Discrimination Law, Lecture 1

5/25/2018 Discrimination Law, Lecture 1

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University of Technology, JamaicaFaculty of Law

Discrimination Law

Lecture 1

Introduction and Structure ofDiscrimination Law


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Definition of discrimination Noticing or marking a difference, often for evaluative purposes:

Distinguishing and Differentiating.

Technical meaning of discrimination implies inequality. Thus, non-discriminatoryactions (e.g., merit based employment) may have discriminatory effects (e.g.,denying jobs to historically disadvantaged groups) and are thus considered unfair.

Affirmative Action (which discriminates on race), however, is not considereddiscriminatory as it is designed to address a historic wrong.

The difference between the technical meaning for discrimination, i.e., inequality(used by lawyers) and the ordinary meaning, i.e., difference, (used by lay persons)can result in confusion.

Discrimination Law usually covers situations found in: Education,

Employment, and

Provision of services.


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Aims of Anti-Discrimination Law

Improvements in the social and economic

positions of historically disadvantaged groups,

e.g., women and the disabled.

Recognizing the equality of all citizens.

Which avenue to pursue? The courts or the

Legislature?

Are judges best able to achieve equality?

Does political mobilization for equality result in

public and private good?


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General principles of discrimination

CCPR General Comment No. 18: Non-

discrimination: 11/10/1989

Non-discrimination, together with equality before

the law and equal protection of the law without

any discrimination, constitute a basic and general

principle relating to the protection of human

rights.


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Proving Discrimination

Either Direct or Indirect Discrimination or

Victimization must be proved

Discrimination must have occurred in either:

Education,

Employment, or

Provision of Services


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Direct Discrimination

No ill-will or prejudice need be shown in order

to prove direct discrimination.

Less favourable treatment is required:

S. 1(1) Sex Discrimination Act 1975 (UK)

S. 1(1) Race Relations Act 1976 (UK) Dwldf

The treatment can be slight

Gill v El Vino Co Ltd [1983] 1 All ER 398

N.B. For cultural reasons, different treatment on the

grounds of gender is not considered the same as

race because of the impact of slavery.


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Indirect Discrimination

Focuses on Social Inequality:

Economic,

Employment Acheievment.

Compares the performance and achievement

of groups rather than individuals.

Griggs v Duke Power Co 401 US 424 (1971)

Affirmative Action (vast racial disparity in

educational and employment attainment in the

American Deep South a function of historic

process of black exclusion).


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Conventions/Treaties

The Legal Effect of Conventions/Treaties in

Discrimination Law

Jamaica requires domestication of

conventions/treaties;

c/f Neville Lewis v. The Attorney General of

Jamaica (2000) UKPC 35


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Conventions/Treaties

The influence of Conventions and Treaties on

Caribbean law

The European Convention for the Protection of

Human Rights and Fundamental Freedoms (ECHR)

signed 1950 entered into force 1953.

First comprehensive HR treaty

First International Complaints procedure First International Court for HR matters

Most Judicially developed of all HR systems

Generated the most extensive HR jurisprudence.


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European Court of Human Rights

and Jamaican Jurisprudence Grant v R [2006] UK PC 2

-Constitutionality of S. 31D of Evidence Act

- JCPC relied on persuasive authority of

European Court Jurisprudence

[T]he Board readily accepts the relevance of

the Strasbourg jurisprudence...[on] the

European Convention, since that Convention

applied to Jamaica before it became

independent...


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American Convention on Human

Rights (1969)

Where the exercise of any of the rights or

freedoms referred to in Article 1 is not already

ensured by legislative or other provisions, the

States Parties undertake to adopt, in

accordance with their constitutional processes

and the provisions of this Convention, such

legislative or other measures as may benecessary to give effect to those rights or

freedoms.


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Inter-American Commission

Permanent body operating since 1960; 7 Commissioners elected by the OAS General

Assembly (Political Body) for 4 year terms;

Relies on the American Convention, theAmerican Declaration of the Rights and Duties

of Man and other International Human Rights

Instruments. Makes recommendations (non-binding)


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Inter-American Commission

(contd.)

Prepares reports on the HR conditions in

countries and on particular themes;

Conducts On-Site Visits (visited Jamaica in

2008);

Develops Specialized Work in certain Thematic

Areas through Rapporteurs and other

Mechanisms;

Hear and Resolve Complaints (individual or

organ. and may refer to Court if possible).


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Inter-American Court of Human

Rights (1979) 7 Judges (including a Jamaican)

Enforces and Interprets the Inter-American

Convention on Human Rights (adjudicatory

and advisory);

Individuals are not allowed to take cases.

Must be represented by the Commission;

Country must submit to its jurisdiction (only

Barbados in the Anglo-phone Caribbean);

Decisions are binding but must be enforced by

states or referred to the political body OAS.


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International Covenant on Civil and

Political Rights

A multilateral treaty adopted by the United

Nations General Assembly on December 16,

1966, and in force from March 23, 1976.

It commits its parties to respect the civil and

political rights of individuals, including right to

non-discrimination (Arts. 2 and 26)

Monitored by the Human Rights Committee,

which reviews regular reports of States parties

on how the rights are being implemented.


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International Covenant on

Economic Social and Cultural Rights

A multilateral treaty adopted by the United

Nations General Assembly on 16 December

1966, and in force from 3 January 1976.

It commits its parties to work toward t(i.e.,

not immediately binding) the granting of

economic, social and cultural rights to

individuals without discrimination (Art. 2)

Monitored by the UN Committee on

Economic, Social and Cultural Rights.


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Convention for the Elimination of All

Forms of Discrimination Against Women

Adopted in 1979 by the United Nations General

Assembly, came into force on 3 September 1981.

Monitored by Committee on the Elimination of

Discrimination Against Women The Convention defines discrimination against

women in the following terms: Any distinction, exclusion or restriction made on the basis of sex

which has the effect or purpose of impairing or nullifying the

recognition, enjoyment or exercise by women, irrespective of their

marital status, on a basis of equality of men and women, of human

rights and fundamental freedoms in the political, economic, social,

cultural, civil or any other field.


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Convention on the Rights of the

Child

It came into force on 2 September 1990.

Defines a child as any human being under the

age of eighteen, unless an earlier age of

majority is recognized by a country's law.

Monitored by the UN Committee on the

Rights of the Child.

Prohibits discrimination of any kind,

irrespective of the child's or his or her

parent's or legal guardian'sstatus, etc.


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Convention on the Rights of

Persons with Disabilities

Adopted by the UNGA on 13 December 2006

and opened for signature on 30 March 2007.

Following ratification by the 20th party, it

came into force on 3 May 2008. Jamaica wasfirst party.

The Convention is monitored by the

Committee on the Rights of Persons withDisabilities.

Defines disabilities (Art. 2) and Prohibits

Discrimination (Art. 3)


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Constitutional Overview

Old model Constitutions

Barbados s. 23 discriminatory is a closed list.

The Bahamas s. 26 discriminatory is a closed list.

New Model Constitutions

St. Lucia s. 13 discriminatory is also closed list.

Trinidad and Tobago s. 4 discrimination closed.

Jamaica s. 13(3)(i) discrimination is also closed.


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Caribbean Constitutions and Bill of

Rights Provisions Constitutional Supremacy

Hinds v R [1997] AC 195

Giving a Generous Interpretation (e.g. what does

sex mean?) Minister of Home Affairs and Another v Fisher

[1980] AC 319

Derogation from rights must be given strict andnarrow interpretation

Boyce and Joseph v R (2004) 64 W1R 57; [2004] UKPC32, PC

Attorney General for Grenada v Coard and others (2005) 68

W1R 289, 312

Lewis v Attorney General of Jamaica [2001] 2AC 50, 78


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Caribbean Constitutions and Bill of

Rights Provisions

Limitation on fundamental rights

deFreitas v Permanent Secretary of the Ministry of

Agriculture, Fisheries, Lands and Housing and

Others (1998) 53 W1RBP

Presumption of Constitutionality- Hector v Attorney General of Antigua and Barbuda (1990) 37 W1R 216

Caricom Charter Art. 2 speaks to closed list of distinctions BUT

Art. 4 requires states to advise citizens of

international and regional Human Rights

agreements they subscribe to

Documents

Discrimination Law, Lecture 1