1. International Trends and Best Practice Models of Promoting Equality Melbourne, 26 July 2011 Dr Dimitrina Petrova Executive Director The Equal Rights Trust

2. Introduction Equality law has made good progress in the last 10- 15 years in a number of countries: South Africa, EU Member States, Canada In the UK – Equality Act 2010 – part of the 5 th generation of equality law – after 45 years of evolution of legal concepts on equality In the EU – 27 member states – internalising a series of Equality Directives (Art 13 TEU)

3. Purpose of this talk 1. To present current global trends in promoting equality 2. To present best practice models and solutions to key problems in developing equality legislation and jurisprudence Legal models cannot simply be transplanted from one jurisdiction to another: account has to be taken of national context; yet, there can still be lessons and exchange of best practices may be helpful.

4. Major trends in equality law regarding its purpose Evolution in the aims of equality law: – Ensure formal equality: equal treatment: Aristotle: treating the likes alike – formal (procedural) equality; UK Race Relations Act 1965 and 1968 – Ensure substantive equality of opportunity – 3rd generation of UK EL – results from the recognition that formal equal treatment cannot remove barriers – cf. ECHR: Thlimenos v Greece; UK: EPA 1970, SDA 1975, RRA 1976 etc –indirect discrimination and positive action – Ensure comprehensive equality – inspired by EU Directives from 1997 onwards based on Art 13 of Treaty of Amsterdam; UK: 4 th generation – Beginning of transformative equality: positive duty; equality of capabilities and participation: Amartya Sen

5. The British Equality Act 2010 Enacted after 14 years of campaigning Replaces 9 previous Acts and over 100 further regulations Implements fully 4 main EU Directives Has 218 sections, organised in 16 parts, and 28 schedules – 239 pages; plus Explanatory Notes 216 pages There will be further detailed regulations in secondary legislation and guidance in codes of practice

6. Major trends in equality law regarding its framework and key approaches 1 From anti-discrimination law to equality law From patchwork of norms to a unitary (unified, integrated) framework From regulation of employment and other areas to a human rights approach: equality as a human right – toward a synthesis with human rights law

7. Major trends in equality law regarding its framework and key approaches 2 Clarifying the definitions of discrimination, harassment and victimisation and applying them consistently across all protected characteristics; Expanding positive duties on public sector authorities to advance equality in respect of all protected characteristics;

8. Major trends in equality law regarding its framework and key approaches 3 Widening the circumstances in which positive action is allowed Attempts to relate status equalities with socio- economic equality: UK: new duty on public authorities to have due regard to socio- economic disadvantage when taking strategic decisions (Art 1 of EA 2010)

9. Major trends: reflected in the unitary human rights framework on equality It is a holistic approach which, while keeping in view the specificities of the different strands of equality and the different types of discrimination, seeks more effective implementation of the right to equality through strengthening also the overarching aspects of these different strands and types. It is expressed in the Declaration of Principles on Equality 2008

10. The unitary framework brings together: The types of inequalities based on different grounds (race, gender, religion, disability, etc.) The types of inequalities in different areas of life (administration of justice, employment, education, health, etc.) Resolves the tensions and inconsistencies between IHRL approaches and equality law approaches to non- discrimination Next step: bridging the gap between legal approaches to reducing status inequalities on one hand and socio-economic disadvantages on the other

11. Strategic political advantages: Overcoming the difficulties posed by identity politics By overcoming identity politics, the unitary framework is also: – Facilitating solidarity through developing dialogue among disadvantaged groups, and more broadly among equality stakeholders – Enabling the building of coalitions between various groups in civil society working on equality, but also human rights and other discourses (development, poverty, environment, conflict resolution, transitional justice, etc.) – Economies of scale – Saving time – streamlining the process

12. The Declaration of Principles on Equality 2008 27 Principles on Equality were agreed by a group of experts in several stages of consultations, – including a conference in April 2008 bringing together academics, legal practitioners and human rights activists from all regions of the world. The Declaration reflects a moral and professional consensus initially among 128 human rights and equality experts – followed by hundreds further signatories (individuals and institutions) The Declaration – a step forward in the unified approach to equality – 4 types of synthesis (see above) 27 Principles on Equality were agreed by a group of experts in several stages of consultations, – including a conference in April 2008 bringing together academics, legal practitioners and human rights activists from all regions of the world. The Declaration reflects a moral and professional consensus initially among 128 human rights and equality experts – followed by hundreds further signatories (individuals and institutions) The Declaration – a step forward in the unified approach to equality – 4 types of synthesis (see above)

13. The aims of the Declaration To broaden the consensus, generate interest and debate and thus contribute to reaffirming and developing the right to equality. To assist efforts of legislators, the judiciary, civil society organisations and anyone else involved in combating discrimination and promoting equality. Ultimately, to encourage further efforts to fulfil equality as a fundamental human right enjoyed by everyone. To broaden the consensus, generate interest and debate and thus contribute to reaffirming and developing the right to equality. To assist efforts of legislators, the judiciary, civil society organisations and anyone else involved in combating discrimination and promoting equality. Ultimately, to encourage further efforts to fulfil equality as a fundamental human right enjoyed by everyone.

14. The Right to Equality Principle 1 The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. Principle 1 The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law.

15. Equal Treatment [The paradox of equality] Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full and effective equality it is necessary to treat people differently according to their different circumstances, to assert their equal worth and to enhance their capabilities to participate in society as equals. (Note: limits the role of comparator; e.g. guide dogs and other disability situations; “detriment”) Equal treatment, as an aspect of equality, is not equivalent to identical treatment. To realise full and effective equality it is necessary to treat people differently according to their different circumstances, to assert their equal worth and to enhance their capabilities to participate in society as equals. (Note: limits the role of comparator; e.g. guide dogs and other disability situations; “detriment”)

16. Positive Action To be effective, the right to equality requires positive action. Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality. To be effective, the right to equality requires positive action. Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.

17. The Right to Non-discrimination The right to non-discrimination is a free- standing, fundamental right, subsumed in the right to equality.

18. DPE captures good practices in respect to the key issues of equality law, namely: The ground of discrimination (protected characteristics) Definitions of discrimination Relating discrimination and violence Scope of application Right-holders Duty-bearers Positive duties – giving effect to the right to equality

19. Obligations regarding multiple discrimination Accommodating difference (reasonable accommodation) Measures against poverty – relation to discrimination Specificity of equality legislation Participation of stakeholders Education on equality

20. Good practices in respect to enforcement, in particular: Access to justice Victimisation Standing Evidence and proof Remedies and sanctions Specialised bodies Duty to gather and disseminate information

21. Definition of discrimination Discrimination must be prohibited where it is on grounds of race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or on the basis of characteristics associated with any of these grounds.

22. Definition of discrimination - continued Discrimination based on any other ground must be prohibited where such discrimination (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on the prohibited grounds stated above. Discrimination must also be prohibited when it is on the ground of the association of a person with other persons to whom a prohibited ground applies or the perception, whether accurate or otherwise, of a person as having a characteristic associated with a prohibited ground.

23. Definition of discrimination – continued 2 Discrimination may be direct or indirect. Direct discrimination occurs when for a reason related to one or more prohibited grounds a person or group of persons is treated less favourably than another person or another group of persons is, has been, or would be treated in a comparable situation; or when for a reason related to one or more prohibited grounds a person or group of persons is subjected to a detriment. Direct discrimination may be permitted only very exceptionally, when it can be justified against strictly defined criteria.

24. Definition of discrimination – continued 3 Indirect discrimination occurs when a provision, criterion or practice would put persons having a status or a characteristic associated with one or more prohibited grounds 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. An act of discrimination may be committed intentionally or unintentionally.

25. 25 Explaining Direct Discrimination ‘P rohibited grounds’ includes: Perceived to have a characteristic associated with a prohibited ground Association with persons to whom a prohibited ground applies – ECJ Coleman 2009 one of the prohibited grounds being an effective cause for less favourable treatment The ‘but for ….’ test

26. Examples If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception. If an employer advertising a vacancy makes it clear in the advert that Roma need not apply, this would amount to direct race discrimination against a Roma who might reasonably have considered applying for the job but was deterred from doing so because of the advertisement.

27. 27 Direct discrimination 2 For certain prohibited grounds (such as race) direct discrimination cannot be justified (limited exceptions) Motive or intention is irrelevant - the issue is less favourable treatment or detriment Can be intentional or unintentional

28. Indirect discrimination: history and example Origin: US Supreme Court Grigg v Duke Power Co (1971) – “practices that are fair in form but discriminatory in operation” – black workers ECJ: Case C-170/84 Bilka Kaufhaus (1986) Example: DH v Czech Republic ECtHR GC 2007

29. 29 Indirect discrimination - clarifications ‘Provision, criterion or practice’ - can be written or unwritten, formal or informal ‘Provision, criterion or practice’ – says nothing on its face regarding any prohibited ground ‘Would put persons …at a disadvantage ’ - can challenge ‘provision’ etc. before it has been applied

30. 30 Indirect discrimination – clarifications 2 ‘Particular disadvantage’: - may be obvious - may be based on common knowledge - in some cases may need statistics or expertise (West Midlands v Singh, 1988) ‘Compared to other persons’ - who are the comparators - actual or hypothetical – to whom same provision, criterion or practice is applied

31. 31 Indirect discrimination – clarifications 3 Justification needs to be rigorously tested: does the provision, criterion or practice have a legitimate aim? ‘appropriate and necessary: could this aim be achieved by other means? test of proportionality: weigh discrimination against needs of discriminator

32. Rule: In finding discrimination, intent is irrelevant This applies to both direct and indirect discrimination (avoiding the common mistake that indirect discrimination is unintentional etc.) R v Birmingham City Council ex parte EOC 1989 – Council provided equal number of places for boys and girls in its grammar schools – direct discrimination against girls despite lack of intent James v Eastleigh Borough Council – free access to swimming pools; Ct of Appeal – indirect; HL – direct discrimination

33. For more information: www.equalrightstrust.org The Equal Rights Trust 126 North End Road London W14 9PP UK info@equalrightstrust.org