SYLLABUS
Equal Opportunity Law
2014-2015. Module II
Sept.-Oct. 2014
Course Schedule:
Class # 1. (September 23, Tuesday) The evolvement and the interpretation of the
concept of equality and the prohibition of discrimination: complexities and
controversies.
The first class starts from an overview of basics and existing knowledge of the class on equal
protection and equal treatment from the Aristotelian concept of justice through the original
and formal U.S. concept of “equal protection” and the international concept of nondiscriminaiton.
1. The Aristotelian concept of justice.
– formal and substantive justice
– distributive and corrective (rectificational) justice
– the symmetry and injustice of the concept
2. The U.S. concept of “equal protection” on the basis of the Fourteenth Amendment.
(in connection with the Fifth Amendment  the interrelationship between “fairness” and
“equality”)
a. Restricted interpretation – state action theory
(overview of the Plessy, Brown, Korematsu cases)
b. Levels of scrutiny, the differentiation between the areas of discrimination (the
exclusion of social discrimination from the protection; freedom of contract
versus equal protection; the role of the public interest and the private interest.)
(Strauder v. West Virginia, Lochner v. New York, Muller v. Oregon)
3. The International concept of discrimination, the prohibited grounds, their
“families” and hierarchy
The gradual development of the concept of “equality” from formal to substantive, from the
equality of treatment to equality of results. The concept of “discriminatory equality” – based
on single standard and assimilation.
The classic (historic) groups (“families”) of prohibited discrimination: race, sex (and “sexplus”) discrimination, belief – and others. The historic development and change of order of
protected attributes. The brief comparison of racial and sex discrimination to other
disadvantaged groups (disability, age and social disadvantage
Readings:
Michael Esler: The Supreme Court and Equal Protection. In: M.Frankowska-A.P.Melone
(eds.) The Legal System and American Constitutional Democracy. pp. 145-160.
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Ruth Ben-Israel: Equality and Prohibition of Discrimination in Employment - Chapter 5. (in:
Comparative Labour Law and Industrial Relations in Industrialised Market Economies –
Kluwer, 1998) excerpt, pp. 243-259.
Optional:
Sandra Fredman: Equality: Concepts and Controversies. In: Discrimination Law, 2nd Edition,
OUP, 2011. pp. 1-37.
Legislative materials to read:
Fourteenth Amendment to the US Const.
ILO Conventions 100 and 111,
Relevant provisions of ICCPR and the ECPHRFF
Class # 2. (September 29, Monday) The rank and hierarchy of the various grounds of
discrimination, the hierarchy of the “suspect” attributes in the regulation and the
procedure of legal action against discrimination. The 1964 Civil Rights Act (CRA) and
its Title VII in the development of the concept of non-discrimination and equality.
Race discrimination: 40 years, 50 years, 60 years “after”. Its negative and positive
impact on the development of the concept of discrimination and equality.
1. The class discussion will introduce to the historic and substantive significance of the
adoption of Title VII of the Civil Rights Act – a huge steps towards equal treatment: the
development of equality from prohibition of statutory discrimination towards the legal
prohibition of formally unequal treatment.
2. The role of the EEOC (Equal Employment Opportunity Commission) and the equality
bodies in the effective enforcement of equal treatment. The nature of equality bodies and
the role of the EEOC – both with regard to its role as a public agency and its practice of
litigation in the implementation and development of interpretation of Title VII.
3. Race discrimination – the most egregious and most complex ground of discrimination and
its history in the US.
 The place of race (and its “family” – colour, ethnicity, nationality, language, cast
or social origin) among other protected attributes.
o The role of intent (invidious intent)
o indirect (disparate impact) discrimination

The reasons, symptoms and consequences of the “highest” position of race
discrimination within the “catalogue” of prohibited grounds of discrimination.
o Burden of proof and
o BFOQ as exception Bona Fide Occupational Qualification → not
permitted in case of race/colour discrimination
4. Race discrimination from permitted formally unequal treatment to equal treatment, and
the controversies of race-blind treatment.
5. The possible road from non-discrimination to diversity. The controversies of segregation
and forced assimilation – the importance of social integration.
6. The controversial road from formal to substantive equality under US law and USSC case
law. Race-blind versus race-conscious selection in education and employment?
Reading:
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T.H. Barnard – Adrienne L. Rapp: Are We There Yet? Forty Years After the Passage of the
Civil Rights Act: Revolution in the Workforce and the Unfulfilled Promises that Remain. pp.
31-35, 36-39, 43-44, 46-54
V. Murry- Na Liu: Are African Americans Living the Dream 50 Years After Passage of the
Civil Rights Act? (Symposium)
L. Williams-B.Brownell-M.Murrmann: 60 Years Ago the Supreme Court Told Schools to
Desegregate. Here's How Fast We're Backsliding. (News Article)
Optional:
Alex M. Johnson, Jr. Bid Whist, Tonk, and United States v. Fordice. Why integrationism fails
African Americans Again. Ca.L.R. Dec., 1993. pp. 1301-1370.
Class # 3. (October 1, Wednesday)The prohibition of sex discrimination under Title VII
of the CRA. Its history, concept and development. Religion, religious freedom and the
role of privacy in non-discrimination legislation and jurisprudence.
1. The brief overview of the history and progress of the prohibition of sex discrimination will
be followed by the introduction to the concept of sex discrimination under Title VII:
- the broadening concept of “sex” and
- the broadening concept of “discrimination” based on sex (discriminatory conduct)
- the remaining limits of the concept of sex discrimination (no accommodation)
2. The extension of the classic principle of the freedom of religion to the workplace. Is it an
“intrusion” of the state to the private area?
3. Title VII case law of equal treatment without regard to religion – the broad interpretation of
religion as well as the concept of “accommodation” without “unreasonable difficulties”.
4. The protection of the private interest of the employer. The exemption established by the
amended Title VII for religious employers (corporations, associations, educational institutions
or societies).
5. The ban on wearing headscarf or/and burqua – is it an issue of discrimination on the ground
of religion, gender or race?
Readings:
T.H. Barnard – Adrienne L. Rapp: Are We There Yet? Forty Years After the Passage of the
Civil Rights Act: Revolution in the Workforce and the Unfulfilled Promises that Remain. pp.
35-36, 39-43, 45-46.
Matthew Finkin: Privacy in employment. BNA Book, Second Edition. Ch. 6. 1. C1. Chapter
6.: Control of Employees. pp. 374-384.
Class 4. # (October 7, Tuesday) The proliferation of prohibited grounds of
discrimination in the last fifty years as well as their interrelationship. Disability as a
prohibited ground of discrimination in modern legal systems and the different
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approaches to it. The concept of reasonable accommodation and the similarities and
differences of the concept in the US (ADA, ADAAA) and the EU legal system.
1. The comparison of classic (historic) groups (“families”) of prohibited discrimination: race,
sex, belief/religion of the to the protect– and others. The historic development and change of
order of protected attributes. The comparison of racial and sex discrimination to other
disadvantaged groups (disability, age and social disadvantage
Disability – together with age – does not seem to be in the core of non-discrimination regulation
and theory. Nonetheless discussion of disability discrimination helps to differentiate and
discover analitical novelties in general regarding equality and discriminaiton.
2. The main international legal instruments protecting the equal treatment of the disabled.
We discuss in details the Americans with Disability Act (ADA of 1990) and ADA Amendments
Act (ADAAA of 2008).
We will only touch the rest, some of you are already familiar with most of them: The 2009 UN
Convention on the Rights of People with Disability (CRPD) (While Obama has signed it in
already 2009, by a December 2012 senate voting it failed by 5 votes.)
The texts of the ICPPR, the ICESCR do not address the equal rights of the disabled.
Neither does the ECHR (albeit the ECtHR has developed some interesting case law,
approaching the inclusion of disability into the open list of suspect categorization, see fn. 93 of
the Emens reading!) nor the African Charter on Human and People’s Rights (its art. 18 merely
grants “the right to protection” to the disabled, clearly distinguished from the prohibition of
discrimination)
The (Revised) European Social Charter - Article 15 – The right of persons with disabilities to
independence, social integration and participation in the life of the community – does not
clearly prohibit discrimination, however, it provides for more than just protection: requires
“integration” – that may include positive actions in order to equalize opportunities in education,
work and social life.
3. Attitudes to disability or “perceived disability” – in comparison to other suspect attributes.
-
Shared features and the differences between discriminations on the basis of race,
sex and disability. Difference → race, sex, religion → prejudice frequently is based
on malice, hostile or alien attitude, while in the case of disability the prejudice might
be based on “pity”. Shared features → In both groups the world is divided to “we”
(the nondisabled people, or sometimes just “people”) who should be good enough,
moral enough, to do some things to help disabled people, but not too much for
“them” the pitied, unfortunate people. “Marked” and “unmarked” persons.
-
The concept of disability – the distinction between the medical and social concept
of disability. (The assistance and the human rights model)
CRPD art. 1 “Persons with disabilities include those who have long-term physical, mental,
intellectual or sensory impairments which in interaction with various barriers may hinder
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their full and effective participation in society on an equal basis with others.” What do you
think the bold text means?
1. 4. The Amendments of the ADA and the reasons of the Amendments. (The role and
“interaction” of Courts and Legislation in the development of law.)
Primary reason of the Amendments → narrowing the scope of the ADA by the courts, mainly
by the interpretation of the definition of disability. Elements of the definition – in the past:
either not enough disabled (especially when the “ameliorative effects of mitigating measures”
are taken into consideration), or disabled too much for being able to perform the essential
functions of the employment position he or she desired.
The two major cases leading to the decision by the Congress to amend the ADA: Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999), Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184
(2002). The declared purposes of the ADAAA, were, “to reject” the requirements and reasoning
set by the USSC in Sutton, to reject the standards in Toyota Motor Manufacturing v. Williams,
creating “an inappropriately high level of limitation necessary to obtain coverage under the
ADA”.
Definition of disability (ADAAAA Sec. 12102) – almost unchanged, however, broadens the
list of major life activities and bodily functions, the determination of whether an impairment
substantially limits a major life activity shall be made without regard to the ameliorative effects
of mitigating measures.
Significantly changes the “being regarded as” prong. → Class discussion covers the broadening
of the definition, and, at the same time, its exclusion from the right to accommodation.
5. The place of disability within the catalogue of suspect grounds
A question for discussion is the place of disability (and, for the next class: age) within the
“family” of non-discrimination law. Whether it is different (of lower rank) in comparison to
race, colour, sex or we cannot make such a statement, all grounds of differential treatment are
and have to be equally protected. Here we have a look at the “nodes” theory of Dagmar Schiek.
Whose interest? – Connected to the question of the hierarchy of grounds (that must not be
mixed up with the “hierarchical”, subordinating nature of all discriminations) we should ask,
whether the level play ground and equal opportunities are a moral command – undertaking costs
and sacrifice from the mainstream society, or, besides the altruistic considerations, there can be
found a “self-interest” on the side of the mainstream society as well.
Reading:
Elizabeth F. Emens: Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act.
60. Am. J. Comp. L. pp. 205-232.
Class # 5. (October 9, Thursday) Age discrimination and mandatory retirement age.
Difficulties of a genuine human rights approach in age discrimination. The slow rise of
social disadvantage as a protected attributes, and its role in the development of the
concept of “equality” and “equal opportunity”.
1. Connection between “agism”, “racism” and “sexism” – similarities.
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o Connecting elements such as presumption, stereotype, prejudice – connected to a
class of people and serving as ground for decision.
o The non-dignifying nature of the treatment (the implied disrespect of the
individual).
o Connection between discrimination, equal treatment and protection. The
(potential) discriminatory nature of protective approach – the implied limitation of
autonomy.
o Social disadvantages connected to age and other forms of discrimination,
instruments of equal opportunity law in compensating social disadvantages
2. Differences of age discrimination in comparison to race and sex discrimination:
o the lack of binary nature
o not an essential element of identity
o dynamic and progressing nature - and problems of connected protection (while
preserving autonomy as much as possible)
3. Attributes of the 1967 Age Discrimination in Employment Act (ADEA) of the US (in
summary comparison with EU prohibition of age discrimination)
o different motives and timing (clearly civil rights protection in the US,
demographic and economic reasons in the EU)
o similarity – explicit assimilation – to Title VII protection
o clearer non-discriminatory character and structure (less exemption) in the ADEA
o broader coverage (starting at the age of 42 without upper limit)
o prohibiting only discrimination in favour of the younger person (even within the
protected group)
4. Practice and case law of the ADEA – slight uncertainties emerging.
- less compensation in comparison to Title VII employment discrimination
- the scrutiny and the burden of proof is more burdensome for ADEA plaintiffs
o – disparate impact cases – if there was disparate impact intent, business
necessity can be a defense
o – mixed motive cases – where there are multiple reasons for an employer’s,
a plaintiff will only be successful if they can persuade the court that their
employer would not have acted in this way “but for” their age.
o – reverse discrimination clearly rejected.
5. The slow rise of social disadvantage as a protected attributes, and its role in the
development of the concept of “equality” and “equal opportunity”.
- Is social justice a matter of right?
- Equal treatment as a right to “access” (to…social standards)
Readings:
C. Kollonay Lehoczky: Who, Whom, When, How? Questions and Emerging Answers on Age
Discrimination. Equal Rights Review, 2013. pp. 69-98.
Joanna Whiteman: Tackling Socio-Economic Disadvantage: Making Rights Work. Eqp. ual
Rights Review, Volume 12.1 (2014) pp, 95-108.
Optional:
Pnina Alon-Shenker: The Unequal Right to Age Equality: Towards a Dignified Lives Approach
to Age Discrimination. Canadian Journal of Law and Jurisprudence, July, 2012. p. 243.
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Class # 6. (October 13, Monday.) Affirmative action – is it a form of unequal treatment?
Differences between types of formally (apparently?) unequal treatment: discrimination,
reverse discrimination, affirmative action and accommodation. The substance of equal
treatment: Equal respect of differences.
1. The theoretical and practical foundation of “affirmative action”
- Pro and con theoretical arguments in respect of affirmative action
-social goals
- utility arguments
- diversity and representation argument
- non-discrimination argument
–
–
–
–
–
The start of affirmative action. Acknowledgement of the permissibility of raceconscious programs in school admission, public employment as well as public
procurement when there is a “compelling state interest”
Permissibility requirements (accepted justification): remediation of past wrongs,
utility (efficiency), and promotion of diversity.
The concept of genuine diversity – numerical versus substantive diversity.
The lack of truth in the practice and case law of developing diversity – the
repercussion to diversity policies.
Socio-cultural realities, the need for pragmatic realism and the road to racial
justice and – in the long term - genuine diversity instead of formalism and (forced)
assimilation.
Reading:
Ronald J. Krotoszynski: The Argot of Equality: On the Importance of Disentangling
“Diversity” and “Remediation” as Justifications for Race Conscious Government Action. 87
Wash. U. L. Rev. pp. 907-977.
Optional
Ronald Dworkin: The Court and the University. Cincinnati Law Review, 72 [2004] pp. 883-
Class # 7. (October 16, Thursday) The rise and decline of the positive meaning of
equality. The limits of equality and the limits of positive action. Summing up the course.
1. The Schuette decision of the USSC: an end of affirmative action and of the road to
substantive diversity?
2.The underlying political and theoretical elements of the decision – the right view of
discrimination and race discrimination.
Give your opinion on and discuss the sentence from Chief Justice Roberts in Parents Involved
v. Seattle School district: "The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race."
3. The 2010 UK Equal Rights Act: The Start of a new age with social justice and equal
opportunity
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Procedural requirements for the compliance mechanism
- “due regard” in decision making (long term strategic, short term implementation)
- accountability for the procedure →demonstrating the attention or justifying the lack of
- community participation
- transparency and publicity
- monitoring and auditing
judicial review available (not individual compensation, instead, accountability for the way of
making decision)
Overview of the recent UK legislation:
Equality/Inequality
of opportunities
Equal/Unequal access to education, occupation, health services, social contacts, public
places
Equality/Inequality of outcomes
Material goods, services, housing (incl. neighbourhood), level of health, achievement in
education, in employment, crime rates, wider/narrower life chances
←Derive from→
Status inequalities
Distributive inequalities
↓
↓
Anti-discrimination law
←Dealt with→
Political decisions, welfare
Rights based, individual
In the past
regulation
litigation
Both types of inequalities resulting in socio-economic disadvantages, stigmatization
and social exclusion
Two-way interaction: discriminated status promotes poverty, poverty creates (new)
discriminated status
Growing convergence
↓
“positive measures” ←Concept of substantive equality→ “positive measures”
(rather group based than individual right based)
Positive duties enacted
←Growing
Disability, age → moved
(Group based)
convergence→
from social welfare to
individual rights based status
(more hoped)
Both area dealt with now in the UK:
←←Equality Act of 2010 →→
…to have due regard to the
need to (a) eliminate
discrimination, harassment,
victimisation and any other
conduct that is prohibited by or
under this Act; (b) advance
equality of opportunity between
persons who share a relevant
Public sector Duty
↓
Under guidance
from the Minister of
Crown
↓
↓
↓
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…to have due regard to the
desirability of exercising them in
a way that is designed to reduce
the inequalities of outcome which
result from socio-economic
disadvantage. Art. 1(1) (should
include considering the ways in
which gender, race or other
protected characteristic and
persons who do not share it; (c)
foster good relations between
persons who share a relevant
protected characteristic and
persons who do not share it. Art.
149(1), see also art. 149(3)
protected characteristics impact
on socio-economic disadvantage)
Concepts of
Socio-economic disadvantage,
Inequalities of outcome (connected to soc.-econ. disadvantage)
a result of an express policy, or of the absence of such a policy
Concept of “due regard”
more than “simple regard”, less than the duty to take steps (or to achieve)
↓
Equality considerations in the decision-making process
(as early as possible, as broadly as possible → “mainstreaming”)
Proactive duties added to the
complaint-led model
Definition of authority
Definition of types of decision
4. Summary overview of the course, discussion of exam requirements.
Readings:
Vikram David Amar: How the Biggest Supreme Court Victory for Affirmative Action a
Decade Ago Contributed to the Defeat for Affirmative Action Last Month in
the Schuette Case
Ronald J. Krotoszynski: The Argot of Equality: On the Importance of Disentangling
“Diversity” and “Remediation” as Justifications for Race Conscious Government Action. 87
Wash. U. L. Rev. pp. 907-977. (Excerpts, not discussed during class 6)€
Recommended:
S. Fredman: Positive duties and socio-economic disadvantage: bringing disadvantage onto the
equality agenda. E.H.R.L.R. 2010, 3, 290-304
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