Discrimination Law

Description

Equality is an ideal to which we all aspire. Yet the more closely we examine it, the more its meaning shifts. How do we explain how equal treatment can in effect lead to inequality, while unequal treatment might be necessary in order to achieve equality? The apparent paradox can be understood if we accept that equality can be formulated in different ways, depending on which underlying conception is chosen. In this highly readable yet challenging book, Sandra Fredman examines the ways in which discrimination law addresses these questions. The new edition retains the format of the highly successful first edition, while incorporating the many new developments in discrimination law since 2002, including the Equality Act 2010, human rights law, and EU law. By using a thematic approach, the book illuminates the major issues in discrimination law, while at the same time imparting a detailed understanding of the legal provisions. The comparative approach is particularly helpful; by examining comparable law in the US, India, Canada, and South Africa, as well as the UK, the book exposes common problems and canvasses differing solutions. As in the previous edition, the book locates discrimination in its wider social and historical context. Drawing on the author's wide experience of equality law in many jurisdictions, she creates an analytic framework to assess the substantive law. The book is a thought-provoking and accessible overview of the way in which equality law has adjusted to new and increasingly complex challenges. It concludes that progress has been evident, but uneven. Those dedicated to equality still face an exacting, but ultimately deeply rewarding, task. Contents Table of Cases xiii Table of Legislation and Statutory Materials xxvii List of Abbreviations xxxiii 1. Equality: Concepts and Controversies 1 I The Principle of Equality 4 II Competing Values: Liberty or Equality 33 III Conclusion 37 2. Social Context and Legal Developments 38 I Gender 38 II Race and Ethnicity 50 III Gypsies and Travellers 69 IV Religion and Belief 73 V Sexual Orientation 86 VI Gender Reassignment 93 VII Disability 95 VIII Age Discrimination 101 IX Conclusion 108 3. The Scope of Discrimination Law 109 I Grounds of Discrimination 110 II Scope of Discrimination Law 143 III Who is Bound? 148 4. Legal Concepts: Direct, Indirect Discrimination, and Beyond 153 I Equal Pay Legislation: The Shackled Giant 156 II Direct Discrimination 166 III Indirect Discrimination 177 IV Competing Priorities: Justifying Discrimination 190 V The Difficult Divide: The Role of Motive and Intention in Direct and Indirect Discrimination 203 VI Duty of Accommodation or Adjustment 214 VII Equality as Proportionality 221 VIII Equality as Dignity 227 IX Positive Duties to Promote Equality 230 X Conclusion 231 5. Symmetry or Substance: Reverse Discrimination 232 I Concepts of Equality and Reverse Discrimination 233 II Reverse Discrimination and the Law: Contrasting Jurisdictions 237 III Aims and Effectiveness 259 IV Conclusion 278 6. Rights and Remedies: The Limits of the Law 279 I Adversarialism: The Narrow Reach of Adjudication 280 II Agency Enforcement 295 III ‘Fourth Generation’ Equality: Positive Duties 299 IV Conclusion 335 Index 337