Critérios distintivos entre discriminação e preferência

Abstract

Discrimination is an unjustified difference in treatment on grounds of a particular factor provided by law, and other atypical differentiations can not technically be defined as discrimination in the technical sense and would be preferred. The reason for the legislature to worry about disciplinary matter is the need for protection of human dignity and equality. In Brazil and in Italy the law protects against discrimination on grounds of sex, origin, race, color, age, disability, among others, so do the UN Conventions and the ILO. The object of this paper is to establish criteria that can differentiate the discrimination prohibited by law and that includes preferably within the power of the employer. The paper concludes that legislation sometimes includes the preference as a kind of gender discrimination, but in certain cases such as the UN Convention of 1979 on the Elimination of all forms of discrimination against women, the preference is not treated as a form of discrimination. However, there are some criteria used in the case of Brazil and Italy, for proof of discrimination as statistical criteria, facilitating evidence, reversal of the burden of proof, circumstantial evidence. Given the absence of robust evidence about the facts surrounding this matter has not been possible to establish criteria distinctive objectives, which must be observed in each case is that the subject can not take their social being that allows you to make choices, but it should always consider the case in light of the principles of equal treatment and opportunities.