The anti-discrimination law in the decisions of the Courts

The Americans with Disabilities Act of 1990 (ADA) was the first federal disability-based anti-discrimination law that applied to a broad range of workers. Whereas some studies have focused on its impact on workplace accommodation, this is the first to do so while accounting for previous state anti-discrimination and Workers' Compensation laws. Using data from the Health and Retirement Study, the authors find that prior to the implementation of the ADA, employers were more likely to accommodate workers if their disability onset was work-related and hence likely to be covered by Workers' Compensation laws. State anti-discrimination laws significantly increased accommodations to workers whose disabilities were not work-related, effectively bringing their accommodation rates in line with workers whose disabilities were. Though implementation of the ADA increased accommodation for all workers, the authors point out that failure to account for pre-existing state anti-discrimination and Workers' Compensation laws will underestimate its effect.

The Supreme Court's decision last term in Boy Scouts of America v. Dale holding that the Boy Scouts had a First Amendment expressive association right to exclude a gay adult scoutmaster is one of the most significant, and positive, recent developments in civil liberties jurisprudence. When conflicts between antidiscrimination laws and First Amendment rights first arose in the 1970s, courts simply refused to acknowledge that antidiscrimination laws sometimes trespassed on constitutional rights. The Supreme Court finally acknowledged in the 1980s that antidiscrimination laws could potentially impinge on First Amendment rights. Instead of enforcing those rights, however, the Court either denied that the First Amendment was implicated in any particular case, or applied a toothless test that in effect exempted antidiscrimination laws from the strictures of the First Amendment. Lower courts seized and expanded upon these decisions to the point where antidiscrimination laws gradually became a significant menace to freedom of speech, freedom of expressive association, and religious freedom. For example, courts held that an injunction creating a prior restraint on speech was appropriate in a hostile environment case; that a Black separatist organization could be compelled to admit whites to its meetings; and that the government could force a Catholic university to fund student organizations that engaged in political and social advocacy contrary to Catholic doctrine. Dale has significantly reduced the threat antidiscrimination laws once posed to constitutionally-protected civil liberties. Although Dale was a 5-4 decision, with the conservative Justices in the majority, all nine Justices seemed to agree that the First Amendment must be enforced even when the implementation of antidiscrimination laws is at stake. Despite lip service paid to precedents applying the compelling interest test to overcome First Amendment restrictions on antidiscrimination laws, neither side discussed whether the government has a compelling interest in eradicating discrimination against homosexuals. Dale suggests the Court has reached a consensus that defendants charged with violating antidiscrimination laws are generally entitled to the same full First Amendment protection as defendants charged with violating other important laws. Antidiscrimination laws, then, have been constitutionally normalized.

Stigma is conceptualized as a fundamental cause of population health inequalities. Antidiscrimination law is one important lever that can influence stigma-based health inequities, and yet several challenges currently limit the law's potential to address them. To determine whether antidiscrimination law adequately addresses stigma, we compared antidiscrimination law for its applicability to the domains and statuses where stigma is experienced according to the social science literature. To further examine whether law is a sufficient remedy for stigma, we reviewed law literature and government sources for the adequacy of antidiscrimination law enforcement. We also reviewed the law literature for critiques of antidiscrimination law, which revealed conceptual limits of antidiscrimination law that we applied to the context of stigma. In this article, we explored the importance of antidiscrimination law in addressing the population-level health consequences of stigma and found two key challenges-conceptualization and enforcement-that currently limit its potential. We identified several practical solutions to make antidiscrimination law a more available tool to tackle the health inequities caused by stigma, including (1) the development of a new surveillance system for antidiscrimination laws and their enforcement, (2) an interdisciplinary working group to study the impact of antidiscrimination laws on health, and (3) a central agency tasked with monitoring enforcement of antidiscrimination laws. Antidiscrimination law requires better tailoring based on the evidence of who is affected by stigma, as well as where and how stigma occurs, or it will be a poor tool for remedying stigma, regardless of its level of enforcement. Further interdisciplinary research is needed to identify the ways in which law can be crafted into a better tool for redressing the health harms of stigma and to delimit clearer boundaries for when law is and is not the appropriate remedy for these stigma-induced inequities.

The prohibition of discrimination in employment relationships is core to the fundamental principle of human dignity that underlies the law of the most developed Countries. Nonetheless, under a comparative approach, anti-discrimination law assumes different roles and functions according to the historical development of each legal system. In the United States the implementation of anti-discrimination provisions has been one of the main instruments for US legislative institutions to promote the emancipation of the most disadvantaged groups of workers. On the other hand, United States courts have narrowly interpreted anti-discrimination statutory laws emphasizing the necessity of protecting employers’ prerogatives under the common law doctrine of “at will employment”. Within the European and Italian experiences, political concerns for the emancipation of the working class have informed the evolution of labor law since the nineteenth century. Case law and statutes provide for general limits to the powers of employers, in order to counterbalance the economic submission of workers to the supremacy of companies. This chapter focuses on discriminatory dismissals and is founded on the idea that the relationship between anti-discrimination law and the power of employers to dismiss acquires different roles and functions according to the peculiar features of the different legal systems, and in relation to their historical development. On the basis of these arguments a narrow interpretation of the most recent provisions of Italian legislations on discriminatory dismissals is to be preferred under a comparative approach.

Objective: Weight-related discrimination is prevalent and associated with health impairments for those who are targeted, which underscores the need of antidiscrimination legislation. This study is the first to examine public support of weight-related antidiscrimination laws or policies in Germany, compared to the US and Iceland. Methods: In a representative German population sample (N = 2,513), public support for general and employment-specific weight-related antidiscrimination policies, weight-based victimization, and weight bias internalization were measured through established self-report questionnaires. Results: Half of the German population sample agreed with antidiscrimination policies. General antidiscrimination laws received lower support than employment-specific laws. Support for policies considering obesity a physical disability was greatest in Germany, whereas support for employment-specific antidiscrimination laws was lower in Germany than in the US and Iceland. Total support for weight-related antidiscrimination policies was significantly predicted by lower age, female gender, obese weight status, residence in West Germany, church membership, and readiness to vote in elections. Conclusion: German support for weight-related antidiscrimination policies is moderate. Increasing awareness about weight-related discrimination and laws prohibiting this behavior may help to promote policy acceptance.

Discriminatory state laws have deleterious effects on the health of socially marginalized groups. Health care clinicians, institutions, researchers, and research funders have tended to view different discriminatory laws in isolation, focusing on particular issues or groups. In contrast, intersectionality calls attention to the overlapping and synergistic systems of oppression that discriminatory legislation promotes or upholds, warranting an integrated analysis of these laws. In this analytic essay, we assess discriminatory state laws simultaneously and discuss their implications for health care clinicians, institutions, and researchers. We present a multifunctional model of law and population health that describes how discriminatory law affects health outcomes among marginalized groups. We then draw on publicly available legislation trackers to identify 30 states that have enacted legislation since 2020 that targets Black people and other people of color; lesbian, gay, bisexual, and queer people; transgender and nonbinary people; and women and other birthing people. Finally, we call for a coordinated, multilateral, and forceful effort by health care professionals, institutions, researchers, and research funders to counter these laws and address their predictable health consequences. (Am J Public Health. 2024;114(12):1335-1343. https://doi.org/10.2105/AJPH.2024.307830).

This article considers the current age and gender discriminatory migration laws in Nepal in their historical and socio-cultural context. Drawing on eight months of field- work and data collected from both migrants and migration policymakers I ask, What are the consequences of discriminatory laws on young Nepali women’s migration experiences? And why do gender and age discriminatory laws and policies persist in light of evidence that they may actually endanger migrants? I posit that historically dominant Hindu gender norms provide the basis for the paternalistic migration laws currently in place. I argue that age and gender discriminatory migration policies are rooted in patriarchal concern for women’s ijaat (social honour) and sexual purity. The result of discriminatory law is not a reduction in migration but an increase in irregular and illegal migration that exacerbates women labour migrants’ vulnerability to a variety of abuses. I conclude that examining discriminatory migration laws with an intersectional lens raises interesting possibilities for theorizing how and why these ineffectual laws persist.

While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds. The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this. My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.

It will be disproportionate if such a difference of treatment is not justified through the analysis by the principle of proportionality. It is important to determine if there is unequal treatment of individuals whose situations are similar. The Constitutional Court of Korea applied the prohibition of arbitrariness as a main standard to decide the violation of the principle of equality before 1999. Important issue in applying the principle of proportionality in the case laws of the Constitutional Court of Korea is whether the principle will be applied in the same way both to rights of freedom and rights to equality. A general and comprehensive anti-discrimination law will help to protect sexual minorities in Korea by prohibiting discrimination based on sexual orientation.Discrimination is not only the suffering of victims but also suffering of society as “the community at large suffers too since valuable resources go untapped and potential gifts remain unrealized” (Ellis and Watson, EU Anti-Discrimination Law, 2014, p. 1.). In that sense, the principle of non-discrimination in laws is very important for the victims of discrimination as well as for the community as a whole, because law “can prove highly instrumental in shaping behavior and expectations” (Ibid. p. 1.) even if it cannot do everything against discrimination. In this chapter, first, the principle of non-discrimination in the European system of human rights as a general standard of adjudication is discussed. Second, there will be a discussion of how the standards of equality test is adapted by the Constitutional Court of Korea with a specific example of its case law. I will discuss the principle of non-discrimination in the EU and Korea first because these two are the main topics to discuss in this work. Additionally, I will discuss the principle of non-discrimination in two other jurisdictions of the USA and the Germany because the principle in the two jurisdictions is discussed to have affected the case laws of the Constitutional Court of Korea. Lastly, Anti-Discrimination law will be discussed. EU Anti-Discrimination Law will be introduced because EU is the main research topic of this work. German Equality Law and British Equality Law will be additionally introduced because those two laws are particularly considered important (Ministry of Justice Korea has published research book related to Anti-Discrimination laws in other jurisdictions. German Equality Law and British Equality Law have been very importantly researched to give implications to the future legislations of Anti-discrimination law in Korea (Ministry of Justice of Korea, Anti-Discrimination Law in other countries, 2008). Part 1 focuses on German Equality Law, EU Directives, and Human Rights Law of Canada. Part 2 focuses on Anti-discrimination law in the US, France, and Part 3 focuses on British Equality Law.) laws to give implications to Korea where there is currently no comprehensive anti-discrimination legislation.KeywordsPrinciple of non-discriminationAnti-discrimination lawStandards of equality testProhibition of arbitrarinessPrinciple of proportionalityPrinciple of equality

A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination. Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice. The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or redrafting of anti-discrimination statutes that would yield broader liability. Advocacy (both practical and theoretical) in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims. This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law. Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement. From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract. The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions. This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty. This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles.

Even when criminal defendants are acquitted of crimes or their cases are dismissed, many in the public still presume that these people are guilty. Unfortunately, with an open and public record system such as Iowa’s, there are risks involved for these unconvicted criminal defendants even when they are not found guilty of a crime. Iowa’s right of public access to its online docket allows anyone to search a name, and within a few clicks the searcher has all the dispositional information of any case in which the named subject was ever a part. Additionally, since Iowa has no anti-discrimination statutes regulating the use of criminal-history data as a basis for denial of various applications, Iowa’s decision-makers (employers, school administrators, landlords, and the like) can consider any of this information when evaluating an applicant. As a result, Iowa courts’ openness and the state’s lack of anti-discrimination statutes can have harsh consequences for criminal defendants who have not been convicted of crimes. This Note describes those potential consequences, offers and reviews possible remedies, and then suggests that Iowa adopt new policies that redact identifying information from the docket and from other court documents as well. It also suggests the state legislature should pass anti-discrimination and regulatory statutes to further protect this class of citizens.

When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that the Act would protect the rights of all persons, whatever their gender, age, disability, income, background or religion. Purporting to follow the International Covenant of Civil and Political Rights, the Charter proclaimed the right of every person to of thought, conscience, religion and belief, including the to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. Despite the assurances of the Victorian Charter, however, many people of religious faith in Australia feel that their freedom to practice their religion is under threat – no less in Victoria than elsewhere in the country. Moreover, the principal concern articulated by religious believers is a sense that it is the state and its agencies, not other religious believers, that poses the greatest threat to freedom of religion. If it is one of the purposes of the liberal democratic state to ensure the peaceful coordination and flourishing of different groups, this is not a very promising state of affairs.In this chapter, written for a forthcoming collection on the impact of the Victorian Charter of Human Rights, we interrogate the state of religious freedom in Victoria, focusing on the threats that it faces, both manifested and perceived. The chapter begins by sketching the various religious freedom protections that exist in Australian law and note legislation, especially in Victoria, that has raised religious liberty concerns – anti-discrimination, anti-vilification and abortion law in particular. The chapter then surveys the case-law under the Charter. Here we find that the Charter has played virtually no substantive role in protecting freedom of religion. Instead, anti-discrimination law has been increasingly prioritised. Lastly, we offer an account of three recent reviews of Victorian law as they relate to religion. We find that a contest has occurred, primarily between religious believers and organisations on one hand, and anti-discrimination agencies and human rights advocates on the other, over the exact boundaries to be laid down in state law between religious freedom and other state interests. We argue that an underlying pattern is discernible, whereby a certain image of liberal citizenship is progressively imposed upon persons, groups and organisations whose religious convictions, practices or identities are deemed to be recalcitrantly non-liberal. We conclude that, as a result, religious freedom has become a second-class right in Victoria. Managing serious and growing pluralism, we argue, requires deeper attention to fundamental principles of religious liberty.

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This chapter examines how Parliament's use of language affects individual rights. Focusing on cases pertaining to the Race Relations Act 1976 (Amendment) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003, it investigates how the provision of rights is affected by indeterminate legislation and how indeterminacies in anti-discrimination and equality laws have undermined the effectiveness of policy. The chapter first explains the theory and research design, the distinction between anti-discrimination law and equality law, and changes in the language of both laws. It then discusses the results of discourse analyses, conducted for all 870 sections of primary legislation pertaining to anti-discrimination and equality enacted since 1900. Legislative language was found to have a significant effect on both the desirability and feasibility of indeterminate legislation.

Racial discrimination and violence against minority communities is prohibited by law, and the protection of minority groups is guaranteed by the Constitution, national laws, as well as international laws or conventions ratified by Indonesia, such as the ICCPR and ICERD. However, cases of violence involving ethnic Papuans are often ignored by the state, even though this is a violation of human rights. This research will use a normative juridical approach by presenting and analyzing the validity of statutory provisions. The socio-legal study in this research will be carried out by analyzing social studies, multidisciplinary social science theories related to the phenomenon of racial discrimination against ethnic Papuans, such as psychology in looking at prejudice and discrimination; Communication Studies; Social Integration and Disintegration Theory; and Social Conflict Theory. The aim of this research is to examine law enforcement using a social science paradigm. This research will review the quality of law enforcement, the extent to which these rules are enforced, and the extent to which law enforcement and the government can fulfill citizens' rights not to be discriminated against. This research shows that discrimination against the Papuan people is caused by racial discrimination in various aspects, including economics, politics, education and law enforcement. The application of anti- discrimination laws must be based on the professionalism of law enforcement officials so as not to give rise to new discrimination in law enforcement. This research recommends that the Indonesian Government increase political will in enforcing anti-discrimination and violence laws in all cases, especially against the Papuan ethnic group. Maximum anti-discrimination law enforcement efforts are needed to realize human rights goals, namely the provision, enforcement and protection of human rights.