Disability and the labour market : an analysis of British males

This paper attempts, using data from the British Labour Force Survey 1996, to examine to what extent differences in labour market outcomes between able-bodied and disabled men may be attributed to differences in endowments of human capital and associated productivity differences. Both labour force participation and selectivity corrected human capital equations are estimated and decomposition techniques applied to them. Using the methodology of Baldwin and Johnson [Baldwin, M., Johnson, W.G., 1994. Labor market discrimination against men with disabilities. Journal of Human Resources, XXIX(1), Winter, 1–19], the employment effects of wage discrimination against the disabled are also estimated. Evidence of both substantial wage and participation rate differences between able-bodied and disabled men are found, which have implications for the operation of the 1995 Disability Discrimination Act.

Has EU Equality Law Gone Too Far?

This chapter considers whether EU equality law has gone too far, or not far enough, in seeking to regulate for equality. I argue that EU law in some respects has not gone far enough, whilst in other respects there is a danger that it may go too far.

Proportionality in Age Discrimination Cases - a Model Suitable for Socially Embedded Rights

This chapter discusses the use of proportionality in age discrimination cases before the Court of Justice of the European Union. It argues that the Court does not use this concept systematically - indeed it exposes some contradiction that make the case law seem arbitrary - and proposes a more fruitful use of the principle, which is in line with a modern conception of human rights. The chapter argues that the principle of proportionality stems from the time when human rights served the recently liberated burgeois elite in guarding their rights to property and liberty against the state. Today, states not only respect human rights (which is fully sufficient for this elite, who can rely on their inherited wealth to fend for themselves). They also protect and promote human rights, and these activities are a precondition for human rights to be practically relevant for the whole population. This also means that state activity, which is experienced as a limitation of rights to property and liberty by some, may constitute a measure to promote and protect human rights of others. In employment law - the only field where the EU ban on age discrimination is applied - this is a typical situation. If such a situation occurs, the principle of proportionality must be applied in a bifurcated way.It is not sufficient that the limitation of property rights is proportionate for the achievement of a public policy aim. If the aim of public policy is to enable the effective use of human rights, the limitation of the state action must be proportionate to the protection and promotion of those human rights. It is argued that the principle of proportionality is superior to less structures balancing acts (e.g. the Wednesbury principle), if it is applied both ways. Going over to the field of age discrimination, the chapter identifies a number of potentially colliding aims pursued in this field. Banning age discrimination may relate to genuine aims of anti-discrimination law if bias against older or very young workers is addressed. However, the EU ban of discrimination against all ages also serves to restructure employment law and policy to the age of flexibilisation, replacing the synchronisation principle that has been predominant for the welfare states of the 20th century. The former aim is related to human rights protection, while the latter aim is not (at least not always). This has consequences for applying the proportionality test. The chapter proposes different ways to argue the most difficult age discrimination cases, where anti-discrimination rationales and flexibilisation rationales clash

Broadening the Scope and the Norms of EU Gender Equality Law: Towards a Multidimensional Conception of Equality Law

The aim of this article is to discuss some consequences of placing the combating of discrimination and the promotion of equality among the principles of Community law. The focus is firstly on the ensuing widening of the scope of EU (gender) equality law and secondly on the increase of grounds of forbidden discrimination. In concluding, steps towards a multidimensional conception of equality law are proposed.

Differenzierte Gerechtigkeit: Diskriminierungsschutz und Vertragsrecht

The theme of this book is the perceived tensions between contract law's principle of private autonomy and non-discrimination law. I first analyse the notion of discrimination, and specify that I restrict the investigation to ascribed difference,more specifically to perceived race/ethnicty, sex/gender and disability. Based on an analysis of the aims of non-discrimination law which extends onto markets, I then presented potential structures of non-discrimination clauses addressing market inequalities. Turning to a doctrinal investigation of German contract law and its position towards discrimination on grounds, I first investigated whether international law, EU law or the German constitution form a stable base for contractual non-discrimination law. Having concluded that these bodies of law require some protection against discrimination based on ascribed difference, but that contract law needs to provide its own specification, I then offer a very short comparative chapter on British and Dutch non-discrimination law (I guess I have developed quite a bit in this field since then!). Finally, I analyse in how far German courts have offered protection against discrimination on markets in the past, and which position the doctrine has taken. From page 290, I finally offer a conceptual, paradigmatic and principled proposal of how to integrate a principle of non-discrimination into German contract law. To my own surprise, this was later endorsed by one of the "doyens" of German contract law, Professor Canaris. In any case, you can see from my edited collection of 2011, that I am still fascinated by discrimination on grounds of race/ethnicity, sex/gender and disability.

Sex equality law after Kalanke and Marschall

In Marschall, the ECJ looked for the second time into the admissibility of positive action in German public services; a third reference on this issue is still pending.
Despite the Court’s positive response to the ‘women’s quota’ in Marschall, its application in Germany remains controversial. This article tries to shed some light on the specific conditions under which women’s quotas were implemented in Germany and on the different approaches to anti-discrimination, indirect discrimination law and structural discrimination, which underlie efforts to justify women’s quotas against equality standards derived from EC Law.

La discrimination génétique dans l'emploi : une étude des protections offertes par les chartes canadiennes et québécoise

"Mémoire présenté à la Faculté des études supérieures en vue de l'obtention du grade de maître en droit option Droit des biotechnologies". Ce mémoire a été accepté à l'unanimité et classé parmi les 10% des mémoires de la discipline.

Collecting disability data from parents

This article describes the development and national trial of a methodology for collecting disability data directly from parents, enabling schools and local authorities to meet their obligations under the Disability Discrimination Act (DDA; 2005) to promote equality of opportunity for all children. It illustrates the complexities around collecting this information and also highlights the dangers of assuming that special educational needs (SENs) equate to disability. The parental survey revealed children with medical and mental health needs, but no SENs, who were unknown to schools. It also revealed children with a recorded SEN whose parents did not consider that they had a disability in line with the DDA definition. It identified a number of children whose disability leads to absences from school, making them vulnerable to underachievement. These findings highlight the importance of having appropriate tools with which to collect these data and developing procedures to support their effective use. We also draw attention to the contextual nature of children’s difficulties and the importance of retaining and respecting the place of subjective information. This is central to adopting a definition of disability that hinges on experience or impact.

Testing of disability identification tool for schools

There has been an ongoing concern about the lack of reliable data on disabled children in schools. To date there has been no consistent way of identifying and categorising disabilities. Schools in England are currentlyrequired to collect data on children with Special Educational Need (SEN), but this does not capture information about all disabled children. The lack of this information may seriously restrict capacity at all levels of policy and practice to understand and respond to the needs of disabled children and their families in line with Disability Discrimination Act (2005) and the single Equality Act (2010). The aim of the project was to test the draft tools for identifying disability and accompanying guidance in a sample of all types of maintained schools in order to assess their usability and reliability and whether they resulted in the generation of robust and consistent data that could reliably inform school returns for the annual School Census.

Disability data collection for children's services

Schools need to identify disabled pupils in accordance with their Disability Equality Duty. This research assisted in the development of suitable tools to allow them to identify disabled children in accordance with the definition set out in the Disability Discrimination Act (DDA) by surveying parents and, via the use of purpose-designed activities, the children themselves.

Allegations of unlawful discrimination in education: parents taking their fight for Auslan to the courts

This paper examines the use of the Disability Discrimination Act (Commonwealth of Australia, 1992) by parents seeking access for their deaf children to native sign language in the classroom. It reviews a number of cases in which Australian parents have claimed indirect discrimination by educational authorities over their children's lack of access to instruction through Australian Sign Language (Auslan) and discusses the outcomes of such litigation. The policies endorsed by deafness organizations are contrasted with those of state educational authorities. The author discusses the limitations of a complaints-based system to address systemic discrimination and suggests the need for legislation to protect the linguistic rights of deaf children.

Educational enrolment of students with a disability in New South Wales and Victoria

The extent to which legislation and special education policy have impacted on the nature of the educational enrolment of students with a disability in Australia has not been clearly addressed. Although there are no detailed and systematic national data on the enrolment of students with a disability in inclusive settings, special classes and special schools in Australia, some broad trends are apparent. The legislative background to these trends is discussed. As might be expected, there are variations in the nature of the educational enrolment of students with a disability across the states and territories of Australia. Enrolment trends in the two most populous states, New South Wales and Victoria, are examined and discussed within the context of their respective special education policies, disability discrimination legislation, and educational precedent.

Beyond compliance: ACE and the disability standards for education in 2005.

The Disability Standards for Education 2005 make it unlawful for an education authority to discriminate against a person on the grounds of the person's disability, and providers of adult and community education (ACE) are specifically noted as education authorities in the Standards. Most ACE providers, working as they do from a community development basis, would consider themselves to be non-discriminatory. The devil, nevertheless, is in the detail, and it is one particular detail of the Standards that this article considers – Part 7: Standards for student support services. Research has indicated that this is an area with which ACE providers are likely to have problems. This article looks firstly at the place of people with a disability in ACE, and then at some of the provisions of the Standards as they relate to student support. Evidence to support the discussion is taken from three research projects into ACE provision for people with a disability. These studies are outlined before the author moves on to some of the issues indicated in the research. Further, some suggestions are made for compliance, and the need for ACE providers to go beyond compliance and consider advocacy to support the inclusion of people with a disability into ACE.