International Journal of Discrimination and the Law

Publisher:: Sage Publications, Inc.
Publication date:: 2021-09-06

ISBN:: 1358-2291

Issue Number

No. 24-1-2, June 2024

Latest documents

An absolute shield: Qualified immunity, police misconduct and black lives matter
Before the global spotlight ascended upon nationwide efforts to codify into law that Black Lives Matter, specifically, police accountability against the use of excessive force against unarmed civilians, qualified immunity has silently flourished throughout America. Created to shield police officers and other government officials for the actions they engage on the job, this long-standing judicial doctrine continues to proliferate a culture of near-zero accountability when police officers engage in misconduct, which for communities of color, oftentimes results in deadly outcomes against unarmed civilians. This article will first revisit the development and legacy of qualified immunity, followed by analyzing its universal defense from police unions, then shifting to a data-rich illustration of disciplinary data highlighting the systemically designed outcomes of qualified immunity via the New York Police Department, before providing concluding thoughts. Ultimately, this article asserts that the retrogressive outcomes of police disciplinary inquiries, especially with respect to communities of color, is operating as designed, whereas efforts to review and revisit its structure and practices threaten a longstanding culture of disregard and near-zero accountability.
Editorial - June 2024
Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB)
On 14 February 2024, the High Court upheld the decision of the Bristol County Court in University of Bristol v Dr Robert Abrahart. Ms Abrahart, a physics undergraduate, took her own life in April 2018, the morning before she was meant to deliver an oral presentation. The claim brought by Ms Abrahart’s father was that in failing to remove or adjust the requirement for oral assessments, the University had discriminated against her on the basis of her disability. The High Court upheld the discrimination claims under the Equality Act 2010 while dismissing the claim in negligence on the basis that the University did not owe Ms Abrahart a common law duty of care. This note discusses the contrasting moves made by the High Court in, on the one hand, lowering the bar for finding a breach of the anticipatory reasonable adjustment duty, and on the other hand, raising the bar for finding an assessment method to be a ‘competence standard’ set by universities. Although arising in relation to the very specific facts of this case, the implications of the ruling in Abrahart are far reaching.
Between a ‘flexible’ and ‘rigid’ interpretation of the list of prohibited grounds of discrimination under article 21(3) of the constitution of Uganda: Uganda Law Society and 12 others v Attorney General [2024] UGCC 2 (13 February 2024)
Article 21 of the Constitution of Uganda (1995) provides for the right to freedom from discrimination. Article 21(3) provides that for the purposes of Article 21, discrimination ‘means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.’ Article 45 of the Constitution provides that ‘[t]he rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned.’ In Uganda Law Society and 12 others v Attorney General (13 February 2024), the Constitutional Court invoked Article 45 and held that the list of prohibited grounds under Article 21(3) is not exhaustive. In this article, the author relies on the drafting history of Article 21(3), the jurisprudence of the Supreme Court on Article 21(3) and the literal interpretation of Article 21(3) to argue that the list of prohibited grounds in Article 21(3) is exhaustive and that the Constitutional Court erred when it held to the contrary. The author argues further that Article 45 should not be relied on to read rights into the Constitution. It should be applicable to statutory or common law rights.
Disability discrimination in the provision of health insurance: Article 25(e) of the UN convention on the rights of persons with disabilities
Article 25(e) of the CRPD obliges State Parties to “prohibit discrimination against persons with disabilities in the provision of health insurance… which shall be provided in a fair and reasonable manner”. Equal access to health insurance is critical in ensuring that persons with disabilities can enjoy the highest attainable standard of health. However, the scope and substance of Article 25(e) have not been examined in existing scholarship on the CRPD. Standing at the intersection of international human rights law, disability studies and insurance law, this article fills the lacuna by offering a balanced interpretation of Article 25(e) that aims to strike a balance between actuarial fairness and the CRPD’s prohibition against all forms of disability discrimination. Greater clarity in the interpretation of Article 25(e) would therefore assist State Parties in properly complying with their obligations under the CRPD. Civil society, including disabled people and their representative organizations, would also be empowered to hold their governments to account where the laws and policies in the country have fallen short of what is expected under Article 25(e).
Sexual harassment as a gender inequality and a form of workplace discrimination: A South African perspective
Sexual harassment is not a new phenomenon in South Africa. The continued existence of sexual harassment in the workplace specifically targeted at female employees undermines the constitutional rights to equality, human dignity, privacy, physical and psychological integrity, and fair labour practices. Against this backdrop, this article examines the different contributory factors that exacerbate or provide an enabling environment for sexual harassment to persist namely; gender inequality, sexist attitudes, and inefficient grievance procedures. Using an in-depth analysis of literature scholarly works, government reports, and legislative frameworks aimed at preventing sexual harassment in the workplace, and the selected jurisprudence of the courts, this article scrutinises the phenomenon of sexual harassment as a gendered harm. It evaluates whether there are adequate measures aimed at assisting victims of sexual harassment and gender inequalities in South Africa. Finally, in its conclusion, the article argues that, for labour legislation to efficiently address the prevalence of sexual harassment it should adopt a threefold function namely to address sexual harassment as a form of an unfair labour practice, gender discrimination and psychosocial harm.
Racial discrimination in post-Apartheid South Africa? The stories of Coloured people in Johannesburg, South Africa
Dominant theoretical conversations on experiences of racial discrimination are focused on how Black and other non-White people perceive and experience racial discrimination in White majority racial systems; however, research is scant on experiences of racial discrimination of racial minorities in Black majority social systems. This paper addresses this lacuna by exploring perceived experiences of racial discrimination of Coloured people in Johannesburg, South Africa, a racial minority in a Black majority country. Fourteen in-depth individual interviews were conducted with participants. Analysis of the interviews resulted in many interviewees claiming race-based discrimination in housing, employment, service delivery, political representation and education. A few participants, however, claimed that Black South Africans are also experiencing socioeconomic problems like Coloured South Africans. Racial discrimination theory and social exclusion theory are used as perspectives for the study. Based on the findings, I argue that the perceived experiences of racial discrimination of most of the participants of the study can be explained by three interrelated structural forces, namely legacies of historical racial exclusions, the neoliberal macro-economic order and government neglect.
The Equality Act 2010 - changes in 2024 including Brexit-related codification
This legislative note considers the widespread changes to the Equality Act 2010 which have been made or are set to be made in 2024. These are predominantly but not exclusively as a result of Brexit and the effect of the Retained EU Law (Revocation and Reform) Act 2023 and see indirect effect give way to express statutory provisions. The breadth of the changes span: aspects of the definitions of direct discrimination, indirect discrimination, pregnancy and maternity discrimination and the protected characteristic of disability; the unlawful acts of discrimination (regarding discriminatory public statements) and harassment (introducing positive duty on employers to prevent sexual harassment of employees); changes to the equal pay provisions.
The shared parental leave framework: Failing to fit working-class families?
Shared Parental Leave has the potential to tackle a traditional gendered binary of roles within the family, by encouraging more men to care. Such legal provisions can operate to shape behaviour, both in terms of what they permit practically, but also from a normative perspective, conveying ideas around the best way to perform ‘family.’ However, placing particular focus on the latter, we assert that Shared Parental Leave does not speak to working-class parents. We initially consider whether the ‘heteronormative’ family may, in itself, be a middle-class problem, before highlighting the incompatibility of legislative ambitions of ‘equal parenting’ with working-class ways of living. ‘Equal parenting,’ as embodied within the legislation, imposes ideals that sit at odds with working-class people’s attitudes, whilst assuming a two-parent family which is often incongruous with working-class family forms. Ultimately, we favour a more holistic approach towards breaking down ‘heteronormative’ notions of women’s and men’s roles, to enable people to make more meaningful choices about their lives that are not constrained by gender.
Editorial