Anti-discrimination Norms Research Articles

Access to justice as an element of the rule of law in the modern democratic state

The article examines access to justice as an element of the rule of law in a modern democratic state. The issue of securing access to justice in the legislative practice of countries is detailed. Practice is analyzed, where access to justice is considered as an opportunity for any interested person to go to court without hindrance and participate in the legal process at all its stages. At the same time, it is emphasized that such access implies access to national and international justice systems. This significantly contributes to a person’s ability to defend himself against encroachments on his rights, compensation for damage caused by offenses and self-defense in criminal proceedings. It is proven that access to justice is increasingly included in the international and national practice of states and begins to occupy an important place in the organization and functioning of the judiciary. It is noted that today the concept of access to justice does not have a unified approach to its understanding in the circles of the scientific community. The development of this issue continues for a considerable period of time. Long-standing discussions give reasons to testify that access to justice is an extremely broad concept that can be distinguished as a separate concept, principle or right. It is emphasized that in this context it is extremely important to emphasize the mechanisms of human rights protection, that is, its application to those categories of the population that do not have the opportunity and resources to go to court. In view of this, it is extremely important to apply the principle of equality before the court in practice. This will make it possible to ensure equal access to the trial for all participants in the process. The international experience of access to justice and its generalization in legal practice is analyzed. It is noted that international law has singled out an important component of access to justice, which is the right to access international mechanisms for ensuring the protection of human rights. It is emphasized that the justice system can use the norms of international law, including anti-discrimination norms. The key in this process is ensuring access to justice, which is an important basis for the conclusion of international treaties and the effective functioning of international human rights organizations.

The normative permissiveness of political partyism

Political party identity has become one of the strongest social divides within many Western societies. This paper employs experiments to measure discrimination along different dimensions of social identity, and replicates previous findings showing the strongest discrimination against out-groups occurs in the political party domain. Moreover, we explore a possible explanation for this phenomenon based on social norms. We measure the social appropriateness of discrimination along each identity dimension. The ranking of dimensions by discrimination against out-groups reflects the extent to which such behaviour is normatively permissible, with the weakest anti-discrimination norms on the political party dimension. Results are qualitatively similar in two European countries. We argue that, while strong norms sanctioning discrimination on other dimensions have developed historically, no such process has taken place concerning party affiliation, bringing partisan identity to the fore and helping polarisation flourish.

Legal regulatory anti-discrimination in job advertising: national and foreign experience

Despite the fact that in national legislation there is a direct, general ban on the use in advertising of statements and/or images that are discriminatory, as well as directly making claims of a discriminatory nature on the basis of race, skin color, gender, age, state of health, sexual orientation, etc. in advertisements about available vacancies, the latter (discriminatory job advertisements) will continue to be an "integral attribute" of the employment process. It is worth noting that discrimination against employees/candidates in job advertisements is widespread not only in Ukraine. Every country to a certain degree or another faces this type of discrimination, and as a result, the requirements are set at the legislative level for job advertisements, namely: their content, place of publication; cases are prescribed in detail, when advantages are still allowed for one or another reason; liability of employers for violations of legislation.
 The article provides a concise retrospective analysis of national legislative requirements regarding the prohibition of discrimination in the advertising of employment services; the provisions of the regulatory acts establishing the procedure for prosecuting advertisers for violations of anti-discrimination norms were analyzed. It was concluded that, in general, the changes made to the current legislation in the field of advertisers' responsibility deserve a positive assessment, but the question of the effectiveness of fines in the real fight against discrimination in practice remains open.
 A study of the existing legal requirements for job advertisements and liability for their violation in such countries as the USA, Australia, France, Germany, Great Britain was carried out. The comparative legal analysis of national and foreign legislation made it possible to conclude that: 1) the list of signs for which discrimination in job advertisements is prohibited is almost similar; 2) foreign legislation, generally, defines in sufficient detail the possibility of deviating from anti-discrimination requirements, in contrast to national legislation; 3) in foreign practice, there are also requirements regarding the place of publication, placement of advertisements, failure to comply with which may indicate hidden or indirect discrimination, but in Ukraine, as of today, there are no such requirements; 4) responsibility, as in Ukraine, in most cases comes in the form of fines, although warnings are also possible.

Can Normative Accounts of Discrimination Be Guided by Anti-discrimination Law? Should They?

In her recent book, Faces of Inequality (2020), Moreau aims at developing a normative account of discrimination that is guided by the main features of anti-discrimination law. The critical comment argues against this methodology, indicating that due to indeterminacy relative to their underlying normative principles, central anti-discrimination norms cannot fulfill this guiding role. Further, using the content of such norms to guide ethical discussions is likely to be misleading, as it reflects evidentiary considerations that are unique to the legal context. The critical comment’s claims are developed based on a close examination of indirect discrimination (or disparate impact) norms, and, as such, have wider implications for ongoing moral and political debates that are heavily influenced by the content of these norms.

The Polysemy Of Anti-Discrimination Law: The Interpretation Architecture Of The Framework Employment Directive At The Court Of Justice

This article proposes a new explanatory framework to understand the transversal developments that have emerged from the recent case law of the Court of Justice of the EU on the Framework Employment Directive. It argues that the Court operates a functional differentiation in the implementation of anti-discrimination norms, which gives rise to a complex interpretation architecture. Following the constitutionalization of EU equality law, the Court reads three main functions into the Framework Employment Directive: socialization, integrity, and calibration. This differentiation gives rise to competing interpretive paradigms and analytical templates that affect the level and shape of equality protection under the Directive. Directive 2000/78/EC, Charter of Fundamental Rights, Equality, Discrimination, non-discrimination, Functional differentiation, Socialization, Integrity, Calibration, Competing interpretive paradigms, Framework Employment Directive

PATTERNED INEQUALITY, COMPOUNDING INJUSTICE, AND ALGORITHMIC PREDICTION

If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made.

The road to equality? EU diffusion of anti-discrimination norms in Armenia

ABSTRACT The EU’s diffusion of its norms lie at the core of its neighbourhood policy. However, while scholars have uncovered selective patterns of EU norm adoption and application, still little is known about what shapes the resonance of EU norms in the partner countries. This question matters for the EU’s proclaimed objective of transforming its neighbours, in a region fraught with a competition of soft influences between the EU and Russia. In order to cast light on local resonance of external norms, the article delves into identification processes within the partner countries in relation to the values promoted by the EU and Russia. Focusing on an idiographic case study, it examines how the EU’s diffusion of anti-discrimination has hit home in Armenia, in a context marked by Russia’s staunch defense of “traditional values”. The research relies on semi-structured interviews and elites’ discourses, which are analysed using frame analysis. It highlights a shift from discursive rejection of the EU’s normative script to tentative discursive acceptance – at least at elite level – after the Velvet revolution. The article shows how the diffusion of external values feeds into domestic dynamics and illuminates the role of domestic elites in filtering external influences.

Who’s Afraid of Bob Jones?: “Fundamental National Public Policy” and Critical Race Theory in a Delicate Democracy

In Summer of 2021, Republican legislators across the United States introduced a host of bills to prohibit government funding for schools or agencies that teach critical race theory (“CRT”), described by the American Association of Law Schools not as a single doctrine but a set of “frameworks” to “explain and illustrate how structural racism produces racial inequity within our social, economic, political, legal, and educational systems[,] even absent individual racist intent.” Characterizing such an explicitly race-conscious analysis of legal and social institutions as “divisive,” opponents of CRT, such as former Vice President Mike Pence, labeled it “nothing short of state-sponsored and state-sanctioned racism.” The political campaign to “Stop CRT,” as articulated by strategist Christopher Rufo, seeks to redirect the time-honored civil-rights strategy of defunding racially discriminatory social institutions for use against race-conscious efforts to remedy the ongoing disparate racial, economic, and other social effects perpetuated by the same institutions. The movement to Stop CRT thus seeks to freeze civil rights progress where it stood decades ago, as when the Supreme Court acknowledged a “fundamental national public policy” against racial segregation in its 1983 decision in the notorious case of Bob Jones University v. United States, while leaving unresolved vital questions about whether and how to allocate public resources affirmatively to foster diversity, equity, inclusion, and accessibility in democratic society. In Bob Jones, the Court upheld the federal taxation of private schools that excluded Black students because their religious beliefs allegedly mandated “racial separation.” Specifically, the Court ruled that the Internal Revenue Service (IRS) properly withheld federal tax-exempt status to otherwise qualifying entities to enforce “fundamental national public policy” (“FNPP”), as expressed by all three branches of the federal government, against racial segregation in schools, and deemed desegregation a compelling government interest that outweighed any burden on religion. As a private tax dispute, Bob Jones stands alongside legions of other complaints brought by taxpayers aggrieved by IRS actions. But as a case involving an educational institution raising a religious liberty claim against antidiscrimination regulation, Bob Jones raised broader public law issues involving constitutional and federal statutory interpretation, as well as judicial review of administrative action. This article assesses the legal and symbolic influence of Bob Jones not to relitigate the case or to rewrite history, but to highlight the case’s lasting symbolic impact and lessons for future civil rights advocacy, especially as informed by CRTs that developed alongside the federal courts’ retreat from enforcing existing antidiscrimination norms. Part I examines the case of Bob Jones to show how its political and legal context shaped its unique posture and path to the Supreme Court. Part II examines the afterlife of Bob Jones and its symbolic importance to conservatives motivated to prevent its expansion, even as the decision limits its own impact by leaving crucial substantive questions unresolved: namely, the role of pluralism in enforcing civil rights against First Amendment claims, the viability of race-conscious remedies for racial discrimination, and the visibility of redistributive economic justice concerns. Finally, Part III shows how CRT’s insistence on confronting those same questions reveals persistent inequities sustained by U.S. social and legal institutions, drawing the fire of efforts to Stop CRT. Part III assesses the prospects for moving the difficult questions left unresolved in Bob Jones back to the center of analysis, even with the current Supreme Court in a polarized and partisan political climate. The Article ultimately concludes that the legal reorientation demanded by Bob Jones and initiated by critical theorists, whatever their fate in the Court’s jurisprudence in the near term, remains crucial for identifying and challenging ongoing power disparities in and through every level of democratic government and society.

Has the Covid-19 pandemic undermined public support for a diverse society? Evidence from a natural experiment in Germany

ABSTRACT The Covid-19 pandemic has led to widespread worries that the health crisis is resulting in generalized hostility towards minorities and reduced support for a diverse society. Relying on a large survey of diversity attitudes in Germany fielded before and during the pandemic, we employ a quasi-experimental design to evaluate whether such a trend has occurred among the general public. Past work suggests two competing expectations – one anticipating a rise in hostility grounded in threat theories, and one anticipating stability grounded in public opinion research and theories of longer-term value change. Empirical results reveal generally high assent to socio-demographic diversity and minority accommodation, and remarkable stability during the pandemic period. Additionally, survey vignettes show strong and equally stable anti-discrimination norms that are inclusive of Asian-origin populations. Overall, results suggest that surges in racist incidents during the pandemic do not reflect analogous surges in hostility within the population at large.

Конституционные меры защиты от гендерной дискриминации в европейской модели прав человека

The present research featured anti- discrimination laws used in EU countries. The research objective was to describe the categories of equality, non-discrimination, and protection against discrimination within the European model of human rights, as well as to analyze their effectiveness. The article focuses on domestic violence, gender discrimination in the political sphere, and the so-called gender laws, or laws on gender-based violence. Even in the modern world, women still remain subject to discrimination. This fact justifies the development of special laws to protect their natural rights. However, the exact extent of gender discrimination remains unclear. The author raises the question of effectiveness of such laws and other legal provisions. The research featured both constitutional norms and current legislation in cases its norms develop the constitutionally significant principle of non-discrimination, as well as the practice of constitutional review bodies, special bodies, and legal awareness. The work was based on the dialectical method (logical method, analysis and synthesis, modeling), as well as on some special methods (formal legal, historical, systemic, etc.). The formal legal method was used to analyze the gender anti-discrimination norms of legislation of EU countries. The specific-historical method helped to interpret the legal events and facts that shaped the modern constitutional protection measures. The system method was used to describe the legislation of the EU states. Equality is the freedom for a person to choose their identity and occupation regardless of behavior stereotypes imposed by their community. The European model of human rights concentrates on such constitutional and legal aspects of the fight against discrimination as the legislation reform and bodies of constitutional control. However, sometimes such measures fail and might be used for manipulation.

Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring

Can universities legally employ race- and sex-based preferences in faculty hiring? This Article explores the history, law, and practice of faculty-related affirmative action, tracing its origins back to largely forgotten legal challenges in the early 1970s over universities’ blatant discrimination against women. Since that time universities have developed hiring schemes that are typically hidden from public view and that steer certain minority and female faculty candidates into special hiring processes. Those special processes, euphemistically called “Target of Opportunity Programs” (TOPs), create faculty positions for which candidates are identified on the basis of race and sex and for which candidates from non-preferred demographics are not invited to apply. The legality of TOP searches is rarely discussed openly on campus. While some have suggested that the Supreme Court’s diversity jurisprudence in the admissions context permits preference-based faculty hiring, this Article shows that the diversity rationale travels poorly to the context of faculty hiring. Moreover, faculty hiring, unlike admissions, is regulated by a complex system of anti-discrimination norms in state law, federal employment law, and administrative regulations that appear to tightly constrain permissible employment-related affirmative action. The Article concludes that race- and sex-based preferences for faculty hiring are problematic. They are difficult to justify under the standard diversity rationale, and they seem to violate employment law and an Executive Order governing government contractors by creating the functional equivalent of race- and sex-based set asides.

How the Conflict Between Anti-Boycott Legislation and the Expressive Rights of Business Endangers Civil Rights and Anti-Discrimination Laws

This article addresses the conflict between the expressive rights of businesses and enforcement of civil rights laws in the context of the many state laws that prohibit the awarding of public contracts to companies that engage in a boycott of Israel. Such laws (known as anti-BDS laws) have been challenged in the Federal courts in recent years, with the support of civil rights organizations, on the grounds that they violate the First Amendment right to boycott. This article examines the impact that these challenges could have on anti-discrimination laws, such as the Civil Rights Act of 1964. It argues that there is no meaningful distinction between these anti-boycott laws, and other anti-discrimination laws, since a boycott, like discrimination, is simply a refusal to deal with someone. We outline the Supreme Court’s increasing willingness in recent years to favor the religious and expressive rights of organizations and businesses over the enforcement of civil rights laws and conclude that challenges to anti-BDS laws, viewed within this trend, could threaten the validity of traditional anti-discrimination laws. By prioritizing the expressive rights of businesses, opposition to anti-BDS laws could threaten important anti-discrimination norms.

Rights, Dignity, and Public Accommodations

In this essay I consider why debates over applying anti-discrimination norms to public accommodations have long been, and remain today, such a resilient presence in the history of the United States. I use as my starting point the most famous iteration of this phenomenon, the national debate sparked by the 1960 sit-in movement and culminating in the passage of the Civil Rights Act of 1964, which banned racial discrimination in public accommodations across the nation. The battle over racial discrimination and public accommodations in the early 1960s illuminates the moral issue at the heart of the issue, the lines of argument that characterize the debate over how to define legal rights in this area, and the ways in which different legal institutions have resolved, or failed to resolve, the issue. I then move backward time, highlighting the continuities between this episode and the struggle over race and public accommodations during Reconstruction. The history of the civil rights era provides a useful framework to analyze the terms of debate from a century earlier, and it provides particular insights into the significance of the concept of public rights that Rebecca Scott has so effectively brought to our attention.

Conscience in Commerce

According to much current law and theory, a retail business that sells a particular good to one customer cannot refuse to sell that same good to another customer simply because of the latter’s identity. Thus, in many jurisdictions, wedding florists and cake bakers must sell their wares to both same- and opposite-sex couples, and reception hall owners must rent their spaces to both the NAACP and the Christian KKK. Call the principle underpinning this policy the “Equal Access” principle: The principle holds that a vendor can choose the products he sells but not the customers he serves. It lies at the core of recent cases in which religion and sexual orientation, or religion and gender identity, have clashed in the commercial sphere, and it is pervasive among commentators who seek to ensure that the marketplace remain a discrimination-free zone. This Article champions the egalitarian spirit of Equal Access but it argues that the principle itself is unworkable, unreliable, and perhaps even incoherent. Equal Access permits impermissible discrimination and forbids refusals of service that in fact promote equality’s ends. Further, Equal Access derives support from a problematic conception of the retail sphere – one that sees commerce as amoral and so cannot even make sense of a vendor’s interest in exercising their conscience at work. In place of this morally neutered conception, this Article aims to vindicate a picture of the marketplace as richly moral. And in place of Equal Access, the Article aims to offer a more principled and nuanced account of when and why retail discrimination is impermissible. That account would forbid identity-based discrimination but permit refusals of service for projects that foster hate toward protected groups, even where the hate-based project is intimately linked to a protected characteristic (as with religious groups that mandate white supremacy). Far from perpetuating discrimination, these refusals instead promote anti-discrimination norms, and they help realize the vision of the morally inflected marketplace that the Article defends.

“I’d like to, but I can’t”: Maternity, Discrimination and Exclusion in Colombia’s Garment Manufacturing Labor Market

The article proposes a critical reading of the design of maternity protection focused on the protection of working mothers and shows evidence of its adverse effect due to the ineffectiveness of the anti-discrimination norms in employment hiring procedures. Secondly, and resorting to field work with workers and employers in the garment manufacturing sector in Colombia, it provides evidence of the anti-maternal and anti-caring practices that characterize some sectors of formal work in the country and that end up excluding women workers who are mothers or who have care responsibilities.

Article II and Antidiscrimination Norms

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump v. Hawaii. Contrary to the Court’s apparent assumption, the internment cannot easily be rejected if the 2017 travel ban is embraced. There is no analytically defensible and practicably tractable boundary between the two. Recognizing this disjunction and explaining why the Court’s effort to separate past from present practice cannot prevail, I argue, reveals what might be called an “Article II discretion to discriminate.” By identifying and mapping this form of executive discretion, the Article offers a critique of the Court’s recent construction of executive power in light of historical precedent and consequentialist justifications. It further illuminates downstream distributive and regulatory consequences of executive power in the context of ongoing judicial constriction of Article II discretion over regulatory choices.

“I know you expect me to favor my ingroup”: Reviving Tajfel's original hypothesis on the generic norm explanation of ingroup favoritism

The present research investigates the normative roots of ingroup favoritism, reviving Tajfel's (1970) abandoned “generic norm” hypothesis according to which (1) most ingroups are perceived to promote ingroup favoritism and (2) people infer this normative prescription in newly assigned minimal groups. Anti-discrimination norms are also prevalent, but we propose that these originally emanate from external (and often supra-ordinate) entities that act as “moral referees” of the intergroup situation (e.g., the United Nations Organization). Two experimental studies using the self-presentation paradigm (Jellison & Green, 1981) supported these hypotheses in a naturalistic intergroup context (Study 1; N = 110) and in a minimal group paradigm (Study 2; N = 206). Moreover, the relationship between these norm perceptions and participants' tendency toward ingroup favoritism was examined. Results revealed differences in the naturalistic and the minimal group contexts. In the naturalistic setting, the relationship between perceived norms and people's actual tendencies was contingent on political orientation. In the minimal group paradigm, inferences of the ingroup norm were, overall, the best predictor of ingroup favoritism. These findings are discussed in the light of current models of intergroup behavior.

Discrimination and Insurance

Is it fair and just to charge men and women identical life insurance premiums despite their different actuarial risk? What about charging the old and the young different premiums? As entities whose core business is to classify people based on their actuarial risk, should private insurance companies not be allowed to discriminate between various groups? To answer these and various other questions, I start this chapter by revealing the complete confusion that exists in the legal terrain with respect to antidiscrimination norms in insurance. I then show how philosophers writing about discrimination mostly have been writing at a level of abstraction so high that it comfortably ignores relevant nuances, thus making the entire literature largely useless for any insurance-related policy-making purposes. I conclude by proposing a theoretical framework that can help policy makers apply a fair and just anti-discrimination policy.

INTERNATIONAL CONCEPTIONS OF THE FAMILY

AbstractThis article examines the evolving way the ‘family’ and ‘family life’ have been understood in international and regional human rights instruments, and in the case law of the relevant institutions. It shows how the various structural components which are considered to constitute those concepts operate both between relevant adults and between adults and children. But it also shows that important normative elements, in particular, anti-discrimination norms, operate both to undermine the perception of some structures as constituting ‘family’, and to modify those structures themselves. This raises the question how far human rights norms should be seen as protecting family units in themselves or the individual members that constitute them.

Sally Yates, Ronald Dworkin, and the Best View of the Law

What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advice should be informed by the best view of the law sounds very much like the position of Ronald Dworkin. Dworkin argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, all considered from the standpoint of the community’s political morality. The judge’s interpretation must fit with past legal decisions, but its aim is also to show the community’s legal practices in their best moral light. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this Essay to seek to persuade legal advisors—whether for the government or a private client— that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality but rather to serve as agents of their client. There are several reasons that lawyers should not be Dworkinian interpreters, but this Essay will concentrate on two. First, Dworkin’s jurisprudential vision has always sat uncomfortably with moral pluralism. Dworkin denies that his imaginary Judge Hercules merely imposes his own moral preferences under the guise of offering a legal interpretation. He insists that Hercules instead provides the best account of the community’s political morality. But he has very little to say about the possibility that a faithful reconstruction of the community’s moral principles will potentially establish multiple moral narratives bearing on the same question of legal interpretation. The American experience with immigration shows that, as a political com-munity, we have a remarkable capacity for tolerating both expansive executive power and discrimination on the basis of nationality (and, as demonstrated by the George W. Bush Administration, possibly discrimination on the basis of religion). As a community we also have become increasingly tolerant of strong executive power, but in the immigration context the president’s plenary power goes back more than a century, to the Chinese Exclusion Case. Litigation after the September 11 attacks set some limits on the president’s power, but left in place the deference given to the executive branch by the other branches on matters pertaining to national security. A program called the National Security Entry Exit Registration System (NSEERS), established by the Bush Administration, required the registration, fingerprinting, and questioning of aliens present in the United States from Muslim-majority countries, who were males over the age of sixteen. Courts sustained the registry features of the NSEERS program against due process and equal protection challenges, claims that the program amounted to racial profiling, and arguments regarding lack of statutory authorization for the program. That is not the only story, but it is certainly an aspect of our political morality that sits alongside the antidiscrimination norms articulated in the Constitution and numerous judicial opinions. What is a lawyer modeling herself on Judge Hercules to do when seeking the best view of the law?