International Journal of Discrimination and the Law最新文献

{"title":"A continuing constitutional conversation: Locating Nitisha","authors":"Gauri Pillai","doi":"10.1177/13582291211070227","DOIUrl":"https://doi.org/10.1177/13582291211070227","url":null,"abstract":"In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gender neutral hiring procedure adopted by the Indian Army indirectly discriminated against women officers by disproportionately excluding them from promotion. This effect was experienced due to systemic discrimination against women built into the appointment criteria. To redress systemic discrimination, the State was required not only to abstain from direct or indirect discrimination but also to positively act to bring in structural change. Nitisha makes significant contributions to developing the constitutional understanding of non-discrimination. It identifies the essential nature of discrimination as systemic rather than individualistic and sets out how systemic discrimination operates and can be proved. In recognising indirect discrimination, it lays down a two-stage test to establish it. Crucially, it affirmatively holds, for the first time, that the non-discrimination guarantee can compel State action in redressing systemic discrimination. Nitisha leaves certain questions unanswered: the test for justifying indirect discrimination, the doctrinal reading of the non-discrimination guarantee and the legitimacy of using comparative law. However, seeing Nitisha as one chapter of a constitutional conversation allows us to appreciate its contributions while holding the space open for future judicial efforts at constitutional meaning-making.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"22 1","pages":"87 - 101"},"PeriodicalIF":1.1,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46469038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Indirect discrimination and substantive equality in Nitisha: Easier said than done under Indian constitutional jurisprudence","authors":"Vandita Khanna","doi":"10.1177/13582291211062363","DOIUrl":"https://doi.org/10.1177/13582291211062363","url":null,"abstract":"This note analyses the recent landmark case of Lt Col Nitisha v Union of India, dated 25 March 2021, where the Supreme Court of India formally recognised the concept of indirect discrimination under Articles 14 and 15(1) of the Indian Constitution. Despite the favourable outcome and conceptual leaps in acknowledging that indirect discrimination is closely tied to substantive equality, the reasoning in the judgment does not fully cohere with these conceptual insights. This note critically examines how Nitisha poses barriers to addressing indirect discrimination with a substantive equality lens, particularly because of an intent-based divide between direct and indirect discrimination, a causal requirement between the norm and disparate impact, adoption of mirror comparators and the lack of clarity on justifications.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"22 1","pages":"74 - 86"},"PeriodicalIF":1.1,"publicationDate":"2022-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45258682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal gender recognition in Turkey","authors":"Ulaş Sunata, Aslı Makaracı Başak, Seda Öktem Çevik","doi":"10.1177/13582291211070223","DOIUrl":"https://doi.org/10.1177/13582291211070223","url":null,"abstract":"Despite recent advances in transgender rights in European countries, some legal systems still have barriers such as obligatory diagnosis, sterilization, and medical interventions and incorporating societal acceptance and public order into their discourse. This study dealing with the regime of legal gender recognition in Turkey first reveals critical reciprocating historical developments in national legal regulations for affirming trans identities. Then, the recent conditions laid down by the 2017 Constitutional Court judgments stating that transgender people do not require permanent sterilization any more but require sex reassignment surgery for legal gender change are evaluated. Moreover, this paper explains that while the jurisprudence of the European Court of Human Rights partly reflects the current Turkish legislation, it is not a big step for transgender rights. The findings also underline that the new Turkish regulations appear reformist but are indeed strong measures for legal consistency to solve the dilemma in the previous period in order to maintain the status quo.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"22 1","pages":"56 - 73"},"PeriodicalIF":1.1,"publicationDate":"2022-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45775317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Winter 2021","authors":"N. Busby, Grace James","doi":"10.1177/13582291211060088","DOIUrl":"https://doi.org/10.1177/13582291211060088","url":null,"abstract":"","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"21 1","pages":"311 - 312"},"PeriodicalIF":1.1,"publicationDate":"2021-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49260273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rien que des mots: Counteracting homophobic speech in European and U.S. law","authors":"Natalie Alkiviadou, U. Belavusau","doi":"10.1177/13582291211043420","DOIUrl":"https://doi.org/10.1177/13582291211043420","url":null,"abstract":"Adopting a comparative perspective, this article examines legal means and practices of challenging homophobic speech in European and U.S. law. This exercise revolves around the study of major cases concerning homophobic speech from the law of the European Court of Human Rights and broader legal framework within the Council of Europe (the CoE), the Court of Justice of the European Union (EU) as well as the United States Supreme Court (along with a broader scrutiny of U.S. law in comparative perspective with European (CoE and EU law) in recent years. The article concludes that the concepts of (1) hate speech (in constitutional, administrative and criminal settings) (2) direct discrimination and (3) harassment (in labour and anti-discrimination law) will be central in the strategic litigation of LGBT organizations seeking to redress the climate of homophobia via various legal avenues in both Europe and the U.S. While in the settings of European law, all three concepts – depending on the context – can benefit victims of homophobia in their judicial redress, U.S. law offers coherent protection in its employment law framework, even though this remains in need of further strengthening.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"21 1","pages":"374 - 400"},"PeriodicalIF":1.1,"publicationDate":"2021-10-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47820026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Combating workplace discrimination on the basis of HIV status through disability law in Zambia","authors":"Dumisani J Ngoma","doi":"10.1177/13582291211043416","DOIUrl":"https://doi.org/10.1177/13582291211043416","url":null,"abstract":"Zambia has within the last two decades enacted several pieces of legislation aimed at enhancing equality in the labour market and the workplace. However, despite being one of the countries that has been severely devastated by the HIV/AIDS pandemic, Zambia does not yet have specific legislation targeted at HIV-related stigma and discrimination in the labour market and workplace. Apart from the general prohibitions against discrimination on the basis of health or social status, it remains to be seen whether concepts such as reasonable accommodation have a place in the fight against discrimination and stigma of HIV/AIDS in the Zambian workplace. The purpose of this article is not to argue for the enactment of HIV/AIDS specific legislation in Zambia but to instead argue that despite the absence of such legislation, HIV/AIDS discrimination and stigma can be addressed within the context of the Country’s existing disability discrimination law. The arguments advanced in this article are considered largely within the context of the Zambian High Court case of Stanley Kingaipe & Another v The Attorney General.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"22 1","pages":"30 - 55"},"PeriodicalIF":1.1,"publicationDate":"2021-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41437961","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LGBT Employment Nondiscrimination and Capital Structure","authors":"Xiaoli Hu, Li Huang, Oliver Zhen Li, Zilong Zhang","doi":"10.2139/ssrn.3754114","DOIUrl":"https://doi.org/10.2139/ssrn.3754114","url":null,"abstract":"Workplace equality is an important and integral component of firms’ corporate social responsibility. We argue that firms need to expend substantial resources to mitigate potential LGBT litigation risk or accommodate actual litigation costs, and absorb labor adjustment costs associated with voluntarily adopted or legally imposed LGBT nondiscrimination, leading to a downward adjustment in financial leverage in equilibrium. Consistently, we find a negative association between firms’ Corporate Equality Index scores and financial leverage. To sharpen causality, we use a difference-in-differences design that relies on staggered passages of state LGBT employment nondiscrimination laws. After ensuring exogeneity of these state laws, we show that firms respond to their passages with a reduction in financial leverage. This effect is more pronounced in firms that are labor intensive, prone to mass layoffs, having experienced past LGBT lawsuits, and financially distressed. Affected firms also experience elevated operating leverage and loan spread. We conclude that firms adjust capital structure to accommodate the cost associated with LGBT employment nondiscrimination.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"43 1","pages":""},"PeriodicalIF":1.1,"publicationDate":"2021-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73450922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Access to justice for Nigerian women: A veritable tool to achieving sustainable development","authors":"Olaitan O Olusegun, Olatunji S Oyelade","doi":"10.1177/13582291211043418","DOIUrl":"https://doi.org/10.1177/13582291211043418","url":null,"abstract":"Access to justice promotes the achievement of sustainable development as it promotes the participation of citizens of a country, reduces poverty, increases the productivity of persons and strengthens the peace and development of nations. In Nigeria, however, most women are deprived of justice in several ways. Using the doctrinal method of study, this article examines the concept of access to justice and its importance to the achievement of sustainable development in Nigeria. Sustainable Development Goals (SDGs) five and 16 are discussed as well as the various ways in which women are deprived of justice and barriers to such access. The study discovers that women have limited access to justice as a result of challenges plaguing Nigeria’s justice system. The study concludes that urgent steps must be taken to solve these challenges so that the SDGs will stand a better chance of being achieved by 2030.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"22 1","pages":"4 - 29"},"PeriodicalIF":1.1,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44599713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role of Law and Myth in Creating a Workplace that 'Looks Like America'","authors":"Susan Bisom-Rapp","doi":"10.2139/ssrn.3924718","DOIUrl":"https://doi.org/10.2139/ssrn.3924718","url":null,"abstract":"Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring that employers embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful blindness prevents the admission that some policies and programming, although not all, harm those most in need of protection. This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in anti-discrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This article argues that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: 1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; 2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and 3) new social science research on those organizational efforts most likely to succeed and those most likely to prompt backlash. To facilitate evidence-based EEO compliance, this article advocates changes in liability standards. Also recommended is the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the article suggests lawyers more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias free American workplaces.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"6 1","pages":""},"PeriodicalIF":1.1,"publicationDate":"2021-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80268718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious freedom and the right against religious discrimination: Democracy as the missing link","authors":"M. Hunter-Henin","doi":"10.1177/13582291211043421","DOIUrl":"https://doi.org/10.1177/13582291211043421","url":null,"abstract":"The article puts forward a novel democratic framework to rethink the relationships between religious freedom and religious discrimination. First, it makes a case for a unifying normative basis for all religious interests grounded in a democratic framework, which emphasises the dual dimension of religious interests, both as negative rights protecting individual autonomy against interferences as well as positive rights of participation. Second, it builds upon this democratic framework to revisit the relationships between discrimination law and religious freedom and guard against trends to subject discrimination law claims to preliminary (higher) thresholds. Third, the article examines how contextual balancing exercises between competing interests should (and to a large extent have) become a key unifying feature of both routes and draws from the democratic framework insights as to how these balancing exercises should be carried out.","PeriodicalId":42250,"journal":{"name":"International Journal of Discrimination and the Law","volume":"21 1","pages":"357 - 373"},"PeriodicalIF":1.1,"publicationDate":"2021-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48958237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}