Effective Deterrence v Accessible Remedies: What Not to Borrow from US Discrimination Law

AuthorAaron Baker
DOI10.1177/135822910400600202
Published date01 March 2004
Date01 March 2004
International Journal of Discrimination and the Law, 2004, Vol
. 6, pp
. 109-139
1358-2291/2004 $10
© 2004
A B Academic Publishers
. Printed in Great Britain
EFFECTIVE DETERRENCE
V
ACCESSIBLE REMEDIES
:
WHAT
NOT
TO BORROW FROM US DISCRIMINATION
LAW
AARON BAKER*
University of Durham, UK
ABSTRACT
At a time when the UK consults on the appropriate powers and mission of a new
single equality commission, the fight against discrimination must avoid unin-
tentionally eroding the ability of the employment tribunals to deliver accessible
dispute resolution to individual victims of discrimination
. This article analyses the
US system for resolving employment discrimination disputes to demonstrate that
dispute resolution mechanisms can be and are used in pursuit of two different and
potentially conflicting projects
: the project of forcing social change by eliminating
structures of discrimination in society as a whole (the `social change' project), and
the project of providing a forum for the individual victim of discrimination to seek
a quick, cheap, accessible and satisfying remedy (the `dispute resolution' project)
.
In the US, the social change project has appropriated the formal system for
employment discrimination dispute resolution by emphasizing punitive (exemp-
lary) damages, class action lawsuits, and government funded strategic litigation to
send strong deterrent messages, with the result that that system has become
essentially inaccessible to almost all individual victims with small claims
. This
negative example is offered as a warning that the fight against discrimination in
the UK must carefully consider the effects of introducing `modern' enforcement
tools and strategic equality commission litigation to the employment tribunals on
the ability of this forum to deliver the accessible individual remedies for which it
was designed
.
INTRODUCTION
The recently promulgated Employment Equality (Sexual Orienta-
tion) Regulations 2003 and Employment Equality (Religion or
Belief) Regulations 2003 mark the latest legislative steps in what
promises to be a fascinating period of adjustment by the UK to a
`new age'
1
of European workplace anti-discrimination law
. This new
age, ushered in by the 1999 Amsterdam Treaty's adoption of EC
Treaty Article 13 and the Race and Framework
3
directives of 2000,
appears to be the age of the anti-discrimination agency or, as the
European Commission calls them, `specialised bodies to promote
equality and/or combat discrimination
.'
4
In October 2003 the UK
1 1
0
Department of Trade and Industry announced plans for a single
equality body, the Commission for Equality and Human Rights
(CEHR), to replace the existing Commission for Racial Equality
(CRE), Equal Opportunities Commission (EOC) and Disability
Rights Commission (DRC)
. This new agency is to take `a strategic,
modern approach to enforcement of equality legislation, supported
by up to date enforcement tools'
.
5
Commentators and officials see such agencies as an essential
step in making the fight against discrimination more effective,
although there are of course diverging visions of what these `up to
date enforcement tools' might be
. Some urge imposing a `new
generation' of positive duties on employers and public officials,
6
while many focus on strengthening the deterrent tools for enforce-
ment of the existing species of negative anti-discrimination rights
.
?
The only unifying characteristic of these new directions is not where
they are going but what they hope to leave behind
. Whatever role
they might see for new or strengthened agencies, most UK employ-
ment lawyers seem to agree that the days of fighting workplace
discrimination primarily by waiting for employees to pursue, at their
own expense, purely compensatory awards for violations of negative
rights, are numbered
.
$
The new age, it appears, will move beyond the
use of individual tribunal claims to meet its ends
.
This article argues that the debate over the role of a new and
stronger equality body, and on the direction of anti-discrimination
regulation as a whole, must take into account the impact of a
redesigned `social change' model on individual dispute resolution
.
Tensions can arise between what can be described as the project to
combat employment discrimination as a matter of overall social
change (`the social change project') on one hand and the project to
protect or improve the availability of cheap and speedy employment
discrimination dispute resolution (`the dispute resolution project')
on the other
. Changes to the model adopted for pursuing the social
change project must necessarily have effects, some of them negative,
on the dispute resolution project . Specifically, changing the way the
social change project uses the procedural mechanisms relied upon to
deliver the dispute resolution project could well threaten the priceless
asset of cheap and speedy remedies in the employment tribunals
. My
point is not to discourage new measures or a strengthened social
change project -
some popular proposals have few negative
implications for dispute resolution -
but to encourage the recogni-
tion of the equally valuable dispute resolution project, whose
interests diverge from those of the social change project, and must
be pursued and protected in their own right
.
This point will be made by way of a negative example
.
9
A
critical look at the US system for dealing with employment

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