Views of the Human Rights Committee dated March 13, 2020 in the case of Elena Genero v. Italy (communication No. 2979/2017).
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Italy.
Summary: as a result of the presentation of an undifferentiated requirement for a minimum height of 165 cm, significantly exceeding the average height of women in Italy, which is 161 cm, most Italian women, including the author, were unable to participate in the competition for positions in the National Fire Service, thereby, in the opinion of the author, a violation was committed the right not to be discriminated against and the right to access to public service in their country on general terms of equality.
Legal positions of the Committee: The Committee referred to its general comment No. 18 (1989) on non-discrimination, where discrimination is defined as "any distinction, exclusion, restriction or preference based on race, skin color, sex, language, religion, political or other beliefs, national or social origin, property status, birth or other circumstance and which has the purpose or consequence of destroying or diminishing the recognition, use or exercise by all persons, on an equal basis, of all rights and freedoms." The Committee recalled that the prohibition of discrimination applies in both the public and private spheres and that a violation of article 26 [of the Covenant] may result from a norm or measure that, at first glance, is neutral and does not pursue discrimination, but has its effect (See: Althammer et al. v. Austria (CCPR/C/78/D/998/2001), paragraph 10.2.). However, not every distinction, exclusion or restriction on the grounds listed in the Covenant constitutes discrimination, provided that they are based on reasonable and objective criteria and pursue a legitimate purpose under the Covenant (paragraph 7.3 of the Views) (See, in particular: "O'Neill and Quinn v. Ireland" (CCPR/C/87/D/1314/2004), paragraph 8.3, "Jaquer v. France" (CCPR/C/123/D/2747/2016), paragraph 8.14 and "Hebbage v. France" (CCPR/C/123/D/2807/2016), paragraph 7.14.).
The Committee also recalled that, in accordance with its general comment No. 25 (1996) on participation in the conduct of public affairs and the right to vote, in order to "ensure access to public service on general terms of equality, the criteria and procedures applied in relation to appointment, promotion, temporary or complete removal from office, they must be objective and justified." He further argued: "It is particularly important to ensure that people do not experience discrimination in the exercise of their rights under article 25 (paragraph "c") [of the Covenant] on any of the grounds listed in article 2 (paragraph 1)" (paragraph 7.8 of the Views).
The Committee's assessment of the factual circumstances of the case: the above-mentioned height requirement represented a restriction for admission to the National Fire Service. Despite the fact that this restriction is formulated, at first glance, neutrally, in Italy it had disproportionate consequences for women: the average height of women is significantly less than the average height of men, and the minimum height for recruitment is set at a level between these averages, which excluded most women and included most men. Accordingly, the Committee had to determine whether the undifferentiated growth requirement met the criteria of reasonableness, objectivity and legality of the purpose (paragraph 7.4 of the Considerations).
The Committee noted that neither the State party nor the national administrative courts have substantiated exactly how a height of 165 cm contributes to the effective performance of the relevant tasks, and have not proved that other physical characteristics (biochemical composition of the body, muscle strength and active cell mass) they cannot compensate for the non-fulfillment of the existing growth requirement. The Committee drew attention to the author's uncontested argument that, at the time of submission of the said communication, she had successfully served (served) as a temporary firefighter for 17 years, during which time she participated in the work of various emergency rescue teams and performed the same official duties as permanent employees. The Committee took note of the author's statement, not disputed by the State party, that the Council of State itself, in its later decisions, declared the undifferentiated minimum height requirement unconstitutional and recently called for the abolition of minimum height requirements (paragraph 7.5 of the Views).
In the light of the above, the Committee considered that the statutory height requirement of at least 165 cm for candidates for positions in the National Fire Service represented a restriction that was neither necessary nor proportionate to the legitimate purpose pursued by its introduction. Accordingly, the Committee concluded that, in the light of the disproportionate effects of this provision on women wishing to join the National Fire Service, this provision and its application to the author constituted a form of indirect discrimination on the basis of sex, in violation of article 26 of the Covenant (paragraph 7.6 of the Views).
With regard to the author's allegations regarding article 25 (paragraph "c") Considering that the statutory height requirement for admission to the National Fire Service was unjustified and discriminatory, the Committee concluded that the author's rights under article 25 (paragraph "c") had also been violated (paragraph 7.8 of the Considerations).
The Committee's conclusions: The facts presented indicated a violation of articles 25 (c) and 26 of the Covenant.