What is discrimination?
Discrimination occurs when a person is treated unfairly, without an objective reason, simply because of who they are. Discrimination occurs when the skills, capabilities and circumstances of a person are not individually assessed, but negative attitudes and stereotypical assumptions are made instead, based on an individual’s personal traits, such as race, ethnicity, religion or belief, sex (gender), language, sexual orientation, disability, age or other status. Discrimination can take different forms, occur in different realms of life and can take place with or without any intention. Discrimination results in the exclusion and rejection of people, and in a denial of their rights.
Discrimination & Human Rights
You have the right to enjoy your human rights on an equal basis with other individuals, free from discrimination. The prohibition of discrimination serves as a foundation for all human rights.
Different laws have differing degrees of protection against discrimination.
In human rights law, the right to equality and non-discrimination is protected in two ways. In some laws, the prohibition against discrimination is not an independent right, but relates only to the other rights and freedoms protected by those laws. For instance, the government has to respect your right to private and family life, the right to a fair trial, etc. without discrimination.
example This approach can be seen in the European Convention on Human Rights. Article 14 of the Convention provides that the rights protected by the Convention shall be protected without discrimination on any grounds. Therefore, the complaint about discrimination can be submitted only if it is related to another Convention right.
In some laws, however, the prohibition of discrimination is an autonomous, free standing right, not related to any of the other rights in the law. This right does not depend on whether another legal right actually exists and has been violated.
example Article 12 of the Constitution of Estonia provides that no one may be discriminated. It is an autonomous right which may apply to any area regulated by the State.
Obligations of the State
The prohibition of discrimination includes both negative and positive obligations by the State. A negative obligation means that the State, namely, public authorities themselves, must not discriminate. This means that the State has to avoid adopting laws, policies and programmes that are discriminatory, and public authorities should not apply or enforce laws and policies in a discriminatory manner. For example, the Parliament cannot adopt a law stipulating that only men are allowed to work in the police, but not women. A state agency cannot deny unemployment benefits to Muslims.
However, equality cannot be achieved if only public authorities have an obligation not to discriminate. Therefore, the State also has a positive obligation to ensure that discrimination does not occur through the actions of individuals. In these cases, you should look for specific laws regulating certain areas of life and the protected characteristics mentioned. For example, in Estonia the law prohibits discrimination on grounds of ethnicity in access to goods and services. For example, allowing only ethnic Estonians into a night club is not permitted.
In certain cases, public authorities may also take measures to promote equality and remove barriers that prevent certain groups of individuals (e.g. persons with disabilities) from exercising their rights in the same way as others. For example, in Estonia an employer has an obligation to adjust a workplace to allow a person with a disability to perform the tasks required, but there are no specific obligations on adjusting a workplace for persons without a disability.
Articles 2, 26
10 November 1989
2 July 2009