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Conceptual Apparatus of Discrimination and Equal Treatment
1. The Concept of Equality: Theories and Controversies NB DD=Direct Discrimination ID=Indirect Discrimination See Notes from Labour Lecture 3- Anne Davies Collins, 'Discrimination, Equality and Social Inclusion' (2003) 66 MLR 16:
What is aim of anti-discrimination laws?
o Traditionally people cited 'equality/equal treatment' as the rationale for anti-discrimination laws, saying that they focus on disadvantaged groups so as to ensure impartiality concerning features like race or sex. o Collins says that being treated the same does not explain the legislation fully: Firstly in some cases the subjects of the legislation are explicitly to be treated differently e.g. women getting maternity leave/access to work for the disabled. Secondly equal treatment is sometimes prohibited where it would lead to indirect discrimination i.e. formal equal treatment becomes unlawful where a rule or practice disproportionately operates to the disadvantage of one of the protected groups, and the rule or practice cannot be objectively justified. Thirdly positive discrimination permits different treatment to rectify a historical disadvantage.
How can anti-discrimination laws be explained, given that a straightforward use of 'equality' doesn't work?
o Conventional account is a conception of equality based on a substantive/distributive goal i.e. tries to achieve equality of results/opportunity/resources, rather than just equal treatment. Hence positive discrimination might be seen to achieve equal opportunity in long run because of traditional barriers to employment. o The problem this conception causes is the tension between equal treatment and equal outcomes. Insistence that candidates only be hired on the basis of merit might prevent the realisation of equal distribution of jobs between men and women. In Europe proportionality is used to test derogations from the equal treatment principle, while US uses a similar 'strict scrutiny' test. While this balances the two it doesn't really resolve the conflict or answer which of the two we need to use as the basis for discrimination law. o One strategy to resolving this concept is to adopt a v limited definition of equality (like equal opportunity) so that it rarely clashes with equal treatment (BUT in practice equal treatment doesn't lead to equal opportunity). Another is to give equal treatment priority absolutely in some areas (like job interviews), but to abandon it in others (like outreach programmes), BUT hard to say why the lines are drawn where they are, and in practice the law applies the equal treatment principle across the board. Abandon equal treatment and instead use something like 'equal
respect' (BUT this cant be done given that law enshrines equal treatment principle). Final strategy is to interpret legislation as targeting distributive goals and just using equal treatment as a goal to get there (BUT doesn't explain the tension AND ignores the prominence that the law gives equal treatment). We can see from the above that 'equality' is an inadequate principle on which to conceptualise the law. Green suggests 'social inclusion' as a possible answer. o Discrimination tends to 'exclude' groups from society e.g. by preventing them from getting work or somehow prevented from enjoying the benefits associated with citizenship some other way. The aim of social inclusion is not about promoting a substantive form of equality, but about securing a minimum level of welfare for every citizen, rather than seeking a broader redistribution of welfare. Also social inclusion is not about equal opportunities, because it doesn't want to leave the most vulnerable to decide for themselves whether to take up the offer of greater welfare- it targets outcomes. o Social inclusion sees itself as connected with social cohesions: Those who are economically excluded tend to become disengaged in other ways too e.g. politically. This explains paternalistic strand to non-discrimination law in UK, which uses a mix of carrots and stick to get people back to work rather than simply giving them the opportunity. o Social inclusion is a political response to phenomenon of young people/other groups whose material needs are met by the state but never engage in civil institutions: Voting, marrying, working, forming families etc. Social inclusion policies were formed to address growing disengagement in increasingly wealthy societies. o Social inclusion can be used precisely, unlike equality, which tells us nothing about the types of groups we need to protect (could be those with genetic endowments, social categories, legal descriptions etc) and leads to disputes about the scope of discrimination law. Social inclusion just asks whether the group is one that in practice has been disproportionately socially excluded compared to the population as a whole. Under this criterion, for instance, single parents become a group to be protected, because the lack of affordable and adequate child-care arrangements tends to exclude them from material and non-material benefits. Equality might purport to justify protecting a particular group, such as old people, but has no reason not to also protect people outside that group. Social inclusion does. Does Social exclusion explain anti-discrimination laws?
o Why do discrimination laws place so much emphasis on employment, when modern employers are unlikely to discriminate given that it is inefficient (as irrationally depriving them of groups of labour) (Really? It seems rational to not employ women for fear of maternity costs, or fear of lawsuits). The reason so much discrimination law addresses employment is because of how crucial we deem it to be as a civil institution- it has a
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