What is equal treatment?
Freedom and equality are seen as a general good, a prerequisite both for the individual self-fulfilment and for contributing to human development. Freedom and equality are concepts that are used a lot, but the deeper content of which is not much discussed in ordinary life, as they may seem self-evident.
There is also a tendency to confuse concept pairs difference-similarity and equality-inequality. The difference is the nature of a normal society. All people differ from each other in their appearance, interests and activities, choices and abilities, but they are equally human. Most generally, the concept of equality refers to the relationship between two or more people or groups of people in a field or situation of life. The concept of equality does not refer to making everyone the same or to the equal reallocation of material resources alone. Equality presupposes the right to be different.
The objective of equality between people is to have the same rights, obligations, responsibilities and opportunities. Everyone must have equal opportunities to obtain a good education, to work in their profession and to access services, depending on their own efforts, free from historical-cultural constraints that either hinder these efforts or reduce their desire to achieve something.
Social inequality, stratification and social exclusion
In every society, people have so-called acquired social traits (e.g., education, occupation, marital status, income) and so-called attributed traits (e.g., gender, age, race, ethnicity) that are relatively unchanged. The so-called acquired status is based on self-dependent achievements and is not absolute, but may change over time. Attributed status, however, is a socially constructed and rigidly fixed social characteristic that does not depend on specific personal characteristics, but on the membership of a particular culturally defined and labelled group.
Different valuations of people with certain social characteristics create social inequalities in the ownership of resources, power and property, and ultimately, the low status of several social groups (e.g., people with disabilities, the elderly) and the low level of community involvement. This, in turn, affects the self-determination, self-esteem and real power relations of different groups in society.
Due to their different positions in the social hierarchy, young and old, healthy and disabled persons have different opportunities and limitations. They have different (material, temporal, informational) resources, different access to power and decision-making, and thus different statuses in society. Such an arrangement has the tendency to reproduce itself and to deepen the stratification of society, which is also supported by stereotypical perceptions and prejudices of society.
For example: the work of a person and the pay receive for it, leisure time, attitudes and permitted and prohibited activities are largely divided in our society by whether they are a woman or a man.
Differences, which reflect inequalities in the rights, responsibilities and opportunities of different groups, are evident in the statistical analysis of the percentage of members of the minority group participating in one area or another and whether this corresponds to the majority participation rate. It is also necessary to analyse the causes – prejudices, stereotypes, attitudes, mechanisms of domination and subjugation, discourses and symbols that perpetuate this inequality. Particularly, in order to understand the latter, you need to know how the identity of one group or another has evolved and how belonging to it affects the individual’s image of self,[2] the power relations, practices and division of labour between social groups, and how these groups are displayed and depicted in society, for example, through which symbols and texts.
International law requires countries to take measures to improve the social situation of disadvantaged groups and to reduce stratification as a human rights limiting phenomenon.[3]
Social inequality and stratification lead to social exclusion. As a result, the feeling of powerlessness and frustration of the marginalised increases. In this way, society loses as a resource a whole group of people who could take an active part in society and in political, economic and social processes.
The Constitution of the Republic of Estonia distinguishes between equality before the law and equal protection of laws (equality rights). Equality before the law means the application of one law equally to all, regardless of the content of the law. Equal protection of the law, i.e., equality in law means the requirement that the law also essentially treats all persons in a similar situation in the same way, but also that persons in an unequal situation may be treated differently if it is objectively and legally justified. A law is considered discriminatory if it contains prejudices or if its application causes disadvantage – discrimination – of one or another social group.
Examples
If the police carry out a raid to catch drunk drivers, but only stop black Mercedes brand cars and let only their drivers blow into a breathalyser, it is an unequal application of the law, i.e., a violation of equality before the law.
If the law stipulates that only drivers of black Mercedes brand cars must not be intoxicated by alcohol, then there is inequality at the level of the law, i.e., equal protection of the law has been violated.
According to the law, everyone has the right to freely receive information disseminated for general use – thus equality in the application of the law is guaranteed – everyone has the opportunity to defend their rights.
However, if the law also provides, for example, that Braille, audio recordings, large print or other appropriate means must be used to make written information and documentation accessible to visually impaired persons, it is an equal protection of the law.
There is also a distinction between equality de jure – formal, legal equality, and equality de facto – substantive inherent equality. Equality de jure requires that the law treat all the same (equivalent to the equal protection of the law). At the same time, treating people the same does not guarantee equality, as people have different starting positions and opportunities.[4] For example, people with disabilities have a de jure right to education, but if in practice the educational establishment is only accessible via stairs, people with reduced mobility cannot exercise this right.
According to the idea of substantive equality related to the principle of the social state, persons belonging to minority groups must be created equal opportunities to participate in society according to their needs. In doing so, the prohibition of discrimination is only one part of the policies of creating equal opportunities for minority groups. It is often not taken into account that the so-called free will of the people is not really free from traditional stereotypes, discriminatory prejudices, outdated norms and people’s own experiences established in the social environment and culture. Using the example of disabled people and education again – the educational establishment will be adapted to suit disabled people, including ramps to ensure access for students with mobility disabilities, adaptation of teaching aids for students with visual and hearing impairments, but the general school culture will not be made more tolerant and capable of valuing differences.
Gender equality as equality of outcomes
The aim of eliminating gender inequality is to achieve substantive equality between two social groups of comparable size – women and men. Gender equality is defined in the Gender Equality Act as equality of results – “equal rights, equal obligations, equal opportunities and equal responsibility for women and men in working life, acquiring education and participating in other areas of society” (§ 3 (1) 1) of the Gender Equality Act). In order to measure the level of gender equality, the situation of two social groups – women and men – is compared in different areas of life. For example, gender equality is reflected in different participation of women and men in decision-making processes, different status in the labour market and economy, different responsibilities in family life, different educational choices, differences in access to resources, including time, information, networks, etc. In order to achieve inherent equality, inequalities must be reduced and the maintained values, attitudes, stereotypes and gender ideologies that have led to differences in society must be changed.
The right to equal treatment is the fundamental right of each person
The principle of equal treatment presupposes that person in an equal situation are treated equally and those in an unequal situation are treated unequally. Therefore, it is justified that employers pay employees with similar duties and responsibilities a similar remuneration, but not employees with different duties and responsibilities.
The principle of equal treatment stated in law protects the equal from unequal treatment and the unequal from equal treatment. Disregarding this principle means discrimination in case there is an absence of objective and reasonable and legally justified grounds for unequal treatment.
Discrimination, in turn, is unequal treatment on irrelevant grounds. Therefore, any unequal treatment may not be illegal. Unlawful unequal treatment or discrimination is only a different treatment of people and groups, which is prohibited by law and has no objective justification.
The norm of equal treatment acquires a specific meaning where the law(s) define who must be treated equally (to whom the prohibition of discrimination applies) and in which cases (in which fields and for which rights and freedoms). Implementation of the principle of equal treatment presupposes knowledge and recognition of what constitutes direct and indirect discrimination, and the victims of possible discrimination are aware that their options are limited by their nationality, ethnicity, age or other affiliation.
What causes unequal treatment?
A formal legal approach to individual cases or events of discrimination on a prohibited bases and in defined fields may overlook indirect discrimination resulting from structural, social, institutional or organisational processes.
The scale of discriminatory behaviour is broad, ranging from teasing and bullying to disparaging and ignoring different lifestyles or even physical violence.
This is often not so much because of malice on the part of individuals and institutions, but rather because of indifference and ignorance about the consequences of decisions, actions or omissions, practices, established practices in organisations, opinions expressed and speech imagery used.
It is a case of discriminatory and dominant behaviour when people are negatively attuned or prejudiced towards a person or a group, they are subjected to stereotyping, marginalisation, being made invisible, portrayed as childish, trivialised, etc.
Prejudice is about forming an opinion without prior knowledge. Prejudice is also acquired through the process of socialisation and are very difficult to change or eradicate. Prejudices, ideas and views developed in society towards certain groups of people are influenced by history, politics, economic and social structures. Prejudiced attitudes are learned, and relatively persistent positive or negative assessments of something or someone that does not directly determine that behaviour, but are related to adopted values.
An individual is often viewed with prejudice solely because of the group he or she is categorised into, attributing to a particular person traits that are considered characteristic of the group. Prejudices are also generalisations and estimates of the whole group based on the behaviour of one member. A single observation or individual experience develops into a prejudice especially when it is supported by social norms in the community or the attitudes of other people. In most cases, they arise in relation to groups of people with whom there are no close social relations and from whom they distinguish themselves.
Prejudices often lead to discrimination in society, and discrimination, in turn, reinforces the prevailing prejudices in society. Both relate to stereotyping – the excessive generalisation of categories of groups, where some characteristic features are attributed to the whole group. Many minority groups (ethnic, religious, gender and other social categories) are stereotyped in society. Stereotypes are persistent, not prone to rebuttal by logical debates or evidence; stereotypes have value-based, mainly negative connotations, are deeply rooted – people do not notice their existence or how they affect perceptions and activities.
For example: An employer who does not employ a female candidate does not do so specifically because of her gender, but because of his stereotypical prejudice that women are not suitable for that job.
Getting caught up in stereotypes feeds prejudices and prevents seeing other people as personalities. This creates a risk of discrimination, because an individual is judged on the basis of his or her group membership.
Usually, the group that perpetuates prejudice and stereotypes has a better social position in society. Stereotypes are thus ideological and protect the social interests of dominant groups. Manipulating stereotypes allows to influence people’s attitudes towards certain groups. The existing stereotypes and social expectations, in turn, lead people belonging to minority groups to choose respective life strategies, behaviours, relationships with others, and thus have a restrictive effect on their free development.
Stigmatisation or vilification is an activity that aims to emphasise a person’s distinctive characteristic trait. Calling a person nigger and slit-eyed, lame or four-eyes is negative and discriminatory. Stigmas often stem from existing prejudices and stereotypes.
For example: Homosexuality is stigmatised through rigid gender norms (“lesbians are masculine”), relationships and sexual behaviour (“they have many casual partners”) and the imaginary causes of homosexuality (“the parents of a homosexual boy wanted a daughter”, “there was no father figure in the boy’s life”, “he is a victim of sexual abuse”).
Marginalisation is a process that refers to distinction and exclusion of certain groups of people in a community, organisation or society as a whole. For example, top female politicians are marginalised in the media by creating social attitudes that challenge their femininity, coping with family responsibility, etc. Media crime reports are sure to indicate the person’s ethnic origin if the act was committed by a person not belonging to the dominant group.
Making invisible is similar to marginalisation, but refers to how groups are represented in language, speech, or images. The main mechanism, for example, is that media presents the dominant majority in terms of status, prestige and influence, but not the other groups, as if they were invisible.
Discrimination as a process takes place in society on three interrelated levels – personal, cultural, and structural (Thompson 2003). Treating discrimination solely as a behaviour of an individual overlooks the wider environment – cultural, social and economic factors. Every individual lives and operates in a cultural environment. The beliefs, values, attitudes and actions that he has adopted largely reflect environmental norms and expectations. The structural level reflects the social practices of the exercise of power, and the division of power and resources also depends on which social groups are distinguishable.
Therefore, it is not enough to tackle individual cases of unequal treatment, but non-discrimination must consciously and consistently be promoted, with particular attention to attitudes and values shared by society.
Unequal attitudes are mostly expressed in language usage, texts and speeches by which social representations, social relations and social structures are established, constructed, confirmed, normalised, assessed and legitimised (Dijk 2005a).
[2] Identity is “part of an individual’s self-concept that results from knowledge of belonging to social groups with the value and emotional significance attributed to them”. (Tajfel 1981, translation to Estonian by Valk 2003).
[3] UN Committee of Economic, Social and Cultural Rights (1994). General Comment No. 5. Persons with disabilities. § 9.
[4] The Supreme Court has taken the view that in certain cases the state has a duty to eliminate or alleviate factual inequalities arising from legal equality by legal methods. See RKÜKo 3-3-1-47-03, p 25–26; RKHKo 3-3-1-42-08, p 27.