Discrimination, Equality and Social Inclusion

Abstract

Although laws against discrimination have conventionally been justified and articulated according to various conceptions of equality, tensions between different notions of equality undermine the coherence of these explanations. The aim of social inclusion is proposed as part of an alternative justification for discrimination laws. As well as exploring the meaning and implications of the policy of social inclusion for discrimination laws, the extent to which the law already embodies this idea is assessed with particular reference to the scope of anti‐discrimination laws, proof of discrimination, justification defences, and positive discrimination. It is concluded that the goal of social inclusion has the potential to provide a vital ingredient in a more coherent, though not uncritical, account of the aims of anti‐discrimination legislation.

Increasing Gender Diversity in Senior Roles in HE: Who Is Afraid of Positive Action?

“…However, for the purpose of contesting this objection, it is helpful to focus on a more substantive model of equality which is underpinned by the idea of social inclusion. This model encompasses both the idea that equality should be seen as a means of breaking the cycle of disadvantage suffered by some groups, as well as the idea that all groups in society should be given opportunities to participate in various aspects of civic life, including work [45,49]. This focus on social inclusion, as highlighted by Vickers [50], provides the best theoretical underpinning for a more pro-active approach to equality and to positive action.…”

The Meaning of Ethnic Equality in Scandinavian Anti-Discrimination Legislation

“…British legal professor Hugh Collins has pointed to the dilemma that equal treatment regulates a procedure and not an outcome, which is a source of perpetual tension in anti-discrimination law (Collins 2003: 17). European law, as well as Swedish and Norwegian law, regulates not only equal treatment but also three kinds of deviations from this principle (Collins 2003). The first is circumstances when differential treatment is necessary to avoid direct discrimination, for example, for pregnant women or people with disabilities.…”

Equality and Inequality: Legal Aspects

“…The law pursues equality by eliminating race, gender, or other suspect social categories as a legitimate basis of classifying people for the purpose of allocating resources or making decisions (Collins, 2003). Sometimes called the anticlassification principle (Fiss, 1971;Siegel, 2004), formal equality focuses on the state of mind of the decision maker; it targets intentional reliance on race, gender, or another protected category as the violation of the equality norm.…”

“…Canadian, French, and the EU law similarly bases prohibitions against disparate treatment on dignitary values, often drawing directly from United States antidiscrimination laws of the 1970s (De Burca, 2012;Moreau, 2010). For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits discrimination "on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status," and grounds this equal treatment mandate in the "independent value of respect for individual dignity" (Collins, 2003;Tremblay, 2012). Proponents of formal equality also identify racial polarization as a concern underlying color blindness jurisprudence (Siegel, 2011;Yoshino, 2011): "All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individuals burdened.…”