International Journal of Discrimination and the Law

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

ISBN:: 1358-2291

Issue Number

Latest documents

IJDL Editorial - September 2023
Need for a paradigm shift in supporting children with medical care needs in Japan: Legal conflicts between scope and limits of reasonable accommodation in schools
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) guarantees the right of all children to receive inclusive education and requires reasonable accommodations be provided accordingly. Japan, which ratified the CRPD in 2014, now positions the social model of disability at the core of its domestic laws and, in schools, we see more provisions of reasonable accommodations for children with disabilities. In this article, we analyze the very first judgments delivered on reasonable accommodations for children with medical care needs since Japan’s ratification of the CRPD. The case was closed by simply recognizing the “financial limitations” of the municipal government and school while excessively emphasizing the parents’ “duty to ensure children to receive general education.” Such a judgment did not sufficiently reflect the intent of the CRPD and relevant domestic laws guaranteeing inclusive education as a “human right” for children. We expect an inversion of this case in the future.
Part-time work and retirement in Spain, towards a system without gender discrimination
In Spain, part-time work is considered female, given that 73% of this type of work contract is carried out by women. The conditions for accessing and calculating the retirement pension for part-time workers have been modified in recent years. This has been the result of several judgments of European courts that conclude the existence of indirect gender discrimination. This paper analyses the measures that have been regulated after the aforementioned judgments to assess whether indirect gender discrimination has disappeared from the social protection system in Spain. This paper highlights the effect of the regulatory changes, some of them since 2019, and points out some pending issues, that if they were carried out, would ensure gender discrimination is effectively eliminated.
Muslim women in the workplace and the Equality Act 2010: Opportunities for an intersectional analysis
The interplay of religion and gender is a relevant factor in the labour market disadvantage experienced by Muslim women. Despite widespread recognition of the importance of addressing disadvantage through an intersectional lens, the domestic equality law framework in Britain continues to adopt fixed and discrete classifications of status inequality, undermining protection for Muslim women in the workplace. This paper uses doctrinal and socio-legal method to expose the disregard in the application of British equality law in its international human rights context to the interaction of religion with gender and to present opportunities for development through case law of an intersectional analysis of disadvantage. After highlighting the labour market disadvantage experienced by Muslim women and making the case for an intersectional response, the paper will assess the application of the British equality law framework in relevant cases and will highlight its contribution to the emergence of a ‘conflict’ narrative. This paper will argue that there is, however, scope in human rights, proportionality and harm analyses to highlight experiences of discrimination at the vector of religion and gender. It will conclude that litigants who avail of these opportunities can contribute to development of law and policy which better reflects lived experience.
For all (Hu)mankind? The intersection of mental capacity, informed consent and contract law with U.K. space law
The UK Space Industry Act 2018 has now been supplemented with the new Space Industry Regulations. While examples of Space Tourism grace our screens and newsfeeds on an increasingly regular basis such as William Shatner’s recent voyage (Luscombe, 2021) the UK Regulations also pave the way for ‘human occupants’ (UK Space Industry Regulations, Regulation 2) to experience such a flight (UK Space Agency, 2020). A key part of the regulations pertaining to human occupants is that they must provide ‘informed consent’ before embarking on such a flight. If, as is likely to be the case, future courts are to draw analogies with the current state of medical law in this area, spaceflight operators will have to tread carefully if they are to avoid vitiating any informed consent by ‘bombarding’ any willing human occupant with technical detail prior to their flight (Simmonds, 2020). Whilst this could prove legally problematic for ‘capacitous’ individuals within the meaning of the Mental Capacity Act 2005, it is likely to be even more so for those who could be deemed, in some aspects of their cognitive ability, to lack capacity. UK Space Legislation as it presently stands faces three problems: 1) There is presently no legal mechanism under UK Space Law to determine capacity. 2) As examples from the Court of Protection indicate, ‘capacity’ is a very nuanced legal concept and individuals who, on the fact of things, may appear to lack capacity as regards potentially risky activities, have been regarded by the Courts as, at least, partially capacitous in respect of certain decisions. Operators may find themselves having to tread a fine line to avoid claims of discrimination. 3) because of point 1) and the state of the Law of Contract as regards contractual relationships entered into by potentially incapacitous individuals, further significant legal problems may present themselves. This paper will focus primarily on the Law in England and Wales but some of the overarching conclusions will be of relevance to all UK jurisdictions.
Overarmed or underdressed? whistleblowers between anti-discrimination law and freedom of expression
Does retaliation against a whistleblower qualify as discrimination or an infringement of freedom of expression? In France, whistleblowing legislation has built whistleblower protection on the model of discrimination. The transposition of the European Directive 2019/1937 of 23 October 2019 on the protection of persons who report breaches of EU law, reinforced by domestic case law, shifts the balance towards freedom of expression. Standing at the crossroads of discrimination and freedom of expression, the protection of whistleblowers is in urgent need of conceptual clarification, which this article seeks to provide. To this end, the article proposes to consider the status of whistleblower as a layered legal regime, in addition to an underlying legal status such as employee, civil servant, journalist or other. The articulation between discrimination and freedom of expression thereby gains a strategic dimension that is essential to it. This understanding helps to clarify how discrimination law and freedom of expression can benefit whistleblowers and thus strengthen rather than weaken their protection.
Guest editors' introduction: Inclusive post-secondary education and persons with disabilities
Special Issue: Inclusive post-secondary education and persons with disabilities
Inclusive learning in Ireland: A case study
Ireland ratified the Convention on the Rights of Persons with Disabilities (CRPD) in 2018. However, the CRPD’s provisions on inclusive education have not been widely considered in relation to Irish third level education. This article outlines the findings from two research projects that examined the experiences of students with disabilities at one Irish university. It begins by considering the scope of inclusive education in the CRPD, addressing this through the prism of two cross-cutting rights, accessibility and reasonable accommodation. It outlines the Irish legislative context, identifying significant gaps between existing legal provisions and Ireland’s CRPD obligations. It then explores the practical realisation of inclusive education at the case study university. The article argues that accessibility in the CRPD is broader than both Irish legislative requirements and the general institutional understanding. Noting that students face significant difficulties accessing effective reasonable accommodations in practice, the paper contends that this may be partly attributable to the silo-ing of institutional knowledge and the lack of a ‘whole educational environment’ approach, as well as attitudinal barriers. These impediments prevent the full and equal participation of students with disabilities in tertiary education. The paper then draws on the CRPD to offer suggestions for enhancing inclusive practice.
Using the new disability human rights paradigm to create higher education leadership opportunities
Driven by anti-discrimination laws and a desire to promote human rights, universities have made strategic efforts to support their students with disabilities and provided some support to their staff with disabilities. However, persons with disabilities are not visible in senior leadership positions in universities. It is time for change. The UN Convention on the Rights of Persons with Disabilities (CRPD) has established new human rights expectations that require representation of persons with disabilities across all of society, and at all levels, at percentages which reflect their proportion within the population. Even though States are slow to introduce regulatory reforms to transform society and realize ability equality, some in the higher education sector are seeking to go above compliance and move their institutions, and the broader sector, to a more inclusive place. This paper maps out the efforts led at one Australian institution to use existing structures in disability discrimination laws to provide leadership opportunities for persons with disabilities as a blueprint for further change.