Anti-discrimination law

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Westboro Baptist Church protest in the United States. The signs read "Thank God for 9/11", "Thank God for Improvised Explosive Devices" and "Our soldiers are fags".

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, religion, creed, or individual political opinions.

Contents

Anti-discrimination laws are rooted in principles of equality, specifically, that individuals should not be treated differently due to the characteristics outlined above. [4] [5] At the same time, they have often been criticised as violations of the inherent right of free association. 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] In addition, the United Nations Sustainable Development Goal 10 and Goal 16 also advocates for international efforts towards eliminating discriminatory laws. [11]

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. [12] 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. [13] [14] 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. [15] Discrimination based on disability status is also prohibited by the Disability Discrimination Act 1992. [16]

Belgium

The first Belgian anti-discrimination law of 25 February 2003 was annulled by the Belgian Constitutional Court. The Court ruled that the law was discriminative since its scope did not include discrimination on the basis of a political opinion or language and thus violated the articles 10-11 of the Belgian Constitution, instituting the principle of equality before law. [17]

A new law came into force on the 9th of June 2007. [18] This law prohibits any use of direct or indirect discrimination on the basis of age, sexual preference, marital status, birth, wealth, religion or belief, political or syndical opinion, language, current or future state of health, disability, physical or genetical property or social origin. [19]

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. [20] The Court of Justice of the European Union interprets the European Union anti-discrimination law as substantive equality with equality of outcome for subgroups. [21]

All EU member states are also member states to the European Convention on Human Rights. Thus, article 14 of the Convention applies, which concerns a prohibition on discrimination on the ground of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

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. [22]

In the 1990s, protections against discrimination on the basis of disability was added primarily through the Disability Discrimination Act 1995. [22]

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. [23]

United States

In 1868 after the American Civil War, the Fourteenth Amendment to the United States Constitution was ratified, including the Equal Protection Clause. It was an effort by John Bingham and other Radical Republicans to protect formerly-enslaved people from discrimination. Nevertheless, the promises of this and other Reconstruction Amendments went largely unfulfilled for nearly a century thanks to the profusion of racist Jim Crow laws designed to oppress persons of color and reinforce racial segregation in the United States. The Civil Rights Act of 1964 was the next 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, colour, religion, sex, or national origin in the areas of voting, education, employment, and public accommodations. [24] 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 [25] or the Americans with Disabilities Act. [26] These protections have also been expanded through the courts interpretation of these pieces of legislation. For example, the U.S. Courts of Appeals for the Seventh and Second Circuits, and later the U.S. Supreme Court in Bostock v. Clayton County , ruled that employment discrimination based on sexual orientation is a violation of Title VII of the Civil Rights Act. [27] [28] [29] In addition to federal legislation, there are numerous state and local laws that address discrimination that is not covered by these laws. [30]

Effects

United States

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. [31] [32] This effect is especially pronounced for those with mental disabilities and for those with lower levels of education. [33] However, there is evidence to suggest that the decrease in employment rates is partially explained by increased participation in educational opportunities. [34] 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. [35] 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. [36]

Prior to 1960

David Neumark and Wendy Stock found evidence that sex discrimination/equal pay laws boosted the relative earnings of black and white females and conversely reduced the relative employment of both black women and white women. [37]

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 foetus, rather than that of combat effectiveness. [38] [39]

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. [40]

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

Related Research Articles

<span class="mw-page-title-main">Civil Rights Act of 1964</span> Landmark U.S. civil rights and labor law

The Civil Rights Act of 1964 is a landmark civil rights and labor law in the United States that outlaws discrimination based on race, color, religion, sex, and national origin. It prohibits unequal application of voter registration requirements, racial segregation in schools and public accommodations, and employment discrimination. The act "remains one of the most significant legislative achievements in American history".

The Employment Non-Discrimination Act (ENDA) is legislation proposed in the United States Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or, depending on the version of the bill, gender identity, by employers with at least 15 employees.

Employment discrimination law in the United States derives from the common law, and is codified in numerous state, federal, and local laws. These laws prohibit discrimination based on certain characteristics or "protected categories". The United States Constitution also prohibits discrimination by federal and state governments against their public employees. Discrimination in the private sector is not directly constrained by the Constitution, but has become subject to a growing body of federal and state law, including the Title VII of the Civil Rights Act of 1964. Federal law prohibits discrimination in a number of areas, including recruiting, hiring, job evaluations, promotion policies, training, compensation and disciplinary action. State laws often extend protection to additional categories or employers.

United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.

<span class="mw-page-title-main">Race and Ethnicity Equality Directive 2000</span>

The Race Equality Directive 2000/43/EC is a legal act of the European Union, concerning European labour law. It implements the principle of equal treatment between persons irrespective of racial or ethnic group. Since the Treaty of Amsterdam came into force in 1999, new EC laws, or Directives, have been enacted in the area of anti-discrimination, and this directive complements other directives on gender and age, disability, religion and sexual orientation.

<span class="mw-page-title-main">Equality Act 2006</span> United Kingdom legislation

The Equality Act 2006 is an Act of the Parliament of the United Kingdom covering the United Kingdom. The 2006 Act is a precursor to the Equality Act 2010, which combines all of the equality enactments within Great Britain and provide comparable protections across all equality strands. Those explicitly mentioned by the Equality Act 2006 include age; disability; sex; proposed, commenced or completed gender reassignment; race; religion or belief and sexual orientation. The changes it made were:

<span class="mw-page-title-main">Employment Equality (Sexual Orientation) Regulations 2003</span> United Kingdom legislation

The Employment Equality Regulations 2003 were 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.

<span class="mw-page-title-main">Equality Act 2010</span> UK law

The Equality Act 2010, often erroneously called the Equalities Act 2010, is an act of Parliament of the United Kingdom passed during the Brown ministry with the primary purpose of consolidating, updating and supplementing the numerous prior Acts and Regulations, that formed the basis of anti-discrimination law in mostly England, Scotland and Wales; some sections also apply to Northern Ireland. These consisted, primarily, of 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.

<span class="mw-page-title-main">Equality Commission for Northern Ireland</span>

The Equality Commission for Northern Ireland is a non-departmental public body in Northern Ireland established under the Northern Ireland Act 1998. "The Commission is responsible for implementing the legislation on sex discrimination and equal pay, race relations, sexual orientation, age, religious or similar philosophical belief, political opinion and disability. The Commission’s remit also includes overseeing the statutory duties on public authorities to promote equality of opportunity and good relations under Section 75 of the Northern Ireland Act 1998."

<span class="mw-page-title-main">Human rights in Canada</span>

Human rights in Canada have come under increasing public attention and legal protection since World War II. Prior to that time, there were few legal protections for human rights. The protections which did exist focused on specific issues, rather than taking a general approach to human rights.

Equality and diversity is a term used in the United Kingdom to define and champion equality, diversity and human rights as defining values of society. It promotes equality of opportunity for all, giving every individual the chance to achieve their potential, free from prejudice and discrimination.

A protected group, protected class (US), or prohibited ground (Canada) is a category by which people qualified for special protection by a law, policy, or similar authority. In Canada and the United States, the term is frequently used in connection with employees and employment and housing. Where illegal discrimination on the basis of protected group status is concerned, a single act of discrimination may be based on more than one protected class. For example, discrimination based on antisemitism may relate to religion, ethnicity, national origin, or any combination of the three; discrimination against a pregnant woman might be based on sex, marital status, or both.

<span class="mw-page-title-main">LGBT rights in Michigan</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in the U.S. state of Michigan enjoy the same rights as non-LGBT people. Michigan in June 2024 was ranked “the most welcoming US state for LGBT individuals”. Same-sex sexual activity is legal in Michigan under the U.S. Supreme Court case Lawrence v. Texas, although the state legislature has not repealed its sodomy law. Same-sex marriage was legalised in accordance with 2015's Obergefell v. Hodges decision. Discrimination on the basis of both sexual orientation and gender identity is unlawful since July 2022, was re-affirmed by the Michigan Supreme Court - under and by a 1976 statewide law, that explicitly bans discrimination "on the basis of sex". The Michigan Civil Rights Commission have also ensured that members of the LGBT community are not discriminated against and are protected in the eyes of the law since 2018 and also legally upheld by the Michigan Supreme Court in 2022. In March 2023, a bill passed the Michigan Legislature by a majority vote - to formally codify both "sexual orientation and gender identity" anti-discrimination protections embedded within Michigan legislation. Michigan Governor Gretchen Whitmer signed the bill on March 16, 2023. In 2024, Michigan repealed “the last ban on commercial surrogacy within the US” - for individuals and couples and reformed the parentage laws, that acknowledges same sex couples and their families with children.

<span class="mw-page-title-main">LGBT rights in the Marshall Islands</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in the Marshall Islands may face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in the Marshall Islands since 2005, and discrimination on the basis of sexual orientation and gender identity has been outlawed in all areas since 2019. Despite this, households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples, as same-sex marriage and civil unions are not recognized.

<span class="mw-page-title-main">LGBT rights in Alaska</span>

Lesbian, gay, bisexual, and transgender (LGBT) rights in the U.S. state of Alaska have evolved significantly over the years. Since 1980, same-sex sexual conduct has been allowed, and same-sex couples can marry since October 2014. The state offers few legal protections against discrimination on the basis of sexual orientation and gender identity, leaving LGBT people vulnerable to discrimination in housing and public accommodations; however, the U.S. Supreme Court's ruling in Bostock v. Clayton County established that employment discrimination against LGBT people is illegal under federal law. In addition, four Alaskan cities, Anchorage, Juneau, Sitka and Ketchikan, representing about 46% of the state population, have passed discrimination protections for housing and public accommodations.

<span class="mw-page-title-main">LGBT employment discrimination in the United States</span>

LGBT employment discrimination in the United States is illegal under Title VII of the Civil Rights Act of 1964; employment discrimination on the basis of sexual orientation or gender identity is encompassed by the law's prohibition of employment discrimination on the basis of sex. Prior to the landmark cases Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020), employment protections for LGBT people were patchwork; several states and localities explicitly prohibit harassment and bias in employment decisions on the basis of sexual orientation and/or gender identity, although some only cover public employees. Prior to the Bostock decision, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII to cover LGBT employees; the EEOC determined that transgender employees were protected under Title VII in 2012, and extended the protection to encompass sexual orientation in 2015.

<span class="mw-page-title-main">Equality Act (United States)</span> Bill to prohibit sexual orientation and gender identity discrimination in the 117th Congress

The Equality Act was a bill in the United States Congress, that, if passed, would amend the Civil Rights Act of 1964 to prohibit discrimination on the basis of sex, sexual orientation and gender identity in employment, housing, public accommodations, education, federally funded programs, credit, and jury service. The Supreme Court's June 2020 ruling in Bostock v. Clayton County protects gay and transgender people in matters of employment, but not in other respects. The Bostock ruling also covered the Altitude Express and Harris Funeral Homes cases.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 590 U.S. ___ (2020), is a landmark United States Supreme Court case which ruled that Title VII of the Civil Rights Act of 1964 protects transgender people from employment discrimination.

References

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  2. ↑ Readler, Chad A. (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.
  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. Working Paper Series. 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". Wake Forest Law Review. Rochester, NY. SSRN   1015317.
  7. ↑ Huq, Aziz Z. (2017-09-06). "Judging Discriminatory Intent". Cornell Law Review. Rochester, NY. SSRN   3033169.
  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 .{{cite journal}}: Cite journal requires |journal= (help)
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  12. ↑ AG. "Racial Discrimination Act 1975". www.legislation.gov.au. Retrieved 2018-07-17.
  13. ↑ "Equal Opportunity Act 1977". www8.austlii.edu.au. Retrieved 2018-07-17.
  14. ↑ "ANTI-DISCRIMINATION ACT 1977". www8.austlii.edu.au. Retrieved 2018-07-17.
  15. ↑ admin (2012-12-14). "Complaints under the Sex Discrimination Act". www.humanrights.gov.au. Retrieved 2018-07-17.
  16. ↑ AG. "Disability Discrimination Act 1992". www.legislation.gov.au. Retrieved 2018-07-17.
  17. ↑ Belgian Constitutional Court 6th of October 2004, nr. 157/2004.
  18. ↑ Law to combat some forms of discrimination, 10 May 2007.
  19. ↑ Article 4, 4° Law of 10 May 2007.
  20. ↑ 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.
  21. ↑ De Vos, Marc (2020). "The European Court of Justice and the march towards substantive equality in European Union anti-discrimination law". International Journal of Discrimination and the Law. 20: 62–87. doi:10.1177/1358229120927947.
  22. 1 2 Stephen T. Hardy (2011). Labour Law in Great Britain. Kluwer Law International. p. 216. ISBN   978-90-411-3455-4.[ permanent dead link ]
  23. ↑ Alex Davies (June 2011). Workplace Law Handbook 2011: Employment Law and Human Resources. Workplace Law Group. p. 204. ISBN   978-1-905766-88-8.
  24. ↑ "Our Documents - Transcript of Civil Rights Act (1964)". www.ourdocuments.gov. Retrieved 2018-07-10.
  25. ↑ Yinger, John (1999). "Sustaining the Fair Housing Act". Cityscape. 4 (3): 93–106. JSTOR   20868477.
  26. ↑ Burgdorf, Robert L. Jr. (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.
  27. ↑ Kreis, Anthony Michael (2018-05-11). "A Fresh Look at Title VII: Sexual Orientation Discrimination as Sex Discrimination". Rochester, NY. SSRN   3177112.{{cite journal}}: Cite journal requires |journal= (help)
  28. ↑ Wiessner, Daniel. "U.S. appeals court says Title VII covers discrimination based on..." U.S. Retrieved 2018-07-15.
  29. ↑ Bostock v. Clayton County. (n.d.). Oyez. https://www.oyez.org/cases/2019/17-1618
  30. ↑ 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). Archived from the original (PDF) on 2018-12-07. Retrieved 2018-07-31.
  31. ↑ 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.
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  36. ↑ 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.
  37. ↑ 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.
  38. ↑ 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
  39. ↑ MOD factsheet: Women in the armed forces Archived 2011-06-07 at the Wayback Machine . Retrieved 30-03-2008
  40. ↑ BBC: Women bishops vote: Church of England 'resembles sect', 22 November 2012
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