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

 Individualised wrongs  Pay and occupational segregation  Positive action

 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, Ireland  Advantages  Certainty  Precision  Clearly rights based

Open textured and substantive equality model  South Africa, Canada  Advantages  Dignity threshold  Addresses disadvantage  Outcome focussed

South Africa – Article 9  Article 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

 Apologies  Audits  Deterrent orders  Progress Reports

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

Commissions  Human Rights Commission  Commission on Employment Equity

Canada  Section 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…”

 Unlawful discriminatory acts (employment, goods and services etc)  Disadvantage (s.16)

The Commission on Human Rights  Complaints to the Commission  Commission initiated complaints  Investigation by the Commission  Conciliation and mediation

Human Rights Tribunal  Commission initiated  Inquisitorial  Injunctions  Specific performance

 Special Programmes and Plans  Compensation

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 Tribunals  Failure to comply with duties under the Act  Human Rights Tribunal  References 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 disadvantage  Dignity and Disadvantage  Tackling collective disadvantage and respecting civil rights  Sharing responsibility for remedial action  Individual 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’

‘A root and branch review to investigate the causes of persistent discrimination and inequality in British society’.