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Principles and standards Archives: Non-discrimination and equal protection of the law

Dorothy Ann Finch and others v. Commonwealth Health Insurance Connector Authority, Case No. SJC-11025 (MA S. Jud. Ct., Jan. 5, 2012)

Year: 2012 (Date of Decision: 6 January 2012)

Forum, Country: Supreme Court; United States of America

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to social security; Migrants

Summary Background: This case involves a legislative decision of the State of Massachusetts that denied State subsidies (provided under the Commonwealth Care Health Insurance Program) to lawful non-citizen immigrants living in the United States for less than five years. Plaintiffs sought a declaration from the Court that this exclusion from the program was unconstitutional.

Holding: The Massachusetts Supreme Judicial Court, applying strict scrutiny, decided that excluding the said category of lawful, non-citizen immigrants from the aforementioned health insurance program was in violation of the equal protection clause of the Massachusetts Constitution. It was held that the exclusively fiscal concerns, which had motivated the exclusion could never constitute a compelling government interest in a strict scrutiny review [pp. 237-242]. Further, the Court found that the State had made no attempt to meet the rigorous procedural requirements designed to ensure that the legislation was narrowly tailored to further a compelling interest [pp. 242-249]. “Narrow tailoring requires ‘serious, good faith consideration’ of ‘workable’ nondiscriminatory alternatives that will achieve the Legislature’s goals.” Those requirements were not met in this case [p. 242].

In its conclusion the Court states “[m]inorities rely on the independence of the courts to secure their constitutional rights against incursions of the majority….If the plaintiffs’ right to equal protection of the laws has been violated…then it is our duty to say so” [p. 249].

Additional Comments: Since the case was determined on State constitutional grounds, there could be no further appeal to the U.S. Supreme Court, so this judgement stands as the final judgement on this aspect of the case.

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Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)

Year: 2011 (Date of Decision: 12 December, 2011)

Forum, Country: Constitutional Court; Italy

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Right to education; Right to social security; Children; Persons with disabilities; Migrants

Summary Background: Juveniles of non-European Union origin with disabilities and without a long-term resident permit, which can be acquired only after five years of permanent residency, and their families were excluded from the benefits of financial assistance (indennità di frequenza). The allowance aims at helping disabled juveniles and their families who face economic difficulties in covering the medical needs, as well as other special needs they may have, in the area of education and vocational training to promote their integration in society. The Genoa Court of Appeal referred the case to the Constitutional Court for the review of the constitutionality of this discrimination in the assignment of this social benefit (article 80.19 of Law no. 388 of 23 December 2000).

Holding: Pursuant to article 117.1 of the Constitution, which requires legislation to comply with international obligations, the Constitutional Court considered that the exclusion from the assistance scheme of non EU disabled juveniles and their families to be in breach of the right to non-discrimination as guaranteed under article 14 of the ECHR and of article 3 of the Constitution providing for equality of treatment [Considerato in diritto, para. 5]. The Court also found violations of article 32 of the Constitution, protecting the right to health; article 34, protecting the right to education; and article 38, protecting the right to social assistance [Considerato in diritto, para. 1].

Additional Comments: The Court makes an implicit distinction between documented and undocumented migrants. This decision is thus limited to the discrimination between citizens and documented migrants based on the long-term nature of the permit. The Court alludes to the possibility of a different outcome in respect of undocumented migrants, considering the existing ECtHR jurisprudence.

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Lopez and Syndicat SYNPTAC-CGT v. SARL Théâtre d’Aubervilliers

Year: 2011 (Date of Decision: 6 December, 2011)

Forum, Country: Industrial/Labour Court; France

Standards, Rights: Non-discrimination and equal protection of the law; Proportionality; Right to decent work

Summary Background: Issue at stake in this case: the lawfulness of the dismissal of the plaintiff, a representative of a trade union who, as part of her responsibilities within the company board, denounced to the police and the labour inspectorate in 2005 gaps in safety conditions at her work place. Since then, and although she had been under permanent contract for four years, she had been facing threats of dismissal and disciplinary measures against her. The labour inspectorate and several administrative and judicial bodies had questioned and sought to prevent the dismissal of Ms Lopez.

Holding: The judge found a violation of several articles of the Labour Code (Code du Travail), especially article

Aucune personne ne peut être écartée d’une procédure de recrutement ou de l’accès à un stage ou à une période de formation en entreprise, aucun salarié ne peut être sanctionné, licencié ou faire l’objet d’une mesure discriminatoire, directe ou indirecte, telle que définie à l’article 1er de la loi n° 2008-496 du 27 mai 2008 portant diverses dispositions d’adaptation au droit communautaire dans le domaine de la lutte contre les discriminations, notamment en matière de rémunération, au sens de l’article L. 3221-3, de mesures d’intéressement ou de distribution d’actions, de formation, de reclassement, d’affectation, de qualification, de classification, de promotion professionnelle, de mutation ou de renouvellement de contrat en raison de son origine, de son sexe, de ses moeurs, de son orientation sexuelle, de son âge, de sa situation de famille ou de sa grossesse, de ses caractéristiques génétiques, de son appartenance ou de sa non-appartenance, vraie ou supposée, à une ethnie, une nation ou une race, de ses opinions politiques, de ses activités syndicales ou mutualistes, de ses convictions religieuses, de son apparence physique, de son nom de famille ou en raison de son état de santé ou de son handicap.
prohibiting any discrimination including on the ground of union activities or membership [p. 5]. In particular, the judge found a clear causality link between the steps taken by Ms Lopez to ensure safe and fair conditions of work within her company and the attacks against her, based on the chronology of events, and the fact that no complaint had been made previously about the employee [p. 6]. He also reviewed the reasons put forward by the employer to explain the disciplinary measures and considered the latter has failed to provide objective elements and thus these reasons were disproportionate and insufficient to justify a dismissal [p. 6].

Additional Comments: While he did not decide in favour of the plaintiff in respect of her allegation of psychological harassment, on the grounds of insufficiency of evidence, the judge did order the maintenance of the plaintiff in her job and her reinstatement in the responsibilities of 2004, before the conflict with her employer. He further awarded Ms Lopez damages of 40,000€ to compensate the five years of discrimination on the ground of union activities and of facing disciplinary measures against which she had to defend herself.

Link to Full Case: For contact details of the Conseil de Prud’hommes de Bobigny, please visit:

Copy of the decision on file with ICJ

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Public Service Alliance of Canada v. Canada Post Corporation and Canadian Human Rights Commission

Year: 2011 (Date of Decision: 17 November, 2011)

Forum, Country: Supreme Court; Canada

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Right to decent work; Women

Summary Background: The Canadian Supreme Court reviewed a decision of the Canadian Human Rights Tribunal (CHRT) regarding a claim by the Public Service Alliance of Canada (PSA) that employees in the male-dominated Postal Operations Group were paid more than employees in the female-dominated Clerical and Regulatory Group for work of equal value, contrary to section 11

(1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. (2) In the case of a complaint by an individual, where at least two other employees of the establishment perform work of equal value, the weighted average wage paid to those employees shall be used to calculate the adjustment to the complainant’s wages.
of the Canadian Human Rights Act (equal wagesprovision.) Using job evaluations to determine the comparability of the work of the two groups of employees, the CHRT had determined that there was sufficient evidence of wage discrimination between 1982 and 2002. Canada Post commenced judicial review proceedings in the Federal Court, where the CHRT’s decision was overturned.

On appeal to the Federal Court of Appeal, the majority agreed with Canada Post that the CHRT decision was unreasonable, as the use of job evaluations did not meet the requisite standard of proof to support a finding that wage discrimination had taken place. The PSA appealed to the Supreme Court of Canada.

Holding: The Supreme Court endorsed the reasons of the dissenting Evans J.A from the Federal Court in support of the initial decision by the CHRT. This was based on the arguments that the CHRT was reasonable in using the Postal Operators group as the male-dominated comparator, even though this group included a large number of highly paid women [para. 5]. Justice Evans reaffirmed that this did not preclude the existence of systemic gender discrimination elsewhere in the corporation [para. 69]. Secondly, Evans J.A. supported the CHRT’s reliance on the job evaluations and its application of the “balance of probabilities” standard of proof in finding that a wage gap existed between the two groups [para. 68]. He reiterated the Tribunal’s discretion in choosing a methodology to determine the existence and extent of a wage gap, and that it did not act “unreasonably” in adopting one proposed by the CHRC. Finally, Evans J.A and the Supreme Court emphasized the high degree of discretion awarded to specialized tribunals in their determination of appropriate remedies. The Tribunal at first instance did thus not err in awarding compensation to “make the victims whole,” while reducing the cost of the damages where the magnitude of the damage was uncertain.

The decision of the CHRT was subsequently restored, requiring Canada Post to compensate 50 per cent of the wage gap between the two groups over the twenty-year period.

Link to Full Case: Public Service Alliance of Canada v. Canada Post Corp., 2011 SCC 57, [2011] 3 S.C.R. 572, available at

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Decision T-841

Year: 2011 (Date of Decision: 3 November, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Children; Women

Summary Background: An injunction was filed in this case to safeguard a juvenile’s human right to health, in particular, her mental health. The girl’s doctor had ascertained that her pregnancy posed a risk to her mental health, which qualifies as one of the circumstances under which a legal abortion can be performed in Colombia. However, a particular health administrator that was part of the Colombian social insurance system was said to have unreasonably created so many administrative obstacles that the girl was compelled to continue her pregnancy even thought this was detrimentalto her health.

Holding: The Court, citing applicable international human rights instruments including the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, strongly affirmed women’s rights to reproductive autonomy and access to health services without discrimination [para. 22], especially in cases where the reproductive rights of juveniles are at stake.

The Court emphasized that the health administrators operating as part of the social insurance system have an obligation to provide adequate and timely access to health services including abortion [paras. 17. III and 35]. In this case, the administrator ignored this obligation and posed a grave risk to the child’s health, on the basis of a mere technicality [para. 21].

The Court ordered the health administrator in question to pay appropriate compensation and prohibited the imposition of additional conditions that unreasonably delay access to abortion services in future cases, for example requiring a waiting period or requiring necessary certification from only an affiliated doctor.

Link to Full Case:

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European Roma Rights Centre v. Portugal (Complaint No. 61/2010)

Year: 2011 (Date of Decision: 30 June, 2011)

Forum, Country: European Committee of Social Rights; Portugal

Standards, Rights: Non-discrimination and equal protection of the law; Right to adequate housing; Ethnic minorities

Summary Background: The complaint submitted by the European Roma Rights Centre (the “ERRC”) alleged that a range of housing related injustices suffered by the Roma community in Portugal violated rights protected under the Revised European Social Charter including the right of the family to social, legal and economic protection (article 16), the right to protection against poverty and social exclusion (article 30), the right to housing (article 31), alone or in conjunction with the right to non-discrimination (article E).

Holding: In examining the case, the Committee took particular note of three issues: the precarious and difficult housing conditions for a large part of the Roma community; the high number of Roma living in segregated environs; and, the inadequacy of rehousing programmes for the Roma community [para. 15].

In its decision, the Committee addressed the need to implement integrated housing policies for the Roma in a non-discriminatory manner, underscoring that one of the primary purposes of the Charter is to strengthen solidarity and promote social inclusion [para. 18]. The Committee clearly stated that both direct and indirect discrimination (including failing to take account of relevant differences and failing to take adequate steps to ensure accessible rights) are prohibited [para. 19].

The Committee further observed that the disproportionately high percentage of Roma living in poor housing conditions triggered a positive obligation of the authorities to take this into account and respond accordingly [para. 30]. It quoted the ECHR in noting that, as a vulnerable minority, the Roma required specific protection measures.

In addition, the substandard housing conditions of the Roma [paras. 32-35, 38] prompted the Court to affirm that the right to housing includes a right to fresh water [para. 36]; adequate space, protection from harsh weather conditions and other threats to health as well as a dwelling that is structurally secure [para. 37]; a location which allows access to public services and other social facilities [para. 41]; and a residence that is culturally suited [para. 49]. The Committee placed the issue of location within the broader issue of segregation and declared that States must be vigilant in implementing housing policies so as to prevent spatial or social segregation of ethnic minorities or immigrants [para. 41].

In light of its findings, the Committee concluded that there were violations of articles 16, 30 and 31 of the Charter in conjunction with the right to non-discrimination.

Additional Comments: This case examines the State’s obligation to respect, protect and fulfil the human right to housing.

Link to Full Case: http://www.escr- gal%20%28decision%29.pdf

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