Any discrimination with the ‘purpose’ or the ‘effect’ of nullifying or impairing the equal enjoyment or exercise of rights is prohibited under the non-discrimination provisions. In other words, the principle of non-discrimination prohibits ‘direct’ and ‘indirect’ forms of discrimination.

The concept of ‘indirect’ discrimination refers to an apparently ‘neutral’ law, practice or criterion, which has been applied equally to everyone but the result of which favours one group over a more disadvantaged group. In determining the existence of indirect discrimination, it is not relevant whether there was intent to discriminate on any of the prohibited grounds. Rather, the consequences or effects of a law or measure are what matter.

The protection against indirect discrimination has been confirmed by the Human Rights Committee. In the following case, Mr. Rupert Althammer and eleven other Austrian citizens were retired employees of the Social Insurance Board in Salzburg. They were receiving retirement benefits. Among various monthly entitlements, the regulations provided for monthly household entitlements and children’s entitlements for those with children up to the age of 27. An amendment to the regulations came into effect which abolished the monthly household entitlement and increased the children’s benefits. The authors alleged that the amendment to the regulations constituted a violation of Article 26 ICCPR . They claimed that although the amendment of the regulations appeared objective, it was discriminatory in effect, considering that most retirees are heads of households with a spouse as dependent and that they no longer have children under the age of 27. It was argued that the impact of the amendment was therefore greater for retired than for active employees as it effectively abolished the supplement for retirees’ dependents altogether.

Althammer et al. v. Austria

Human Rights Committee

Communication No. 998/2001

Views of 8 August 2003

Keywords: non-discrimination - discrimination, indirect – reservation - retirement benefits

[?]

Consideration of the merits

[?]

10.2 The authors claim that that they are victims of discrimination because the abolition of the household benefits affects them, as retired persons, to a greater extent than it affects active employees. The Committee recalls that a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate. However, such indirect discrimination can only be said to be based on the grounds enumerated in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or disproportionaly affect persons having a particular race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, rules or decisions with such an impact do not amount to discrimination if they are based on objective and reasonable grounds. In the circumstances of the instant case, the abolition of monthly household payments combined with an increase of children’s benefits is not only detrimental for retirees but also for active employees not (yet or no longer) having children in the relevant age bracket, and the authors have not shown that the impact of this measure on them was disproportionate. Even assuming, for the sake of argument, that such impact could be shown, the Committee considers that the measure, as was stressed by the Austrian courts (paragraph 2.3 above), was based on objective and reasonable grounds. For these reasons, the Committee concludes that, in the circumstances of the instant case, the abolition of monthly household payments, even if examined in the light of previous changes of the Regulations of Service for Employees of the Social Insurance Board, does not amount to discrimination as prohibited in Article 26 of the Covenant.

Comment

Although the Committee did not find a violation of Article 26 in this case, it clearly stated that this provision also protects against ‘indirect’ discrimination. In other words, if a law which applies equally to everyone has a disproportional, unreasonable impact on one group compared to others, it is discriminatory and in violation of Article 26 ICCPR. In a more recent case, the Human Rights Committee directly addressed the notion of ‘indirect’ discrimination stating that ‘article 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons’ (seeDerksen v. The Netherlands  , Communication No. 976/2001, views of 1 April 2004). The explicit reference to the notion of ‘indirect’ discrimination is an improvement of the Committee’s General Comment 18 (1989) which provides a definition of ‘discrimination’ which obliquely refers to ‘indirect discrimination’ by referring to the ‘purpose or effect’.

Selected additional cases: HRC:Simunek et al. v. The Czech Republic  , Communication No. 516/1992, Views of 19 July 1995; Derksen v. The Netherlands, Communication No. 976/2001, Views of 1 April 2004.