Pro-active protection against racialist discrimination in employment law - lessons from South Africa?

This study investigates the potential of the prohibition of indirect race discrimination to be used for law reform, and to uncover discriminatory practices. It reflects on the history and contents of the concept, and focuses in particular on its application in the Republic of South Africa

Constitutional Principles and Horizontal Effects: Kücükdeveci revisited

While German labour lawyers were still awaiting the German Constitutional Court’s final verdict on the principles established by the Mangold case, the Court of Justice of the European Union re-visited the question what exactly are the effects of Directive 2000/78 and the constitutional principle of non-discrimination on grounds of age. This article analyses the constitutional relevance of this case in two respects. First, it argues that the Court has accepted neither direct horizontal effects of directives nor direct effects of constitutional principles, but rather - much more cautiously - reiterated the rule that directives on constitutional principles such as non-discrimination can exclude the application of national legislation in horizontal cases. The article also demonstrates that this cautious approach has succeeded in convincing the German Constitutional Court that the Mangold judgment was not ultra vires. Consequently, the claim challenging that judgment was dismissed and a constitutional crisis avoided.

Organising EU non-discrimination law around the nodes of ‘race’ gender and disability?

EU non-discrimination law has seen a proliferation of discrimination grounds from 2000. Dis-crimination on grounds of gender (in the field of equal pay) and on grounds of nationality (generally within the scope of application of EU law) were the only prohibited forms of discrimination in EU law, until the Treaty of Amsterdam empowered the Community to legislate in order to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC). Proliferation of non-discrimination grounds is also characteristic for international and national non-discrimination law. As such, proliferation of grounds results in an increase in potential cases of “multiple discrimination” and the danger of diluting the demands of equality law by ever more multiplication of grounds. The hierarchy of equality, which has been so widely criticised in EU law, is a signifier of the latter danger.
This chapter proposes to structure the confusing field of non-discrimination grounds by organising them around nodes of discrimination fields. It will first reflect different ways of establishing hierarchies between grounds. This will be followed by a recount of different (narrow and wide) reading of grounds. A comprehensive reading of the grounds gender, ‘race’ and disability as establishing overlapping fields of discrimination grounds will be mapped out, with some examples for practical uses.

Age discrimination before the ECJ - Conceptual and theoretical issues

Although only addressed by EU law from 2000, age discrimination has been the theme of quite a few cases before the Court of Justice, with a high proportion decided by the Grand Chamber recently. This is due to the conceptual and theoretical challenges that a prohibition to use age as differentiating factor poses. After all, age has been an important stratifier used to synchronize life courses through welfare State regimes in Europe. Partly due to these traditions, there are stereotypes associated with old age, and young age, that in turn lead to disadvantage in employment. For the same reason, age discrimination frequently intersects with discrimination on other grounds, such as sex, race or disability. EU legislation on age discrimination has sought to accommodate the traditional role of age in employment policy by allowing wider justifications than for other forms of discrimination. This leads to contradictions within the larger field of discrimination law, which may even threaten to dilute its efficiency. This article analyses how recent case law of the Court of Justice, and in particular its Grand Chamber, deals with the theoretical challenges posed by these conflicting demands on age discrimination and on discrimination law at large.

EU Non-Discrimination Law and Intersectionality:investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

The book will be a valuable resource for researchers, academics and those working in the area of EU non-discrimination law and policy.

Enforcing Employment Discrimination Law - Potential Transplants from Italy to Britain and Vice Versa?

While substantive EU non-discrimination law has been harmonized in great detail, the enforcement regime for EU non-discrimination law consists merely of a few isolated elements. Thus, the pursuit of unity through harmonization in substantive EU law is accompanied by considerable regulatory autonomy for Member States in securing the efficiency of those laws, reflecting the diversity of national enforcement regimes, and resulting in twenty-seven different national models for enforcing discrimination law in labour markets. This article pursues two connected arguments through a comparison of rules for enforcing non-discrimination law in labour markets in Britain and Italy. First, it argues that enforcing non-discrimination law in labour markets is best achieved when responsive governance, repressive regulation and mainstreaming equality law are combined. Second, the article submits that diversity of national legal orders within the EU is not necessarily detrimental, as it offers opportunities for mutual learning across legal systems.The notion of mutual learning across systems is proposed in order to analyse the transnational migration of legal ideas within the EU. Such migration has been criticized in debates about the ‘transplantation’ of legal concepts or legal irritation through foreign legal ideas, in particular by comparative labour lawyers. However, EU harmonization policies in the field of non-discrimination law aim to impact on national labour laws. The article develops the notion of mutual learning across legal systems in order to establish conditions for transnational migration of legal ideas, and demonstrates the viability of these concepts by applying them to the field of non-discrimination law

European Union non-discrimination law and intersectionality:Investigating the triangle of racial, gender and disability discrimination

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality.

Intersectionality and the Notion of Disability in EU discrimination law

Defining the characteristics targeted by banning discrimination constitutes a central challenge for EU discrimination law, and defining disability is particular-ly challenging due to the dispute around the very concept of disability. From 2006, the Court of Justice has wrestled with this definition in six judgments, five of which were delivered from 2013. Instead of classifying the case law definition as conforming to a medical or social model of disability, this article analyses the case law with a view to illustrate challenges of defining discrimination grounds generally, demanding that a sufficiently precise and non-exclusive definition of each discrimination ground can be achieved by re-focusing EU discrimination law around the nodes of sex, race and disability. The analysis exposes that the ECJ definition of disability neither complies with the UN CRPD nor adequately responds to intersectionality theory, for example because the definition is exclu-sionary in relation to female experience of disability.

Revisiting intersectionality for EU Anti-Discrimination Law in an economic crisis –a critical legal studies perspective

This article discusses the role of EU anti-discrimination law in challenging EU anti-crisis measures from a critical legal studies perspective. Critical legal scholarship is defined through its challenge of ‘lex’ through the vision of ‘ius’ and its critical links with social movements. EU anti-discrimination law attracts critique for constituting a compartmentalised socio-legal field, which prevents justice for those at intersections of inequalities. By defining as the aim of anti-discrimination law the combat of disadvantage resulting from ascribed otherness around the nodes sex/gender, race/ethnicity, and disability, the article suggests a convincing normative vision suitable to de-compartmentalise the field and adequately address intersectionality. This critical legal perspective on intersectionality differs from its sociological counterparts by omitting class as a category. The article demonstrates that this distinction is necessary for EU anti-discrimination law to maintain its critical edge.