Patterns of Inequality - Paradigms for Equality (original) (raw)

Beyond identities: The limits of an anti-discrimination approach to equality

Boston University Law Review, 2012

under an impoverished sense of what it means to be a nation committed to equality. From a twenty-first century human-rights perspective, law and policy responses in a number of areas have fallen far short of mounting an adequate response to growing inequality. 2 These policy deficits will be hard to close because our Constitution, with its restrictive federal nature, limits the remedial ability of the federal government, and because current Supreme Court jurisprudence deems that equality requires only sameness of treatment 3 or nondiscrimination 4 rather than a more substantive vision of equality. 5 /sites/default/files/cbofiles/attachments/10-25-HouseholdIncome.pdf. This study found that between 1979 and 2007, the top 1% of households experienced an income growth of 275% while households in the highest income quintile experienced an income growth of 65%. Id. Middle-income households, however, experienced an income growth of 40% and households in the lowest income quintile experienced an income growth of only 18%. Id. Further, the study found that "the share of income accruing to higher-income households has increased, whereas the share accruing to other households has declined." Id. at 1. The practical effects of this trend stand in stark contrast to the notion of equality and the inalienable right to the pursuit of happiness praised in the Declaration of Independence. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 2 HUMAN RIGHTS WATCH, WORLD REPORT 2012, at 654-63 (2012) (providing an overview of observed inequalities and the United States' policy responses to these inequalities in areas such as labor rights, gender equity, disability rights, and criminal justice). The entrenchment of such inequalities can be seen in poverty rates and growing income disparities. CARMAN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA C.

THE PRINCIPLE OF EQUALITY. NEW AND OLD CHALLENGES

The principle of equality: new and old challenges Equality, as a concept, is as old as mankind. Conceived as a principle intimately related to the fundamental rights and freedoms of people, its political consecration can be traced back to the American and the French Declarations of 1776 and 1789. Since then, it began to exercise its innovative drive in the development of the legal systems all over the world, during the following Centuries. Equality in the modern sense of the notion, as equality of all people before the law, thus started to impose itself as a principle able to limit the power. After the Second World War, it became a core element of the "Postwar paradigm", as part of international documents and national constitutions. The spread of the principle in written legal texts was accompanied by the new awareness about the insufficiency of the merely affirmation of everyone's equality before the law, unable to effectively fight against social and economic discriminations. Public powers must act in the fight against social inequalities. Afterwards, substantial equality has been entrenched in many constitutions, in the context of the "transformative constitutionalism" movement, especially in the Global South. Equality principle represents a founding element of contemporary constitutionalism. Fundamental rights are universal, and the defence of human dignity must be placed at the centre within plural societies, notably with reference to the current globalised and multicultural world. Still, the increasing growth of inequalities currently represents a major topic to be addressed. How can law fill the gap between the equality political project and the discriminations constantly present in our societies? Which are the tools able to reconcile the tension between formal and substantial equality? Are the non-discriminations clauses enshrined in domestic constitutions and international documents enough to guarantee an effective implementation of the equality principle? How can the interpretation of such written clauses contribute to an extensive protection of human dignity and pluralism? Which tools can be used in case of unwillingness of the legislator to proactively act for the protection of substantive equality? Could courts make up for legislators, to fill in their omissions? Evidently, new challenges have developed in the 21st century, in the context of democratic decay. In many democracies, old and new, political forces hostile to liberal democracy appear to attack the rule of law and constitutional guarantees, after winning electoral majorities in the polls. Therefore, equality is even more challenged, and increasingly difficult to concretely guarantee. Those questions have driven the reflections exposed and debated within the IACL-AIDC Roundtable "The

Beyond Equality and Discrimination

SMU law review forum, 2020

The societal frame of the "economically disadvantaged" is rooted in a distinction between a conceptual status of equality and the actuality of discrimination and disadvantage. This paradigm provides the governing logic for both criticism and justification of the status quo. This Article questions whether and to what extent this equality/antidiscrimination logic has lost its effectiveness as a critical tool and what, if anything, should be the foundation of the rationale that supplements or even replaces it.

The Trajectories of European and American Antidiscrimination Law

American Journal of Comparative Law, 2012

The essays in this symposium present an apparently sharp contrast in the respective state of antidiscrimination law in Europe and the United States at present. In Europe, antidiscrimination norms are proliferating, within both the European Union and the Council of Europe systems, and elaborate networks and programs of implementation are being established and funded. The grounds of discrimination are widening, the norms are being strengthened and the new laws are being actively litigated. In the United States, by comparison, decades of social and political backlash have significantly weakened the corpus of antidiscrimination law that emerged from the civil rights movement, and the courts have become an arena for ideological battle. Yet, even if certain juridico-cultural differences in conceptions of equality and discrimination between the two jurisdictions are evident, none of the likely explanations for such a stark contrast between the state of antidiscrimination law and policy in each seems fully convincing. On a closer analysis, it seems that the future of antidiscrimination law and policy in Europe faces equally daunting challenges, even if the body of law in question is decades younger and less tested than its U.S. counterpart. One of the themes emerging from this collection of essays, however, is that there are similarities in the way problems of entrenched inequality are being addressed and in some of the solutions being tested both in the United States and in Europe. In particular, there has been a shift away from traditional judicial remedies and towards renewed administrative as well as other more innovative approaches in both jurisdictions. In the United States, this seems to be prompted in part by disillusionment with the current legal stalemate, while in Europe some of the novel approachesincluding the spread of equality bodies, parity democracy, and proactive public duties-are being promoted by international and European institutions. A. A Stark Transatlantic Comparison The past decade and a half has witnessed a dramatic development and expansion of European antidiscrimination law. At the regional level, both the European Union and the Council of Europe have adopted important new instruments. Notably, the European Union has enacted a Charter of Fundamental Rights and an ambitious series of legislative measures, 1 and the Council * Professor, NYU Law School. The papers contained in this symposium issue of the AJCL emerged from two workshops held at the European University Institute, Florence in 2010, and at Harvard Law School in 2011. Ruth Rubio-Marín and I are very grateful to these two institutions for the support they provided for the workshops. Thanks are also due to all of the participants at these events for their advice and comments. 1 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, Official Journal of the EU (2010) C 83/389. The EU has adopted several major pieces of antidiscrimination legislation since 2000, notably Council Directive 2000/78/EC of Nov. 27, 2000, establishing a general framework for equal treatment in employment and occupation of Europe has adopted Protocol no. 12 to the European Convention on Human Rights that complements and expands the existing antidiscrimination provision of Article 14 ECHR. 2 These high-profile legal and political moves have both generated and been accompanied by significant domestic and transnational mobilization around European antidiscrimination norms. Funded in some cases by the EU Commission, 3 and in other instances by major foundations and organizations like the Open Society Institute, strategic litigation in the fields of race, sexual orientation and disability discrimination has been brought by NGOs and legal activists before national and regional tribunals, including the European Court of Human Rights in Strasbourg and the European Social Charter's European Committee on Social Rights. 4 These initiatives have sought to build in particular on the strategies and perceived successes of the movement for gender equality across Europe in previous decades. 5 With a raft of new legislation and treaty provisions, new institutions such as the EU Fundamental Rights Agency, 6 renewed civil society [2000] OJ L303/16, Council Directive 2000/43/EC of June 29, 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 and Directive 2006/54/EC of the European Parliament and Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) [2006] OJ L204/23. 2 Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.2000, Council of Europe, European Treaty Series no. 177. 3 The Commission also funds a network of independent legal experts (from the twenty-seven member states and three applicant states) in the non-discrimination field, which provides advice and information on implementation to the Commission. The network of experts also prepares and produces the biannual publication the European Anti-Discrimination Law Review. See http://www.migpolgroup.com/projects\_detail.php?id=19 and http://www.migpolgroup.com/publications\_info.php?id=17\. 4 See, for example, the three year project on 'Implementing European Anti-Discrimination law' and the manual prepared by the European Roma Rights Center, Interrights, and the Migration Policy Group, and funded the Open Society Justice Initiative: on Strategic Litigation of Race Discrimination in Europe: From Principles to Practice (2004) http://www.migpolgroup.com/projects\_detail.php?id=29\. See also the contribution in this symposium issue by Samantha Besson, Evolutions in Antidiscrimination Law within the European Convention on Human Rights and the European Social Charter System. 60 AM.

Equal Protection and Disparate Impact: Round Three

Harvard Law Review, 2003

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal protection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions about disparate impact laws. Those questions can be satisfactorily answered: the disparate impact standards of statutes such as Title VII are not now unconstitutional. But by exploring the tensions between those standards and the now-prevailing view of equal protection, the Article illuminates many indeterminacies in both of those legal concepts. It also argues against interpreting disparate impact standards in ways that most easily align with the values of individualist equal protection. Such interpretations offer easier defenses against constitutional attack, but they also threaten to cleanse antidiscrimination law of its rematning concern with inherited racial hierarchy.

Probing the gap between equality and human rights

This paper takes the view that human rights, and equality and diversity, come from different starting points, primarily in their respective relationships to the state power. Put simply, one might say that civil rights offer protection by the state, whereas human rights offer protection from the state.

Privilege, Gender, and the Fourteenth Amendment: Reclaiming Equal Protection of the Laws

The United States Supreme Court's failure to understand the relationship between individuals and groups in its equal protection jurisprudence has resulted in jurisprudence that makes no sense. The Court's inability to recognize the forms of bias associated with group membership has hampered the realization of the equal protection ideal. Analyzing the Court's gender equality decisions, the author proposes another path in equal protection jurisprudence that would analyze systemic privilege, recognizing the structures of subordination and domination. Examining equal protection through a privilege lens would clarify the interrelation of individuals to groups, provide an avenue for addressing biases, and sidestep the intent requirement currently mandated in cases alleging discrimination. A privilege analysis would ensure that the vision of democratic participation, central to the meaning of the Equal Protection Clause, could become a reality.

Anti-Discrimination Law and Economic Inequalities

Cridho Working Paper Series, 2023

A number of scholars and civil society actors criticize anti-discrimination law arguing that it neglects the fundamental problem of socio-economic inequalities and rests on an overly nar-row notion of equality compared to the one underlying classic (re)distributive policies. This chapter discusses this critique. It argues that while this critical view usefully highlights some of the limitations of anti-discrimination law, such limitations do not mean that anti-discrimination law and (re)distributive policies are in conflict with each other and that a choice needs to be made between them. Part I of the chapter sheds light on how each of these legal and policy in-struments relates to the ideal of equality. It shows that anti-discrimination law and (re)distributive policies address a different kind of inequality and operate through different tools. Yet, there are important points of juncture between them. Part II explores one important avenue to build a bridge between anti-discrimination law and concerns for economic inequali-ties, which is the inclusion of socio-economic disadvantage among prohibited discrimination grounds. The chapter concludes that both anti-discrimination law and (re)distributive policies can be said to rely on a partial, and incomplete, vision of equality. Accordingly, it is essential to combine rather than oppose them: both discrimination and economic inequality need to be ad-equately tackled if we are to foster a more equal society.