Towards the Duty-Based Approach
Developing the Concept and Methodology of Anti-Discrimination Compliance
Monitoring - A View from the Civil Society in Slovakia
Master’s Programme in Social Work and Human Rights
Degree Report 30 higher education credits
November 2015
Author: Lubica Trginova
Supervisor: Ronny Heikki Tikkanen
ABSTRACT
Title: Towards the Duty-Based Approach: Developing the Concept and Methodology of
Anti-Discrimination Compliance Monitoring - A View from the Civil Society in Slovakia
Author: Lubica Trginova
Key words: anti-discrimination, monitoring, positive duties, compliance, implementation
Slovakia has one of the more progressive anti-discrimination laws in the EU, yet it has not
been sufficiently implemented. Discrimination prevails as a paramount cross-sectional social
problem identified by practitioners in human rights advocacy NGOs. Especially alarming is
the near absence of discrimination monitoring and equality data collecting, precluding any
action from having the potential to bring a positive and sustainable change in the status of
disadvantaged groups. For generally poor institutional compliance with EU human rights
norms, researchers placed Slovakia among countries of ‘dead letters’, with equality
chronically not delivered on the ground.
The present research draws on the rich experience and suggestions of 22 human rights
advocates from NGOs working on behalf of those at risk of discrimination on a diverse array
of grounds. Methodologically, the research bears elements of participatory action, as it
originates from my collaboration with one of the NGOs with expertise in anti-discrimination.
Its purpose is to examine anti-discrimination non-implementation patterns of public
institutions from the perspective of civil society. Subsequently, it explores which concept and
methodology of anti-discrimination monitoring could bring public institutions to compliance,
and how NGOs as change agents could be best involved in it.
Findings from qualitative semi-structured interviews revealed the incapacities of public
institutions to adapt to anti-discrimination requirements, as well as significant anti-equality
bias, which ought to be overcome before institutional change can be realized. Furthermore,
research participants described various offensive and defensive strategies institutions use
when reacting against bottom-up pressure. To counter institutional resistance and
simultaneously empower rights-holders in claiming the fulfillment of their rights, a discursive
shift is proposed towards the Duty-Based Approach with Anti-Discrimination Compliance
Monitoring as its central instrument. Institutions as duty-bearers are mandated to take a series
of particular steps in order to implement anti-discrimination and move towards the
compliance world of law observance.
II
ACKNOWLEDGEMENTS
My foremost gratitude belongs to all of my research participants and their colleagues in civil
society organizations, whose determination to make a difference in peoples’ lives by
defending them against all kinds of inequalities is just incredible and ever so admirable
considering their extraordinary personal investment and sacrifices. Over the past three years,
no thought of this project passed through my mind without a feeling of appreciation to your
work and urge to fulfill my commitment to you by delivering a (hopefully) useful piece in our
continuous action on human rights and equality.
I am especially indebted to Šarlota Pufflerová and Janka Debrecéniová for inspiring me to
engage in this eye-opening and self-empowering project, and for giving me precious
feedback. I have enjoyed being a part of the team at Citizen, Democracy and Accountability,
where I learned most of what I know about uprooting discrimination and fighting for social
justice, with zeal and resilience, to the last breath if necessary. I thank my colleague Bibiana
Pufflerová for moral support and the second reading of my work promoting its intelligibility.
I would like to acknowledge the important contribution of academics who took time to read
various parts of my work and helped me enhance it by their insightful comments. Firstly, I
thank Ronny Tikkanen for his supportive supervision on my (at times perhaps too)
‘ambitious’ research. Furthermore, thanks to the University of Gothenburg, the International
Sociological Association's Research Committee on Poverty, Social Welfare and Social Policy
(RC19), and the Social Work Action Network (SWAN)I enjoyed the opportunity to present
my paper to the academic community and benefit from the useful peer review. I am
specifically grateful to Rune Halvorsen for a new perspective on the analysis, to Björn
Andersson for critiquing the methodology, and to Nair Costa for her constructive opposition.
I thank Ing-Marie Johansson for her patience and flexibility that allowed me to have the time
I needed for accomplishing my work; for that I also thank Katarína Nemjová. Last but not
least, to my dear classmates from the International Master Program of Social Work and
Human Rights, we had such invigorating worldly conversations. Thank you!
A special thanks goes to Greg Soulliere for his limitless support and encouragement to hold
my breath underwater in what at times felt like a tsunami wave of information; Greg also
excelled as an invaluable linguistic adviser to my text.
At last, I warmly thank Greg, Eli, mom and dad, grandmas and friends for love, trust, and
encouragement, making my long journey ever worthwhile.
III
TABLE OF CONTENTS
ABSTRACT ............................................................................................................................. II
ACKNOWLEDGEMENTS ................................................................................................. III
LIST OF ABBREVIATIONS .............................................................................................. VI
TABLES OF FIGURES ...................................................................................................... VII
1
INTRODUCTION ............................................................................................................ 1
2
CONTEXT ........................................................................................................................ 3
2.1
Implementation of Anti-discrimination in Slovakia ............................................................................. 4
2.1.1 Difficulties with Discrimination and Anti-discrimination..................................................................... 4
2.1.2 Monitoring Discrimination and Anti-discrimination............................................................................. 6
2.2
Implementation of Anti-Discrimination in the European and International Context ....................... 8
2.2.1 European and International Anti-Discrimination Framework ............................................................... 8
2.2.2 Difficulties with Compliance Monitoring in the European Union ...................................................... 10
3
3.1
THEORETICAL FRAMEWORK ................................................................................ 12
Human Rights and Equality as Positive Duties ................................................................................... 12
3.2
The Positive Duty to Monitor in the Field of Anti-Discrimination.................................................... 19
3.2.1 Monitoring Discrimination as a Positive Duty .................................................................................... 19
3.2.2 Monitoring Non-discrimination Mainstreaming as a Positive Duty ................................................... 24
3.2.3 Developing Human Rights and Equality Compliance Indicators ........................................................ 26
3.3
Institutions Biased Against Equality and Institutional Change ........................................................ 30
3.3.1 Neo-institutionalist Approach to Institutional Change ........................................................................ 30
3.3.2 Institutionalization of Equality in Central and Eastern European Countries ....................................... 32
3.3.3 Institutional Bias against Equality....................................................................................................... 34
3.3.4 Relations between Public Institutions and Non-governmental Organizations .................................... 36
4
METHODOLOGY OF THE PRESENT RESEARCH .............................................. 39
4.1
Data Collection Methods ....................................................................................................................... 40
4.2
Data Analysis Methods .......................................................................................................................... 43
4.3
Ethical Considerations .......................................................................................................................... 45
4.4
Challenges and Failings......................................................................................................................... 47
IV
5
FINDINGS AND ANALYSIS ........................................................................................ 49
5.1
Reasons and Consequences of the Failure of Public Institutions to Implement Anti-discrimination
50
5.1.1 Lacking Capacities and Capabilities for Anti-Discrimination ............................................................ 51
5.1.1.1
Incapacities of public institutions ............................................................................................... 51
5.1.1.2
In-capabilities of public institutions ........................................................................................... 52
5.1.2 Unsatisfactory Compliance with the Equality Duty ............................................................................ 54
5.1.2.1
Violations of the Duty to Respect: Anti-Discrimination Counter-action ................................... 54
5.1.2.2
Violations of the Duty to Protect: Inaction on Eliminating Existing Discrimination ................. 56
5.1.2.3
Violations of the Duty to Protect: Inaction on Preventing Future Discrimination ..................... 57
5.1.2.4
Violations of the Duty to Fulfill: Inaction on Fulfilling Human Rights ..................................... 58
5.1.2.5
Compliance with the Equality Duty: Anti-Discrimination Pro-action........................................ 58
5.1.3 Insufficient Involvement of Groups at Risk of Discrimination ........................................................... 59
5.1.3.1
Forms of Insufficient Involvement ............................................................................................. 59
5.1.3.2
Involvement Dependent on Political and Individual Will .......................................................... 60
5.1.4 Problematic Responding to Pressure on Compliance with the Equality Duty .................................... 62
5.1.4.1
Resistance to Pressure Exerted Bottom-up ................................................................................. 62
5.1.4.2
Resistance to Pressure Exerted Top-down ................................................................................. 65
5.2
Methodology of Anti-Discrimination Compliance Monitoring ......................................................... 66
5.2.1 Subject of Monitoring ......................................................................................................................... 66
5.2.2 Object of Monitoring........................................................................................................................... 67
5.2.3 Method of Monitoring ......................................................................................................................... 70
5.2.4 Key Conditions for the Involvement of NGOs in Monitoring ............................................................ 75
6
DISCUSSION .................................................................................................................. 76
6.1.1
6.1.2
7
Solutions to Institutional Anti-Equality Bias ...................................................................................... 76
Conceptualizing Anti-Discrimination Compliance Monitoring .......................................................... 78
CONCLUSION ............................................................................................................... 81
REFERENCES ....................................................................................................................... 86
APPENDIX 1 .......................................................................................................................... 95
APPENDIX 2 .......................................................................................................................... 98
APPENDIX 3 ........................................................................................................................ 100
V
List of Abbreviations
AD
Anti-discrimination
ADA
Anti-discrimination Act of the Slovak Republic
CCPR
Covenant on Civil and Political Rights
CEDAW
Convention on the Elimination of All Forms of Discrimination against Women
CEEC
Countries of Central and Eastern Europe
CESCR
Covenant on Economic Social and Cultural Rights
CoE
Council of Europe
CJEU
Court of Justice of the European Union
CRPD
Convention on the Rights of People with Disabilities
EC
European Commission
ECSR
European Committee of Social Rights
ECtHR
European Court of Human Rights
EU
European Union
HR
Human Rights
ND
Non-Discrimination
NGOs
Non-governmental Organizations
NHRI
National Human Rights Institution
PIs
Public Institutions
SNCHR
Slovak National Center for Human Rights
UN
United Nations
VI
Tables of Figures
Figure 1: A framework for action on equality......................................................................... 17
Figure 2: The Four C’s of NGO – Government Relations ...................................................... 37
Figure 3: Conceptualizing AD compliance monitoring .......................................................... 81
VII
“Never doubt that a small group of
thoughtful, committed citizens
can change the world.
Indeed, it is the only thing that ever has.“
Margaret Mead
VIII
Towards the Duty-Based Approach
Developing the Concept and Methodology of Anti-Discrimination Compliance
Monitoring - A View from the Civil Society in Slovakia
1
Introduction
In the ‘worlds of compliance’ typology, Falkner (2010) categorizes Slovakia within a ‘world
of dead letters1 with European Union (EU) directives transposed in a politicized manner and
with frequent non-compliance in regards to enforcement and monitoring (Falkner, 2010).
Such has been the case of deficient implementation of the Antidiscrimination Act (ADA)
(Durbáková et al., 2012). Although ADA has been in effect since 2004, it has neither been
sufficiently enforced, nor its enforcement monitored. Data regarding prohibited grounds of
discrimination (‘equality data’) are not collected by public institutions (PIs), whose decisionmaking blatantly ignores the need, before anything else, to consider its impact on groups at
risk of discrimination. Monitoring is not only a measure of antidiscrimination (AD) preceding
and accompanying any policy intervention, but it is also a practice of self-reflection,
overseeing and insisting on the duty of the government and PIs to mainstream equality by
actively preventing discrimination. Importantly, monitoring is a tool of empowerment for
equality groups whose active participation is vital for the process of transition to a more equal
society.
Since in Slovakia non-governmental organizations (NGOs) have been the main agents
undertaking monitoring initiatives targeting the discrimination of groups whose human rights
(HR) they want to protect, the present research draws on their rich experience and
suggestions. The initial idea of AD compliance monitoring originated from one such NGO,
Citizen, Democracy and Accountability (CDA), with a profound (and arguably the broadest)
expertise in cross-cutting AD work2. I have had the honor to be a member of this NGO for
several years and felt compelled to devote my degree report to a cause my senior colleagues
would deem useful for the expansion of the theoretical base for our advocacy effort. We
began collaborating on delimiting the research problem and questions, as well as choosing
research participants and preparing the outline for my interviews with them. My interview
research (Kvale and Brinkmann, 2009) essentially bears elements of participatory action
research (PAR) (Stringer, 1996) (see chapter 4). Our objective has been to involve
1
Letters which could neither be delivered to the addressee, nor returned to the sender due to non-compliance
with postal regulation.
2
CDA has for a long time promoted the implementation of the principle of equal treatment in public life using
advocacy, monitoring, litigation, and education as their main strategies. It currently has two experts with
membership to the legal and socio-economic expert networks of the European Commission. It has a rich
experience with carrying out compliance monitoring relevant to AD, such as monitoring of courts, Ombudsman,
labor inspectorates, and various public institutions (Občan demokracia a zodpovednosť, 2015).
1
representatives of other likeminded NGOs in the process of identifying the scope of (non-)
implementation of AD. We regard their involvement as a means to continuously ensure the
goal of ADA – non-discrimination (ND) on all grounds (see chapter 6.1.2). Furthermore, we
wanted to engage these NGOs in developing the concept and methodology of monitoring AD
measures (such as policies) and practices as duties of PIs stemming from European and
international HR law. In our understanding, PIs are all fully or partially publically funded
institutions including governing and decision-making authorities, public administration and
public service organizations, as well as independent agencies, such as equality bodies.
Members of CDA (myself included) have hoped AD compliance monitoring could highlight
the role of PIs as primary duty-bearers in discrimination prevention, while simultaneously
becoming a powerful tool for civil society to at least hold PIs to their equality duty and
ideally elicit their cooperation in bringing the dutyto bear.
My role in the course of interviewing was to deliberate with participants from NGOs on the
research problem of insufficient implementation of AD in Slovakia by PIs and AD
compliance monitoring as a possible solution. Our reason for such design was to untangle the
underlying causes of this complex issue in a way that accounts for the diverse experience and
perspectives of the NGOs’ target groups, frequently at risk of discrimination on a diverse
array of grounds. Participants, as unyielding advocates for equality, were asked to share their
views to help us address the following research questions:

Why are AD measures (such as policies) and practices in support of ND of each
particular equality group not sufficiently implemented by PIs?

What could be a suitable concept and methodology of AD compliance monitoring in
Slovakia?

How could marginalized groups at risk of discrimination and NGOs representing
them be best involved in AD compliance monitoring creation and application in order
to promote the implementation of AD?
The purpose of the first question was explanatory, as we sought to better understand
participants’ interpretations of causes leading to PIs’ frequent disregard for the necessity to
implement AD. It also prompted insights into problematic patterns in interaction and
relationships between PIs and civil society, representing groups widely affected by
inequality. The second research question with an exploratory-descriptive purpose was aimed
at broadening the knowledge base on monitoring discrimination and AD on specific grounds.
Participants inspired by their experience and knowledge of good practice from abroad
brainstormed on the monitoring content and process, and described some scenarios under
which they considered monitoring feasible, bearing in mind as potential barriers any
previously encountered inhibiting and prohibiting factors. The third question has an
emancipatory purpose, as it directly relates to how participants problematize their
circumstances and perceive the role, capacity, and interest of their NGOs in putting
2
monitoring in practice and becoming change agents in the situation (Marshall and Rossman,
2011).
For easier orientation, I will clarify the structure of my degree report here. In chapter 2, I
provide the context of the enforcement of AD legislation on the national and international
level and discuss difficulties with PI compliance. I describe the current state of affairs
surrounding monitoring, and use equality data in the implementation of AD policies and
practices. The objective of chapter 3 is to anchor the implementation of HR, ND, and AD in
the theory of duties which are to be discharged by PIs as duty-bearers with accountability. I
examine the role of monitoring, theoretically and legally-framed as a positive duty, and its
benefits in enforcing PI compliance. Furthermore, I problematize compliance as a reflection
of discourses in the institutional setting within a particular equality regime. I use theories of
institutional bias and institutional change to underpin the notion of resistance exhibited by PIs
when their compliance is required. Theories of relations between PIs and NGOs aid my
interpretation of some dynamics occurring when NGOs exert pressure on the compliance of
PIs. In chapter 4, the methodology of the present research is explained to make the reader
acquainted with its procedure and limits. I strived to be reflexive of my own struggles with
the research process and content of my report. Chapter 5 is dedicated to my findings and the
analysis of interviews with the research participants from HR advocacy NGOs. Participant
experience is organized according to the theoretical constructs of PI duties, factors
influencing compliance, and resistance to pressures on compliance. Then, I present the
participants’ versions of HR and AD monitoring methodology, and obstacles to the
participation of NGOs in monitoring. In chapter 6, I introduce some solutions to individual
and institutional resistance against mainstreaming equality. Eventually, I attempt to lay
foundations for the concept of AD compliance monitoring and posit it in the scheme of the
duties of PIs. A conclusion is provided in chapter 7.
2
Context
How AD legislation has come into existence and how it is framed in the national, European,
and international context is the topic of the current chapter, as well as introducing the major
problems surrounding its enforcement. For a long period, turning HR norms into living rights
on the ground has been severely hindered in Slovakia. Domestic and foreign literary sources
imply the unwillingness of national PIs to take charge of HR implementation and incapability
of European and international HR authorities to demand their compliance. Furthermore, I
look at the status of discrimination and AD compliance monitoring as a key, but not isolated
step in undoing the inequality of various groups in society, and discuss obstacles in its
realization.
3
2.1 Implementation of Anti-discrimination in Slovakia
2.1.1 Difficulties with Discrimination and Anti-discrimination
The Antidiscrimination Act (ADA) was adopted in 2004 in response to the need to implement
EU Employment (2000/78/EC) and Racial Equality (2000/43/EC) Directives. In some
aspects, Slovak AD legislation stretches even beyond the scope of directives, one of them
being the judicially enforceable duty to adopt measures for preventing discrimination
(Debrecéniová and Dlugošová, 2012). Despite its progressiveness, ADA has not been
sufficiently enforced. A decade later, discrimination prevails as a paramount cross-sectional
social problem identified by practitioners in NGOs oriented in HR advocacy (Debreceniová
and Dlugošová, 2012; Durbáková et al., 2012). However, it is not yet recognized as such by
the society at large as confirmed by several public opinion polls.
The general public in Slovakia appears to be passive and often reticent when facing
discrimination. While 17% of the populace has felt discriminated against in a quantitative
survey by Gyarfášová and Sekulová (2008), another 17% of the sample decided not to defend
themselves when discrimination against them was perpetrated by state administration
authorities, either due to the feelings of powerlessness more common among disadvantaged
groups, or following the underestimation of discrimination as a lesser important social
problem. A qualitative survey using focus groups further depicted the notion that despite the
popular use of the word discrimination, the general public is quite poorly acquainted with its
meaning (Gyarfášová and Sekulová, 2008). Gyarfášová and Sekulová (2008) pointed out that
the lack of public awareness can result not only in the improper use of the concept of
discrimination, but also in the stereotyping and subjective justification of discriminatory
action against minorities. Congruently in the 2012 Eurobarometer, 51% of the public in
Slovakia claimed not to know their rights if they were the victim of discrimination or
harassment, and 42% believed that fighting all forms of discrimination had not been
effective. As the researchers extrapolated, the lack of internalization of the principle of
equality by the public could likely be a consequence of both deficient education and/or
inappropriate sensitizing to discrimination issues (Gyarfášová and Sekulová, 2008).
Barriers from access to effective legal protection against discrimination were exposed in a
recent study by the Centre for Civil and Human Rights, a Slovak NGO (Durbáková et al.,
2012). It conducted three different empirical surveys comprising a representative sample of
the general public, 124 respondents from NGOs promoting the rights of disadvantaged
groups, and 95 Roma respondents from socially excluded environments. Findings in all three
groups were dominated by the lack of trust in courts and institutions to successfully resolve
discrimination, experiences of poor law enforcement and prolonged court proceedings,
reinforced by having scarce information on where to seek help and means for legal defense.
In the same study, the NGO scrutinized 90 court decisions. Numerous flaws in the application
of AD legislation were highlighted, including courts neither detecting discrimination nor
4
imposing deterring sanctions on those who discriminate. Such deficiencies significantly
reduce the effectiveness of legal protection against discrimination (Durbáková et al., 2012).
Besides courts, other crucial institutions entrusted with enforcing AD have been reported to
be strikingly ineffective. The Slovak National Center for Human Rights (SNCHR) was said
to have failed from its very inception in its function as a National Human Rights Institution
(NHRI)3 and National Equality Body (further referred to as ‘equality body’)4 (Debrecéniová
and Dlugošová, 2012). Its failing led to an institutional audit by the former Division of
Human Rights and Equal Treatment of the Office of the Government (Úrad vlády Slovenskej
republiky, sekcia ľudských práv a rovnakého zaobchádzania, 2011). Eventually, in 2013
SNCHR lost its accreditation as NHRI (ICC, 2013). Inspectorates of labor have not been
willing or capable of tackling discrimination that emerged during their inspections, and they
have not considered acting on its prevention (Debrecéniová and Pufflerová, 2011). The
Public Defender of Rights (further referred to as ‘Ombudsperson’) faced criticism for being
invisible to the public and neither speaking against HR violations, nor advocating equality
(Magula and Mezianová, 2003). This has changed since Jana Dubovcová took office in
20125.
After the general election in 2010 a new hope for institutionalizing equality emerged. The
Deputy Prime Minister for Human Rights and National Minorities and its advisory
administrative body the Section of Human Rights and Equal Treatment were established
under the Office of the Government of the Slovak Republic. The Council of the Government
of the Slovak Republic for Human Rights, National Minorities and Gender Equality was also
founded in 2010 and entrusted with the responsibility of coordinating HR policy efforts and
activities of the government and public administration. Using this institutional apparatus, the
Council was able to support a record number of civil society projects related to AD (130
projects in 2011 as opposed to 27 in 2009) and managed to allocate an unprecedented amount
of resources for their execution (2,257,000€ in 2011 compared to 236,630€ in 2009)
(Debrecéniová and Dlugošová, 2012). Unfortunately, the period of institutional coverage of
equality and human rights did not last long. After merely two years in existence, a large
portion of this coverage was eliminated by a new government that took office following the
premature general election in March 2012.
3
National Human Rights Institutions are established in compliance with the Paris Principles and supported by
the United Nations Office of the High Commissioner for Human Rights to “promot[e] and monitor[...] the
effective implementation of international human rights standards at the national level.” (Office of the High
Commissioner for Human Rights, 2012b)
4
The EU equal treatment legislation requires Member States to set up equality bodies as “independent
organisations assisting victims of discrimination, monitoring and reporting on discrimination issues, and
promoting equality.” (Equinet, 2013)
5
Ombudsperson Dubovcova has defended the rights of Roma, migrants, LGBT, people with disabilities, older
people and children both in her activities and in media. For defending HR of Roma against the Police
brutality Ombudsperson Dubovcová has faced criticism from the government and threats of her office being
moved to the second largest city (Pravda, 2015).
5
It was days before this election that I conducted interviews with participants from NGOs.
Their accounts emitted both hope and skepticism about the continuation of the governmental
action on equality (see chapter 5.1.3). Indeed, some of the feared changes did take place
immediately in 2012. The position of the Deputy Prime Minister for Human Rights and
National Minorities was removed, and its guiding and coordinating duties regarding HR and
equality (including financing action plans for prevention of discrimination) were split
(Debrecéniová, 2012). Debrecéniová describes (2012) how fragments of these obligations
were then superficially transferred to other less relevant departments without adequate
financial and human resources allocated for their fulfillment. Conversely, fifteen staff
positions from the abolished deputy were reassigned to the newly-created position of Deputy
Prime Minister for Investments, who is in no way connected to the equality apparatus
(Debrecéniová, 2012). As the equality institutional structure in Slovakia does not seem any
more stable—and possibly less—the impetus for pro-equality action has grown ever more
relevant.
2.1.2 Monitoring Discrimination and Anti-discrimination
For a long time, the Slovak government has been criticized by international actors (e.g., the
UN Committees’ recommendations) for not making an effort to monitor the (in)equality
situation in the country. Exceptionally alarming is the near absence of data collecting
regarding prohibited grounds of discrimination (further referred to as ‘equality data’), which
precludes any action or policy from having the potential to bring a sustainable positive
change in the status of disadvantaged groups.
The sole form of official data gathering is a population census once a decade. It covers only
some discrimination grounds like sex, age, religion, and ethnicity, and in a very limited
fashion. Moreover, the census held in 2011 resulted in turmoil that exposed the incompetence
of the PIs that organized it. Chudžíková (2012) suggests that it could have undermined the
willingness of the public to participate, as well as the trustworthiness of data collected in the
census. Nonetheless, Debrecéniová and Dlugošová (2012) suspect that PIs have a tendency to
use the data despite being inaccurate and outdated. PIs do so, for instance, when they are
required to submit ‘some evidence’ to the European Commission (EC) or other external AD
compliance enforcement body, or fill out a problem background box in a mandatory action
plan. PIs adopt policy measures based on their general knowledge instead of grounding them
in data-based analysis (Debrecéniová and Dlugošová, 2012).
Besides the census, there has been one isolated initiative worth mentioning aimed at
gathering data on the situation of Roma carried out under the auspices of the United Nations
Development Programme (UNDP) in cooperation with the Plenipotentiary for Roma
Communities and municipalities in Slovakia. Roma settlements were surveyed twice,
including 1575 Roma settlements in 2004 (Ministerstvo vnútra Slovenskej Republiky, 2004)
and 1070 Roma settlements in 2014 (Ministerstvo práce, sociálnych vecí a rodiny Slovenskej
Republiky, 2014), in order to map their spatial distribution, infrastructure, access to services
6
(social, education, healthcare) and activity of their residents (political, cultural and
economical). Despite the data most certainly being invaluable considering the general lack of
data in this area, it is also important to bear in mind that said data is grounded in the groupidentification of Roma ascribed to them by primarily non-Roma researchers from outside of
settlements who were not concerned with the discrimination of Roma per se (UNDP, 2014).
This can hardly fully substitute for sensitive ethnic data collected in an appropriate manner
via means of voluntary self-identification with the potential to establish the evidence of
inequality as a shared experience of Roma (see chapter 3.2.1).
In 2012, the project entitled ‘Analysis of needs in the area of equality data collection and
identification of measures for the improvement of monitoring equal treatment’ was initiated
by the Office of the Government in partnership with a diverse range of state, regional and
non-governmental stakeholders. Their aim was to respond to the lack of reliable equality data
(Kotvanová, 2012). It was portrayed in a collection of expert articles as appearing in various
environments and concerning several marginalized groups, mainly the Roma. Although the
issue itself and some of the expert articles were extremely timely, the project overall did not
seem to be handled in a systematic manner, nor were the outcomes (to my current
knowledge) reflected by any significant changes on the ground.
Monitoring initiatives have otherwise been scattered and almost exclusively located in the
non-governmental sector. Nevertheless, they have currently grown stronger than ever, with
many grass-roots as well as comprehensive studies emerging. The broad monitoring portfolio
of NGOs includes a monitoring report on the fulfillment of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) based on concluding
observations by the CEDAW Committee (Mesochoritisová and Zezulová, 2011); on women’s
access to contraception (Citizen, Democracy and Accountability, Freedom of Choice and
Center for Reproductive Rights, 2011); on the status of the implementation of the strategy for
inclusion of Roma (Lajčáková, 2013); on the systemic overrepresentation of Roma children
in special education (Gallová Kríglerová et al., 2009); on the discrimination in employment
faced by male and female migrants (Hlinčíková, Lamačková and Sekulová, 2011); on the
needs of people with disabilities based on the Convention on the Rights of People with
Disabilities (CRPD) (Národná rada občanov so zdravotným postihnutím v SR, 2011); on the
discrimination and violence against older people (Fórum pre pomoc starším, 2012); and on
the unequal treatment of LGBT people in psychological counseling (Smitková and Kuruc,
2012), to mention a few. It is beyond the scope of this report to go further into analyzing
specific monitoring outcomes of NGO initiatives. Yet, I do deem it important to draw
attention to them as a source of knowledge and experience to fuel action in support of AD
measures (such as policies) and practices.
I will however mention one of NGOs’ initiatives that is particularly relevant, as it presents an
example of AD compliance monitoring. CDA, with which I have collaborated on this
7
research, surveyed various public institutions to identify if and how they carry out their duty
under ADA to monitor equal treatment and gather equality data within their institutions
(Hodoňová, 2010)6. CDA submitted requests for information7 to 24 PIs. The responses
received corroborated the suspected non-existence of the afore-mentioned practices. Neither
organization answered all questions, nor were they aware of their duty to observe the
principle of ND in their so doing. Many responded that they did not collect equality data,
while some even objected that the collection of such data is prohibited by the Act on
Protection of Personal Data. Importantly, the CDA’s AD monitoring revealed a pressing need
for equality data collection, analysis, and use as a baseline for policy-making and
implementation on the part of PIs. It also exposed the fear of breaching the law (The Slovak
Republic, 2002) (or feigning such fear to excuse inaction as indicated in chapter 5.1.4.1)
expressed by institutions (Hodoňová, 2010). In response to the breach of privacy objection,
Debrecéniová and Dlugošová (2012) rightfully argue that the law does not preclude the
collection of data as long as it is voluntary, anonymous, and the participants are not
identifiable (see chapter 3.2.1).
The CDA’s survey is different from, for instance, shadow reporting to the UN committees in
the fact that it directly targets the breach of AD proactive duty of PIs as opposed to targeting
discrimination in access to HR or other HR violations. Thereby, it could be considered a form
of meta-monitoring and a case of AD compliance monitoring, which is the focus of my
report. This case was in fact among the main inspirations behind our research with CDA.
2.2 Implementation of Anti-Discrimination in the European and
International Context
2.2.1 European and International Anti-Discrimination Framework
European AD legal framework consists of two major sub-systems of rules relating to the
principle of ND. One sub-system includes the Council of Europe (CoE) and the European
Court of Human Rights (ECtHR) which oversee the implementation of the European
Convention on Human Rights (ECHR). The other sub-system is composed of the European
Union (EU) and European Court of Justice (renamed to the Court of Justice of the European
CDA has also surveyed 59 private organizations such as employer associations (Hodoňová, 2010) which I left
out here since my report focuses on primary duty bearers.
7
An official request for information binds all PIs to respond within a limited time frame of 8 days. A public
official who fails to respond can be sanctioned by the fine up to 1650 Euro and a ban on activity for up to 2
years (The Slovak Republic, 2000).
6
8
Union [CJEU] upon the Treaty of Lisbon in 2009) which are responsible for monitoring the
implementation of equality directives of the EU (FRA, 2011).
The CoE sub-system is composed of 47 member states, one of them being Slovakia, which
acceded to the ECHR and are thereby legally bound to guarantee HR to everyone within their
jurisdiction. Equal treatment in the enjoyment of these rights and the prohibition of
discrimination is guaranteed by Article 14 of the ECHR on a non-exhaustive list of grounds.
Since its establishment in 1950, the ECHR has been transformed by protocols. The most
crucial of them is Protocol No.12 from 2000 which has expanded the scope of the prohibition
of discrimination by guaranteeing equal treatment in the enjoyment of rights under all
national laws. There are still many states which have not ratified Protocol No.12 (including
the Slovak Republic); nevertheless Article 14 takes precedence over national laws. The
implementation of ECHR by the member states is reviewed by ECtHR via hearing cases of
violation of the ECHR (including Article 14 in connection with other articles) committed by
member states. The principle of ND governs a number of other CoE documents, of which the
most important is the 1996 version of the European Social Charter (ESC) monitored by the
European Committee of Social Rights (ECSR) (FRA, 2011). Along with trends in the HR
discussion, the CoE’s Steering Committee for Human Rights continues to generate new
conventions and recommendations coupled by monitoring mechanisms, such as the fairly
recent Recommendation CM/Rec(2010)05 on measures to combat discrimination on the
grounds of sexual orientation or gender identity (Council of Europe, 2010).
The EU sub-system is composed of 27 member states which are legally bound by Article 13
inserted into the ‘Treaty establishing the European Community’ by the Treaty of Amsterdam
(1999). It provided a legal basis for adopting mea sures to combat discrimination on the
grounds of sex, race or ethnic origin, religion or belief, disability, age and sexual orientation,
and allowed for the subsequent adoption of two equality directives in 2000. The Employment
Equality Directive (The Council of the European Union, 2000b) prohibits discrimination on
the basis of sexual orientation, religious belief, age, and disability in the area of employment.
The Racial Equality Directive (The Council of the European Union, 2000a) prohibits
discrimination on the basis of race or ethnicity in the context of employment, but also in
accessing the welfare system and social security, and goods and services. In 2006, the third
directive (2006/54/EC) was adopted on the implementation of the principle of equal
opportunities and equal treatment of men and women in matters of employment and
occupation.
The EU Charter of Fundamental Rights (‘the EU Charter’), inspired by constitutions of
member states, the ECHR and the United Nations (UN) HR treaties, was proclaimed by the
EU and its member states in 2000, first as a declaration. In 2009, it was altered by the Treaty
of Lisbon to become legally binding for all EU institutions as well as member states, although
the latter are only bound when implementing EU law. Article 21 of the EU Charter (The
European Parliament and the Council, 2010) contains a prohibition on discrimination on the
grounds of sex, race, color, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinion, membership of a national minority, property, birth,
9
disability, age or sexual orientation...[and] nationality. CJEU reviews individual complaints
regarding violations of the EU Charter by member states, and gives guidance to national
courts on the correct interpretation of EU law.
Generally, in a similar manner that the international HR law takes precedence over national
laws, a hierarchy has formed in which legal systems coordinate and oversee one another in
the implementation of AD. Although all EU member states are signatories to the ECHR, the
EU itself has not yet accessed the ECHR, which makes it impossible for individuals to lodge
a complaint against the EU and before the ECtHR for not observing the ECHR (for example,
if individuals are discriminated against by the EU institutions or agents). Legal steps have
been taken on both sides (the Lisbon Treaty and Protocol 14 to the ECHR) so that the EU can
be supervised by external monitoring bodies. However, it is not clear how long negotiations
will take (FRA, 2011).8
All member states of the EU sub-system, including Slovakia, are party to the UN HR
treaties9, which also contain the prohibition of discrimination monitored by conventional
mechanisms (committees) and extra-conventional mechanisms (UN special rapporteurs,
representatives, experts and working groups) (United Nations, 2013). Many states also allow
individuals to file a complaint against them using mechanisms established in some cases
(CCPR, CEDAW, CRPD) under optional protocols (Interights, 2011).
2.2.2 Difficulties with Compliance Monitoring in the European Union
Measuring compliance of member states with the EU law by the EC has not been sufficiently
effective for more reasons than one (Fredman, 2008; Hartlapp and Falkner, 2009; Verloo and
Van Der Vleuten, 2009). Data in official statistics of the EU seem unreliable as they
concentrate rather on the EU response to non-compliance than the depiction of states’ noncompliance. Thereby, knowledge is missing of what non-compliance means in each member
state and how many of states’ failures to comply go unaddressed (Hartlapp and Falkner,
2009). On top of that, Hartlapp and Falkner (2009) revealed bias in the EC’s assessment on
several levels. Of 90 non-compliance cases studied, 40% were not subjected to infringement
procedures (ending with a judgment by CJEU), and of those that were, 95% underwent the
procedure for failing to notify the EC about the transposition of the EU law (one of the least
serious infringements that can be detected by a simple yes or no indicator), while correctness
of the EU law transposition into the national law was not genuinely scrutinized. Also,
8
Once the EU is also bound by the Charter individuals might consider filing a complaint, for instance, about the
lack of oversight by the EU over the implementation of the principle of ND in the area where they faced
discrimination, thus pushing the EU to strengthen its compliance monitoring of member states. I shall warn
the reader here that this is my unverified idea which might not be feasible in reality. One major flaw I can
already foresee is that it shall upon an individual to file such a complaint. AD compliance monitoring of the
EU should be systemic, not based on an individual justice model.
9
ICCPR, ICESCR, ICERD, CEDAW, CAT, CRC, UNCRPD.
10
compliance with some EU directives was examined more often than others. Moreover, some
countries were taken to CJEU for infringement procedures more often than others, and not
only owing to their lower performance. Usual suspects seemed to be treated more strictly
(Verloo and Van Der Vleuten, 2009).
Hartlapp and Falkner (2009, p.297) believe that reasons for EC’s monitoring failures besides
not having enough qualified personnel are the lack of “the legal power to actively monitor
non-compliance in the member states during the application phase, i.e., to intervene in
national administrative routines or to send its own inspection teams.” To avoid
miscommunication or manipulation by states in the EU law transposition procedure, Hartlapp
and Falkner (2009) recommend using the information that member states provide on their
transposition purely as an indicator when judging the correspondence of the EU law with
a reality on the ground in a member state (for example, based on detailed case studies10).
Moreover, Fredman (2008) suggests using the EU budget as a tool to support research and
cooperation among equality stakeholders and to follow-up on reforms ensuring they are not
only formal. I do concur that both suggestions would probably be very beneficial in enforcing
the compliance of Slovakia with AD legal framework of the EU.
Unfortunately, the lack of pressure in the rest of the EU countries on implementing equality
mainstreaming as a proactive duty persists since the EU has adopted soft law and the Open
Method of Coordination (OMC). Soft law is characterized by non-binding provisions with
vague aims and little effort made in monitoring and sanctioning officials for non-compliance.
It is thus much less effective than the hard law approach employed for example in
transposing the AD law into national laws (Krizsan, Skjeie and Squires, 2012). OMC falls
short mainly on two aspects. Firstly, it stands on peer review which does not sufficiently
facilitate the debate and exchange of good practice among member states. Secondly,
governments do not see themselves as learning organizations (see chapter 6.1.1), and they fail
to consult civil society in a deliberative participatory way. This prevents them from forming
strong partnerships capable of bringing change (Fredman, 2008). As a result, Krizsan, Skjeie
and Squires (2012) remark, the monitoring of ND mainstreaming has not been vigorous.
Verloo and Van Der Vleuten (2009) contribute to this assessment by criticizing relative
monitoring which has replaced absolute monitoring. Imposing no sanctions on the states for
poor performance and compliance, besides naming and shaming11, has a meager reputational
cost. Furthermore, the EC and CJEU may want to keep their reputation as guardians of EU
legislation while member states may want to keep their joint reputation uncompromised
instead of losing their own reputation in a blame game. Maintaining the status quo is
advantageous for both sides but detrimental for the equality agenda. The politics of ranking
(sorting states hierarchically according to their results) adds to the window-dressing character
10
Some participants in the current research were engaged in drafting compliance case studies on AD
implementation for EC.
11
A strategy to draw public attention to failures of a particular state in order to bring it to compliance.
11
of equality mainstreaming. The meaning of the improvement in performance is distorted
when laggards (Slovakia) are compared to pioneers (Sweden) by which they are completely
out-performed.12 Consequently, the meaning of quality is stretched from absolute to relative
in which some countries do better if other countries do worse, causing the equality standard
to shrink.
However, drawing comparisons to better performers and pointing to their “good practice” can
sometimes be useful to civil society actors and other stakeholders as an incentive pushing the
government to undertake equality action the way other countries have done (Verloo and Van
Der Vleuten, 2009).
3
Theoretical Framework
The objective of the following chapter is to ground the implementation of HR, ND and AD in
the theory of positive (proactive) duties which are to be discharged by PIs as duty-bearers
with accountability. I explore social justice theories that go beyond the individual level to
acknowledge structural causes and outcomes of discrimination. In addition, I look at the
concept of monitoring from various angles, as means to gain evidence of a group
disadvantage in form of equality data, as well as a strategy of ND mainstreaming in order to
involve equality groups, target AD measures and oversee their transformation into reality.
Importantly, I examine monitoring from the perspective of duty, give examples of successful
compliance monitoring carried out in some EU member states, while I also discuss
implications for its dawdling and insufficient enforcement in others. Finally, I problematize
compliance as a reflection of discourses inside the institutional setting within an equality
regime in order to emphasize the impetus for addressing challenges such as PI resistance or
the inability to make AD compliance monitoring a successful practice.
3.1 Human Rights and Equality as Positive Duties
The UN Committee on Economic, Social and Cultural Rights has been active in defining
concepts and measures to guarantee substantive equality of protected groups, in other words
to ensure their equality in reality and not only formally (Interights, 2011). In the realms of its
commitment, this UN committee has detailed the concept of three major duties (alternatively
‘obligations’) first introduced in 1997 by HR experts in the Maastricht Guidelines (United
Nations, 2000). Firstly, duty to respect requires the state to refrain from interfering with the
enjoyment of rights. Secondly, duty to protect requires the state to prevent violations of rights
12
In a private conversation with my colleague from CDA, she compared the exchange about the implementation
of ND mainstreaming during her participation in a meeting of EC to discussing a science fiction script.
12
by third parties. Thirdly, duty to fulfill requires the state to take appropriate legislative, policy,
administrative, budgetary, judicial and other measures towards the full realization of HR
(General Comment No.16, 2005; General Comment No.20, 2009).
Different interpretation of duties was elaborated in the ruling of the ECtHR. Negative (or
reactive) duties obligate the state to not interfere with rights. Positive (or proactive) duties
demand that the state does not remain passive and take all measures necessary to prevent
discrimination or eliminate it by imposing sanctions on any discriminating subjects and
providing remedies to those who have been discriminated against (Akandji-Kombe, 2007).
Following the understanding put forth by the ECtHR, I believe positive duties would
encompass both the duty to protect and fulfill rights (see the Scheme of Duties I created in the
Appendix 1).
Another proactive string in duty-oriented thinking that has been in development is the
concept of due diligence. Due diligence was mentioned in several general comments issued
by the UN committees (CEDAW, CERD, CESCR) as an obligation to prevent, investigate,
punish and remedy gender and racial-based violence (Interights, 2011)13, which, in my
opinion, seems to resemble the duty to protect. The ECSR has arguably most expanded due
diligence by stipulating that states must “monitor the impact of their policies and legislation
on the most vulnerable segments of the population, thus imposing on them the positive duty
to promote equality” (de Schutter, 2011, p.6)14.
Soon after the EU equality directives were enacted, McCrudden (2001) categorized AD into
three justice models that are still very relevant and popular today. The individual justice
model aims to eliminate discriminatory considerations from decision-making that concerns
individuals. In this model, an individual plaintiff makes a complaint of discrimination to a
court or enforcement agency and obtains a remedy. However, deep structures of institutional
discrimination that reinforce inequalities based on belonging to a certain group remain
unaddressed (McCrudden, 2001).
The group justice model aims to improve the position of disadvantaged groups by evaluating
structural inequalities in the opportunity and result outcomes of decision-making. It has been
vital in prohibiting ‘indirect discrimination’, characterized by seemingly neutral rules
disproportionally affecting a particular group. Indirect discrimination is predominantly
13
14
In 2011, the proactive concept of due diligence was further adapted by John Ruggie, UN Special
Representative for Human Rights and Business, stating that “[i]n order to identify, prevent, mitigate and
account for how they address their adverse human rights impacts, business enterprises should carry out
human rights due diligence. The process should include assessing actual and potential human rights impacts,
integrating and acting upon the findings, tracking responses, and communicating how impacts are
addressed” (UN Special Representative for Human Rights and Business, 2011, p.16)
The requirement of impact assessment under due diligence is increasingly being used to emphasise the state’s
duty to subject itself to due diligence (de Schutter, 2011) as well as the state’s duty to enforce due diligence
of private actors (de Schutter et al., 2012).
13
disclosed by monitoring and collecting statistical evidence, and remedied by positive action
measures (McCrudden, 2001).
The participatory justice model goes beyond the other two models, to "require government
and public bodies to weave policies of equality and non-discrimination into the fabric of
decision making across all spheres of government. In short it means to 'mainstream' equality
issues in public policy, and to do so by involving the affected groups themselves"
(McCrudden, 2001, p.257). It enables those previously marginalized to have a voice in the
decisions that shape their lives and improve their situation. As opposed to the individual
model, and partly also group model, McCrudden (2001) defines participatory justice as
proactive rather than reactive, anticipatory rather than retrospective, participatory rather than
limited to small groups of decision-makers, and integrated in all stages of policy making and
implementing.
Impact assessment (certainly a form of monitoring as underscored by the ECSR’s
interpretation of due diligence) is one of the central instruments of the participatory model
(see chapter 3.2.2). It ought to be conducted early, comprehensively, transparently, and in
a participatory discussion among those who make policies and those who are affected by
them. More than a consultation with the affected persons, participatory impact assessment
enhances democracy by building a constructive relationship between the government and
civil society, stresses McCrudden (2001) (see chapter 3.3.4). In the absence of impact
assessment, there is the danger that equality will not be considered a priority by decisionmakers and will be submerged in other issues (see chapter 5.1.2.3). Although it is inarguable
that the participatory model has the broadest impact, the other two models serve their purpose
and should not be disregarded. All three models are complementary and indispensible
(McCrudden, 2001).
After the inception of duties to respect, protect, and fulfill HR, it became logical that equality
(inversely ND) in access to these rights should also be conceptualized as a duty. This task has
been undertaken mainly by Sandra Fredman (2005; 2008; 2011; 2012). Fredman deems it
useful to “consider each right as giving rise to a cluster of obligations, some of which require
the state to abstain from interfering, and others which entail positive action and resource
allocation”(Fredman, 2008, p.69). Fredman’s (2008) rationale for “focusing on different
types of duties rather than different types of rights [is that it] gives us a more sophisticated
tool for analysis and implementation” (Fredman, 2008, p.70). In their submission to the
Cabinet Office of the United Kingdom (UK), Fredman and Spencer (2006) articulated how
institutionalization (see chapter 3.3.1) of the positive duty to promote equality in the UK (or
to adopt measures to prevent discrimination as more narrowly framed in Slovakia) can
address the limitations of the individual justice model (McCrudden, 2001). This model
focused on AD in individual cases over ND mainstreaming has been championed by the EU
(Krizsan, Skjeie and Squires, 2012) and partly also in the Slovak equality regime (Durbáková
et al., 2012).
14
Under the positive equality duty, the responsibility for identifying and addressing
discrimination shifts from an individual to an institution, even where no complaint has been
made and no single individual can be held responsible. For instance, in the case of the overrepresentation of Roma children in ‘special classes’, the burden of proof 15 shifts to those
institutions in position to remedy inequality in such schools, school inspection, and the
Ministry of Education, irrespective of having caused inequality or not. Through the lens of
positive duties, if PIs have not caused the over-representation by their action (enacting
segregation policies), they are still accountable for their inaction that led to segregation (not
hiring teacher assistants to help integrate students or not taking other preventive measures).
Alongside the focus being shifted from the retrospective to preventive action, institutions are
prompted to mainstream equality into policy making and implementing (see chapter 3.2.2 for
means of equality mainstreaming). Furthermore, the motivation to act within an institution
shifts from negative, such as reacting to complaints, to positive, like reviewing its own
policies or practices, and implementing pro-equality reforms.
Transforming from reactive to proactive approaches promotes the shift from the
understanding of inequality as stemming from discrimination to acknowledging its broader
causes (Fredman and Spencer, 2006). Looking at the aforementioned example of Roma
children from the proactive perspective means not only seeing them as segregated in schools
due to their ethnicity, but also owing to the prior systemic lack of opportunities of these
children and their family or community members for education and integration. Such insight
cuts deeper into the structure of inequality and pinpoints particular failures of particular dutybearers in undoing the inequality of Roma. To unpack the given example yet a step further,
because in the reactive model a there is a tendency is to look at each case separately while
shying away from the big picture, inequality can be, and in Slovakia it often is, reduced to
ethnic discrimination which a Roma person has to fight in court as an individual. Structural
factors such as scarce educational and work opportunities do not come under scrutiny, unless
their lack is indicated by statistical and other group-based evidence (see chapter 3.2.1 for the
use of group-based evidence). Thereby, the dots stay disconnected, and preventive measures
such as positive action are not seen as a necessary solution to what is commonly (and
ethnocentrically) called “the Roma issue”. Proactive reasoning well underpins the case for
equality data utilization regarding prohibited grounds of discrimination in Slovakia.
In order to implement the principle of equality in every aspect of PIs’ action, it is crucial to
specify what equality is and how it can be best delivered. Fredman and Spencer (2006)
produced a four-dimensional definition of equality and complemented each dimension with
a duty. Equal life chances as the first dimension was matched with the duty to ensure equal
opportunities and representation for groups at risk of discrimination. The second dimension,
equal dignity and worth, entails the duty to promote respect and eliminate stigma,
15
“A rule of evidence that requires a person to prove a certain fact or the contrary will be assumed by the court.
More generally, it is the responsibility of proving a disputed charge or allegation” (Interights, 2011, p.246).
15
harassment, degrading treatment and violence against groups at risk of discrimination. The
third dimension, affirming and accommodating difference, embodies the duty to promote
shared values, while accommodating different identities, aspirations and needs of equality
groups, such as ‘reasonable accommodation’16. Finally, the fourth dimension, equal
participation, implies the duty to involve equality groups in decision-making in both
institutional structures and processes on an equal and participatory basis (Fredman and
Spencer, 2006). The participatory side to the mainstreaming of equality is congruent with
McCrudden’s (2001) participatory justice model.
The question remains regarding how the principle of equality can be implemented besides
shifting the focus from rights to duties, to avoid, for instance, the compliance issue of ‘dead
letters’ (Falkner, 2010) prevalent in Slovakia. Fredman and Spencer (2006, p.3) elaborated
on the delivery of the equality duty that would be outcome-focused, “goal oriented, action
based and progressive over time.” By this formulation, they seek to avoid the overbureaucratization of the process and vagueness of content that commonly hinder the
implementation of the equality duty, as in the case of United Kingdom (UK) (Fredman and
Spencer, 2006) or Scandinavia (Craig, 2012). However, it ought not to be forgotten that these
countries are distinguished by the implementation pattern of respect for the rule of law which
Slovakia in Falkner’s (2010) assessment precisely lacks, therefore additional steps might be
required aimed at overcoming institutional resistance (see chapter 6.1.1).
The equality duty according to Fredman and Spencer (2006) is to be discharged on two
levels, general and specific. The general duty, they argue, should impose the same obligation
on each authority, to “…take such steps as are necessary and proportionate to eliminate
discrimination and to achieve the progressive realization of equality (as defined)” (Fredman
and Spencer, 2006, p.9). Specific duties, in contrast, could be determined by each institution
as its own statutory code of practice, although it would always be composed of a series of
steps, particularly “to get baseline evidence on discrimination and equality across its
functions; to diagnose the causes of inequality identified; to consult; to have an action plan
setting out the necessary and proportionate steps it proposed to take; (to take the necessary
and proportionate action on an ongoing basis) and to monitor progress” (Fredman and
Spencer, 2006, p.11). Thereby specific duties would provide guidance on what steps should
be included at all time, while leaving enough autonomy for each authority to decide what
action is ‘necessary and proportionate’. Such an approach has a potential to reduce the danger
of ‘regulatory trilemma’17 (Fredman, 2012). To ensure transparency, all stages of the process
‘Reasonable accommodation’ is the concept introduced by Art.2 of CRPD defined as “necessary and
appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a
particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of
all human rights and fundamental freedoms”. CRPD specified that the denial of reasonable accommodation
constitutes discrimination on the ground of disability.
17
The regulatory trilemma concept that Fredman (2012) uses refers to the state in which law attempts to change
organizational behavior by authoritative command, which may have a triple negative effect. It may be ignored
16
16
of delivering equality duty would be open to participation of the actors from civil society, as
well as compliance monitoring by equality bodies and various inspectorates. This model is
illustrated in Figure 1 bellow created by Fredman and Spencer (2006).
Review
Evidence
Diagnosis
Action
Plan
Decide
‘necessary
and
proportionate’
steps
Implementation
Monitoring
Consultation
Gaining information ◦ Insight ◦ Participation ◦ Information dissemination
Figure 1: A framework for action on equality
The whole process starts by obtaining baseline evidence on (in)equality, in other words,
‘equality data’ (Makkonen, 2007a) (see chapter 3.2.1) while equality groups are consulted all
throughout the process. With extreme relevance for the delivery of the equality duty in
Slovakia, Fredman and Spencer (2006) warn public authorities, that “the lack of quantitative
evidence for a problem cannot be an excuse for inaction. Qualitative evidence, including
from consultation, may be the basis for action in the absence of, or until, an authoritative
evidence base is available for decision-making“(Fredman and Spencer, 2006, p.12). Then,
even if there is little equality data available in Slovakia at the moment, public authorities have
the duty to consult with civil society actors, primarily those representing groups at risk of
discrimination, in a genuine participatory way to obtain the ground for initiating action.
Authorities should avoid barriers to consultation, which can be physical, attitudinal, financial,
cultural, or stemming from an inappropriate choice of consultation method, by identifying
them prior to consultation on a case-by-case basis (Reid – Howie Associates, 2002). Reid –
Howie Associates (2002) suggest that this is best done by asking potentially affected groups
how their active participation can be promoted most effectively, while not excluding “hard to
reach groups”. Any group, less or more homogenous, can be included in consultation when
a suitable range and combination of outreach methods is applied (Reid – Howie Associates,
2002).
Participation serves two functions, both of which are crucial in proactive models – as means
to promote equality based on the perspective of groups experiencing inequality, as well as an
by an organization, damage its ability to produce solutions based on voluntary initiative, and it can damage the
law itself due to its perceived ineffectiveness and illegitimacy.
17
end to empower the ones whose voice has been marginalized (Fredman, 2005). Primary roles
of participation in the consultative process concern imparting and receiving information, codeciding, and monitoring compliance of duty-bearers with the general and specific equality
duties. Providing information, for instance on results of all monitoring processes or reasons
justifying a decision against the criteria of necessity and proportionality, enhances
transparency in decision-making and the accountability of decision-makers to the public.
Particularly for those affected by decisions, it also opens up space for a response, such as
objecting to a discriminatory decision. Information should be conveyed by authorities in an
accessible and intelligible form, which could be further specified under ’the duty to publish’
(Fredman, 2005). Gleaning information during consultation from groups, whose equality
outcomes are affected by decision-making, is vital for keeping the process working from the
bottom-up. Equality groups are in the best position to identify inequality and propose
changes, by which greater legitimacy and efficiency in policy-making is achieved (Fredman,
2005).
In the spirit of the concept of deliberative democracy18 Fredman (2005) describes decisionmaking as a learning process. Goals can be redefined as a result of discussion, in which
participants from marginalized groups have equal voice and can co-decide on issues that
concern them. This function of participation should be exercised with caution to prevent
tokenistic involvement of these groups on one hand, and on the other hand to not undermine
the power of elected representatives. At the same time, one should be mindful to reflect on
unequal opportunities for successful participation in the election of representatives (Fredman,
2005), as evident in a minimal representation of equality groups such as women or Roma in
the Slovak parliament and government (Sme, 2015). In monitoring compliance with the
general and specific equality duties, equality groups are best suited (though equality bodies
and inspectorates are also to be involved as compliance enforcers) to identify compliance
deficits in the process and outcomes of the equality duty enforcement. Therefore continuous
participation of equality groups in consultation is a major key to success.
Enforcing the equality duty seems to be the most problematic aspect of proactive models
(Fredman, 2011). Although pro-equality change can be promoted by the interplay between
enlightened decision-makers in institutions and members of equality groups (see chapter
5.1.2.5), it will not happen without a systemic solution to keep all actors in compliance.
Fredman (2011) emphasizes the importance of developing a solid ‘pyramid of enforcement’,
comprising methods of cooperation, negotiation, order, and sanction, respectively, to prevent
that equality mainstreaming turns into a mere gesture–if not a pretext–for inaction in times of
faltering political will. Ultimately, the aim is to transform the organizational culture in a way
18
Deliberative democracy is a democratic decision-making process that allows for participatory discussion of
relevant parties, including all those with power to make decisions and those affected, and leads to a decision
on action binding for all parties which should be taken in the most effective way. Such decision must be
justifiable “by reasons which participants sincerely believe to be persuasive to others” (Fredman, 2008,
p.36), such as choosing public interest over self-interest.
18
that equality gains resonance with leaders in departments and its promotion will be valued
and prioritized (see chapter 6.1.1). Internal motivation for voluntary compliance with the
equality duty and for taking responsibility for its fulfillment can be garnered through
cooperation and institutions feeling ownership over devising necessary and proportionate
equality measures within the action framework (See Figure 1).
Non-compliance can be prevented by giving information, education or various incentives. If,
however, duty bearers do not respond with compliance to any of the softer enforcement
methods, deterring sanctions should be inflicted (Fredman, 2011). In proactive models,
sanctions should consist of investigation and review, leading to the issue of compliance
notice (by an equality body or other authority), followed by recourse to a court of law with
powers to insist on compliance. Fredman (2011) stresses the crucial role of a compliancemonitoring framework within the pyramid of enforcement for the actual fulfillment of the
equality duty. Inspection bodies should take account of the general and specific equality
duties in their regular and thematic inspections under the specific ‘duty of monitoring‘. The
discharge of duty to monitor could be supported by the expertise of equality groups from civil
society and governmental equality bodies. When monitoring shows a lack of compliance, PIs
in a position of enforcement agency, such as the equality body in the UK, have a duty to act
(Fredman, 2011).
Going deeper into the pyramid of enforcement mechanisms would be too ambitious for
purposes of my report, although it certainly deserves further exploration. What I see as
a crucial objective for the development of AD compliance monitoring is the shift from rights
to deliverable and enforceable duties. I attempt to elaborate on this concept from another
perspective in chapter 6.1.2.
3.2 The Positive Duty to Monitor in the Field of AntiDiscrimination
3.2.1 Monitoring Discrimination as a Positive Duty
Without mapping the existing and potential discrimination first, it is hardly possible to set up
measures such as policies to eliminate and further prevent unequal treatment. Such measures
are often referred to as AD measures. Once a structural inequality and unequal treatment have
been ascertained, it is important that AD measures are adopted and implemented to prevent
these social problems from flourishing under the surface while effectively destroying the
quality of life for whole portions of society. Monitoring discrimination is thus also considered
one of AD measures.
The right to equality and ND are cross-cutting HR norms which makes the monitoring of
their violations rather challenging (Jacobsen, 2008; UN, 2012). They can be measured only in
19
connection to another right, and they necessitate a comparator that is an individual or group
in a comparable situation, except for the characteristic constituting a prohibited ground of
discrimination. For instance, the lack of access to the labor market of women in comparison
with similarly qualified men amounts to discrimination. A situation of inequality tends to be
complicated by many intersecting discrimination grounds (gender, ethnicity, class, etc.),
forms (direct, indirect, harassment, etc.), environments (employment, education, healthcare,
etc.), and actors, who can be both individuals and institutions or organizations (Henry, 2010).
As information uncovered by monitoring frequently weakens the dominant society’s values
(in the Global North, this generally points to male, white, middle-aged, heterosexual and
able-bodied) by exposing systemic discrimination and inequality at the root of national laws,
policies, and practices (Jacobsen, 2008; Henry, 2010). Another challenge resides in handling
the process with caution and sensitivity to reduce the danger of reprisals (see chapter 5.2.3).
Reporting discrimination may, and often does, bring victimization onto those affected, or
harm the reporting entity. To ease the burden on individuals in bearing the consequences of
reporting, there has been a growing push towards framing monitoring in a group and
structural disadvantage perspective.
In the wake of the adoption of the two EU equality directives (2000), the first major study
was commissioned to explore statistical data collection as an AD measure in the United
States, Canada, Australia, Great Britain and the Netherlands (EC, 2004). It disclosed that the
initially employed complaints-based system for measuring direct discrimination (categorized
under the individual justice model by McCrudden, 2001) did not substantially capture the
structural discrimination of groups. The turning point came with the introduction of the
concept of indirect discrimination measured by indicators, which has led to more proactive
policies (e.g. positive action measures). The comparative study showed that the re-orientation
to group justice (McCrudden, 2001) resulted in higher sensitization and readiness to accept
accountability for AD on the part of duty-bearers (European Commission, 2004). Inspired by
the findings the EU has started moving towards augmenting its equality regime (Krizsan,
Skjeie and Squires, 2012) with the group justice and participatory justice models. Two
studies (Makkonen, 2007a; Makkonen, 2007b) on measuring discrimination by collecting
equality data were subsequently commissioned.
Equality data is defined as “any piece of information that is useful for the purposes of
analyzing the state of equality . . . quantitative or qualitative in nature” (Makkonen, 2007a,
p.13). It is vital for mapping the social context of discrimination, its causes, forms, extent,
and effects. The main focus is on aggregate evidence of [in]equalities produced by statistics.
Statistical evidence can, for instance, help to reveal the under-representation of a certain
group in workplace (or other settings), or over-representation in unemployment. Besides,
statistical evidence can be used in legal proceedings (Makkonen, 2007b). For instance, in the
case of D.H. and Others v. the Czech Republic, the ECtHR concluded discrimination based
20
on the statistical evidence19 that showed 50-90% of students attending special schools were
Roma, while Roma only made up to 2% of the population in education (FRA, 2011).
Most of the EU member states, like Slovakia, have not institutionalized the framework for
managing equality data. As a result, these states lack knowledge on ways of collecting and
utilizing already existing data (administrative records), or on how to coordinate data
collection on the national level. Several concerns related to data collection are common
among member states, such as the concern for violating the right to privacy and protection of
personal data, misusing data against groups at risk of discrimination, re-enforcing differences
and stereotypes, and bearing undue financial burden. However, Makkonen (2007a) argues
that the concerns are not insurmountable as they have all been reasonably addressed. The
scheme for data protection was developed by the CoE’s Convention no. 108 (Council of
Europe, 1981) and European Directive 95/46/EC (The European Parliament and the Council,
1995) which do not preclude collection and processing of sensitive data.
Simon (2007) concluded that the problem is rather on the part of states that are unaware of
the importance of statistics in combating discrimination. The concern for misusing the data
does not depend on the contained information, but on how it is used. Thereby, the prevention
of the misuse of data should concentrate on encouraging sensitive collection and use, as well
as punishing misuse. Makkonen (2007a) reiterates that this is precisely the rationale behind
the scheme for the data protection act rather than inhibiting the sensitive data collection
altogether. In addition, equality data does not re-enforce stereotypes, but disproves them
while promoting the implementation of substantive de facto equality, for example by positive
action measures for women until they are equally represented in the workplace. Makkonen
(2007a) touches upon the concern of costs, which, he emphasizes, are much higher if
discrimination goes unaddressed, and various groups are deterred from leading productive
lives. Furthermore, there are issues concerning gathering data on particular grounds, as
demonstrated in a recent example from Slovakia. In one of the expert essays on equality data
collection (Kotvanová, 2012), the authors ponder if Roma should be allowed to state their
ethnicity by voluntary self-identification, or if labor office clerks should rather determine
their ethnicity (Klasová and Košta, 2012). The lack of local awareness is apparent in this
case, still commonplace in Slovakia, as it was clarified considerably long ago in the
international arena, that the latter option is not voluntary and therefore for the most part not
justified (Makkonen, 2007b; Simon 2007). Similar to the general treatment of research data,
equality data are to be assessed in terms of reliability, validity, scope, and cost-effectiveness
(Makkonen, 2007a).
Makkonen (2007a) recommends that each state should adopt a national plan of action
outlining the development of a national knowledge base on equality and discrimination while
19
Similar judgment occurred recently in Slovakia, but the NGO initiating the case had to submit information
from the internet due to unavailability of data concerning discrimination on the ground of ethnicity.
(Debrecéniová and Dlugošová, 2012).
21
allocating sufficient financial support. National knowledge base is to contain data on all
prohibited grounds, in all relevant areas, acquired from multiple data sources and by various
methods of data collection and analysis. The three main methods of data collection he
proposes are surveys compiling statistics and research data (from questionnaires, interviews,
censuses, and household or victim surveys), administrative processes utilizing data acquired
in administrative procedures (from applications for benefits or employment, crime reports,
and complaints data), and observation during controlled experiments (discrimination/
situation testing20 or on-side inspections of workplace and service delivery by regulatory
agencies) (Makkonen, 2007a).
Besides those established sources of equality data, Makkonen (2007a) calls for data obtained
via new innovative methods of collection. Such innovative methods could, in my
understanding, encompass the case of ENAR Ireland (The Irish Network Against Racism)
which developed a standard framework to monitor racist incidents using a holistic,
collaborative approach. The NGO organized four seminars where local and national
organizations representing groups vulnerable to discrimination and other stakeholders
exchanged knowledge and designed the monitoring framework. A new data collection tool on
a website was among the outcomes (The Equality Authority, 2012). Another interesting
example of a community-based data collection could be one conducted by collectors from
researched communities. This is, for instance, relevant in the Roma community setting
(UNDP, 2007).
Sweden is an example of a country where, similar to Slovakia, equality data had not been
collected for a long period of time due to falsely perceived legislative obstacles. The Swedish
Equality Ombudsman carried out a preliminary study to an intended national survey
regarding the development of national equality knowledge base (Al-Zubaidi, 2012), which
reasserted that equality data is essential for a high-level equality policy-making, and its
collection is not forbidden. The study argued that the national survey is to be large-scale,
longitudinal, and adequately funded. In the preparation of the preliminary study, the Swedish
Equality Ombudsman consulted the most relevant institutions (the statistics agency and data
inspection board), as well as the civil society including equality groups. Ombudsman planned
on continuing with consulting these actors (and other actors such as researchers) also
throughout the development of national survey. As far as the method of equality data
collection, Ombudsman suggested utilizing an already-existing statistical data source (the
annual survey of living conditions and data produced by the Swedish statistical system)
provided that they would be complemented by qualitative studies allowing for better
understanding of discrimination mechanisms specific to different equality groups. Moreover,
Ombudsman strongly advised involving equality groups, especially those that typically end
20
Because of its covert nature taking advantage of the weak social control (no observers around) it is difficult to
obtain the evidence of discrimination by observation. Therefore discrimination testing aims to create a situation
in which two or more individuals are matched in their characteristics besides one that could lead to unequal
treatment, e.g. gender, and analyze the reaction of the tested subject (Makkonen, 2007a)
22
up not participating (due to their mistrust of authorities or other reasons) in the production of
data at all times. Cooperation with these groups would promote both devising alternative
methods to capture the specifics of their discrimination, and the consistency, applicability,
and credibility of the data gathered. Relying on the experience from the drafting of the
preliminary study, Ombudsman recommended consulting protected groups in a joint session;
however, I suspect that such a choice can have both benefits (sharing ideas), and drawbacks
(not enough consulting capacity devoted to each group), thus the cost effectiveness of the
procedure is arguable. The consultation of each group separately might still be a
consideration.
Ombudsman alluded to some encountered ‘paradoxes’, such as the highest level of
skepticism towards equality data collection from groups that could potentially benefit from it
the most. However, the reluctance of some equality groups ought to be seen in a historical
context. There have been many instances of the misuse of sensitive data by the state, most
notoriously being the misuse of data on the Jewish population by Nazi leaders during World
War II (Al-Zubaidi, 2012). Another issue brought up by Ombudsman was that some groups
(the Swedish Finns) define themselves primarily by language to which ethnicity may be
related, while others (more foreign ethnic minorities) refer to ethnicity as defining them
before language. Significantly, Ombudsman pointed to the phenomenon of growing mistrust
of the government (surveillance being one of the public concerns) as an obstacle for equality
data collection, and observed that the role of Swedish government is to clearly communicate
the state’s position and strategy on equality data collection and facilitate the public debate in
order to attain public support for monitoring (Al-Zubaidi, 2012).
I believe these considerations are important to the process of developing a national
knowledge base on equality, which will have to take place in Slovakia as well. Though
omitted by Makkonen (2007a), I share the opinion of the Swedish Ombudsman that
improving the aspect of public trust may be crucial in winning the public support for equality
data collection. For all intents and purposes, in 2014 Eurobarometer (European Commission,
2015) the mistrust to the government in Slovakia has been much higher (67 %) compared to
Sweden (38%) making the urgency for the Slovak government to engage in the public debate
on equality data perhaps even greater. The Swedish example of the national knowledge base
launching thus represents an inspirational practice.
Although discrimination monitoring and equality data gathering are implicitly (through
concepts such as positive action and reasonable accommodation) contained in the European
and international equal treatment legislation as duties of state actors, compliance with them
has been rare in most of the EU states. The United Kingdom and Northern Ireland represent
an exception where the duty to monitor and collect data has been made an explicit part of the
equality duty in national law and enforced by NHRIs (Makkonen, 2007b). In discharging of
its duty to monitor, the Equality Measurement Framework (EMF) (Equality and Human
Rights Commission, 2007) was established by the British equality body Equality and Human
Rights Commission (EHRC). EMF was intended for PIs to use in monitoring outcomes,
producing data, evaluating progress, and prioritizing their activities to comply with the
23
equality duty. Among applications of EMF is the action-learning project “Improving Local
Equality Data” delivered in cooperation of the Scottish EHRC, Scottish government and the
Improvement Service. The project highlighted the need to make equality data more accessible
to equality groups (especially the ones that are hard to reach) (see chapter 3.1). Project
leaders from PIs also indicated the need for greater support from the local government
(Equality and Human Rights Commission Scotland, 2012).
Anchored in the framework on HR indicators of the Office of the High Commissioner for
Human Rights (2012a) (see chapter 3.2.3), EHRC together with other HR stakeholders
(experts from NGOs) have developed the Human Rights Measurement Framework (HRMF)
(Equality and Human Rights Commission, 2012a). HRMF serves EHRC as a tool to assemble
evidence on the progressive HR implementation in the U.K. for the purpose of analyzing
compliance (Candler et al., 2011). HRMF is aimed at incorporating HR into proactive public
policy and promoting a culture of respect for HR (see chapter 3.1). Gathered evidence
consists of data from the regulatory and policy framework, statistical sources (administrative
data and social surveys), findings of inquiries, case law outcomes, concerns raised by experts
of international monitoring bodies (UN), domestic regulators (inspectorates and
ombudspersons) and civil society. EHRC has considered making HRMF into an interactive
web tool which would enable NGOs to extend the knowledge base on HR by uploading their
own data (Candler et al., 2011).
In my opinion, both HRMF and EMF frameworks could be seen as examples of building a
national knowledge base on HR and equality while enforcing compliance with the duty to
monitor and collect equality data.
3.2.2 Monitoring Non-discrimination Mainstreaming as a Positive Duty
Parallel to group justice approaches, the participatory justice principle of ND mainstreaming
has evolved in the EU equality regime (Centre for Strategy & Evaluation Services, 2007). In
the 2000s, the EC managed to widen the framework of ND mainstreaming by introducing
manifold tools. Only one of them, impact assessment involving consultation with the civil
society, was made compulsory in policy-making across EU. To what degree it has been
enforced by member states is arguable. For instance, participants of the present research
implied that the Slovak government has adopted a formalist approach to both the impact
assessment completion and civil society consultation (see chapter 5.1.3).
ND mainstreaming is aimed at “placing equality considerations at the heart of decisionmaking“(Centre for Strategy & Evaluation Services, 2007, p.1), in all stages of the policy
process, including policy making, implementation and review. These considerations imply
the crosscutting use of evidence from monitoring. Indeed, the element of monitoring seems to
permeate all tools and practices developed to operationalize ND mainstreaming. In the ND
policy-making stage, screening is to be utilized when a policy is at the proposal stage to
assess the need for mainstreaming; equality impact assessment is used to examine how a
24
policy could affect groups at risk of discrimination; equality data form the basis for the
impact assessment; equality plans are standards against which policies are assessed; and
participation of equality groups is required throughout the whole process of policy-making to
weave their perspectives into the policy content (EC, 2011).
In the ND policy implementing stage, the adoption of standards (regulatory AD clauses
included in codes of conduct, etc.) is needed for mainstreaming to be systemic. Equality
review and action plans are beneficial to assess the efficiency of equality policies and
practices of an organization and consequently adjust them to maintain a focus on equality in
the employee treatment and service provision. Equality plans and programs are necessary to
provide framework for ND mainstreaming at the national, regional, and local level, and
ensure the capacity of PIs for implementing it. Expert centers (NGOs, equality bodies,
specialized units in PIs) are to provide guidance in implementation. Finally, monitoring is a
crucial practice not only for establishing the situation concerning (in)equality, but also for
keeping track of mainstreaming outcomes and setting a basis for their continuous
improvement during implementation (EC, 2011). In recent years, many guides for dutybearers in ND mainstreaming have been published, such as the equality planning guide issued
by the Finnish Ministry of Interior. It contains a template of the equality survey for
employees that could be used in intra-institutional monitoring (Equality planning working
group, 2010). Monitoring inside PIs was proposed by several participants of our research as a
means to make PIs more inclusive and thus capable of enforcing AD policies also outside of
their institutions (see chapter 5.2.3).
Even though the EU equality regime has not framed ND (or equality) mainstreaming as
a proactive duty, experience from some of its member states that have done so suggests that it
could lead to a major success. When subjected to the equality duty, public authorities are
required to promote equality in carrying out all of their functions (Centre for Strategy &
Evaluation Services, 2007). They ought to explain how they propose to respect, protect and
promote the principle of ND, while solidifying their proposal in a binding equality plan,
which should be regularly monitored and evaluated. For instance, the UK’s EHRC acting on
its duty to monitor ND mainstreaming commissioned a research center and a policy
evaluation group to investigate what equality data 11 public sector organizations (local,
regional, fire and rescues, primary care and educational) collect and how they use them in
policies and practices related to equality and HR (Fry and Yeandle, 2009). Methods used
involved a review of websites, analysis of documents, and telephone interviews with key
staff. Monitoring revealed what statistics concerning various equality groups (e.g. more on
gender, less on sexual orientation) were obtained by different institutions and how the
institutions were able to use them in ameliorating their activities. It also unmasked deficits in
both of these aspects. Divisions were identified in amounts of institutional and human
resources allocated to equality mainstreaming not only among institutions, but particularly
between their departments. Eventually, EHRC derived examples of good practice and issued
policy recommendations for the monitored and other relevant institutions in the UK’s
equality apparatus (Fry and Yeandle, 2009).
25
Another survey by EHRC among 1159 public authorities exposed that only 50% were able to
demonstrate their compliance with the equality duty in terms of imparting equality
information (see chapter 3.1 for ‘the duty to publish’) to their employees at risk of
discrimination and people from the general public affected by their policies and practices
(Equality and Human Rights Commission, 2012b). Innovative assessment criteria were used.
For instance, if it were possible to find any relevant equality information on a website within
10 minutes, the website was considered accessible and its content was further assessed. These
surveys are good examples of inter-institutional monitoring, which some of the current
research participants could fathom working among Slovak PIs in several variations (see
chapter 5.2.3).
In a similar vein, Scandinavian countries have introduced positive duties to make active,
targeted, and systematic efforts to promote equality for both public authorities (primary dutybearers) and employers (secondary duty-bearers) (Equinet, 2012). The conceptualization of
equality duty however, has been a common concern hindering compliance monitoring in
Scandinavia (Craig, 2012). The equality duty was too vaguely formulated (Denmark the least
clear), limited to the area of employment, and included only some grounds (with Norway the
most, Denmark the least intersectional, only covering gender). Sweden detailed its equality
duty as a commitment to make changes in the organizational culture of PIs (see chapter
6.1.1), which necessitates allocating time and resources and involving both higher and lower
rank employees into deliberative action planning, implementation, evaluation and
reformulation (Craig, 2012). Besides deconstructing underlying barriers to equality, Norway
proposed that the equality duty should be more specified in terms of its goals. An example of
such specification is Fredman and Spencer’s (2006) four dimensional model of equality in
chapter 3.1). Iceland had the strongest formulated equality duty, which required duty-bearers
not only to promote equality, but to achieve it (Fredman, 2011).
Factors Scandinavian regulatory agencies deemed important in enforcing compliance were
the likelihood of detection of non-compliance and the disciplinary procedures that follow.
The Norwegian Ombud monitored the compliance with reporting duty (also mandated in
Denmark and Iceland) over three years in 114 local authorities and came to a conclusion that
the combination of guidance and monitoring (comply or explain principle) makes the
reporting by employers in PIs more effective. The Center for Gender Equality in Iceland
managed to enforce gender equality planning (also compulsory in Sweden and Finland) in
financial institutions (though these were secondary duty-bearers) under the threat of financial
penalty (comply or pay principle) (Craig, 2012).
3.2.3 Developing Human Rights and Equality Compliance Indicators
The Office of the High Commissioner for Human Rights published a guide on HR indicators
with the aim to identify those indicators that could be used for monitoring the compliance of
duty-bearers with their HR obligations and to support the use of such indicators by relevant
stakeholders (primarily from the public sector) in policy making and implementation (Office
26
of the High Commissioner for Human Rights, 2012a). HR indicators provide “specific
information on the state or condition of an object, event, activity, or outcome that can be
related to human rights norms and standards; that addresses and reflects human rights
principles and concerns; and that can be used to assess and monitor the promotion and
implementation of human rights” (Office of the High Commissioner for Human Rights,
2012a, p.16).
Similar to Fredman (2008), the Office of the High Commissioner for Human Rights (2012a)
acknowledges the importance of broadening the focus of monitoring HR mainstreaming from
outcomes, measured in the dichotomy of violations (negative outcomes) v. progressive
realization (positive outcomes) of HR, to actual duties of states to ensure the universal
enjoyment of rights (see chapter 6.1.2 for possible implications of the reframing for Human
Rights-Based Approach). Together with widening the scope of monitoring from rights to
duties, instead of developing compliance indicators for each HR, the Office of the High
Commissioner for Human Rights (2012a) puts forth that “it may be desirable to identify
indicators under the three State obligations to respect, protect and fulfill for each human
rights attribute” (Office of the High Commissioner for Human Rights, 2012a, p.42), while
always filtering the assessment through the requirement of ND. Such an approach would
transform the notion of HR from a subject of the legal and justice discussion (‘judicialization’
refered to by Krizsan, Skjeie and Squires, 2012), into a clear, particular, and tangible mandate
of public officials which is measureable in terms of performance and compliance, thus very
well implementable (Office of the High Commissioner for Human Rights, 2012a) (see also
chapter 3.1).
To satisfy the objective of mainstreaming HR, the UN has sought methodologies for
monitoring both the performance (input-output-outcome-impact indicators) and compliance
(structural-process-outcome indicators) of states with the duty to mainstream HR, while
taking into account cross-cutting HR norms – primarily ND, but also other norms such as
participation, accountability, access to information and access to remedy (Office of the High
Commissioner for Human Rights, 2012a). Performance indicators relate to programming
(where HR programs are already in place) and their aim is to measure the difference between
what was formally planned and how it has changed the reality on the ground (in other words,
the relative level of implementation). Some changes in performance can appear immediately
(when the state responds to the requirement to stop intervening in a harmful way; related to
the duty to respect), but some may take longer (when the state is asked to build and
implement a framework for HR protection and fulfillment; related to the duty to protect and
fulfill). Compliance indicators are directly anchored in HR standards and measure the extent
to which these standards are progressively realized by relevant actors (in other words, the
level of compliance exerted by duty-bearers). A way of differentiating indicators is between
quantitative (numerical) or qualitative (checklist) and objective (fact-based) or subjective
(judgment-based), while they can also be combined. The combining of these indicators
generates objective quantitative indicator (number of successfully resolved discrimination
cases), objective qualitative indicator (status of adoption of measures to prevent
27
discrimination: adopted, partially adopted, not adopted), subjective quantitative indicator (the
percentage of individuals who feel that they are genuinely involved in the AD policy making
process) and subjective qualitative indicator (assessment expressed in a narrative form about
the fulfillment of HR of a particular equality group). For instance, in my interviews with
participants of this research, I used subjective qualitative indications when asking them to
recount their experience with AD measures adopted on behalf of their target groups. In order
to strengthen the assessment of the state’s compliance with HR standards and performance of
planned interventions in support of HR exercise, benchmarks can be introduced. Benchmarks
are “predetermined values for indicators” (Office of the High Commissioner for Human
Rights, 2012a, p.20), which are either empirical (related to observations of resources and
feasibility within the national context) or normative (based on considerations of inter/national HR standards).
Compliance with the HR mainstreaming duty can be measured by the commitments-effortsresults system, utilizing three types of indicators (Office of the High Commissioner for
Human Rights, 2012a). Structural indicators reflect the commitment of duty-bearers to
undertake the implementation of HR mainstreaming by creating an institutional mechanism
(such as equality bodies), policy framework (gender equality policy) and program of action
(the action plan on combating the discrimination of women in employment). Outcome
indicators indicate results of the state’s implementation efforts on the enjoyment of HR (less
women experiencing discrimination in their workplace). Process indicators show how strong
the duty-bearers’ commitment is by making an effort to turn their promises into results
(cooperation with women’s organizations, budget earmarked for the gender equality policy,
impact assessment of an action plan on enhancing the professional lives of women, regulatory
interventions in workplaces, etc.). Structural-process-outcome indicators ought to be
correlated with ND as a crosscutting norm integral to the HR mainstreaming. This is ensured,
for instance, by involving groups at risk of discrimination in decision-making about policy
measures, departing from data disaggregated by prohibited grounds of discrimination, and
using indicators of accessibility in relation to a comparator (e.g., women in comparison to
men, Roma in comparison to non-Roma, and non-heterosexuals in comparison to
heterosexuals).
Methodological advancements of this implementation-driven approach to monitoring using
indicators were spotted in the new framework elaborated by the Center for Economic and
Social Rights under the name OPERA (Corkery, Way and Wisniewski Otero, 2012). OPERA
uses the method of triangulation of outcomes (O), policy efforts (PE) and resources (R) to
produce the assessment (A) of the state’s compliance with the duty to implement HR without
discrimination. Simultaneously, it reveals barriers that prevent the translation of the state’s
commitments into results on the ground. Indeed OPERA scrutinizes the reasonableness of
efforts made by duty-bearers and identifies inadequacies in their action or inaction with
considerable precision. Outcomes are assessed over time based on HR indicators
disaggregated by prohibited grounds of discrimination. Policy efforts are reviewed by
measuring the legal and policy commitments of the state against HR standards (compliance
28
indicators). The content of each policy is examined on whether the means to realize HR
concerned are increasingly available, accessible, acceptable, and of adequate quality (AAAQ
criteria) for all persons and groups without discrimination. In regards to policy process, it has
to be verified that all groups at risk of discrimination can actively participate and hold the
government accountable. Resources are evaluated in terms of how transparent, equitable, and
effective their generation and allocation is (if maximal available resources are allocated) and
if the budget process is also open to the participation of equality groups. The final assessment
(A) of the state’s compliance is made by linking the three dimensions (O, PE, R) and
complementing them with the country context (empirical benchmarks) depicting capacity
gaps and other constraints (Corkery, Way and Wisniewski Otero, 2012). By shining light on
the compliance situation with HR mainstreaming, a thorough analysis has the high potential
of disclosing discriminatory treatment, discriminatory policies, or inequitable use of
resources.
For example, utilizing the OPERA framework in assessing fiscal policies in Guatemala,
Corkery and Eva (2012) were able to point to gross HR and equality non-compliance of the
state where certain groups (women, indigenous population) were constantly left behind and
without an option to participate in policy-making and resource distribution. Although
OPERA was originally aimed at monitoring the fulfillment of economic, social, and cultural
rights, should we invoke the above outlined re-conceptualizing of monitoring as focused on
the State’s obligations derived from HR instead of HR themselves, the framework could be
broadened. One instance in which OPERA could be possibly used is revealing and tackling
the institutional anti-equality bias in PIs (Henry, 2010) (see chapter 3.3.3).
Hartlapp and Falkner (2009) reference a sizable research that aims to broaden the
understanding of the phenomenon of (non)compliance of EU member states with EU
policies, albeit focusing on the adherence of individuals to rules rather than the role of the
state in enforcing them (see chapter 3.1). The authors make a case that compliance depends
on factors that vary across different countries, such as the willingness of residents and PIs to
abide by the EU and national norms, or the kind of norms they incline to. For instance, in
Slovakia AD on behalf of people with disability has enjoyed higher acceptance than the one
in support of people with non-heterosexual orientation (see chapter 5.1.3). At the same time,
Hartlapp and Falkner (2009) point out that state capabilities, such as weak bureaucracy
commonly found in Central and Eastern European Countries (CEEC) (see chapter 3.3.2), may
even be a stronger predictor of (non)compliance than the state’s preferences (preferring
macho culture over feminism, etc.) (see chapter 5.1.1).
Compliance thereby is to be operationalized as a country-specific dependent variable21, and
compliance indicators and benchmarks should be tailored ‘empirically’ to specific conditions
in each country. Hartlapp and Falkner (2009) propose monitoring undertaken by an adequate
21
In social constructivism, the word ‘construct’ is used rather than ‘variable’, which is considered pertaining to
the positivist social science tradition (Gilbert, 2008).
29
number of labor inspectors or enforcement by imposing appropriate fines as examples of
compliance indicators. Another set of compliance indicators (timeliness and correctness) that
has already been in use at the EU level relates to the transposition of the EU law into national
law. Among challenges that might arise in operationalizing compliance, Hartlapp and Falkner
(2009) highlight the need to clearly define (non)compliance (see also the definition of nonimplementation by Pincus in chapter 3.3.3) and its scope to prevent the incoherence of chosen
indicators leading to skewed results. In Slovakia where the (general) equality duty consists of
the prohibition of discrimination and the duty to adopt measures to prevent discrimination,
the minimal scope of compliance would be for PIs not to perpetrate discrimination or prevent
discrimination by proactively taken measures (see chapter 6.1.2).
3.3 Institutions Biased Against Equality and Institutional Change
In the last portion of the theoretical framework, I problematize compliance as a reflection of
discourses in the institutional setting within an equality regime. According to Kardam (2002,
p.411) “[equality] regimes embody mutually accepted principles and practices on which there
is, for the most part, compliance.” It could be inferred that the strength of an equality regime
is hence directly proportional to the level of compliance with the principle of equality.
Deeper understanding of the institutional transformation process towards a powerful equality
regime, its drivers and inhibitors, seems to represent a vital piece of the real-world puzzle of
AD implementation.
3.3.1 Neo-institutionalist Approach to Institutional Change
New institutionalism, a sociological view of institutions, posits human behavior as guided by
formal (laws and policies) and informal (unwritten), even symbolic rules, norms and
practices, broadly referred to as institutions (Mackay, Kenny and Chappell, 2010). More
narrowly, PIs are also regarded as institutional actors, rather than mere instruments, as they
are “driven by societal visions [e.g. equality for everyone] and political projects [e.g.
membership in the EU]” (Thoenig, 2011, p.7). Krizsan, Skjeie and Squires (2012, p.8) see PIs
dealing with equality as “one of the most specific expressions of equality policies”. The map
of equality PIs according to them comprises bodies with varied functions which can be
political, administrative (ministries and agencies), legal (courts and inspectorates), and
consultative (councils and committees allowing for formalized access of NGOs), or
integrated (such as the EHRC in the UK; embodying more than one previously mentioned
functions). Change concerning equality PIs indicates the state’s position on equality (Krizsan,
Skjeie and Squires, 2012).
Following the discursive branch of neo-institutionalism, institutions are not neutral (Schmidt,
2010). They are ingrained in particular political values and discourses which they, at the same
30
time, frequently help sustain. Usually the most dominant embedded discourses are the ones
privileging certain groups over others and endorsing asymmetrical power relations (Krizsan,
Skjeie and Squires, 2012). Significantly, Mackay, Kenny, and Chappell (2010) caution that
informal institutions (rules-in-use) may become a primary site of resistance against formal
institutions (rules-in-form). Biased institutionalized practices producing indirect
discrimination (Henry, 2010) in clear contradiction to AD law is, for me, an easily
conceivable example of such resistance. Informal institutions are thereby capable of reversing
progress and blocking institutional change by preserving old paths and power relations. For
instance, from their feminist discursive institutionalist perspective, Mackay, Kenny, and
Chappell (2010) realize that because the masculine ideal shapes ways of valuing, behaving,
and being in our society, women as bearers of discursively lesser-valued feminine traits are
often excluded from gaining hold of institutional power and resources. Their voices do not
echo in the institutional arena nearly as much that of men, if at all.
In the discursive paradigm, PIs promote preferences of local communities and society (even
if anti-equality bias is flourishing in them), rather than principal goals (such as HR and
equality), as conformity is perceived as reinforcing their political legitimacy (Thoenig, 2011)
– a view resonating also in the contribution of Participant C (see chapter 5.1). Anti-equality
bias may drive PIs behavior, as it has been institutionalized, i.e., infused in both PIs and their
agents, who have internalized frames of meaning through which they attribute inferior
features to social categories such as gender, age, and race (Mackay, Kenny and Chappell,
2010). Similar to culture systems, biased frames of meaning can then give sense to their
discriminatory actions, or AD non-actions. Although PIs and their agents are in a favorable
power position when interacting with representatives of equality groups, discursive
institutionalism proponents weigh in with certain vistas for leveraging the power imbalance,
for instance by relying on the subjective perception of one’s own power (Schmidt, 2010).
Despite their disadvantaged status “actors can gain power from their ideas even where they
may lack the power of position” (Schmidt, 2010, p. 18). If a service user from an equality
group acts on her or his HR awareness and demands just treatment from a PI’s official,
compatibly with the Rights-Based Approach (see chapter 6.1.2), the power between the two
can shift in favor of the one representing HR discourse.
Along the lines of historical neo-institutionalism, it is argued that PIs and institutions at large
are path-depended, i.e., their decisions, continuity, and change are determined by past and
present institutional arrangements more than current societal or cultural preferences (Thelen,
2003; Thoenig, 2011). Hence, changes in PIs brought by radical, voluntary, or single actor
activity are unlikely to occur (Thoenig, 2011) (see chapter 5.1.2.5). Rather, changes in
trajectories on which institutions move through time happen at critical junctures. The nature
of these junctures is either exogenous (i.e., from outside; the EU accession was for Slovakia)
or endogenous (i.e., from inside, as a result of internal redesigning by sentient actors through
contestation and deliberation, such as the creation of the Deputy Prime Minister for Human
Rights and National Minorities in the structure of Slovak government under the influence of
NGOs). Ferree et al. (2002) use the concept of windows of opportunity for change. In
31
particular, political opportunity structures represent access points for actors to bring in their
political claims (e.g., consultative governmental bodies for NGOs), while discursive
opportunity structures means that influential frames and actors are more likely to seize
opportunities (e.g., in Slovakia, individual justice discourse is stronger than participatory
justice discourse).
Feedback effects (resistance), on the contrary, are conducive to institutional reproduction and
continuity (Thelen, 2003). Institutional arrangements can sometimes be incredibly resistant to
exogenous changes and not transform easily, such as communist institutional structures
enduring long after the Velvet Revolution22. Thelen (2003) underscores the importance of
gaining insights into processes that disrupt institutional reproduction and conditions that
facilitate different modes of institutional change. For example, when institutions act
exclusionary, they tend to create grievance in excluded actors (e.g., NGO representing
equality groups in Slovakia) who, provided that they are not co-opted by PIs (see chapter
3.3.4), tend to create bottom-up pressure for institutional change (Thelen, 2003).
Historical and discursive neo-institutionalism seem to well complement one another in
explaining some phenomena which emerged in my interviews with participants from NGOs.
The former provides explanations for the kind of institutional context (structure), which
influences the latter, rendering critical insights into power relations (motives) among actors
(Schmidt, 2010).
3.3.2 Institutionalization of Equality in Central and Eastern European
Countries
A unique comparative study of equality regimes across the EU seems to offer some clues as
to processes of institutional continuity and change (Krizsan, Skjeie and Squires, 2012). In
CEEC, these processes concerned PIs being influenced by the post-communist legacy
(historical path dependency), as well as the EU accession process (political opportunity
structures) and social movements triggered by NGOs (discursive opportunity structures).
Although Slovakia was not included in Krizsan and Zentai’s (2012) categorization of equality
regimes in CEEC, the country undoubtedly exhibits traits similar to those described by the
authors. Equality in CEEC has been institutionalized through processes of Europeanization
(external) and levelling-up (internal) (Krizsan, Skjeie and Squires, 2012). On one hand,
vertical Europeanization in particular refers to countries’ response to top-down pressure (e.g.
22
Institutions are not only preserved or dissolved and replaced (Thelen, 2003). Critical junctures can also render
opportunities for their modification through processes, such as institutional layering (old institutions get a
new layer, e.g. the communist party transformed, but not eliminated after the Velvet revolution), institutional
conversion (old institutions gain new purposes, e.g. formal inclusion of LGBT committee into a consulting
body of the government), institutional drift (old institutions are co-opted, e.g. SNCHR co-opted by a political
party), institutional displacement (old institutions follow new rules, e.g. the Ministry of Foreign Affairs
becoming responsible for HR and equality policy) (Mackay, Kenny and Chappell, 2010).
32
on AD law implementation), from the European leadership, while the horizontal process of
Europeanization relates to countries’ response to pressuring each other into the enhancement
of their equality architecture by exchanging good practice (e.g. by OMC). On the other hand,
in the leveling-up process, NGOs pressure countries to change from inside (Krizsan, Skjeie
and Squires, 2012).
Non-state actors play a key role in expanding equality regimes by using policy advocacy as a
main instrument (Kardam, 2002). Kardam (2002) emphasizes that for effective advocacy
these actors require specific skills in making their political claims or desired policy changes.
Civil society and social movements matter in the creation of PIs, in supporting their
legitimacy and stability, as well as pressing on their accountability (Krizsan and Zentai,
2012). Therefore, it is unfortunate CEEC have been characterized by low mobilization of
social movements and weak civil society with fragmented NGOs (Krizsan and Zentai, 2012).
NGOs have had uneven access to institutional structures, and their participation and
communication with PIs largely depended on political cycles. Similar to Slovakia (see
chapter 5.1.3), in Hungary, NGOs felt represented by one equality body, but they could not
find a common ground for cooperation with another (Krizsan and Zentai, 2012). The process
of leveling-up has been significantly volatile in CEEC (Krizsan, Skjeie and Squires, 2012).
Failure to establish equality bodies represents a serious obstacle for the process of
Europanization (Krizsan, Skjeie and Squires, 2012). Krizsan and Zentai (2012) maintain that
equality bodies in Romania, Poland and Hungary, although created, were left with
insufficient budget and resources at the margins of political agenda where they have been
exposed to frequent political shifts and anti-equality backlash. In policy-making, equality
bodies were pushed into advisory rather than influential roles. Equality bodies were further
weakened by being rearranged in terms of their name, framing (for instance, the objective of
an equality body in Poland was reframed from the protection of reproductive rights to
protection of traditional family), and location within the government. Not unusually, these
bodies would eventually be erased from the governmental structure and their resources
moved to other departments not connected to equality. Changes as such ultimately support
the initial claim that equality bodies in CEEC have been instituted out of political calculation
and not genuine motivation (Krizsan and Zentai, 2012). In Slovakia, the removal of the
position of the Deputy Prime Minister for Human Rights and National Minorities only after
two years of existence by the new government that took office in 2012 (see chapter 2.1.1)
could be perceived as a case in point of this development.
Another troubling occurrence for the expansion of CEEC’s equality regimes was bias against
equality inside PIs (Krizsan and Zentai, 2012). One specific cultural factor in Poland,
presumably shared by Slovakia (see chapter 5.1.3), was the influence of the Catholic Church
and related conservative forces which contributed to the shrinking of discursive opportunity
structures for the fulfilling of women’s reproductive rights and LGBT rights. For instance,
the polish Plenipotentiary for Equal Treatment has been infamous for producing anti-gender,
xenophobic, and homophobic statements while also failing on its mandate of an equality body
33
(Krizsan and Zentai, 2012). The present research participants have had similar experience
with PIs in charge of equality agenda in Slovakia (see chapter 5.1.2.1).
Compliance with the implementation of the EU law, unambiguously comprising the national
AD law and policy, has been a contentious issue for some time. Equality regimes were
established formally to satisfy the requirement of compliance, however, their implementation
has suffered from the political culture of disrespect for the rule of law (Falkner, 2010). The
‘dead letters’ pattern, is common, but not unique to CEEC. It appears also in ‘old’ EU
member states, such as Ireland and Italy (Falkner, 2010). Falkner (2010) sees the problem in
insufficient resources and structures of PIs with shortcomings in their capacity to coordinate,
inform, and sanction. She identifies the need inside PIs for a deep organizational reform. In
explicating the implementation process, three types of factors should be decisive for the
choice of explanatory theories (such as the one of ‘dead letters’): cultural (corruption instead
of rule of law), political (party ideologies such as adhering to racism as opposed to race
equality), and administrative (organizational inability to implement the AD law).
Applying these factors to the case of Slovakia, Falkner (2010) concludes that PIs are weak
(judiciary, labor inspectorates, and equality bodies) or missing (non-existence of labor courts
putting an undue burden on civil courts), human resources are scarce in number and quality
(labor inspectors declining in numbers, as well as lacking training in monitoring of
compliance and hardly ever acting on their competence to sanction HR violations), the
infrastructure for enforcing equality standards is insufficient (assignment-based hiring of PIs’
employees and the encouragement of their self-employment), the culture of corruption is
visible (labor inspector siding with employers not employees sometimes explicitly approved
by the government), and the equality body is dysfunctional (SNCHR despite its wide-ranging
mandate has little resources or competence to act on it). The EU equality regime can hardly
expand without generating stronger top-down pressure on some of its member states, such as
Slovakia, to move from a world of dead letters to a world of law observance (Falkner, 2010).
In order to do so, reforms have to take place in relation to how compliance is construed and
measured (Hartlapp and Falkner, 2009) (see chapter 3.2.3).
3.3.3 Institutional Bias against Equality
In Henry’s (2010, p.427) interpretation, institutional bias accounts for all laws, policies and
practices “which systematically reflect and produce group-based inequalities.” Causes of
institutional bias on the societal level may vary from the collective forgetting of the historical
advantage of some groups (‘white’) while denying the existence of discrimination against
others (Roma); to cultural bias enforcing the supremacy of dominant cultural values
(marriage as the union of one man and one woman); to bias presented as a business
advantage, such as preferential hiring of those who are more likely to be flexible and have
uninterrupted careers (young men); to stereotypes and ideologies justifying the favorable
position of the dominant group (nationalists defending their country against immigrating
terrorists); to social capital allowing members networked in a certain group to gain greater
34
access to resources while other groups may be at a disadvantage (male political and business
networks). Henry (2010) contextualized institutional bias in the framework of four types:
unintentional bias by the sum-of-individuals23 (e.g., hiring based on networking), intentional
bias by the sum-of-individuals (e.g., hiring only men), unintentional “institutional” bias in the
standard-of-practice (e.g., policies that make it advantageous for employers to hire men over
women), and intentional institutional bias (e.g., the employment ban for women). Intentional
institutional bias, in Henry’s understanding ‘explicitly group-based’, is rare in the EU
equality regime owing to AD legislation and the tradition of pursuing equality goals,
although, for instance, marriage laws that exclude LGBT group still exist, and not only in
Slovakia. It is the seemingly unintentional institutional bias that is particularly dangerous,
because it promotes the continuation of bias without an obvious need for reflection,
especially in the absence of evidence in the form of equality data, as mentioned earlier (see
chapter 3.2.1).
Many scholars believe bias against equality is the main force behind the resistance of PIs in
implementing pro-equality changes (Henry, 2010; Lindholm, 2012; Pincus, 2002; Spats,
2012). Yet, the scientific knowledge in the field is not short of gaps. Henry (2010) identifies a
lack of empirical research in how mechanisms of institutional bias affect equality outcomes
for various groups. Lundy (2013) claims that resistance to change has not been studied
sufficiently in the context of PIs specifically. Lee-Gosselin (2013) reports very few studies on
types of resistance to change towards (gender) equality mainstreaming. I concur studies
mediating such knowledge have been tremendously difficult to find (adding significance to
resistance patterns found in the present research), although I did eventually discover three
case studies from Sweden (Lindholm, 2012; Pincus, 2002; Spats, 2012)24 that I found
particularly relevant. Institutional resistance could be understood as exogenous, (towards
change agents from outside, such as an NGO creating bottom-up pressure (see chapter
5.1.4.1) on institutional change (Krizsan and Zentai, 2012)), or international compliance
agencies putting top-down pressure (see chapter 5.1.4.2) on institutions (Krizsan, Skjeie and
Squires, 2012), as well as endogenous (towards efforts of change agents from inside PIs, be it
enlightened individuals (see chapter 5.1.2.5), leaders or equality officers (Lundy, 2012;
Pincus, 2002, Spets, 2012).
The longitudinal study performed by Pincus (2002) encapsulated mechanisms of resistance
against equality work in PIs in the most detail. In her dissertation, she investigated reasons
for the non-implementation of gender equality policy in three Swedish municipalities in the
course of fifteen years. Pincus (2002, p.180) defines non-implementation as “the exercise of
power through which barriers are created, which prevent, limit, slow down, or in other ways
obstruct the implementation of the government policy.” She uncovered various mechanisms
23
By the sum-of-individuals Henry (2010) refers to a critical mass of agents from institutions whose actions are
discriminatory against a certain group(s).
24
Although Pincus (2002), Lindholm (2012) and Spets (2012) discuss gender equality work inside PIs, I
broaden their observations to equality work in general, including bias on grounds other than gender.
35
public agents in leadership positions (referred to as status-quo keepers) used to obstruct the
institutionalization of equality policy (see chapter 5.1.4). Direct resistance (individual and
group) ranged from the undermining of the legitimacy of gender equality workers to their
harassment by public agents. Indirect forms of resistance included blocking access to
resources and co-opting control over gender equality policy initiatives, as in the case of the
tokenistic involvement of NGOs (see chapter 5.1.3). Sham-decisions, referred to by Pincus
(2002) as a method of obstruction by PIs that leads to compliance to avoid fines or improve a
PI’s image in media, could be matched with formalist decisions pointed to by participants in
the present research (see chapter 5.1.1). Although passivity and neglect were the most
common embodiments of resistance, she also identified cases where public agents, referred to
as change-seekers, actively promoted the institutionalization of equality policy.
Unfortunately, Pincus (2002) usually found change-seekers (in my understanding equivalent
to the term ‘enlightened individuals’ mentioned in chapter 5.1.3) disadvantaged in access to
power, authority, and influence in PIs, and their tasks instead handled by status-quo keepers.
The nature of her findings appeared to have been the closest related to results of my
interviews with research participants.
3.3.4 Relations between Public Institutions and Non-governmental
Organizations
Relations of governmental and non-governmental actors – particularly equality groups – were
a recurring topic in my interviews as a decisive variable for compliance with the equality
duty, and source of numerous struggles voiced by the research participants. It felt important
to look at these relationships vis-à-vis at least some existing theories. Surprisingly, according
to several researchers (Coston, 1998; Najam, 2000) the theorization of government-nonprofit
relations (especially the principles govern them) was quite weak during the 2000s and not
much seemed to have changed since (according to my very limited review). It seems then, the
application of these theories to my findings might elevate the significance of our research.
Coston (1998) developed a model which she thought could aid NGOs in the quick discerning
of the nature of relationships with particular PIs and selecting the right kind of relationship to
assert their goals within specific issues. She departs from the premise that NGOs can have
better relations with some PIs and worse with other. Sometimes even a less-cooperative
government regime incorporates PIs that are more cooperative, and NGOs can benefit from
working with them (see chapter 5.1.3). Among important variables on which relations
depended is the power asymmetry between PIs and NGOs, the level of formalization of their
relationship, and PIs’ acceptance of (or resistance to) institutional pluralism with NGOs as
active participants. PIs which accept institutional pluralism can reach relations with NGOs
that enhance their effectiveness and legitimacy, such as contracting (NGOs deliver services,
PIs bear responsibility), third party government (NGOs are third party implementers of
services and share responsibility with PIs which provide resources), cooperation (NGOs and
PIs share resources and information), complementarity (autonomous partners who genuinely
36
respect and complement each other in the delivery of qualitative different services, with
NGOs acting bottom-up as social experts and PIs acting top-down as professional experts) or
collaboration (NGOs and PIs are partners who actively act together and depend on each
other). In Coston’s (1998) view, collaboration is the most ideal relationship in terms of power
balance, and therefore the hardest to achieve. Although it requires the highest level of explicit
formalization, collaboration is also presupposed to yield the kind of policy-making that is
most responsive to people with disadvantage. Some participants’ experience echoed at most
the third party government relations, where NGOs both deliver services and bear a growing
share of responsibility, while the delivery of PIs’ share is unreliable (see chapter 5.1.4.1).
On the contrary, PIs which resist institutional pluralism degrade relations with NGOs to
competition (PIs see NGOs as unwanted critics and political competitors), rivalry (PIs
inhibiting the operations of NGOs, for example by obstructing NGOs access to resources, or
imposing bureaucratic bullying such as demanding excessive reporting from NGOs), and
repression (PIs outlawing NGOs) (see chapter 5.1.4.1). As rivals or competitors, NGOs are
perceived to be a threat to the power of PIs, challenging PIs’ control or even encouraging PIs’
subversion in public opinion (see chapter 5.1.3). Competitive relations are undesirable as they
obscure possible complementarities between PIs and NGOs that could lead to most efficient
and effective solutions. They adversely impact the well-being of individual HR holders and
equality groups. However, Coston (1998, p.366) observes competitive relations can be
repaired “when government accepts the institutional pluralism that NGOs represent.”
In Najam’s (2000) Four C’s Model of NGO-Government Relations (see Figure 2), the
character of relations is based on the agreement or disagreement of intended goals and means.
Only shared ends and means lead to cooperation between PIs and NGOs. When PIs and NGO
agree on goals, but differ on ways of attaining them, their relationship will be
complementary. If PIs use similar methods to NGOs yet oppose NGOs’ goals, their
relationship runs the risk of NGOs becoming manipulated and their actions co-opted by PIs.
Relations where PIs disagree with NGOs, on both goals and preferred strategies to achieve
them, result in confrontation. The last (fifth) possibility is non-engagement, which implies no
relationship between PIs and NGOs on a particular issue due to strategic or substantive
reasons. Non-engagement, however, does not concern the AD implementation, where PIs are
at least formal and NGOs are mostly practice-based stakeholders.
Goals (Ends)
Preferred strategies Similar
(Means)
Similar
Dissimilar
Cooperation
Co-optation
Dissimilar Complementarity Confrontation
Figure 2: The Four C’s of NGO – Government Relations
37
Najam (2000) asserts that even where PIs dominate over NGOs, the nature of their
relationship is determined by a strategic decision on both sides. For example, the same NGO
can have a cooperative relation with one PI and confrontational relation with another PI,
while a different NGO may have other relations with the same PIs. For instance, the present
research participants’ NGOs had varying relations with SNCHR or the Ministry of Justice.
Thereby, Najam’s model is not to be applied generally. Instead, it is aimed to help assess
relations of particular PIs and NGOs when dealing with a specific issue, the AD
implementation in the present case. Advocacy can be undertaken by NGOs under any form of
relationship with PIs, be it persuasive advocacy under cooperative relations, or activist
advocacy within confrontational relations (Najam, 2000), the latter type being more prevalent
in Slovakia.
A notion of relations I gathered from research participants occurred in dissimilarity quadrants
of Najam’s model. PIs and NGOs in Slovakia seemed to have mostly divergent goals. From
the perspective of Participant C, equality was not a consensual value recognized by PIs,
whose standpoint reflected that of the society (see chapter 5.1). On the contrary, NGOs
represented by research participants were promoters of equality. When NGOs opted for
similar means as PIs, their effort was frequently co-opted, such as the sudden exclusion of
NGOs from the consultation process at its very end. Therefore, PIs could make a final
decision without them (Participant B), or demands on subservience of an NGO partially
supported by PIs in the service-delivery (Participant J), as well as other instances of formalist
involvement of NGOs. Co-optation25 is the least stable state of PI–NGO relations, which
tends to quickly resolve by moving to one of the other three states, depending on the severity
of power asymmetry between PIs and NGOs (cooperation being the least likely alternative
judging from the experience of research participants). When NGOs were excluded from a
consultation process from the beginning, they turned to an international compliance body as
alternative means to influence AD discourse, for which PIs accused them of snitching abroad
(Participant B). PI–NGO relations were then to be located in the confrontation quadrant of
Najam’s model, differing on both means and ends.
Unless PIs agree with NGOs (if these stay uncompromising in their agenda) that equal access
to HR for all residents is the goal, I believe there remains little hope for sustained cooperation
or even complementarity among NGOs and PIs. In my interviews, cases of complementarity
could be spotted, although they rather resembled Young’s (2000) version of supplementary
relations where NGOs felt compelled to supply desired services to their target equality
groups, such as immigrants (Participant J) or Roma (Participant P), which were not provided
by PIs. PIs neither adequately interfered, nor supported NGO efforts with sufficient resources
as would be typical in the complementary model (Young, 2000). Some NGOs had
cooperative ties with “open-minded” individuals employed by PIs rather than with PIs
25
Najam (2000) asserts that the literature does not provide many examples of co-optation, in which case
participants broadened the spectrum with some significant observations.
38
themselves (Participant I). Adversarial relations where NGOs attempt to hold PIs accountable
for upholding the commitment to equality and changing their policies and practices, and
where PIs tried to curb the power of NGOs (Young, 2000) were nevertheless more common.
Najam (2000) underlines the importance of considering perspectives of NGOs as well as PIs
(which I did not analyze in the present degree report) for understanding of their relationship.
Examining the convergence or divergence of their evolving strategic interests in the
implementation of AD would certainly be a desirable topic of further research.
4
Methodology of the Present Research
In Chapter four I aim to provide an overview of the methodology used in our research with
CDA and my degree report to acquaint readers with procedures undertaken and limits
encountered. I attempt to reflect on my own struggles with both the report’s content and
form.
Months of study passed until I managed to satisfactorily locate my research endeavor among
recognized scientific traditions and methods. Their choice was shaped by several underlying
assumptions (Marshall and Rossman, 2011). Our research had an explicit political agenda (to
enhance the implementation of the right to non-discrimination), therefore it was critical in
nature. Its purpose was to be informative and useful to participants’ NGOs advocating for the
right to equality of their target group, as well as for a wider audience, particularly other such
NGOs and even PIs. Eventually, I can conclude I performed qualitative interview research
(Kvale and Brinkmann, 2009) with cross-sectional emancipation-driven design (Marshall and
Rossman, 2011).
My interviews with professionals from NGOs fit the definition of Kvale and Brinkmann
(2009, p.2) as “an inter-change of views between two persons conversing about a theme of
mutual interest.” Our theme was AD (non)implementation and (non)compliance with the
implementation requirement in Slovakia. Capturing participants’ perspectives on the
phenomena of discrimination and frail AD affecting the lives of their NGOs’ target groups
brought me closer to the phenomenological scientific tradition, where ”the important reality
is what people perceive it to be” (Kvale and Brinkmann, 2009, p.26). I did not intend to
judge or question the participants’ authentic experience. My mission was to embrace their
understanding of the phenomenon of PI non-compliance with AD requirements, find the
common essence, and thoroughly describe it. At the same time, I looked to grasp different
varieties and nuances in their accounts of non-compliance with the goal of gaining qualitative
(not quantitative) knowledge. I strived for staying open to new emerging phenomena
(mistreatment by PIs expressed by NGOs), as well as hints of contradiction in participants’
perception (as minimal as they were in this cohesive group).
39
Emancipatory purpose stated in the introductory chapter (1) of my degree report revolves
around participation as a feature that brings this study a step closer to the concept of PAR 26 as
“a form of research that generates knowledge claims for the express purpose of taking action
to promote social change and social analysis” (Greenwood and Levin, 1998, p. 6). Although
the inquiry I have undertaken resembled mostly a traditional way of doing research, PAR
methods could be traced to involving participants27 in formulating the research problem,
research questions and, to a very limited extend, analyzing the data 28). At the same time, the
third research question aimed to address the involvement of NGOs directly, by exploring how
participants imagine duty-bearers could be brought to the state of accountability for AD
(non)implementation and how their NGOs could be best involved in this process. If this
report proves to be useful to participants and their NGOs (in one way or another) when acting
on the compliance monitoring with the public sector’s equality duty, this usefulness may be
considered another trait of PAR, and perhaps a potential beginning of a PAR project to
empower NGOs further (Striger, 1996). Otherwise my hope is that our research and my
report will at least contribute to theorizing the implementation of AD as a proactive duty of
PIs, which in-itself is an empowering concept.
For the remainder of this chapter I will describe the methods used for data gathering and
analyzing, as well as ethical considerations. I will conclude by discussing methodological
shortcomings I incurred throughout the research process.
4.1 Data Collection Methods
Congruent with the method of PAR I determined the research problem and initial questions
contained in the interview guide (See Appendix 2) collaboratively with experts in CDA. The
data collection method was likewise chosen in consensus, as participants were recommended
by CDA and selected from its network of likeminded advocacy NGOs. Qualitative, face-toface, semi-structured interviews were employed with a purposive sampling run at two levels.
Firstly, we selected a sample of 23 NGOs (later reduced to 22) 29 based on the heterogeneity
of their target groups at risk of discrimination, reflecting a variety of discrimination grounds,
26
PAR as a term is more common in the US. Scandinavian countries rather avoid the use of the word
participatory as researchers there believe that participation is inherently a part of action research
(Greenwood, Whyte and Harkavy, 1993).
27
Participants are intently not called informants to underscore their participatory role in the research process and
their stake in its outcomes (Greenwood, Whyte and Harkavy, 1993).
28
One of the reasons for the restricted level of participation is that the present study is primarily a master degree
report which requires an independent formulation and production of text. I did however engage in
consultation with CDA which, in my opinion, enhanced my analytical insight in the research problem.
29
Interviews were originally conducted with 23 participants, however one of them was excluded prior to
processing because of the material produced by the participant did not seem entirely trustworthy. It was
considerably vague and revealing rather theoretical understanding than practical experience with the research
problem.
40
by which we hoped for higher applicability of the research in the HR field and wider
(although in qualitative research very limited) possibilities for its analytical generalization
(Kvale and Brinkmann, 2009) (see chapter 4.3). Secondly, our choice of particular persons
from NGOs was guided by the homogeneity of their interest in AD and experience in
carrying out advocacy activities, so that comparisons could be forged (Bryman, 2008).
Participants and NGOs had diverse profiles, which I try to summarize here using both
information from interviews (See Appendix 3) and their NGOs’ websites. There were 10
directors, 3 deputy directors and 9 program coordinators who participated. Of 22 NGOs 14
worked county-wide and 8 were regional. Some NGOs only had several people working for
them, although 4 of them were umbrella organization (together representing more than 220
member organizations). As all of these NGOs have embraced the intersectional perspective
(working with intersecting inequalities and multiple discrimination), cumulatively the most
prevalent target groups in their experience were people suffering from social problems such
as social exclusion, addictions, homelessness, poverty, HIV (10), women (10), Roma (9),
people 45+ (7), people 18– (6), migrants and refugees (6), people with disabilities (4),
LGBTQI people (3), and Muslim (1). In their work, all of the 22 NGOs utilized monitoring of
discrimination while one NGO (CDA) also applied AD compliance monitoring (see chapter
2.1.2). Most of NGOs reported on the situation of equality groups in their research reports
(14) and shadow reports (8) to the compliance enforcement agencies abroad (EU, EC and
UN). They were engaged in advocacy, both individual (14 NGOs represented or empowered
their members/service users in interaction with authorities) and structural (15 NGOs
advocated on behalf of their target group with the state, regional or local government), as
well as ran litigation activities (4 NGO pursued cases before courts and regulatory agencies).
Some NGOs were involved in services provision (counseling and addressing basic needs)
more often than advocacy (11). Many NGOs facilitated adult education for people at risk of
discrimination (17), public sector workers (9) and the public (7); and even elementary level
education (1). Some NGOs had experience with media communication (9), and a few pursued
a research as their main activity (3). All participants together hence represented considerably
diverse ‘research sample’.
Interviewing took place in the atmosphere of friendly dialogue and trust (Kvale and
Brinkmann, 2009). I had a sound rapport with participants most of which I knew personally
or at least knew of previously. My position as the researcher was further legitimized by
belonging to CDA’s team. Although our interaction during interviews was smooth and, at
least from my perspective, our shared commitment to social justice was almost instantly
clear, the building of relational knowledge was not central to my inquiry. I was interested in
the participants’ professional knowledge, which was not directly personal (see chapter 4.3).
At the moment of inquiry, I grew as a facilitator with more experience and increased my
grasp of AD from participants’ varying views and practical examples. I was somewhere in
the realm of Kvale and Brinkmann’s (2009) postmodern metaphor of a traveler constructing
maps of more and less known territories together with participants.
41
Some participants also indicated having experienced transformation over the course of the
interview that could be attributed to the process of PAR (Rasmussen, 2004). Several of them
mentioned they had never given such comprehensive thought to AD compliance monitoring
(Participant C). Others felt as if they could vent their emotions accumulated from society’s
resistance to their work in support of those who experience discrimination (Participant D),
invoking what Kvale and Brinkmann (2009) call the quasi-therapeutic aspect of interviewing.
Some were uncertain if some examples from their practice were cases of discrimination
(Participant T, V), and a few asked me to give them more information related to AD
(Participant I). Many participants were interested in the contributions of their colleagues from
other NGOs who had joined my inquiry, and even the fact of colleagues’ joining seemed to
feel empowering for them. Overall, it could be expected, as we mutually enhanced our
knowledge in conversation, that the level of our motivation for working on AD together
beyond the interviews has also increased (Striger, 1996).
I carried out the interviewing in one intense block days before the crucial parliamentary
election in 2012, which made participants both hopeful and skeptical about the future of their
AD work. I tried to list all interview questions in my interview guide. When participants
wanted to take control over which question to answer, or go on a tangent somewhat
associated with main topics, I would let them speak freely and later go over questions that
remained unaddressed. Interview time thus varied from thirty minutes to nearly two hours
depending on the participant’s communicativeness and willingness to ponder the topic. The
interview guide was divided into four sections. The introductory section contained
biographical questions about the role of a participant in an NGO and the NGO’s engagement
in AD. Forms of discrimination and how they are experienced by each NGO’s target group
comprised the second set of questions. The third section emanated from the recognition that
the prevention of discrimination is the responsibility of government as anchored in both
national and international legislation. Participants were asked about their perception of PIs’
compliance with their legal commitment to implement AD. The forth section was aimed at
facilitating participants’ deliberation on the methodology of AD compliance monitoring
regarded by CDA as a solution to persistent non-implementation of AD in Slovakia (see
Appendix 2 for a full version of the interview guide).
During interviews I strived to engage participants in a cooperative way and not behave
oppressively (Gilbert, 2008). Power differences between us appeared minimal as well as not
particularly significant, as the participants were used to public speaking regarding the same
type of issues, and because in most cases we had known prior to interviews that we belonged
to ‘the same field’ of HR renowned for its inclusiveness. Still, I tried to be mindful of my
potential power advantage as an interviewer.
42
4.2 Data Analysis Methods
In analyzing, I relied on an abductive process (Alversson and Sköldberg, 2000), moving back
and forth between my data and reviewing the literature for contextual information and
applicable theories. Coding was aimed at dissecting the host of complex issues and recreating
a mosaic of the equality situation, not at the quantifying of participant positions or testing
them on their knowledge. I coded in two cycles. For the first cycle of coding I used structural
coding which is considered appropriate for multiple participant studies, semi-structured
interviews, and interview transcripts (Saldana, 2009). For the second coding cycle, I utilized
conceptual categories and theoretical codes (Charmaz, 2006). Although I started my analysis
inductively, from interview data, I was constantly informed by theoretical preconceptions of
discrimination, AD, human rights as positive duties of the public sector, and my practical
insider’s knowledge of struggles with AD implementation in Slovakia. These preconceptions
were both my bias and my sensitizing concepts (Charmaz, 2006) to navigate the process.
At first, I coded each transcribed interview separately. I chose the initial coding method in an
attempt to pursue grounded theory (Charmaz, 2006), which was not appropriate in my
situation. My data sample was quite thick and highly structured due to many detailed
questions I posed rigorously following the interview guide. I also added more material by
asking spontaneous follow-up questions. I eventually dropped grounded theory and continued
more instinctively (see chapter 4.4). Coding line-by-line, I reduced nearly every statement to
its condensed meaning (Kvale and Brinkman, 2009) and translated it in English. It was my
first time coding, and I found abridging the data rather challenging. I gravitated toward
theming units of data, in other words labeling them with “an extended thematic statement
[phrase or sentence] rather than a shorter code” (Saldana, 2009, p.140). During this stage, I
tried to retain some interesting phrases and idioms used by participants, turning them into in
vivo codes (Charmaz, 2006), such as policies made from scratch, by which Participant C
described the pathological state of PIs resignation on policy making, or monitoring as a
boomerang circle, an analogy used by Participant A to portray the cyclical process of
monitoring. When I encountered an apt statement, I quoted an entire sentence verbatim. I also
noticed some recurring theories and interpretations (for example, equality not being a
consensual value of PIs and the public (Participant C)) participants used to explain events
around AD (non)implementation, some of which I developed in a later stage of my analysis
(complementing them with the literature review). Last but not least, I tried to be aware of
contrasting ideas among participants, such as the factor of governing structure being
hierarchical (Participant S) v. decentralized (Participant G).
As I progressed along the first coding cycle, I produced 22 sheets of coded text (one for each
participant). My next step was to concentrate all sheets them into an excel file with four
topical spreadsheets (participant profiles, discrimination, antidiscrimination and monitoring).
I performed structural coding (Saldana, 2009) by dividing each spreadsheet in categories to
which I fragmented the 22 original sheets. That meant applying a phrase (code frame) mostly
based on concept (coinciding with topics of inquiry used in the interview guide) or sometimes
43
content (such as Recommendations for PIs as a new category that emerged from data) to
similar segments of data coded line-by-line (Saldana, 2009). I moved chunks of initially
coded data under pre-defined categories in each of the four spreadsheets to get a more
wholesome picture of the participants’ accounts in comparison to one another. I remained in
this stage for some time and let my subconsciousness process patterns, repetitions, and
relationships emerging from that picture (Gilbert, 2008) while I was searching for relevant
links in literature and getting more ideas for code frames (a scheme of PIs’ duties and NGO –
PI relationship patterns where among those discovered). When moving codes, I was cautious
not to change their wording, so I could always track them with the “find” function across
different sheets I made. Consistent with abductive research process, my coding approach was
deductive (i.e., concept-driven in Kvale and Brinkman (2009) or coding-down in Gilbert
(2008)), as well as inductive (i.e., data-driven in Kvale and Brinkman (2009) or coding-up in
Gilbert (2008)). At the end of first cycle coding, I could see the distribution of codes with
condensed meanings in the structure that guided my inquiry. At this point, I had become quite
familiarized with the data and moved further in the literature review.
In the second coding cycle I created another excel file, again with the same three spreadsheets
(discrimination, antidiscrimination and monitoring). I filled each spreadsheet with conceptual
categories (Charmaz, 2006) and eventually divided these categories into clusters. Each cluster
received a theoretical code, for instance violations of the duty to protect in the topical
spreadsheet on discrimination or PIs’ self-defense strategies in the spreadsheet on
antidiscrimination. In both of them my coding process was rather data-driven. Regarding the
spreadsheet on monitoring, I kept ‘coding down’ guided by the same concepts (from the
interview guide) as in the first excel sheet, such as monitoring - a viable strategy for NGOs? I
created a code book containing code names and their definitions (usually grouped initial
codes, occasionally with explanation). Then, I refined categories adjusting the code
(involving NGOs in a tokenistic way) name with content (PIs often misusing ‘the Roma
problem’ for their own activities: “We are there - they pretend that they cooperate with us,
but we don’t know anything about it, we find out about it when it is already over – only pro
forma.” (Participant P). I attached this particular code to the PIs’ self-defense strategies (in
response to NGOs putting pressure on their accountability) theoretical code, which I could
connect, for instance, to the apposite theoretical construct of Four C’s Model of NGO –
Government Relations (Najam, 2000) where NGOs are co-opted by PIs if their goals differ
(equality v. racism), but not their means (joint project between a Roma NGO and
municipality).
Continuing with analyzing, I wrote a few analytic memos30 and looked in literature for
alternative interpretation of patterns emerging in my analysis (Marshall and Rossman,
30
Analytic and procedural notes to maintain the continuity of analysis show the trail of thinking and insights
throughout the process (Gilbert, 2008).
44
2011)31. I also occasionally consulted my findings with CDA, which was very helpful, though
it made me realize that I can barely surprise them with any of my observations. I learned a lot
about AD through the study preceding writing this degree report, but some people in CDA
have lived AD for many years and made their own intrinsic analytic “web of relationships”
(Gilbert, 2008).
Transforming the data into findings, I refined my analysis several times. I strived to ensure
that it is clear which idea was put forth by which participant, what my interpretation is, or
which theory I applied. I often selected (themed) initial codes with quotations to substantiate
my interpretations. An important feature of my interpretation is accounting for factors
prohibiting, inhibiting, and promoting change in the AD implementation (and AD compliance
monitoring as a change tool). I borrowed them from grounded action approach articulated by
Simmons and Gregory (2003). Although the authors used these constructs as a continuation
of their grounded theories (which I did not use), I deem them very useful for research
oriented to action, and thus significant for practice (Marshall and Rossman, 2011).
Finally, some of my analytical concepts were embedded in the literature review. I constructed
a scheme of duties (DBA) as the conceptual base for AD compliance monitoring. Though
rather complementary to my data analysis, this concept, in my opinion, has contributed to the
theoretical expansion of state’s accountability for the fulfillment of rights.
4.3 Ethical Considerations
In this section I discuss ethical aspects and validity of the present research, my own
situatedness in it and my ethical obligations towards participants. Due to my ongoing
involvement in CDA’s AD activities, I was not entirely impartial in the inquiry. Rather than
feeling indifferent towards research participants, I made the utmost effort to adopt the
approach of conscious partiality (Gilbert, 2008). This meant taking sides with participants on
equality issues, while reducing my affiliation bias by continuous self-reflection. The way I
choose to understand self-reflection is by exercising the ‘interpretation of interpretation’
(Alvesson and Sköldberg, 2008). I acknowledge that as much as anyone, I am not immune to
subjective interpretations and cannot talk from a position outside of a discourse (Marshall and
Rossman, 2010). In other words I realize when I make references to empirical data that these
are interpretations of my own pre-understanding of the data, and I try to reflect on my
potential biases.
I am also aware of my identities (a white middle class able-bodied women; atheist, with
egalitarian worldviews) and that they can be both subjected to discrimination or used to
31
I also made several graphic maps of code relationships to aid my analyzing, but chose not to include them in
this report (besides the graphic conceptualizing AD compliance monitoring in Chapter 6.1.2).
45
oppress. My identities give me the notion of having a personal stake in the matter of inquiry,
as well as sensitize me to the experience of the research participants (Marshall and Rossman,
2010). I felt that my positionality allowed for reaching mutual understanding between me and
the participants in our commitment to social justice, and promoted the transactional validity
(Kvale and Brinkmann, 2009) of the current research. For all my reflective intentions, ‘going
native’ remained one of my greatest challenges throughout the research process. It was
difficult to not “interpret everything from [my] participants’ perspectives” (Kvale and
Brinkmann, 2009, p.75) given my professional background of an HR advocate and PAR
elements in the research design. For instance, Stringer (1996) considers the emphasis on
objectivity, validation, and generalization over-rated by positivist scientists and argues for a
collaborative exploration of problems and solutions by participants in PAR with the shared
experience of context. If this exploration motivates participants to improve their work, the
research gains pragmatic validity (Kvale and Brinkmann, 2009). Moreover, I believe I
managed to confirm the reliability of my data by its cross-checking, or methodological
triangulation (Bryman, 2003) with literature independent of the one produced by NGOs, both
national (Kotvanová, 2012; Úrad vlády Slovenskej republiky, sekcia ľudských práv
a rovnakého zaobchádzania, 2011) and international (Falkner, 2010; Krizsan and Zentai,
2012).
Although valid, I (devoted to the post-modern scientific tradition) do not think knowledge
from my interviews could be de-contextualized, i.e., separated from its context (for instance,
the account of situation in 2012, in Slovakia, within CEEC, as experienced by HR advocates
from NGOs and interpreted by me, the researcher with the same HR background), and
universally generalized to other cases of AD non-implementation. Having said that, our
research sample selection with CDA (as described in chapter 4.1) did presuppose some
possibilities for analytical generalization when we accounted for similarities (HR advocates)
and differences (different equality groups) of the chosen cases (Kvale and Brinkmann, 2009).
Patterns (of PI attitude and behavior) discovered when the data was contextualized within
existing theories could be generalized to a limited extent to the situation of other NGOs
currently advocating on behalf of equality groups in the Slovak institutional setting, or
possibly, based on Krizsan and Zentai’s (2012) elucidation, elsewhere in CEEC.
I provided for ethical obligations towards research participants by ensuring the confidentiality
and anonymity of their accounts. All participants were informed regarding the terms of their
participation and intended use of the interview material, and signed the informed consent. As
I indicated in chapter 4.1 on data collection methods, my primary interest was in the
professional knowledge of participants rather than their personal struggles. Even though
many of the participants experienced discriminatory treatment first-hand, they could choose
to speak as advocates of the entire equality group which was also promoted by the general
language of the interview guide. One specific threat to anonymity was that some of the
participants who regularly appear in the media or work closely with the government might be
recognized. Therefore, I did not include any personally sensitive remarks, or data that
participants asked me to withhold.
46
All 22 participants appear in the study labeled by letters A-X. For the sake of transparency, I
add that in the analysis some letters (A-K) are over-represented while other letters (L-X)
appear more sporadically. This is because I chose to assign A-K numbers first to interviews
that seemed to have the most relevant content and represent the highest diversity in terms of
discrimination grounds. I used the reduced sample for a more condensed analysis in a
conference article. However, it was not my intention to exclude accounts of the rest of
participants completely. I believe their contribution was vast in detailing contours of
problems which emerged in my initial analysis; hence, my current analysis was made more
focused and convincing. Regarding transparency in writing, I decided to distinguish between
me as the author of this degree report (“my report”) and us as collaborators on this research
(“our research”) to acknowledge the PAR element of research planning stage together with
CDA.
All interviews were digitally recorded and archived in a safe non-public place to satisfy the
criterion of confidentiality. I shared the raw and partially analyzed data with CDA as we
agreed with participants (indicated also in the informed consent). I did not work with raw
data but my transcriptions and translations of them. I transcribed nearly everything. Parts and
snippets of which I felt confident would make powerful quotes were transcribed literally.
Other sections were captured in slightly reduced language due to the large portion of
interview material I had to process. My objective was not to analyze linguistic patterns in our
conversations or its form, but its content which I treated as a topic (not a resource). I
translated participants’ statements from Slovak (source) to English (target), a language in
which I am fluent (Marshall and Rossman, 2010). In the initial stage of coding, I used
translation into English to reduce chunks of text into codes, trying to stick as close to the
original meaning as I could. I also translated some transcribed quotes. Eventually, I had my
choice of quoted text and its translation validated by most of the participants (20/22), as I said
I would in the informed consent form. I can only hope I did not misrepresent the rest (2/22) in
any major way.
In the spirit of PAR I shared this degree report with the research participants and made
several corrections suggested by them. The fact that they are practitioners whose actions
confirm their statements add to the pragmatic validity (Kvale and Brinkman, 2009) of my
findings, which could increase, should participants find these findings useful in their change
work (which was my hope all along the research process).
4.4 Challenges and Failings
At this point, I would like to discuss the challenges and failings that accompanied my
interview and analytic process.
Doing all interviews at once had both benefits and pitfalls. On one hand, I was able to
maintain continuity from one interview to another. I could follow up with more informed
47
questions, or inquire deeper into recurring themes, such as weakness of the institutional
apparatus responsible for AD or PI response to pressure for AD implementation put on them
by NGOs. On the other hand, I did not have the capacity to formulate analysis simultaneously
to the interview process other than in my mind, although I may have certainly benefited from
a more abductive process already at this stage. If I had spread interviews over a longer period
of time and wrote more memos, matching emergent themes with existing theories, a deeper,
more focused analysis may have been possible. Another shortcoming of my interviewing was
not letting participants acquaint themselves with my interview guide. It was quite
compressive and therefore intimidating ‘at first sight’ to many participants. It would have
been more participatory to have a less structured guide and share it with participants
beforehand.
It would not be accurate to call this research a full-blown PAR (Stringer, 1996). It had its
PAR elements initially (see chapter 4), but overall I failed to involve the participants in most
of its course, including the data analysis and formulation of DBA and AD compliance
monitoring (though their ideas were influenced me in concentrating on ‘duties’). I also
protracted the work on my report and meanwhile did not keep in contact with most of the
participants. I did not seek their feedback on the whole thesis in a timely manner, nor did I
enable them to validate my interpretation of their chosen accounts and quotes until three
years later. I consider this a major flaw in my research process and degree report.
My great dilemma was inherent in the design to aspire to some form of PAR. Should I focus
on making my report emanate scientific rigor or make it first and foremost useful for
practitioners (my inclination from the beginning)? I read about the inferiority of PAR in the
system of research methods still dominated by positivism (Stringer, 2006; Gilbert, 2008). I
personally disagree and consider PAR one of the better ways of doing research because it
actively responds to real needs with the aim of addressing them, and does not shy away from
modifying theories that are outdated (instead of forcing data to match them as traditional
positivists tend to do), truthful to the observation that “nothing is as practical as a good
theory” (in Greenwood and Levin, 1998, p.19). Similar to PAR researchers (Stringer, 1996), I
too hoped for something to actually happen as a result of our inquiry. Yet, I was not prepared
to commit to participation. I struggled with feeling full ownership of the topic (CDA’s idea)
until well into my analytic process. I also was not versed enough in research methods as this
project revealed to me. For instance, I initially confused the methodology of my research
with the methodology of the AD compliance monitoring I was asked to research. Without
moving beyond this meta-level, I could not advance.
To make matters worse, I chose the wrong research method. Grounded theory (Charmaz,
2006) and grounded action (Simmons and Gregory, 2003) impressed me for their actionorientation. I learned about them and wanted to apply them already after I collected the data.
That was a bad choice because I gathered the data using semi-structured (not non-structured)
interviews and chose participants via purposeful sampling (not theoretical sampling). As a
result, this analytical method clashed with the original design, making it too time consuming
to code the large data sample. Moreover, the data was already structured in a rather deductive
48
(pre-determined) form, so generating new theories (inductively) was not reasonable. Perhaps
because of the overwhelming data sample, I found it difficult to code similar segments of data
consistently, instead of inadvertently inventing new codes and duplicating categories. Codes
depended on what I wanted to emphasize in a particular statement and the choices varied,
comparable to possibilities one has when organizing domino bricks. Consequently, some
categories were too particular (with only one code in) and some too vague (with a mixture of
ill-matched codes). I also wanted to keep some initial codes together to not lose context.
Instead, I often lost myself in an enormous set of detailed and diverse information (with
overlapping codes). “Building a pyramid from small bricks, instead of large blocks would be
a fitting depiction”, I wrote in my memo. Regarding memoing, I underestimated its
importance until an advanced stage of analysis. By more frequent noting of my analytic ideas,
I could have had a deeper insight earlier and formulated my thoughts more eloquently in
writing.
The longer time I had, the easier and harder it became to delimit my report. I balanced
between having enough time to familiarize myself with the subject (I ventured on exploring
out of CDA’s impulse) and knowing what I am searching, while having too much time to
expand my search in many different directions. Theoretical considerations, after all, cannot
ever be fully exhaustive. It is an exhausting and lengthy process to find the most fitting
theories (and usually only parts of them are ‘practical enough’ to be adapted). My
inexperience and high ambition prevented me from having a clear judgment on what exceeds
the scope of my report. In the time that lapsed since the interviews, my theoretical
understanding (and ability to express it) deepened considerably, however the primary data
has grown significantly outdated. Thus, I failed the criterion of feasibility (Marshall and
Rossman, 2010). Nevertheless, judging from current developments in Slovakia and own
experience, my prediction is, that even though some issues, institutions, and individuals
changed, they did not change dramatically. Therefore, I believe the patterns I analyzed, and
suggestion for their resolution I discussed, are still mostly valid.
5
Findings and Analysis
Chapter five is dedicated to my findings and analysis of data from interviews with HR
advocates and social workers from NGOs. I focus on organizing their experience according to
conceptual frames outlined in chapters two and three. First, I examine reasons and
consequences of PIs’ long-term inability to implement AD and how it affects equality groups,
through the eyes of their representatives. Second, I provide an analytical description of our
deliberation with participants on the potential methodology of AD compliance monitoring
and possibilities of NGO to participate in monitoring.
49
5.1 Reasons and Consequences of the Failure of Public
Institutions to Implement Anti-discrimination
In order to facilitate organizational (double-loop) learning, it is crucial to overcome
organizational defenses by looking at their underlying causes (Argyris, 1990) (see chapter
6.1.1). My first research question thus revolved around explaining why AD measures (such as
policies) and practices are not sufficiently implemented by PIs. Participants elaborated on
several possible reasons leading to consequences, such as those described in following subchapters, namely PIs lacking capacities and capabilities for AD, not complying with different
aspects of their equality duty, not sufficiently involving groups at risk of discrimination, and
not properly responding to bottom-up and top-down pressures on their compliance. The likely
essence of the problem causing the low compliance of PIs could be (congruent with Falkner’s
theory of dead letters) well-epitomized in a statement of Participant C:
The main problem of antidiscrimination is that antidiscrimination is not a consensual
value of this society, and it was not accepted as an expression of the will to fight
against discrimination and effort for more equality or equality in practice, but it was
imposed by the European Commission. Monitoring is point B after point A, to accept
that discrimination is a problem and we do not want it.
In this view, PIs might merely reflect immature public opinion, not ready to embrace equality
as a core value, despite the pressure from the EU (C, D). The unpreparedness could be
compounded by several factors, that Falkner (2010) specifies as political, cultural, and
administrative. Among political factors that might have contributed is the near absence of HR
education across the board (A, B, E, O), information-spreading and awareness-raising (I, L),
as well as empathy and mutual respect development (O). Furthermore, critical thinking is not
encouraged, for instance in legal professionals who are not able to deconstruct the purpose of
a law and apply legal positivism instead (A). The educational reform has been stagnant since
2001 (O) and the sector of education remains undervalued and under-resourced (N). Since
PIs’ are run by (white) men (O) whose politics is tailored to a middle-class-hetero-normative
majority, AD is not prioritized, but rather represents a scarecrow (M), as for example,
‘feminist’ is perceived as a negative label (O). Corruption seems to be a strong political (as
well as cultural) factor in the background of failing implementation of AD, from judges who
obtained their mandate in dishonest ways (A) to city officials misusing equality groups for
corrupt goals (P). Corruption might be so ingrained in the structure of PIs, that junior officials
experience peer pressure from their senior colleagues to engage in it (I). In accordance with
Falkner (2010), participant B summarized: “[w]e can set some rules, but then we do not
respect them”(B).
Cultural factors could be still formed by the post-communist legacy with PIs characterized as
paternalist, hierarchical, and little reforming (C). The culture of authoritarian lead and
humiliation (I) instills fear and passivity in people (I, O). PIs are often not focused on a
service user, but rather their own self-reproduction (C), with formal (bureaucratic) processing
50
of tasks without human interest (X). People tend to not complain about violations of their
rights, thus PIs and their agents do not have much incentive to change their behavior (I)–
likely a convenient prospect for PIs (O). Discriminatory traditions, such as violence against
women still celebrated during Easter (O), are also manifestations of the culture of equality.
One administrative factor that may be underlying the failure to implement AD is
inefficiency. Participant T gave an example of court decisions which can almost always be
attacked due to material or procedural errors (T).
In the following sub-chapters I analyze the consequences of the ‘unpreparedness’ of PIs
(affirmed by the public) which, in the participants experience, act as inhibiting, or even
prohibiting factors (Simmons and Gregory, 2003) in the process of AD implementation.
5.1.1 Lacking Capacities and Capabilities for Anti-Discrimination
Research participants identified many incapacities and incapabilities of public officials and
institutions preventing them from implementing AD. I chose to classify incapacities as
lacking resources (human and non-human), while incapabilities would mainly entail the lack
of competences (personal and institutional).
5.1.1.1
Incapacities of public institutions
In human resources, participants held that PI capacity was reduced by an insufficient number
of public officials (B, N, O) specialized and competent in AD (A, D, P) and appointed to be
in charge of AD implementation (M, O). Scarce staff was detected by participants both in
departments devoted to addressing HR agenda such as the Department of HR at the Office of
the Government noted by Participant B, and at large in state (such as ministries), regional,
and local PIs as well as other publically-funded institutions such as schools (O). Public
officials in those PIs had to deal with overwhelming numbers of service users (I), and were
commonly overloaded by ‘bureaucratic labor‘ irrelevant to AD (A, E, D, M), which did not
leave them either room for managing individual cases of service users from equality groups
(X) or coordinate AD implementation activities (A).
Paucity of non-human resources was most felt as financial incapacity (N, O), although
Participant P implied that the availability of financial means at PI disposal could be hard to
determine. Participant X voiced a concern that PIs may be slow to approach systemic steps in
AD because of the expense for the state budget they would require: “We often encounter the
response, ‘we don’t have money for systemic measures’”. She suggested however, that if the
budget was re-evaluated, for instance using the OPERA framework I presented earlier (see
p.26), “it would become obvious, that no extra finances are needed. On the contrary, we
could even save finances.” Participant V’s argument spoke to this assessment when she
claimed that had the Ministry of Health not reduced the budget on quality medication for
people with mental disorders, they could have been treated in out-patient rather than inpatient facilities, allowing them to stay more healthy, active, and in touch with their family,
51
which would have cost a lot less in a long run. Participant I offered that if PIs wanted to boost
their body of qualified workers, they could employ recent graduates and have them trained
for AD work for which, Participant I hypothesized, a grant could likely be obtained from EU
funds.
On the whole, where resources might be sufficient, many participants (A, D, I, E, U, X)
believed they were not properly allocated to serve purposes of AD. PI arguments regarding
the lack of resources were found by participants to be excuses covering the fact that resources
were used inefficiently (U) and wasted on less meaningful causes (I), such as overbureaucratization (D, E, M). Some participants made a strong case for the wish ‘to stay in
existence’ to be the primary motivation of PIs (L, P, T, V), for which they needed to formally
maintain service producers (themselves), service receivers (often from groups at risk of
discrimination), finances, and productivity. In the examples that follow, these claims do not
seem too far-fetched. Participant P had a deputy headmaster of a school openly admitting to
her that one of the reasons why the school keeps special classrooms (mostly filled with Roma
students) is to have more teaching positions to employ teachers. Participant T whose NGO
was able to reduce the number of detained immigrants from 150 to 5 by the means of legal
advocacy insinuated that a number of the 80 policemen who worked there complained to their
NGO that “in a moment we will be closed, because your project is so successful that these
people are released from our facility.” If the system was to work efficiently it should flexibly
redistribute resources, so for instance the policemen could be relocated to another facility that
provides services for immigrants (T).
Addressing formalism in the area of equality data collection, Participant V gave an example
of a PI generating statistical data on the number of hospitalized persons to showcase their
productivity, but not on the number of people placed in ‘net beds’–cradles designed to
confine people experiencing an acute outbreak of mental disorder. Net beds are suspected to
often be misused by medical staff to lock people away when the staff cannot attend to them,
thus the data on their usage would be actually useful in patient advocacy.
5.1.1.2
In-capabilities of public institutions
In regards to incapabilities due to incompetence on a personal level, participants emphasized
that in their experience, public officials were not properly trained for interaction and
communication with citizens in general (C, P). Importantly, officials were not sensitized to
the inequality issues faced by individuals and groups at risk of discrimination (E, F, I, S). For
instance, Participant E mentioned an employee of the Gender Equality Department who
signed up for a workshop on gender equality organized by an NGO, saying she would “really
like to learn something”. Participant S tellingly summarized that she “cannot imagine how
people from public institutions, who have never been trained or no one has worked with them
intensively, could even detect discrimination, not to mention resolve it.” Public officials
seemed to lack the education and training that would help them develop knowledge and skills
not only helpful in deciding cases of discrimination (D, S), but also in AD policy making and
52
implementation (A, B). As put by Participant A “It is quite demanding to make policies in the
area of antidiscrimination when they [public officials] do not know either what policies are
or what antidiscrimination is”.
Owing to professional knowledge gaps encountered by participants, officials often
misconceived that AD did not fall under the ambit of their competence (such as the previous
Ombudsperson, in the example of Participant S, who perceived his role as promotional, rather
than executive), or they could not use their competence effectively (U), which then reflected
in poor quality of their work (E). Public officials however, should have the capability to be
trained in AD, just as they have it when they are trained in other areas, as these are the
matters of ‘common sense’, in the opinion of Participant G. In his example a person working
in the Building Office should be expected to know the barrier-free approach to building as an
expert on construction. Participant F also noted that training a group of people does not
require massive resources. Yet, PIs did not seem to pay attention to educating and training
their officials (P) and they did not appear to require them to have AD knowledge and skills,
neither in universities nor in public administration positions (A).
Regarding competences on an institutional level, participants referred to legal barriers to AD,
such as the lack of competences in sanctioning discrimination. For example, SNCHR as the
NHRI (D) (see chapter 2.1.1) or labor inspectorates, as agencies investing the enforcement of
ADA upon their own initiative (before they receive a discrimination complaint), so called ‘ex
officio’ (A), lack a legal mandate to sanction. Furthermore, the institutional apparatus
entrusted with HR work was founded after intense lobbying from NGOs and did exist at the
time of my interviews. However, it was endowed with weak competences. The Deputy Prime
Minister for Human Rights and National Minorities had lesser competences than a minister
(O) and the Government Council for Human Right and National Minorities had only advisory
competences not binding to the government (B). In the experience of Participant B, both of
the mentioned PIs were established in a formalist fashion and not taken seriously by other
PIs: “…from the Deputy I know that they regard him as a joke, that human rights and antidiscrimination are some adjunct with which no one occupies themselves”.
Shortcomings were apparent in the capabilities of PIs to develop methodologies for AD
implementation (B). AD task-handling was perceived extreme by Participant J, as either an
unwanted hot potato tossed among PIs, or unrealistically over-sought, taking over tasks
pertaining to other PIs. To illustrate this, Participant C recalled a significant portion of
formalism at the creation of an action plan on the ND of Roma to which PIs fit one task after
another without allocating adequate finances for their implementation. The inability of PIs to
communicate and coordinate AD activities both inside their institutions and among them, as
well as steer AD in relation to the public (A), was seen as another obstacle to the prevention
of discrimination. Such was demonstrated in the case of immigrants who could access
healthcare and the job market legally, yet for five years, the NGO of Participant J (instead of
competent PIs, i.e., Ministry of interior, Migration Office and Ministry of Health) had to
spread the message to doctors and private employers about the possibility of treating and
employing these immigrants. If the issue was to conserve resources, Participant J proposed, it
53
would be less time consuming and more efficient to inform these organizations in a resolution
delivered to them by PIs, than having an NGO informing them individually after these
immigrants had already been denied access.
5.1.2 Unsatisfactory Compliance with the Equality Duty
Research participants mentioned a considerable number of issues regarding the compliance,
or lack thereof, of PIs with their equality duty. Although many cases of discrimination by
private actors experienced by equality groups were also mentioned in the course of
interviewing, I did not analyze those. That is partly due to not having enough room, but
mainly because the equality duty first and foremost rests with PIs, which are accountable for
bringing all actors including themselves to compliance (Fredman and Spencer, 2006). The
prime focus of my inquiry is thereby on them and on the systematization of their behavior
related to AD. In order to extract these examples, I used pre-coded categories (based on my
scheme of duties in Appendix 1). I interpreted incidents of non-compliance as either counteraction or inaction. Compliance for me meant pro-action on AD.
5.1.2.1
Violations of the Duty to Respect: Anti-Discrimination Counter-action
Participants pointed to many examples of wrong-doing countering AD on part of PIs and
their agents, which violated their duty to respect by acting discriminatory in the role of
service provider (P), law and policy-maker (C), law and policy enforcer (D) and employer
(A). In the participants’ experience, some measures PIs took motivated by prejudice resulted
in both direct and indirect discrimination, harassment, and victimization. One of the
participants felt that all PIs in Slovakia more or less perpetrated discrimination (B).
Participants recalled numerous occasions on which PIs and their agents engaged in direct
discrimination of persons from equality groups in access to their rights. HIV positive people
were denied treatment by medical centers (I), women with children undergoing treatment
from drug addiction were denied admission to shelters (I), the Muslim community was denied
the possibility to build the Islamic cultural center by the city council (K), people with mental
disorders were denied the opportunity to have individual study plan by schools (V), people
with disabilities were denied compensation for disability aids (G), LGBT people were denied
the right to a legally-recognized partnership and inheritance rights (U), transgender people
were denied the reproductive right to not be sterilized upon changing gender (F), refugees
were denied the right to freedom of movement (T), and persons with subsidiary protection
were denied the right to work (J), to mention only some cases. Directly discriminatory
practices tend to take the shape of intentional individual, and sometimes institutional, bias
(Henry, 2010).
Indirect discrimination has been hidden in seemingly neutral legislation or policy measures
taken by PIs which, in reality, have been constructed to create an unequal situation for certain
groups. Examples included social security legislation promoting that women on maternity
54
leave could not simultaneously have a paid job (A), the law on disability compensation only
guaranteeing the compensation if the extent of functional damage is 50%, while in reality a
person might be older and suffer from two or more dysfunctions amounting to 49% and not
receive compensation (X), the law on material needs disproportionately lowering benefits for
Roma in poor settlements (C), and the education policy relegating Roma children to special
classrooms (D). This type of institutional bias would often be interpreted by participants as
intentional, sometimes unintentional (Henry, 2010).
Frequently backed by discriminatory legislation or policy, PIs have discriminated also in their
decision-making (A). This was evident in the case of assessment commissions which were
designated incommensurate power over the lives of people with disability by the law on
monetary contributions and compensation of severe disability. Assessment commissions were
too often composed of persons unsuited to make a decision (underpaid doctors without
attestation working part-time) who decided solely on the basis of a medical record from the
doctor of a person with disability, while that person was initially not even allowed to come to
the hearing of his or her own case. Later, he or she would still have to file an official request
to be invited to the hearing (X, V). In another case, labor offices had a secret internal
directive to label Roma job seekers in their registry with the letter ‘C’ for cigán (equivalent to
‘G‘ for gypsy) to warn potential employers, resulting in Roma people not being hired, even if
educated and fully qualified for the job (P).
Participants noted cases of secondary victimization in which those who rose up against being
discriminated experienced retaliation by PIs (A), such as women facing intimate partner
violence being subsequently punished by labor offices or social departments when they seek
their services (B). NGOs, where people at risk of discrimination are frequently associated,
could also be subjected to victimization. For instance, after the Pride Parade 2010 ended, the
NGO of Participant E received a fine for littering from a municipality following their protests
against the withdrawal of protection from neo-Nazis by the police. Instead of sanctioning
neo-Nazis, PIs retaliated to the LGBT organizers of the Pride Parade (Participant E said the
fine was later retracted).
The way in which PIs interact with the public seemed to bare several discrimination patterns.
Disrespectful behavior in participants’ accounts featured in interaction on the interpersonal
level. In contact with public officials, for instance from courts, municipal offices, labor
offices, hospitals and the police, service users from some equality groups were treated worse
than the rest of the population. Roma (C, P), drug abusers and sex workers (I), Muslims or
immigrants (C, K) were addressed in an undignified manner both verbally (informal, rude,
and arrogant language) and in attitude (voice raised at them, ignoring them, or having them
wait). These equality groups were confronted with stereotypes and the prejudice of officials.
They were not informed by officials adequately (presumed to already have been given
information), for example about their legal entitlements which were subsequently not fulfilled
(A, C, I, K, P). As to other forms of discriminatory behavior committed by state agents,
participants had knowledge about cases of harassment of Roma by the police (D) or sexual
harassment of women by public employers (B). In interaction on the institutional level,
55
participants mentioned PIs imposed physical barriers that prevented service users from
equality groups from accessing public services. For example, people with disabilities and
children in strollers were denied the access to public buildings (A, X). People with visual
impairments had difficulties in accessing the websites of public service provides (e.g., media
and universities) which were not made legible for their translation software (G).
Discrimination in language has not been uncommon and included instigation to
discrimination. Representatives of PIs produced a wide range of inappropriate language from
politically incorrect terms like ‘the handicapped’ instead of ‘people with disability’ (X) to
outright discriminatory talk that left Participant B flabbergasted when she attended
parliamentary sessions of the Committee for Healthcare, where “members of Parliament
directly in their speeches give such discriminatory statements that one is just stunned and
suddenly does not know if they found themselves really in the parliament or in some pigsty,
from sexist statements to racist ones”. Instigation to discrimination forbidden under ADA is
also closely connected with language. Participant O recollected the case in which one of the
ruling political parties at the time tried to instigate racial discrimination during an election
campaign with the slogan ‘How long will we be paying for gypsies?’ without incurring a
penalty. PIs discriminated against women with language when they did not address them and
effectively made them invisible by using ‘generic masculinum’ (male gender as a norm) in
the wording of laws, forms, ballots, and other official documents, claimed some of the
participants (N, O). By not applying gender-sensitive language, PIs signaled to women (and
other genders) that they were not equally important. This could have likely translated into
how staff in PIs and the public then thought of gender equality (N). According to Participant
E, even the Government Council for Human Rights, National Minorities, and Gender
Equality has not composed a single document in gender correct language: “That bothers me
quite a bit, as if the teacher of the Slovak language makes grammatical errors”(Participant
E).
PIs as employers seemed no strangers to committing discrimination directly on their premises
and to their employees. Participants believed PIs should make role models for private actors
and be the first ones to employ a diverse workforce (C). Instead, not only are their employee
profiles not diverse (L), but they also perpetrate discrimination in the same manner as private
entities by dismissing pregnant women, maintaining the gender pay gap, and harassing and
mobbing their employees (A). Discrimination is supported by PIs not monitoring internally
and thus not knowing the structure of their employee and service user body regarding
characteristics that could lead to unequal treatment (A, C). When a PI’s workforce was
diverse (in the knowledge of some participants), data about it was neither collected nor
shared, so it could not have been used as an example to pressure private employers to follow
suit (C, L). The PI’s failure to monitor, however, is an example of inaction on positive duties
to protect and fulfill which are discussed further on.
5.1.2.2
Violations of the Duty to Protect: Inaction on Eliminating Existing
Discrimination
56
Participants recounted different instances of PIs failing on the duty to protect equality groups.
One form of such failure was by not reacting upon the revelation of their discrimination.
Events experienced by the NGO of Participant E around organizing the first LGBT Rainbow
Pride Parade in 2010, which I (the author of this degree report) personally attended, were a
chilling demonstration of a deliberate state’s resignation on protection. Although the NGO
informed a competent PI of organizing the parade months ahead, instead of protecting its
participants, the police tried to dissuade them from participating by claiming it is too
dangerous to join the parade, since the police could not protect them from a large group of
neo-Nazis gathering around the venue. I was there to witness neo-Nazis setting off a pepper
spray bomb and throwing a stone towards a speaker at the podium who happen to be a
member of the EU parliament. Yet, the Minister of Interior later sent the NGO a message
stating that the NGO should have hired private bodyguards for protection (E). PIs did not
significantly investigate, intervene, nor protect from discrimination by public and private
actors other equality groups, such as older people (H), immigrants and refugees (J), or Roma
(O, S). Special classrooms filled with Roma children stayed in existence despite a myriad of
complaints from NGOs to various PIs (P).
When PIs learned about discrimination they, in participants’ experience, seldom punished its
perpetrators by imposing sanctions on them (H, K, O). On one hand, participants referred to
the PIs’ limited competences (D) and mechanisms (B) to sanction. On the other hand, PIs
would not use sanctions they had at hand, as in the example given by Participant (G). The
Building Office did not use its competence (bestowed to it by the Decree on Technical
Conditions of Buildings for Persons with Limited Mobility and Orientation) to not pronounce
a building finished unless it meets criteria of accessibility for people with disabilities. Relying
on the same law, the NGO was able to withhold the approval of at least three buildings.
However, the NGO was not able to bring private investors to pay a fine without the backing
from PIs. In addition, PIs have not sanctioned their own agents for committing discrimination
(B).
Lastly, PIs appeared to not remedy those who were discriminated against. In a segregation
case when a wall was built between Roma and non-Roma part of a town, SNCHR intervened
by issuing a rejecting statement, but then did not follow up with further action to resolve and
remedy discrimination against Roma (O). Participant C, an advocate for the HR of ethnic
minorities, submitted an example of PIs not apologizing, or condemning attacks on Roma
children in their neighborhood, by at least consciously stating “Yes, there is a serious
problem with discrimination in Slovakia…, we are going to look for a solution.”(C).
5.1.2.3
Violations of the Duty to Protect: Inaction on Preventing Future
Discrimination
Another form of PI inaction on the duty to protect includes not preventing discrimination
from happening in first place. For instance, PIs have acted without prior impact assessment in
policy or decision-making. Participants described instances in which PIs drafted laws and
57
policies while they did not communicate and discuss their impact with the potentially
affected equality groups (A, X). Participant N illustrated the issue on the case of anti-crisis
measures adopted by the government, which targeted areas where mostly men worked, such
as the automobile industry. PIs omitted assessing the impact of the economic crisis on
education, healthcare, and other feminized sectors where women faced heightened
discrimination due to greater competition for jobs and worsening employment conditions (N).
Creators of these short-lived measures had neither considered the impact on disadvantaged
groups before their adoption, nor did they propose any corrections to make them more
inclusive during the implementation (N). Decision-making without prior impact assessment
was evident in the case of SNCHR, which promoted mediation in discrimination cases
instead of filing suit with a court. Mediation is, as some participants hold (A, D),
counterproductive between parties in an asymmetrical power relationship. Had SNCHR
assessed its potentially harmful effect on a complainant (e.g., affirming the dominance of one
who discriminates in the situation and re-traumatizing one who suffered discrimination) they
would have known not to opt for mediation.
PIs with a mandate to act ex officio, on their own initiative before receiving a complaint of
discrimination, have refrained from preventing the discrimination of certain vulnerable
groups. For instance, the police did not take the initiative to uncover possible cases of gender
(A), sexual orientation (U), and racial-based (D) violence. Labor inspectorates did not
actively search for cases of direct discrimination and sexual harassment in the labor market
(A). SNCHR and the previous Ombudsperson did not try to reveal and resolve discrimination
that could have been perpetrated by other PIs (A).
5.1.2.4
Violations of the Duty to Fulfill: Inaction on Fulfilling Human Rights
Inaction of PIs on proactively realizing the HR of people from groups at risk of
discrimination was also reported by participants. For example, a labor office did not ensure
the realization of the right to work of job seekers with Roma ethnic origin. When the NGO of
Participant P contacted the labor office, they were told that the labor office did not have any
levers to bring private employers to employ Roma. Participant P disagreed observing that
positive action measures could have been introduced to stimulate the will to hire Roma
people. Participant G shared two examples of failed reasonable accommodation measures.
One occurred when a public official refused to respond to the official request for information
in Braille script, the other when PIs did not become increasingly barrier-free. PIs thus
violated the duty to fulfill the right to receive information and the right to accessibility
bestowed to people with disabilities. An inherent part of preventing future discrimination of
equality groups in access to HR is ND mainstreaming in all areas of social life, which has
hardly been achieved. Most participants agreed that systematic monitoring and collecting
data, as the ground basis for ND mainstreaming in practice, is missing for all prohibited
grounds of discrimination relevant to their target groups.
5.1.2.5
Compliance with the Equality Duty: Anti-Discrimination Pro-action
58
Action in support of AD occurred mostly in individual isolated cases and was undertaken by
‘enlightened’ individuals or departments inside institutions. Pincus called such public agents
change-seekers (2002), whom she saw as disadvantaged in access to power over the change
process. That is perhaps why action was in all herein discussed cases partial rather than
systemic. Good practice appeared to be resulting mainly from NGO engagement with PIs (A,
B, C, D, G), although the reader should bear in mind that we looked at PI practices only from
the civil society perspective. Some examples of pro-action on equality are included in the
following chapter 5.1.3.
5.1.3 Insufficient Involvement of Groups at Risk of Discrimination
The participatory involvement of groups at risk of discrimination to the process of adopting
and implementing AD measures (such as policies) is crucial for the prevention of
discrimination. Besides other invaluable contributions, equality groups can provide the
oversight of PIs’ compliance with the equality duty, as well as mitigate the lack of baseline
evidence for planning action against discrimination until equality data become accessible
(Spencer and Fredman, 2006). According to research participants however, PIs seemed to
involve their NGOs insufficiently, and the extent to which the NGOs were involved depended
on either individual will of an official or political will of PIs.
5.1.3.1
Forms of Insufficient Involvement
The accounts of research participants suggest that their involvement (or the involvement of
their target groups) in the creation or implementation of AD measures by PIs was insufficient
(B, F, G, I, N, K, L, O, P, S, U, X). PIs did not approach the duty to involve them proactively
(L, P). When NGOs were not involved at all, they must have reacted ad hoc to try to stop a
tabled policy or another measure when it was discriminatory (B), resulting in confrontation
(Najam, 2000) (see chapter 3.3.4).
With astonishing frequency, NGOs were involved in a tokenistic manner for PIs to ‘tick the
box’ of cooperation with civil society, while in actuality not working actively with affected
groups or their advocates, thereby co-opting NGOs’ efforts (Najam, 2000). As Participant B,
a women’s rights advocate, summarized, “In our country it still happens in a way, that some
document is elaborated, then they eventually call us to dust it with sugar for them”.
Participant P felt that PIs in their municipality tend to misuse the Roma issue to formally
cover their own activities. She described the situation as following, “We are there - they
pretend that they cooperate with us, but we don’t know anything about it, we find out about it
when it is already over – only pro forma”. Formalist involvement impaired the critical voice
of persons in NGOs, as they were to invest their energies in the process before they realized it
did not have a real impact. Besides, their leverage with PIs was diluted by assuming a
cooperative stance, but then not being genuinely involved as partners. This was corroborated
by Participant B, speaking of the public consultation process around distributing Norwegian
funds:
59
They [PIs] still do not understand the participatory process, that it means to be
involved from the beginning till the end and not just in the end, or just in the
beginning and then they cut us off…When I said that I want to see the final version,
what the result of our consultation process was, they told me that they will not give it
to me and that they are sending it directly to Brussels. They told me that they had
accommodated us already, listened to us many times and consulted with us and what
more do we want. And I said ok, but I do not see the result.
Other NGOs experienced similar disregard for their comments which could only be submitted
in official commenting sessions (L). NGOs were often summoned to these sessions on a
quick notice the night before (N). After working hard and voluntarily to prepare their
comments overnight, NGOs had sometimes even less room to impart them when the period
for commenting was intently shortened by PIs to obstruct the process (E, N). Another
obstruction method was to overwhelm unprepared participants as Participant S experienced in
the public consultation on Strategy of Roma Integration:
Three regional meetings were organized where people representing Roma
communities and mainly non-Roma NGOs were confronted with a 70 page long
document and they were asked to comment on it while they had no clue about what it
was. That is not the way to encourage civil participation, and certainly not Roma
participation. These people need explanation and time to think about it. For me it was
again, let us tick another box off the list of our duties. It was quite frustrating.
In the end, the comments of NGOs were frequently dismissed by PIs as unimportant (L, U),
without reasoning or feedback to their authors (X). Disputed laws were ‘passed with
contradiction’ as PIs could afford to not take them into account (L, X).
5.1.3.2
Involvement Dependent on Political and Individual Will
Most of the participants believed that the level of their involvement by PIs depends on
political or individual will. Participant E of the present study, an LGBT rights advocate,
submitted: “I have a terrible feeling that communication depends on which color or political
party rules a particular department or place we communicate with.” The lack of political
will can inhibit whole fractions of HR agenda, as in the case where the Ministry of Health
was run by Christian democrats. The minister then issued a silent prohibition on performing
abortions to all maternity hospitals in the capital city and dismissed the proposal of feminist
NGOs to cover contraception by health insurance, while the LGBT topic was completely
impassable at the ministry. Another case of bias against LGBT equality group was presented
by Participant E:
An example of total impudence and arrogance in this subject was the ideological
crossing out [by the government] of the Committee for Non-heterosexual people
under the Council of the Government [for Human Rights, National Minorities and
Gender Equality]; it was a really incomprehensible step. Especially if one finds out
60
the information that was not supposed to be public, about meeting of ministers on
which they cracked homophobic jokes. And the information is ridiculous that there
was an ultimatum given that the whole Council of the Government would fall if such
a Committee is passed.
NGOs and their service users also often depended on enlightened individuals (individual
employees who were willing to promote HR and AD implementation) inside institutions,
with whom they can cooperate. Participant I, a social worker with people suffering from
homelessness and addictions, stated, “it’s a shame that we have to have those contacts
[within PIs] and calling anyone does not automatically work.” Cooperation which depended
only on individual volition could easily dissolve when a helpful individual left an institution.
Participant J, a social worker with asylum seekers, offered: “When the official is replaced, we
or our successors will have to establish a new connection from the beginning”. The NGO of
Participant D was confronted with such a situation when their cooperation with SNCHR
disintegrated after a cooperative lawyer, who was able to issue quality expert position
documents in discrimination cases, left the institution. Since then the NGO have neither
managed to obtain such documents from SNCHR, nor to repair its relations with SNCHR
which later disproved of the NGO’s social justice goals. NGOs also often invest their
resources in training public officials in AD and HR of a particular equality group (D, X). To
the frustration of NGOs, these resources are wasted with frequent changes of staff.
On the opposite side, cooperative institutions and individuals were able to make some
difference (D, E, H, J, T), showing in the cooperative quadrant of Najam’s model (2000). For
instance, the cooperation between the Ministry of Finance and the NGO of Participant G
yielded public administration websites, accessible to people with disabilities. Participant H
mentioned how the Minister of Justice cooperated with her NGO on abolishing some
facilities where inhuman practices and discrimination against older people took place. Several
PIs became more forthcoming to meet and discuss issues with immigrants and NGOs
representing them (J, K, T). Owing to some NGOs’ advocacy gender sensitive language was
integrated in the statute of the public radio (B), parts of NGOs’ shadow report for CEDAW
were copied into a national action plan on combating violence against women (B), some
topics relevant to ND were included in directions for school curricula (C) and alternatives to
detention of immigrants were included in the law on residence (T). Under NGO influence, a
few successful interventions in discrimination cases were performed by the trade inspection
(e.g., the case of discrimination in access to services on grounds of sexual orientation
mentioned by Participant U) and courts (e.g., the case of ethnic segregation in a school
referred to by Participants D and O). Many participants, however, argued that change
dependent on an individual employee or party in control could only be partial, thereby nonsystemic. It would not last past the change of staff or government (A, D, E, K, X). Participant
A, a women’s rights and AD advocate, identified the loss of institutional memory due to
politicization to be a root issue in the implementation failure:
This is in fact the problem, that the whole public administration is so politicized, that
it does not have a continuity, not only it [AD] is not formalized in those processes, but
61
it is also not part of the internal culture, it does not have any place in which it gets
rooted because after each election, if political powers shift, it is followed by an
unrestrained restructuring of how public institutions are led. This contributes to
instability and causes that policies are not realized as they should, not to mention that
monitoring is virtually not carried out. It brings about uncertainty and the
impossibility to grasp it systemically and seriously start working on it. It is hardly
possible to rely on the premise that whoever will be in the government in whichever
configuration, there are certain things which represent the alpha and omega of good
public administration, and they will be there regardless of who is in power.
The fear of losing some of the achievements of the relatively stronger HR politics of the
government 2010-2012 resonated in my interviews with participants (A, C, D, E, G, J, K, O,
S, V, X), as well as the insecurity and skepticism about a scenario that could possibly unwind
following the 2012 election. Premature elections have been a commonplace phenomenon in
Slovakia32 too often shattering NGOs hopes for the implementation of AD (see chapter
2.1.1).
5.1.4 Problematic Responding to Pressure on Compliance with the
Equality Duty
In terms of responding to pressure exerted on the compliance of PIs with the equality duty by
NGOs or enforcement bodies from abroad (EC, CoE, UN), participants mentioned both overt
and covert, as well as offensive and defensive resistance strategies on the part of PIs.
5.1.4.1
Resistance to Pressure Exerted Bottom-up
Self-defensiveness against bottom-up pressure put on PIs by NGOs was demonstrated in the
reluctance of PIs to self-reflect and admit a problem, using rather deflecting strategies. One of
them was formalist responding by blurring the difference between rules and reality. PIs made
‘semantic shortcuts’ (a term used by Participant D), such as stating that there was no
discrimination because the country had ADA (I) or that schools were inclusive because all
children in the school system were equal (C). Another employed defense strategy was
framing a problem as isolated. For example, a school’s loss in the court case of Roma
segregation was interpreted as an individual failure of the school and not a systemic issue (C).
At the same time, segregation was supported by the rational arguments of PIs (M), and
through this rationalization, normalized. PIs commonly trivialized and denied a problem,
such as wanting to disregard the need for an opportunity to communicate in Braille due to a
smaller number of beneficiaries (G), or the need to protect a certain equality group by
denying that the group is in the position of vulnerability to discrimination (E, D). Denial of
32
Three out of six elections since the creation of the country in 1993 were premature (Statistical Office of the
Slovak Republic, 2015).
62
LGBT as a legitimate equality group was described by Participant E: “When I had applied
for a grant about 3 years ago the Ministry of Culture replied that they did not define us as a
minority, that for them there were only ethnic and national minorities.”. Pincus (2002)
referred to obstructive rule-making as such with the term ‘sham-decision’.
In the participants experience, PI response to NGOs that cautioned against HR violation was
frequently offensive, assuming strategies such as attacking, marginalizing, and delegitimizing
them. Pincus (2002) sees it as direct resistance of status-quo keepers. Firstly, NGO
engagement in discrimination monitoring was mocked and not taken seriously. For example,
the survey among 500 older people from economically less-developed regions by the NGO of
Participant H on a newly-passed law on social services, later found discriminatory on the
ground of age by the Constitutional Court, was first labeled irrelevant by a Minister of Labor
(H). Secondly, NGOs were accused of fabricating the problem, as in an example of an NGO
that drew attention to illegal sterilizations of Roma women (D). Thirdly, NGOs were accused
of acting unlawfully, such as in the case of the Ministry of Education stating that NGO
reports proving segregation in schools are illegitimate because ethnic data were not allowed
to be collected. Threat of breaching the Act on Protection of Personal Data has been utilized
by PIs both in support of the state’s inaction and as a weapon against action initiated by
NGOs, in a way described by Participant C, an ethic minority rights advocate, “they are
capable of turning against independent research teams and say that how can you even know
that Roma children are segregated when collecting [equality] data is not permitted.”
Fourthly, NGOs were accused of snitching abroad. This was exemplified in the reaction of
PIs to a monitoring shadow report for CEDAW prepared by a group of NGOs, according to
Participant B, a women’s rights advocate: “When we bring monitoring and show a shadow
report we made, what was their first reaction? All institutions were offended at what we had
dared. The Deputy Prime Minister [for Human Rights and National Minorities] at the time
told media that we go snitching to international institutions abroad.” Finally, offense against
NGOs was used by PIs in relation to project funding. On one hand, PIs highly contributed to
the financial strain of NGOs by withdrawing the funding from them (J, E), even retaliating to
them in some cases (A). On the other hand however, PIs accused NGOs of being George
Soros’s33 agents, when they had to acquire funding for their projects in support of
discriminated groups from foreign organizations (D, E). The PI strategies used against NGOs
described above would fall under competitive relations inhibiting or prohibiting institutional
pluralism (Coston, 1998).
While the above-mentioned strategies of reacting to bottom-up pressure on HR and AD
implementation were more overt, PI covert reactions ranged from completely evading their
responsibility to shifting that responsibility to NGOs, exposing their resistance indirectly
(Pincus, 2002). PI evasive strategies consisted of withdrawing from reacting or reacting
33
“George Soros has been a prominent international supporter of democratic ideals and causes for more than 30
years. His philanthropic organization, the Open Society Foundations, supports democracy and human rights
in more than 100 countries.” (Soros, 2015)
63
indifferently in situations when expected to support NGOs in advocating equality-related
cause. This was well encapsulated by the account of Participant E: “When the leader of the
Slovak National Party says that he will come to the Pride [parade] to spit on us bothers me
less than his 149 colleagues from the parliament [150 members] that do not condemn it, that
the Center [SNCHR] does not condemn it, that Ombudsperson does not condemn it.” Covert
resistance also surfaced in reaction of the Office of the Plenipotentiary for Roma
Communities that circumvented the NGO of Participant D in the process of drafting a plan of
inclusive education for a school, although it was the NGO that uncovered the segregation of
Roma in the school and successfully fought it in court. Such inconsistent reaction rendered
the PI standpoint on AD difficult to read (D). Participant F recalled a scenario in which PIs
gave vague responses to his NGO when they inquired about using discretionary practices not
supported by law (at most regulated by a non-public non-transparent internal directive), such
as sterilization generally required for changing sex.
Perhaps the most exploitative covert strategy for PIs to take ‘hands off’ their duty to
implement HR and AD was by diverting it to NGOs. The tactic entailed having NGOs
provide services to some groups at the highest risk of discrimination (E, J, V). Participant V
presented the situation of patient associations as NGOs which ran four rehabilitation centers
and assisted employment services. They themselves were people with disabilities working
under the considerable strain of having to cope with their own disability, while helping others
in a similar or worse state of health. They did all that either voluntarily or with the imperative
to fund-raise which was in itself too overwhelming and exhausting for them. Yet, they felt
there was no one else who would take charge (V). PIs seemed to assume the ‘if you want it,
make it happen’ approach (E) by which they were able to manipulate NGOs into gradually
assuming the full responsibility for the well-being of equality groups. Often NGOs failed to
meet their target group’s needs adequately due to lack of resources which had been
insufficient in first place as a result of government inaction (V) or counter action (J). The
latter case accompanied the government’s decision to grant subsidiary protection immigration
statuses (over 400 per year) over asylums (10 or fewer per year) (J). This step disqualified the
NGO of Participant J from fund-raising at the EU level where people with subsidiary
protection were not an approved target group for project applications. Although Participant
J’s NGO could not meet immigrants needs for that reason, PIs still expected it of the NGO
and even projected feelings of guilt on them: “When we tried to address the situation in
cooperation with the Ministry of Interior, it was hinted that it is our responsibility,…and that
it is us that should convene meetings to resolve the situation and preserve funding”.
Participant J also expressed a worry that even when his NGO received a miniscule subsidy
from the government, it turned them into ‘hostages of the state’. PIs used it as a lever to
demand the service provision from the NGO and the NGO lost the leverage to refuse or be
critical when defending service users against immigration authorities due to the potential of
retaliation (J).
Besides service provision, NGOs were expected to substitute as the role of state on other
occasions (N, O). Regarding monitoring and evaluation for instance, the NGO of Participant
64
G was asked to assess the accessibility of all significant buildings in the capital city for which
it was not reimbursed by PIs. Instead the NGO had to spend some of its own finance from
donations to cover the need. In the field of client advocacy, the NGO of Participant U was
urged by the Ombudsperson and SNCHR to refer LGBT discrimination cases to these PIs,
implying their desire to bring cases to court, after the cases had been already elaborated by
the NGO. Partner collaboration with the NGO (Najam, 2000), or crediting its work was not
mentioned however (U). Meanwhile, SNCHR which has a mandate to represent clients from
equality groups before courts regularly refers Roma clients who request help to the NGO of
Participant D. Many other examples of PIs counting on NGOs to supply (Young, 2000) the
AD work cheap or free of charge came up in my interviews, suggesting the systemic
misconception PIs might have of the equality duty, as well as the weakness of pressure from
bellow. In Coston’s view (1998) such relations would represent a third party government,
except without PIs providing their fair share of responsibility and resources.
5.1.4.2
Resistance to Pressure Exerted Top-down
Pressure top-down on PIs exerted by foreign regulatory bodies, such as the EC, CoE, or UN
Committees, seemed to be received more seriously than pressure by NGOs, as participants
surmised PIs may have wanted to preserve their image abroad (C, E, N) – a claim reinforcing
Falkner’s dead letters theory (2010). Moreover, when required to submit reports on the
situation of groups at risk of discrimination to these external compliance enforcement
entities, PIs readily relied on what they otherwise label as unreliable data from NGOs.
Debrecéniová and Dlugošová (2012) detected that in drafting the Strategy of the Slovak
Republic for Integration of Roma by 2020, the government departed from data produced by
NGOs, while it also mentioned the problem of the insufficient availability of ethnic data. The
government did so without reflecting on the state’s role in the genesis of the problem and
without pledging to its future resolution. Insight Debrecéniová and Dlugošová (2012) offer
thus adds a tinge of hypocrisy to the denigrating treatment of NGOs’ monitoring reports by
PIs (see chapter 2.1.2).
Wishing to preserve their facade towards the outside world, some participants concluded that
PIs rarely self-reflected and changed their practices in order to enforce AD. Rather, they
censored information before it could reach enforcement agencies abroad, gave formalist
explanations, or applied formalist solutions. Participant B spoke about the censorship by
omitting independent monitoring from state reports submitted to the CEDAW Committee:
In all of these reports I feel that information is just cobbled together for the sake of
looking good in the face of the world, quasi good things are accentuated, and
sometimes even called incorrectly, but we do not know how to tell ourselves, well,
here we are not really successful, here we have a problem, here we are going to do
this.
Participant D recalled how in another state report to the UN Committee on Elimination of
Racial Discrimination, the Ombudsperson explained the fact that their office did not receive
65
any complaint of ethnic discrimination by a semantic shortcut: “The state from its position of
defending how everything is great before committees derived the conclusion that the
Ombudsperson did not receive any complaints because there is a very low level of racial
discrimination in the country”. Other potential reasons, such as the lack of public knowledge
or trust in the Ombudsperson, were not considered (D). When PIs were asked by foreign
authorities to correct shortcomings, they would opt for formalist solutions. In response to the
case of forced sterilizations of Roma women strictly condemned abroad, a new law was
passed that obliged PIs to ensure that women fully understand and give their consent before
the procedure could take place. However, this measure was implemented only formally, by
adding more pages to the informed consent form, which still did not make sterilizations any
clearer to women (D).
The same sterilization case brought also one positive example of a PI, the Deputy Prime
Minister for Human Rights and National Minorities, able to self-reflect and show gratitude
for an NGO’s groundbreaking success in winning the case before ECHR. Participant D
remembered: “We were happy, although it does not have any practical meaning, but it is a
gesture, maybe it has some small significance, in making the discussion in the society a bit
more balanced, that even a high official can write something like that”. Overall, the
motivation to keep the image of Slovakia intact abroad appeared to give rise to the windowdressing practices of PIs, rather than an honest reflection as a response to the pressure from
above.
5.2 Methodology of Anti-Discrimination Compliance Monitoring
In the second portion of my findings, I attempt to resolve my other two research questions. I
start by looking at the methodology of AD compliance monitoring (in some segments
contrasted with discrimination monitoring) from the perspective of research participants from
NGOs. I discuss the subject, object, and method of AD compliance monitoring, loosely
flowing from the general parameters of the methodology (general methodology) to its
specific applications (specific methodologies), tailored for a particular discrimination ground.
Eventually, I approach the last research question to ponder upon key conditions that
determine the possibilities for NGO participation in compliance monitoring.
5.2.1 Subject of Monitoring
Regarding the question ‘who should monitor’ all participants were clear on PIs bearing the
primary responsibility for monitoring the fulfillment of HR, including the right to equality.
However, they were wary of concentrating too much power in one place, thereupon creating a
monitoring monopoly (E, I) which would perform only declaratory monitoring (O) and even
serve as an instrument of propaganda, as seen in the state reports to international HR
66
committees (E). Participants agreed that it would be desirable for all other subjects with an
appropriate apparatus to monitor at least parallel to (alternative shadow monitoring) (M, K,
S, X) and ideally in collaboration with the public sector (collaborative monitoring) as a
mechanism of oversight (D, T).
There is a growing need for stronger bottom-up pressure on compliance with the ADA (C, D,
H). Any resident of Slovakia should be able to contribute to monitoring when they feel their
rights have been or could be violated, by exercising their right to seek redress via the means
of petition or complaint (A). PIs need to get active in AD and open themselves to the public,
making their processes transparent and accessible to public commenting (J) and encouraging
especially the participation of affected groups (N). Additionally, NGOs are cultivators of
expertise on issues of discrimination and ways of combating it effectively (H, M). Although
their role in monitoring is crucial, they ought not to forget that they undertake it voluntarily
(A). Thereby, any attempt by the state actors to project their responsibility for monitoring on
NGOs, or leaving monitoring up to NGOs by their inaction, is erroneous and should be
classified as a failure of the state or particular PIs, and not NGOs (A). Importantly, the public
is to be acquainted with such failures of PIs (A).
Vice versa, independent monitoring from outside is in the interest of the state and should be
continuously supported by the state (A). It is likely the most accurate assessment of the
discrimination or AD situation (Fredman, 2008). Independent monitoring also represents
quality and useful feedback pertaining to actions taken by the state (A, B, H). As emphasized
by Participant A, it is crucial for the state to stop perceiving monitoring by NGOs as a
confrontation or an effort to catch someone off guard. Participants almost univocally
emphasized that it is imperative to PIs as duty bearers to involve and support monitors from
civil society by providing them with opportunities and resources (see chapter 5.2.4),
irrespective of running a parallel or collaborative monitoring model.
5.2.2 Object of Monitoring
Answering the general question ‘what should be monitored’ many participants (A, B, C, J, L,
M, S, U) concluded everything connected to the right to equality in access to human rights
(from individual to policy problems) ought to be an object of a detailed oversight. However
the two major monitoring concepts discussed in my report have different priorities.
Monitoring centered on HR abuses, discrimination, and inequality is set to map the field for
their incidence and perpetrators. As an object of monitoring discrimination is to be
thoroughly examined on all grounds and in all areas, delimited by law (J, M) and suggested
by equality groups (H, T, P). Participant C proposed monitoring discrimination as a section of
the reality specified by a ground (ethnicity) or equality group (Roma), topic (access to
education), environment (primary schools), and region (Eastern Slovakia). All forms of
discrimination should be covered, but a heightened attention is to be paid to structural or
indirect discrimination, which is commonly hidden behind seemingly neutral rules (laws and
67
policies) and thereby ends up overlooked (C, F, K, L, T, U, X). Finally, experience,
awareness, and the willingness to mobilize upon such awareness of individuals and groups
exposed to discrimination (L, M, C) and the general public (U) should also be surveyed.
AD compliance monitoring targets the adoption and implementation of AD measures, as well
as practices by PIs. One of the AD measures is also the HR monitoring mentioned above (see
chapter 6.1.2). Complex obligation requires comprehensive oversight in all PIs (state,
regional and local), including PIs acting as employers (E, F, H), labor offices (P, T) and
inspectorates of labor (A), healthcare facilities (E, F, H), education facilities (E, F, O, P, R, U,
V), social services (V), registries, crisis centers and shelters (I), protected workplace (V),
housing and residential facilities (I, T), transportation (G, K), law enforcement authorities
such as police departments (C, E, O), courts (A, B, T), as well as equality bodies (A).
Regional and local PIs should not be omitted by compliance monitoring, as the status of AD
work is currently under-researched (B, G, P). Participant S believed that AD compliance
monitoring was promoted by the fact that Slovakia is a small country governed in a
significantly structured, hierarchical way. On the contrary, Participant G was concerned about
the vast autonomy of regional PIs in determining their policies, allowing them to behave like
“republics within the [Slovak] republic”. PIs tend to misuse this liberty to set varying
standards for people with disabilities in each region, for example in transportation, social
service provision, and barrier-free architecture, thus directly discriminating them (G).
Language as a cross-cutting area is to be subjected to compliance monitoring in terms of its
correctness and sensitivity towards equality groups (N). The other crucial AD measure
mentioned throughout this report is the collection of equality data. Many participants
emphasized, for instance, the need to obtain (currently unavailable) statistics from the police
on hate crime on the grounds of gender (B), ethnicity (C), age (H), disability (V), and sexual
orientation (E), e.g., the number of attacks motivated by homo/bi/trans-phobia as an
indicator. Last but not the least, private actors (employers, service providers, media, etc.), as
secondary duty-bearers, should also be monitored (B, C, G, H, P, V).
All research participants considered monitoring a new (E, J, K) or continuing (A, B, D, G, L,
M) viable strategy for their NGOs, provided the key conditions are met (see chapter 5.2.4).
Visions for future monitoring initiatives were described by participants for many equality
groups. Monitoring the fulfillment of women’s rights, the NGO of Participant B aimed to
reassess headways and backslides in the state’s following final recommendations of the
CEDAW Committee before submitting anther shadow report to the Committee. Roma’s
rights advocates brainstormed several options for AD compliance monitoring, such as
following the structure of already existing documents (the Decade of Roma Integration, the
Strategy for Roma Integration) in assessing what parts of these documents PIs actually
implemented (S), or drafting a new action plan on ND with the key element of monitoring
(C). Participant L highlighted the need to monitor the discrimination of Roma, especially the
structural disadvantage of Roma children frequently being placed in special schools,
rendering the argument that “there are more subnormal children in Roma population” absurd.
68
The implementation of LGBTQI people’s rights could benefit from massive research on the
status of the community in all the areas of discrimination stipulated by ADA and other areas,
such as violence against gay men in the criminal justice system (E), as well as data collection
regarding discrimination on the grounds of sexual orientation. Participant U mentioned the
monitoring of the fulfillment of recommendations issued by CoE and Fundamental Rights
Agency, in which his NGO was going be involved, to examine the widespread but underresearched issue of homophobic bullying in education, the discriminatory definition of
marriage as a union of a man and woman, and restrictions in parenthood within family policy,
as well as issues related to healthcare and politics. Transgender people were tremendously
affected by the discriminatory use of language, such as binary constructs of he and she (F).
Discriminatory language was also demonstrated in the enormous use of generic masculinum34
in official documents (N). Thus, participant N suggested that her NGO could contribute to
assessing the usage of gender-sensitive language in policy measures (how policies are written
and communicated).
The discrimination of people 45+ on the labor market was monitored by the NGO of
Participant H, who suggested using indicators, for instance the number of candidates who
were denied a job on the basis of their age. The fulfillment of rights of people with
disabilities was at the time of interviews with participants (G, X) about to be reviewed by the
state for the first time under the scheme of CRPD. NGOs wanted to submit a joint alternative
monitoring report on the fulfillment of its articles regarding conditions for mobility,
orientation, and communication in all areas (G). They presented an idea to make a coalition
of experts (with and without disabilities) to ensure the comprehensiveness of monitoring (G).
To tackle the discrimination of people with mental disorders specifically, Participant V
proposed monitoring the areas of education and employment. The former would explore
barriers in the education system causing a high drop-out rate among students with mental
disorder (especially when a disorder first occurs), while the latter should focus on the
suspicious phenomenon of unemployment and dependence on welfare of the people with
mental disorders often exacerbating their condition (V). Moreover, the removal of legal
powers of people with mental disability is a gross HR violation that should be put under
scrutiny, notably as a reform prepared by NGOs has been systematically pushed back (V).
The rights of immigrants and refugees could be strengthened by further monitoring in refugee
camps, detention centers and an orphanage for unaccompanied minors, what previously
helped to uncover illegitimate discriminatory treatment and conditions (T). Furthermore, AD
compliance monitoring regarding the government’s intention with the long-debated never
commenced project of Naturalization and Immigration Office could be warranted (T). More
objects of monitoring are mentioned in the chapter that follows, intertwined with methods to
be used in their monitoring.
34
Referring to persons in plural only by words determined for men, e.g. ‘actors’ would mean both actors and
actresses.
69
5.2.3 Method of Monitoring
The general question on ‘how to monitor’ placed most participants as proponents of a
collaborative monitoring model, in which either one or several cooperating PIs would create a
publically funded platform for monitoring involving multiple actors from all sectors (B, F, L,
O). Regardless of a particular institutional shape of such platform, many participants (A, B, J)
felt that monitoring should be carried out by a diverse team of theorists and practitioners
complementing each other, while having varying though clearly defined responsibilities.
Team members would have to be sensitive (or sensitized) to HR and discrimination issues (U,
V), prepared for a specific monitoring situation (A), and trained in analytical thinking and
communication (A). Communication skills would enable them to maintain good relations,
both inward and outward (J). An interdisciplinary monitoring team would be composed of
stakeholders from (i.) various PIs (SNCHR, Ombudsperson, ministries) who would provide
institutional coverage; (ii.) civil society (people at risk of discrimination and NGOs as their
representatives) who have expertise in particular areas of discrimination and AD and are in
the best position to guide the content of monitoring (E, B, L, M); (iii.) research organizations
(NGOs, academia) who are experts in research theories and methods and are the most suited
to steer the monitoring process (B, J), and possibly (iv.) international organizations with
authority and expertise in relevant areas (E, L). Persons appointed to the team from PIs would
have to be committed (J) and accountable (A).
However, participants were divided over where the monitoring platform should be located.
Few participants (G, U) proposed to follow instructions by international monitoring
instruments such as CRPD of which Art 33. specifies that CRPD should be implemented by
[a] focal point(s) designated by the state party within government, and its implementation
should be monitored by [an] independent monitoring mechanism(s) in conformity with the
Paris principles (founding for NHRIs) and with full involvement and participation in the
monitoring process of people with disabilities and their representative organizations. Some
participants (L, U) also suggested that monitoring should be vested with an already existing
institution, of which SNCHR as the NHRI seemed the most suited. At the same time, nearly
all participants voiced criticism and disillusionment over the work of SNCHR. The PI has
had a mandate to monitor discrimination throughout its over twenty-year existence, but it has
never been properly upheld. Thereby SNCHR’s willingness and capability are questioned by
participants (B, L, O).35
Skepticism founded on experiences with SNCHR and PIs in general led other participants to
come up with an idea to start a new institution as an umbrella for monitoring (B, J).
Participant B offered a very particular idea of monitoring institution or a cluster of
independent monitoring institutions which should be truly autonomous and resistant to
political pressure and manipulation in order to avoid repeating the infamous development
35
SNCHR lost its accreditation in 2013 and a NHRI had to be re-established.
70
with SNCHR. As a monitoring center it could be housed in one building, allowing for close
cooperation of all PIs in the cluster (a new or reformed NHRI, Ombudsperson, an institute for
gender equality which remains to be established36) and NGOs contributing high expertise. It
should be also engaged in a dialogue with all other relevant actors from state, regional and
municipal administration.
This all-under-one-roof institution would have to be endowed with institutional coverage
including strong competences and adequate resources, both human and financial (B).
However, it could be more effective and economical than having many PIs all in different
places and working on separate agendas, as it is now (B). As participant B noted, the
argument of efficiency could present an effective counter argument for those who operate
with economic crises as an excuse for not investing in HR protection. Having one institution
would be convenient for citizens and residents who would not have to go from door to door
with an uncertain result (B). Instead, they would find a one-stop-shop for services to which
they could turn with any suggestion, petition, or complaint regarding inequality and
discrimination, or be involved in monitoring (B). The institution would carry out the interinstitutional monitoring (see chapter 3.2.2) of the compliance with AD requirements, HR
fulfillment, and discrimination both in general and specifically on all grounds and in all
environments (B). The monitoring institution would also publish reports and relevant
literature which could be utilized by all stakeholders in AD (B). Good practice concerning a
monitoring institution, according to Participant B, could be adopted from Spain, where the
Women’s Institute (Instituto de la Mujer) was established as an autonomous body by the
Ministry of Health, Social Services, and Equality (Instituto de la Mujer, 2013).
Participants thought methods of HR monitoring useful for the monitoring institution could
comprise field face-to-face or telephone interviews (A, J), questionnaires (H) or websites set
up for individuals to report discrimination (A), representative surveys reflecting the
experience of equality groups or the general public (C, G, L, M, U), utilizing already existing
case databases of SNCHR or the police (C) properly filtered with the help of experts from
equality groups (C, E), as well as measuring the pace of progressive realization (or barriers
causing stagnation) of international HR conventions (B, G). Regarding NGO engagement,
participants came up with several interesting ideas. Participant I mentioned the monitoring
technique of observation. Social workers from her NGO accompany service users to PIs
responsible for service provision, either to prevent by their presence the service users’
mistreatment, or to assist service users in reporting mistreatment to the authorities responsible
for the enforcement of the principle of equal treatment (inspectorates). Observation has also
been utilized in courts when an NGO recruited and trained monitors (mainly students and
older people) to oversee the conduct of judges during decision-making (A). Another way
36
Participant B suggested that such institution could mirror the agenda of the European Institute for Gender
Equality (European Institute for Gender Equality, 2013).
71
NGOs have engaged is testing in the field (see chapter 3.2.1), for instance to prove racial
discrimination (D).
NGOs could also cooperate with professionals from relevant fields on devising the most
efficient monitoring tool. Participant V suggested that her NGO could involve local
psychiatrists in investigating the suspicion of systemic discrimination in education of people
with mental disorders (e.g., by disseminating questionnaires in psychiatrists’ offices, asking
about possibilities to have an individual study plan). Participant V added that such research
would have to be conducted with utmost discretion (not directly in schools), as having a
mental disorder is stigmatizing. If the anonymity of respondents was compromised it could
lead to their victimization in schools (Participant V). Participant V’s example underscores the
importance of sensitivity and ethical conduct in monitoring discrimination. Moreover,
monitoring should not be burdensome to equality groups, such as frequently repeated inquires
in refugee camps that do not lead to any positive changes (T).
Regarding AD compliance monitoring, the monitoring institution would need to clearly
define its content and process parameters (A). In its content, AD compliance monitoring
should be systemic (A, V). That means it would have to be formally integrated in polices and
processes of an entire PI, as well as interconnected with other PIs and the whole system of
governance, where it should fit without being incommunicative, counter-productive, or
inconsistent with other actions (A). It would be endowed with mechanisms for action,
regulation, evaluation, and importantly sanctioning (A, B, D, P). AD monitoring would have
two faces, including general monitoring concentrating on AD compliance, and specific
monitoring with a particular equality group in focus (A, C). The process of AD compliance
monitoring would be cyclical “as a boomerang circle” (using words of Participant A). It
would run regularly and continuously (P, R, S, U), starting from mapping an issue (V),
moving to setting a goal, choosing measures, evaluating their impact, taking measures to
counteract the issue, assessing the impact and efficiency of measures, and finally keeping
working measures and eliminating failing ones (A, D, J, L, S, U). The issue identified in the
beginning should be tackled step by step, so that it is progressively eliminated (C, D, P). The
equality groups concerned (as service recipients) would have to be involved in all stages of
the process, while their full comprehension and participation is secured by accountable PIs
(A).
Some NGOs were no strangers to using methods of AD compliance monitoring which could
be very valuable for the project of the monitoring institution. NGOs have been actively
examining PI documents (e.g., the government’s resolutions, parliament’s bills) on an ad hoc
basis (C), or in a more systematic manner guided by international HR standards. More
systematic AD compliance monitoring is exemplified by many shadow reports written by
participating NGOs (A, B, D, L, U). Participant C insists that all PI documents should be
thoroughly scrutinized in terms of meeting AD requirements, awarding the current legal
provision of impact assessment proper recognition in practice. When getting access to PIs’
documents proves difficult, or it is unclear what particular AD measure PIs have taken (if
any), some NGOs (A, D, I, L, R, T) have used the Law on Free Access to Information (The
72
Slovak Republic, 2000). The instrument of official requests for information obliges PIs to
send the requested information (or confirm the lack thereof) to NGOs within a relatively short
time (See Footnote 7).
However, putting the inter-institutional monitoring of compliance in practice would likely be
complicated and risky considering many participants’ (B, C, F, E) assessment of the current
state of affairs in PIs. It shows not only the substantive incapability of PIs to employ AD
approaches and conduct monitoring, but in many instances even the difficulty of respecting
the principle of equal treatment (in the sense of the duty to respect). It might not be possible
to start a new monitoring institution with PIs on board without reforming these PIs first.
Several participants (A, B, C) observed that pressure should be directed inside institutions in
the form of intra-institutional monitoring, such as institutional (in)equality audits (see
chapter 3.2.2).
Many participants (C, D, E, G, J, O) agreed that adopting inspiring monitoring methodologies
from abroad could be helpful in this regard. Participant C felt inspired by the Equal
Opportunity and Diversity (EO&D) mainstreaming measured and promoted by the Diversity
Assessment Framework (DAF) developed by the British Council (BC)37, and could fathom
applying it to the situation in PIs. DAF is a dynamic tool based on the regular self-assessment
of individual BC branches using indicators. BC holds that the principles, structure, and
process of DAF could be transferable to other organizational contexts, provided that
indicators would be specifically tailored to those organizations’ needs, as they were in the
case of BC (Bartels-Ellis, Franklin and Slingsby, 2010).
Participant C, who was one of the external DAF evaluators, embraced the transparency of
BC’s monitoring process with a clearly-defined and detailed evaluation mechanism. He stated
that “it was a fascinating experience, the process that that institution had to go through and
the way they evaluated it. Even the fact that they had to evaluate it, but they did not find it
annoying at all.” For instance, a director would be asked to show examples of introducing
the EO&D topic in email communication with employees, or the director’s communication
with a subordinate employee (C). According to Participant C, PIs should be also evaluated
internally to determine their inclusiveness. If such evaluation comes only from outside, it
tends to be unappreciated and rejected by PIs. PIs, like BC, need to claim the attachment to
37
Evidence concerning EO&D is gathered and scored against performance indicators that have been continually
developed since the activity was launched in 2005 including assessing the implementation of EO&D
principles in policies and practices of service delivery, recruitment, job performance, training, policy impact
assessment, access audits, equality monitoring, and leadership, as in the case when the country director
should demonstrate leadership in EO&D or the BC office should act as a role model for other organizations.
Evidence is submitted for a scorecard evaluation by an independent panel of experts from BC and other
organizations and published, of which the purpose is not to punish BC offices for poor performance, but to
ensure the timely delivery of sufficient resources and support to address identified shortcomings openly and
honestly and generate feedback to influence future action planning. Although an exaggerated emphasis on
tick-boxing targets is a threat, on the basis of feedback from its employees BC believes that DAF tends to go
beyond just exercising compliance to changing the organizational culture, driving performance rather than
only measuring it (British Council, 2013).
73
principles of equality and diversity (C). Among other methods that could be used for
monitoring inside PIs participants (A, C) mentioned online questionnaires to gather feedback
from employees and service users. Some participants upheld PIs’ performance is to be judged
against international regulatory standards such as UN conventions (B, G, U).
Participants (C, L, O, U) stressed the need to establish indicators not just for measuring
discrimination, but also for measuring AD (see chapter 3.2.3). For instance, Participant U
suggested counting how many discrimination complaints PIs identify as discrimination,
adequately investigate and address, for which objective, quantitative, compliance indicators
could be used (Office of the High Commissioner for Human Rights, 2012). In setting
indicators, the content of what they aim to measure (‘what inclusive school is’), criteria for
measuring it (‘Roma children are given equal room to participate’, or ‘percentage of
segregated children’) and benchmarks to score progress (lower segregation by x% to reach in
x days) should be clearly defined (O) (see chapter 3.2.3). School inspection should be in
charge of evaluating the situation based on such indicators of inclusiveness, instead of only
inspecting school curricula (O).
NGOs could contribute their expertise in constructing indicators of discrimination and AD
(M, O). In a segregation case of Roma children, NGOs could determine which schools in
their region should be assessed, and then evaluate measures that are in place (seating order of
children, a teacher’s methods of instruction, compositions of children in special classrooms
and reasons for it, such as not speaking Slovak, being an ethnic Roma from an excluded
community, lacking motivation and/or expectations, parents uniformed) and propose
measures that should be taken by duty-bearers in order to fulfill the right to education of
Roma children (O, P, R). Besides external monitoring (normative benchmarks), criteria are to
be set also for self-evaluation (such as in DAF at BC) of schools in inclusiveness (empirical
benchmarks), as opposed to presently evaluating themselves mainly on the grade point
average of students (O).
Several participants (A, B, C) advised the conducting of a pilot intra-institutional monitoring
of a PI (or just in one sphere of its activity), which should be chosen according to certain
criteria such as size (not a gigantic PI with many departments), cooperativeness (it should
have a genuine will to cooperate), the level of anti-equality bias (the less the better) and proequality orientation (the more the better). One potential PI candidate was brought by
Participant C (the Fond of Social Development), which had relatively many employees from
inequality groups (Roma, LGBT). Intra-institutional audit should be all-encompassing.
Regarding discrimination, it would cover the structure and treatment of employees, approach
to service users, accessibility of premises, processes and outputs (visible/physical barriers, for
instance for people with disability or strollers and invisible/psychological barriers,
concerning misinformation, mistreatment, mistrust, and lack of motivation to come if a
service user is, for instance, Roma) (A, C, G, X, U, P, S, T).
Regarding AD, PIs would be reviewed in terms of how they handle processes of adopting
legislative and policy measures, how they implement them, how they monitor and evaluate
74
the impact of their decisions and fulfillment of their equality plans, and how they collect and
use equality data, in order to ensure that they mainstream non-discrimination on all grounds
using sufficient resources (A, C, O, V). After the initial mapping of the situation inside a PI,
transformative action toward greater inclusiveness is to be planned (C). It should specify the
PI’s vision, goals, target groups, strategies, and methods of implementing (C). Monitoring
and evaluation ought to be a main component of such action (C).
Participant C emphasized the role of standard setting by the cooperative institution, and
subsequent peer pressure among PIs, leading to greater PI willingness to launch the
reformation process. Participant A warned however, that the selection of a PI for the pilot
monitoring could be significantly impacted by frequent changes of staff, usually following
elections. The lack of continuity has been identified by participants as one of the major
factors inhibiting change (see chapter 5.1.3).
5.2.4 Key Conditions for the Involvement of NGOs in Monitoring
As shown by our research, NGOs were stranded in a difficult place concerning their
relationship with PIs. Participants (A, B, C, D, H, J, R) felt their NGOs were regarded as
enemies, rather than partners with competences and expertise (Coston, 1998). PIs were often
perceived to not see the involvement of NGOs in monitoring as beneficial. They did not
create enough room for NGOs’ participation, thus excluding voices of equality groups and
their representatives from decision-making (B, E, H, O, P). NGOs of the participants, loyal to
the human rights cause, frequently continued working voluntarily until their resources and
energy ran low, still earning little respect and trust (as Participant A insinuated, perhaps just
due to working on behalf of an equality group). What was expressed as a wish by many
participants is epitomized in the statement of Participant D:
Ideally, politicians should not consider NGOs an undesirable element constantly
offering them strange recommendations, but as those who in good faith want to
contribute by saying this needs to be done better, this policy does not work so well,
this needs to be reconsidered and developed.
Many participants could imagine (and would welcome) their NGO’s participation, however
necessary conditions must be met by PIs. Crucially, PIs should demonstrate will, acceptance
and support for NGO activities on behalf of equality groups (A, B, H, J). NGOs also seek a
long-term involvement in decision-making surrounding non-discrimination (A, E). For their
work to bring results, NGOs need access to accurate information on the status of equality
groups supported by statistics and other relevant data (A). As they are among those most
suited to detect inequality (Fredman, 2008), NGOs ought to have a continuous opportunity to
monitor actions of duty-bearers systematically in terms of performance and compliance with
the international HR and equality standards (A). Participants upheld that NGOs want to be
partners of PIs as long as they accept their obligation to mainstream equality in all areas of
75
life. PIs should make themselves available for guidance, as well as critical feedback and
reflection (J, N, T).
Simultaneously, for sustainable continuity of their work, NGOs urgently need adequate
resources (A) spearheaded by sufficient financing (B, H, S, U). Financial support
mechanisms could, according to some participants (G, M, X), offer more than just an unstable
short-term project funding. Participant G explained this continuity requirement:
We lack an opportunity to obtain finance so that we can do it in reality, because
monitoring has to be done systematically. It is not possible that today we are working
on something in one project and in two years maybe we work on it in another project.
In the period when interviews took place, many of the NGOs were fighting for survival,
undertaking highly qualified work that was largely voluntarily (E, J, L, N, P). Some
participants pointed out that genuine support of the state could also materialize in a long-term
project funding and core-financing of NGO daily operation, to which independent monitoring
also belongs (D, E, G, H, I, J, N, X). Otherwise, NGOs may find themselves in situations as
absurd as when the NGO of participant N could pay for ten new books for the library, but not
an electricity bill (N). Institutional support would increase the human, technical, and
administrative capacities of NGOs (L, X). They could retain or hire more staff to work on the
equality agenda (E, G, I, N, R, U). By the same token, NGOs should not be participating as a
substitute in the work of state, for instance, when it comes to financing public policy
implementation (L).
6
Discussion
In discussion, I focus on presenting solutions to anti-equality bias that prevents PIs in
Slovakia from compliance with the requirement to implement AD. Eventually, I endeavor to
construct the concept of AD compliance monitoring and posit it in the Duty-Based Approach,
changing the discourse from rights to (also) duties of particular institutional actors.
6.1.1 Solutions to Institutional Anti-Equality Bias
It is primarily a value conflict that seems to lie beneath PI resistance to equality from the
perspective of the present research participants. Addressing those cultural and political
factors (independent variables) on which compliance depends (Hartlapp and Falkner, 2009;
Falkner, 2010) can be crucial for change (see chapter 5.1). For instance, if public officials
valued the principle of equality sufficiently to regard all service users as equals to them; if
they valued good service higher than corruption; if PIs as their employers would encourage
them to act in accord with these values, and if they adjusted administrative procedures so
officials can comply easily, the situation could flip on its head. The important question then
is: how can the attitudes and values of PIs and their agents be changed?
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Lindholm (2012) believes knowledge is necessary to change attitudes, and insight is needed
to change values. Factors have to be accounted for which can inhibit these changes, such as
traditions, prioritization, resources, communication, trust, power, and resistance to change
(Lindholm, 2012). In her action research inside PIs, Spets (2012) claims to have had success
in reducing resistance by means of reflection geared to gaining the understanding of power
relations. In fact, it is important to realize “that the resistance that manifests itself is an
acknowledgement of change.” (Spets, 2012, p.229). When power relations and resistance to
pro-equality change are made visible, they become manageable. Spets (2012) distinguishes
nuances of dealing with resistance which operates differently on various levels. Lindholm
(2012), who has collaborated on action research in another PI, speaks about the need to
connect action learning geared toward suppressing equality resistance with mainstreaming
equality on all levels mentioned by Spats (2012) for change to become sustainable. On both
individual and group levels, some of the effective methods used in the action research were
analyzing both literature and real-life situations. For public agents to embrace equality as a
goal, self-reflecting on their own prejudice and understanding resistance in others were
helpful (Spats, 2012), as well as deep experiential learning, development of critical thinking
and change competence, receiving information (inequality statistic and other equality data),
and involvement in change planning (Lindholm, 2012). Lindholm (2012) claims a successful
change of discourse by presenting an image of ’the modern public official’ who embraces
equality, fights for it, and proactively implements it in their PI, as opposed to an oldfashioned one showing anti-equality bias.
In group interaction, using an intersectional perspective on inequality (to which everyone can
relate) and joint group reflection appeared effective (Lindholm, 2012). Strategizing ahead of
time is needed to prevent intra-group tension and resistance (Spats, 2012) and instill the
atmosphere of welcome, understanding, and trust (low hierarchy, closeness) (Lidholm, 2012).
Departing from Argyris (1990), the pioneer of organizational learning, Lindholm (2012)
warns that non-transparency can stem from the fear of what might happen if mistakes are
disclosed. She advocates using Argyris’es (1990) double-loop learning technique in which a
PI’s staff members discuss their previous actions (mistakes and failures) in different
situations, reflect on them (stereotypes? taboos?) and change them as part of individual
learning.
On the level of a PI, the content and form of work to mainstream equality and break
resistance has to be organized in a way that promotes organizational learning, for instance by
pledging to combat discrimination in a formalized equality plan or code of behavior.
Lindholm (2012) and Spets (2012) were specifically fond of appointing equality officers as
agents to promote and mediate change from bottom-up and top-down, for example, by
training their colleagues. Equality officers would have to be protected from intimidation and
other expressions of resistance in PIs. To prepare them for the task, Spets (2012) created a
role play during which equality officers mirrored real confrontations with resistance. Officers
were prompted to first resist change, then oppose that resistance and implement the change.
Subsequently, equality officers would reflect on their experience in a facilitated discussion
77
(Spets, 2012). On the level of society, norm-breaking in PIs could be supported by engaging
civil society, particularly its portions representing equality groups (Spets, 2012).
Not only each level, but also each type of bias requires a different type of solution according
to Henry (2010). Unintentional bias by the sum-of-individuals could be the easiest to counter
by awareness-raising, education and training of public agents (in HR, ND, AD and ‘duties’),
while intentional bias of these agents might have to be handled via a disciplinary action.
Markedly, institutional bias required to be approached “as a system that operates
independently from individual biases” (Henry, 2010, p.437). Intentional bias in the standardof-practice could be addressed by laws (top-down) and social movements (bottom-up),
whereas the unintentional institutional bias might be best curbed by positive action measures,
programs and involvement of affected groups in decision-making (Henry, 2010), in other
words, by the means of group and participatory justice (McCrudden, 2002). In addition,
Henry (2010) proposes fighting institutional bias through reforming institutions. One
reformatory method could be targeting leaders and other authority figures in PIs with the
power to make decisions and change organizational norms and culture. Another method
might be reducing bias through inter-group contact. Henry’s further suggestion to establish
monitoring bodies with sanctioning competences resembles Fredman’s (2011) pyramid of
enforcement. Kardam (2002) confirms that effective monitoring and compliance mechanisms
are crucial for the maintenance of equality regimes.
6.1.2 Conceptualizing Anti-Discrimination Compliance Monitoring
In this ‘experimental’ section, I embark on operationalizing the shift from rights to duties by
introducing the Duty-Based Approach (DBA) as a conceptual foundation of AD compliance
monitoring.
DBA could be understood as another stage in the development of the Human Rights Based
Approach (HRBA) (UNDG-HRWG, 2013), also known as Rights-Based Approach (RBA).
RBA has been defined as “a framework that integrates the norms, principles, standards and
goals of the international HR system into the plans and processes of development…RBA is
thus about identifying root causes of poverty, empowering rights-holders to claim their rights,
and enabling duty-bearers to meet their obligations“ (Kirkemann, Boesen and Martin, 2007,
p.9). This definition presents a shift away from the two previous approaches, charity-based
and needs-based. The former sees individuals as victims that are to be helped by increasing
charity; the latter deals with them as an object of intervention and intends to meet their needs.
Both approaches would presently be considered patronizing and ignoring oppressive power
relations to which they contribute by objectifying ‘the other’ in need of their help, instead of
offering a partnership in addressing the problem, such as discrimination.
Although the RBA recognizes the right-holders’ entitlement to make demands towards dutybearers and encourages them to hold duty-bearers accountable, it also underlines that
demanding rights does not have to mean going into confrontation with the state. RBA seeks
78
to empower duty-bearers to take responsibility for their obligation and gives them ‘the benefit
of the doubt’ assuming that if they violate rights, they do so unintentionally owing to their
lack of awareness (Kirkemann Boesen and Martin, 2007). It may however not always hold
true, that institutions are as reflexive as individuals to admit to their bias and modify their
behavior towards diverse groups of citizens. Henry (2010) warns that an “institution may be
biased whether or not the individuals maintaining those [discriminatory] practices have
biased intentions” (Henry, 2010, p.427). The most dangerous institutional bias is the one
where standards of practice are based on policies and procedures that appear unbiased against
specific groups, although “within certain contexts, especially contexts where historically a
group has faced discrimination, they promote continuing bias” (Henry, 2010, p.435).
Unintentionally biased policies and practices are a lot more likely to occur in the absence of
direct evidence of bias (Henry, 2010) (see chapter 3.3.3). Scant awareness of institutions can
have far too serious consequences to enjoy a lenient viewpoint. As resonated in my
interviews with the present research, participant groups at risk of discrimination are
commonly left out of decision-making, which is subsequently not concerned with their needs
or any harm incurred (see chapter 5.1.3). Unresolved discrimination, even if unintended, has
still dire impact on their situation.
Despite cooperation in general being certainly more productive than confrontation, it might
be more beneficial for the implementation of the principle of equality if rights-holders are
less-compromising about their claims, bearing in mind that ‘the ignorance of the law excuses
no one’ (and it is self-evident that it particularly does not excuse those responsible for the law
enforcement). In the formulation of a positive duty by Fredman (2008), responsibility for
identifying and addressing inequalities always lies on duty-bearers even without a single
claim from a rights-holder. It is the obligation of the state to remedy inequality and infer
penalty for discrimination even against their own institutions and agents, irrespective of their
intentions (if they did not intend to cause inequality they should have prevented it). The only
viable way of operation for duty-bearers to avoid sanctions (Akandji-Kombe, 2007) should
be to continuously cooperate with equality groups on detecting (potential) inequalities as
timely as possible and to address them by preventive measures that are necessary and
proportionate (Fredman and Spencer, 2006).
With Fredman’s legacy in mind, I propose a qualitative shift from RBA to DBA, to
encourage rights-holders to not only insist on the fulfillment of their rights by PIs as dutybearers (RBA), but also demand PIs to act on their positive duties by adopting a series of
particular steps enshrined in each right, leading to adequate protection and fulfillment of
rights without discrimination (DBA). DBA puts duty-bearers in a spotlight and empowers
rights-holders, especially those organized within the civil society, to hold them accountable.
Capitalizing on the definition of RBA, DBA could integrate the principles and goals of AD
into structures, processes and outcomes of decision-making. Further detailing of my proposal
of the DBA conceptualization as a scheme of duties inspired by the literature review for this
report and my own logic of how they best fit together can be found in Appendix 1.
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Throughout writing this report, one of my main challenges consisted of defining AD,
compliance, and AD compliance monitoring. My uncertainty was heightened by commonly
overlapping terminologies resulting in varying (broader or narrower) interpretations of the
same concept (positive duty and proactive duty) or the same term with multiple meanings,
one of them being AD. AD can be narrowly understood as a complaint-based legal measure
to remedy the situation of an individual plaintiff who has been subjected to discrimination
(McCrudden’s individual justice model). However, defined broadly, AD is a response to the
need to eliminate and prevent discrimination. AD measures may comprise, but are not limited
to, laws, policies, plans, strategies, incentives, sanctions, remedies, monitoring, and even
special measures such as positive action (General comment no. 20, CESCR) and reasonable
accommodation (CRPD). Within CDA, we strive to keep AD as general as possible so it is
terminologically inclusive to all methods of combating discrimination38. Essentially, AD
might be a sort of umbrella expression for all three of McCrudden’s justice models
(individual, group, and participatory) and their instruments (AD law, positive action
measures, and ND mainstreaming). In chapter 3.2.3, I mentioned that the word compliance is
also at times shrouded in vagueness, which complicates its measuring. To prevent confusion,
the meaning and scope of compliance ought to be comprehensibly defined (Hartlapp and
Falkner, 2009). For the purposes of this report, my improvised version of compliance
narrowly grounded in ADA is for PIs to abstain from committing discrimination and adopt
measures to prevent discrimination (See also chapter 3.1 for general equality duty). Broader
version would mean that PIs abide by all AD tenets.
Having considered the research participant suggestions (see chapter 5.2) and limitations of
my report (see chapter 4.4), I would broadly conceptualize AD Compliance Monitoring as the
main instrument of DBA, aimed at overseeing the compliance of duty-bearers with the
proactive duty to adopt and implement measures to prevent and eliminate discrimination. All
AD measures, including ND mainstreaming, discrimination monitoring, equality data
collection, positive action measures, and complaint-based litigation, would comprise objects
of AD compliance monitoring. AD monitoring would however differ from HR and
discrimination monitoring in its focus on mapping and evaluating both proactive (policies,
action plans) and reactive (sanctions, redress) measures, rather than documenting violations
of the principle of equal treatment or HR. The absence or dysfunction of an AD measure
would be treated as the violation of obligation resting with a duty-bearer–a subject of AD
compliance monitoring. In the long run, the rationale behind AD compliance monitoring
would be to minimize inequality and discrimination uncovered by retrospective HR
monitoring, as such findings would have to be immediately or incrementally addressed and
subjected to further AD compliance monitoring.
38
Discrimination can be defined as “any distinction, exclusion, restriction or preference which is based on any
ground…, 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” (General comment no. 18, CCPR).
80
In Figure 3, I attempt to visualize AD compliance monitoring, as I see it posited within the
system guided by DBA. The intended contribution of AD compliance monitoring would be to
promote AD, first, by empowering rights-holders with an instrument enabling them to create
stronger bottom-up pressure on duty-bearers. Second, PIs (courts, inspectorates, and equality
bodies) with the mandate to enforce compliance with the equality duty inter-institutionally
could utilize AD compliance motoring to generate top-down pressure on other PIs.
Duty-Based Approach
AD monitoring
AD measures to prevent and eliminate
discrimination
Non-discrimination and equality
mainstreaming (into all measures)
Positive action
measures
Collecting
equality data
Individual
complaints of
discrimination
Monitoring of
discrimination
Figure 3: Conceptualizing AD compliance monitoring
7
Conclusion
In the present research with elements of PAR, my purpose was to explain the problem of
insufficient implementation of AD by PIs in Slovakia from the perspective of NGOs, and to
explore what concept and methodology of AD compliance monitoring could represent a
viable solution reflecting the authentic experience of human rights advocates. By seeking
research participants’ views on their NGOs’ possible involvement as change agents in the
situation, my purpose was also emancipatory.
Slovakia may continue living in the ‘world of dead letters’ (Falkner, 2010), because little
effort has been made in terms of collecting evidence that would prove the inaction of PIs in
AD implementation wrong. It is as if accepting the vicious circle of ‘no evidence equals no
problem’ was far more convenient. Interviews with participants revealed various offensive
and defensive resistance patterns PIs exhibit when they are pressured from bottom-up by
NGOs, or top-down by the EU and international enforcement agencies. Participant accounts
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seemed to support the notion of a value conflict behind the poor AD compliance record.
Neither the public sector, nor the general public has learned to embrace and prioritize
equality. PIs do not sufficiently engage in raising the public awareness of HR and ND and the
public does not give PIs the necessary incentive for change, affirming one another in a
position of indifference, if not outright hostility. In such an environment deflective of the AD
discourse, PIs can afford to counteract the critical voice of NGOs calling for the leveling-up
to international HR standards. PIs are the ones who hold power in relations with NGOs.
When cooperating, PIs can easily turn NGOs into props to “tick-box” their participation, or
into service providers on a near voluntary basis. If NGOs choose to be critical, PIs tend to
punish them by mockery, aggression, or withdrawal of resources. PI resistance to top-down
pressure was also noted by participants, such as censoring information or producing formalist
solutions, to which international compliance enforcement bodies appeared rather toothless.
The problem of external compliance enforcement is unfortunately not endemic to Slovakia,
but fairly widespread. The pressure of vertical Europanization may be difficult to seize due to
systemic issues of a larger scale, such as the EC relying on non-binding law and lacking
authorization to actively inspect non-compliance in the member states (Hartlapp and Falkner,
2009). Horizontal Europanization has been protracted by OMC which is not strong enough to
bring countries to exchange good practice and implement it in a participatory cooperation
with NGOs (Fredman, 2008). Furthermore, participatory involvement is held back also by the
prevalence of the individual justice model which is not pro-active and systemic (McCrudden,
2001). Consequently, most member states have not institutionalized either the equality duty,
or the duty to monitor equality mainstreaming and collect equality data. Even research on
compliance has been geared towards individual adherence to rules rather than the role of PIs
in enforcing them (Hartlapp and Falkner, 2009). Mechanisms for the national coordination of
equality data collection and AD policy-making based on evidence therein have
overwhelmingly not been devised. HRMF and EMF frameworks by EHRC in the UK could
be seen as rare, though inspirational exceptions.
Many states argued against equality data collection by the need to protect the privacy of an
individual, yet Simon (2007) claimed it conceals the real issue which is the states’
unawareness (or ignorance) of the role statistics play in proving indirect discrimination.
Hidden in standards of practice upon which states fail to reflect (Henry, 2010) (unintentional
being by no means excusable), institutional bias can go as far as introducing a special
classroom for slow learners full of Roma children, high unemployment rates among people
with disabilities, or the fact that only a handful of women hold important decision-making
positions while the overwhelming majority are left to endure an extremely long and low paid
parental leave, to cite a few examples from the Slovak context. Top-down compliance
monitoring by EC and CJEU is too often relativized to politics of ranking, where champions
(Sweden) do better if usual suspects (Slovakia) do worse, instead of fair measuring of the
progress in AD implementation tailored to the specifics of each member state, eventually
leading to a common EU equality standard (Verloo and Van Der Vleuten, 2009). As shown
by Hartlapp and Falkner (2009), rather than cases of states’ non-compliance, the EC presents
82
favorable statistics of its own interventions, even though they vastly deal with the least
serious infringements. Compliance enforcement bodies thus, likewise states, may be
susceptible to window-dressing behavior, when they wish to preserve their reputation as
guardians of the EU law.
In the present report I propose that the implementation of AD could be aided by DBA.
Focusing on different types of duties rather than different types of rights represents a more
sophisticated implementation tool (Fredman, 2008). Under DBA, the liability for the respect,
protection, and fulfillment of rights always lies on PIs as duty-bearers even without a single
claim from a rights-holder. The dominance of the individual justice model should be balanced
with a greater inclusion of group and participatory justice models and their respective
measures (McCrudden, 2001). Rights are transformed into the tangible mandate of PIs, of
which implementation is measureable in terms of performance and compliance (Office of the
High Commissioner for Human Rights, 2012a). We suggest that AD compliance monitoring
could serve as a valid instrument to assess the level of PI compliance for stakeholders in
general, as well as a tool of empowerment designed to reinforce the position of equality
groups in holding PIs accountable for AD implementation. By emphasizing the duties of PIs
in respect to each of their rights, rights-holders from civil society would gain a new
discursive leverage (Schmidt, 2010).
Although the idea of AD compliance monitoring could be rather revitalized than novel
(though it might have borne various other names), it requires further country-based
conceptualization regarding the definition and scope of terms such as equality and equality
duty (Fredman and Spencer, 2006), AD (see chapter 6.1.2), (non)compliance (Hartlapp and
Falkner, 2009) and (non)implementation (Pincus, 2002). A sound methodological proposal
for the two-fold delivery of equality duty was introduced by Fredman and Spencer (2006).
Outcomes, action, and progress shall be in focus of the general equality duty. In Slovakia, it
consists of the prohibition of discrimination and the duty to adopt measures to prevent
discrimination, as stipulated by ADA. To prevent over-bureaucratization and apathy from
over-regulation in PIs, specific equality duties are to be formally established by each PI.
However, specific duties should always include duty to consult with equality groups, acquire
evidence of discrimination, identify the cause, adopt an action plan outlining necessary and
proportionate steps, continuously implement it, and monitor progress (Fredman and Spencer,
2006). The content of ‘necessary and proportionate’ and other guiding steps, inter alia duties,
would be decided upon by each PI autonomously. These steps were echoed also by the
present research participants as the path AD implementation and compliance monitoring are
to follow in Slovakia.
Participants suggested two major lines of intervention, one by creating a specialized
monitoring institution, and the other by launching institutional audits. The former variant
would serve as an umbrella for the equality and HR monitoring project across the board from
individual to policy problems, with powers to enforce the equality duty and even inflict
sanctions for non-compliance. Such monitoring institution would possess stable resources,
expertise in implementing AD and doing research, and it would closely collaborate with
83
equality groups and all other stakeholders. The latter alternative would be aimed at increasing
the inclusiveness of PIs themselves, as they can hardly be expected to enforce the equality
duty externally when internally they are controlled by anti-equality bias. In both types of
compliance monitoring, participants mentioned several possibilities for adapting good
practice examples from abroad and translating them in local conditions. The least biased and
the most cooperative institution could be chosen for a pilot audit, covering everything
connected to mainstreaming ND in access to HR, such as structure and treatment of
employees, approach to service users and accessibility. If successful, chances are that other
PIs would later follow suit.
The transformation to duties should also be reflected in the making of country-specific
compliance indicators and benchmarks, which are currently underdeveloped (Hartlapp and
Falkner, 2009). Participants suggested they could collaborate with PIs on their development.
Different compliance indicators would apply for inter-institutional monitoring (e.g., adequate
number of school inspectors deployed to monitor inclusiveness) and for intra-institutional
monitoring (e.g., a teacher’s method of instruction to determine a school’s level of
inclusiveness). Methodologies relying on indicators such as OPERA (Corkery, Way and
Wisniewski Otero, 2012) could become useful.
Alternating the discriminatory culture in PIs to one where the promotion of equality is valued
and prioritized is a challenge on its own. In Fredman’s interpretation (2011), it necessitates a
solid ‘pyramid of enforcement’, often composed of equality bodies, inspectorates and courts
– bodies that provide cooperative guidance to other public and private subjects during their
compliance and impose sanctions for non-compliance. PIs responsible for enforcement have
the foremost obligation to be reflective of their own anti-equality bias. In the discussion, I
contributed some ideas from literature that could help alleviate PI resistance inhibiting (or
even prohibiting) equality mainstreaming (Henry, 2010; Lindholm, 2012; Spets, 2012).
Though changing organizational culture is a long and frustrating task, some comfort can be
found in realizing that resistance is indeed a sign of the change beginning. By the same token,
it may feel depressing to analyze power relations and conclude their oppressiveness, yet only
the visible can be properly addressed (Spets, 2012).
In order to promote the implementation of AD, equality groups and NGOs representing them,
shall actively participate throughout the whole process of action on equality (Fredman and
Spencer, 2006), and not only formally in consultative bodies (Krizsan, Skjeie and Squires,
2012). This means they should be equally involved in the creation and application of AD
compliance monitoring. People in NGOs have experienced discrimination and inequality
either first-hand, or learned about it in detail from their service users and members.
Consequently, they have developed strategies for monitoring and resolving problems
connected to AD. With that said, the involvement of NGOs can hardly be possible without
continual political and material support from PIs. Participants wished that PIs genuinely
accept NGOs as experts, partners, active participants, and independent guardians of the
decision-making process leading to the implementation of AD measures. The success of the
leveling-up process pushed forward by bottom-up pressure from NGOs presupposes
84
cooperative relations with PIs (Coston, 1998). By refuting the idea of institutional pluralism,
PIs are obstructing the democratic development in the country (McCrudden, 2001).
With the uncompromising instruments of DBA and AD compliance monitoring added to the
portfolio of rights-holders, it is hoped that PIs in Slovakia could no longer find excuses for
AD non-action or counter-action and gradually would be more likely to commit to the
compliance world of law observance over the one of dead letters.
85
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Appendix 1
Anti-discrimination compliance monitoring posited in the scheme of duties
legal instruments
International:
CCPR,
CESCR,
CEDAW,
etc.
Duty-Based Approach (DBA)
European:
ECHR, ESC
National:
ADA (2004)
the general
prohibition of
discrimination
adopting measures for protection against discrimination
everyone
state (public institutions at state, regional local level)
case law
(ECtHR)
negative
positive
Maastricht
Guidelines
(2000)
respect
The general
equality duty in
Slovakia
duty bearers
type
of
duty
the principle of equal treatment
protect
(also due diligence and impact assessment)
fulfill
type of action
non-action
reactive
proactive
the principle of nondiscrimination
/equality
not
discriminate
eliminate discrimination
prevent discrimination
/inequality
promote / achieve equality
theory: justice
models
(McCrudden, 2001)
/treat unequal
N/A
individual
AD law
practice: type of a
measure
specific duties
(Fredman and
Spencer, 2006)
N/A
duty to refrain
from discrimination
group
positive action
measures,
(complaintsbased litigation)
actio
popularis
(complaint in
group/public
interest)
duty to
eliminate
discrimination
of individuals
duty to
eliminate
discrimination
of groups
duty to collect
equality data
duty to remedy
duty to
95
participatory
nondiscrimination
mainstreaming
reasonable
accomodation
duty to take
positive action
measures (upon
duty to
promote/
mainstream
equality:
duty to get
discrimination
non-exhaustive list
duty to sanction
discrimination
remedy
discrimination
duty to
sanction
discrimination
the evidence of
structural
inequality/
discrimination)
baseline
evidence on
discrimination
and equality
duty to
diagnose the
causes of
inequality
duty to consult
duty to have
an action plan
setting out the
necessary and
proportionate
steps
duty to take
the necessary
and
proportionate
action on an
ongoing basis
duty to
monitor
progress
duty to report
cross-cutting duties
N/A
duty to promote participation, access to information, accountability
the general duty
equality duty
(Fredman and
Spencer, 2006)
each PI
“…take such steps as are necessary and proportionate to eliminate
discrimination and to achieve the progressive realization of equality
(as defined)“
equal life
chances
duty to ensure equal opportunities and representation for groups at
risk of discrimination
equal dignity
and worth
duty to promote respect and eliminate stigma, harassment, degrading
treatment and violence against groups at risk of discrimination
affirming and
accommodating
difference
duty to promote shared values, while accommodating different
identities, aspirations and needs of equality groups, such as
‘reasonable accommodation’
equal
participation
duty to involve equality groups in decision-making in both
institutional structures and processes on an equal and participatory
basis
A four-dimensional
definition of
equality
(Fredman and
Spencer, 2006)
96
implicit (EU,
Slovakia), explicit
(U.K.)
N/A
research problem
N/A
target
N/A
scope
equality data
sources
Duty to monitor
N/A
N/A
AD compliance monitoring
discrimination
of individuals
discrimination of groups
nondiscrimination
mainstreaming
direct
discrimination
indirect discrimination
all AD
measures
(policies,
plans, etc.)
complaints data,
victim surveys,
self-report
surveys,
discrimination
testing
official statistics (administrative
records, census)
national
knowledge
base on
equality
(Makkonen,
2007a)
event/situation
monitoring
human rights indicators (the
Office of the High
Commissioner for Human
Rights, 2012a)
fact-finding
human rights/
discrimination
monitoring
(Jacobsen,2008)
work place and service delivery
data

quantitative (numerical)
or qualitative
(checklist)

equality data
collecting method/
instrument
fact-based (objective)
or judgment-based
(subjective)

N/A
structural, process,
outcome
human rights benchmarks

empirical (countrybased) or normative
(standard-based)
indicators of availability,
accessibility, acceptability and
adequate quality
disaggregated by prohibited
grounds of discrimination
97
Monitoring at
all states of
AD policy
making and
implementing
compliance
and
performance
indicators (the
Office of the
High
Commissioner
for Human
Rights, 2012a;
Hartlapp and
Falkner, 2009)
HRMF
(EHRC, 2011)
EMF (EHRC,
2009)
OPERA
(Corkery, Way
and
Wisniewski
Otero, 2012)
Appendix 2
INTERVIEW GUIDE:
Interview about the methodology of monitoring AD
General

What is your name?

What NGO do you work with? For how long?

What is your position in the NGO? What responsibilities do you have there?

What does your NGO do in the area of AD?
Discrimination

In what context do you deal with discrimination? Who are your main target groups?

Do your service users or target groups experience discrimination? (most commonly on
what grounds?, do some grounds combine?, what forms of discrimination?, in what
environments?)

Do your service users or target groups experience discrimination from public
institutions?
Public institutions
Given the legal duty of the state and public institutions to take concrete, deliberate and
targeted measures to prevent and eliminate discrimination in protection and exercise of
human rights of all residents (all people in the territory of Slovakia or/and citizens and legal
residents of Slovakia), how do public institutions fulfill this duty based on your experience
and opinion?

Do they adopt and implement laws, policies, plans, strategies, incentives, sanctions,
remedies, etc. towards themselves and / or towards other public or private entities?
What are they? What is their impact on various levels of governance? (horizontal and
vertical inter-sectionality)

Do they monitor and evaluate the implementation (efficacy) of these measures
towards themselves and / or towards other public or private entities?

Do they engage individuals and groups threatened/ affected by discrimination into
creation and selection of those measures?
98

Do public institutions intervene in cases of discrimination? If yes, how efficient are
their interventions? If no, what are problems/barriers?

Are measures against discrimination taken by public institutions preserved in their
institutional memory for a long time? (i.e. are they formalized in public policies or
isolated actions that are easily forgotten by institutions e.g. when the staffs are
replaced?)

What is the capacity (human, financial, material) of public institutions for taking
measures to prevent and eliminate discrimination?
Monitoring

What is the experience of your NGO with
antidiscrimination)? (who, what, where and outcome)

Why do you consider monitoring the fulfillment of the duty of the state and public
institutions to take measures to prevent and eliminate discrimination important?

What should be the basis for methodology of monitoring? (in general and from the
perspective of your organization)
monitoring
(especially in

Who should monitor?

What should be monitored?

How should it be monitored?

What should be the outcome of monitoring and what happens after? (a goal or
a mean?)

Do you consider monitoring a strategy that your NGO will (continue to) support and /
or use? What would you like to monitor? How would you monitor it?

What conditions would enable your NGO to use monitoring or involve in it (to
a greater extend)? Who should provide these conditions?
99
Appendix 3
Participant Target Group / discrimination grounds
Interview date, place,
time length
A
all groups/ all grounds (main focus on gender, sex)
7.3.2012, telephone
interview, 01:11
B
women / gender, sex
8.3.2012, Bratislava,
01:10
C
D
Roma, migrants, new minorities/ ethnicity, race,
2.3.2012, Bratislava,
foreign origin
01:28
Roma/ ethnicity, gender
22.2.2012, Bratislava,
01:44
E
LGBT/ gender, sexual orientation
1.3.2012, Bratislava,
01:14
F
transgender/ gender, sexual orientation
9.3.2012, Bratislava,
00:48
G
H
people with disability, impaired vision/ disability,
1.3.2012, Bratislava,
age
01:07
older people/ age, disability
29.2.2012, Prievidza,
00:40
I
J
homeless, sex workers, HIV positive, Roma/ social
5.3.2012, Bratislava,
status, ethnicity
00:41
migrants, refugees/ foreign origin, race, ethnicity
8.3.2012, Bratislava,
01:30
100
K
L
migrants, Muslims/ religion, ethnicity, gender,
9.3.2012, Bratislava,
foreign origin
01:15
Roma, migrants, new minorities/ ethnicity, age
8.3.2012, Bratislava,
01:03
M
N
all groups/ all grounds (main focus on gender, age,
2.3.2012, Bratislava,
ethnicity)
00:35
women/ sex, gender
2.3.2012, Bratislava,
01:05
O
Roma, children, women / ethnicity, age, gender
7.3.2012, Bratislava,
01:11
P
R
Roma, women, older people, children / ethnicity,
29.2.2012, Banská
age, gender
Bystrica, 1:28
Roma, children, women / ethnicity, age, gender
29.2.2012, Banská
Bystrica, 00:17
S
Roma, socially excluded / ethnicity, social status
1.3.2012, Bratislava,
34:07
T
U
Migrant, children, LGBT/ foreign origin, ethnicity,
5.3.2012, Bratislava,
race, age, sexual orientation
53:79
LGBT/ sexual orientation, gender, sex
1.3.2012, Bratislava,
1:07
V
X
people with mental and behavioral disorders/
9.3.2012, Bratislava,
disability
01:15
people with physical disability/ disability
7.3.2012, Bratislava,
34:07
101