Anti-discrimination law

Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes.[1] Anti-discrimination laws vary by jurisdiction with regard to the types of discrimination that are prohibited, and also the groups that are protected by that legislation.[2][3] Commonly, these types of legislation are designed to prevent discrimination in employment, housing, education, and other areas of social life, such as public accommodations. Anti-discrimination law may include protections for groups based on sex, age, race, ethnicity, nationality, disability, mental illness or ability, sexual orientation, gender, gender identity/expression, sex characteristics, religious, creed, or individual political opinions.

Anti-discrimination laws are rooted in principles of equality, specifically, that individuals should not be treated differently due the characteristics outlined above.[4][5] Anti-discrimination laws are designed to protect against both individual discrimination (committed by individuals) and from structural discrimination (arising from policies or procedures that disadvantage certain groups).[6] Courts may take into account both discriminatory intent and disparate impact in determining whether a particular action or policy constitutes discrimination.[7]

International

Equality and freedom from discrimination are outlines as basic human rights by the Universal Declaration of Human Rights (UDHR).[8] While the UDHR is not binding, nations make a commitment to uphold those rights through the ratification of international human rights treaties.[9] Specific treaties relevant to anti-discrimination law include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, and the International Convention on the Elimination of All Forms of Racial Discrimination.[10]

History of anti-discrimination legislation

Australia

The Racial Discrimination Act 1975 was the first major anti-discrimination legislation passed in Australia, aimed at prohibiting discrimination based on race, ethnicity, or national origin.[11] Jurisdictions within Australia moved shortly after to prohibit discrimination on the basis of sex, through acts including the Equal Opportunity Act 1977 and the Anti-Discrimination Act 1977.[12][13] The Australian parliament expanded these protections with the Sex Discrimination Act 1984 (SDA) to cover all Australians and provide protections based on sex, relationship status, and pregnancy. Additionally, the SDA has been expanded to include gender identity and intersex status as protected groups.[14] Discrimination based on disability status is also prohibited by the Disability Discrimination Act 1992.[15]

European Union

The European Union has passed several major anti-discrimination directives, the Racial Equality Directive and the Employment Equality Directive, and the Equal Treatment Directive. These directives set standards for all member countries of the European Union to meet; however each member state is responsible for creating specific legislation to achieve those goals.[16]

United Kingdom

Laws forbidding discrimination in housing, public facilities and employment were first introduced in the 1960s covering race and ethnicity under the Race Relations Act 1965 and the Race Relations Act 1968.

In the 1970s, anti-discrimination law was significantly expanded. The Equal Pay Act 1970 allowed women to bring action against their employer if they could show that they were being paid less compared to a male colleague for equal work or work of the same value. The Sex Discrimination Act 1975 forbade both direct and indirect discrimination on the basis of sex, and the Race Relations Act 1976 expanded the scope of anti-discrimination law on the basis of race and ethnicity.[17]

In the 1990s, protections against discrimination on the basis of disability was added primarily through the Disability Discrimination Act 1995.[17]

In the 2000s, the scope of employment anti-discrimination laws were expanded to cover sexual orientation (with the passage of the Employment Equality (Sexual Orientation) Regulations 2003), age (the Employment Equality (Age) Regulations 2006), and religion/belief (Employment Equality (Religion or Belief) Regulations 2003).

In 2010, existing anti-discrimination law was combined into a single Act of Parliament, the Equality Act 2010. The Equality Act contains provisions forbidding direct, indirect, perceptive and associative discrimination on the basis of sex, race, ethnicity, religion and belief, age, disability, sexual orientation and gender reassignment. Employment law also protects employees from worse treatment based on being part-time workers, agency workers or being on fixed-term contracts.[18]

United States of America

The Civil Rights Act of 1964 was the first major development in anti-discrimination law in the US, though prior civil rights legislation (such as the Civil Rights Act of 1957) addressed some forms of discrimination, the Civil Rights Act of 1964 was much broader, providing protections for race, color, religion, sex, or national origin in the areas of voting, education, employment, and public accommodations.[19] This landmark legislation led the way for other federal legislation, which expanded upon the protected classes and forms of discrimination prohibited under federal legislation, such as the Fair Housing Act[20] or the Americans with Disabilities Act.[21] These protections have also been expanded through the courts interpretation of these pieces of legislation. For example, the 7th and 2nd circuit courts have both ruled that employment discrimination based on sexual orientation is a violation of Title VII of the Civil Rights Act.[22][23] In addition to federal legislation, there are numerous state and local laws that address discrimination that is not covered by these laws.[24]

Effects

United States of America

Americans with Disabilities Act of 1990

Employment rates for all disabled men and disabled women under 40 have decreased since the implementation of the ADA.[25][26] This effect is especially pronounced for those with mental disabilities and for those with lower levels of education.[27] However, there is evidence to suggest that the decrease in employment rates is partially explained by increased participation in educational opportunities.[28] These decreases can be attributed to increased costs for employers to remain in compliance with ADA provisions; rather than bearing increased costs, companies hire fewer workers with disabilities.[29] While popular conception is that the ADA has created the opportunity for legal recourse for those with disabilities, less than 10% of ADA related cases find in favor of the plaintiff.[30]

Prior to 1960

David Neumark and Wendy Stock find some evidence that sex discrimination/equal pay laws boosted the relative earnings of black and white females and reduced the relative employment of both black women and white women.[31]

Exceptions

Where anti-discrimination legislation is in force, exceptions are sometimes included in the laws, particularly affecting the military and religious organizations.

Military

In many nations with anti-discrimination legislation, women are excluded from holding certain positions in the military, such as serving in a frontline combat capacity or aboard submarines. The reason given varies; for example, the British Royal Navy cite the reason for not allowing women to serve aboard submarines as medical and related to the safety of an unborn fetus, rather than that of combat effectiveness.[32][33]

Religious organizations

Some religious organizations are exempted from legislation. For example, in Britain the Church of England, in common with other religious institutions, has historically not allowed women to hold senior positions (bishoprics) despite sex discrimination in employment generally being illegal; the prohibition was confirmed by a vote by the Church synod in 2012.[34]

Selection of teachers and pupils in schools for general education but with a religious affiliation is often permitted by law to be restricted to those of the same religious affiliation even where religious discrimination is forbidden.

See also

References

  1. ^ Levit, Nancy (2012-05-01). "Changing Workforce Demographics and the Future of The Protected Class Approach". Rochester, NY.
  2. ^ Readler, Chad A. (1997–1998) [1997-1998]. "Local Government Anti-Discrimination Laws: Do They Make a Difference". University of Michigan Journal of Law Reform. 31: 777. Retrieved 2018-07-09.CS1 maint: Date format (link)
  3. ^ Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law - Challenges and Innovative Tools | Marie Mercat-Bruns | Springer. Ius Comparatum - Global Studies in Comparative Law. Springer. 2018. ISBN 9783319900674.
  4. ^ Holmes, Elisa (2005). "Anti-Discrimination Rights Without Equality". Modern Law Review. 68 (2): 175–194. doi:10.1111/j.1468-2230.2005.00534.x. ISSN 0026-7961.
  5. ^ Donohue III, John J. (2005). "The Law and Economics of Antidiscrimination Law". NBER Working Paper No. 11631. doi:10.3386/w11631.
  6. ^ Seicshnaydre, Stacy E. (2007-09-18). "Is the Road to Disparate Impact Paved With Good Intentions? -- Stuck on State of Mind in Antidiscrimination Law". Rochester, NY.
  7. ^ Huq, Aziz Z. (2017-09-06). "Judging Discriminatory Intent". Rochester, NY.
  8. ^ "Universal Declaration of Human Rights". www.un.org. 2015-10-06. Retrieved 2018-07-10.
  9. ^ "Human Rights Law". www.un.org. 2015-09-02. Retrieved 2018-07-10.
  10. ^ Weiwei, Li. "Equality and Non-Discrimination Under International Human Rights Law". CiteSeerX 10.1.1.454.7875.
  11. ^ AG. "Racial Discrimination Act 1975". www.legislation.gov.au. Retrieved 2018-07-17.
  12. ^ "Equal Opportunity Act 1977". www8.austlii.edu.au. Retrieved 2018-07-17.
  13. ^ "ANTI-DISCRIMINATION ACT 1977". www8.austlii.edu.au. Retrieved 2018-07-17.
  14. ^ admin (2012-12-14). "Complaints under the Sex Discrimination Act". www.humanrights.gov.au. Retrieved 2018-07-17.
  15. ^ AG. "Disability Discrimination Act 1992". www.legislation.gov.au. Retrieved 2018-07-17.
  16. ^ BELL, MARK (2008). "The Implementation of European Anti-Discrimination Directives: Converging towards a Common Model?". The Political Quarterly. 79 (1): 36–44. doi:10.1111/j.1467-923x.2008.00900.x. ISSN 0032-3179.
  17. ^ a b Stephen T. Hardy (2011). Labour Law in Great Britain. Kluwer Law International. p. 216. ISBN 978-90-411-3455-4.
  18. ^ Alex Davies (June 2011). Workplace Law Handbook 2011: Employment Law and Human Resources. Workplace Law Group. p. 204. ISBN 978-1-905766-88-8.
  19. ^ "Our Documents - Transcript of Civil Rights Act (1964)". www.ourdocuments.gov. Retrieved 2018-07-10.
  20. ^ Yinger, John (1999). "Sustaining the Fair Housing Act". Cityscape. 4 (3): 93–106. JSTOR 20868477.
  21. ^ Burgdorf, Jr., Robert L. (1991). "The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute". Harvard Civil Rights-Civil Liberties Law Review. 26: 413. Retrieved 2018-07-15.
  22. ^ Kreis, Anthony Michael (2018-05-11). "A Fresh Look at Title VII: Sexual Orientation Discrimination as Sex Discrimination". Rochester, NY.
  23. ^ Wiessner, Daniel. "U.S. appeals court says Title VII covers discrimination based on..." U.S. Retrieved 2018-07-15.
  24. ^ Hunt, Jerome (2012). "A State by State Examination of Nondiscrimination Laws and Policies: State Nondiscrimination Policies Fill the Void but Federal Protections Are Still Needed" (PDF).
  25. ^ DeLeire, Thomas (2000). "The Wage and Employment Effects of the Americans with Disabilities Act". The Journal of Human Resources. 35 (4): 693–715. doi:10.2307/146368. JSTOR 146368.
  26. ^ "Consequences of the Americans With Disabilities Act". www.nber.org. Retrieved 2018-07-17.
  27. ^ DeLeire, Thomas (2000). "The Unintended Consequences of the Americans with Disabilities Act" (PDF). Regulation. 23.
  28. ^ Jolls, Christine (2004). "Identifying the Effects of the Americans with Disabilities Act Using State-Law Variation: Preliminary Evidence on Educational Participation Effects". The American Economic Review. 94 (2): 447–453. JSTOR 3592926.
  29. ^ Acemoglu, Daron; Angrist, Joshua (1998). "Consequences of Employment Protection? The Case of the Americans with Disabilities Act". doi:10.3386/w6670.
  30. ^ Colker, Ruth (1999). "The Americans with Disabilities Act: A Windfall for Defendants". Harvard Civil Rights-Civil Liberties Law Review. 34: 99. Retrieved 2018-07-17.
  31. ^ Neumark, David; Stock, Wendy A. (2006). "The Labor Market Effects of Sex and Race Discrimination Laws". Economic Inquiry. 44 (3): 385–419. CiteSeerX 10.1.1.493.3430. doi:10.1093/ei/cbj034.
  32. ^ More Submarine FAQs Archived April 10, 2008, at the Wayback Machine, See question number 15: Why are women not permitted to serve on submarines? Royal Navy website. Retrieved 30-03-2008
  33. ^ MOD factsheet: Women in the armed forces. Retrieved 30-03-2008
  34. ^ BBC: Women bishops vote: Church of England 'resembles sect', 22 November 2012

External links

Bona fide occupational qualification

In employment law, a bona fide occupational qualification (BFOQ) (US) or bona fide occupational requirement (BFOR) (Canada) or genuine occupational qualification (GOQ) (UK) is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees—a quality that when considered in other contexts would constitute discrimination and thus be in violation of civil rights employment law. Such qualifications must be listed in the employment offering.

Canadian Human Rights Act

The Canadian Human Rights Act (the Act) is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set of prohibited grounds such as sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, political or religious belief.

Christie v York

Christie v York (1939), [1940] S.C.R. 139 is a famous decision of the Supreme Court of Canada where the Court allowed private establishments to discriminate on the basis of free enterprise.

Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission) is an independent chapter nine institution in South Africa. It draws its mandate from the South African Constitution by way of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act of 2002.

Employment Equality (Sexual Orientation) Regulations 2003

The Employment Equality (Sexual Orientation) Regulations 2003 are secondary legislation in the United Kingdom, which prohibited employers unreasonably discriminating against employees on grounds of sexual orientation, perceived sexual orientation, religion or belief and age. They are now superseded by the Equality Act 2010.

Equal Credit Opportunity Act

The Equal Credit Opportunity Act (ECOA) is a United States law (codified at 15 U.S.C. § 1691 et seq.), enacted 28 October 1974, that makes it unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction, on the basis of race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); to the fact that all or part of the applicant's income derives from a public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. The law applies to any person who, in the ordinary course of business, regularly participates in a credit decision, including banks, retailers, bankcard companies, finance companies, and credit unions.

The part of the law that defines its authority and scope is known as Regulation B, from the (b) that appears in Title 12 part 1002's official identifier: 12 C.F.R. § 1002.1(b) (2017). Failure to comply with Regulation B can subject a financial institution to civil liability for actual and punitive damages in individual or class actions. Liability for punitive damages can be as much as $10,000 in individual actions and the lesser of $500,000 or 1% of the creditor's net worth in class actions.

Equal Treatment Directive 2006

The Equal Treatment Directive 2006/54/EC is an Act of the European Union, which implements the principle of equal treatment between men and women in EU labour law.

Equality Act 2010

The Equality Act 2010 is an Act of Parliament of the United Kingdom with the primary purpose of consolidating, updating and supplementing the numerous prior Acts and Regulations, that formed the basis of anti-discrimination law in Great Britain. These consisted, primarily, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age.The act has broadly the same goals as the four major EU Equal Treatment Directives, whose provisions it mirrors and implements. However, the act also offers protection beyond the EU directives, protecting against discrimination based on a person's nationality and citizenship and also extending individuals' rights in areas of life beyond the workplace in religion or belief, disability, age, sexual orientation and gender reassignment. The primary purpose of the Act is to codify the complicated and numerous array of Acts and Regulations, which formed the basis of anti-discrimination law in Great Britain. This was, primarily, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and three major statutory instruments protecting discrimination in employment on grounds of religion or belief, sexual orientation and age.

The Act protects people against discrimination, harassment or victimisation in employment, and as users of private and public services based on nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The Act includes provisions for single-sex services where the restrictions are "a proportionate means of achieving a legitimate aim". In the case of disability, employers and service providers are under a duty to make reasonable adjustments to their workplaces to overcome barriers experienced by disabled people. In this regard, the Equality Act 2010 did not change the law. Under s.217, with limited exceptions the Act does not apply to Northern Ireland.

Equality Framework Directive 2000

Council Directive 2000/78/EC, called Employment Equality Framework Directive, is an EU Directive, and a major part of EU labour law which aims to combat discrimination on grounds of disability, sexual orientation, religion or belief and age in the workplace. It accompanies the Racial Equality Directive 2000 and the Equal Treatment Directive 2006 on gender.

It is implemented in the UK with the Equality Act 2010. Germany implemented the directive by creation of its General Act on Equal Treatment, "Allgemeines Gleichbehandlungsgesetz (AGG)"

Executive Order 10925

Executive Order 10925, signed by President John F. Kennedy on March 6, 1961, required government contractors to "take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin." It established the President's Committee on Equal Employment Opportunity (PCEEO), which was chaired by then Vice President Lyndon Johnson. Vice Chair and Secretary of Labor Arthur Goldberg was in charge of the Committee's operations. This first implementation of affirmative action was intended to give equal opportunities in the workforce to all U.S. citizens, not to give special treatment to those discriminated against.Following passage of the Civil Rights Act of 1964 (which went into effect a year later on July 2, 1965) and President Johnson's Executive Order 11246 (which was signed on September 24, 1965), the Committee's functions were divided between the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance (which in 1975 was renamed the Office of Federal Contract Compliance Programs).Opponents of the PCEEO and Executive Order 10925 included Senator J. Lister Hill, a segregationist Democrat from Alabama, who claimed that the committee and the executive order were overreaches by the federal government into the private business' of America.

Home Mortgage Disclosure Act

The Home Mortgage Disclosure Act (or HMDA, pronounced HUM-duh) is a United States federal law that requires certain financial institutions to provide mortgage data to the public. Congress enacted HMDA in 1975.

Promotion of Equality and Prevention of Unfair Discrimination Act, 2000

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA or the Equality Act, Act No. 4 of 2000) is a comprehensive South African anti-discrimination law. It prohibits unfair discrimination by the government and by private organisations and individuals and forbids hate speech and harassment. The act specifically lists race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth as "prohibited grounds" for discrimination, but also contains criteria that courts may apply to determine which other characteristics are prohibited grounds. Employment discrimination is excluded from the ambit of the act because it is addressed by the Employment Equity Act, 1998. The act establishes the divisions of the High Court and designated Magistrates' Courts as "Equality Courts" to hear complaints of discrimination, hate speech and harassment.

Race Relations Act 1965

The Race Relations Act 1965 was the first legislation in the United Kingdom to address racial discrimination.

The Act outlawed discrimination on the "grounds of colour, race, or ethnic or national origins" in public places in Great Britain (although not in Northern Ireland, which had its own parliament at the time).It also prompted the creation of The Race Relations Board (in 1966), to consider complaints under the Act.

Race Relations Act 1968

The Race Relations Act 1968 was an Act of the Parliament of the United Kingdom making it illegal to refuse housing, employment, or public services to a person on the grounds of colour, race, ethnic or national origins in Great Britain (although not in Northern Ireland, which had its own parliament at the time). It also created the Community Relations Commission to promote 'harmonious community relations'.The Act made amendments to the Race Relations Act 1965. It was superseded (and repealed) by the Race Relations Act 1976.

The Act was criticised for poorly translating "new standards of behaviour" into an effective legal document. The bill which introduced the Act was the focus of one of Enoch Powell's infamous Rivers of Blood speech, delivered to the West Midlands Conservative Association on 20 April 1968. Powell was sacked from Ted Heath's shadow cabinet the following day.

Race Relations Act 1976

The Race Relations Act 1976 was established by the Parliament of the United Kingdom to prevent discrimination on the grounds of race.

Items that are covered include discrimination on the grounds of race, colour, nationality, ethnic and national origin in the fields of employment, the provision of goods and services, education and public functions.

The Act also established the Commission for Racial Equality with a view to review the legislation, which was put in place to make sure the Act rules were followed.

The Act incorporates the earlier Race Relations Act 1965 or Race Relations Act 1968 and was later amended by the Race Relations Amendment Act 2000, notably including a statutory duty on public bodies to promote race equality, and to demonstrate that procedures to prevent race discrimination are effective.

The Act was repealed by the Equality Act 2010, which supersedes and consolidates previous discrimination law in the UK.

Second Enforcement Act

The Enforcement Act of 1871, sometimes called the Civil Rights Act of 1871 or the Second Ku Klux Klan Act, was a United States federal law. The act was the second of three Enforcement Acts passed by the United States Congress from 1870 to 1871 during the Reconstruction Era to combat attacks on the suffrage rights of African Americans from groups like the Ku Klux Klan.

Republican Representative John C. Churchill from New York introduced his bill H.R. 2634 in the 41st United States Congress. The bill was passed by Congress in February 1871 and signed into law by President Ulysses S. Grant on February 28, 1871.

Section Nine of the Constitution of South Africa

Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa. This equality right is the first right listed in the Bill of Rights. It prohibits both discrimination by the government and discrimination by private persons; however, it also allows for affirmative action to be taken to redress past unfair discrimination.

Sex Discrimination Act 1975

The Sex Discrimination Act 1975 (c. 65) was an Act of the Parliament of the United Kingdom which protected men and women from discrimination on the grounds of sex or marital status. The Act concerned employment, training, education, harassment, the provision of goods and services, and the disposal of premises. The Gender Recognition Act 2004 and The Sex Discrimination Act 1975 (Amendment) Regulations 2008 amended parts of this Act to apply to transsexual people. Other amendments were introduced by the Sex Discrimination Act 1986, the Employment Act 1989, the Equality Act 2006, and other legislation such as rulings by the European Court of Justice.

The Act did not apply in Northern Ireland, however The Sex Discrimination Gender Reassignment Regulations (Northern Ireland) 1999 does.

The Act was repealed in full by the Equality Act 2010.

Trinity Western University v British Columbia College of Teachers

Trinity Western University v British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, is a leading Supreme Court of Canada decision on the freedom of religion and the court's ability to review a private school's policies.

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