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.

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

The Human Rights-Based Approach to Social Protection for Migrants: tensions and contradictions in practice

The principle of social protection may be to meet universal needs. However, social protection is defined, organized and provided in specific contexts. The right to social protection is defined by social norms, economic choices and political contestation. This generates contradictions between universal human rights and particularist rights to social protection. These contradictions make it especially […]

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

Bekendtgørelse (Nr 1394 af 2008) af lov om forbud mod forskelsbehandling på arbejdsmarkedet m.v.

This law prohibits discrimination in the labour market. Link to law

Equality Act 2010

The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it’s unlawful to treat someone. Link to Act

National Policy on HIV/AIDS and the World of Work

This policy, based on principles of human rights, aims to guide the national response to HIV/AIDS in reducing and managing the impact of the epidemic in the world of work. Specifically the policy aims to: Prevent transmission of HIV infection amongst workers and their families; Protect rights of those who are infected and provide access […]

Reproductive Health Policy

The purpose of this Policy & Strategy document is to outline policy statements of the Ministry of Health in support of Reproductive Health including maternal and neonatal health, demonstrating its contribution to the achievement of improved health and wellbeing in Fiji. It maps out a framework of key strategic areas and activities to be implemented […]

An Act for the recognition and registration of the gender of a person and to regulate the effects of such a change, as well as the recognition and protection of the sex characteristics of a person (Act No. XI of 2015)

This act recognizes the gender of a person and regulates the effects of such a change, as well as the recognition and protection of the sex characteristics of a person.

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 […]

Legal Cases

Roma Students’ Right to Equality and Non-Discrimination in the Czech Republic

Participatory implementation of D.H. case promotes inclusion of Roma children in Czech schools In this case, applicants challenged the disproportionate classification of Roma school children in the Czech Republic as having special education needs as well as their segregation into schools for children with “Light Mental Disabilities”. The European Court of Human Rights (ECtHR) decided […]

Equitable Education Funding in the United States

This case focused on whether school funding by the State of Kansas was equitable and adequate, as required under the relevant state constitutional provisions regulating the provision of education. Upon finding violations in connection with the equitable distribution of funds and the adequacy of such funds to ensure constitutionally required education, the State of Kansas […]

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 inconsistent 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 […]

Resources

Social Protection for Indigenous Peoples

Men, women and children from indigenous peoples are estimated to represent 4.5 per cent of the world’s population. They constitute more than 5,000 different groups with distinct cultures, forms of social organization, livelihood strategies, practices, notions of poverty and wellbeing, values, and beliefs profoundly embedded in their collective relationship with the lands and territories that they […]

Social Protection and Persons with Disabilities

Social protection is an essential condition for social and economic development for all, but particularly for those who experience poverty and social exclusion. Social protection programmes can play a crucial role in alleviating and preventing poverty and vulnerability to secure people’s well-being. They can also enhance the productivity, employability and economic development of people by […]

Ensuring Inclusion and Combatting Discrimination in Social Protection Programmes: The role of human rights standards  

Recent years have witnessed the significant expansion of social protection programmes around the world. Yet, a vast number of poor and vulnerable people, including children, women, ethnic minorities, and persons with disabilities, remain uncovered, especially in lower-income countries. This article argues that a better understanding of the principle of equality and non-discrimination, as defined under […]

Strengthening Social Protection for Persons with Disabilities in Arab Countries

Persons with disabilities in the Arab region, as elsewhere in the world, are one of the most marginalized and excluded population groups. They are often not visible in public life, as the social and physical environments remain inaccessible, and they are disproportionally affected by crises and disasters. Reporting on the ongoing violent conflicts across the […]

Equal Access to Public Restrooms

This brief outlines transgender and gender non-conforming persons’ right to adequate sanitation facilities in public spaces.

Workplace Rights and Wrongs

This brief outlines transgender and gender-noncomforming person’s rights at work.

Towards a Better Future for Women and Work: voices of women and men

ILO, in collaboration with Gallup, surveyed men and women in 2016 to understand their perceptions about women and work. The results, based on interviews with nearly 149,000 adults in 142 countries and territories, suggest that women might find support in their quest for productive employment and decent work coming from a rather unexpected source: men. […]

The Impact of Minimum Wage Increases on the South African Economy in the Global Policy Model

This paper uses the United Nations Global Policy Model (GPM) to assess how increasing minimum wages might impact the South African economy by increasing the share of income going to workers (the “labour share”) – in contrast to the share that accrues to capital through profits and property income. We simulate the implementation of a […]

OPERA in Practice: strengthening implementation of strategic litigation in South Africa

Opera in Practice: Strengthening Implementation of Strategic Litigation in South Africa is a case study reflecting the Center for Economic, Social and Cultural Rights and the Legal Resources Center’s collaborative efforts to monitor, and hold the government accountable for, the implementation of court orders in the Madzodzo v Department of Basic Education case. The project […]

Great Expectations: Is the IMF turning words into action on inequality?

In recent years, the International Monetary Fund has become a global leader in highlighting the inequality crisis; consistently identifying it as a major threat to human progress and prosperity. This is a significant shift from its previously held position that rising inequality was a necessary trade-off for achieving greater economic growth. What is the IMF […]

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