The Notion of Equality
The Statue of Equality at Paris is somewhat an allegory of equality. Equality before the law, also known as legal equality, is the principle under which all people are subject to the same laws of justice (due process). All are equal before the law. The concept of equality is critical to understanding the possibilities and limitations of the operation of the law in prohibiting discrimination at work. In its preamble, the Constitution of Federal Republic of Nigeria (CFRN) 1999 was driven by a collective desire “to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice ….” The State social order is stated to be founded on ideals of Freedom, Equality and Justice. In furtherance of that social order, every citizen is guaranteed equality of rights, obligations and opportunities before the law.Equality connotes sameness of treatment and regard. It is borne out of a conviction that all individuals are identical in what it is that makes them human beings, and as such they are entitled to equal respect. It means that equality demands that everyone is to be treated in the same way. A difference in treatment means discrimination, which is a departure from that age long principle. Section 42 (1) of the CFRN provides that citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
The Constitution goes further to stipulate that ‘no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth’.
Treatment and regard bring to mind the idea of ‘procedural’ idea of equality. The human person at the centre of this conception of equality is very individual person of classical liberal theory: a pre-social being. On reflection, however, there seem obvious an approach. First, it is clear that there are many differences between people. Some of these differences appear to be natural, and perhaps even immutable: for instance, only women can give birth to a child; race is not something ‘chosen’, but something that marks a person from birth; and some physically (dis)abled in ways that others are not. Other differences-for It women are (usually) the primary carers of young children-may be seen to be product of particular social or cultural arrangements. The differences between people are treated as irrelevant by a formal concept of equality. However, seeing the differences that do exist between people can also suggest that treating everyone as if they were identical may not be appropriate: the same treatment may not have identical impact. Indeed, treating everyone in the same way may disadvantage some and thus discriminatory effects.
A more substantive conception of equality, one that attends to the effects and outcomes of the way individuals are treated, seems to require attention to, and indeed respect for, at least some of the differences between people. By also attending to the outcome produced by-rather than simply the form of-the rules, norms or behaviours, themselves , substantive equality is better equipped to deal with indirect forms of discrimination Formal equality is ill-equipped to deal with systemic or structural Inequality in focusing on whether rules, norms or behaviours are treating everyone in an identical manner, formal equality is apt to ignore underlying assumptions and, therefore fail to identify the way in which social structures and actions may actually create inequality.
A Recent critique
According to Owens, Riley and Murray, the analysis of equality in terms of power has also had its critics, who note in it a tendency to ‘essentialise’ certain experiences and cast them as normative. Thus understanding inequality as a manifestation of power imbalance in social relations often assumed homogeneity among women, or men, or persons of a particular race, this insight was extended even further by postmodernist theorists who called into question these very categories. They showed that all attributes, even the ones we tend to think of as natural and immutable (such as sex, race and sometimes disabilities), are constructed by law and society. The postmodern sensibility thus tended to focus on diversity not just between different groups or categories people, but within them as well.
ILO & Equality
This emphasis on the instrumental value of equality is becoming more and more commonplace. Sitting alongside traditional expressions of formal and substantive equality, it is quite explicit in the ILO’s Global Reports on equality. The first of these reports, Time for Equality at Work, states:
Discrimination limits the freedom of individuals to obtain the type of which they aspire. It impairs the opportunities of men and women to develop potential, skills and talents and to be rewarded according to merit. Discrimination at work produces inequalities in labour market outcomes and places members of certain groups at a disadvantage.