Advancing Equality Law

Free Public Lecture

Advancing Equality Law

Room G08, Ground Floor
Law 106
185 Pelham Street

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T: +61 3 8344 8924

law-celrl@unimelb.edu.au

Berkeley Comparative Equality & Anti-Discrimination Law Study Group - Public Lecture

'The Ambition(s) of Equality Law: From Non-discrimination to Transformation'

Presented by: Professor Colm O’Cinneide

Formally, the aim of anti-discrimination law as it has developed in multiple different states over the last four decades or so is clear, precise and limited. It sets out to prohibit certain specific forms of behaviour - namely direct and indirect discrimination and associated wrong such as harassment, which are linked to particular protected grounds. Beyond that, it generally does not go (speaking again in a strictly formal sense). It does not set out to protect individuals against more general patterns of unequal treatment, or to break down wider patterns of structural disadvantage, or to guarantee substantive equality in a general sense of the term. And yet, anti-discrimination law is increasingly interpreted by reference to these wider ambitions. In other words, it has been recruited to play an important role in a wider project of social transformation. This shift in expectations explains why anti-discrimination law has become such a dynamic area of law in recent years. It also explains why it has become increasingly controversial - and why it should be regarded as forming an integral part of a wider legal construction, which can be for the sake of argument called 'equality law'. Equality law has wider ambitions than is reflected in formal structure of anti-discrimination law: a distinction which is a source of tension, but also of strength.

‘Addressing Bias in and Through Legal institutions’

Presented by: Professor Susan Sturm

Legal and organizational scholars have undertaken to retool the law so that it can remedy structural inequality, propelled by developments in social science documenting the complex, embedded, and multi-level dynamics producing durable inequality. Much of this work maintains an anti-bias/anti-discrimination framework for defining and addressing the problem, as well as a focus on achieving compliance through enforcement by courts and administrative agencies as the prototypical form of legal intervention. Yet, these characteristic legal tools for addressing bias have proven inadequate to the task of addressing complex discrimination and reducing inequality. Compliance and enforcement strategies explicitly framed in terms of race and gender, while needed to hold people and institutions accountable for overt and explicit discrimination, may invite backlash and undercut much-needed proactive, process-oriented approaches designed to tackle more complex and structural forms. Efforts to remedy bias without explicitly tackling racial and gender inequality may heighten distrust by those who experience bias and leave intact systems that reproduce structural inequality. At the same time, legal institutions struggle with bias and persistent disparities in their own operation, at a time of increased polarization. Lawyers, change agents and diversity scholars alike thus face seemingly intractable “difference dilemmas.”

talk aims to reframe both the goals and the arenas of activity for undertaking structural approaches to bias and embedded inequality, and the role of law in promoting those changes. It is premised on the observation that addressing structural inequality requires culture change, which in turn requires designing interventions to catalyze and sustain the engagement of people in positions to influence the culture of the relevant settings. Professor Sturm will discuss the necessity of grappling with seemingly irresolvable “dilemmas of difference.” She will offer a “both/and” approach that builds the capacity to deal with the paradoxes that characterize efforts to remedy bias. She will describe how this “both/and” approach has been employed in courts, law schools, and other legal institutions that are engaged in initiatives that address, but are not defined solely in terms of reducing bias and addressing structural inequality.

Presenters

  • Professor Susan  Sturm
    Professor Susan Sturm, George M. Jaffin Professor of Law and Social Responsibility
  • Professor Colm  O’Cinneide