Berkeley Comparative Equality and Anti-Discrimination Law Study Group Annual Conference (June 2018)

Conference

Berkeley Comparative Equality and Anti-Discrimination Law Study Group

Monday - Tuesday, 11 - 12 June 2018

About the event

The Berkeley Comparative Equality and Anti-Discrimination Law Conference at Melbourne Law School brought together 30 speakers and 55 participants from around the world for two days of enjoyable and stimulating discussion. The conference featured keynotes from Professor Colm O'Cinneide (UCL) and Professor Susan Sturm (Columbia).

Selected papers from the conference will be published as part of the Berkeley Comparative Equality & Anti-Discrimination Law group SSRN e-journal in September 2018.

Public Lecture

Advancing Equality Law, Tuesday 12th June 6pm

Presented by Professor Susan Sturm (Columbia Law School) and Professor Colm O'Cinneide (University College London)

Pictured from left: Professor Susan Sturm, Professor Beth Gaze, Professor Colm O'Cinneide and Dr Alysia Blackham.

Conference presenters and paper titles

Dominique Allen and Alysia Blackham -- Confidentiality and settlement: Uncovering the hidden secrets of the enforcement of equality law in Australia and the UK

Shreya Atrey - Women's human rights: From progress to transformation: An intersectional response to Nussbaum

Susan Banki and Leila Morsy - Are African Americans candidates for refugee status?

Kristen Barnes - Integrating Marseille: Redevelopment design as a way to accomplish racial integration, equality in housing and avoid gentrification?

Maggy Barrère Unzueta - On the need to rethink the concept of discrimination in anti-discrimination law: Discrimination as a stigma and the antisubordination paradigm

Amy Barrow - Sexual orientation, gender identity and equality in Hong Kong: Rights, resistance and possibilities for reform

Mark Bell - Can anti-discrimination law improve the position of people with intellectual disabilities in the labour market? Learning from experience in the USA

Greta Bosch - An interdisciplinary approach to equality and discrimination: Business, psychology and law

Susanne Burri - The role of equality bodies in enforcing anti-discrimination law in the EU: Combatting gender discrimination in the Netherlands

Colin Campbell and Dale Smith - The "causation" requirement in direct  discrimination

Laura Carlson - Access to justice in Sweden from a comparative perspective

Peter Dunne - An unlikely queer rights advocate? Rethinking the CJEU's case law on sexual orientation and gender identity equality

Liam Elphick - Discrimination in sport: Should transgender and intersex athletes be eligible to play AFLW?

Brynhildur G. Flóvenz - Gentle women and strong men: The recruitment of supreme court judges in Iceland

Beth Gaze - Can you prove it's discrimination? A comparative review of direct discrimination and the shifting onus of proof

Beth Goldblatt and Linda Steele - Thinking about discrimination and equality through the menstruating body

Yun-Hao Hsin - A research on the legal issues related to employment tests

Professor Colm O'Cinneide - Keynote, 12th June - The ambitions of equality law from non-discrimination as rationality to non-discrimination as transformation and getting stuck in between

Isabel Karpin and Karen O'Connell - Rethinking the stress of inequality as an intersectional and intergenerational harm

Tarun Khaitan and Jane Norton - The place of religion in human rights law: Distinguishing Freedom of Religion from the right against religious discrimination

Joelle Nwabueze - Inventions at the work place and discrimination of vulnerable workers: Can intellectual property law prevent the weak from being eaten?

David Oppenheimer - Twenty years after Faragher and Ellerth, is it time to re-visit strict vicarious liability for on-the-job sexual harassment?

Simon Rice and Belinda Smith - Mechanisms for meaning: Exploring ways to make anti-discrimination laws more effective by focussing on on prevention rather than breach

Professor Susan Sturm - Keynote, 11th June - Addressing bias in and through legal institutions

Alice Taylor - The many purposes of Australian anti-discrimination law

Kyriaki Topidi - Faith based education and equality: Towards an education of prejudice? - The examples of faith schools in England

Bin Wang - Chinese special university admission policy towards the poor rural areas students: Equal education rights protection or not?

Summary of themes and discussion

By Bernie Carrick, PhD candidate, Melbourne Law School

Each of the presentations related to one or more of six key themes.

Limitations of Law or Legal Procedures

Many presentations noted the limitations of particular legal regimes or of legal methods generally. Simon Rice and Belinda Smith highlighted the significant gap between the stated aims of discrimination legislation in Australia, and what courts and tribunals are able to achieve. While acknowledging courts could perform better than they do, they argued that ultimately there are limits on what an individual complaints model can achieve in terms of social change. Looking at the United States, David Oppenheimer noted that the ‘me-too movement’ has demonstrated the extent to which the law has failed to change practices in workplaces and other public spaces. He placed responsibility for this with positions taken by Federal Courts that have made it easy for employers to avoid liability for sexual harassment in their organisations without making workplaces any safer for women.

Others highlighted problems that can be built into complaint mechanisms. Dominque Allen and Alysia Blackham argued, in part, that confidentiality in conciliations contributes to the depiction of discrimination as a private, individual issue, rather than a societal one. They called for the release of de-identified data on complaints and conciliations, including demographic data about the parties, representations and settlement terms, noting that without access to such data it is very difficult to determine whether laws are achieving their objectives.

Sometimes the law itself can have consequences that are at odds with, or undermine its objectives. Maggy Barrère Unzueta noted that duties to avoid indirect discrimination can reinforce gender stereotypes and norms for example, and Beth Goldblatt and Linda Steele pointed out that policies allowing women to take menstrual leave can have the similar effect of reinforcing negative stereotypes.

Inter-relatedness of Concept, Method and Purpose

Several interesting papers drew out intricate connections between the discrimination or equality concept, the method of determination provided for in legislation, and the law’s underlying purposes.

Colm O’Cinneide spoke of how the aims of equality law have evolved over time, and that the shift has occurred within existing legal frameworks, resulting in a situation where the same norms can be interpreted in paradoxical ways, depending on what the law’s purpose is understood to be. In highlighting the lack of consistency in Australian courts’ articulations of the purposes of discrimination law, Alice Taylor noted that a consequence is ongoing lack of clarity about the kinds of harms that the law is designed to prevent and correspondingly, what is required of duty-bearers. On the other hand, Shreya Attrey argued that the intersectional approach that CEDAW has increasingly taken has allowed it to be a transformative tool, subverting and transforming multiple and overlapping systems of disadvantage.

The mental or causation element of direct discrimination was addressed in different ways by Beth Gaze and Colin Campbell and Dale Smith. Beth drew out the link between process and definition in direct discrimination, arguing that where the burden of proof lies is a central element of the concept and provides a mechanism for focusing attention on the core issue of the respondent’s reason for acting, including when they may have sought to hide their intent. Colin and Dale argued for a ‘reasoning oriented’ approach to understanding causation requirements in direct discrimination provisions, holding that this is a better fit between the range of mental states that may drive duty-holders’ actions in practice, and the objectives of discrimination law.

Purpose and concept were also, for Tarun Khaitan and Jane Norton, the key to allaying confusion over the distinction between religious freedom and non-discrimination on the basis of religion. The critical difference lies in understanding both what the two rights protect, and how they are protected.

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Conference speaker and audience

Capacity-Building or Empowerment

The need to build capacity within organisations was identified by some speakers. Susan Sturm in her keynote presentation spoke of the paradoxes central to change work around equality, and the need for legal institutions to have systems for capacity-building, enabling them to use the ‘paradox’ as a lens through which to engage directly with affected communities, and to build research and reflection into the way their systems operate.

Illustrating part of Susan’s argument, Brynhildur G. Flóvenz, lamented that when, in order to address the gender imbalance in Icelandic courts, parties were required to nominate both men and women as judges, most continued to nominate men in primary position and women only as alternatives. This points to the importance of change coming from within institutions and systems, rather than being imposed from outside.

Simon Rice and Belinda Smith noted that one problem with Australia’s individual complaints mechanism is that duty-bearers are expected to have the commitment and capacity to change their practices but often they do not, and the law currently does not enable them to develop it.

Systems of Power

The concept of power was highlighted in different ways by several papers. Maggy Barrère Unzueta concurred with Solanke on the importance of power to a concept of discrimination. However, rather than viewing it solely as stigma, she argued for the retention of discrimination as ‘treatment’. Treatments, she stressed, can also be understood in terms of their meaning within a system of power and they are familiar concepts to legal cultures.

The inadequacy of neatly defined lists of protected attributes was noted by Isabel Karpin and Karen O’Connell, who pointed out that individuals don’t experience discrimination as isolated incidents that fit into the identity categories of protected attributes, but rather as complex experiences of intersecting categories, interwoven with the social and material world and bound up with hierarchies of power which have intergenerational effects. The importance of power to understanding intersectionality was also addressed by Beth Goldblatt and Linda Steele who, noting that menstruation discrimination is deeply intersectional (particularly for women with disabilities, prisoners and detained refugees, girls in educational institutions and homeless women) pressed the need to take care when addressing it, so as not to reinforce hierarchies of power between groups of women.

Kristen Barnes, in her discussion of measures taken in Marseilles and in Texas to ensure minorities can share, inhabit and choose their place in the city, together with the social, economic and political opportunities that flow from being in a place, envisaged law being used to positively structure space and thereby norms of behaviour.

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Working Between and Across Legal Categories and Disciplines

Another theme that arose from several papers was the benefits of looking for possibilities beyond and between traditional siloed legal categories. Greta Bosch argued that an interdisciplinary approach is necessary to make substantive equality work in a transformative way. Describing a pilot module offered to students with academics from Law, Business and Psychology, she argued that only an interdisciplinary approach can do the work needed to understand disadvantage, design appropriate legal mechanisms and then implement them effectively in organisations.

Joelle Nwabueze discussed the role that intellectual property law can play in moderating the unequal power relationship between employers and employees, while Yun-Hao Hsin compared the interaction of privacy and discrimination laws in the management of data collected from employment tests such as polygraphs, integrity tests and DNA. Liam Elphick described the challenges of gender identity discrimination in a sporting context, and Susan Banki and Leila Morsy argued that, aside from being outside their country of nationality, African-American men have a plausible claim to meet the definition of a refugee set out in the Refugees Convention because they are subject to racially-based, state-sponsored, systemic violence.

Jurisdictional and Cultural Differences

Finally, several papers highlighted differences between jurisdictions and legal cultures. In addition to papers already mentioned discussing aspects of Australian, United Kingdom and United States regimes, Laura Carlson compared equality law in the UK and Sweden where public education, rather than complaint-resolution is the preferred mechanism. She argued that the differences cannot be explained simply by the common/civil law dichotomy. Unlike the UK, Sweden doesn’t have a strong tradition of private enforcement of law, or of individual rights, and without an expectation that courts should enforce the law for individuals, legislation’s effect is limited.

Amy Barrow described how the Hong Kong government has also preferred to use educational and policy measures to address sexual orientation and gender identity discrimination, resisting calls to prohibit it in legislation. She attributed this to traditional Chinese cultural values that strongly influence attitudes towards gender and sexuality in Hong Kong, together with a Christian ethos that still pervades public institutions. Bin Wang spoke about the benefits and limitations of universities in China having mandated quotas of rural students in order to address disparities of income and school standards between rural and urban areas.

And in a positive vein, Susanne Burri described how the Dutch Institute for Human Rights has played a key role in uncovering the extent of direct discrimination based on pregnancy, particularly in the context of flexible work and fixed term contracts. It found a lack of awareness and readiness to report such discrimination and took measures to address this. Susanne argued this case demonstrates what can be done when equality bodies are well-resourced.

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