ICCPR Case Digest

CCPR/C/128/D/2979/2017

Communication

2979/2017

Submission: 2016.03.30

View Adopted: 2020.03.13

Elena Genero v. Italy

Substantive Issues
  • Non-discrimination
  • Participation in public affairs
Relevant Articles
  • Article 25 (c)
  • Article 26
Full Text

Facts

The author is a national of Italy who claims that the State party has violated her rights under article 14(1) and 25(c) of the Covenant.

The author of the communication has served as a volunteer (temporary) firefighter for 17 years in the State party. In 2007, she competed to enter the Italian National Firefighters Corps as a permanent member. However, her candidacy was refused on the basis that she did not fulfil the minimum height requirement of 165 cm. Her height was estimated at 160-161 cm. She followingly unsuccessfully challenged the height requirement in court, until she had exhausted all domestic remedies.

On the above factual basis, the author alleges that she is a victim of a violation of her rights under article 25(c) of the Covenant. She maintains that the height requirement, undifferentiated between men and women, constitutes indirect discrimination against women. She notes herein that the average height of women in Italy measures 161 cm, while the average height of men is 175 cm. By establishing a minimum height requirement well above the female average, the State party excludes a priori the majority of women, including the author, from the competition based on their gender. The author also adds that while a certain physical condition is necessary to perform firefighter duties, that condition is not exclusively attributable to height but also to other physical parameters, such as corporal composition or muscular strength. She also notes that her serving as a firefighter for 17 years is direct evidence that a height lower than 165 is compatible with rescue functions. Her allegations, although not expressly invoked by the author, also raise issues under article 26 of the Covenant.

Merits

The Committee noted the author’s uncontested argument that the undifferentiated minimum height requirement, well above the alleged national average height, has the effect of excluding a majority of Italian women. As such, it observed that such a height requirement constitutes a restriction to access to the National Firefighters Corps, and the Committee must therein decide whether such a height requirement meets the criteria of reasonableness, objectivity, and legitimacy of the aim.

The Committee followingly took note of the fact that the author been successfully carrying out the same functions as a permanent member for 17 years, and the fact that the State party nor national administrative courts had justified the precise role that such a height requirement would play in the effective performance of these functions that other physical attributes, such as corporsal composition or active metabolic mass, could not compensate for. It also observed that the State Council of Italy recently called for the elimination of minimum height requirements. In light of these facts, the Committee concluded that the disproportionate effect this had on female candidates was a form of indirect discrimination based on gender in violation of article 26 of the Covenant.

In relation to the author’s claims under article 25(c), the Committee recalled its general comment No. 25 outlines the obligation to“to ensure access on general terms of equality, the criteria and process for appointment, promotion, suspension and dismissal must be objective and reasonable”. It further notes that “it is of particular importance to ensure that persons do not suffer discrimination in the exercise of their rights under article 25(c). Having considered that the legislative height requirement was unreasonable and discriminate, the Committee concluded that the author's rights under article 25(c) were also violated.

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