9. Nevertheless the concept of ‘indirect’ discrimination has its limits. The concept
of indirect discrimination, though prohibiting conditions that disadvantage
certain groups, does not require positive measures to ensure that any existing
disadvantage or difference is overcome or accommodated.
10. Additionally the ‘indirect discrimination’ model only prohibits ‘unjustified’
discriminatory conditions. So where individuals claimed to have been
discriminated against because they were retired and the government’s
decision to abolish some benefits disproportionately affected them, the Human
Rights Committee held that as this did not disproportionately affect those of a
particular race or colour and the abolition was based on reasonable and
objective grounds, no violation occurred.124
Burden of proof
11. It is generally for the applicant to show that they have been treated differently
from a person in a comparable situation.125 Once the applicant has shown a
prima facie case, the burden will shift to the State to justify the discrimination.126
Using Positive Action to Tackle Entrenched Discrimination
12. An obligation to bring about change by the imposition of a positive duty so as
to tackle structural disadvantage goes further towards securing substantive
equality, and this is recognised in a number of international and regional
human rights treaties.127 Such an approach is sometimes considered
controversial because of the assumption that positive duties, or affirmative
action, violate conventional principles of equality. Yet it does represent the high
point in the protection against discrimination.128 Positive action measures may
not amount to unjustified discrimination and must therefore be temporary,
reasonable, objective and proportionate.129
13. States also have obligations in relation to specific groups. These include the
duty to:
eliminate stereotypical roles for men and women as well as gender-based
violence;130
124
Human Rights Committee, Communication 998/2001, Althammer v Austria, 22 September 2013;
European Court, Marckx v Belgium, 13 June 1979.
125 European Court, Fredin v Sweden, 18 Feb 1991.
126 Human Rights Committee, Communication 208/1986, Bhinder Singh v Canada, 9 November 1989;
Committee Against Torture, Communication 185/2001, Chedi Ben Ahmed Karoui v Sweden, 25 May
2002. European Court, DH and others v Czech Republic, 13 Nov 2007.
127 Human Rights Committee General Comment No.18, HRI/GEN/1/Rev.9 (Vol. I) p.195 (1989), para
10; ICERD, Article 1(4) and Article 2(2); CERD, General Comment No.32, CERD/C/GC/32 (2009);
Article 4(1) CEDAW; General Recommendation No.25, CEDAW Committee; ICESCR General
Comment No.16, E/C.12/2005/4 (2005), para 15. See also Article 3(3) Arab Charter.
128 See Human Rights Committee, Communication 198/1985, Stalla v Costa v Uruguay, 9 July 1987
129 CERD, General Comment No.32, CERD/C/GC/32 (2009), paras 16 and 21. CEDAW General
Recommendation No.25.
130 CEDAW, Articles 2(f), 5 and 16(e) and CEDAW Committee, General Recommendation No.19,, 11th
Session (1992), para 24.
42
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