Discrimination Human Rights

Is discrimination ever tolerable? When should discrimination become a human rights issue?

If one had to explain what exactly discrimination is, in the context of mutual human relations, one could simply say that it is an action in which an individual is treated unfairly in comparison with another person, under similar circumstances. But the issue is far more complex than could be expressed so briefly as there are many forms of discrimination, both direct and indirect. While defining discrimination in plain and simple language would not be possible,  it can be stated that discrimination becomes noticeable only when a person is unjustifiably excluded from an activity or expelled completely from a group of people; and after it becomes noticeable it also becomes a human rights issue and needs to be dealt with seriously.

While unfairly treating a person or group of people differently from other people or groups of people can be termed as discriminatory and illegal, it certainly does not mean that discrimination is always unlawful. Two common examples of justified discrimination are affirmative action and varying height requirements for men and women who wish to be part of the Police Force. This kind of discrimination is, in fact, aimed at ironing out the existing inequalities. Affirmative action is used to give opportunities to already underrepresented groups. Similarly, having different height requirements for men and women means women are given an equal chance to be part of the Police Force.

There are instances where discrimination becomes absolutely essential and if not practiced there is a serious risk of causing harm to one or more persons. One would not expect a blind person or a person with limited vision to be issued with a driver’s license. The act of discriminating against him in this case, is crucial in ensuring his own safety and the safety of people on the road. In other words, discrimination against people with some kind of physical or mental disability becomes vital when it means putting them in life endangering situations. Similarly, one would not hire a person with learning disabilities to teach school children. One needs someone who can effectively teach the students and that would be impossible in this case. Discrimination in cases where a person is considered to be unqualified for a particular job should not actually be regarded as discrimination at all. If a person is not qualified for a particular profession or job, there might be many other opportunities that fit perfectly with their skills and expertise.

Discrimination in Society

Instances of justifiable gender discrimination can be seen in society and are definitely not considered to be wrong. A woman is treated with love and affection by her boyfriend. He would not do the same with one of his male friends, (if he’s heterosexual) and this is not discriminatory at all. Justifiably, a man with a terminal disease would either be unable to get health insurance or get it at a very high rate. A person who gets pulled over for driving drunk a couple of times, may get his license revoked and this is definitely rational discrimination.

The only negative side to defending certain forms of discrimination is that sometimes the line between the benefits and harms of discrimination is somewhat distorted. What seems right at the time from every logical angle may eventually turn out to be discriminatory in the future. In many ancient societies women were rarely allowed outside the house; they were considered to be weak and mentally less capable and therefore, not fit to do things other than household chores. At that time this was considered to be the norm but today it comes under gender-based discrimination. The only rational way to decide on an issue like this is to consider whether the particular discrimination has more benefits or harms and to decide accordingly.

Generally, discrimination becomes illegal when it is carried out in respect of a person (persons) belonging to a specific social group. If one doesn’t hire a mentally challenged person for a teaching job that would not be discrimination but if one excludes him simply because he is Asian, it definitely comes under discrimination. If this happens in rare instances, the said individual could always find a job elsewhere but if it becomes a general practice in society, whereby the person is unable to find a job anywhere, it is social discrimination. This means a personal dislike for a certain social group cannot always be fought against; every human being has the right to have likes and dislikes. However, if this dislike is so widespread in society that it affects a person’s right to a normal life, it is clearly discrimination.

Even in cases where the intention was not to discriminate, if the final outcome is the exclusion of a particular group and unequal opportunities for them, it will still be called discrimination. For example, if there is the same height requirement for men and women who wish to enter the army, this would mean fewer women would get in. If this gender inequality is present in other parts of society as well, then it means fewer employment opportunities for women and therefore, it is definitely discriminatory even if the intent was not there.

There are certain factors that are uncontrollable and therefore, being discriminated against on account of these factors is completely unjustified and unlawful. For example, one has no control over the color of one’s skin or one’s country of origin. Discrimination based on these factors, is thus all the more unfair.

There are five main factors which are used to discriminate against individuals. Discrimination against people from a particular race or a certain ethnic background is the most common one. Treating a person unfairly because of his/her sexual preferences is another. Using a person’s religion or belief system against him in a way where he is denied equal opportunities and is unable to profess his beliefs is also wrong. Age-based discrimination, whether it is because the person is too young or too old is still unjust. The last is unfavorable treatment of people with disabilities, both in employment and in general dealing.

Discrimination
Discrimination

Most countries in the world have some form of legislation to deal with cases of discrimination. The people of New Zealand, for example are protected against discrimination in a number of different areas in accordance with the Human Rights Act 1993 and with United Nations conventions. Similarly, the Employment and Industrial Relations Act (2002) completely prohibits discrimination in the workplace. Federal law prohibits discrimination based on (but not limited to) race, sex, religion, disability or age and yet it is only the state of Michigan and 6 other cities that have actually imposed a ban on discriminating against hiring people who are overweight. It is understandable if obese persons are unable to perform their duties but to overlook them simply because they don’t look good is completely unwarranted. The Citizens Medical Center in Texas only hires people with a body mass index less than 35. They claim that the intent is to hire people who appear normal and therefore do not attract attention to themselves. The policy clearly goes against the federal law on discrimination. Certain companies refrain from hiring smokers which is justifiable considering the side effects of the habit and the consequent higher health insurance premiums for such people. However, any form of physical appearance, which does not hinder the person from performing his work efficiently, cannot be used to discriminate against him. Appearance discrimination indicates intolerance towards the physical appearance of people which is completely and totally unjustified.

There are several courses of action that can be taken by a person who is being discriminated against. Going to court is one option but before going to the court one can also file a complaint with one of the several government bodies. These include the Industrial Tribunal  (under the Employment and Industrial Relations Act, 2002), the National Commission for Persons with Disability (under the Equal Opportunities (Persons with Disability) Act) , the National Commission for the Promotion of Equality for Men and Women  (under the Equality for Men and Women Act), the Public Service Commission (under the constitution of Malta), the Ombudsman (under the Ombudsman Act), the Broadcasting Authority (under the Constitution of Malta), and the Employment Commission (under the Constitution of Malta) .

In order for the authorities to take action, the complaint must be made by the victim himself. Legal Notice 461 0f 2004 and Legal Notice 85 of 2007 however, allows people or organizations with a legitimate interest in the case, to support the individual in judicial or administrative procedures, with his permission. By law, the National Commission for Persons with Disability has the power to assist such people. The assistance could be of a financial or legal nature or it could simply be help in writing the complaint. The Commissioner for the Promotion of Equality is empowered under Article 11 of the Equal Treatment of Persons Order, to investigate the matter and to take necessary steps if the complainant needs help in formulating the complaint itself.

Under the Employment and Industrial Relations Act, if there is a case where an employee has been dismissed without due cause or if there is any other violation under Title 1 of this Act, the matter will be transferred to the Industrial Tribunal for a decision, following a referral made by the complainant or someone acting on his behalf.

Conclusion

To conclude it needs to be emphasized that the defining factors in the act of discrimination change with time. What we consider a normal act today, might become discriminatory in the not-too-distant future. However, discriminatory actions against certain individuals or a particular group have far-reaching consequences and therefore cannot be taken lightly. Steps have to be taken to regulate society through effective legislation and through regulatory bodies that can take action against individuals or parties that are guilty of such discrimination.

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