General Considerations
A difference in treatment will not amount to discrimination which is inadmissible where it has an objective and reasonable justification. This will exist where the differential treatment concerned pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
Legitimate aims have been found to include support for the traditional family,2208 the development of linguistic unity of two large language regions,2209 the protection of the labour market and of public order,2210 safeguarding national security2211 and securing the safety of employees.2212
There will, however, be a need to show a link between a legitimate aim and the differential treatment concerned2213 and it may be found to lack a factual basis.2214
Furthermore there must exist a reasonable relationship of proportionality between the means employed and the aim which is being sought to be realised.2215 In this regard it will be material that the difference in treatment is limited in scope.2216 It will not be decisive that the problem could be addressed by some other means2217 nor that the hardship suffered by some in the group or class is significant, but not generally.2218
States are likely to be given the benefit of the doubt in assessing whether and to what extent differences in otherwise similar situations justify different treatment where general measures of economic or social strategy are involved.2219 However, despite the wide range of prohibited grounds of discrimination, particularly close scrutiny is given to treatment that affects persons by reason of their birth, gender, marital status, nationality, race, religion or sexual orientation2220 and particularly weighty evidence will be required before such treatment will be regarded as justified.
A person‘s marital status can have no bearing on the acceptability of any difference of treatment by reference to gender.2221
Footnotes
ECtHR, Application No. 40016/98, Karner v. Austria, 24 July 2003, Reports 2003-IX.
ECtHR, Application No. 1474/62, Belgian Linguistic Case, 23 July 1968, Series A No. 6, as regards the provision of education.
ECtHR, Application Nos. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, Series A No. 94, as regards immigration control.
ECtHR, Application Nos. 55480/00 and 59330/00, Sidabras and Dziautas v. Lithuania, 27 July 2004, Reports 2004-VIII, as regards employment restrictions.
UN H.R.Cttee., No. 208/1986, Bhinder Singh v. Canada, 9 November 1989, as regards wearing hard hats.
ECtHR (GC), Application No. 29515/95, Larkos v. Cyprus, 18 February 1999, Reports 1999-I, a measure supposedly for the social protection of tenants.
ECtHR, Application Nos. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, Series A No. 94, an alleged difference between the effect of men and women on the labour market.
See, e.g., ECtHR, Application Nos. 55480/00 and 59330/00, Sidabras and Dziautas v. Lithuania., 27 July 2004, Reports 2004-VIII, (a bar on employment on former secret service employees extending to the private sector was excessive) and UN H.R.Cttee., Nos. 359/1989 and 385/1989, Ballantyne et al v. Canada, 31 March 1993 (a bar on using English in signs was not needed to protect the French language).
ECtHR, Application No. 27417/95, Cha’are Shalom Ve Tsedek v. France, 27 June 2000, Reports 2000-VII; restrictions on ritual slaughter were mitigated by an ability to purchase the meat needed from a neighbouring country.
ECtHR, No. 8777/79, Rasmussen v. Denmark, 28 November 1984, Series A No. 87, a choice of approach to the handling of paternity disputes existed.
ECtHR, No. 8793/79, James and Others v. United Kingdom, 21 February 1986, Series A No. 98.
ECtHR (GC), Application Nos. 65731/01 and 65900/01, Stec and Others v. the United Kingdom, 12 April 2006, which concerned a difference between the pensionable age of men and women.
ECtHR, Application No. 6833/74, Marckx v. Belgium, 13 June 1979, Series A No. 31; ECtHR, Application Nos. 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. United Kingdom, 28 May 1985, Series A No. 94; ECtHR (GC), Application No. 30943/96, Sahin v. Germany, 8 July 2003; ECtHR, No. 17371/90, Gaygusuz v. Austria, 16 September 1996, Reports 1996-IV; ECtHR (GC), Application No. 57325/00, D H v. Czech Republic, 13 November 2007; ECtHR, Application No. 12875/87, Hoffman v. Austria, 23 June 1993, Series A No. 255-C; and ECtHR (GC), Application No. 43546/02, E B v. France, 22 January 2008.
Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women.