Search Results

The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.

Chapter 2 explores the distinction between direct and indirect discrimination. The chapter takes its point of departure in a definition proposed by Andrew Altman and uses it as a springboard for a better one, which, among other things, does not involve the requirement that indirectly discriminatory acts have effects on discriminatees, i.e. those who are being discriminated against, that are in some sense disproportionate. The chapter also seeks to distinguish between inequalities that reflect indirect discrimination and inequalities that do not. It does so by tying indirect discrimination to the perpetuation of disadvantages resulting from past direct discrimination. More generally, it argues that indirect discrimination is asymmetrically parasitic on direct discrimination in that the former requires the (past) presence of the latter, but not the other way around.

Systemic discrimination is the core concern of anti-discrimination law. Surprisingly, even direct discrimination can be understood to be a special case of indirect discrimination. In most instances, however, the observable impact of systemic discrimination is called ‘indirect’ or ‘disparate impact’ discrimination. Some groups end up worse off than others. The causal mechanisms may remain difficult to untangle. Yet, both categories are normatively deficient. Indirect discrimination is susceptible to justification on the ground of the proportionate pursuit of legitimate objectives. Determining the scope of legitimate objectives is not constrained by any distributive norm. Likewise, a case of direct discrimination cannot be established where the anti-discrimination norm does not declare a certain act to be an act of discrimination. The absence of a distributive norm comes to the fore, in this context, as a problem of identification. The emerging normative deficiency is the consequence of a deeper-seated antinomy of anti-discrimination law.

This chapter addresses the application of the identity-based framework within the context of EU Single Market law. It shows how EU employment law has embraced the principle of indirect discrimination, thereby protecting individual religious identity outside purely private contexts, ensuring the formal neutrality of the market place and pluralising the workplace in religious terms. Nevertheless, religious identity rights are still required to give way to certain public interests such as the commercial nature of the market economy, the need to protect the non-theocratic nature of the public order and pre-existing religious privileges in the market. The chapter also shows how the Union has recognised national links to individual denominations and national ideas of public morality, as parts of national culture. Such a view of religion reinforces the limits on the role of explicitly religious claims in the political arena but enables such faiths to access a degree of influence over law that is denied to other faiths. Furthermore, the EU has not fully appreciated the complexity of the relationship between ‘insider’ faiths and the limitations on religious influence over law and politics required by the humanist elements of the Union's identity. Finally, the chapter demonstrates how religions which are regarded as contrary to European culture have received scant recognition of their rights under EU law and have, in some cases, been characterised as contrary to the public order and liable to restriction on that basis.

This chapter addresses the non-discrimination disciplines of the GATT (most-favoured-nation treatment and national treatment) and related issues, notably justification on non-economic grounds under Article XX of the GATT. It argues that the term ‘like products’ in Articles I and III of the GATT should primarily be understood to mean products that are in a sufficiently close competitive relationship. It argues that the so-called ‘aim and effects’ test is legally flawed. It then examines the concept of ‘less favourable treatment’ in Article III of the GATT, showing that WTO scholarship has often misunderstood the concept of indirect (de facto) discrimination. The chapter then examines the role of the wording ‘so as to afford protection’ in Article III. Finally, it thoroughly examines Article XX, the concepts of necessity and proportionality, the so-called ‘new necessity test’, and the appropriate margin of appreciation.

This analyses the EU concepts of direct and indirect discrimination, and multi-dimensional discrimination. It examines the burden of proof demanded by the CJEU and the essential role played by causation in anti-discrimination law. It proceeds to analyse the available defences, including the theoretical and the practical role played by justification, as well as the concepts of harassment, sexual harassment, instructions to discriminate, positive action, and mainstreaming.

The most appealing explanation of anti-discrimination law recognises the priority of this redistributive dimension. Hence, counteracting what is called ‘systemic discrimination’ must appear to be its core concern. This perspective is consistent with both of its normative categories, namely, indirect and direct discrimination. As regards the latter category, anti-discrimination law translates redistributive objectives into the language of individual action. It thereby promises to remove socially constructed obstacles to effective market participation by identifying distributive agents, such as employers, who exercise decisive influence over the distribution of these resources and opportunities. Their redistributive responsibility is effectuated by prohibiting action on arbitrary grounds. The translation of redistributive objectives into the language of individual action is brought about by making certain acts count as acts of discrimination. However, it is normatively often unclear which acts are to be counted as an act of discrimination. Therefore, the application of anti-discrimination law often vies for the agent’s bad intent in order to close gaps. This is where one first encounters its normative deficiency.

This chapter considers how intersectional claims are established in practice. The chapter thus traverses the labyrinth of discrimination law to understand how each of its central features interacts with and processes an intersection claim. In particular, it considers the significance of the text of equality guarantees, the basis of selection of grounds generally and specifically in claims of intersectional discrimination, the distinction between direct and indirect intersectional discrimination, the test for wrongful intersectional discrimination, the use of comparators, justification analysis, standards of review, the burden of proof, and choice of remedies. Comparative doctrine helps to unravel the complex issues pertaining to each and helps to underscore the interpretive possibilities which help realize intersectional discrimination.

What is the relationship between “indirect” discrimination (or discrimination based on “disparate impact”) and the central concept of discrimination elaborated in Chapter 1? This chapter argues that many cases of indirect discrimination are, upon inspection, direct discrimination of a certain characteristic kind. Others are not reducible in this way, but these may not be best thought of as discrimination at all. Rather, prohibiting “indirect discrimination” in such cases may be a roundabout means of equalizing opportunity for disadvantaged social classes. The chapter concludes by applying the conceptual apparatus of the first two chapters to show why the conflict that some have posited between prohibitions on direct and indirect discrimination, as in the U.S. Supreme Court case of Ricci v. DeStefano, is illusory.

Chapter Six, “Indirect Discrimination,” makes explicit the implications that the author’s pluralist theory of wrongful discrimination has for our understanding of indirect discrimination. The author argues that the distinction between direct and indirect discrimination is not always morally significant. Indirect discrimination, like direct discrimination, can subordinate people; it can infringe their right to deliberative freedom; and it can deny them access to a basic good. The author also considers questions of responsibility and culpability. The author distinguishes between “responsibility for cost” and “responsibility as culpability.” Agents of indirect discrimination are, in many cases, both responsible for the costs of rectifying discrimination and also responsible in the sense of “culpable.” The author explains how we can see both indirect and direct discrimination as involving negligence on the part of the discriminator.

This chapter argues that in France, the application of employment discrimination law is a mixed bag. On the one hand, labour law judges have had some difficulties with interpreting anti-discrimination law, especially when it is based on prohibited grounds linked to the person at work, such as race, and detached from the statutory view of the worker within the scope of applicable law. The need to deepen a factual analysis of context in cases of direct discrimination constitutes a challenge for civil judges more familiar with an approach based on syllogism rather than analogy and comparison. On the other hand, more recently, labour law judges have started resorting to the logic of indirect discrimination in employment which offers original ways to scrutinize collective action, including the right to strike, revealing systemic discrimination.

Although Spain has formally transposed the EU’s gender anti-discrimination directives and case law, there are still problems of effectiveness, particularly in the area of indirect discrimination. This chapter presents a critical analysis of these problems, taking into account the historical and legislative situation of Spain. This chapter argues that the continuing problems concerning the limited application of indirect sex discrimination in Spain are due predominantly to its late and formalistic legislative implementation, the court’s reliance on a merely statistical and quantitative approach, as well as practical difficulties of various actors entitled to intervene or to bring legal actions against such discrimination (eg trade unions, trade inspectorates).

Chapter 3 defines statistical discrimination and pries it apart from nonstatistical discrimination. It then distinguishes between direct and indirect statistical discrimination, arguing that the latter is a real possibility. Statistical discrimination often appears together with other morally objectionable features, which the chapter tries to isolate from “pure” statistical discrimination. This exercise is crucial to a later assessment of why statistical discrimination is wrong when it is.

Chapter One, “A Question of Inequality,” argues that complaints of wrongful discrimination are best understood as claims that one has been treated as the inferior of others, rather than as their equal. It then introduces the question that the book will answer: When we disadvantage some people relative to others on the basis of certain traits, when and why do we wrong them by failing to treat them as the equals of others? The author discusses monist theories of why discrimination wrongs people—that is, theories that trace the wrongness of discrimination to some single feature in all cases—and argues that such theories are problematic, and that we need to look instead for a pluralist theory. The author discusses a number of challenges facing pluralist theories, and explains how the theory elaborated in this book will address these challenges. The chapter also includes a detailed discussion of the relevance of the law to our moral thought about why discrimination is wrong, and a discussion of the importance of using real examples with real claimants. The author argues that particularly because the different wrongs involved in wrongful discrimination depend on the background social context, hypothetical examples that have no background social context will not help us assess what is wrongful about wrongful discrimination. Moreover, hypothetical examples risk leaving in place misunderstandings about the groups that have historically faced wrongful discrimination and who have not been given a voice. If we are to understand the situation of these groups, we need to try to take their perspective and learn from their actual experiences.

Its protectorate, its duty-bearers, and the duties it imposes determine the basic structure of discrimination law. A protected ground must: (i) be a personal characteristic that classifies persons into groups with a significant advantage gap between them; and (ii) it must either be immutable or it must constitute a fundamental choice. Relatively disadvantaged groups are typically offered greater protection than their cognates—in other words, the protection of the law is largely asymmetric. Discrimination law does not impose its burdens on everyone, nor does it impose them on advantaged groups. Instead, its burdens are imposed unidirectionally on the state, on employers, on landlords, and on providers of goods and services (but not, generally, on citizens, employees, tenants or consumers—when acting in these capacities). Its duties include a prohibition on direct and indirect discrimination and harassment, and provision for reasonable accommodation and affirmative action.

This chapter raises the question of whether the disparate impact theory may have run its course or perhaps served its purpose. In raising that question, it discusses how ? and whether ? the concept of indirect discrimination fits within current anti-discrimination commitments. The chapter first provides a brief outline of the disparate impact theory as developed and interpreted by American courts, and demonstrates its limited effect. It then explores some of the justifications for the theory before moving on to an extended analysis of a recent Supreme Court Case (Ricci) to demonstrate the theory's weakening force and the potential obscuring role it can play. The chapter concludes by discussing how the concept of indirect discrimination might be made relevant for claims of contemporary inequality.

This chapter develops an original account of what unjust subordination consists in. It then uses this account to argue that both direct and indirect discrimination are often wrongful because of their contribution to unjust subordination. The chapter begins by arguing that we need to move away from individualistic conceptions of subordination and to consider subordination as something that happens to a person by virtue of her membership in social groups. It then lays out a set of four common and morally salient features of situations in which one social group is subordinated by others, and it uses these to help analyze cases of discrimination. In particular, the chapter calls attention to the role of “structural accommodations.” These are policies, practices, and physical structures that tacitly accommodate a more privileged group’s needs at the expense of subordinated groups. Structural accommodations help us understand how indirect discrimination, too, can be wrongfully subordinating.

Chapter Two, “Unfair Subordination,” develops a theory of unfair subordination and then uses this theory to help explain why discrimination wrongs people. The author explains why, in this context, it is important to think of subordination as “social subordination”—that is, as something that happens to a person by virtue of her membership in a certain social group. The author argues that social subordination involves not only differences in the power, authority, and deference given to particular social groups, but also, crucially, the presence of what the author calls “structural accommodations.” These are practices that normalize the needs of the superior groups and render invisible the needs of inferior groups. The author then uses this account of subordination to explain a variety of ways in which direct and indirect discrimination contribute to unfair subordination. Both forms of discrimination perpetuate differences in power, authority, and deference. Direct discrimination also subordinates by marking out certain people or groups as inferior, constituting an expression of censure. And indirect discrimination contributes to unfair subordination when it leaves in place problematic structural accommodations, rendering certain groups invisible, and thereby marking them out as inferior, in certain contexts.

This chapter begins by discussing how prohibitions against discrimination never appear in isolation, but only as part of a surrounding legal structure that gives them form and meaning. It then recounts the aspirations and efforts of theories of discrimination to impose a degree of unity upon this welter of prohibitions and exceptions, and the problems that these theories encounter. Next, it turns to the mediating role of discrimination as a legal concept and asks what implications can be drawn from it for three current issues in the law of discrimination: whether to extend prohibitions against discrimination to new grounds, such as sexual orientation or appearance; whether to preserve or enhance claims for disparate impact or indirect discrimination; and whether to recognize claims based on ?implicit bias? against protected groups.