From Racism to Equality 7 October 2007 Karon Monaghan.
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Transcript of 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
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
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
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…”
The Commission on Human Rights
Complaints to the CommissionCommission initiated complaintsInvestigation by the CommissionConciliation and mediation
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’