The courts have originally approached discrimination through its purest and cleanest manifestation, as an intentional act, intended to adversely treat a person or a group, resentfully considered because of the assignment of a protected characteristic. While the perception of discrimination by judges has considerably evolved in a few decades, new forms of discrimination are frequently analyzed through an old prism: judges often find it difficult to unshackle their analysis from intention and they still tend to look for the “adversely” aspect in the treatment itself rather than in its effects. Instead, it would be possible to concentrate the analysis on the treatment effects, as Canadian judges are used to. This paper will try to promote this judicial approach and emphasize its conceptual repercussions, considering that it contributes to weaken the relevance of the distinction between direct and indirect discrimination as well as it facilitates the sanction of systemic discrimination.
The adoption of the Race Equality Directive (2000/43/EC), the Framework Directive (2000/78/EC) and the Gender Directive on goods and services (2004/113/EC) radically transformed the landscape of EU non-discrimination law. From a means to advance market integration, non-discrimination law is said to have evolved towards a genuine fundamental right of equality. Yet, the CJEU’s efforts to give substance to the newly invigorated non-discrimination general principle have met political backlash. At the same time, the reforms have lastingly established an equality hierarchy among protected grounds of discrimination. This paper thus interrogates the transformation of equality from a byproduct of market integration to a genuine fundamental human right to equality. It deconstructs the official disruptive narrative and argues that non-discrimination law, confronted with political pushback, has transformed into a hybrid principle that effectively performs the liberal mandate entrusted to the EU.
Convention on the Rights of Persons with Disabilities pursues a comprehensive protection of persons with disabilities for their effective integration in the economic sphere. In France as in Taiwan, a system of employment quota with pecuniary sanction has been established. Yet the lack of economic incentive may drive private employers to offer positions with least perspective or prepare a fund for sanction. Along with the obligations under CRPD, the right to equality guaranteed by the French and Taiwanese constitutions can come to question whether the quota system is effective or efficient in achieving the socio-economic inclusion on an equal basis. This paper examines French and Taiwanese constitutional court jurisprudence on quota systems under relevant CRPD principles, and argues that equal protection should not merely be evaluated by employment rate. Without incentive for different sectors, the jobs thus created may not ensure an effective inclusion of persons with disabilities.
The concept of discrimination has substantially evolved since its first applications in the second part of the 20th century. Indeed, while internal law and international conventions only targeted discrimination grasped as rules causing a disadvantage towards a person or a group on the basis of an illegitimate criteria, new distinctions have emerged. The recent introduction of the category of discrimination by association as a new prohibited distinction is part of this evolution. Originally Canadian, discrimination by association was incorporated in European law under the influence of the ECJ and the ECtHR. The diversification of prohibited distinctions and discriminatory behaviors, to which the introduction of discrimination by association refers, aims at improving effectivity of non-discrimination law, by expanding its scope. This paper will address the introduction, and its effects, of this new category, focusing on the objectification of anti-discrimination law that results from it.