Katarina Frostell, Åbo Akademi University
Substantive equality and non-discrimination law
Introduction
According to a common understanding of equality and non-discrimination, equally situated individuals
should be treated alike. In order to be able to apply this notion a comparison between two individuals
or categories of individuals has to be made and a conclusion regarding their sameness or difference
drawn. Discrimination occurs when differential treatment is applied on equally situated individuals
without reasonable justification. This approach to equality is often called formal equality.
The formal approach to equality has its constraints when applied on women and men. Firstly, the
formal equality principle is difficult to apply in situations where a male comparator is missing, for
example, in connection with maternity and pregnancy related issues. Secondly, the formal approach
might not be effective when it comes to seemingly gender neutral criteria for differential treatment.
Thirdly, the formal approach is usually not adequate in order to achieve “equality of opportunity” or
“equality of results”, goals which are increasingly emphasized in international instruments and national
policies.1 In other words, in order to be able to pay due regard to these aspects a substantive approach
to equality is needed.
The aim of this paper is to analyze how and to what extent international human rights law supports a
substantive equality principle and to study more closely how this has been translated into the
interpretation of the right to non-discrimination. The focus will be on the Covenant on Civil and
Political Rights (CCPR) and the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW). Some parallels to Finnish legislation and European Community law will be made.
The Covenant on Economic, Social and Cultural Rights (CESCR) will be dealt with only in passing. In
comparison to the CCPR, the CESCR still lacks a comprehensive jurisprudence on the right to nondiscrimination.2 So far the most important feature of the general non-discrimination provision of the
1
See e.g. articles 3 and 4 of the Convention on the Elimination of All Forms of Discrimination Against Women.
The Committee on Economic, Social and Cultural Rights is presently discussing the adoption of a general comment on
gender equality pursuant to article 3 of the CESCR.
2
1
CESCR (article 2.2) is that it has immediate effect, rather than allows for a progressive realization as is
the case with most of the other substantive rights under the CESCR.3
In an effort to define the concept of discrimination enshrined in the CCPR, the Human Rights
Committee has stated that discrimination should be understood to imply any distinction, exclusion,
restriction or preference which is based on any ground such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status, and which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an
equal footing, of all rights and freedoms. Moreover, the Committee states that “not every
differentiation of treatment will constitute discrimination, if the criteria for such differentiation are
reasonable and objective and if the aim is to achieve a purpose which is legitimate under the
Covenant”.4
In the CEDAW the concept of discrimination or more precisely “discrimination against women” is
defined in a similar way in the very text of the Convention. Article 1 provides that
The term “discrimination against women” shall mean any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
Rather than discussing these definitions comprehensively, I will focus the presentation on direct
discrimination, indirect discrimination and affirmative action as three possible ways to address gender
differences and thereby approach substantive equality.
Direct sex discrimination
Direct sex discrimination refers to differential treatment based explicitly on the grounds of sex or
gender.5 This is the most common held approach to discrimination in the practice of the human rights
General Comment No 3 on the nature of States parties’ obligations, UN Doc. E/1991/23, pp. 83-87, para. 1.
UN Doc. A/45/40 (1990), pp. 173-175.
5
In this paper sex and gender are used interchangeably. It is not considered meaningful by this author to maintain a strict
distinction between the biological sex and the socially constructed gender, because the concept used in the human rights
3
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2
bodies. Most sex discrimination cases dealt with by the Human Rights Committee have concerned
differential treatment between married women and married men. The two leading cases in this regard
are two Dutch cases from 1987 concerning differential treatment between women and men regarding
the allocation of unemployment benefits.6 At the time a married man received automatically
unemployment benefits after loosing his job based on the perceived understanding that he was the
breadwinner of the family. An unemployed married woman received unemployment benefits only after
she could prove that she was the breadwinner. The Human Rights Committee found a violation of
article 26 and held that such a differentiation is not reasonable.
These two cases have been central for the future development of the jurisprudence regarding nondiscrimination under the CCPR.7 They unambiguously demonstrated that the non-discrimination
provision enshrined in article 26 should be viewed as an autonomous right which is applicable not only
in connection with the rights of the Covenant, but also the rights of the Covenant on Economic, Social
and Cultural Rights as well as “any field regulated and protected by public authorities”.8 From a gender
point of view this line of interpretation has been important, because it has provided women with a
channel to challenge social policies and regulations, in a situation where the monitoring system under
the CESCR has not provided for a complaint procedure.
Other cases where the Human Rights Committee has disclosed discrimination on grounds of sex have
concerned the right of married women to represent matrimonial property before the court9, the right of
married foreign men to obtain residence permit on the same grounds as married foreign women 10, and
the right of a married couple to use the wife’s family name.11 In the aforementioned cases, a
comparison between a man and a woman has been fairly easy to construct. In a situation where a
instruments is sex and this concept includes potentially both biological and social aspects of being a man and being a
woman.
6
Communications No. 172/1984, S.W.M. Broeks v. the Netherlands and No. 182/1984, F.H. Zwaaan-de Vries v. the
Netherlands, Adoption of views in both cases on 9 April 1987, UN Doc. A/42/40, pp. 139-150 and pp. 160-169.
7
Raija Hanski & Martin Scheinin (eds.), Leading Cases of the Human Rights Committee, Åbo: Institute for Human Rights
2003, pp. 325-329.
8
General Comment No. 18, UN Doc. A/45/40 (1989), pp. 173-175, para 12.
9
Communication No. 202/1986, G. Ato del Avellanal v. Peru, Adoption of views on 28 October 1988, UN Doc. A/44/40,
pp. 196-199.
10
Communication No. 35/1978, Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Adoption of views
on 9 April 1981, UN Doc. A/36/40, pp. 134-142.
11
Communication No. 919/2000, Müller and Engelhard v. Namibia, Adoption of views on 26 March 2002, UN Doc.
CCPR/C/74/D/919/2000.
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comparable man is missing, the application of the non-discrimination rule is more difficult. This can be
illustrated by a Finnish Supreme Court judgement from 1992.12 An employer terminated during the
probationary period the contract of a female employee after she had informed that she was pregnant.
The Court found that the pregnancy was the reason for the termination of the labour contract and ruled
that the employer had violated the Employment Act. In addition, the case was considered under the
Finnish Equality Act in order to determine whether the plaintiff was entitled to compensation based on
discriminatory practice by the employer. Surprisingly, the Court did not find a violation of the Equality
Act because it considered that the pregnancy-related ground for terminating the labour contract did not
amount to discrimination on grounds of sex. One reason for the Court’s failure to see the link between
pregnancy and gender could have been the absence of a male comparator. Because a man cannot give
birth it is not possible to establish that the gender was the ground for discrimination. The case was
heavily criticised and the Equality Act was later repealed to incorporate explicitly pregnancy-related
grounds for differential treatment.13
In international human rights law, the link between pregnancy-related issues and discrimination is
explicitly established in the CEDAW which stipulates that "in order to prevent discrimination against
women . . . states parties shall take appropriate measures to prohibit . . . dismissal on the grounds of
pregnancy or maternity leave" (article 11). The Human Rights Committee has not in its case-law or
general comments addressed pregnancy-related issues under the discrimination provision. Instead, the
Committee has in its General Comment No. 28 on equality between women and men submitted that
mandatory pregnancy tests in work places constitute a violation of the right to privacy under article
17.14 More case-law is needed in order to establish whether pregnancy-related issues could also be dealt
with under the notion of sex discrimination or some other ground of discrimination. The fact that article
26 of the CCPR contains an open-ended list of discriminatory grounds indicates that also other grounds
than the ones listed could fall under the provision. However, from a women’s perspective it is
preferable if pregnancy-related issues could be linked to the ground of sex. This is due to the fact that
the Human Rights Committee has given special weight to the grounds explicitly listed and has required
12
Supreme Court of Finland, KKO 1992:7.
This was necessary as part of Finland’s membership in the European Union in 1995. The European Court of Justice has in
the so-called Dekker Case (Case C-177/88 [1990] ECR I-3941) established that discrimination on the grounds of pregnancy
constitutes direct discrimination, because "as employment can only be refused because of pregnancy to women, such refusal
is direct discrimination on grounds of sex".
14
General Comment No. 28 on equality of rights between men and women, UN Doc. A/55/40, pp. 133-139, para. 20.
13
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that differential treatment in relation to these grounds needs special justification.15 On the basis of the
Committee’s practice in other related fields, it could be argued that the Human Rights Committee
seems to support a broad interpretation of the concept of sex. In the Nicholas Toonen case, the
Committee concluded that sexual orientation should be subsumed under the concept of sex rather than
under the category “other status”.16
In this context, another area of interest is gender-based violence and its relationship to discrimination.
Gender-based violence is a concept often used to describe practices and behaviour such as rape, sexual
abuse, sexual harassment, domestic violence, trafficking and sexual war crimes. Both women and men
can be victims of gender-based violence, however, women are usually in the majority among those
affected. Gender-based violence was for a long time neglected in the human rights discussion and
practice. Only during the 1990s has it been recognized more broadly that gender-based violence
probably belongs to the most serious human rights problems faced by women worldwide.17
The Human Rights Committee has in its General Comment No. 28 identified a number a rights, which
can be violated in connection with gender-based violence, including article 4 on public emergencies,
article 6 on the right to life, article 7 on the prohibition of torture and other inhuman and degrading
treatment, article 8 on the prohibition against forced labour, article 17 on the right to privacy and article
19 on the freedom of expression. Consequently, in many instances, gender-based violence does not
have to be addressed through the non-discrimination approach, but might more effectively be addressed
through some of the other substantive rights of the Covenant. However, sometimes the nondiscrimination rule may be an important aspect of a case. For example, in the Finnish Equality Act,
sexual harassment is defined as discrimination on grounds of sex and an employer who does not adopt
necessary measures to protect an employee who is a victim of harassment in the workplace can be
ordered to pay compensation to the employee.
In the case Müller and Engelhard v. Namibia, Adoption of Views on 26 March 2002, p. 6.7, the Committee states that “a
different treatment based on one of the specific grounds enumerated in article 26, clause 2 of the Covenant, however, places
a heavy burden on the State party to explain the reason for the differentiation”.
16
Communication No. 488/1992, Nicholas Toonen v. Australia, Adoption of views on 31 March 1994, UN Doc. A/49/40,
pp. 226-237. See also Communication No. 941/2000, Edward Young v. Australia, Adoption of views on 6 August 2003, UN
Doc. CCPR/C/78/D/941/2000.
17
United Nations Declaration on the Elimination of Violence against Women (1993).
15
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Internationally, the non-discrimination approach to gender-based violence is adopted in the practice of
the Women’s Committee. In the General Recommendation No. 19 on violence against women, the
Committee provides that the definition of discrimination against women enshrined in article 1 "includes
gender-based violence, that is, violence that is directed against a woman because she is a woman or that
affects women disproportionately".18 Interestingly, this approach does not require a comparable man.
Furthermore, even if gender-based violence can be directed also towards men, the definition stresses
that because the majority of those affected are women it is possible to talk about gender-based violence
as a specific form of discrimination against women.19 It has been suggested that this approach to
discrimination introduces a fundamentally new way of understanding the concept of discrimination,
namely one based on an evaluation of the disadvantage of the alleged victim rather than on a
comparison between two individuals.20
Indirect sex discrimination
Whereas direct sex discrimination refers to discrimination made explicitly on the grounds of sex,
indirect sex discrimination refers to discrimination made on the basis of a gender-neutral ground, which
has a gender-specific effect. The concept of indirect discrimination has internationally been used from
the 1970s onwards first and foremost within the European Community law. Only recently, the concept
has gained broader ground also within international human rights law.
Indirect sex discrimination may play an important role particularly in connection with the allocation of
social and work-related benefits. For example, in the Bilka case decided by the European Court of
Justice, an occupational pension scheme was found indirectly discriminatory against women, because it
excluded part-time workers from the scheme, the clear majority of whom were women. 21 In a Finnish
judgement decided by the Employment Court in 1998 a provision in a collective agreement was found
discriminatory on grounds of sex, because it excluded from the calculation of experience-based salary
increments the period when an employee was on maternity and parental leave (with the exception of 30
18
General Recommendation No. 19 on violence against women, UN Doc. A/47/38 (1993), pp. 1-6. para. 6.
See also the General Comment No. 28 which provides that “’honour crimes’ which remain unpunished constitutes a
serious violation of the Covenant [on Civil and Political Rights] and in particular articles 6, 14 and 26”, (para 31).
20
Rebecca J. Cook, “State Responsibility for Violations of Women’s Human Rights”, Harvard Human Rights Journal,
Spring 1994, Vol. 7, p. 156.
21
Case 170/84 Bilka-Kaufhaus v. Weber von Hartz 1986 ECR 1607.
19
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days which were included in the calculation). Both women and men are entitled to make use of the
parental leave, however, in practice the clear majority of those who does are women (in 1995 the figure
was 98,25 %).22
These kinds of applications of indirect discrimination are important from a gender point of view
because they manage, at least to some extent, to take into account social differences, which exist
between women and men. With respect to international human rights law, it might be noted that already
in 1989, the Human Rights Committee accepted the idea of indirect discrimination in the case K Singh
Binder v. Canada which concerned differential treatment on the ground of religion.23 Mr. Singh Binder,
who worked for the national railway, was fired because he did not comply with the requirement to wear
a hard hat during work. This was due to the fact that he was a Sikh and for religious reasons wore a
turban.
The Human Rights Committee did not disclose discrimination in this case, but stated,
nevertheless, that if a requirement such as the one concerning wearing a hard hat can be seen as
discrimination de facto against persons of a specific religion, then there has to be reasonable
justifications for such requirements which are compatible with the CCPR. The concept "discrimination
de facto" introduced by the Committee seems to express a similar notion as the concept indirect
discrimination.
Despite this early finding, the Human Rights Committee has for a long time been unwilling to apply
indirect discrimination in cases concerning social security benefits. The Committee has repeatedly
stated that “the scope of Article 26 … does not extend to differences resulting from the equal
application of a rule in the allocation of benefits”,24 which seems to exclude the possibility to raise an
indirect discrimination argument. However, in July 2003, the Committee has changed its approach and
for the first time made explicit reference to indirect discrimination in a social security case. 25 The
Althammer v. Austria case concerned a change in a social security scheme whereby a monthly
22
Employment Court, TT 1998:34.
Communication No. 208/1986, K. Singh Binder v. Canada, Adoption of views on 9 November 1989, UN Doc. A/45/40,
pp. 50-54.
24
Communication No 212/1986, P.C.C. v. the Netherlands, Decision on inadmissibility on 24 March 1988, UN Doc.
CCPR/C/32/D/212/1986, para 6.2. See also Tufyal Choudhury, “Interpreting the Right to Equality Under Article 26 of the
International Covenant on Civil and Political Rights Article 26”, European Human Rights Law Review, 2003, Issue 1, pp.
24-52.
25
See also Communication No. 516/1992, Alina Simunek et al. v. the Czech Republic, Adoption of views on 19 July 1995,
UN Doc. A/50/40, pp. 89-97.
23
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household allowance was abolished and the child allowance instead increased.26 Mr. Althammer who
was retired argued that this was discriminatory in effect against retired people who do not have young
children anymore. The Committee did not disclose a violation in this case, but stated that “a violation
of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face
value or without intent to discriminate. However, such indirect discrimination can only be said to be
based on the grounds enumerated in article 26 of the Covenant if the detrimental effects of a rule or
decision exclusively or disproportionaly (sic) affects persons having a particular race, colour, sex…”
(para. 10.2).27
With respect to the CEDAW, it has generally been held that the reference to effect discrimination in
article 1 should be interpreted as including the notion of indirect discrimination. The Women’s
Committee has confirmed this in subsequent practice, such as General Recommendation No. 25, where
the Committee provides that states parties have an obligation “to ensure that there is no direct or
indirect discrimination against women”.28
Temporary special measures or affirmative action
Despite the broadened understanding of discrimination in international human rights law, it is obvious
that the notions of direct and indirect discrimination have their limitations when it comes to achieving
“equality of opportunity” and “equality of results”. Instead special measures are needed, such as
“special measures for protection” and “special measures for assistance, compensation and
correction”.29 Article 4 of the CEDAW provides that the “adoption by State Parties of temporary
special measures aimed at accelerating de facto equality between men and women shall not be
considered discrimination as defined in the . . . Convention, but shall in no way entail as a consequence
the maintenance of unequal or separate standards; these measures shall be discontinued when the
26
Communication No. 998/2001, Rupert Althammer et al. v. Austria, Adoption of views on 8 August 2003,UN Doc.
CCPR/C/78/D/998/2001.
27
See also Communication No. 976/2001, Cecilia Derksen et al v. the Netherlands, Adoption of views on 1 April 2004, UN
Doc. CCPR/C/80/D/976/2001, where the differential treatment with respect to the allocation of social benefits between
married and unmarried couples, indirectly discriminated between children born in wedlock or out of wedlock.
28
General Recommendation No. 25, UN Doc. HRI/GEN/1/Rev.7 (12 May 2004), pp. 282-290, para 7.
29
Hanna Beate Schöpp-Shilling, “Reflections on a General Recommendation on Article 4(1) of the Convention on the
Elimination of All Forms of Discrimination Against Women”, in Ineke Boerefijn et al (eds), Temporary Special Measures,
Antwerpen: Intersentia 2003, p. 18.
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objectives of equality of opportunity and treatment have been achieved”. The Women’s Committee has
recently adopted the General Recommendation No. 25 which provides deeper insights into the
interpretation and application of article 4.30
The Committee makes it clear that the category “temporary special measures” should be distinguished
from other measures of a permanent character. A special type of permanent measures required of states
parties to the Convention are measures directed towards the protection of pregnant women (articles 4.2,
11, 12). In addition, the realization of civil, economic, cultural, political and social rights requires that
state parties not only refrain from interfering in the exercise of rights but also take positive action in
order to safeguard the full enjoyment by everyone of all human rights. In order to achieve this, it is
important that violations of women’s rights are identified and interpreted as violations of human rights.
This will guarantee that state obligations derived from human rights treaties are relevant also to the
lives and experiences of women. The General Comment No. 28 adopted by the Human Rights
Committee is the most central document which introduces a gender-sensitive reading of various rights
and identifies women-specific human rights problems and solutions, for example, gender-based
violence.31
In contrast to special measures of a more permanent nature, temporary special measures include,
according to the Women’s Committee: “outreach or support programmes; allocation and/or reallocation
of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals
connected with time frames; and quota systems” (para. 22). It goes without saying that many of these
measures are controversial. For example, preferential treatment, which is usually linked to giving
preference to the underrepresented sex in e.g. job appointments, is at times viewed as discriminatory
against the non-elected person of opposite sex.32 Interestingly, the Committee argues that the adoption
of temporary special measures should not be viewed as an exception to the norm of non-discrimination,
but rather as a part of a necessary strategy by states parties which is directed towards the achievement
30
General Recommendation No. 25 on article 4, paragraph 1 (temporary special measures), UN Doc. HRI/GEN/1/Rev.7 (12
May 2004), pp. 282-290. See also General Recommendation No. 5 on temporary special measures, UN Doc.
HRI/GEN/1/Rev. 7, p. 235.
31
General Comment No. 28 on equality of rights between men and women, UN Doc. A/55/40, pp. 133-139.
32
See the case-law of the European Court of Justice, where a fairly narrow approach to preferential treatment has been
adopted. Cf. Case 450/93 Kalanke v. Freie Hansestadt Bremen 1995 ECR I-3051 and Case 409/95 Marschall v. Land
Nordrhein-Westfalen 1997 ECR I-6363.
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of de facto or substantive equality of women with men in the enjoyment of their human rights and
fundamental freedoms (para 18).
One of the crucial questions when discussing temporary special measures is whether state parties are
obliged to adopt temporary special measures in order to achieve de facto equality between women and
men. Article 4 is not explicitly demanding such measures but stipulates that temporary special
measures are acceptable providing that they are terminated when the goal of de facto equality is
reached. On the basis of an analysis of the object and purpose of the Convention, the Committee
concludes that the adoption of temporary special measures is a mandatory element of the realization of
the Convention (paras. 7-8).
In the wording of the Human Rights Committee, temporary special measures are called affirmative
action. Regarding the mandatory nature of affirmative action, the Human Rights Committee has in its
General Comment No. 18 concluded that affirmative action may at times be necessary. The Committee
states that “the principle of equality sometimes requires States parties to take affirmative action in order
to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the
Covenant. For example, in a State where the general conditions of a certain part of the population
prevent or impair their enjoyment of human rights, the State should take specific action to correct those
conditions. Such action may involve granting for a time to the part of the population concerned
preferential treatment in specific matters as compared with the rest of the population. However, as long
as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under
the Covenant” (para. 10).
In other words, both the Women’s Committee and the Human Rights Committee put a strong emphasis
on temporary special measures and affirmative action as means to safeguard the full enjoyment of all
human rights. However, at the same time it should be kept in mind that the state parties have a broad
margin of appreciation when it comes to deciding on the particular measures adopted.
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