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.

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.

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.

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.

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.

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.

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.