The thesis lends support to the functionalist theory of Konrad Zweigert and Heinz Kötz that legal systems converge on results but diverge on means. We apply the Mexican and the Canadian legal systems to a hypothetical discrimination case. This work shows that, although the Mexican and the Canadian legal systems have different legal principles, different concepts of discrimination and different means of choosing the appropriate forum, law and remedy, both jurisdictions produce the same result: the protection of the equalization of opportunities human right of people of vulnerable social groups by compensating individuals for rights which have been infringed.

The thesis lends support to the functionalist theory of Konrad Zweigert and Heinz Kötz that legal systems converge on results but diverge on means. We apply the Mexican and the Canadian legal systems to a hypothetical discrimination case. This work shows that, although the Mexican and the Canadian legal systems have different legal principles, different concepts of discrimination and different means of choosing the appropriate forum, law and remedy, both jurisdictions produce the same result: the protection of the equalization of opportunities human right of people of vulnerable social groups by compensating individuals for rights which have been infringed.

In the UK, as in many western nations, there have been a number of progressive pieces of legislation enacted with the intent to eradicate discrimination on the basis of sexuality in the workplace. The pace and scale of acceptance of gay equality laws has been relatively rapid in recent years. To cite an example, in 2004 gay marriage was only legal in Belgium and Holland, whereas in 2013 it is legal in 11 countries (The Guardian, 2013). Up until this legislation came into force, the focus of previous research probably unsurprisingly has been predominately around two strands; sexual minorities’ experiences of discrimination in the workplace and the issue of disclosure/non-disclosure of a gay identity. There has been little exploration ‘beyond the closet’, in how gay men manage their identity post anti-discrimination laws combined with more liberal attitudes towards homosexuality. In particular, there has been a paucity of research on the ways gay men challenge, negotiate and conform in the two way process of managing their identities; this thesis aims to address this gap. Data were gathered from forty-five semi-structured in-depth interviews with self-identified gay men in a wide range of occupations and ages working in a seaside resort on the South coast of England. A qualitative methodology was used in order to obtain a deeper understanding of the ways gay men manage their gay identity in their interaction with others. Furthermore, by using reflexivity this thesis aims to show how the sample of respondents had modified and changed the ways they presented their gay identity throughout their working lives. In particular, the thesis aims to uncover critical incidents based upon their sexuality that respondents confronted in their interaction with others. The key findings that emerged from the data include; the identification of a range of strategies gay men deployed in how they managed their identity and dealt with discrimination from confrontation to conformity; the multiple constraints and opportunities that impacted upon the ways gay men both managed and disclosed their gay identity; the perceived incongruity around positions of authority, professionalism and a gay identity; and finally how silence was used as a form of exclusion creating significant barriers in the ways gay men could make themselves visible and use their voice within organisations. These findings considerably extend our understanding of the pervasiveness of heteronormativity in the workplace; the impact of contextual influences on managing a gay identity, and gay men’s experiences against a back drop of post-anti-discrimination laws in the U.K. The thesis will aid HR practitioners in giving them a better understanding of the dilemmas gay men face in their interactions with others in the workplace.

This thesis adopts the methodology of systems theory to examine the limits of anti-discrimination law. The sociology of Niklas Luhmann, alongside extensions provided by Michel Foucault and Gilles Deleuze, is applied to construct a versatile re-description of anti-discrimination law. This is an innovative approach because it articulates the social basis for discrimination alongside a legal picture of anti-discrimination within the same theoretical framework. By considering each side of this discrimination/anti-discrimination equation the capacity of law to address discrimination is put into question. The difficulty of providing a philosophically sound explanation for discrimination involves a legitimate academic question, but it also indicates its limitation. This thesis argues that this difficultly reflects a genuine divergence between the social meaning of discrimination and the ability of moral philosophy to comprehend this phenomenon. Racism is analyzed as a confluence of moral, artistic, and mass mediated communications; it is communicated through inconsistency and complex repetition. This confluence is described by tracing societal differentiations and self-descriptions, as developed by Luhmann, with an emphasis on the history of manners as a precursor to modern racism. The legal picture of anti-discrimination presented here is divided into argumentation and decision. Firstly, the description of direct and indirect discrimination in terms of justice is questioned through an examination of argumentative limits, with legal liability being re-interpreted in the light of how concepts and interests inform argumentation. Secondly, the validity of a decision is analyzed as a separate problem for anti-discrimination law. The jurisprudence of the positivist Joseph Raz is criticized from the perspective of a Luhmannian theorization of law as symbolically valid decisions. This thesis constructs an explanatory framework that redraws the limitations of anti-discrimination law by revealing [1] how racism is a protean social phenomenon, and [2] that separation of the legal understanding of anti-discrimination law into discrete streams exposes the concrete limitations available for engaging issues of justiciability.

published_or_final_version / Social Work and Social Administration / Doctoral / Doctor of Philosophy

published_or_final_version / Politics and Public Administration / Master / Master of Public Administration

Legislation and litigation aimed at ending discrimination against transgender people has been both critiqued as eliding the structural roots of discrimination and celebrated as an important visibility project that helps to highlight the struggles trans people face. Approaching law as an ongoing interaction where meaning unfolds, I investigate what is being made visible through transgender anti-discrimination law and how it might variously impact trans and gender justice movements in the future. I analyze three different articulations of transgender anti-discrimination law, attending to the rhetorical configurations of sex, identity, and discrimination that emerge in them and the political and ethical implications of those configurations. Ultimately, I argue that this rhetorical mapping complicates how we understand identity to function within anti-discrimination law and, more importantly, that it highlights the ethical possibilities that lurk beneath simple understandings of anti-discrimination law. / Ph. D. / Lawsuits and laws aimed at addressing discrimination against transgender people have become front-page news. As such, anti-discrimination law is a primary lens through which the American public is coming to learn about transgender people and the political advocacy being carried out on their behalf. While some advocates have championed this development, others have argued that anti-discrimination law does little to address inequality and to protect the most vulnerable. In this dissertation, I use rhetorical theory to analyze how various instances of anti-discrimination law position transgender people, their identities, and the problem of discrimination. Through this analysis, I show how anti-discrimination law can both foreclose and invite further inquiry into the roots of discrimination. Ultimately, I argue that anti-discrimination law cannot solve the problem of inequality but that it <i>can</i> draw attention to our ethical responsibilities toward each other.

Achieving economic equality between men and women is a challenge to every country. The approach taken politically and legally in Sweden is to encourage a greater economic independence of women from the family through paid work, as well encouraging men to assume a greater share of unpaid work, particularly parental leave, resulting in a lessening of the double burden of work for women. These efforts have made within the context of the parameters of the Swedish model with respect to labor, in which the preferred mechanism of resolution is agreement between the social partners and not legislation. To this end, the Swedish collective agreements have been analyzed specifically with respect to taking parental leave. The other parameters in the area of sex equality applicable to the Swedish system are those as defined by Community law, specifically the equal treatment and equal pay directives, against which the Swedish regulations as well as case law applying such are assessed. This work takes the Swedish approach to the problem of economic equality and compares it to the approaches as found in EU, UK and US law. In the UK, there has been a recent emphasis on a family friendly workplace, which is to be achieved at least in part through flexible working. The American approach has focused on discriminatory behavior as a societal phenomena. Comparisons to these two national systems are interesting also from an industrial relations aspect, as Sweden is the most unionized at 80 %, followed by the UK and then by the US at only 15 %. The findings of this thesis suggest that Sweden may need to reassess its approach to equality between the sexes, as well as issues of discrimination in general, incorporating aspects of access to justice into the legal system, as well as reassessing the role of the labor unions, and the Swedish model, with respect to such questions in general...

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