equal value.  

Employment Act No. 14

This Act provides regulations relating to workers’ wages, leave, and general matters pertaining to workers’ welfare.

Decreto 275 reforma al Código de Trabajo

Prohíbe demandar un examen de embarazo previo a contrato.

Ley 180 sobre las discapacidades.

Protege a las personas con discapacidad; establece un sistema de prevención de discapacidades, atención e integración de personas con discapacidad que garantice su desarrollo y evite que sufran toda clase de discriminación, incluida la de género. Establece la creación y funcionamiento del Consejo Nacional de Discapacidades (CONADIS).

Ley 7.600

La Ley tiene como objetivos, servir como instrumento a las personas con discapacidad para que alcancen su máximo desarrollo, su plena participación social, así como el ejercicio de los derechos y deberes establecidos en nuestro sistema jurídico; garantizar la igualdad de oportunidades para la población en todo ámbito; eliminar cualquier tipo de discriminación hacia estas […]

Ley 20.367 que modifica el Código del Trabajo y hace extensivo permiso a la madre en caso de adopción de un menor.

Agrega un inciso al artículo 195 al Código del Trabajo para hacer extensivo permiso a la madre en caso de adopción de un menor.

Ley 20.535

Extiende el permiso a los padres contemplado en el artículo 199 bis, la persona que tenga a su cuidado personal, o sea cuidador de un menor con discapacidad debidamente inscrito en el Registro Nacional de la Discapacidad, o menor de 6 años, con el diagnóstico del médico tratante. También se extiende el permiso en caso […]

Ley 20.545

Extiende el postnatal de 12 semanas a 24 o incluso a 30, en el caso de que la mujer elija un postnatal parental parcial o de “media jornada”, recibiendo durante ese tiempo un subsidio. Con esta ley se establece un derecho irrenunciable para las mujeres trabajadoras, se les permite compatibilizar el trabajo con la maternidad […]

Ley 20.764

Modificación al Código Laboral que establece la eliminación de la discriminación, garantizar la igualdad de derechos de ambos padres y posibilitar una adecuada distribución de las responsabilidades familiares. Los padres podrán abandonar su lugar de trabajo durante una hora al día para alimentar a los hijos de hasta dos años de edad.

Ley 10.421

Extiende a la madre adoptiva el derecho a licencia y salario por maternidad, modificando las Leyes del Trabajo.

Legal Cases

Romani Women’s Right to Equal Treatment in Hungary

Summary:  In February 2016, a Romani woman gave birth a public hospital in Miskolc, north-eastern Hungary. During labour she cried out with pain and the midwife yelled at her “if you shout once more I will push the pillow into your face”. When the woman apologised, the doctor said to her “if you had shouted […]

Sexual and Reproductive Health and Rights in India

 Summary:  In January 2012, up to 53 women underwent a sterilization procedure in Bihar, India, at a sterilization camp managed by an NGO which had been granted accreditation by the District Health Society, apparently without following any formal, transparent process. The women had not been given any counseling regarding the potential dangers and outcomes of […]

The Right to Equal Education in South Africa

Nature of the Case Delayed textbook delivery has plagued public schools in Limpopo, South Africa’s northernmost province for several years. The Department of Basic Education and Limpopo Department of Education appealed a high court decision holding that their failure to ensure timely delivery of textbooks to learners in Limpopo public schools violated the learners’ constitutional […]

Regional Protection against HIV-Based Discrimination in the Armed Forces

The decision originated in separate employer decisions to discharge from the Mexican Army two HIV-positive servicemen who had tested for the virus in standard army-run medical examinations. In the first case, J.S.C.H. had been in the army as a driver for 19 years. The second case involved M.G.S., an infantry corporal with twelve years’ service. […]

The Right to Affordable Care in the United States of America

Nature of the Case This case came before the Supreme Court on appeal, and constitutes a challenge to one aspect of the Affordable Care Act, specifically regarding whether subsidies can be provided to low-income people buying health insurance through federal exchanges. These subsidies are vital in enabling people to access affordable health care coverage. Summary […]

Access to abortion for poor, disabled woman amid conscientious objection in Argentina

Summary: The communication was filed by the mother of a woman with a mental impairment amounting to a legal age of a child, concerning the response of public health and judicial institutions to her pregnancy resulting from rape.  After being refused by one hospital, a second hospital scheduled an abortion but was later blocked by […]

Reduction of pensions for condemned prisoners in Azerbaijan

The Court was requested to examine whether Article 109 para. 1 of the Law of Azerbaijan Republic On Pension Maintenance of Citizens, allowing an 80 per cent reduction of pensions for entitled persons who are incarcerated, was consistent with the right to social protection, contained in Article 38 of the Constitution of Azerbaijan. According to […]

Discriminatory, cruel and unusual treatment of refugees for provision of healthcare in Canada

The Federal Court reviewed the effects of changes to the Interim Federal Health Program (IFHP) in relation to sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, pertaining to the right to life, liberty and the security of the person, the prohibition of cruel and unusual punishment and equal of treatment […]

Protection of Non-nationals without Discrimination in France

Summary Ibrahim Gueye and 742 other retired Senegalese members of the French Army submitted this case before the Human Rights Committee alleging racial discrimination in French legislation. The petitioners contended that the French law accorded different treatment to those retired army men of Senegalese nationality who served in the French Army before the independence of […]

Equal treatment of nations and non-nationals in Austria

Summary: The verdict in Gaygusuz versus Austria established an important case law regarding the equal treatment of nationals and non-nationals. Gaygusuz, a Turkish national, had come to Austria in 1973 and worked for almost a decade with some gaps when he went back to Turkey. He later applied for emergency assistance in the form of […]

Resources

Guidelines for the Primary and Gender-Affirming Care of Transgender and Gender Nonbinary People

These guidelines aim to address these disparities by equipping primary care providers and health systems with the tools and knowledge to meet the health care needs of their transgender and gender nonconforming patients. Link to Guidelines

Migrant access to social protection under Bilateral Labour Agreements: A review of 120 countries and nine bilateral arrangements (ESS Working Paper No. 57)

This working paper: (i) examines migrants access to social protection under Bilateral Labour Agreements (BLAs) with a view to providing policy makers with guidelines for extending social protection to migrants and designing better migration policies; (ii) presents the results of a mapping of bilateral and multilateral social security agreements in 120 countries; (iii) reviews legislation […]

Ignored and Unequal: Roma Access to the Right to Housing and Education in Turkey

Turkey’s Roma population and similar social groups such as Abdal have long been among the country’s most marginalized communities. Despite being guaranteed in both domestic and international law, in practice for many Roma the right to education and housing remain out of reach: however, limited data on the disparities and discrimination they face has contributed […]

Women at Work: Trends 2016

This report provides the latest ILO data on women’s position in labour markets, examines the factors behind these trends and explores the policy drivers for transformative change. The report provides a picture of where women stand today in the world of work and how they have progressed over the past 20 years. It examines the […]

Social transfers and poverty in middle- and high- income countries – A global perspective

This study investigates an old question that has re-emerged in social policy making and in analyses of global social development: to what extent does targeting and size of social transfers matter for poverty? Using multilevel logistic regression and Cross- National Data Center in Luxembourg (LIS) income data for 40 middle- and high-income countries, we show […]

The Human Rights Approach to Social Protection

This report sets out to elaborate and promote a human rights framework for social protection, identifying best practices and disseminating lessons learned. It provides an in-depth analysis of the application of central human rights principles of the human rights framework – equality and non-discrimination (including accessibility, acceptability, affordability and the incorporation of the gender perspective), participation, transparency […]