Discrimination Legislation Research Articles

Policy and laboratory practice: How quality control procedures for genetic testing perpetuate biological essentialism and discrimination against transgender, gender diverse, and intersex people.

Transgender, gender diverse, and intersex (TGDI) individuals face significant health disparities due to individual and systemic experiences of discrimination, impacting their access to healthcare. While clinical genetic testing has become increasingly accessible to the general population, the field of clinical genetics perpetuates a narrative of biological essentialism, which creates barriers for TGDI patients. Biological essentialism upholds that sex is a binary, fixed, and innate characteristic, a misconception that has been historically weaponized against the TGDI community in both individual experiences of discrimination and anti-trans legislation, among other systemic forms of oppression. Rejecting this discriminatory framework requires careful consideration of, and changes to, long-established practices that often go unquestioned, such as quality control metrics in genetic testing, in order to improve TGDI patients' outcomes and access to genetic services. The sex-check, comparing an individuals reported sex against their sex chromosomes, is an example of how laboratory genetics practices reinforce the narrative that sex is determined purely by chromosomal composition. Additionally, the sex-check "outs" TGDI people in clinical settings, creating a discriminatory and unsafe environment for these patients. Alternative quality control procedures and inclusive practices, such as clearer delineation of sex and gender on test requisition forms, are proposed to improve TGDI patient experiences. Genetic counselors and other clinical providers have a responsibility to address historical discrimination and advocate for changes to laboratory practice, so as to create affirming experiences for TGDI patients.

Substantive Equality and the Possibilities of the Queensland Human Rights Act 2019

The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking.

Pay discrimination litigation: Lessons learned

Orientation: We investigated the reasons for success or failure of pay discrimination claims in South Africa.Research purpose: To learn from reasons for judgements in equal pay litigation to clarify pertinent legal concepts and principles related to equal pay, towards improved pay practices.Motivation of the study: To clarify the concepts of justifiable and unfair pay discrimination. To make recommendations preventing unnecessary breakdown of the employer-employee relationship, curtailing unproductive pay discrimination legal action.Research approach/design and method: Content analysis was used to categorise the reasons for the success or failure of 22 pay discrimination litigation cases brought before the CCMA, Labour Courts, and the Labour Appeal Court (1999–2020). Cases were examined prior to and after amendments Section 6(4), of the Employment Equity Amendment Act 47 of 2013.Main findings: Contrary to the expectation of more positive outcomes for employees after changes to the EEA came into effect, 21 out of 22 cases were unsuccessful. Legal reasons are detailed in the findings. Claimants were from the lower income bands. Case arguments often misguided. Union representation seems ineffectual.Practical/managerial implications: There is a lack of understanding of the requirements to argue unfair pay discrimination before a court. Organisations should mediate in cases where employees claim unfair discrimination, to prevent the irretrievable breakdown or the employer–employee relationship resulting in litigation. Organisations should refrain form intentional or unintentional unfair discrimination.Contribution/value-add: This study demonstrates that employees and their representatives lack knowledge of pay discrimination legislation. We provide explanation of pertinent concepts and principles when judging the merits of a pay discrimination case.

BEHAVIORAL AND PSYCHOLOGICAL CONDITIONS OF SOME EMPLOYEES AND THEIR IMPACT ON JOB PERFORMANCE (CACE STUDY)

With globalization at its peak, organizations are expanding, acquiring, and merging businesses worldwide to maintain and increase their competitive advantage. As such, we have witnessed an increase in the diversity of the workforce resulting from immigration and opportunity. With diversity not only come a variety of opinions, but also an array of beliefs, customs, practices and traditions which might seem ‘standard or normal’ to some, but ‘abnormal or strange’ to others. When these become a source of prejudices and biased dispositions, as well as more alarmingly discrimination and harassment, these issues must be immediately dealt with under the jurisdiction of the HR as per applicable laws and corporate policies. This report shall analyse the ‘case – Maalick vs. Rington Communications’ in the context of law as it relates to the U.K.; the equality act of 2010, as well as previous anti discrimination legislation that have been introduced along with HR best practices. The case revolves around an employee of Rington Communications, Inc., Maalick, a.k.a. MarShawn Demur and the formal complaint he filed revolving around his religious beliefs alleging racial harassment and religious discrimination. Rington Communications is a large telecommunications corporation (30,000 employees worldwide ; 2013 Gross Revenue of GBP 20 Billion) with several branches in the U.S.A. and U.K., and pride itself in its diversity, considering it to be one of the driving factors of its success. It considers itself an equal opportunities employer and even has a comprehensive ‘Equal Opportunities / Anti – discrimination / Diversity / Harassment policy’ that clearly defines code of conduct and expectations of each employee. This report will identify and describe specific issues encountered by Maalick in the workplace. It will analyse his co-workers’ actions and consider them with respect to applicable discrimination and harassment corporate policies, their violations, and U.K. labour laws. It will evaluate the actions of the organization (scrutinizing the behavior of both his direct manager – Clive Jenkins, as well as the country’s HR Director – Marta Ford) in response to his situation, as well as explore potential actions that could have been taken to mitigate the damage and prevent future reoccurrences of the same. It will also deliberate the case from the perspective of the corporate vice president for equal opportunity and diversity – Judith Dixon, while considering formal and informal avenues and the part played by ‘power’ considering the sources of ‘power’. The report will finally make suggestions and recommendations, concluding by evaluating the options of the top management from a broader corporate perspective.

Age and gender differences in the relationship between obesity and disability with self-perceived employment discrimination: Results from a retrospective study of an Australian national sample

BackgroundHealth status is a crucial determinant of an individuals’ labour market outcomes. The present study investigates the association between obesity and disability with perceived employment discrimination within Australia. MethodsA total of 17,174 person-year observations from the 11,079 respondents were analysed using four waves of data from the Household, Income, and Labour Dynamics in Australia (HILDA) survey. The primary outcome examined was employment discrimination, using obesity and disability as the main exposure variables. The longitudinal random-effects regression technique was applied to investigate the between-person differences in employment discrimination associated with obesity and disability. ResultsThe findings suggest that more than one in ten (12.68 %) Australians experienced employment discrimination. The odds of being discriminated against while applying for a job were 1.56 times (aOR: 1.56, 95 % CI: 1.15–2.11) higher for obese than their healthy weight counterparts in youngest women. Adults with a disability had 1.89 times (aOR: 1.89, 95 % CI: 1.65–2.17) higher odds of being discriminated against than peers without disability. ConclusionThe results provide evidence that obesity and disability contribute to employment discrimination in Australia. The findings can assist government and related agencies to consider the adequacy of existing discrimination legislation and help organisations to develop appropriate policies to address discrimination against obese and disabled people in their workplaces.

EU Directive Prohibiting Gender-Based Insurance Rating: Would a South African Court Follow Suit?

The decision of the European Court of Justice in Association belge des Consommateurs Test-Achats ASBL, Yann van Vugt, Charles Basselier v. Conseil des ministres, Judgment of the Court of Justice (Grand Chamber) of 1 March 2011 Case (C-236/09) sparked international interest and concern as it prohibited the use of gender as a rating variable in the access to and the supply of goods and services. With specific reference to motor-vehicle insurance, gender is widely used to differentiate for purposes of accurate risk classification. South African motor-vehicle insurers use, inter alia, gender as a rating variable to classify risks into certain classes and to determine insurance premiums. A South African court is still yet to decide whether the use of gender as a motor-vehicle insurance rating variable amounts to unfair discrimination or not. In light of South Africa's history of discrimination, case law and equality legislation reflect a deep commitment to substantive equality. This article explores, taking into account a South African court's approach to equality, whether the outcome may be similar to the decision of the European Court of Justice or not.

Combating the Harassment of Women at Workplace: An Analysis of Legislation in Pakistan

The 3 P's, i.e., the security, promotion, and provision of fundamental rights to its people, are widely regarded as the hallmarks of an effective legal system. These 3Ps are enforced in both formal and informal legal structures. Gender-based violence (GBV) at work is the most well-known form of GBV in our culture, which is marked by patriarchy and gender segregation. When harassment occurs in the workplace, it makes a female's working experience unpleasant, harmful, and aggressive. It makes it difficult for her to obtain a legitimate position and respect in the workplace. According to a survey, 77 percent of Pakistani women employed in different occupations are unaware of their human rights in cases of sexual abuse. According to the National Commission on the Status of Women, 50 percent of women interviewed from the public and private sectors had been sexually harassed and were hesitant to report the truth. The Protection against Harassment of Women at Workplace Act of 2010 was enacted in Pakistan's history to protect women from mischief and ensure a safe workplace. It manifested constitutional protections enlisted under Fundamental rights. Non-traditional job structures, such as farm work, domestic and home-based work, are part of Pakistan's socio-economic culture. Even on non-traditional job bases, the Act of 2010 made it possible to directly contact the Office of Ombudsperson or file a criminal complaint. This article aims to examine the current state and efficacy of workplace discrimination legislation.

Combating the Harassment of Women at Workplace: An Analysis of Legislation in Pakistan

The 3 P's, i.e., the security, promotion, and provision of fundamental rights to its people, are widely regarded as the hallmarks of an effective legal system. These 3Ps are enforced in both formal and informal legal structures. Gender-based violence (GBV) at work is the most well-known form of GBV in our culture, which is marked by patriarchy and gender segregation. When harassment occurs in the workplace, it makes a female's working experience unpleasant, harmful, and aggressive. It makes it difficult for her to obtain a legitimate position and respect in the workplace. According to a survey, 77 percent of Pakistani women employed in different occupations are unaware of their human rights in cases of sexual abuse. According to the National Commission on the Status of Women, 50 percent of women interviewed from the public and private sectors had been sexually harassed and were hesitant to report the truth. The Protection against Harassment of Women at Workplace Act of 2010 was enacted in Pakistan's history to protect women from mischief and ensure a safe workplace. It manifested constitutional protections enlisted under Fundamental rights. Non-traditional job structures, such as farm work, domestic and home-based work, are part of Pakistan's socio-economic culture. Even on non-traditional job bases, the Act of 2010 made it possible to directly contact the Office of Ombudsperson or file a criminal complaint. This article aims to examine the current state and efficacy of workplace discrimination legislation.

To the issue of the mechanism for combating gender discrimination in the field of labor

The article addresses a theoretical and legal description of the mechanism for combating gender discrimination in the field oflabor. It is focused on the fact that an effective, comprehensive, holistic mechanism for combating gender discrimination in Ukraine hasnot yet been developed. The article highlights the main approaches of scientists to understanding the mechanism of ensuring the principleof gender equality. For the purpose of identifying main elements of the mechanism of combating gender discrimination in the fieldof labor the main approaches to understanding the mechanism of combating gender discrimination in the field of labor has been substantiated.The main elements of the structure of this mechanism are characterized. The level of reflection of the main elements of themecha nism for combating gender discrimination in national legislation and international regulations are dealt has been researched into.The positions of scientists on the structural elements of the mechanism for combating gender discrimination in the field of labor havebeen addressed. There are generalized existing case studies, which are devoted to various aspects of improving the mechanism for combatinggender discrimination in the field of labor. The mechanism of combating gender discrimination in the field of labor is a complexphenomenon has been established.It is concluded that the mechanism for combating gender discrimination in the field of labor includes the following elements:1) regulations consisting of international standards for the prevention of gender discrimination and national legislation in the field ofanti-discrimination; 2) institutional component; 3) a system of legal means and instruments for the protection and restoration of violatedrights of victims; 4) a system of preventive tools; 5) an effective system of collecting and summarizing gender-based statistical information;6) monitoring system; 7) clear and effective procedure for bringing to justice for discriminatory acts.

Career development and older people

This article explores career development support offered to, and used by, older people since 2000. The context includes changes in age discrimination legislation and state pension entitlement, which intertwine in their effect on labour market participation. Career development services have changed, with a marked divergence between the fragmented delivery in England and the all-age services elsewhere in the UK. Initiatives have been piloted, judged successful, but not robustly pursued. The article argues that rhetoric outruns resources and delivery, and contemplates the additional complication of the impact of the Covid-19 pandemic on older people and the economy.

Supporting Primary and Secondary Teachers to Deliver Inclusive Education Educatio

With Australian disability discrimination legislation and educational policy promoting movement toward inclusive education, the building and supporting of inclusive education workforce capability is of paramount importance. This study investigated how principals in Australian primary and secondary educational settings support teachers to provide inclusive education and what these principals perceive to be barriers to supporting the education workforce to deliver inclusive education. The study used an online open- and closed-set survey. The findings demonstrated that principals in educational settings across the government, Catholic and independent sectors and across geographical regions offered largely similar professional learning opportunities to their staff, and expressed similar views about barriers and principals’ roles in supporting their teachers to deliver inclusive education. Participants overwhelmingly reported that their role in building teacher capability was as instructional leaders and brokers of workforce professional learning. There was a strong indication by principals of the need for teachers’ knowledge and skills to be developed and of the need for high quality, effective ongoing professional learning. Participants reported barriers to supporting teachers to deliver inclusive education, most commonly an insufficiency of time, finances, and access. Recommendations for better supporting teachers in primary and secondary settings to deliver inclusive education are made

Drafting Model Discrimination Legislation

This draft looks at different aspects of model discrimination legislation as well as institutional frameworks.

Does Discrimination Law Apply to Residential Strata Schemes?

Although strata title legislation is over 50 years old, a number of important questions about its intersection with other areas of law remain unanswered. One such question is whether discrimination law applies to residential strata schemes. Discrimination law was enacted to ensure all citizens’ equal civic participation, and although it regulates both private citizens and private land, it only does so to the extent that they affect others’ ability to participate in public life. Discrimination legislation typically captures the provision of goods and services, education, employment, clubs and associations, access to public space, accommodation and the disposition of land. Strata bodies corporate do not fit neatly into any of those categories. However, bodies corporate wield considerable power over residents’ properties and lives, and the capacity to use that power in discriminatory ways is real. As ever-increasing numbers of Australians choose or are compelled to live in strata schemes, the need to resolve this legal dilemma becomes more pressing.

The Intersections of Equality, Welfare and Democracy in Sweden

This article examines the historical legal treatment of equality and its present-day protections against the backgrounds of welfare, democracy and access to justice. This first part begins with the historical development and legal treatment of equality, democracy and local govern-ment, moving over to the Swedish labor law model and the “folk home” that created the Swedish welfare state, and then to the current Swedish discrimination legislation. Access to justice is then addressed, seen here as the necessary mechanism for achieving both formal and substantive equality, followed by a discussion as to what type of equality is being protected and promoted by the law.

Sex and gender equality law and policy: a response to Murray, Hunter Blackburn and Mackenzie

This article is a response to ‘Losing Sight of Women's Rights: The Unregulated Introduction of Gender Self-Identification as a Case Study of Policy Capture in Scotland’ by Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie, published in Scottish Affairs 28(3). Murray et al. sought to explore the legal status of women, particularly with regard to discrimination legislation, and concluded that the interests of trans women had begun to systematically erode the interests of non-trans women in Scotland. In this response, we aim to correct some of the erroneous statements made by Murray et al. about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al.’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010. We argue that, in that claiming that there has been policy capture in Scotland, Murray et al. have neglected to contextualise ongoing debates about sex and gender in law against the backdrop of over two decades of clear legal and policy shifts across the UK. We call for researchers and others – in Scotland and elsewhere – to take care, particularly in interpreting and applying the law, especially as it applies to marginalised minority populations, so that we do not further obfuscate or mislead on important legal and social issues.

Is Sexual-Orientation Discrimination a Form of Sex Discrimination?

In Bostock v Clayton County (2020) Gorsuch J holds that direct discrimination because of sexual orientation is a form of direct discrimination because of sex. I argue that the same is true under the Equality Act 2010. I consider the arguments of (Finnis, in: Finnis (ed) Intention and identity: collected essays, Oxford University Press, Oxford, 2011) and (Gardner in Oxf J Leg Stud 18(1):167–187, 1998) that “because of”, “on grounds of”, and similar phrases in UK discrimination legislation invoke the state of mind of the discriminator. I apply this point to Bull and Bull v Hall and Preddy [2013] arguing that (i) the UK Supreme Court was wrong to find direct discrimination on grounds of sexual orientation, while, (ii), nevertheless, under the Equality Act 2010, that case and similar cases actually involve direct discrimination because of sex, not because of sexual orientation. I conclude by considering some objections, precedents, and implications.

Policy Adjustment as a Mediator between Older Workers Retention and Ageing Workforce. A Context for Action in Asia

Over the past decade, HR managers have been much concerned about the demographic changes and advised to take positive approaches to the management of organizations. These changes significantly cause population aging globally, resulting in economic and social challenges. This study aims to examine older workers’ retention, policy adjustment, and the aging workforce in Thailand. Purposive sampling was used to select a total of 520 respondents higher education institutions. We found that despite the call to retaining older workers, the majority of employers exhibit stereotypic attitudes, and finding it difficult to retain and attract older workers. Even though there have been initiatives toward discrimination legislation concerning older workers, however, policymakers should be proactive. Government should need to develop policies that would permit increased levels of older workers’ retention and create better competencies in achieving planned economic goals. Organizations need to adopt strategic approaches to age management and labor unions must show great commitment to the campaign against age discrimination.

Disability, Reasonable Accommodation and the Employer's Obligations: Nano Nagle School v Daly

AbstractThe duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job. The case also addressed the question of what procedures should be followed by an employer when considering the provision of reasonable accommodation, as well as the need for courts to justify awards of compensation. The issues in Irish law were intertwined with obligations arising from EU and international law instruments. Therefore, the decision is pertinent for other jurisdictions confronting similar challenges.

Does Discrimination Law Apply to Residential Strata Schemes?

Although strata title legislation is over 50 years old, a number of important questions about its intersection with other areas of law remain unanswered. One such question is whether discrimination law applies to residential strata schemes. Discrimination law was enacted to ensure all citizens’ equal civic participation, and although it regulates both private citizens and private land, it only does so to the extent that they affect others’ ability to participate in public life. Discrimination legislation typically captures the provision of goods and services, education, employment, clubs and associations, access to public space, accommodation and the disposition of land. Strata bodies corporate do not fit neatly into any of those categories. However, bodies corporate wield considerable power over residents’ properties and lives, and the capacity to use that power in discriminatory ways is real. As ever-increasing numbers of Australians choose or are compelled to live in strata schemes, the need to resolve this legal dilemma becomes more pressing.

Should Age Discrimination Be an Integral Part of Employment Discrimination Law?

Abstract This Article argues that a universal approach to age discrimination promotes justice (including intergenerational justice) and efficiency. As explained herein, legal regimes regulate age discrimination in employment in various ways. While some regimes create specific anti–age discrimination legislation, others ban most kinds of employment discrimination, including age discrimination, in a general way. These latter promote a universal approach to age discrimination. The current Article explores the theoretical justifications for either a particularistic or a universal approach to age discrimination. Additionally, it enriches its theoretical discussion by taking and presenting a snapshot of current litigation in Israel – a country that has adopted a universal approach to age discrimination.