- Understanding the concept of discrimination and anti-discrimination.
- Grasping the roots of discrimination and harassment around the world.
- Analysing the various anti-discrimination regulations adopted by different countries.
The term discrimination in general sense means the “unfair”, “unjust” or “prejudicial” treatment of different categories of people by the people who consider themselves superior to such people. The discrimination could be done on the grounds such as “age”, “ethnicity”, “sex” or “disability”. It can be of two types, i.e. “individual discrimination”, which is done by the individuals and the “structural discrimination”, which arises by the policies or legislations which shows such people as disadvantaged groups. The discrimination has become a matter of serious concern as people nowadays have become much more insensitive and have started harassing people whom they consider inferior to themselves, which affects the lives of victims both emotionally and emotionally as they feel isolated from the society. Thus, to abolish this practice of discrimination, many countries have adopted the anti-discriminatory laws to protect such people from both individual as well as structural discrimination.
DISCRIMINATION AND HARRASMENT ALL AROUND THE WORLD:-
Article 2 of the Universal Declaration of Human Rights prohibits the discrimination based on certain grounds such as gender, religion, colour, caste etc. But are we all really treated equal? The answer to this question is unfortunately NO! Explaining discrimination is simple but what difficult is explaining “why it happens?”
The human brain is naturally sensitised in categorising the things and it is an irony that our society has been divided into two groups of “favourable” and “unfavourable” based on the grounds which were supposed to be the grounds of non-discrimination. Discrimination occurs when the favourable section of the society start to differentiate themselves with the unfavourable section. The gender distinction and the class distinction are the two most common types of discriminations which could be seen easily in any country. For example, even a small kid knows the distinction between a boy and a girl, while with regard to the class or religion, protests and murders are still committed for expanding the frequency of the favourable section. Thus, we can say that the root cause of discrimination is the fear or misunderstanding of getting treated unfavourably.
THE VARIOUS ANTI-DISCRIMINATORY PRACTICES ADOPTED BY VARIOUS COUNTRIES:
- UNITED STATES OF AMERICA:
The federal law of the USA makes it illegal to discriminate against an employee on the basis of his colour, race, national origin, sex (including gender identity, sexual orientation and pregnancy), age (40 or older), any disability or genetic information. Moreover, it also makes illegal for an employee to harass or retaliate any employee if he/she complained about discrimination or has participated in any investigation related to the employment discrimination. The employers having at least 15 employees are covered by this body of federal law. In order to reduce this employment discrimination, the following legislations having been implemented in the Republic of the USA:
- Title VII and Title II of the Civil Rights Act of 1964:-
This legislation prohibits the discrimination done against any employee on the grounds of the colour, race, sex, religion or national origin. Further Title VII and other federal anti-discriminatory laws provides protection to the employees against any retaliation faced by him from filing a charge of discrimination or providing assistance in the investigation of the matters relating to employment discrimination
- Age Discrimination in Employment Act (ADEA):-
This act was implemented by the US government to prohibit the employment discrimination faced by the people aged 40 years or more.
- Americans with Disabilities Act (ADA):-
This federal law prohibits the employment discrimination against the individuals with a disability (including legal disability). The definition of “disability” has been narrowly interpreted by the Supreme Court in its various landmark judgments. The Amendment Act of 2008 overturned these decisions of the Supreme Court and introduced many more health conditions which will also fall under the criteria of “disability”.
- Equal Pay Act (EPA):-
This legislation is an amendment to the “Fair Labour Standards Act” which demands for the equal payment of wages for the employment of all the sexes performing the similar work.
- Pregnancy Discrimination Act (PDA):-
It is an amendment to Title VII and prohibits the discrimination against an employee because of pregnancy.
- Genetic Information Non-Discrimination Act (GINA):-
This legislation prohibits the employers from discriminating their employees based on their “genetic information”. The act also prohibits the employers from requesting and purchasing of an employee’s genetic information, except in some exceptional circumstances. Under GINA, the genetic information means “the information about the ‘genetic tests’ of an individual or his family members and information about the manifestation of a disease or disorder in family members of such individual. Medical tests such as blood counts, cholesterol screenings or liver function tests are not genetic tests.
- The Immigration and Nationality Act (INA):
It prohibits the employment discrimination based on the national origin of an individual. The US citizens, nationals, asylees, refugees, and recent US permanent residents are protected under the citizenship provisions of this law. Moreover, the law also prohibits the practice of unfair documentation and demands the employers not to request for any document by the individual, which is not required by the law for determining the eligibility of an employee.
- EUROPEAN UNION:
The authorities of the EU countries are bound to comply with the provisions of the “EU Charter of Fundamental Rights”. However, since the fundamental rights are protected by a country’s constitution, this complication is only required while implementing the EU laws. If someone breaches our rights, then a complaint could be made to the relevant national authority, government, national courts or a specialised human rights body. Chapter 3 of the Charter of Fundamental Rights deals with the provisions of equality, which provides for the following rights:
- Equality before law.
- Cultural, religious and linguistic diversity.
- Equality between men and women.
- The rights of the child.
- The rights of the elderly.
- Integration of persons with disabilities.
The provisions of Article 21 of the Charter deals with certain grounds on which the discrimination is prohibited. These rights are broken down into different categories and are protected by the “European Commission” through the following directives:-
- Directive 2000/43/EC prohibits the discrimination based on an individual’s race and ethnic origin.
- Directive 2000/78/EC prohibits the discrimination at workplace on the basis of the employee’s religion or belief, disability, age or sexual orientation.
- Directive 2006/54/EC ensures for the equal treatment of men and women in the matters related to employment and occupation.
- Directive 2004/113/EC provides equal access to the supply of goods and services to both men and women.
- Directive Proposal (COM (2008) 462) prohibits the discrimination based on age, disability, sexual orientation and religion or belief beyond the workplace.
At present, in India, there is no specific law concerning anti-discrimination. Therefore, we can say that the vision of our constitution for our society is still not fulfilled. However, what we have is only some scattered laws which deals with this issue:-
- Article 14 of the Indian Constitution:
This article of the constitution provides for the right to equality and that no one is above the law.
- Article 15 of the Indian Constitution:
Article 14 is followed by article 15, which states that “since everyone is equal before the eyes of law, therefore, no person shall be discriminated on the grounds of his caste, gender, race, disability or nationality”.
However, these provisions are applied only against the State and not against the private organisations or individuals. Moreover, the non-discrimination in article 15 is subjected to three exceptions vis:
- The state has the authority to make special laws for women and children for their welfare.
- The state can also take measures to advance the condition of the SC and ST individuals, who are educationally backward.
- It can also take measures to advance the other socially and educationally disadvantaged groups of our society including SCs and STs.
- Section 153A of the Indian Penal Code, 1860:
This provision of the penal code “criminalises the use of language or gestures that promote discrimination or violence against people on the basis of race, gender, caste, sex, place of birth, religion, sexual orientation or any of them.”
- Anti-Discrimination Bill and Equality Bill, 2016:
This is a piece of writing, which has not become a legislation yet. This bill was passed by MP, Shashi Tharoor to bridge the gap of the discrimination since the present laws applies only to the states. This bill covers all the aspects concerning discrimination and is applied against all sectors of the society, whether formal or informal, organised or unorganised.
- Equality Bill, 2019:
It is another piece of writing, which is still pending to become a legislation. This bill also like the bill of 2016, covers all aspects of discrimination in a wide ambit and is applied against all peoples and authorities of the state.
- UNITED KINGDOM:
The Equality Act, 2010 is a legislation followed in UK which protects an individual from the unfair treatment on the basis of some personal traits. The act prohibits the discrimination based on:
- Religion or belief
- Sexual orientation
- Marriage or civil partnership
- Pregnancy and maternity
The act covers a wide range of places and organisations and also authorises the public bodies such as local authorities, hospital trusts and police authorities with the duty of preventing the discrimination, which is called the “Public Sector Equality Duty”. The act covers a wide range of places and organisations and also applies to the places providing goods and services and the matters concerning employment. Thus, in a nutshell, we can say that the act protects an individual from numerous things like direct discrimination (unfair treatment because of a personal trait), indirect discrimination (when a good or service possesses a criteria including the protected characteristics), harassment (behaviour which makes an individual feel intimidated or humiliated) and victimisation (retaliation faced due to complaining or investing in the matters concerning discrimination).
Discrimination has become a very sensitive issue in the modern world as the factors like religion, colour, gender, age or a disability are now being used as a weapon to harass any individual. The main reason behind such discriminative practices is the mind-set of the people who are given a favourable status in the society. The unfavourable ones are targeted by the favourable ones. Another factor leading to the discrimination are the laws and policies which shows the unfavourable section of the society as a disadvantaged group. Such type of discriminatory practices are called individual and structural discrimination respectively. The gender and class distinction are two most common types of discriminatory practices followed in any country.
The above analysis makes it ample clear that the states have started realising the need of the anti-discrimination laws in the today’s era and have adopted various measures to control this inhumane practice. However, there are still seven countries (China, India, Indonesia, Japan, Jordan, Korea. Saudi Arabia and Switzerland) which do not have any comprehensive law related to anti-discrimination.