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Equality of outcome8/14/2023 ![]() Social distinctions may be based only on considerations of the common good” (Conseil Constitutionnel, 2002). Article 1 of the French Declaration of the Rights of Man and the Citizen similarly posits that “men are born and remain free and equal in rights. Declaration of Independence: “All men are created equal” (National Archives, 2020). France and the United States are the first countries that enshrined equality in their foundational legal bases. Inherited from the Enlightenment, equality is a general and overarching constitutional principle found in most legal systems, while earlier sources can be traced to the scriptures. At every stage, illustrations are drawn from legislation in specific countries. The aim of this article is to provide an overview of what it may take to ensure non-discrimination as equality of treatment, while at the same time providing an overview of the many possibilities offered by legal instruments to go beyond strict equality of treatment, to ensure equality of opportunity and a reduction in outcomes gaps. Equality of opportunity (in employment or otherwise) is also sometimes differentiated from equality of treatment and equality of outcomes, which are other interpretations of the general principle of non-discrimination. This example shows one of the many ways how compensation for disadvantage involving some specific treatment has to be put in place in order to ensure proper equality of opportunity. For example, for a company to afford to employ a person with mobility restrictions, it needs to put in place some accessibility equipment designed specifically for the type of restriction, such as a ramp, special elevator, dedicated parking space, and a properly equipped desk. However, shortly after the notion of equal employment opportunity (EEO) started to gain traction, it became clear that, in order for equality to happen, one had to question strict equality of treatment and introduce some kind of difference of treatment, which may take different shapes. In a first meaning, non-discrimination means not treating people differently based on one of listed prohibited criteria, such as gender, ethnic origin, age, or disability, and other criteria present in the legislation of most countries that are part of the Organisation for Economic Co-operation and Development (OECD). The concept of equality can be interpreted as a reformulation of the principle of non-discrimination in employment matters (Berg, 1964). A major hurdle in most countries is the enforcement of equality laws, mostly relying on individuals initiating litigation. ![]() The public sector tends to be more protective than the private sector. Specific countries’ national legislation testify that some countries moved gradually along the continuum by introducing laws of increasing mandate, while (a few) others introduced outcome mandates directly and early on, as part of their core legal foundations. ![]() Legislation can be sorted along a continuum, from the most discriminatory ones (“negative discrimination laws”) such as laws that prescribe prison sentences for people accused of being in same-sex relationships, to the most protective ones, labeled as “mandated outcome laws” (i.e., laws that prescribe quotas for designated groups) through “legal vacuum” (when laws neither discriminate nor protect), “restricted equal treatment” (when data collection by employers to monitor progress is forbidden or restricted), “equal treatment” (treating everyone the same with no consideration for outcomes), “encouraged progress” (when data collection to monitor progress on specific outcomes is mandatory for employers), and mandated progress (when goals have to be fixed and reached within a defined time frame on specified outcomes). But there are many possibilities offered by legal instruments to go beyond strict equality of treatment, in order to ensure equality of opportunity (a somehow nebulous concept) and equality of outcomes. Equality is a concept open to many interpretations in the legal domain, with equality as equal treatment dominating the scene in the bureaucratic nation-state. ![]()
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