Foundations of Indirect Discrimination Law

Description

Indirect discrimination (or disparate impact) concerns the application of the same rule to everyone, even though that rule significantly disadvantages one particular group in society. Ever since its recognition by the Supreme Court of the United States in 1971, liberal democracies around the world have grappled with the puzzle that it can sometimes be unfair and wrong to treat everyone equally. The law’s regulation of private acts that unintentionally (but disproportionately) harm vulnerable groups has remained extremely controversial, especially in the United States and the United Kingdom. In original essays in this volume, leading scholars of discrimination law from North America and Europe explore the various facets of the law on indirect discrimination, interrogating its foundations, history, legitimacy, purpose, structure, and relationship with other legal concepts. The collection provides the first international work devoted to this vital area of the law that seeks both to prevent unfair treatment and to transform societies. Acknowledgements Contents List of Contributors Acknowledgements 1. Indirect Discrimination Law: Controversies and Critical Questions I. The Fox and the Stork II. The Paradox of Indirect Discrimination III. The Puzzles in Indirect Discrimination Law IV. Legal Disagreements and Moral Foundations V. The Scope of the Law of Indirect Discrimination VI. The Distinction between Direct and Indirect Discrimination VII. Three Approaches towards the Foundations of Indirect Discrimination Law VIII. Conclusion 2. Direct and Indirect Discrimination: Is There Still a Divide? I. Bright Line Distinctions: Intention, Justification and Pre-emptive Action II. Blurring the Distinctions: Pre-emptive Action and 'Intrinsic'
Discrimination III. Individualism: Fault and Individual Harm IV. Aims and Objectives V. Relaxing the Boundaries: Do We Need the Distinction? VI. Conclusion 3. Approaching the Indirect–Direct Discrimination Distinction: Concepts, Justifications and Policies I. Perspectives and Issues II. Theoretical Approaches to Discrimination Law III. The Indirect-Direct Discrimination Distinction IV. Conclusion 4. Judicial Scepticism of Discrimination at the ECtHR I. ECtHR Case Law on Indirect Discrimination II. Objections to the Indirect Discrimination Doctrine III. The Responses IV. Conclusion 5. Indirect Discrimination and the Duty to Avoid Compounding Injustice I. Introduction II. The Duty to Avoid Compounding Injustice III. Does Indirect Discrimination Compound Injustice? IV. Is Indirect Discrimination a Form of Discrimination? 6. The Moral Seriousness of Indirect Discrimination I. Common Views about Direct and Indirect Discrimination II. Analysing Cases of Indirect Discrimination III. Why Might Direct Discrimination Be More Serious From a Moral Standpoint? IV. Direct and Indirect Discrimination As Forms of Negligence 7. Squaring the Circle: Can an Egalitarian and Individualistic Conception of Freedom of Religion or Belief Co-exist with the Notion of Indirect Discrimination? I. European Law as an Instructive Example II. Europe's Individualistic and Egalitarian Approach to Freedom of Religion or Belief III. Anti-Discrimination Law: Indirect Discrimination on Grounds of Religion or Belief IV. Key Cases Illustrating the Tensions V. The Problem of Conflation of Religious Freedom and Indirect Discrimination in Relation to Religion VI. A Hybrid: Indirect Discrimination in Relation to Freedom of Religion or Belief as Distinct from Indirect Discrimination in Relation to Religion or Belief VII. Limited Impact of Individualised Indirect Discrimination VIII. Belief and Identity: Two Views of Religion IX. Conclusion 8. Indirect Discrimination, Affirmative Action and Relational Egalitarianism I. Introduction II. Anderson and Scheffler III. Relational Egalitarians on the Injustice of Indirect Discrimination: Anderson IV. Relational Egalitarians on the Injustice of Indirect Discrimination: Scheffler V. Relational Egalitarians on Justified Forms of Affirmative Action: Anderson VI. Relational Egalitarians on Justified Forms of Affirmative Action: Scheffler VII. Conclusion 9. Wrongs, Group Disadvantage and the Legitimacy of Indirect Discrimination Law I. Introduction II. Indirect Discrimination as Doubly Wrongful III. Culpability in Indirect Discrimination IV. Conclusion: Why Indirect Discrimination Law Needs the Systemic Analysis 10. Anti-discrimination Law and the Duty t
o Integrate I. DH and Others v Czech Republic: A New Indirect Discrimination Framework II. The Duty to Integrate III. The Duty to Integrate In The Narrativesof Failed Implementation IV. The American Judicial Disaggregation of Desegregation and Integration V. Courts' Remedial Powers in Indirect Discrimination Theory VI. Conclusion 11. Justice for Foxes: Fundamental Rights and Justification of Indirect Discrimination I. Justification in the Law of Indirect Discrimination II. Questioning the Standard Account III. Balancing Rights in Indirect Discrimination IV. Conclusion Index