Discriminatory Motive Research Articles

The Gender Gap in Confidence: Expected but Not Accounted For

We investigate how the gender gap in confidence affects the views that evaluators (e.g., employers) hold about men and women. We find the confidence gap is contagious, causing evaluators to form overly pessimistic beliefs about women. This result arises even though the confidence gap is expected and even though the confidence gap shouldn’t be contagious if evaluators are Bayesian. Only an intervention that facilitates Bayesian updating proves (somewhat) effective. Additional results highlight how similar findings follow even when there is no room for discriminatory motives or differences in priors because evaluators are asked about arbitrary, rather than gender-specific, groups. (JEL D82, D83, D91, J16, J22, M51)

The European Court of Human Rights and the ‘Special’ Distribution of the Burden of Proof in Racial Discrimination Cases

Abstract To improve ‘fairness’ and address victims’ difficulties in proving discrimination, a ‘special allocation of the burden of proof’ has been developed. When the claimant persuades the court to establish a presumption of discrimination, the burden shifts to the defendant, who must persuade the court that no discrimination has occured. Focusing on racial discrimination, this article traces the ECtHR’s struggle towards operating a fair shared burden of proof between applicant and defendant. Whereas for indirect racial discrimination, the search for fairness is one of fine-tuning, for hidden direct racial discrimination, particularly involving crimes with discriminatory motives, considerable work is needed still. So far, the Grand Chamber has identified relevant criteria for the distribution of the burden of proof, but has not applied these criteria in concreto. The Court is invited to provide more guidance to assist national authorities and courts in their search for a fair distribution of the burden of proof.

Discriminatory Motives and Establishment thereof in the Subjective Side of Unreasonable Refusal to Hire a Person or Dismissal of an Employee (Articles 144.1 and 145 of the Criminal Code of the Russian Federation)

One of the urgent problems in the Russian labor market is discrimination against job applicants and employees. In order to deal with this phenomenon, the state establishes various liability measures for employers, including criminal ones, for unreasonable refusal to hire or dismissal because a person has reached retirement age, a woman is pregnant or has children under the age of three years. A key role for the criminal legal classification of these crimes belongs to the specific motive of the employer, which is difficult to establish in practice, encouraging them to violate the equality of the right of a person and a citizen to work, depending on their age, pregnancy or children under the age of three years that a woman has. The paper aims to сonsider problematic issues related to the establishment of the motives of the subjects of crimes provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, and to give recommendations as to solve them. The tasks are to investigate the motive as a crime-forming sign of the offenses provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, and to identify the problems of its establishment in law enforcement practice using the methods of description, analysis and synthesis, generalization, comparison, system-structural and formal logical. The study notes that the difficulties in establishing the discriminatory motives of employers to commit crimes under Articles 144.1 and 145 of the Criminal Code of the Russian Federation are due to the veiling of those under legal motives, the easy concealment of evidence of one’s guilt, as well as a defect in the legislative description. The author proposes recommendations for effective establishment and substantiation of the discriminatory motives of subjects in the offenses provided for in Articles 144.1 and 145 of the Criminal Code of the Russian Federation, as well as eliminating a legislative defect in their description.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

Tele-Ethics in Communication Disorders: Asking the Right Questions, Finding the Right Answers

Purpose: A hypothetical case is used to illustrate legal and ethical issues involving the decision to replace the traditional in-person service delivery model with telepractice in schools beyond the context of the initial COVID-19 health emergency. In this clinical focus article, the reader follows Maria, the lead speech-language pathologist (SLP) in the district, as she determines the feasibility of continuing telepractice in her district now that students and clinicians are returning to schools. First, she considers the support needed to implement this service delivery model within the school setting given the anticipated changes to the rules and regulations governing lawful and ethical provision of telepractice after the health emergency ends. Next, she decides if telepractice is warranted in the district by considering the rationales behind the requests. Faced with balancing school, student, and clinician needs, Maria uses an ethical decision-making model to determine if requests for telepractice, tied to health safety concerns and potentially influenced by implicit bias, reflect legal, ethical, and/or moral issues driven by fear or unconscious discriminatory motives. Conclusions: The health emergency gave SLPs working in schools the unique opportunity to experience the benefits and utility of telepractice. Following the return to schools, continuation of telepractice services will require support and training of SLPs. Many factors must be considered including equivalency of services, technology, and protection of privacy as they relate to the changes to the laws and regulations governing telepractice after the health emergency allowances end. Of primary importance is the selection of telepractice to address student needs, not to avoid specific schools because of their characteristics or location. An ethical decision-making model can be used as a framework to guide service delivery model decisions that balance the needs of the student, the clinician, and the district.

Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton County, one that combined the sex-trait analysis with causation analysis in determining that “traits or actions” related to sexual orientation or gender identity are protected. Because Bostock did not foreclose the use of social evidence or intersectional approaches in additional subordination contexts in which sex is a factor, this Article builds on this important development by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination has the potential to give fuller effect to Title VII’s provisions and purposes as compared to sex-stereotyping theory or the Court’s reformulated “but-for causation.” Uncoupling causation from the sex trait analysis realizes the statute’s civil rights protections within relational, structural, and institutional dynamics as the law increasingly recognizes that the scope of sex extends beyond a fixed binary.

On the Correlation of Guarantees to Ensure the Labor Rights of the Elderly in Russia and Europe

Many lawyers, referring to the topic of guarantees for ensuring the labor rights of elderly people who receive a pension, begin the analysis from the provisions of Art. 19 of the Russian Constitution on the prohibition of discrimination and art. 3 of the Labor Code of the Russian Federation on the prohibition of discrimination. ILO Convention № 111 on Discrimination in Employment and Occupation [8] also does not mention the age as a discriminatory motive. At the same time, among the listed elements of Article 19 of the Constitution of the Russian Federation, there is no direct indication of age. Therefore, the issue of employment and retention of the workplace for an elderly employee, the payments due to dismissal, including in connection with the liquidation of the organization or the reduction of staff, is related in one way or another to the understanding of the essence of the labor rights of such persons by the bodies that protect labor rights of workers and justice. Controversial aspects often have fundamentally different approaches to application, thus requiring careful and cautious treatment without generalizations and formalism. Based on the analysis of judicial practice, ILO recommendations, WHO reports and other materials, we will reveal common and distinctive features in ensuring the labor rights of elderly people and old age pensioners and the quality of life in Russia and European countries.

Unconstitutionally Illegitimate Discrimination

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the Executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that a legitimacy-focused approach towards constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.

Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws

PurposeWhile the words diversity, disparate impact, and discrimination are commonly read and heard by working adults and professionals, they can at times be confusing and fearful to some managers. The purpose of this paper is to provide an overview of a specific aspect of US civil rights laws – the disparate impact theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute, administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case based on the disparate impact theory. The challenging causation component which requires some degree of statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and recommendations to managers are explored and provided toward the end of the paper.Design/methodology/approachIt is a legal paper which covers all the laws related to discrimination based on disparate impact and disparate treatment theories. Actual court cases up until this month and Americans laws related to this concept are reviewed and critically discussed.FindingsThe salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results and not discriminatory intent.Research limitations/implicationsThis paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed.Practical implicationsManagers and employees can protect themselves in the workplace from illegal discriminatory practices. Initially, employers and managers must be aware of the distinction between a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required. Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or practice caused an adverse disproportionate impact on the employee as a member of a protected class.Social implicationsHuman resources professionals and managers must become educated in diversity laws in order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height, weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance.Originality/valueThis is an original paper by the authors.

Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent

In the forty years since Washington v. Davis, courts have struggled to articulate with any consistency an evidentiary standard for determining the existence of impermissible discriminatory motive. Though not required to do so, courts have often avoided considering any evidence of animus not contained within the official legislative or administrative record out of skepticism for the probative value of such “unofficial” statements. Lacking a coherent approach, courts have split on whether and to what extent statements made in the course of an election campaign should factor into discriminatory intent analysis. The 2016 presidential campaign has forced courts to squarely address this issue, as litigants challenging President Trump’s executive orders on immigration dredge up a trove of discriminatory and inflammatory statements made by candidate Trump. Curiously, the wealth of legal scholarship examining the contours of discriminatory intent analysis have largely ignored the relevance and propriety of campaign rhetoric as a permissible form of evidence in the analysis. This Article fills that gap. It proceeds by examining the five primary arguments against considering campaign statements as evidence of subjective animus, and illustrating why none of these arguments justify such a bright-line evidentiary bar. In short, traditional claims that campaign statements are of limited probative value address their evidentiary weight rather than their admissibility and fail to account for a court’s ability to discount the evidence as necessary. By adopting a more fact-specific, objective, and flexible approach to campaign statements, courts not only will more faithfully adhere to the spirit of Davis and its progeny, but will also be equipped to address the atypical case of a politician who speaks his discriminatory mind and then acts on it.

Discrimination in a deprived neighbourhood: An artefactual field experiment

We present a field experiment designed to examine the discriminatory motives of an understudied demographic: the poorest people in England. Subjects are first asked to divide £10 between two strangers, and then play a £10 dictator game with another stranger. We subtly vary the ethnicity of the receivers by providing subjects with surnames randomly drawn from the electoral register, including treatments that allow us to parse behaviour into either in-group favouritism or out-group negativity, an important behavioural distinction that is typically overlooked in the discrimination literature. Our results suggest that the observed discriminatory attitudes are the result of out-group negativity rather than in-group favouritism. We advance the literature on discrimination through the estimation of a structural model of group-contingent social preferences, which we exploit to perform counterfactual simulations. Our results provide insights into the behaviour of this unique demographic and provide a rationale for why they may support discriminatory policies in their voting behaviour.

Decency and exclusion: a symbolic interpretation of post-displacement discriminatory discourse in De Doorns, South Africa

From 14–17 November 2009 an estimated 3000 Zimbabweans were violently and forcefully displaced from their dwellings in a rural farming area, De Doorns, in the Western Cape, South Africa. This study looks into a discourse of decency to contribute, through symbolic interpretation, to an understanding of discriminatory motives behind the aggressive expulsion of Zimbabweans from Stofland, a shack settlement in De Doorns. An analysis of one of the prominent discourses used by residents after displacement reveals the logic behind discrimination and also illustrates the ways in which discrimination manifests and is perpetuated through language and action. This discourse of decency is also discussed in relation to findings that suggest that, far from being the result of a common identity, displacement motives are based on perceived difference and constructed entitlement identities. Constructed entitlement identities need to be understood in relation to desires for material emancipation in Post-Apartheid South Africa.

Discriminatory Motive and the But for Test: The Proper Approach to Direct Discrimination in Britain and the United States

In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.

The Crime of Genocide under International Law

AbstractThe article sets out the nature, the history and the general structure of the crime of genocide and provides a comprehensive analytical commentary of the elements of the crime. Against the current trend of the international case law to expand the boundaries of the definition at the risk of the crime's trivialization this article develops a strict construction even if the results may appear politically unattractive. The article starts from the premise that, for all practical purposes, the occurrence of a crime of genocide entails a collective destructive act. This collective act forms the objective point of reference of the required intent to destroy a protected group in whole or in part; the vain hope of an individual to contribute, by way of commission of one of the underlying offences, to the destruction of a group falls short of this concept of a realistic genocidal intent. The article rejects a purely subjective definition of the various categories of protected groups and cautions against the conversion of the crime of genocide into an unspecific crime of massive human rights violations based on discriminatory motive. At the same time, it is submitted that not every campaign of so-called "ethnical cleansing" is to be considered as the infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part. Regarding the mental elements of the crime it is held that, contrary to a widespread belief, it is the interpretation of the terms "destroy" and above all "part" (of a group) that determines the general scope of the crime to a much greater extent than the construction of the word "intent". The predominant narrow interpretation of the word "destroy" in its physical and biological meaning is supported while it is noted that the most recent ICTY case law reveals an inclination of re-introducing the concept of social group destruction through the backdoor of the words "in part". The extension of those words to comparatively small regional communities is probably the most conspicuous aspect of the general trend to over-expand the crime's definition. Conversely, the reference to the particularly heinous character of genocide is not good enough an argument to accept the many flaws of the prevailing purpose-based approach to the word "intent". The article suggests instead that the word "intent" means that the perpetrator commits the prohibited act with the knowledge to further thereby a campaign targeting members of a protected group with the realistic goal of destroying that group in whole or in part.

Professionals, Conformity, and Conscience

Laws, regulations, and ethical codes often address conflicts between personal beliefs and workplace demands. Such conflicts are common in the health setting, where work is intimately connected to matters of life and death, privacy, and dignity. In the latest conflict attracting attention, pharmacists have expressed moral beliefs that interfere with women's reproductive health needs. Journalists and others have reported cases of individual pharmacists refusing to fill prescriptions for emergency contraceptives. Because emergency contraception can act to block implantation of a fertilized egg, people who believe in protection of human life after conception find it morally objectionable. State officials have responded in two ways. Some have endorsed legal requirements that protect women's access to the drugs; others have sought to protect pharmacists' conscientious objection rights. The American Pharmacists Association recognizes the individual pharmacist's right to exercise conscientious refusal and supports the establishment of systems to ensure patients' access to legally prescribed therapy without compromising the pharmacist's right of refusal. (1) In this and other contexts, we see disagreement over when to protect the professional's freedom to reject on moral grounds a practice that is ordinarily required of the professional. The dispute over pharmacist refusals and workplace demands offers an opportunity to examine this broader question. The Varieties of Conscience Claims Health care workers may seek to be excused from several medical services on grounds of conscience. Many laws protect health professionals from employment penalties if they refuse to assist with abortion or sterilization procedures. A few laws allow clinicians to avoid carrying out what they see as a morally objectionable decision to forgo life-sustaining treatment. Some laws excuse professionals from administering futile treatment that they see as morally inappropriate. And Oregon's law allowing physician-assisted suicide permits clinicians to refuse to supply patients with life-ending medication. Many other types of conscientious objection may be asserted in health settings. Clinicians may cite disability rights as the basis for an objection to performing tasks associated with prenatal diagnosis, or gender equality as the basis for a refusal to assist with sex-selection procedures. They may claim religious or moral beliefs as the basis for denying a single person's request for infertility treatment. They may cite religious or cultural objections to retrieving organs from patients declared dead according to whole-brain criteria. Students may express moral opposition to using animals in training exercises. In some circumstances, conscientious objection claims may mask self-interested or discriminatory motives. For example, professionals worried about disease transmission may refuse to care for an HIV-positive patient, claiming religious opposition to homosexuality or a duty to remain healthy for the sake of their families. An angry clinician may deny care to a disruptive patient, citing an ethical responsibility to protect other patients. Residents interested in lightening their work load may claim moral objections to avoid training sessions in abortion techniques. Conflict Management Models Because conscientious objection occurs in such varied circumstances, the acceptable resolution will be different in different situations. Nevertheless, there are several general models for handling such objections. One is the contract model. At the outset of the encounter, the professional should disclose to patients any treatment limits. People in need of an excluded service may then seek that service from another professional. This model works in some contexts, but not when patients need care quickly or when no one else can take over the task of the objecting professional. …

Do crimes against humanity deserve a higher sentence than war crimes?

AbstractThis article examines the issue of penalties for crimes against humanity and war crimes as imposed by the judges of the International Criminal Tribunal for the former Yugoslavia (ICTY). At the moment, if for example A murders B, C, and D in the course of an armed conflict, it appears to makes no difference in terms of penalties if he is ultimately convicted under crimes against humanity or war crimes, what appears to matter is the fact that he committed murder. This approach has the effect of obscuring the criminal intention and motives for war crimes and crimes against humanity. The main reason why the ICTY has persisted with this approach, is the fact that at present there appears to be no credible index for adopting a policy of relative sentencing for crimes against humanity and war crimes. The aim of this Article therefore is to advocate a method for imposing higher penalties for crimes against humanity vis-à-vis war crimes. Furthermore, this method will rely on the argument that crimes against humanity offences e.g. murder, rape and torture when committed with a discriminatory motive should attract higher penalties than identical offences when committed as war crimes.

Biotechnology

Although biotechnology offers many benefits, our desire for it may be fueled by discriminatory, competitive, anxious, or selfish motives. We yearn for a technology that promises us control over nature and freedom from the suffering and limits that define our biological existence. It is possible, however, to see biotechnology as serving a different purpose, as a support for life as it should be lived before God. Seeing it this way is particularly important when we come to the question of the genetic modification of future generations of human beings, a prospect that in some ways has already begun.

Statistical discrimination in health care

This paper considers the role of statistical discrimination as a potential explanation for racial and ethnic disparities in health care. The underlying problem is that a physician may have a harder time understanding a symptom report from minority patients. If so, even if there are no objective differences between Whites and minorities, and even if the physician has no discriminatory motives, minority patients will benefit less from treatment, and may rationally demand less care. After comparing these and other predictions to the published literature, we conclude that statistical discrimination is a potential source of racial/ethnic disparities, and worthy of research.

Defining “Crimes Against Humanity” at the Rome Conference

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

Indirect Proof of Discriminatory Motive in Title VII Disparate Treatment Claims after "Aikens"

Indirect Proof of Discriminatory Motive in Title VII Disparate Treatment Claims after "Aikens"