Anti Discrimination Law - Case Study Example

ANTI DISCRIMINATION LAW Question: “Any court or tribunal adjudicating on a direct discrimination case must consider whether the claimant has been treated ‘less favourably’ on the prohibited grounds…the search for a comparator can be over-emphasised, and whilst it can be useful in some cases, in others it can lead to a sterile line of enquiry.” (Discrimination Law Association, Response to the Discrimination Law Review Report ‘A Framework for Fairness’, September 2007). What difficulties has the ‘comparator approach’ to direct discrimination presented in achieving a more equal society in the UK? Answer: The prevailing statutes of both the UK and European Laws vehemently recommend dealing with the individuals belonging to divergent social, cultural, ethnic and religious groups on equal foundations, without giving special priority to the members belonging to one community to the individuals from other groups of society. Hence, discrimination is strictly condemned and discouraged everywhere in Europe, though there are slight differences between the European law and the English law in determination of rights and obligations delegated by the constitution to the public at large. It is therefore the courts and tribunals adjudicating the cases, both civil and criminal in nature, take into serious consideration the facts regarding whether there is any sign of prejudiced behaviour made by any member or organisation of society while dealing with the complainant or treating as well as interacting with him under the biased attitude. In addition, law forbids bestowing of more favours to anyone because of his personality traits and features. The provisions of law aim to set up a society where equality, justice and fair play can be observed in all walks of life. Hence several acts have been issued and bills have been passed in order to combat with the discrimination dilemma with an iron hand. Though law always recommends equality and justice to all and sundry, it is not actually the case in reality. On the contrary, exploitation of minority groups and biased behaviour towards the weaker stratum of society is actually in vogue in almost all societies of the world. Before embarking upon the topic under study, it would be advisable to define anti discrimination law. Anti discrimination law refers to the statute of law that prohibits any special rights or privileges to the individuals belonging to some particular race, gender, ethnicity, age group or towards the persons obtaining any physical as well as mental abilities or disabilities. The law also prohibits violation and condemnation of human rights of the individuals on the basis of their innate characteristics including caste, class, race, ethnicity or physical features etc. In simple words, anti discrimination law looks for social justice and equality in all fields of life, and expects strict observance of the protection of human rights of the people belonging to different communities and classes of society. According to the provisions of the statute of law, no individuals shall be treated in a superior or inferior way on the grounds of his religious background, political affiliations, sexual orientation, marital status or racial group. “Employment Discrimination laws seek to prevent discrimination based on race, sex, religion, national origin, physical disability, and age by employers. There is also a growing body of law preventing or occasionally justifying employment discrimination based on sexual orientation.” (Retrieved from definitions.uslegal.com) Several acts have been issued time and again in order to protect human rights in the UK, which include Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995 & 2005 and Equality Act 2006 etc. Similarly, the European Union has also taken into account the prejudiced behaviour and issued directives to eradicate discrimination from the continent altogether. Both Equal Pay Act 1970 and Sex Discrimination Act 1975 are the outcome of long struggle made by the feminist activists as well as human rights activists, who raised their strong and sonorous voice against the prevailing discriminative laws and the consequent rulings of the courts of law against female stratum of society. Parts (a) and (b) of section 1(1), described in Chapter 41 of Equal Pay Act 1970 clearly declare men and women as equal humans where any type of less favourable attitude towards any of the genders while giving payments and announcing remuneration will be against the provisions of law. Being the custodian of human rights, the court adjudicating the case, in which the complainant seeks justice in respect less favourable treatment on the part of the accused, will keep in view the provisions of Pat Act and Sex Discrimination Act, along with the previous precedents and rulings articulated by the courts in the similar cases while providing relief to the persons seeking justice from the court of law. Article 7 of the European Union Charter also declares all human beings as equal before the law and emphasise that all are entitled without any discrimination to equal protection of the law. In addition, the law views that all humans are entitled to equal protection against any discrimination in violation of the EU Declaration and against any incitement to such discrimination. Similarly, Art. 14 of the EU Declaration states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Since all human societies are socially stratified, inequality also finds its way everywhere all over the globe. Though courts issues decrees prohibiting the cruelties inflicted upon the persons seeking justice, on the basis of their gender, race, religion and sexual orientation etc, yet the court also looks into the matter whether the less favourable attitude has really taken place or not. Similarly, application and observance of discrimination towards one individual on the basis of his or her sex or race is considered as the discriminative behaviour towards the entire gender or racial group. “Under the former Human Rights Code, R.S.B.C. 1979, c. 186, in the case of Zarankin v Johnstone (1984), 5 C.H.R.R. D/2274, at p. D/2276, . . . wherein the board stated:   . . . an employer who selects only some of his female employees for sexual harassment and leaves other female employees alone is discriminating by reason of sex because the harassment affects only one group adversely.” (Aziz, 2005: retrieved from www.malaysianbar.org) Almost same is applied with the act of non-compliance displayed by famous feminist activists Rosa Parks, who refused to surrender before the prejudiced behaviour of the white bus driver. The bus driver had ordered Parks and three other black passengers regarding relinquishing their seats in the bus in favour of the white passengers on which Parks and three other African Americans were sitting on December1, 1955. Parks resisted against the unethical instructions of the driver and refused to move from her seat altogether. It seriously infuriated the white majority and caused Parks’ subsequent arrest and court trials. The entire humiliation of the African American lady and her dauntless standing for seeking equal rights led to the unity of the whole community, which rose to the occasion to support her noble cause of eradicating social injustice from the society. But Parks’ act could not be viewed as the only performance that brought revolutionary changes in a multination culture. Rather, it was the result of many centuries long prejudice on the part of the whites against the blacks, which turned out as the vital event for winning equal human rights and social status for the blacks. Hence, the court also supported Parks and viewed the behaviour of the bus driver as less favourable one towards the members of a minority group. In Roberts v Hopwood [1925] AC 578, where the employer denied distribution of equal pay, the court strictly declared it a discriminative behaviour as well as harassment of the female employees at the hands of the male dominating organisation. But by this courts do not intend to impose any kind of restrictions upon the private organisations or institutions. The tribunals seek to analyse the facts whether a discriminative behaviour has actually happened or a strict or harsh behaviour towards one person is due to his or her negligence from the duties and obligations. In Short v Poole [1926] Ch 66 Warrington LJ made the oft-repeated statement that the courts could strike down as ultra wires ‘an act of the public body, though performed in good faith and without the taint of corruption, was so clearly founded on alien and irrelevant grounds as to be outside the authority conferred upon the body’. He gave an example there of a teacher dismissed because she had red hair, or for some equally frivolous and foolish reason, while upholding the decision to dismiss the claimant, a teacher, because she was a married woman. Hence, a tribunal maintains a keen observation on the facts and analyses that whether the claim presented by the complainant before the court is valid or is based on personal grudge or false story spun by the complainant for gaining some compensation from the accused party. History is replete with the examples of false claims raised by the individuals in the name of discrimination. division of human societies into various groups and factions since ever, even in primitive times of Palaeolithic and Neolithic eras. This division of the members of the same society can be viewed on the bases of their caste, class, clan, community, race, ethnicity, gender, region and socio-economic position. “When we think of castes and classes”, Davis notes, “and of social stratification in general, we have in mind the groups which occupy different positions in the social order and enjoy different amounts of prestige. Hence, positions based on sex, age and kinship do not form part of the system of stratification. On the other hand, the positions that are socially prohibited from being combined in the same legal family viz. different caste and class positions constitute what we call stratification.” (1969: 364) The background of anti discrimination law seeks its roots in eighteenth and nineteenth centuries, where women, slaves and the poor were looked down. Man had to make a long struggle in order to eliminate discriminative laws from societies. Political authorities have introduced various rules and regulations for the smooth running of public affairs within a social set up by devising laws and appointing law enforcing agencies for the proper implications of these laws. The Contract Law, Evidence Law, Companies Act, C. P. C, Cr. P. C. and others are included in the long list of the acts and statutes articulated and devised time and again for the best interest of the public. Laws have been devised and implemented in the light of the sayings of the philosophers and intellectuals, who had obtained major share in introducing equality in human societies. In seventeenth and eighteenth centuries, slavery and serfdom had spread their awkward wings in Europe, and the European nations had captured all resources of African countries during the colonial era. They used to conquer the lands of the Africans, and made their men and women their slaves, where every type of pains and sufferings, inflicted by the Europeans upon their black slaves, were considered as the right and fair ones. “Under the reign of Peter the Great of Russia, the slaves were not allowed to marry even without the prior permission of their masters.” (Mahajan, 2002: 532) Discriminative behaviour, committed by any member of society, turns the set up in grave jeopardy. Since the court is the custodian of human rights, it is its first and foremost obligation not only make judgments without biased attitude towards the complainants, but also condemn any type of misdeed, misconduct and malpractice being committed and observed by organisations, institutions and individuals against any citizen. It is a reality beyond suspicion that that if the patterns and custodians of human rights intend to violate the provisions of law, it will be very easy for other individuals to imitate the footprints of the judiciary and crush human rights under the chariot wheels of cruelty and ruthlessness. The prejudiced attitude of some white people helped the blacks raise their voice against them and win their rights on equal basis. The doleful and depressive literature, created and written by the African American poets and writers, manifestly points out the cruelties exercised by their white masters. “The poems, novels, essays, plays and stories, indicating the prejudiced behaviour and injustices being exercised in society, in a sonorous tone as well as in an angry mood. Rising of the Moon, To Kill a Mockingbird, Ice Age and Jazz are examples of modern protest literature, which vehemently protest against social injustices, ethnic biased ness and gender discrimination.” (Zaidi, 2008: 56) During nineteenth and twentieth centuries, the White Anglo Saxon Population (WASP) was reluctant to accept the equal status for Blacks at all. The writers played the most significant role in this regards. Great writers like Malcolm X, Margaret Drabble, Toni Morrison and others performed their ethical obligations in this regard. Article 26 of European Union Law declares equality as the birth right of all humans, and it must be observed particularly in the fields of education, health and employment. In the words of the Article 26: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” It has often been observed that some prejudiced people display their disliking even while attending the patients undergoing serious medical condition admitted at hospitals, therapeutic centres and nursing homes. It is the power of law that forces them do not deviate from the right path and adopt proper ways according to the provisions of the prevailing law. Women are generally the victims of criminal assaults and prejudiced behaviour, where male members of so called male dominating societies all over the globe exploit and harass them in one way or the other. Female stratum had been considered as the inferior group of people, which must serve and please men at any cost. At such a precarious state of circumstances, women had had to make hard efforts for winning equal rights for them. Famous feminist and social activist Elizabeth Cady Stanton in her remarkable “Declaration of Sentiments and Resolution” submits that since Nature has created women quite equal to men and bestowed upon women all the faculties attributed to men, they should enjoy their position in society on the basis of equality, rather being suppressed and looked down upon by the dominating male stratum. Stanton looks for the equivalent rights for women in respect of leading their life according to their own free will. Any law that restricts them regarding their liberty as well as pursuance of happiness must be demolished and deleted without any delays. She sought happiness of women out of their own choice whether the methods of seeking happiness were great or mean. All laws, she views, which prevent woman from occupying such a station in society as her conscience shall dictate, or which place her in a position inferior to that of man, are contrary to the great precept of nature, and therefore of no force or authority. (1848: 2) If any stratum of society, she views, including the individuals at the helm of the government even, attempts to challenge any just and true rights related to a particular group or community of society, it is the obligation of every member of society to strive for the elimination of such banishments. Though women successfully won equal status for them during the war of nerves, yet it also gave birth to some improper and disadvantageous circumstances too. For instance, by witnessing the kind favour of legal authorities and law enforcing agencies, an imperative proportion of women started raising false and indecent allegations upon the male stratum. There appeared many examples where women blamed males of sexually harassing them on getting failed to obtain a job, against which they did not deserve even. Such cases were brought in the notice of the court in which women falsely claimed that on not complying with the advances of their employers, managers and supervisors, they had kicked out of the job or employment. Similarly, some black people complained of racial hatred on being caught red-handed while being indulged into criminal acts. But they gathered their community and began raising slogans against the majority population. The same is the case with the homosexuals, which crushed every aspect of decency and morality, and on enquiry, manifestly submitted allegations before the tribunal of law that heterosexual or straight people exploited them due to their sexual orientation. But law enforcing agencies, including courts and tribunals, do not issue judgements on the basis of false allegations. Rather, they examine the entire situation and decide whether the allegation carries some weight or not. It is therefore renowned judge and intellectual Devlin lays stress for the implication of moral laws along with the criminal and civil laws, in order to save and protect the humanity from total ruin. Since humans have achieved the present stage of social justice and equality after making long struggle by sacrificing their comforts and suffering from pains, it is the first and foremost duty of legal authorities to maintain the status-quo and bring more improvements in it. It is the height of civil liberties that the court has prohibited even spousal rape in society. Same is the case with R v R [1992] 1 AC 599.), where the court held since marriage allows sexual intercourse out of the free will of both the parties, neither of the spouse can force the other for entering into sexual relationship by force or against the will of the other. Held, free consent of the individuals is declared essential for the sexual union of the married and long term couples too. (www.law.hku.hk/lmsf/marriage) But misuse and exploitation of this allegation became uncontrollable to some extent, and some women, on getting angry with their husbands, started suing against them of sexual harassment. The arrival of HIV also added fuel to the fire of these inadequate objections, which multiplied the difficulties of the male stratum on the one hand, and increased the responsibilities of judges on the other. On the basis of these problems, in Regina v A, it was requested that fake and bogus allegations must be handled properly. In the words of the defendant: “ In recent years it has become plain that women who allege that they have been raped should not in court be harassed unfairly by questions about their previous sex experiences. To allow such harassment is very unjust to the woman; it is also bad for society in that women will be afraid to complain and as a result men who ought to be prosecuted will escape.” (Opinions of the Lords of Appeal for Judgment) Judges, lawyers and law enforcing agencies are the units that cause the construction or destruction of the nations at large. If the tribunals allow inequalities, each and every organisation of the society will witness its ultimate downfall sooner or later. Social inequalities are found in all fields of life and in all the institutions prevailing in a society. In this pretext identity politics and human rights movements came into existence. Identity politics refers to any political movement raised for maintaining the rights that are not accepted by the majority groups of a society due to some contradictory communal reasons. In other words, the concept denotes to such socio political activities that are based on the mutual experiences of injustice and inequalities of some specific social groups. Human rights activists have to make hardest efforts for winning equal human rights for the masses. Identity politics focuses on the security and uplift of the rights of a specific group or community that has been undergoing trials owing to the ethnicity or political ideas. This group or stratum of society contains its own characteristics, which may be based on caste, class, community, race, sexual orientation, gender and socio-economic status etc. It is social inequalities that have given birth to the idea of identity politics in the western culture, where every group is demanding its rights from the authorities. Some of the identity political groups include gay and homosexual rights groups, Marxists, Feminists, pro-Nazists, Maoists, black nationalists etc, which keep long record of struggle for their cause. The Feminist perspective theory also came into existence as the reaction of the suppression of social justices and violation of women rights. The idea of division of labour on the basis of gender gave birth to feminism. It was a strong voice against the prevailing inequalities between men and women in respect of social status, division of power as well as work and gender discrimination. The theorists who brought the significance of women’s participation in the social construction programs to the limelight were declared as rebels and then liberals and Marxists. With the passage of time, these theorists got the title of Feminists. Eminent feminist writer Dorothy Allison, who raised a strong voice against child molestation and violence against the poor stratum of society, has very courageously submitted the sensitive case before the world and brought to the limelight how small girls especially from the lower stratum of society, experience improper environment quite harmful for their neuro-cognitive development due to manhandling, maltreatment and unjust behaviour of their family members, teachers, neighbours and other community members since their childhood. Though the feminist perspective and movement for feminist liberty and equality got popularity during the second half of twentieth century, the struggle to win equal status for women had started by the end of eighteenth century. Nineteenth century witnessed imperative development in this regard. The share of women in social construction was not acknowledged, although they worked in fields, in hospitals, teaching institutes and other professions. Still the male domination was oppressive and tyrannical. If humans remain violating human rights and are unable to respect the human rights of others, social conflict situation may take dominant place in the society, which may put the unity of the nation at stake. All the terrorists groups existing in the world are also the outcome of prejudiced behaviour of the western world towards the third world; the extremists of those countries choose the path of destruction and turmoil in utter despair and disappointment. Al Qaeda is the true example of it. The West devised many schemes and laid the foundation of the UNO for its own purpose. The western countries have got a strong platform to rule over others. Any group or nation, opposing these schemes, including Iran, Cuba, North Korea, Vietnam, Venezuela and other, is declared terrorist one. It is therefore, it has become empirically true that though the foundation of the UNO was laid on the name of the safety and protection of human rights, yet the West always strived to exploit the term by giving way to its own culture, civilization, norms and values in the Third World so that the subjects follow and imitate the patterns of the west thinking them true, modern, advance and progressive. It is actually suppression of cultural values and freedom in the name of human rights and modernization. They are introducing violence of old imperialism by backing the social movements to fish in troubled waters. BIBLIOGRAPHY: Banforth. N., Malik. M. and O’Cinneide, Discrimination Law: Theory and Context, Text and Materials 1st Edn. (2008), Sweet&Maxwell Ltd. Comprehensive and largely up to date guide to both the law and issues including the effect of the most recent European Legislation. This is a very large and detailed textbook. Fredman. S, Discrimination Law, 2002 OUP, Ch1: Equality: concepts and Controversies. Sandra Fredman is one of the key writers in the field of equality. Although published some years ago this is an excellent and comprehensive introduction to the key concepts and controversies within the area. Mccolgan. A. – Discrimination Law: Text, Cases And Materials, Hart Publishing, Oxford And Portland, Oregon, Second Edition, 2005. Aileen McColgan is a leading expert in the field, her book is a detailed and generally excellent guide to both the law and issues. Although slightly out of date it provides excellent insight into the key issues as well as detailed coverage of principles developed in case law up until the date of publication. Palmer. C, Cohen. B, Gill. T, Monaghan. K, Moon. G, Stacey. M. McCvolgan. A. (Ed), Discrimination Law Handbook, 2nd Edn (2007) Legal Action Group. The LAG Handbook is the most comprehensive guide to statutory and case law in the field. This is a practitioner’s guide to the law and does not deal with the general issues and controversies. It is an invaluable reference work for those who are looking for a very clear and highly detailed explanation of the law. Rubenstein. M, Discrimination-A Guide to the Relevant Case Law 21 Edn. (2008) , Michael Rubenstein Publishing. Discrimination Law and Legal Definition. US Legal (Quoted in http://definitions.uslegal.com/d/discrimination) Allison, Dorothy. Survival is Least of My Desires. An Extract from “Skin: Talking About Sex, Class & Literature. Firebrand Books, 2005. Davis, Kinsley. (1969) Human Society Collier-Macmillan International Editions. The Macmillan Publishing Company New York pp 364-368 Eisenstein, H. Radical Feminism, Humanism And Womens Studies. Volume 14. 1983 Mahajan, V. D. (2002) A Brief History of Europe. Chand Publications New Delhi. Zaidi, M. H. (2008) African American Protest Literature Moussa Publications Urdu Bazaar Lahore Read More