Summary
Summary EMPLOYMENT LAW NOTES- DISCRIMINATION
- Module
- Employment Law LLB
- Institution
- Oxford University (OX)
Super comprehensive and in depth notes for the exam. Includes notes from readings and academic commentary.
[Show more]
Seller
Follow
Content preview
lOMoARcPSD|4343847DISCRIMINATION
Cabrelli Chapter 14: Equal Pay Law
Contextual Analysis of Equal Pay Law
Equal pay for equal work – Chapter 3, Part 5 EqA 2010. Key issues:
continued gender pay gap; S66 EqA ‘sex equality clause’ based on ‘like
work’, ‘work rated as equivalent’ and ‘work of equal value’ per S65 EqA.
Main piece of legislation – Equality Act 2010, which consolidated and
reformed the law. Most of the law revolves around the concept of a
‘protected characteristic’ per S4 EqA 2006 – sex, race disability, religion or
belief, sexual orientation, age, pregnancy and maternity, gender
reassignment and marriage and civil partnership. The aim is to push
employers to make their business decisions related to employees on
merit-based grounds.
Contextual introduction to employment equality law
Equality is a prescriptive concept; can be distinguished as either formal or
substantive equality – certain disadvantaged groups may arguably require
a ‘leg up’ where that group has suffered from structural inequality. This
means going beyond simply ‘equality of treatment’ in the sense of
consistency (ie like treated like); further issue – each worker may possess
a range of protected characteristics – how do we protect the worker
effectively?
Hayek (2006) is against employment equality legislation in principle
because liberty is more important that equality according to him – all are
entitled to equal treatment by the Government despite their differences in
stature – this is the essence of liberty. To respond to these differences and
to treat different people differently accordingly would put substantive
equality ahead of liberty – this is not something the state ought to
interfere with.
Such an approach contrasts the interests of the individual against that of
the community. True, the common law has traditionally taken a more
individualistic approach, as reflected in the old employment at will theory
per Lord Davey in Allen v Flood (1898). Ultimately, any employment
equality legislation would need to (i) accept that some trade-off between
liberty and equality is desirable, and (ii) decide where that balance should
lie.
Note that Department of Business and Innovation (2013) noted that laws
against discrimination can have either an extrinsic ‘business sense’
justification (best candidate for the job for best results) or an intrinsic
moral justification.
, lOMoARcPSD|4343847
Epstein (1992) says that the intrinsic arguments are all very well but the
business arguments are unfounded. There is a tension between anti-
discrimination laws and freedom of contract and freedom of contract
should prevail. Epstein is a neo-liberal who says ‘let the market decide’ – a
racist employer will recruit from a smaller pool of qualified candidates and
therefore be a less competitive entity and therefore eventually withdraw
from the market. These market-based arguments can be further refined:
• An employer with a ‘taste for discrimination’ (Becker, 1971)
will be forced out of the market in the long run because he will
become uncompetitive by hiring less able employees (supported by
Sunstein, 1997), and that reputational damage inflicted on
employers for being racist will drive them out (Epstein, 2002) –
o But if you take economic theory to its logical conclusion,
if economic agents are self-interested then how would this
matter?
o Further, empirically, this does not work: Schwab, 2009.
Actual impact of being racist on profits will depend on market
conditions – an employer may be willing to make only an 8%
annual profit instead of a 10% annual profit if it means he can
stick to an all-white workforce. If enough racist investors are
willing to accept this state of affairs, this will have the effect of
locking minority ethnic groups out of many jobs long-term,
reducing their average pay due to lowered demand for their
labour.
o Schwab also mentions the issue of monopoly power – a
monopolist can be racist with no impact on their bottom line if
there are no close substitutes
• Wrt sex discrimination, Becker (1985) argues that wage
differentials between men and women simply reflect the fact that
women on average spend more time out of the labour market to
look after children etc and so this is not an issue of discrimination at
all. Rather, legislation should be adopted that aims to correct
societal perceptions that women should be responsible for the bulk
of childcare. Further, having children means women may feel
restricted wrt what sort of work they can do eg jobs which will allow
them to be home by the end of the school day. To the extent that
this is an externality which compromises the efficient function of the
labour market, the externality should be internalised through a
surcharge on women’s salaries to make up for the valuable working
time women spend on childcare-related activities. This should be
done to promote a more even distribution of responsibility for
childcare and household labour between the sexes, and to chip
, lOMoARcPSD|4343847
away at institutional perceptions that female labour is somehow less
valuable than male labour.
• Posner (2011) further argued that anti-discrimination laws are
self-defeating as employer would instead avoid hiring workers from
the protected groups so as to avoid increased costs or risks
associated with discrimination claims. Further, if a general
surcharge on women’s labour in the Becker sense is adopted,
childcare costs will be particularly subsidised by childless women
(?).
o In reality, employers do not make decisions on purely
economic grounds
• General argument that state interference in private matters
should be kept to a minimum – this is a neo-liberal approach that
says there should be no interference by the Government unless
there is a pressing need to do so.
o But perhaps there are pressing social costs associated
with discrimination even if the economic case is not so strong?
Designing an employment law framework: exploring the theoretical
justifications and potential policy objectives:
• First issue to address – policy choice of substantive or formal
equality – this is a value judgement. If pursuing substantive
equality, to what extent should there be distributive justice as
opposed to getting people to the same starting point.
• Freedman (2011): equality of treatment or equality of
outcome? Consistency in treatment alone may not be enough where
there are two individuals, one privileged and one who is not.
• Legislation on direct discrimination tends to be about formal
equality while substantive rights do exist wrt maternity – Parliament
tailors its approach wrt level of perceived inequality. Westen (1982):
formal equality alone is a hollow concept devoid of ‘substantive
moral content’ – no useful level of protection – equal compared to
who?
• Wrt use of comparator – should it always be ‘white, male,
able-bodied and straight’? Such an approach can lead to the
permanent ‘othering’ of the relevant vulnerable constituencies.
• Honeyball (2011) prefers a self-comparison approach – need
for a narrower comparison ie a ceteris paribus approach which
keeps all factors constant except for the one protected
characteristic at hand.
, lOMoARcPSD|4343847
• Macklem (2003) prefers no comparison at all – discrimination
is per se wrong and should be subject to civil sanctions for that
reason.
• However, S23 EqA 2010 does require the use of a comparator.
It should also be noted that formal equality is too individualistic – it
elides group-based characteristics attributable to individuals and
requires victims to sue wrt comparator – can result in a levelling
down rather than a levelling up – Smith v Avdel Systems Ltd [1994].
• Alternative approach to formal discrimination – equality of
opportunity; equality of outcome; positive discrimination /
affirmative action.
• Equality of opportunity is a hybrid formal-substantive equality
starting point. Fredman (1997) says this is about levelling the
playing field eg providing educational opportunities but not quotas.
This is the approach favoured by S3(d) EqA 2006, S149(1) EqA, as
well as by the Discrimination Law Review 2007 – to allow all to
make the most of their natural abilities. Cavanagh (2002) says this
is no good because all equality of opportunity amounts to is the
right to become unequal. There is the further issue that the right to
liberty is closely tied to the ‘right’ to inequality.
• If we accept Cavanagh’s contention that equality of
opportunity is conceptually hollow, what about equality of outcome?
Equality of outcome alone will not avoid indirect discrimination. The
reality in indirect discrimination cases is that the C must show
disparate effect on a certain group and the employer has the
chance to justify his actions. A strict equality of outcome approach
may not be able to deal with this – all subject to the same criteria
resulting in some sort of ‘objective’ selection.
• How about the positive discrimination model? This is
controversial and only really accepted in the disability context
where employers are required by law to make reasonable
adjustments for disabled employees – Archibald v Fife Council
[2004].
• Collins (2010): we should not dismiss the positive
discrimination model out of hand – more robust approach eg race
quotas could help to improve legitimacy of police and their
effectiveness in ethnic neighbourhoods.
Hepple (2014): this final round of anti-discrimination legislation is based
on far-reaching ‘transformative equality’.
Fredman (2015): notwithstanding its origins in labour law, anti-
discrimination law has now become a freestanding body of law – and is
there a freestanding right to not be discriminated against?
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller jamieanderson1. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for £17.49. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
85443 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy revision notes and other study material for 14 years now