Editorial
| Date | 01 December 2009 |
| DOI | 10.1177/135822910901000401 |
| Published date | 01 December 2009 |
International Journal
of
Discrimination and the Law, 2009,
Vol.
10,
p.
161
1358-2291/2009 $10
© 2009 A B Academic Publishers. Printed in Great Britain
EDITORIAL
161
Some
of
the difficulties faced
by
claimants in Australia are considered in
this issue. Guthrie, Taplin and Oliver consider the impact
of
racial and
sexual harassment and bullying on employees' health and the problems
of
achieving success within the context
of
workers' compensation laws.
The authors review unreported court decisions and statistical data, as
well as files
of
claims based on sexual and racial harassment held
by
the
Western Australian Equal Opportunities Commission, to examine the
links between ill-health and harassment. Racial and sexual harassment
and bullying
may
lead to a range
of
health problems including stress and
depression and raise gender issues as women are primarily affected.
These problems also impose costs on employers in terms
of
absence from
work and compensation and the number
of
claims
of
ill health resulting
from stress at work is increasing.
Dominique Allen discusses the problems
of
ADR
highlighted
by
Owen Fiss with reference to the way discrimination complaints are dealt
with in Australia. Fiss is critical
of
settlement in part because it denies the
courts the opportunity to interpret the law, and because individual
complaints have limited effect in eliminating discrimination. These
concerns are borne out in Australia, argues Allen. While
ADR
deals with
complaints quickly and informally and is less intimidating for partici-
pants, it is limited both in its capacity to develop anti-discrimination law
or to remove discrimination and complainants who settle are usually
bound
by
confidentiality agreements. Allen considers ways
of
dealing
with these issues in the US, the
UK
and Ireland and discusses the results
of
interviews with lawyers working in the relevant Equality
Commissions. Improvements are recommended, including providing
direct access to the courts, allowing parties to choose between adjudica-
tion and ADR, and developing a rights-based approach to address the
problem
of
power imbalances. More information
on
settlements and key
cases, Allen argues, should be published
by
the Equality Commissions
and the courts to develop and publicise the law
in
this area.
Gillian Demeyere focuses
on
the broader issue
of
whether anti-
discrimination law poses a limit on freedom
of
contract. She denies that
there is a conflict as the discriminatory practice
of
employers falls outside
the freedom
of
contract and the aim
of
anti-discrimination law is to
prevent contractors refusing to contract for arbitrary reasons. This issue
is discussed with reference to Canadian constitutional law, but it clearly
has implications for other common law jurisdictions.
If
freedom
of
contract is understood as immunity from interference
on
an arbitrary
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