Category Archives: Discrimination

Reagan Seidler, ‘The Economics Of Canadian Anti-Discrimination Laws’

ABSTRACT Prohibiting discrimination is a noble political statement. What does it mean as economic policy? Applying a neoclassical framework, the article examines how Canada’s human rights laws affect society and marginalized groups from a welfare perspective. The article offers several practical reforms to improve the efficiency of current laws such as uncapping damage awards, removing […]

Meyers and Hersch, ‘Employment Practices Liability Insurance and Ex Post Moral Hazard’

ABSTRACT Employment Practices Liability Insurance (EPLI) is a form of insurance that protects employers from claims of discrimination, harassment, retaliation, and wrongful termination. EPLI contracts as currently written often do not exclude intentional actions or payment of punitive damages, creating potentially severe moral hazard problems. We propose potential alterations that would hold employers accountable for […]

Lilach Lurie, ‘Should Age Discrimination Be an Integral Part of Employment Discrimination Law?’

ABSTRACT This Article argues that a universal approach to age discrimination promotes justice (including intergenerational justice) and efficiency. As explained herein, legal regimes regulate age discrimination in employment in various ways. While some regimes create specific anti–age discrimination legislation, others ban most kinds of employment discrimination, including age discrimination, in a general way. These latter […]

Guttel and Porat, ‘Tort Liability and the Risk of Discriminatory Government’

ABSTRACT When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused […]

Hugh Collins, ‘Justice at Work’

ABSTRACT Theories of justice suitable for ordinary market transactions are not appropriate in the special context of work, because they must confront the challenges of the subordination of employees and the risk of commodification of workers by treating them like things or machines. It is argued that the legal protection of fundamental or human rights […]

Easteal and Saunders, ‘Revisiting Vicarious Liability in Sexual Harassment Cases Heard Under the Sex Discrimination Act’

ABSTRACT This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the Sex Discrimination Act 1984 (Cth) (SDA). In a study undertaken by the authors in 2008, we found that the Federal Court and Federal Magistrates Court appeared to be taking a ‘broad-brush’ approach […]

Shelley Ross Saxer, ‘Shelley v Kraemer’s Fiftieth Anniversary: “A Time for Keeping; a Time for Throwing Away”?’

ABSTRACT In 1948, the United States Supreme Court in Shelley v Kraemer refused to evict two families from their homes by enforcing racially restrictive private covenants. The Shelley decision was long overdue in the battle against racial discrimination in this country. The Court held that enforcement of the private covenant violated the Equal Protection Clause […]

Eugenio Velasco Ibarra, ‘Lee v Ashers Baking Company Ltd and Others: The Inapplicability of Discrimination Law to an Illusory Conflict of Rights’

ABSTRACT Providers of customised goods and services do not directly discriminate against a customer when their refusal to fulfil an order is based on their objection to the message requested by the latter and not on any protected characteristics of the person. This is the conclusion reached by the Supreme Court of the United Kingdom […]

Michael Foran, ‘Discrimination as an Individual Wrong’

ABSTRACT This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned […]

Michael Connolly, ‘Lee v Ashers Baking and its Ramifications for Employment Law’

INTRODUCTION … This highly publicised case on a bakery’s refusal to supply a cake iced with the words ‘Support Gay Marriage’ concerned discrimination on the grounds of political opinion and sexual orientation, and with it the bakery’s rights to free expression and religion. The case arose in the provision of goods, facilities and services (‘services’), […]