Indirect Discrimination Research Articles

Legal Aspects of Membership in a Trade Union: A Case Study of Lithuania

The aim of this article is to address the questions of how the principle of freedom of association and the prohibition of discrimination on the basis of trade union membership are understood and to identify legal obstacles for an effective implementation of the right to join trade unions. International, EU regional and Lithuanian national legislation, as well as the case law of the European Court of Human Rights, the Court of Justice of the European Union and Lithuanian courts have been explored to carry out the current study. The results confirm that membership can be interpreted broadly; therefore, members of a trade union may be required to possess certain working and legal capacities, as well as meet other requirements related to the trade union’s objectives, which are sometimes unreasonable. Due to possible exceptions, various members may be subject to different collective rights, for example, certain officers may not be permitted to strike, and some may not even be allowed to join associations.

Structural inequality and the protectorate of discrimination law

This article asks whether discrimination law should be symmetrical: whether it should offer the same level of protection to dominant and dominated groups. It articulates a structural inequality theory of the moral foundations of discrimination law and defends it against prominent alternatives, such as the view that discrimination is wrong because it is irrational or disrespectful. The paper then argues that while direct discrimination is symmetrical, indirect discrimination is asymmetrical. It cannot be claimed by those – men, or white persons – who are not at the sharp end of structural inequality. Furthermore, even dominated groups cannot claim to be indirectly discriminated against by just any law that has a disparate impact on them. If the structural inequality view is correct, the protectorate of discrimination law is not as extensive as is commonly assumed.

The development of indirect discrimination law in India: Slow, uncertain, and unsteady

ABSTRACT On 25 March 2021, the Supreme Court of India formally recognized the legal concept of indirect discrimination in Lt Col Nitisha v Union of India. This article uses Nitisha as a point of inflexion to study the development of Indian indirect discrimination law and Nitisha’s contribution to this development. It shows that indirect discrimination law is more complex and contested than it appears when focusing solely on Nitisha. By zooming out and considering what Nitisha adds to pre-existing law and how it has been received in subsequent judgments, the article argues for a measured view of Nitisha’s contribution and, in turn, of the state of Indian indirect discrimination law. Importantly, judicial recognition of indirect discrimination remains slow, uncertain, and unsteady. Even in the few cases where it has been recognized, the concept of indirect discrimination remains abstract and indeterminate, and questions on its adjudication remain far from resolved.

Women's Right to Terminate Marriage by Individual Will According to Saudi Family Law

The issue of protecting women's rights has garnered extensive attention from international organizations, particularly the United Nations, through a range of international covenants and agreements, most notably the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Since the provisions of these declarations and agreements mandate equality between men and women upon the dissolution of marriage and prohibit discrimination against women in ending a marriage, and given that the marriage and divorce system in Islamic societies is religious, based on the sacred texts of Islamic Sharia, Islamic countries have attempted in their national laws to grant women the right to end the marital bond in a manner consistent with international agreements on one hand, and not in conflict with Islamic Sharia on the other. This study highlights the efforts of the Kingdom of Saudi Arabia in supporting women's right to unilaterally terminate a marriage, in line with the provisions of the international agreements to which the Kingdom is a party, while also adhering to the sacred Islamic texts relevant to this context. The Saudi legislator has selected jurisprudential interpretations and explanations of Islamic texts that support this direction, avoiding strict interpretations and opinions on this issue, to balance as much as possible between the provisions of Islamic Sharia and the demands of modernity and development. This has resulted in a means that aims to establish balance upon the dissolution of a marriage. The study concluded that Saudi Arabia has made significant progress in this area, and it can ensure more rights for women by exploring non-strict religious opinions and jurisprudential interpretations.

Intersectional discrimination and EU law: Time to revisit Parris

In this article it is argued that the CJEU judgment in Parris needs to be revisited to recognise that intersectional discrimination is covered by the EU anti-discrimination Directives. There are several reasons for this. First, a prohibition of intersectional discrimination is now laid down in an EU anti-discrimination Directive (Directive, 2023/970/EC); second, this would fit in with developments in the EU Commission, Council and Parliament; third Parris turns on its own facts; fourth a purposive or capacious interpretation of these Directives already allows for such discrimination to be included in the Directives; fifth, the shift in CJEU case law towards a intra-group comparison for discrimination can make comparisons in intersectional discrimination cases easier. It is argued that without acknowledging that intersectional discrimination is covered by the EU anti-discrimination Directives, victims of such discrimination, like Mr Parris and others, like headscarf wearing women, might be left without a remedy when they suffer discrimination on a combination of grounds.

Testing the Inspirational Link between EU Citizenship and Migration Law: C-112/22 and C-223/22 CU and ND on Indirect Discrimination of Long-Term Residents

Testing the Inspirational Link between EU Citizenship and Migration Law: C-112/22 and C-223/22 CU and ND on Indirect Discrimination of Long-Term Residents

Is it time for a European Convention against Racial Profiling?

Four years after the murder of George Floyd and the global Black Lives Matter protests, racial profiling not only remains prevalent in law enforcement practices in- and outside Europe, but takes on new forms in the wake of technological developments enabling large scale data analysis and the use of algorithmic risk profiles. A few years ago, the European Court of Human Rights (ECtHR) first dealt explicitly with the issue of racial profiling in the twin cases of Basu v. Germany and Muhammad v. Switzerland. More recently, the ECtHR held in Wa Baile c. Suisse that Switzerland had violated the prohibition of discrimination by subjecting the applicant to racial profiling at Zürich train station, as part of a police action to apprehend persons without a valid residence permit. 1 While these judgments, especially in Wa Baile, go some way towards securing international State accountability for racial profiling, they also illustrate the difficulties of fighting such profiling as a form of structural discrimination under the ECHR. Meanwhile other human rights bodies, at the European and international levels, have both acknowledged the structural nature of racial profiling and published numerous policy guidelines and recommendations for positive State action to ensure non-discriminatory law enforcement. Yet, to date all of these instruments remain at the level of soft law. Despite the ECtHR's recent efforts, European human rights law thus does not impose legal obligations on States to actively prevent and combat racial profiling. This column signals this gap, and considers some of the pros and cons of adopting a European Convention against Racial Profiling.

Reducing the incidence of biased algorithmic decisions through feature importance transparency: an empirical study

ABSTRACT As firms move towards data-driven decision-making using algorithmic systems, concerns are raised regarding the lack of transparency of these systems which could have ramifications related to users’ trust and the potential for provoking discriminatory decisions. Although previous research has developed methods to improve algorithmic transparency, little empirical evidence exists regarding the extent of the effectiveness of these approaches. Drawing upon Rest’s theory of ethical decision-making and the literature on algorithmic transparency and bias, we investigate the effectiveness of feature importance (FI), a common transparency-enhancing approach, which illustrates the nature and the weights of the features utilised by an algorithm. Through an online experiment employing a fictitious tool that provided recommendations for selecting employees for a promotion-related training programme, we find that FI is effective when biased recommendations include direct discrimination (i.e. when individuals are treated less favourably on protected grounds such as gender); but is of little assistance when discrimination is indirect (i.e. when a criterion or practice that is apparently neutral, disadvantages a group of individuals who are of a protected class). Additionally, we propose a new transparency approach, using aggregated demographic information, to accompany FI in indirect discrimination circumstances and report the results of testing its effects.

Prohibition of Age Discrimination in the context of Implementation of the Constitutional Principle of Freedom of Work

Prohibition of Age Discrimination in the context of Implementation of the Constitutional Principle of Freedom of Work

Evidence of Indirect Discrimination Against Black and Indigenous Men in a Simulated Hiring Scenario

Evidence of Indirect Discrimination Against Black and Indigenous Men in a Simulated Hiring Scenario

The Poverty Discrimination Puzzle

Discrimination laws usually prohibit discrimination based on some traits, like race, caste, and sex, and not on others, like sports team allegiance. Should socioeconomic class be included among the protected traits? We examine an argument for the view that it should which leads to the conclusion that both direct and indirect socioeconomic discrimination should be prohibited by the state. The argument has three premises: (1) direct paradigmatic discrimination should be prohibited by law; (2) if direct paradigmatic discrimination should be prohibited by law, then so should direct socioeconomic discrimination; and (3) where direct discrimination based on a certain trait should be prohibited by law, so should indirect discrimination on the basis of the same trait. Since we assume most readers will accept (1), the paper is largely devoted to the defense of (2) and (3). The outlawing of direct socioeconomic discrimination would involve an adjustment of the political and legal status quo, but we argue that it should nevertheless be implemented. By contrast, a prohibition on indirect socioeconomic discrimination would require a radical change to the way in which our societies are structured, because many of our laws, policies, and practices systematically (re)produce inequality to the disproportionate detriment of the poor. Our main aim, therefore, is not to defend the prohibition of indirect socioeconomic discrimination, but to show that most people’s views about discrimination are in deep tension with their attitude to current law. Resolving this tension would require for most of us to revise our beliefs either about whether indirect socioeconomic discrimination should be prohibited or about (1)–(3). One might reject the view that law should prohibit socioeconomic discrimination and still accept this claim about a deep tension in most people’s views on discrimination.

The concept of discrimination, its forms and manifestations in accordance with the practice of the European Court of Human Rights

The paper examines the application of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits discrimination. The author highlights the absence of a clear definition of "discrimination" in the text of the Convention, which complicates its interpretation. Examples from case law, such as the "Belgian Linguistic case" and "Sidabras and Džiautas v. Lithuania", illustrate different approaches to interpretation of the concept of discrimination. The following forms of discrimination are discussed: direct, indirect, discrimination by association, and positive actions. The necessity of considering the specific circumstances of individual cases for objective and reasonable court decision to be made is emphasized. The paper describes how the European Court of Human Rights protects the rights of individuals affected by discriminatory measures or actions, particularly in the context of education, employment, religion, etc. For instance, in the "Belgian Linguistic case," the Court preferred the English version of the Convention's wording, warning against a literal interpretation of the French version that could lead to excessive prohibition of any differentiation. Additionally, the "D.H. and Others v. the Czech Republic" case illustrates the Court's approach to indirect discrimination and the importance of assessing the impact of state measures on specific groups. Positive measures, such as those highlighted in "Horváth and Kiss v. Hungary," demonstrate the Court's stance on the state's obligation to address systemic issues and provide effective protection against discrimination. The analysis underscores the broad scope of Article 14 and the role of the European Court of Human Rights in ensuring non-discrimination across various spheres.

The prohibition of discrimination and the workers’ right to maternity or paternity leave in light of the drafting history of Article 40 of the Constitution of Uganda and sections 56 and 57 of the Employment Act

Workers’ rights are provided for under Article 40 of the Constitution (1995) and in other pieces of legislation. Sections 56 and 57 of the Employment Act (2006) (the Act) provide for the rights to maternity leave and paternity leave respectively. Section 56(1) of the Act provides that ‘[a] female employee shall, as a consequence of pregnancy have the right’ to maternity leave as a result of ‘child birth or miscarriage.’ On the other hand, section 57(1) of the Act provides ‘[a] male employee shall, immediately after the delivery or miscarriage of a wife, have the right to’ paternity leave. It is evident that under section 56, for a female employee to qualify for maternity leave, she doesn’t have to be married. However, for a male employee to qualify for paternity leave, he has to be married. The reason for this is explained in the drafting history of section 57. It is argued that this amounts to discrimination on the ground of marital status. It is also argued that section 56(1) is only applicable to biological mothers and excludes adoptive mothers, commissioning parents (in cases of surrogacy) and those who have committed abortion. This is also discriminatory but could be justified in the case of commissioning parents, adoptive parents and those who have committed abortion.

An Overview of the Extent of the Powers of South African Competition Authorities in the Regulation of Price Discrimination under the Competition Act 89 of 1998 in the Context of Digital Transformation

The purpose of the Competition Act 89 of 1998 as amended (the Competition Act) is, among others, to promote the efficiency, adaptability and development of the economy as well as to provide consumers with competitive prices and product choices. In line with this purpose, the Competition Act provides that a dominant firm is prohibited from engaging in price discrimination if such conduct will likely substantially prevent or lessen competition, which would be to the detriment of consumers. Notably the Competition Act has established various bodies to regulate competition and act against any conduct prohibited by this Act in South Africa. These bodies include the Competition Commission, the Competition Tribunal, and the Competition Appeal Court. Notwithstanding the prohibition of price discrimination, the Competition Act does not expressly provide adequate enforcement tools for competition authorities to combat uncompetitive practices in the digital era. Moreover, the Competition Act does not expressly grant these statutory bodies clear roles and mandates on providing consumers with adequate and suitable redress when they have been victims of algorithmic price discrimination. With recent technological developments, electronic commerce (e-commerce), and digital transformation, consumers have become vulnerable to various challenges such as excessive pricing, data breaches and algorithmic pricing. The online and digital markets are characterised by complex transactions, innovative technologies and business practices which expose all consumers, including vulnerable consumers, to different risks. As such, the role of the competition authorities needs to be recalibrated to enhance consumer protection on the pricing of goods and services. To this end this paper seeks to investigate the role and ambit of the powers of these competition authorities in the regulation of price discrimination in the context of digital transformation and the digital economy. This is done to assess whether the competition authorities have the necessary tools of enforcement to ensure that markets are competitive and to combat uncompetitive conduct in the digital economy and online markets.

(IN)EQUALITY IN PROPERTY OWNERSHIP: THE RHETORIC OF HOMELESSNESS

Given South Africa’s shameful apartheid past, equality before the law should seep through every stratum of its society. Arguably, equality should be more of a consideration in areas where apartheid caused significant damage, such as in property relations. Yet, this is far from being the case. In this article, the authors contend that legal protection of certain categories of property is based on who the property owners are and on the value of the asset. This argument is based on a case study of the legal protection afforded to homeless people’s ownership of property.Property relations in capitalist “post”-apartheid South Africa operate and exist within a hierarchy of property interests, resulting in more protection being afforded to certain forms of property interests and less (and sometimes no) protection given to other forms of property interests. Thus, certain forms of property (“formal property”), such as immovable property, enjoy more protection than “informal property”, such as the makeshift homes of homeless people. This dichotomy is most evident in South Africa in light of the housing crisis. While the State focuses on preserving the free market, safeguarding rights over formal property, and minimising the existence of “nuisance” in urban areas, homeless people remain the most destitute people in the country. Hence, it is contended that property law does not protect homeless people and their belongings as informal property owners.Two chief arguments are made in this regard. First, it is asserted that there is an ordering of property rights protection in a capitalist society and a correlating hierarchy of property interests. Although informal property is property deserving of legal protection, it is generally deprived of such protection because it is perceived as less valuable. This article focuses primarily on homeless people’s belongings (informal property), which, it is emphasised constitutes “property” as envisaged under section 25(1) of the Constitution, and extends to the materials that shelter homeless people. Thus, law enforcement agencies’ appropriation of homeless people’s belongings constitutes an arbitrary deprivation of property. The authors posit that the tendency to prioritise “formal” property over “informal” property is arbitrary and unconstitutional.A second contention is that this difference in treatment of, and protection afforded to, informal property constitutes discrimination on the ground of poverty, which falls foul of the equality clause under section 9(3) of the Constitution, and of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The argument is made that the difference in treatment between legal protection afforded to certain property owners as opposed to others constitutes indirect unfair discrimination.

한국의 기독교 선교가 독립운동에 미친 영향

The purpose of this study was to look at the devaluation of Christianity and its alienation from the people and ask, “What is the meaning of Christianity being introduced into Korean society, and what impact has it had?”. In the process of accepting Christianity, the analysis focused on political and social situations, economic and religious situations as acceptance factors. Politically and socially, the pressure for reform and opening by Western powers, the signing of treaties, and the introduction of new systems were analyzed. In terms of the economic situation, the economic impoverishment suffered by the people of countries that failed to adapt to world historical changes and quickly accept the culture of modernization explained. In addition, referring to the suppression of Catholicism in the process of introducing Catholicism and the failure of the Catholic introduction process in the religious situation, various methods were tried and the situations in which the gospel was gradually spread were explained. It was pointed out that Christianity had a great influence on the modernization of Korea during the Enlightenment period, including the spirit of patriotism and love for the people, prohibition of discrimination between people and books, and the abolition of the caste system. In addition, the fundamental reason for the acceptance of Christianity was that it was recognized as a powerful religion that made wealth possible, and thus the gospel expanded from the powerless ruled class to the ruling class. Meanwhile, Christianity had a great influence on the March 1st Independence Movement, and the changes in the consciousness of the Joseon people due to Christian missions were examined through the establishment of independence association branches, differences in active participation, and a confession written by a nobleman. In addition, we looked into the teachings of Christianity, focusing on the subject of the independence movement, the purpose of the movement, and the methods of action in the independence movement as shown in the Declaration of Independence, and the relationship between Christianity and the role of the March 1st Movement and Christian schools. Lastly, it concludes that in the face of the decline of Christianity, which had a great influence during the turbulent times of Korean history, the Korean people need to know and learn about history.

PROTECTION OF CONSTITUTIONAL FREEDOM OF LABOR BY THE NORMS OF CRIMINAL LAW

The article is devoted to ensuring the freedom of labor of citizens enshrined in the Constitution of the Russian Federation by prohibiting discrimination in hiring and dismissal, using pregnant women, women with a child under three years of age, and persons who have reached the pre-retirement age as an example. The problem is examined from the point of view of the effectiveness of the application of articles 144.1 and 145 of the Criminal Code of the Russian Federation in relation to article 136 of the Criminal Code of the Russian Federation, which regulates the prohibition of discrimination against citizens. It is established that articles 144.1 and 145 of the Criminal Code of the Russian Federation have different labor law and historical-legal grounds. If the protection of the freedom of labor of pregnant women and women with children during their hiring and dismissal is confirmed by appropriate restrictions in labor legislation and has historical background, then criminal liability for discrimination against persons of pre-retirement age has neither historical-legal nor special labor-legal grounds. The author supports the opinion of a number of authors who believe that criminal legal protection should be equally focused on all categories of workers. The opinion is expressed that it is necessary to build a holistic state policy of countering discrimination against citizens regardless of the criterion of equality. For this purpose, it is necessary to abandon the practice of including in the Criminal Code of the RF new corpus delicti aimed at protecting the labor rights of certain categories of workers, and to give Article 136 more importance in law enforcement activities.

Conceptual Difficulties in the Transformation of Human Rights to the Realm of Artificial Intelligence

Artificial intelligence has been seeping into various fields of international law for some time, affecting fields such as international humanitarian law – especially regarding the legality of autonomous weapon systems, but also intellectual property law and the legal profession as a whole. A conflicting zone encompassing many subfields is human rights, where an already sensitive subject that is open to debates and interpretation is met with rough questions. For instance, should and could human rights norms be transferred into pre-programmed entities? What relevance can human rights have to a non-human being that has been created, programmed and assembled by humans? Vast regional differences exist between the European, African and Inter-American systems with a lack of coherent structure in the Asia-Pacific region. Our understanding of human rights has also developed substantially over the decades, especially regarding norms on slavery, free speech, the prohibition of discrimination and the rights of women, of disabled persons and indigenous peoples to name a few examples. Furthermore, a vast array of international documents on human rights are political manifestos utilising expressions such as “respecting” and “ensuring” human rights as obligations for members of the international community. Since these provisions deliberately leave a lot of room for interpretation, it seems almost an impossible task to translate them to “binary code”, to a format that is digestible for an artificial entity. The article aims to answer these questions by analysing the abovementioned line of thought and combining it with various attempts at international regulation by states, international organisations as well as non-governmental organisations and think-tanks. The fundamental focus of this paper is to ascertain whether human rights and AI can be made compatible under the current framework of international law at today’s level of development.

Ljudska prava i humanizacija izvršenja kazni u historiji Zapadnog Sibira

The purpose of the study is to compare the Prison Reform of 1879 carried out in Russia with the requirements of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations in 1955. The study was conducted on the example of the Tobolsk prison complex of the late XIX – early XX centuries, based on practically achieved results. The sources of the study were the materials of the State Archives of the Tyumen, Omsk, Tomsk regions, as well as the State Archives of the Russian Federation. The methodological basis of the study combines two approaches: modernization and civilizational, using two methods: comparative historical and actualization. The scientific novelty of the work lies in a new look at the Prison Reform of 1879 through modern European standards of the rights of prisoners. The results of the Prison Reform of 1879 were compared with the requirements of the UN on the following grounds: prohibition of discrimination, protection of religious rights, compilation of a register of prisoners, their breakdown into categories, sanitary conditions and nutrition, education, libraries, recreation, work and work of prison inspections. The comparison showed that at the turn of the XIX – XX centuries, the Tobolsk prison complex (“Prison Castle”) was an advanced penitentiary institution of that time, not only generally conforming to European standards of the mid-XX century, but partly surpassing them. The Russian government planned to extend the achieved experience to other places of detention, but the process was interrupted by the revolution of 1905-1907. The results of the study showed that in Russia, the humanization of imprisonment was based not only on the principles of utility and rationalism, but in many respects – on Orthodox ideas of mercy, therefore, initially coincided with future European standards. Meanwhile, some reform measures turned out to be premature, as they were carried out in conditions of exceptional poverty of the rest of the Russian people and the absence of the concept of “human rights” in their lives. This contradiction became one of the links in the system of socio-economic problems that eventually led Russia to revolution.

The adoption by persons with disabilities

According to Article 23 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) States Parties shall ensure the rights and responsibilities of such persons with regard to adoption of children. This article has a limited application in practice due to a traditional prejudice towards sexuality and motherhood/parenthood of these people, even proposing the adoption of their biological children. This contribution focuses on the analysis of the configuration of adoption in the aforementioned Article 23.2 CRPD, based on significant examples of Comparative Law. First, it studies the health and financial requirements for adopters, which often hide direct or indirect discrimination against the people with disabilities. Second, this paper explores the meaning of the concept of `supportˊ, which is aimed at ensuring that persons with disabilities can adopt on an equal basis with others. Third, it analyzes the scope of the expression ˊin all cases the best interests of the child shall be paramountˊ, with a view to examining whether it jeopardises the effectiveness of Article 23.2 CRPD in practice.