Anti-Discrimination
Law Review

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The journal is a scholarly independent and non-partisan publication. It does not promote any particular ideology or interests of any institutions, be they public or private bodies, as regards equality issues. It is concerned mostly with the existing legal regulations, proposed legislation or constitutional amendments, as well as with case law. The journal also publishes social sciences research (e.g. in political sciences, international relations, anthropology), as long as it is interdisciplinary and has a significant connection with existing or planned legal regulations or jurisprudence.

The journal is published in English.

Its Editorial Board consists of leading Polish scholars, who have both academic and practical experience in this field of law, including the Editor-in-chief Professor Andrzej Wróbel – the head of the Department of European Law at the Institute of Law Studies of the Polish Academy of Sciences and judge of the Constitutional Court of Poland. However, the sphere of interest of the journal is not limited to Poland or Europe. Through its international advisory board, through its selection of contributors and reviewers, the journal aims at participating in the worldwide discussion concerning equality law and examining the impact of global trends in this field.

The journal is the forum for discussion on current developments in the field of equality and anti-discrimination law. It focuses, in particular, on the case law of the European Court of Human Rights and the Court of Justice of the European Union, national courts’ resolutions to discrimination-related issues, and the impact of supranational institutions on national bodies. The main subject-matters covered in the journal vary depending on the current developments in legal scholarship and jurisprudence. At present, the journal focuses especially on the horizontal effect of the principle of equality and legal instruments aimed at ensuring thereof, problems related to equal treatment of persons with disabilities, the interrelations between the principle of equality and freedom of religion in modern multicultural democratic society and the understanding of the principle of equality in context of social and economic rights.
The journal is addressed to scholars and practitioners – judges, prosecutors, attorneys, civil society activists, policy-makers and governmental officials (including members of equality bodies and ombudsperson institutions). It will be published by Wolters Kluwer SA – the Polish branch of Wolters Kluwer in cooperation with the Institute of Law Studies of the Polish Academy of Sciences.

Anti-Discrimination Law Review

Anti-Discrimination Law Review

The Anti-Discrimination Law Review is a legal journal, publishing high-quality, peer-reviewed research on global, European and national developments in the field of anti-discrimination and equality law. The journal is committed to deepening the knowledge of anti-discrimination and equality law; pondering theoretical understanding of different legal concepts employed in this discipline of law as well as dealing with methodological approaches applied in legislation and jurisprudence. It provides space for refinement of the key ideas in this still emerging and developing field of law.

Contact Us

For more information on the journal contact the Editorial Board

For more information on the journal contact the Editorial Board

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Wolters Kluwer Polska Sp. z o.o.
ul. Przyokopowa 33
01-208 Warszawa
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Information for Authors

The Anti-Discrimination Law Review welcomes contributions from scholars from all around the world.

Contributions can be submitted to all sections of the journal: articles, case comments, book and reports reviews and current developments. Articles should normally range from 6,000 to 10,000 words in length, including footnotes, and should include a 200-word (maximum) abstract. Contributions to other sections should range from 2,000 to 6,000 words. Case comments should be clearly divided into parts including factual and legal background of the case, summary of the decision and comments. Articles should be divided into sections indicated with concise headings.

Contributions should be in Microsoft Word format to enable comments and edition. They should include contact information for all authors and a statement that the manuscript has not been published, and is not currently considered or accepted for publication elsewhere.

For more information on the journal contact the Editorial Board.

Editorial Team

Editorial Committee

Adam Bodnar, Commissioner for Human Rights, Poland, University of Warsaw

Monika Domańska, Polish Academy of Sciences

Aleksandra Gliszczyńska-Grabias, Polish Academy of Sciences

Barbara Grabowska-Moroz, University of Warsaw

Justyna Łacny, Polish Academy of Sciences

Ada Paprocka, Polish Academy of Sciences

Sylwia Spurek, Deputy Commissioner for Human Rights, Poland

Mirosław Wróblewski, Commissioner for Human Rights Office, Poland

 

 

 

 

Editorial Board

Monika Domańska

Maciej Kułak, Editorial Assistant

Justyna Łacny

Anna Śledzińska-Simon

Krzysztof Śmiszek, Managing Editor

Andrzej Wróbel, Editor-in-Chief


Statistical editor
Jan Czempas, University of Economics in Katowice

 

 

 

 

ADLRev 1/2018

Margaret Thornton

Social status: the last bastion of discrimination

Despite the increasing inequality between rich and poor, there is resistance towards proscribing discrimination on the basis of socioeconomic status. This resistance is marked in Anglophone countries, namely, Australia, New Zealand, Canada, the UK, the US, and South Africa, countries that are located in the high inequality/low mobility extreme in terms of socioeconomic status. This article argues that the resistance is associated with the embrace of neoliberalism, a political value system that extols the free market, individualism and profit maximisation. The commitment to competition policy necessarily produces inequality in contradistinction to equality, which informs the philosophical underpinnings of anti-discrimination legislation. Even in the comparatively few jurisdictions where legislation on the basis of social status or a cognate attribute exists, the legislative model is restrictive and the number of complaints minuscule. Most notably, an overview of the Anglophone countries reveals that there is a dearth of complaints involving national and multinational corporations, the primary wealth creators of the neoliberal state that are also major employers. Although employment generally gives rise to the preponderance of discrimination complaints on grounds such as race and sex, it is suggested that the resistance to social status discrimination serves to protect private corporations from scrutiny.
This is an original manuscript. It has not been published elsewhere and is not
currently under consideration or accepted for publication elsewhere.

Anna Zawidzka-Łojek

Retirement age of Polish judges in the light of European Union anti-discrimination law

Although the organization of the judicial system is the competence of the Member States, this competence, like other competences of the Member States acting within the scope of European Union law, should be exercised in accordance with this law, in particular with the principle of equality. The considerations in this article focus on recent amendments to the Polish legislation regarding judges’ retirement age. The rules that lowered and differentiated the retirement age will be assessed in the light of EU
anti-discrimination law, in particular EU regulations regarding the principle of equal treatment on grounds of sex and the principles of non-discrimination on grounds of age. Whilst assessing said provisions, one should take into account the particularity of judges’ functions related to the constitutional principle of the irremovability of judges and the need to ensure their independence and impartiality. This paper also touches upon the question of compliance with EU anti-discrimination law of the regulations that reversed the reform whereby general retirement age was equalised and the possible justification for these regulations. It does not refer to the retirement age of judges in the context of the principle of irremovability of judges and independence of the judiciary as part of the principle of effective judicial protection and the rule of law in
the light of Article 2 of the Treaty on European Union (TEU), Article 19(1) TEU, and Article 47 of the Charter of Fundamental Rights of the European Union (CFREU).

János Fiala-Butora, András L. Pap, Anna Śledzińska-Simon

„Intimate citizenship” and illiberalism: lessons from Hungary, Poland, and Slovakia

Populist Backlashes, Disenchantment and the Raise of Illiberalism

Populist rhetoric questioning the validity and sustainability of the post-WW2 liberal consensus on human rights and constitutionalism seems to be on the rise in the Western world. The emergence of this New Populism follows the concept, ideology, and Zeitgeist of disenchantment that has both economic and cultural roots. On the one hand, growing economic inequality and instability, and on the other hand, cultural backlash against modernity and progressive
values may contribute to this phenomenon, which transforms the traditional division between left and right into an ideological cleavage between populists and cosmopolitan liberals. Although populism offers multiple operationalizing strategies both for right- and left-wing leaders in their contestation of the existing establishment, it primarily serves neoconservative social movements to attack neoliberal policies or even state institutions such as constitutional courts. Characteristically, illiberal populism may be initiated by bottom-up civic groups, political elites, or the government. It can serve as a tool for political mobilization of nationalist groups against various ‘isms’: multiculturalism, modernism, or even secularism. In Eastern and Central Europe it becomes a discursive framework for building constitutional identity and a model of illiberal democracy. What they share is challenging the legitimacy of liberal democracy.
Characteristically, the defining feature of populism motivated by disenchantment is that it is not accompanied by new grand narratives such as Marxism, Socialism, Communism, Fascism, or Nazism. Rather, disenchanted illiberalism is very similar to how Eric Hobsbawm saw nationalism in the 20th century: it is a substitute, a placebo for disorientation, and a surrogate for integration in a disintegrating society; when society fails, the nation appears as an ultimate guarantee. 

Kevin Grigsby

A battle for equality: same-sex marriage in Colombia

Introduction

On 28 April 2016 the Constitutional Court of Columbia, by 6 to 3 vote, gave same-sex couples the right to enter into legally recognized marriages with individuals of their choosing, regardless of gender. In its lengthy opinion, the Constitutional Court examined its past jurisprudence relating to homosexuals and the marital rights of same-sex couples in addition to conducting a comparative examination of those same rights in various nations across the globe. In reaching its conclusion that the marriage regime was unconstitutional
as it existed, the Constitutional Court emphasized principles of human dignity, autonomy, and equality.
After a brief look at the historical backdrop, this essay will explore the constitutional context that led the Constitutional Court to ultimately recognize marriage as a fundamental right worthy of enjoyment by all. Highlighting the principles of human dignity, autonomy, and equality, the judgment will be examined in the light of similar contemporary decisions in Europe, North America, and Africa.

Erica Howard

Moving hate speech to the civil courts

This article examines whether hate speech against vulnerable groups can be challenged under anti-discrimination measures. It is argued that criminal laws against hate speech have a number of disadvantages; and, that, therefore, alternative ways of dealing with hate speech need to be found. A possible alternative could be found in anti-discrimination laws, which generally contain civil remedies. This article analyses whether anti-discrimination provisions in the ECHR and in EU law can be used against the speaker or author of hate speech. Hate speech can involve two fundamental human rights: the right to freedom of expression and the right to be free from discrimination.
Both these rights and the possible conflict between the two are part of the discussion in this article. The conclusion is that the EU anti-discrimination directives do provide an alternative and better way of challenging hate speech.

Katie Morris, Joanna Szymanska

Countering hate speech against LGBT people: challenges to pluralism and the promotion of freedom of expression in Eastern Europe and Central Asia

‘Freedom of expression and equality are foundational rights, whose realisation is essential for the enjoyment and protection of all human rights. They are also mutually supporting and reinforcing human rights. It is only when coordinated and focused action is taken to promote both freedom of expression and equality that either can effectively be realised.’

This article presents policy and programmatic work conducted by ARTICLE 19, an international NGO working to promote freedom of expression. It is based on: (a) ARTICLE 19’s interpretation 2 of state obligations under the ICCPR for promoting inclusion, diversity, and pluralism; and (b) research into the compliance of Belarus’, Kyrgyzstan’s, Moldova’s, Russia’s, and Ukraine’s legislative and policy frameworks with these standards, focused on responses to hate speech towards lesbian, gay, bisexual and transgender (LGBT) people. It starts from the premise that this will only be achieved when the rights to equality and non-discrimination, and the right to freedom of expression are properly protected, as the basis for other positive measures to be taken. One
of the common arguments is that freedom of expression and equality are in conflict.
This article argues that freedom of expression and equality are mutually supporting and reinforcing human rights, and that the promotion of both is necessary to tackle discrimination and prejudice.

Lina Papadopoulou

Book Review
Angioletta Sperti, Constitutional Courts, Gay Rights and Sexual Orientation Equality (Hart Publishing, 2017, 220 p + xxviii, ISBN 978-178225-642-7).
Review by Lina Papadopoulou

Introduction
Angioletta Sperti’s recent monograph Constitutional Courts, Gay Rights and Sexual Orientation Equality focuses on homosexuals’ rights, based mainly on the principle of equal dignity; rights which were recognised by the courts in the last quarter or so of the 20 th century following societal developments. During this period, an unprecedented number of cases involving homosexuals’ rights were brought before the courts, giving rise to a series of judicial decisions on this multifaceted issue, based on a legal, especially constitutional, perspective. The book therefore combines insights on both the procedural part of the author’s research, that is to say, the ways in which constitutional courts adjudicate on socially sensitive legal issues such as gay rights, and also the substantive part, which is sexual orientation equality. It is hard to say whether the author’s primary aim was to deal with the former or the latter, as her book contains equally interesting insights on both fields of legal inquiry.

ADLRev 2/2017

Valeska David

The Inter-American concept of structural equality and discrimination

This paper traces the normative trajectory of one of the most remarkable mile-stones of anti-discrimination law within the Inter-American system of human rights, that is the adoption of a ‘structural’ conception of equality and discrimination. Against the background of other interpretations of equality and the particular regional context, the paper first explores the development of structural equality and its normative implications. These concern, inter alia, indirect and de facto discrimination, vulnerability and stereotypes, intersectionality, discrimination based on poverty and the use of ‘structural discrimination’ as an enforceable legal category. The paper then problematises these normative developments, exploring blind spots and inquiring whether structural equality is truly interrogating structures in individual cases. It is submitted that in order to unfold the potential of structural equality and non-discrimination, the Inter-American Court should be careful not to overemphasise group characteristics when scrutinising allegations of discrimination. Otherwise, social structures and institutions, the roots of inequality, may go overlooked. The analysis relies on a number of reports and rulings by the Commission and the Court from the mid-nineties to present times.

Pekka Pohjankoski

UN Disability Convention through the prism of EU law: boosting human rights but blurring responsibilities?

The EU’s conclusion of the UN Convention on the Rights of Persons with Disabilities is a major event in terms of both the protection of human rights within the Union and their promotion globally. This article explores how the UN Disability Convention’s obligations are to be understood in terms of EU law. The comprehensive nature of the UN Disability Convention required the joint participation of the Union and its Member States for its conclusion, bringing the complexities of the so-called ‘mixed’ agreements into the sphere of human rights protection within the EU. With this in mind, the EU has taken measures to clarify to external observers the respective competences of the Union and its Member States. As for the substantive content of the UN Disability Convention, the EU legislature has taken note of the obligations that are incumbent upon it and the EU judiciary has made relatively frequent use of this treaty in interpreting EU acts. The reporting and monitoring mechanisms of the UN Disability Convention, as with other international human rights treaties, play an important role in the enforcement of the rights and obligations it provides. However, the EU has not, as yet, acceded to the Optional Protocol to the UN Disability Convention, which establishes an individual complaints mechanism. All in all, while progress with regard to the rights of persons with disabilities within the EU is being made, effective implementation remains a complex exercise.

Atina Krajewska

Wearing genes at work: do we care about genetic discrimination in employment?

Rapid advances in genetics and genomics in recent decades have allowed scientists to develop diagnostic techniques that can, with increasing accuracy, estimate the probability that people will develop, or not, certain illnesses. The ability to predict future health of individuals would bring numerous advantages to employers and insurers. However, the possibility of discrimination on the basis of genetic information is greatly feared by the international community and different societies across the globe. While there is extensive commentary on the subject of genetic discrimination in insurance, the problem of genetic discrimination in employment remains relatively understudied. This article addresses the gap in current literature and has three further aims. First, its objective is to determine whether the fear of litigation expressed by employers is warranted in light of the current legal regulation of genetic testing in the US, UK, and EU law. As such, it analyses the three main regulatory approaches to the use of genetic data in the workplace. Second, drawing on international law and domestic legal systems the article aims to analyse the existing provisions and remaining points of uncertainty. Finally, it proposes the directions for future research necessary for the comprehensive understanding of the use of genetic data by employers.

Mathias Möschel

Litigating anti-discrimination cases in Germany: what role for collective actors?

This paper argues that the role of collective actors in Germany in litigating an-ti-discrimination cases and in influencing the interpretation of EU law in this domain via the mechanism of references for a preliminary ruling to the CJEU has been very limited and at best indirect. The reasons are that due to the resistance from (mainstream) legal academia and also to economic actors a rather restrictive legal framework was reluctantly set up in Germany in 2006, which implemented the EU anti-discrimination directives in a rather minimalist way.

Alina Tryfonidou

Another failed opportunity for the effective protection of the rights of same-sex couples under EU law: Parris v Trinity College Dublin and Others

Introduction

What happens when the interplay of a seemingly neutral rule of an occupational pension scheme and a Member State’s decision to afford legal recognition to same-sex relationships only after a certain date lead to a situation whereby LGB persons who are above a certain age are disadvantaged? Is this considered a breach of EU law?
The European Court of Justice (ECJ) was recently called on to consider this issue in the Parris case,  which was a reference for a preliminary ruling by an Irish court. The Court was asked whether the contested occupational pension scheme rule, which provided that only members of the scheme who had entered into a marriage or civil partnership before a certain age could claim a survivor’s benefit for their (same-sex or opposite-sex) spouse or civil partner, was contrary to Directive 2000/78.  The question was whether the contested rule gives rise to a) discrimination on the ground of sexual orientation, b) discrimination on the ground of age, or c) discrimination on the combined grounds of age and sexual orientation.

ADLRev 1/2017

Table of content

Dimitry Kochenov, Timofey Agarin

Expecting Too Much: European Union’s Minority Protection Hide-and-Seek

EU’s deference to the Member State approaches in minority protection can intensify the oppression of vulnerable groups, and its insistence on non-discrimination on the basis of nationality in the minority regions with special rights in place can also produce injustice. Its inability to protect EU-wide minorities, like the Roma, is equally problematic. Although a ‘value’, minority protection functions incoherently, if at all. It is time to approach the EU as a highly specific minority protection arena not to be confused with its component parts – the Member States. The reform of the Member State-centred thinking should start at the level of approaching the core issues. It should include the assessment of such questions as what is a minority in the EU’s context of a missing majority, what is the appropriate depth of EU’s intervention in the area of minority protection, ie how much room for manœuvre should reasonably be left with the Member States without disrupting the effectiveness of EU’s regulation, as well as the approach to defining what a success in minority protection should be, in the EU context. The latter should be done, in particular, with due regard to the division of competences between the EU and the Member States in this and other relevant fields. This paper briefly explores a series of diverse case studies – from migrant EU citizens, Baltic Russians, and sexual minorities to, most importantly, Roma rights – to make the first attempt to test the proposed synergetic approach.

Wojciech Sadurski, Aleksandra Gliszczyńska-Grabias

A Recent Decision of the US Supreme Court on Legal Discrimination in the Access to Voting Rights: Five Readings of Shelby County

It is a commonplace that the abolition of all formal forms of racial discrimination in the United States has not led to the eradication of various vestiges of discrimination, usually indirect, in the law. An important sphere of traditional discrimination concerns voting rights – arguably the key aspect of civic self-determination in a democracy. The Voting Rights Act (VRA) of 1965 was aimed at making it illegal to enact any indirect measures of discrimination against African-Americans, in particular through various tests, such as literacy or property tests, which in effect adversely impact on racial minorities, traditionally disadvantaged in access to the goods and benefits which figured as criteria in such tests. Nevertheless it was not the end of the problem as local authorities at the state and sub-state level, especially in the Southern states, have been quite ingenious in designing various patterns which, while facially race neutral, led to the exclusion of black Americans from equal access to voting. Hence, the Act established some special procedures for vetting and scrutinizing, by federal authorities, any modifications of election rules in states and sub-state entities viewed as particularly prone to enacting such designs, for discriminatory reasons or with discriminatory effects. But things have changed – or are said to have changed – over the half a century which has passed since the enactment of the VRA, and an increasing number of political actors and legal practitioners and scholars have come to a view that those extraordinary designs (which will be described, in some detail, below) have long passed their ‘use by’ date. The law cannot be static, it has been said, and must respond to changed social and political realities, rather than remain set in stone. This is, in a nutshell, the basis for bringing a challenge to some sections of the VRA by a county in Alabama which felt victimized by special requirements of having to have their electoral arrangements approved by federal authorities, in contrast to the majority of US territorial entities which are free of such a burden. Shelby County v Holder, a decision of the United States Supreme Court of 25 June 2013, resolved this issue to the satisfaction of Shelby County. But a very strong dissent and the fact that, like in so many of the Court’s most controversial decisions, the Court was sharply divided 5:4 indicates that the problem at the root of the litigation is far from closed.In this article we will begin by summarizing the facts and describing the judgment of the Court, as delivered by Chief Justice Roberts (Part 1), then we will discuss the lengthy and weighty dissenting opinion by Justice Ginsburg (Part 2), after which we will provide an overview of the main and most representative responses by legal scholars to the Shelby County decision (Part 3). In the concluding remarks we will offer some suggestions about the more general, rather than purely US-related, significance of the Shelby County decision.

Peter Reading

Advancing the Right to Equality for All in Hong Kong

Hong Kong provides a unique perspective on protections from discrimination in Asia. On the one hand it has well developed human rights legislation in the form of a Bill of Rights and four pieces of anti-discrimination legislation in relation to sex, disability, race and family status. On the other hand the current anti-discrimination legislation is increasingly outdated and there is no protection from discrimination in relation to key areas such as LGBTI people, age and religion. This article examines the work being done by the Equal Opportunities Commission to modernise the existing legislation in a number of areas with its Discrimination Law Review and research projects. Leadership is required by the Hong Kong government to take the EOC recommendations forward in order to better protect everyone from discrimination.

Chintan Chandrachud

Proportionality, Judicial Reasoning and the Indian Supreme Court

Through the prism of the Indian Supreme Court’s judgment in Koushal v Naz Foundation, this article considers whether it is reasonable to apply the ‘reasonableness’ standard of review in an age of proportionality review. It makes two broad claims. First, the Indian Supreme Court does not currently apply proportionality review, but only takes proportionality-type considerations into account while applying reasonableness review. Second, unlike reasonableness review, proportionality review mitigates the possibility of errors that represent a failure of the duty to give reasons for judgment.

Justyna Maliszewska–Nienartowicz

Multiple Discrimination and the European Union – what Lessons Can Be Learnt from Canada and the US?

Discrimination is a social phenomenon and as such has been evolving, with new forms emerging and gaining importance. An interesting example in this respect is multiple discrimination, based on more than one ground. This contribution presents the definition and types of multiple discrimination as well as the ways of dealing with it in practice. The author first presents those jurisdictions which try to apply an intersectional approach to this form of discrimination, that is Canadian and US cases. Then the regulations of the EU as well as the case law of the Court of Justice are described. The conclusion contains a comparison between the EU approach on the one hand and those two national jurisdictions on the other. The author also tries to formulate some suggestions as to what the EU could do in future in order to strengthen protection against multiple discrimination.

Juan Carlos Benito Sánchez

Gender Quotas in Corporate Governance: A Comparative Perspective

Economic decision-making in the European Union suffers at the highest corporate echelons from a lack of diversity, especially in terms of gender representativeness. This article seeks to contribute to the corporate gender quota debate, reinvigorated by the European Commission’s recent proposal aiming to introduce quotas in boardrooms, by taking some national experiences as a starting point. It will reveal the existence of a plethora of perspectives and introduce a reference to industrial relations, borrowing from corporate governance theory. The article focuses on three selected countries, representing different models of addressing corporate gender imbalance: the United Kingdom, Spain and France.

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