Pages: 8

This introduction presents an overview of the key concepts discussed in the subsequent chapters of this book. The book discusses the senior expert of the European Commission’s European network of legal experts in gender equality and non-discrimination and guest researcher at Utrecht School of Law. It also discusses the Goethe University of Frankfurt in Germany, combines academic rigour with a systematic and orderly approach thus allowing for a thorough discussion of the German law on discrimination in employment. The principle of non-discrimination is one of the most current topics enjoying a worldwide impact. Drawing on the recent developments of equality theories – including those based on the idea that equality is an important element of human dignity – and analysing the CJEU case law, the author highlights the usefulness of the approach according to which scrutiny of discrimination should apply a wider range of methodologies and should go beyond the strict, comparator-based methodology.

Pages: 87

No chapter abstract available.

Pages: 24

A comparison of the treatment with the victim of discrimination and the treatment with another person in a comparable situation is considered as the traditional methodology of investigation of discrimination cases. This study is designed to describe the doctrinal approaches, as well as the development of EU legislation and case law providing indications that the scrutiny of discrimination should go beyond the strict, comparator-based methodology. In section 2, the role of comparison is assessed in the light of the function of non-discrimination law. Section 3 describes the development of CJEU case law and secondary non-discrimination law in terms of acknowledging an increasingly flexible and rich set of methodologies concerning the investigation of discrimination cases and the role of comparison therein. Section 4 proposes, with regard to the particular significance of the issue, to depict the developments of EU law in terms of comparison in pay discrimination cases.

Pages: 25

Diverse forms of discrimination are increasingly debated in the Netherlands. These concern, for example, racism in everyday life, ethnic profiling by the police and state institutions, sexism and pregnancy discrimination in employment, disability discrimination in the labour market, and discriminatory recruitment procedures due to the use of algorithms. Government initiatives are taken to tackle such discrimination in addition to the application of existing legislation. The Dutch equal treatment legislation has evolved since 1975 and now represents a sophisticated field of law that covers not only employment but also services and social protection. This legislation is scattered over different acts and is quite complex. It covers many grounds, in particular religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual orientation, civil status, disability or chronic illness, age, working time and temporary work contracts. This chapter discusses Dutch equal treatment law applicable to employment, which is mainly shaped by the implementation of the relevant EU directives. The application of the legal provisions to numerous situations – by the Dutch equality body in particular – offers rich insights into the application of EU non-discrimination law at the national level and the potential of equal treatment law in practice.

Pages: 13

The chapter focuses on the law on prohibition of discrimination in employment in Germany: the Constitution, the legislation and the case law. It is not meant to provide an account of the empirical situation of discrimination. The basic structure of the German Act on Equal Treatment is sketched. For the sake of illustration, some particularly problematic legal topics are discussed. By way of conclusion, the essential problem of the German legal system is pointed out: the individualisation of court procedure and the lack of possibilities of trade unions and/or anti-discrimination associations to litigate on behalf of victims of discrimination without their involvement.

Pages: 23

This chapter analyses a legal nature of the non-exhaustive catalogue of discriminatory criteria included in the Polish Labour Code. In particular, it presents an overview of the “other” criteria than those regulated expressis verbis. Thus, the chapter focuses on the case law concerning criteria recognised as discriminatory and those that were not considered as such by the Polish courts. The chapter also highlights some interpretative issues that result from the amendment of 16 May 2019 to the Labour Code. This change included the deletion of the phrase “as well as without distinction on the grounds of”. As intended by the legislature, this intervention should cause the courts to expand an open catalogue to include not only personal characteristics of social importance but also criteria related to the work performed. However, this seems to be problematic from the point of view of the need to ensure a pro-EU interpretation of national law.

Pages: 92

No chapter abstract available.

Pages: 54

Instead of addressing all nine protected characteristics provided for by the Equality Act 2010, this chapter is modest in that it only addresses the protected characteristics of religion or belief. Divided into three sections, this chapter analyses the concept of philosophical belief as a protected characteristic under British discrimination law. The first section provides an in-depth analysis of the Casamitjana Costa case, which consists of the backcloth of the case, its facts and the legal conditions to be met for “ethical veganism” to qualify as a “protected characteristic” under the legislation. This case will form the link to the second section for the subsequent discussion on which cases tribunals and courts have upheld or rejected the concept of philosophical belief. These will lead to the third section, which epitomises the chapter content by summing up the case law and the impact such case law is having on employers. Submissions on how employers should act in relation to the legal evolutionary tract will round off the chapter content.

Pages: 19

Australia lacks any constitutionally entrenched guarantees of equality and non-discrimination and as occurs in many federations, the legal framework governing employment discrimination is a complex web of state, territory and federal laws. This chapter examines the various avenues for redress available with respect to forms of unlawful discrimination in employment and highlights how problems with scope, burden of proof, and exceptions limit the reach of the existing legal protections. The chapter also addresses the need to move away from reactive complaints-based mechanisms and to enhance enforcement mechanisms in order to bring about substantive change in Australian workplaces.

Pages: 17

By 1977 Aotearoa/New Zealand had enacted a comprehensive legislative foundation for discrimination law based on international human rights instruments to which it was a party. Initially this legislation had a significant impact, particularly on removing occupational barriers to women, but subsequent progress on achieving anti-discrimination goals has been modest. More recently, however, there are indications that the groundwork for a new, broader approach to discrimination is being developed on several fronts. Unlike the universalist approach of the 1970s, the new approach is likely to be driven by three major forces: first, the need to respond to the failures of the initial legislation, in particular its failure to advance pay equity and fully advance non-discriminatory access to employment; second, to reflect new developments and challenges that have been identified in discrimination law over recent decades; and third, to shape discrimination law to reflect the values and demographics of contemporary Aotearoa/New Zealand.

Pages: 101

No chapter abstract available.

Pages: 21

In Québec, over the past few decades, violation of the right to a work environment free from sexual harassment has largely come to be considered within frameworks for psychological harassment or employment injury rather than as a violation of human rights. From a pragmatic point of view, labour law frameworks have certain advantages for complainants, and they provide more timely resolution of complaints and claims than the human rights regime. However, this chapter illustrates how, in a number of ways, labour law frameworks may have the unfortunate effect of negating sexual harassment as a prohibited practise. Important questions remain in terms of how to improve the interaction between human rights frameworks and labour law frameworks so that all workers can benefit from a work environment free from sexual harassment and have access to effective, timely recourse in case of violation of this right.

Pages: 18

Discrimination on different grounds occurs throughout the entire life cycle of an employment relationship (i.e. in the context of job advertisements and job applications), when contracts are concluded and their contents, including insurance related to the employment relationship, in the context of promotions, salary increases, voluntary benefits from employers and finally in the event of dismissals, including change notices. There is little reliable data available in Switzerland on the extent of discrimination in employment. Research into the reality of discrimination is still in its infancy. In our chapter we propose to examine the legal situation in Switzerland in the light of international obligations under human rights treaties. As is well known, Switzerland is not a member of the EU. The EU obliges the member states to adopt comprehensive antidiscrimination legislation for the characteristics of age, disability, race/ethnic origin, religion/belief and sexual orientation. An obligation for the legal anchoring of effective protection against discrimination arises from the numerous conventions under international labour law, which are (also) binding on Switzerland. Particularly noteworthy are the obligations regarding disability and race/ethnic origin. Deficits are apparent in the implementation of these obligations under international law. The Swiss government and legislators are very reluctant to remedy this situation. However, there is also potential for implementation by the courts. They can (and should) use legislative concepts from EU anti-discrimination law, relevant ECJ decisions and the rulings of the human rights treaty monitoring bodies to interpret the contract law provisions on the protection of personality (under labour law) in order to find fair solutions in cases of discrimination. It goes without saying that the limits of interpretation and further judicial development of the law must be respected here. Ultimately, the legislature is (also) required to implement full the obligations under international labour law for effective protection against discrimination. The legislature can certainly orientate itself towards EU anti-discrimination law, but a “copy-paste” method is not obligatory because Switzerland is not part of the EU. The Swiss solution could also be that instead of a new legal regulation, the existing civil law instruments are supplemented.

Pages: 18

Disability as an evolving concept set out by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) underlines the need to adopt a flexible definition of disability. Quantifying disability, while extending rights to persons with disabilities, sacrifices the needs of the individual and seemingly advantages the group. The Indian Supreme Court in two contrary decisions has dealt with the disadvantages emerging from quantification. In one instance it held that a person with a higher level of disability could not expect to hold a judicial office, and in the other it held that the support of a scribe was to be extended even though the threshold level of disability was not present. The chapter seeks to explain the difference between the decisions. It will look at disability-based discrimination law in India, which straddles two distinct branches of law: labour law and discrimination law. Labour law has been a result of historical struggles and has been built around many normative frameworks including a rights-based framework along with frameworks of exploitation and others. It has traditionally ignored many identity-based demands, and disability is a major gap in labour law frameworks which are largely focused on able-bodied persons. International human rights such as rights emanating from the UNCRPD are being incorporated into labour law in order to transform the understanding of disability. Discrimination law, on the other hand, largely based on individual claims, has been rooted in a liberal framework not sufficiently open to group claims. The chapter uses Noah Datz’s proposition that the two branches can benefit from being read together. Datz writes that while labour law focuses on decommodification, discrimination law focuses on employer behaviour that does not treat workers strictly as factors of production but is inflected with bias. 1 The chapter examines how discrimination law can benefit from the principles that underlie labour law (e.g. questions of dignity, autonomy and citizenship) which allow it to move beyond specific acts of discrimination and look at more structural and systemic forms of discrimination. The specific context is the definition of disability as an objective exercise of quantification of disability in ensuring equal opportunities.

Pages: 29

Democracy is supposed to allow individuals the opportunity to follow their conception of the good without coercion. In Israel, precedence is given to Judaism over liberalism. It is argued that the reverse should be the case. Religion, Jewish law (Halacha), the Arab-Israeli conflict, the shift to neoliberal economy and old-fashioned chauvinism have all been instrumental in the creation and the continuation of gender inequality. Section 2 explains the halachic grounds for discrimination against women. Section 3 argues that the Israeli-Palestinian conflict advances a militaristic agenda that favours men. Section 4 analyses the neoliberal economic structure and the education systems that disadvantage women, while section 5 discusses manifestations of gender discrimination in Israel. Section 6 details milestones in legislation and Supreme Court rulings that aimed to promote women’s rights and decrease gender discrimination. The chapter calls for further changes to ensure gender equality, mapping avenues to bring about positive change. Public responsibility towards gender equality must strive for social policy based on legislation and adequate, fair, transparent and comprehensive implementation.

Pages: 13

The problem is mirrored by the scarce number of successful litigated outcomes under the federal legislation because proving the racial basis of treatments turns out to be a very daunting task. The findings for Switzerland presented by Kurt Pärli indicate that in the case of discriminatory refusal of employment, an infringement is unlawful unless it is justified by an overriding private interest. In the case of treating sexual harassment as an industrial accident, the Labour Tribunal likewise is ready to reject the workers’ claims. Cox gives an example of a newly hired factory worker who was dismissed after reporting several instances of unwanted sexual touching and harassment by her foreman. The Administrative Labour Tribunal held that no causal connection between the sexual harassment established by the evidence and the woman’s psychological injury was proved. The role of case law in qualifying certain features as legally protected is also discussed by Aneta Tyc.