Anti-discrimination Rules Research Articles

When culture and the law clash: A primer on the extraterritorial implications of U.S. anti-discrimination rules and regulations

Abstract The rapid globalization of U.S. business has generated many questions about the extraterritorial implications of U.S. anti-discrimination rules and regulations. This paper provides an introduction to the relevant statutes and related case law that govern the extraterritorial responsibilities of U.S. companies with interests in foreign firms. Particular attention is paid to the extraterritorial requirements of the Civil Rights Act of 1964, including important amendments to the Act added when Congress passed the Civil Rights Act of 1991. This paper also describes the defenses U.S. firms can use to insulate themselves from the extraterritorial requirements of these rules and regulations as well as issues and problems created when the cultural norms and customs of foreign countries clash with U.S. law. Suggestions are then made about how U.S. firms can meaningfully comply with the extraterritorial requirements of U.S. anti-discrimination rules and regulations. Finally, the paper examines legal and organizational issues that require further clarification and interpretation.

Discrimination and beyond in European Economic and Social Law

In practice and comments on EU internal market law, the Court and commentators often refer to the notion of ‘market access’ as if it is the keystone of the EU integration process and as if this would go beyond anti-discrimination rules. However, one cannot go beyond ‘non-discrimination without entering the sphere of ‘positive action. Yet, there is no legal, political or economic basis for positive action in the internal market context. A comparison with social law, where discrimination is a more developed concept, shows that the arguments for positive action are inappropriate to the economic context and that what are sometimes described as non-discriminatory rules constituting a restriction to free movement in fact usually constitute indirect discrimination. As for market access, economic theory tells us that the only rules that inhibit market access are those that have a discriminatory component. Thus anti-discrimination continues to be the essence of market-making and of market access and talk of ‘going beyond’ it is mere confusion. The goal and the logic of internal market law is substantive equality for all market actors – similarly to social law, from which it can learn much about the relevant concepts.

Property Entitlements and Legal Personhood: A Conception of the Property Entitlement Based on a Unified View of Anti-Interference and Anti-Discrimination Rules with Respect Both to Interests Related to Existing Assets and Interests Predicated on Transactions

Since Hohfeld at least, the property entitlement has been conceived paradigmatically as a unitary entitlement form that excludes non-consensual interference with a holder's entitlement by some class of other persons but which permits the entitlement holder to transfer the entitlement to other persons, and other persons to seek its transfer, pursuant to any consensual transaction. Thus, the background presumption, of most legal theorists or of the Supreme Court, has been that any entitlement conceived as a property entitlement is presumptively subject to consensual bargaining in the same manner as any other, be it a parcel of land or a Constitutional right. This article refers to an interest of a holder that is protected by one or more legal duties of a class of other persons to the holder not to engage in non-consensual interference with the interest as a standard or property entitlement of such person and as an entitlement protected by one or more rules. A person's market property entitlements might be thought of as comprising the legally inviolable content of such person with respect to non-consensual acts by other persons.But the law, in defining the legal content of persons, also assigns certain of a person's interests a higher degree of legal inviolability by protecting them with rules in addition to anti-interference rules in specified or, in rare instances, all transactional settings. This article refers to a person's interest that is protected by an anti-discrimination rule with respect to a specified range of transactions and a specified class of prospective transaction counterparties as a property entitlement. Structuring a holder's interest as a strong property entitlement imparts to each member of such class of prospective counterparties a duty to the holder not to determine not to enter into any such transaction with the holder on the basis of the holder's uninterrupted possession of the interest or, for those interests that are predicated on the transaction itself, on the basis of the holder's securing the interest as an entitlement in connection with the transaction. It is important to recognize that for an interest that is predicated on a transaction that such interest must be protected by an anti-discrimination rule, and thus structured as a strong property entitlement, in order to be a property entitlement, or a right, at all. A person's strong property entitlements may be thought of as constituting the legally intrinsic content of a person from the perspective of prospective transaction counterparties in applicable transactional settings and might be thought of as comprising the inviolable legal content of a person with respect to consensual activity by other persons.Failure consistently to recognize the distinction between market property entitlements and strong property entitlements on the one hand and the distinction between interests related to existing assets and interests predicated on transactions on the other has resulted in instances of imprecise judicial reasoning and legal scholarship. It is hoped that a revised organization of property entitlements that recognizes these two distinctions will contribute to more accurate interpretation of existing statutory and constitutional entitlements as well as to improved design of new legal entitlements.

Workplace Equality in International Organizations: A Way Forward

International organisations are entitled to independent governance of their staff. Whereas scholars and international lawyers may agree that international organisations should be afforded a functional immunity from national courts in employment disputes, there are enduring debates as to whether this functional necessity trumps the constitutional rights of staff, under international law, to gain access to equality guarantees in the employment relationship. In this paper, I investigate the concepts of equality, as understood, used, and valued within international organisations, examine the checks and balances in their internal governance structure, and point to the relevant differences between the formal and substantive laws. By considering the practices of the United Nations (UN), the World Bank, and the Consultative Group on International Agricultural Research (CGIAR), I report that the internal governing structure has more rules and procedures to govern employees and few, if any, rules to control the discretionary power of executives. While the overall governing structure may give the semblance of a balanced justice system in international organisations, the procedural guarantees of ‘due process’, the accountability standards, and the enforcement rules are not in place to safeguard the equality rights of staff. Based on these facts, I argue that until there is a major commitment to establish a rules-based approach to the governing structure, enforcement procedures to safeguard individual rights, and the inclusion of an established line of authority to the executive branch of international organisations, anti-discrimination rules will continue to be applied disproportionately among staff members and discriminatory practices will remain very difficult to legally prove or challenge.

Remedies for Discrimination: a Comparison of the Draft Common Frame of Reference and the Acquis Principles

Anti-discrimination law forming part of the acquis communautaire by now affects the core of European contract law. two Ec directives (Directives 2000/43/Ec and 2004/113/Ec) go beyond the boundaries of labour law and govern either exclusively (in the case of Directive 2004/113/Ec) or together with other contracts (in the case of Directive 2000/43/Ec) contracts that provide access to publicly-available goods or services, including housing.1 the Acquis Group2 has decided to include the antidiscrimination rules in its Acquis Principles, which are a restatement of European contract law.3 the rules of the Acquis-Group on combating discrimination have been taken over (with some modifications) into the text of the Draft Common Frame of Reference.4 the differences between the two texts are largely of a technical nature. the main difference seems to be in relation to remedies. the Acquis Principles contain in Article 3:201 (2) an open general formula,5 granting the discriminated person the right “to other remedies 6 which are suitable to undo the consequences of the

Beyond Bias and Barriers

![Figure][1] Earlier this year, the U.S. National Academies published the gathering storm, [*][2] a compelling statement describing the dependence of future national prosperity on increasing the numbers of scientists, engineers, and mathematicians. Now, a new Academies' study, Beyond Bias and Barriers , [†][3] argues that in spite of that need, our universities are wasting the skills and talents of many individuals by discouraging and inhibiting women from fulfilling their potential in academic science and engineering. The new report avoids the uncritical hype and extreme positions that have accompanied recent public discussion of these issues. Instead, it is an exhaustive and critical review of relevant published research and analyses, as might be expected given the distinguished authoring panel of scientists and engineers. In spite of this, media response to the report has already included uninformed repetition of stereotypical views about women's talents. These data clearly demonstrate the flaws in several frequently offered explanations for why so few women hold science and engineering professorships. For example, the “pipeline” can no longer be blamed for the dearth of women. Societal assumptions and their cultural consequences can account for most of the actually minor cognitive differences measured between the sexes. Boys and girls now come to college equally well prepared for coursework in science and mathematics. Even controlling for mathematics test scores among gifted youth, less than half as many women as men pursue scientific careers. Starting at the high school-to-college transition, a greater percent of women than men opt out of science and engineering at almost every step of the academic ladder. The one exception: Women who make it far enough through the minefields to be considered for tenure are as likely as men to succeed. ![Figure][1] CREDIT: JUPITER IMAGES The report concludes that the current situation stems largely from unintentional bias harbored by both men and women and outmoded institutional structures. In one telling study, the same curricula vitae received lower evaluations when attached to a woman's name than to a man's. Gender stereotypes also produce anxiety that can decrease performance. Even seemingly minor, inadvertent exclusions from the encouragement that is routine for boys and men can eventually add up to serious discouragement from pursuing academic careers. Most university policies reflect outmoded male expectations for a scientific career and lifestyle, including a wife at home. However, today many married male faculty have working wives. Many young men are unhappy with 80-hour work weeks, but they are a real hardship for women, especially because the early years of their careers coincide with childbearing years. Women should, if they wish, be able to have and raise children without suffering a reevaluation of their commitment and ability to do research. University policies and faculty attitudes must change to recognize these realities if they are to attract the gifted women postdocs who will otherwise opt out of academia. Even the financial sector is considering “reshaping the very architecture of Wall Street work in order to keep women involved” because 80-hour work weeks are a problem and diversity is important to success. [†][4] Beyond Bias and Barriers makes specific recommendations for action by universities, professional societies, funding agents, and federal enforcement agents. Recognizing that federal law requires an equal playing field for science as well as sports, it recommends the formation of an interuniversity oversight body analogous to that of the National Collegiate Athletic Association to gather data and monitor progress toward compliance with federal antidiscrimination rules. National needs, equity, and common sense speak with one voice. Schools and universities must find ways to encourage and ease the path for women who are inspired by the great scientific adventure. As Donna Shalala, chair of the authoring panel, says in her preface, “It is time—our time—for a peaceful, thoughtful revolution.” [1]: pending:yes [2]: #fn-1 [3]: #fn-2 [4]: #fn-3

Anti-discrimination rules versus income taxation in the pursuit of horizontal equity

We consider a model of prejudice-driven discrimination, where the advantaged ‘tall’ discriminate against the disadvantaged ‘short’. We employ an egalitarian social welfare function to compare anti-discrimination legal rules with a non-discriminatory (‘height-blind’) income tax.

On Vertically Challenged and Horizontal Equity - Reassessing Anti-Discrimination Rules

We consider a model of prejudice-driven discrimination, where the advantaged 'tall' discriminate against the disadvantaged 'short'. We employ an egalitarian social welfare function to compare anti-discrimination legal rules with a non-discriminatory ('height-blind') income tax.

Trade and... Problems, Cost-Benefit Analysis and Subsidiarity

This article analyses the conflict between trade values and other values ('trade and ... problems'), such as environmental protection, labour rights or free competition, as It Is addressed by the principal legal devices available to address such conflicts ('trade-off devices') In the dispute resolution context In the European Union, the GATT/World Trade Organization system and In the United States federal system. These trade-off devices Include anti-discrimination rules, simple means-ends rationality tests, least trade restrictive alternative tests, proportionality tests, balancing tests and cost-benefit analysis. A separate cost-benefit analysis methodology Is developed to choose among these devices In particular circumstances. From the simple standpoint of maximization of the sum of benefits of trade and of regulation, cost-benefit analysis would, tautologically, be selected. However, full cost-benefit analysis is nowhere In use as a trade-off device. This paper begins to explain this apparent paradox by suggesting reasons, including administrative, distributive, moral and theoretical concerns, why this approach Is not applied. It then explores these reasons In order to evaluate retreats from full cost-benefit analysis to the trade-off devices actually in use. Finally, the author seeks to comprehend these trade-off devices as determinants of the allocation of regulatory jurisdiction between central and component governments: of

Trade and...Problems, Cost-Benefit Analysis and Subsidiarity

This article seeks to comprehend the conflict between trade values and other values (trade and...problems), such as environmental protection, labor rights or free competition, through comparative institutional analysis using cost-benefit analysis: comparative institutional cost-benefit analysis. The goal of this article is to illuminate the institutional choices embedded in this sometimes heated conflict. This article utilizes this comparative institutional cost-benefit analysis methodology to analyze the principal legal devices available to address conflicts between trade values and other values (tradeoff devices) in the dispute resolution context in the European Union, the GATT/World Trade Organization system and in the United States federal system. These tradeoff devices include anti-discrimination rules, simple means-ends rationality tests, least trade-restrictive alternative tests, proportionality tests, balancing tests and (substantive) cost-benefit analysis. In a zero-transaction cost world, comparative substantive cost-benefit analysis would be the first-best tradeoff device: comparative institutional cost-benefit analysis would select comparative substantive cost-benefit analysis. However, comparative cost-benefit analysis is nowhere in use as a tradeoff device. This paper begins to explain this apparent paradox by suggesting reasons, including theoretical, administrative, distributive and ethical concerns, why this first-best approach is not used in the real world. These reasons are explored in order to evaluate retreats from comparative cost-benefit analysis to the tradeoff devices actually in use. Finally, this article shows that these tradeoff devices implicitly serve as determinants of the allocation of regulatory jurisdiction between the central and component governments: of subsidiarity.

Suspect Linkage: The Interplay of State Taxing and Spending Measures in the Application of Constitutional Antidiscrimination Rules

strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds.' And true government spending measures, if considered alone, plainly fall outside the reach of constitutional restraints against discriminatory taxation. On the other hand, when taxing and spending measures are viewed together, they raise profound problems. In particular, the two measures often operate to produce precisely the result that the constitutional prohibitions against discriminatory taxation seek to

The Effects of Discrimination Test Standards on Defined- Contribution Plan Design

To ensure that highly paid employees aren't receiving favored treatment under defined-contribution plans, the federal government requires complex testing that seems to defeat the purpose of the antidiscrimination rules such testing is meant to enforce.