Institutional Vulnerability in Law

1. Introduction

In human rights theory and practice, the principle of equality and non-discrimination, regardless of whether it is treated jointly or as two separate principles, is considered one of the general principles of international human rights law. The European Court of Human Rights (ECtHR) defines it as a fundamental principle that, together with the rule of law and values such as tolerance, forms the basis for the European Convention on Human Rights. It has a complex normative nature because it may be considered as one of the protected independent subjective rights, but is primarily a general clause that is an interpretative directive of particular relevance to the application of substantive guarantees.¹

In a sense, the history of law is a history of discrimination; law has introduced and preserved social inequalities. At the same time, the evolution of law shows its efforts to rise above prejudices to respect equality and diversity, and to recognise human rights. Consequently, international declarations, conventions, and constitutions are cited as the first anti-discrimination instruments.² It should therefore be strongly emphasised that previous instruments removing unjustified inequality before the law are also anti-discrimination regulations.³ Although this analysis does not aim to interpret specific anti-discrimination provisions, it is helpful to return to fundamental issues in discussions on the significance and prevention of discrimination. An example of this can be found in Article 15 of Directive 2000/78/EU, entirely devoted to Northern Ireland and allowing for religious differences in recruitment in the police service and teachers in schools (‘furthering the reconciliation of historical divisions between the major religious communities there’).

The adoption of such a regulation clearly shows that the issue of discrimination and anti-discrimination measures remains a dynamic problem and drawing the boundaries between the freedoms of individuals and social groups, while respecting the equality principle, is an extremely difficult task. The provision devoted entirely to Northern Ireland confirms the argument that many issues must be assessed and resolved individually, separately, almost on an ad hoc basis. Finally, a social problem of an entirely different nature than discrimination itself may be one reason for commonly accepted (sic) discriminatory behaviour.

This article seeks to answer four fundamental questions that underlie any anti-discrimination regulation and decisions on whether discrimination has occurred:

1. What is the essence of discrimination from the point of view of human rights?
2. What protected grounds should be taken into account when classifying a phenomenon as discrimination and what is the relationship between discrimination and vulnerability?
3. What is the relevance of social, cultural, and civilisational changes to the essence of discrimination?
4. What is the role of law in eliminating discrimination, given that both discrimination and its prohibition are a restriction of human rights?

2. The essence of discrimination from the point of view of human rights

It is crucial to define the phenomenon of discrimination with regards to its identification and prevention. Walter E. Williams writes: ‘discrimination might be operationally defined as the act of choice or selection. All selection necessarily and simultaneously requires non-selection. In other words, choice requires discrimination (…)’. And the author rightly notes that the essence of discrimination is the selection criterion.⁴ Not every infringement of human rights and freedoms is discrimination; not every restriction of access to certain goods or services can be described as such. It is generally assumed that discrimination is an unfair, harmful, selective, inappropriate treatment of a person based on their membership of a socially identifiable group, identified based on one or more characteristics.⁵ It is a situation where a person, because of various characteristics, is treated less favourably than another person would be treated in a comparable situation.⁶ Discrimination also means any preference based on specific characteristics that has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life.⁷ Discrimination also includes a denial of reasonable accommodation.⁸

In his classic work on the nature of prejudice, Gordon W. Allport pointed out that discrimination aims to remove specific individuals from certain places or spheres of social life. It is a purposeful, recurrent, and long-lasting action.⁹ In his socio-cognitive concept of prejudice in discourse, Teun A. van Dijk distinguishes ‘the seven Ds of discrimination’. They are: ‘dominance, differentiation, distance, diffusion, diversion, depersonalisation or destruction, and daily discrimination’.¹⁰

In analytical terms, the following features of discrimination can be identified:

• a restriction of the rights and freedoms of a human being;
• due to or because of their specific characteristic(s) common to a specific group of people;
• without reasonable and legitimate justification;
• long-lasting;
• in a specific field of social (public) life.

In essence, discrimination is an arbitrary, egoistic, unjust and unfair from the perspective of (universal and recognised) social and cultural norms – resolution of a conflict of goods based on an irrelevant (in given circumstances) characteristic of a person (or group of people). The conflict arises from, on the one hand, the rights and freedoms of a discriminated actor in the form of access to specific goods, services, possibilities, and, on the other hand, a discriminating actor in the form of the freedom to pursue its own beliefs (based on prejudices and stereotypes) and to maximise its own material and non-material benefits. The narrowing of human autonomy in the social dimension may therefore be called discrimination.

A characteristic being a criterion for discrimination may be innate (being innate to personal identity) or may result from a choice made by a given person (or a group of people). States are given a wider margin of assessment in the latter case.¹¹ The characteristic discriminated against is non-culpable, regardless of whether it is immutable or has been chosen.¹² The question arises whether the individuals in respect of whom restrictive behaviour is undertaken could avoid putting themselves at a severe disadvantage compared with others by taking a specific action (for example, acquiring specific skills required by their employer, sacrificing a particular aspect of their ethnicity, or giving up an aspect of their freedom to express religious beliefs) may complain about a measure giving rise to that disadvantage. In the opinion of O. de Schutter, it is obvious that, in a situation where a change in behaviour would mean the abandonment of one of the characteristics by which an ethnic or religious minority is defined, it would be inadmissible to reject an allegation of discrimination on the grounds that, by failing to ‘comply’ with a contested requirement, the victim would be waiving the right to complain.¹³ In social terms, it is important that a restriction of rights is no fault of the person subjected to the restriction.

The key to the term discrimination is certainly a lack of reasonable and legitimate justification for the differentiation of the legal and social situation of individuals. From this perspective, discrimination is an arbitrary decision¹⁴ based on prejudices and stereotypes. For example, the different treatment of women and men may be considered to be in conformity with the Convention, in principle, only when it is supported by ‘very weighty reasons’.¹⁵ US legislation provides for the possibility of being free from a charge of discrimination on the basis of bona fides occupational qualification.¹⁶ In this context, reference can be made to an assessment given by the Polish Constitutional Tribunal stating that the requirement of a clean criminal record is not a form of discrimination, but an upgrading of employee requirements in the public interest.¹⁷ It should be pointed out that a reasonable justification is based on universal values consistent with the concept of human rights, fairly balancing the conflict of rights, taking into account the proportionality principle and the ultima ratio.

The issue of proportionality (on many levels) is part of a reasonable justification. The importance and relevance of a restriction must be taken into account in contextual terms when anti-discrimination regulations are designed. For example, the Court of Justice held that a prohibition on wearing the Islamic headscarf does not constitute direct discrimination on the grounds of religion or belief within the meaning of Article 2, para. 2, letter a, of Directive 2000/78/EC, because the prohibition set out in the work regulations covers all manifestations of such beliefs and applies equally to all employees.¹⁸ It can be concluded that such a solution fails to take into account the proportionality principle. The situation is quite different where the requirements of a given religion in the area of religious symbols are so firm and rigorous that non-compliance excludes one from a religious community compared to a situation where a lack of religious symbols does not violate the canons of one’s religion.

Moreover, proportionality means taking into account the interests of all the parties who bear the costs of discrimination and anti-discrimination measures (proportionality between the burden of discrimination and the interest of the discriminating party).¹⁹ This approach may be illustrated by the following measure: ‘In order to guarantee compliance with the principle of equal treatment of persons with disabilities, reasonable accommodation is provided for. This means that the employer shall take appropriate measures, taking into account the needs of the particular situation, to enable a person with a disability to have access to, perform, or advance in employment or have training, provided that these measures do not impose a disproportionate burden on the employer. That burden is not disproportionate if it is sufficiently compensated by existing measures within the framework of a policy pursued by a given Member State in favour of persons with disabilities’.²⁰

Discrimination, which is a value in the name of which anti-discrimination measures are taken, stands in opposition to equality and respect for diversity.

In today’s dynamic world, the principle of respect for diversity takes on particular significance. It is not and cannot be treated as synonymous to the equality principle. It gives the equality principle a specific characteristic – it is the rational core of anti-discrimination action and sets its limit. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions emphasises in the preamble the significance of diversity from the perspective of the individual person, but also of entire societies benefiting from cultural diversity.²¹ A similar significance of diversity can be read with reference to culture (culturalism). Respect for all diversity is a condition for individual and collective existence. Considerable doubts are raised in this connection by a (previously cited) judgement delivered by the Court of Justice of the European Union (EU) that considered the significance of a total prohibition on wearing of visible political, worldview, or religious symbols in the workplace placed in the work regulations of a private sector company. The Court of Justice held that the prohibition on wearing the Islamic headscarf is not direct discrimination on grounds of religion or belief within the meaning of Article 2, para. 2, letter a, of Directive 2000/78/EC, because the prohibition set out in the work regulations covers all manifestations of such beliefs and applies equally to all employees.²² One may wonder whether referring to the equality principle did not breach the principle of respect for diversity. Human beings differ, among other things, in terms of their attitude to religion and there are no rational reasons to conceal it. The question is whether compliance with the prohibition on discrimination is to be based on levelling or concealing differences. The idea of the negation of discrimination is to respect diversity. Instead, all religious symbols should perhaps be allowed in the public space without making any of them dominant. I. Solanke correctly observed ‘that it is the social meaning that we need to be blind to not the characteristic itself’.²³

On the essence of discrimination, account must be taken of its social and individual consequences. An extensive body of research spanning multiple disciplines shows that perceived discrimination is associated with increased rates of stroke, high blood pressure, cardiovascular disease, morbidity, anxiety, depression, and a range of other negative physical and mental health outcomes.²⁴ Discrimination results in marginalisation, exclusion, and the inability of people from a discriminated group to exercise their own rights. A restriction in one sphere of human life frequently leads to a deprivation of needs in other spheres of human life. As a social phenomenon, discrimination leads to social unrest and disrupts the security and harmonious coexistence of individuals who differ in certain characteristics. It limits the development of individual people, social groups, society, and ultimately humanity.