From Racism to Equality

7 October 2007 Karon Monaghan

The Present Anti Discrimination Scheme Absence of underpinning and unifying

principle or purpose

Focus on likeness of treatment

Assimilationist model

Complex

Entrenching stereotypes (‘same, or not materially different’ ‘relevant circumstances’)

The significance of disadvantage

Mono characteristic model

Individualised wrongs

Pay and occupational segregation

Positive action

Compensation and other individualised remedies

Inadequacy of ‘recommendations’ and absence of collective remedies

‘Bureaucratic/process driven statutory duties

Limited Commission powers

Other Jurisdictions

Two broad models

Closed and formal equality model

Open textured and substantive equality model

Closed and formal equality model

U.K., New Zealand, Australia, IrelandAdvantages

Certainty PrecisionClearly rights based

Open textured and substantive equality modelSouth Africa, CanadaAdvantages

Dignity thresholdAddresses disadvantageOutcome focussed

South Africa – Article 9Article 9 – a broad equality guarantee

Focus on “unfair” discrimination, and disadvantage and dignity

Remedial measures a requirement of Article 9

Promotion of Equality & Prevention of Unfair Discrimination Act 2000 Identifying the purpose of equality law:“This Act endeavours to facilitate the transition to a

democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.”

Disadvantage/unfairness and Affirmative action

Duty to Promote and achieve equality (substance and form)

Remedies

Declaratory, Compensation, Injunctions

Specific performance

Implementation of special measures/reasonable accommodation

Apologies

Audits

Deterrent orders

Progress Reports

Employment Equity Act

to ‘achieve equity …’ by ‘promoting equal opportunity and fair treatment …. through the elimination of unfair discrimination and implementing affirmative action measures’

Labour inspectors/compliance notices and Labour Courts

Commissions

Human Rights Commission

Commission on Employment Equity

CanadaSection 15 of the Charter of Rights and Freedoms

The amelioration of conditions of disadvantage (s.15(1) and (2))

Dignity

Human Rights Act 1977 “to give effect …to the principle that all

individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered or prevented from doing so by discriminatory practices…”

Unlawful discriminatory acts (employment, goods and services etc)

Disadvantage (s.16)

The Commission on Human Rights

Complaints to the CommissionCommission initiated complaintsInvestigation by the CommissionConciliation and mediation

Human Rights Tribunal

Commission initiatedInquisitorialInjunctionsSpecific performance

Special Programmes and Plans

Compensation

Employment Equity Act 1995

• “to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by [certain groups].. ………..

• …and by giving effect to the principle that employment equity means more than treating people in the same way but also requires special measures and the accommodation of difference.”

Duties to audit policies and eliminate barriers

Institute positive policies and making reasonable accommodations as will ensure fair representation

Employment Equity Plans

Reporting obligations (Human Rights Commission)

Human Rights Commission – persuasion, negotiation non compliance notices

Employment Equality Review TribunalsFailure to comply with duties under the

ActHuman Rights TribunalReferences from employers and Human

Rights Commission

Financial penalties ($50k max)

Confirm an HRC direction

Make any order “appropriate and reasonable” to remedy non compliance

Remedying discrimination and disadvantageDignity and DisadvantageTackling collective disadvantage and

respecting civil rightsSharing responsibility for remedial actionIndividual remedies and collective

measures

The Discrimination Law and Equalities Review‘assess how our anti-discrimination legislation

can be modernised to fit the needs of Britain in the 21st Century. This work will consider the approaches that are effective in eradicating remaining discrimination but avoid imposing unnecessary, bureaucratic burdens on business and public services’

• ‘A root and branch review to investigate the causes of persistent discrimination

and inequality in British society’.