Discrimination: The Limits of the Law - Essay Example

 Discrimination: The Limits of the Law Discrimination is the provision of unequal benefits to people of different inscriptive statuses despite identical qualifications and merit. Race, sex, gender, disability, religion inequality may or may not be caused by discrimination. Whether or not discrimination is occurring in a given setting is an enormously political question for which social scientists are expected to have defensible answers. Many debates about discrimination are arguments over whether hidden qualification and merit considerations explain away differences that superficially look discriminatory. These debates can become impassioned. Other arguments explore why discrimination exists, if it does exist. There is legitimate disagreement about these issues as well. (Geringer, J.M., & Madsen, C.K. (1981). pp. 26-30.) "Every day, around the world, discrimination at work is an unfortunate reality for hundreds of millions of people," said the organizations’ Director-General, Juan Somavia, in an introduction to the report. http://news.bbc.co.uk/1/hi/world/europe/3019505.stm According to the report, Time for Equality, the most common targets of discrimination are: I. Women, held back by the "glass ceiling" effect imposing arbitrary limits II. HIV/Aids sufferers - 42 million across the world - who face pre-employment testing and then rejection III. People with disabilities, making up to 10% of the world's population, who are denied jobs, training and education IV. Believers in minority faiths. http://news.bbc.co.uk/1/hi/world/europe/3019505.stm However, the European law acts to fight discrimination on the grounds of gender, race, religion, sexual orientation, and age. It is dedicated to equal opportunity and equal opportunity in the workplace, and for the first time, positive actions to cause equality are allowed. The Treaty broadens the meaning of equal pay to include work of equal value, thus integrating into the Treaty a ruling of the European Court of Justice. These provisions symbolized a partial victory for minority's groups, but numerous were disappointed that they focused narrowly on the workplace and failed to take in related problems that women face. Besides the stipulations on social policy, the Treaty also has a chapter on employment. The difference between social policy and employment policy is intricate to make and is not commonly accepted. Increasingly, however, the two policies are being illustrious. Social policy in the nineties is primarily employment-related social policy. It stems from European values of social democracy and from the fundamental right to the free movement of labor as confined in the Treaty of Rome. Employment policy, conversely, is a policy of the nineties and stems from the values of the decade, with free markets and competitiveness. As social policy always had an uneasy association with economic policy, employment policy accords well with existing economic policy. Employment policy disquiets job creation and maintenance and, most significantly, job training with an emphasis on professional education. This description does not mean that employment policy emerged suddenly in the 1990s; European law apprehension goes back at least to the Treaty of Rome and the Social Fund. It was first measured a part of social policy; increasingly it took on an autonomous identity. The regular emergence of employment policy as a separate entity can be traced through prerequisites in the basic treaties. The Treaty of Rome does not list employment among the basic responsibilities of the European Community as provided in Article 2. In Article 118, however, it does make the European Commission accountable for promoting closer cooperation among member states in the field of education, and other areas in the social field. It also recognized the Social Fund to develop employment opportunities for workers. The 1992 Treaty on European Union added “a high level of employment” to the list of EU responsibilities contained in Article 2 of the Treaty of Rome. It as well gave importance to the EU's responsibility to improve the “employment ability” of workers by persuading higher levels of education and vocational training. Though, many discriminatory practices disadvantage gender and ethnic minorities without some premeditated aim to do so by any individual. Gender and Ethnic disparities that usually disadvantage these minorities subsist in wages, income, and assets, altitudes of educational realization, health status and health effects, and home ownership etc. There are many probable justifications for such differences; one clarification might be the determination of behaviors and procedures of discrimination against minorities. Discrimination is simply one issue that works among loads of others being structural alterations in the economy and the distinctiveness of immigrants and minorities themselves in the communal insertion or elimination of minorities and immigrants. Discrimination ought to have, conversely, particular consideration, because there is still a propensity to underestimate the processes of elimination of immigrants and minorities throughout works of discrimination in everyday life and the costs of these processes. Above arousing and socioeconomic adversities individual fatalities of discrimination have to tolerate. Discrimination in the field of employment has as well pessimistic effects for the wider society. Assimilation policies to contradict segregation, such as re-training and district policies with language ideas, will all show to be profligate if discrimination is not concurrently dealt with. Moreover, discrimination requires economic losses in the receiving countries' labor markets as labor prospective is not being completely used. European law policy addresses working minorities and women seeking work, who are or must be similarly found to working people. The ECJ stated in Achterberg and other cases that article 119 is concerning equal treatment of the working population only; the Court does not address equality overall. Therefore how work is defined becomes vital. The Bilka and Rinner-Kühn cases mentioned above divulge that the Court wants to comprise all shades of paid work, but it has never persuaded from defining work exclusively as paid work. What the Court defines as work under the treaty and what this entails for unpaid caretakers. According to the European Court of Justice (ECJ) the Social Security Directive applies simply to the working population and to people keenly seeking work. EU policy does not pertain to those who never worked in the labor market or to those who did but left employment to heave children. However, the social security directive covers the search for work and prohibits direct or indirect discrimination by reference to race, sex, marital, or family status (Peter Moss, 1990). Thus, besides law, in most European countries, the use of networks fills many jobs. Ethnic minorities have smaller amount of networks with typical institutions, and for the similar motive, they are professed as ‘outsiders’ and are in addition less probable to be considered for promotion. Employers commonly refuse people with an unknown or undesirable enunciation. Employers as well support contenders with nationwide credentials, disregarding overseas counterparts, and foreign experience. Official selection and appraisal tests might be culturally biased; acquaintance-based troubles might be less common to immigrants or ethnic minorities. For instance, in Holland, catholic candidates to the social service were more prone to fail the selection tests than protestant candidates, partially clarified by their diverse educational surroundings. It is as well recognized that ethnic minorities are unwilling to apply to certain employers or for training if they believe that they will not get positive replies, or if they do not see anybody from their ethnic group at the grounds, or have low potential of accomplishing something. (HEPPLE, B And SZYSZCZAK, E, 1992). Individual approaches can lead to discrimination opposing migrants, ethnic minorities, or certainly opposing anyone who is not similar to there national. However, Issues closely related to labor-market prospects for minorities and women, such as extending the notion of work to include unpaid care, have received only sporadic and symbolic attention. Peter Moss maintains that the EC's commitment to equal treatment for working people and women reveals its "longstanding interest in a childcare," dating from the 1974 social action program. This reflects not only an article 119's focus on employment but also the difficulties of establishing common policy positions at the EU level. Political actors have vastly differing opinions on women's work, family life, and equality. The content and direction of women's issues are also highly debated among women's groups, which weakens lobbying and coalition building efforts at the supranational level. For the most part, German, Irish, and Italian feminists have always been reluctant to identify independence with employment. Most German feminists have never welcomed egalitarian policies that promote full-time paid work for women or by many Irish. Although women's groups in societies in which Christian Democratic norms and values prevail may be critical of women's subordinate position, they nevertheless emphasize motherhood and advocate social rights for mothers; they opt for parity for care givers. On the other hand, feminists who grew up with, or who have become familiar with, ideas like autonomy of the (gender-neutral) individual seek policies that promote self-reliance and self-determination of each individual in work and in the family; they favor universal bread winning. Another discrimination factor is of disabled and elderly people. People with disabilities are not a homogeneous group. They may have a physical disability, a sensory, intellectual, or mental disability. They may have had a disability from birth, or found this in their childhood, teenage years, or later in life, during further education or while in employment. Their disability may have little impact on their ability to work and take part in society, or it may have a major impact, requiring considerable support and assistance. However, aged people as well face undeviating or meandering discrimination in employment, in getting training and vocation. It has been observed that they are treated less auspiciously than other people, and this behavior cannot be acceptable. It as well takes place as an employer is unsuccessful to fulfill a duty to make a rational amendment about the aged and disabled person, and the failure cannot be acceptable. An employer cannot validate less encouraging handling if, by making a rational amendment, it would confiscate the motive for the treatment. “Employment rates for disabled and non disabled people differ with the economic cycle, although are more unstable for disabled people.” (Kopels. S. 1995). A discussion of European law work in employee rights in the nineties begins with the Community Charter of the Fundamental Social Rights of Workers adopted in 1989. Social rights have a long history in Europe; they are rights that working people must have, just as citizens must have political rights. The rights integrated in the charter are extensive. They range from the right to freedom of movement originally found in the Treaty of Rome to the right of employees to information, consultation, and contribution in the workplace. Other rights comprise equal treatment for men and women; social fortification; decent working conditions; freedom of association and collective bargaining; vocational training; liberty of employment including a fair wage, health, and safety; and protections for youth, the elderly, and the disabled. The flaw in the charter is that it does not really give rights for employees. No employee might claim a right provided in the charter. Employees cannot go to national courts or the European law court to claim rights in the charter against national or European law authorities. The charter is an assertion, not a directive. In the years since the charter was issued, many persons and groups have tried to have it transposed into a true bill of rights. The goal has not been attained, but the charter has had a consequence in that it assigns authority to the Commission and the member states to execute the rights. The Commission has the authority to issue proposals to realize the charter and annual reports evaluating its tool. In fulfillment with its responsibility, the Commission devised a social action program to convoy the charter in 1989. It restricted forty-seven items for action, seventeen of which were for directives, and these mainly dealt with health and safety matters. The Commission could simply propose measures falling within European law competence, and most of them requisite and agreed vote in the Counsel to become law. The successive reports on the charter issued by the Commission do not comprise a status report on social rights but a development report on the completion of the action program. Many persons, particularly legal scholars and members of the European Parliament, were dissatisfied in the outcome of the charter. They required social rights to be integrated in the Maastricht Treaty but had only partial success. The Protocol on Social Policy states that the participants wish to continue the charter's path. They had a more significant victory with the Amsterdam Treaty, which states in its prelude that the signatories corroborate their attachment to basic social rights as defined in the European Social Charter of 1961 and the Community Charter of the Fundamental Social Rights of Workers. The treaty as well gives the Counsel the right to adopt, by a competent majority vote, legislation dealing with many matters contained in the charter. The treaty, however, does not transform the status of the charter as far as it does not give rights to workers they can assert in a court. Additionally, it makes issues deal with critical employee rights, such as the right to protection from wrongful dismissal, subject to the rule of unity. However, the Amsterdam Treaty contains many provisions of special significance for women. It has a new nondiscrimination clause that bans discrimination based on sex, race, or ethnic origin, religion or belief, disability, age, or sexual orientation (Article 6a). The ban is limited, however. Enforcement measures should be adopted unanimously in the Council. Though, it is unlikely the European law will take steps in the probable future to change the situation concerning social rights, which remains murky. The European Court early in its history accepted that basic rights are general principals of EU law, but efforts to establish social rights into the basic treaties have not succeeded. The future might, however, see the member states, in keeping with the strength of the charter; continue to assume policies that expand protections to workers, even if they themselves cannot assert rights under a European bill of social rights. Reference: Geringer, J.M., & Madsen, C.K. (1981). Verbal and operant discrimination -- preference for tone quality and intonation. Psychology of Music, Vol. 9, pp. 26-30. http://news.bbc.co.uk/1/hi/world/europe/3019505.stm HEPPLE, B and SZYSZCZAK, E (eds) Discrimination: The Limits of the Law (Mansell, London, 1992 Peter Moss, "Childcare and Equality of Opportunity", in Linda Hantrais, Steen Mangen, and Margaret O'Brien, eds., Caring and the Welfare State in the 1990s, CrossNational Research Papers, 2d series, no. 2 ( Birmingham: Aston University, 1990), pp. 23-31. Kopels. S. (1995, fall). The Americans with Disabilities Act: a tool to combat poverty. Journal of Social Work Education, 31(3), 337-346. Read More