Right to equal opportunity

[Jonathan Buhacoff]

The proposed right:

Wherever resources are limited, the right to equal opportunity demands that people be given the same opportunities to access limited resources based on criteria that do not unfairly bias results for one group or one person over another group or another person. This right prohibits unfair discrimination on the basis of attributes that a person cannot control such as skin color, sex, national or social origin, place of birth, primary language, and social caste. This right also prohibits unfair discrimination on the basis of religious beliefs or political opinions.

Protection against harm, insofar as it involves other people doing something to deter harm or to bring justice after harm has been done, is a resource and everyone must have an equal opportunity to benefit from this protection.

No government or person shall require a female to wear clothing or accessories where males are not equally required to wear the same clothing or accessories. No government or person shall prohibit a female from wearing certain clothing or accessories where males are not equally prohibited from wearing the same clothing or accessories.

Intent:

This right applies to both public and private situations, such as employment in government and employment in private companies or organizations, or provisioning of meals for the poor or the homeless, or provisioning of medical care after a disaster.

The right of equal opportunity prohibits the practice of racism and sexism and other kinds of unfair discrimination, including discrimination based on religious beliefs.

The right of equal opportunity gives every person standing to sue any level of government that enacts a law that has unfair and irrational exceptions, or that selectively enforces a law with a bias that advantages or disadvantages specific groups.

Discussion:

In situations where labor is well organized, each person has the right to receive equal pay for equal work. One example where this does not apply is if, in the absence of regulation, one homeowner negotiates a dog-walking or car-washing rate with a neighbor kid, and another homeowner somewhere else negotiates a different rate with their own neighbor kid, they are not violating anyone’s rights. However, when such disparities are widespread enough to be a cause of concern, legislatures should enact minimum or maximum pay standards for certain jobs in certain situations to ensure people receive equal pay for equal work, without limiting the ability of people to enter into contracts in a free market without such protections, especially when the conditions are different in those free market contracts than in the regulated work environments.

However, there are some cases where discrimination based on these attributes is fair and in these cases it is allowed because the right to equal opportunity only protects against unfair discrimination, and does not limit the ability of organizations to set fair job criteria and provide an equal opportunity to all applicants. For example, some jobs demand that the employee be able to lift some amount of weight, or be physically fit to run at a certain pace for a certain distance, or something like that. The right to equal opportunity means that employers must consider all qualified applicants. The right does not require employers are not required to have different standards for males and females, religious or non-religious, etc. They can have one set of standards but anyone must be given equal opportunity to demonstrate they are qualified.

Another area where an employer may set fair job criteria that include physical attributes discrimination is fair is in entertainment. A producer looking to cast people with a certain appearance is allowed to set that as the criteria. However, once the criteria is set any qualified applicant must be considered and given equal opportunity regardless of the other factors. For example if a part is intended to be played by a middle-aged black female with a New York accent, the candidates will be limited by that but they cannot be denied due to their national origin or religious beliefs, place of birth, etc. and specifically any middle-aged black female who can speak with a New York accent, whether or not that person actually lived in New York, should be considered for the part.

Another area where discrimination is fair is religious and non-religious organizations. When a religious organization needs to hire or elect a religious leader or a teacher, it obviously needs to hire one who is a member of the same religion. When a non-religious organization needs to hire or elect a non-religious leader or a teacher, it must be allowed to select someone who is not religious. However, the hiring of anyone else who merely works in the organization such as a secretary or food preparation or cleaning must allow equal opportunity without regard to religion.

In the United States, the Affordable Care Act of 2010 was written to apply to everyone, including members of Congress. However, the executive branch allowed members of Congress to essentially opt-out of the program and this was unfair to the people because the people didn’t get this opportunity. Because this violates the people’s right to equal opportunity, anyone has standing to challenge an unfair exception written into the law or the failure of the government to enforce the law equally or at least to apply justifiable and fair criteria when prioritizing resources.

Comparison with the United States:

The United States has equal opportunity laws that are relevant to this discussion.

Comparison with the United Nations:

Article 2 of the United Nations Universal Declaration of Human Rights states “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” This article relates to the right to equal opportunity.

Article 7 of the United Nations Universal Declaration of Human Rights states “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The second sentence of that relates to the right to equal opportunity.

Article 15 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to a nationality.” This is similar to Article 6 which states “Everyone has the right to recognition everywhere as a person before the law.” Every member of society who has agreed to live by the same rules, whether they were born there or naturalized, including through asylum, can call themselves a national of that society.

Article 16.1 of the United Nations Universal Declaration of Human Rights states “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” This is covered by the right to equal opportunity, whether or not the state concerns itself with marriage.

Article 21.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” This relates to the right to equal opportunity. If some people have the right to participate, then all people should have the same right to participate. However, people who are imprisoned do not get to participate, minors do not get to participate, and adults who are mentally incapacitated also cannot participate.

Article 21.2 of the United Nations Universal Declaration of Human Rights states “Everyone has the right of equal access to public service in his country.” This is covered by the right to equal opportunity.

Article 21.3 of the United Nations Universal Declaration of Human Rights states “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The part about equal suffrage relates to the right to equal opportunity.

Article 22 of the United Nations Universal Declaration of Human Rights states “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” We may disagree about how much obligation other people have, but if any resources are to be allocated to social security and cultural rights, then everyone should have an equal opportunity to access those resources without unfair discrimination.

Article 23.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.” Even if “right to work” is debatable (if someone has the right to work, does that mean someone else has the obligation to give them a job?) this relates to the right to equal opportunity — if work is available, employers must not unfairly discriminate against some applicants.

Article 23.2 of the United Nations Universal Declaration of Human Rights states “Everyone, without any discrimination, has the right to equal pay for equal work.” This is covered by the right to equal opportunity.

Article 23.3 of the United Nations Universal Declaration of Human Rights states “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” The part about “just and favourable renumeration” relates to the right to equal opportunity.

Article 26.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.” The first part about elementary education is covered by the right to education and the right to equal opportunity. The second part about equal access to higher education is covered by the right to equal opportunity.

Article 27.1 of the United Nations Universal Declaration of Human Rights states “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

See also:

No Unjust Exceptions

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