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Equality in Employment Special Focus: Equality in Employment Volume 15 (2015) EQUAL RIGHTS TRUST Contents 5 Editorial From Prohibiting Discrimination to Transformative Equality in Employment Articles 13 Rebecca Adami Counter Narratives as Political Contestation: Universality, Particularity and Uniqueness 25 Gemma MacArthur Securing Sexual Orientation and Gender Identity Rights within the United Nations Framework and System: Past, Present and Future Special 57 Michael Rubenstein Recent and Current Employment Discrimination Cases in the Court of Justice of the European Union 75 Rachel Crasnow and Disabled Compared to Whom? An Analysis of the Current Sarah Fraser Butlin Jurisprudence on the Appropriate Comparator Under the UK Equality Act’s Reasonable Adjustments Duty 87 Sam Middlemiss Anglo-American Comparison of Employers’ Liability for and Margaret Downie Discrimination in Employment based on Weightism 112 Shira Stanton Equality and Justice in Employment: A Case Study from Post-Revolution Tunisia 128 Equal Rights Trust “No Jobs for Roma”: Situation Report on Discrimination against the Roma in Moldova Interview 139 Branika Janković and Chai Feldblum – Equality in Employment Testimony 155 Shazia – The “Small Incidents”: Sexual Harassment in the Media Case Notes 163 Iina Sofia Ransom Employment Decisions Stemming from Discriminatory Motives Outlawed: Equal Employment Opportunity Commission, Petitioner v Abercrombie & Fitch Stores, Inc. 168 Rossen Grozev A Landmark Judgment of the Court of Justice of the EU – New Conceptual Contributions to the Legal Combat against Ethnic Discrimination 4 The Equal Rights Review is published biannually by the Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of the Equal Rights Trust. Editor: Dimitrina Petrova Assistant Editors: Jade Glenister, Joanna Whiteman Advisory Editorial Board: Sandra Fredman, Colin Gonsalves, Claire L’Heureux-Dubé, Christopher McCrudden, Bob Niven, Kate O’Regan, Michael Rubenstein, David Ruebain, Sylvia Tamale Volunteer Editorial Assistant: Rupal Shah Layout: István Fenyvesi © SeptemberDesign: 2015 Dafina The Gueorguieva Equal Rights Trust Printed in the UK by Stroma Ltd ISSN: 1757-1650 All rights reserved. No part of this publication may be translated, reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior written permission of the publisher, or a licence for restricted copying from the Copyright Licensing Agency Ltd., UK, or the Copyright Clearance Center, USA. Support the cause of equality The Equal Rights Trust is a charity relying on the support of the public. To make a donation online, please visit www.equalrightstrust.org, or send a bank transfer, the Equal Rights Trust’s account chequenumber to the with office Coutts address Bank below. (UK) is:For 07130988; donations by IBAN GB43COUT18000207130988; Bank address: Coutts & Co., 440 Strand, London WC2R 0QS Equal Rights Trust 314-320 Gray’s Inn Road London WC1X 8DP United Kingdom Tel: +44 (0)207 610 2786 Fax: +44 (0)207 833 0277 [email protected] www.equalrightstrust.org The Equal Rights Trust is a company limited by guarantee incorporated in England and a registered charity. Company number 5559173. Charity number 1113288. The Equal Rights Review, Vol. Fifteen (2015) 55 EDITORIAL Editorial AgeFrom Discrimination Prohibiting Discrimination to Transformative Equality in Employment “How old are you?" The prohibition of discrimination in the workplace on grounds"Ten," of sex answered and/or race Tangle. is the historical cornerstone of equality law in most national"You jurisdictions.don't look like Sex it," and said race the discrim lady. - ination in the area of employment continues"How to oldbe aare daily you, experience please?" forreturned many peopleTangle. in the world. However, for those living in one"Thousands of the approximately of years old," 70% answeredof UN member the lady.states that have any equality law to speak of, it would most"You likely don't be foundlook like in the it," labour said Tangle. code or similar legislation, and refer "Don'tto several I? I protectedthink I do. characteristics, Don't you see almost how beautiful always including I am!” race and/or sex. George MacDonald In the most progressive jurisdictions, these initial protections from discrimination have been beyond employment, such as in the provision of goods and services, education, the adminis- trationbuilt upon of justice, in the publiclast five and decades government so that functions, the law nowetc. At provides the same for time, equality the law in areashas evolved of life to protect people from discrimination on the basis of further personal characteristics, such This conversationas religion or belief,takes disability,place in sexualFairyland, orientation, their age,birth etc. or death dates which in any case but it makes such a perfect sense to me that whenAgainst people the speak backdrop as if agingof this inevolution, the “real” this issue of the Equal Rights Review is about equality worldand is somenon-discrimination kind of decline, in the that area decline of employment Iswere there of – thus noa best significance. going age, back an home,age suitable as it were, for to a takelife feels like an aberration from reason. It is logi- in an ideal world? In Aldous Huxley’s Brave cal, is it not, that one who is a few thousand New World, in which happiness is a manipu- years jurisprudence,aold look should at the be oldest moreand areaeffective beautiful, of equality protection. as well law. as InMichael doinglated so,Rubenstein’s biological it confirms articledestiny, that – manifestsunsurprisingly while the that right employ – this to is- more mentwhereintelligent, discrimination we find wiser, equality more law law deservesjust, to be kinder at this its mostto“most be advanced, advanced” unhappy both status,is claimedin terms at least asof nationalwithinthe only the legislation, pathway jurisdic- people,tion enjoying of the European a wealth Union, of skills, judging and cerfrom- theto levelfreedom, of detail everyone and sophistication lives until 60, of thebut legal af- tainlyquestions happier than being us. adjudicated That the vast in the majority region inter the reaching last 30 months, maturity, if not everyone necessarily looks from like the a of us progressivenessliving today will of die the beforecourt judgments reaching themselves.a young adult, frozen in a permanent physical hundred does not change the possibility that and mental age of bloom, and never deterio- as timeLet passes, me provide and perhaps a very rough till our sketch last day, of the rating, thematic until map they of employmentreach their equality.programmed At its centre is the prohibition of employment discrimination on certain grounds, or protected we could be moving ever closer to the full- dead-line. The anti-utopia, consciously or characteristics. Given the history outlined above, it is unsurprising that sex and race are ness of life. We are not diminished. th century dream of the the most immediately recognised. Sex discrimination has generated the largest number best age – that of the cover girl in women’s of legal claims at all levels. One of the frontiers for policy makers and courts today con- Contrary to this vision of ever-growing per- magazines.not, reflects the 20 cerns the achievement of gender-neutral parental rights, where fathers would be equal to sonal mothersdevelopment, in the worldthe Greeks of work considered in respect to parental leave and all related policies. At the Court of Justice of the European Union (CJEU),The the question key question, so serenely as Rubenstein answered points by theout, is how far the Court is willing to go in classifying- Greeks different may have treatment troubled of theologians fathers as contrary trying the age of 40 to be the ἀκμή, the pinnacle, the thebest great age ofmen man, of hisearlier defining generations age. The whose dox once it relocates to paradise – that of the mo- “opinions”ographers oftenthey mentionedwere transmitting, only the andἀκμή not of mentto figure of deathout what of its apparent earthly ageowner, the soulor some has, The Equal Rights Review, Vol. Fifteen (2015) The Equal Rights Review, Vol. Eleven (2013) 6 to EU law; but this is currently unclear as the decisions in recent similar cases have been 1 Racedifficult (racial/ethnic to reconcile. origin) is the most “suspect” protected characteristic in the area of em- ployment as well as elsewhere, meaning that it attracts perhaps the strongest protection from direct discrimination, with very few exceptions likely to be allowed if the jurisdiction makes use of a crucial concept which in EU law is termed “genuine and determining occupa- tional requirements”. In other words, direct race discrimination in employment might only - tion. How many such jobs can you think of? be justifiable if the race of a person is absolutely necessary for performing the job in ques Once sex and race discrimination began to be broadly outlawed in an increasing number of states, the time came, around the mid-1990s, for equality law to start to cautiously embrace further characteristics and emanate further strands of protection: sexual orientation, gender analysis. Coupled with this, the increasing diversity of workforces has led to an increasing numberidentity (genderof discrimination re-assignment claims in being the UK), brought disability, on grounds age, etc., such each as requiring religion. ground-specific Some of the most controversial issues arise in relation
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