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Equality Act 2010 : law, reason and morality in the jurisprudence of Robert P. GeorgeGould, James Peter David January 2016 (has links)
This thesis provides a critical application of Robert P. George’s views to English equality law. The research question is what George, with his view of religion as a basic human good, might think about the religious liberty cases taken under the provisions of the Equality Act 2010. In addressing this question, it will be necessary to look at those - to some eyes - irreconcilable tensions which have emerged between laws protecting religious freedom. A number of legal claims have been brought by employees who have been instructed to carry out new legal obligations which they have been unwilling to perform. Questions have arisen regarding the current state of reasonable accommodation and proportionality analysis within indirect discrimination law. To examine these questions, this thesis will be in two parts: first, it will consider Robert George’s distinctive contribution to new natural law theory (NNL) and critically analyse George’s NNL approach that arises from this. To do so the key themes: a) practical reason and b) natural rights, will be considered in George’s work. Second, by reading George’s views on practical reason in line with his approach to natural rights, from this position this thesis will give an applied example of NNL, displaying George’s critique of the relevant equality law and arguing for an innovative understanding and approach to religious equality law. This is in an effort to find whether George’s theory is useful in exploring English religious equality law. By doing so this will reconstruct George’s NNL approach through using religious equality law as an applied example. This thesis argues that at a time when religious liberty often loses out in a balancing of rights, legitimate interests and protected characteristics, a superior way to approach equality law in this area may be through an application of a modified version of George’s NNL thought presenting religion as a public good. This will emphasise the priority of the good in religious conscience over legal rights within law viewed by George as a public morality. Viewing religion not only as a basic human good but also as a public good could provide the basis for future accommodation towards freedom of religious conscience and solve the tensions regarding the protection of religion or belief at work. Religion and religious freedom will be shown to be a form of flourishing within an understanding of the public good.
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Extending working life for older workers : an empirical legal analysis of age discrimination laws in the UKBlackham, Alysia Paige January 2015 (has links)
No description available.
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Gifts of Rights?: A Legal History of Employment Pension Plans in CanadaShilton, Elizabeth 13 June 2011 (has links)
This thesis explores the role played by law in the current breakdown of the employment pension system, focusing on the legal status of pension plans within the employment relationship, and on the way lawmakers have defined, shaped and enforced employee pension rights. It traces the legal status of employment pensions from their 19th Century characterization as gifts to reward employees for long and faithful service, to their current 21st Century construction as terms of the contract of employment. The thesis argues that Canadian lawmakers within all three legal regimes structuring rights and obligations within the employment relationship – the common law, collective bargaining law and statute law – have contributed significantly to the overall dysfunction of the system by cultivating both substantive and procedural legal rules that locate critical issues concerning the scope, design, durability and distribution of employee pension rights within the control of employers. Predictably, Canadian employers have used that control to shape pension plans to meet their distinct business needs, needs that frequently collide with worker needs and expectations for good pensions. Even in the heyday of the ‘Fordist’ work structures that fostered employment pension plans, the system delivered benefits very unequally, privileging the interest of elite workers who fit the ‘male breadwinner’ mould, and failing to provide adequate and secure pensions for the majority of Canadian workers. Changes in the organization of work in Canada, including trends towards more precarious work, will continue to exacerbate the problems inherent in the system, escalating its distributional inequalities. In the current round of pension law reform, Canada’s policy makers should abandon the effort to repair a system which is flawed at its core, and should instead seek a new foundation for pensions outside the employment relationship, a foundation which will not subordinate the pension interests of workers to the business interests of employers.
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Gifts of Rights?: A Legal History of Employment Pension Plans in CanadaShilton, Elizabeth 13 June 2011 (has links)
This thesis explores the role played by law in the current breakdown of the employment pension system, focusing on the legal status of pension plans within the employment relationship, and on the way lawmakers have defined, shaped and enforced employee pension rights. It traces the legal status of employment pensions from their 19th Century characterization as gifts to reward employees for long and faithful service, to their current 21st Century construction as terms of the contract of employment. The thesis argues that Canadian lawmakers within all three legal regimes structuring rights and obligations within the employment relationship – the common law, collective bargaining law and statute law – have contributed significantly to the overall dysfunction of the system by cultivating both substantive and procedural legal rules that locate critical issues concerning the scope, design, durability and distribution of employee pension rights within the control of employers. Predictably, Canadian employers have used that control to shape pension plans to meet their distinct business needs, needs that frequently collide with worker needs and expectations for good pensions. Even in the heyday of the ‘Fordist’ work structures that fostered employment pension plans, the system delivered benefits very unequally, privileging the interest of elite workers who fit the ‘male breadwinner’ mould, and failing to provide adequate and secure pensions for the majority of Canadian workers. Changes in the organization of work in Canada, including trends towards more precarious work, will continue to exacerbate the problems inherent in the system, escalating its distributional inequalities. In the current round of pension law reform, Canada’s policy makers should abandon the effort to repair a system which is flawed at its core, and should instead seek a new foundation for pensions outside the employment relationship, a foundation which will not subordinate the pension interests of workers to the business interests of employers.
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Age discrimination in labour law : a comparative inquiryWalt, Alex 14 August 2012 (has links)
LL.M. / Age discrimination first arose in the post-industrial revolution period. Prior to that most people earned a living through a connection to the land. Agriculture was a family affair with all members contributing to the task, from the youngest to the oldest, according to their abilities. As the ability for labour waned, older people tended to be cared for by their families. Those who did not work on the land were mostly self-employed artisans and crafts people, such as cobblers, carpenters and blacksmiths, and they worked to whatever schedule they wished. Also, tools used at that time were different to those used today and expertise was achieved through age and experience, so that a tradesman such as a goldsmith was a more skilled artisan if he had 30 years experience than an associate with considerably less experience. Age discrimination in employment just did not occur because there was little employment by large impersonal corporations.
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"What's the Alternative?": Attitudes of Discrimination Investigators Toward the Efficacy of Anti-Discrimination LawCurrie, Eilidh January 2020 (has links)
Thesis advisor: Sarah Babb / American discrimination law is a paradox: it attempts to eradicate discrimination – an inherently systemic problem impacting the most marginalized groups – using bureaucratic procedures. As a result, public servants tasked with investigating violations of discrimination law must pursue the fulfillment of such a sweeping goal through incremental means, adhering to laws that define discrimination narrowly. There is an extensive literature arguing that this misalignment between the law’s driving goals and its methods of enforcement renders it ineffective; there is also considerable research on the public servant’s unique position in this sense. Applying these literatures together to twelve discrimination investigators at three state-level commissions, it seems investigators are aware of the law’s limitations, but are able to close the gap between the bureaucratic nature of their work and its driving goals by rationalizing these limitations, allowing them to remain idealistic about the efficacy of the law. / Thesis (BA) — Boston College, 2020. / Submitted to: Boston College. College of Arts and Sciences. / Discipline: Departmental Honors. / Discipline: Sociology.
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A comparison between the approaches to unfair discrimination in employment in South Africa and NigeriaOdeyemi, Hannah Olubunmi January 2012 (has links)
Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.
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The Impact of EEO Legislation Upon Selection Procedures for Transfer, Training and Development and PromotionRach, Margaret M. (Margaret Mannion) 05 1900 (has links)
Legislation, court decisions, and the changing political and social climate provide evidence of the importance of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion. These selection procedures are being challenged by more informed employees and, in many cases, result in costly litigation. Thus, organizations must be aware of the continuing developments in employment law especially as found in court decisions and related legislation. This study investigates judicial and EEOC decisions in discrimination cases to provide answers to these questions: Are organizations aware of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion? Are organizations aware of what constitutes a discriminatory practice in the selection of employees for transfer, training and development, and promotion? Does management recognize and follow nondiscriminatory procedures in selecting personnel for transfer, training and development, and promotion? The purposes of the study are 1. To analyze outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion; 2. To develop a model set of guidelines to aid organizations in developing nondiscriminatory procedures for use in selecting employees for transfer, training and development, and promotion. This study concludes that many employers are aware of the outcomes of EEO litigation involving challenged selection procedures for transfer, training and development, and promotion. Many employers are also aware of what constitutes a discriminatory practice in the selection of employees for some employment advantage. However, management does not always recognize and follow nondiscriminatory procedures when selecting employees for transfer, training and development, and promotion. The number of cases in which selection procedures were found discriminatory supports this conclusion.
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Discrimination in the workplaceVoges, Sarah M. (Arisa) 12 1900 (has links)
Thesis (MBA)--Stellenbosch University, 2001. / Some digitised pages may appear cut off due to the condition of the original hard copy / ENGLISH ABSTRACT: The Employment Equity Act of 1998 compels organisations to eradicate all forms of
discrimination in organisational processes and procedures. However, an ethical
organisation that values and treats all employees in a fair and equitable manner has a
definite strategic advantage and organisations therefore need to develop
organisational cultures where managing diversity, fair dealing and equity are
paramount.
Organisations must ensure that optimum performance management practices are
established and that rewards are allocated equitably and fairly according to merit.
Recruitment and promotion selection procedures must be revised to guarantee
fairness. Training and development interventions must be applied fairly to equalise
opportunity.
A survey conducted amongst MBA students at the USB identified that negative
stereotyping and biased treatment persist in management practices. The provision of
equal opportunities and managing diversity are concerns that need to be addressed.
A good internal process to deal with the eradication of discrimination must be adopted
by implementing a non-discrimination policy and conducting discrimination audits. All
discrimination complaints must be dealt with speedily and at the lowest possible level.
The remedial model developed in this technical report provides a consistent
procedure whereby formal and informal complaints of discrimination could be dealt
with fairly and effectively to assist organisations in eradicatinq discrimination in the
workplace. / AFRIKAANSE OPSOMMING: Die Wet op Gelyke lndiensopneming van 1998 noodsaak die uitwissing van
diskriminasie in alle prosesse en prosedures van organisasasies. 'n Etiese
organisasie, wat alle werknemers op'n gelyke en gelykwaardige manier behandel en
respekteer, het egter 'n strategiese voordeel en dit noodsaak die ontwikkeling van 'n
organisatoriese kultuur waar die bestuur van diversiteit, gelyke regte en regverdige
handel voorrang moet geniet.
Optimale prestasiebestuurspraktyke moet ingestel word en daarvolgens moet alle
vergoeding en beloning regverdig, volgens meriete, geskied. Die prosedures vir die
keuring van kandidate vir werwing en bevordering moet vir die versekering van
regverdigheid hersien word. Opleiding en ontwikkeling moet aangewend word om
gelyke geleenthede vir almal te skep.
'n Steekproef wat onder huidige MBA-studente onderneem is, het getoon dat
negatiewe stereotipering en bevooroordeling nog op 'n gereelde grondslag in
bestuurspraktyke voorkom. Die verskaffing van gelyke geleenthede en die effektiewe
bestuur van diversititeit is veral sake wat dringend aandag moet geniet.
Dit is belangrik dat organisasies 'n goeie interne proses om diskriminasie uit te roei in
werking stel deur die daarstelling van 'n nie-diskriminasie beleid en gereelde
diskriminasie ouditte. Alle klagtes van diskriminasie moet spoedig en op die laagste
moontlike vlak ondersoek word. Die remediërende model wat in hierdie
navorsingsverslag ontwikkel is, verskaf 'n bestendige prosedure waarvolgens alle
aantygings regverdig en doelmatig hanteer kan word.
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Public employment and the relationship between labour and administrative lawLoots, Barbara Evelyn 03 1900 (has links)
Thesis (LLD)--University of Stellenbosch, 2011. / ENGLISH ABSTRACT: The focus of this study is the rights-based normative overlap of labour and administrative law in
public employment. As the judiciary appeared to be unable to agree on a unified approach to
the application of the rights to fair labour practices and just administrative action to public
employment, it was clear that the complexity and multi-dimensional character of the debate
required analysis of existing approaches to the regulation of the public employment relationship.
The following initial research question was formulated: To what extent does (and should) the
constitutionalised rights to fair labour practices (s 23) and just administrative action (s 33)
simultaneously find application in the regulation of public employment relationships?
In answering this question, certain realities had to be acknowledged, the most important being
that the debate in question jurisprudentially revealed itself to be a jurisdictional turf-war between
the Labour and High Courts, rather than proper consideration of the relevant substantive
arguments and underlying normative considerations. This called for an additional dimension to
be added to the research question, namely consideration of the extent to which the ss 23 and
33 rights are informed by variable and possibly different normative principles and whether these
rights allow for cooperative regulation of public employment in accordance with the doctrine of
interdependent fundamental rights.
This became the primary focus of the study. In an attempt to simplify the debate, a deliberate
decision was taken to limit the scope of the normative study to South Africa with its own historic
influences, structures and constitutional considerations. The study shows that both labour and
administrative law (as constitutionally informed) share concern for equity-based principles. This
is evident from the flexible contextually informed perspectives of administrative law
reasonableness in relation to labour law substantive fairness, as well as a shared concern for
and approach to procedural fairness. Once simplified, and in the absence of any undue positive
law complexity, the public employment relationship, at both a normative and theoretical level,
furthermore shows no substantive status difference with private employment relationships. It is,
however, accepted that there are job and sector-specific contextual differences. In the absence
of substantive normative conflict between these branches of law and in the absence of a
fundamental (as opposed to contextual) difference between public and private employment,
there appears to be no reason to ignore the constitutional jurisprudential calls for hybridity,
otherwise termed the doctrine of interdependence. The idea of normatively interdependent
rights expresses the Constitution’s transformative vision (through the idea of flexible conceptual
contextualism) and recognises that human rights may overlap. This also means that where such overlap exists, rights should be interpreted and applied in a mutually supportive and cooperative
manner that allows for the full protection and promotion of those rights. In giving expression to
the interdependent normative framework of constitutional rights, these norms (absent any
substantive rights-based conflict) should then be used by the judiciary as an interpretative tool
to align specific labour law and general administrative law in the regulation of public
employment relationships. / AFRIKAANSE OPSOMMING: Die fokus van hierdie studie is die regsgebaseerde normatiewe oorvleueling van arbeids- en
administratiefreg in die openbare diensverhouding. Aangesien dit blyk dat die regsbank nie kon
saamstem oor ‘n eenvormige benadering tot die toepassing van die regte op billike
arbeidspraktyke en regverdige administratiewe optrede op die openbare diensverhouding nie,
het die kompleksiteit en multi-dimensionele karakter van die debat dit genoodsaak om
bestaande benaderings tot die regulering van die openbare diensverhouding te analiseer. In die
lig hiervan is die volgende aanvanklike navorsingsvraag geformuleer: Tot watter mate vind die
grondwetlik neergelegde regte tot billike arbeidspraktyke (a 23) en regmatige administratiewe
optrede (a 33) gelykmatig toepassing in die regulering van die openbare diensverhouding en tot
watter mate hoort die regte gelykmatig toepassing te vind?
In antwoord op die vraag is sekere realiteite geïdentifiseer, waarvan die belangrikste is dat die
debat in die regspraak grootliks neergekom het op ‘n jurisdiksionele magstryd tussen die
Arbeids- en Hooggeregshowe, eerder as werklike oorweging van die relevante substantiewe
argumente en onderliggende normatiewe oorwegings. Dit het die byvoeging van ’n verdere
dimensie tot die navorsingsvraag genoodsaak, naamlik oorweging van die mate waartoe die aa
23 en 33 regte deur buigsame en moontlik verskillende normatiewe beginsels beïnvloed word,
en ook of hierdie regte ruimte laat vir mederegulering van die openbare diensverhouding in
terme van die leerstuk van interafhanklikheid van fundamentele regte?
Laasgenoemde het die primêre fokus van die studie geword. In ‘n poging om die debat te
vereenvoudig, is doelbewus besluit om die strekking van die normatiewe studie te beperk tot
Suid-Afrika, met eiesoortige historiese invloede, strukture en grondwetlike oorwegings. Soos die
normatiewe studie ontvou het, wys die studie dat beide arbeids- en administratiefreg (soos
grondwetlik beïnvloed) ‘n gemeenskaplike belang in billikheids-gebaseerde beginsels openbaar.
Daar is ‘n versoenbaarheid tussen die kontekstueel beïnvloedbare en buigsame redelikheidsperspetief
van die administratiefreg, soos gesien in vergelyking met substantiewe billikheid in
die arbeidsreg. Voorts heg beide die arbeids- en administratiefreg ‘n gemeenskaplike waarde
aan, en volg beide ‘n gemeenskaplike benadering tot, prosedurele billikheid. Terselfdertyd, en
in die afwesigheid van onnodige positiefregtelike kompleksiteit, blyk daar op beide ‘n
normatiewe en teoretiese vlak geen substantiewe verskil in status tussen die openbare
diensverhouding en die privaat diensverhouding te wees nie. Dit word egter aanvaar dat daar
wel werk- en sektor-spesifieke kontekstuele verskille bestaan. In die afwesigheid van
substantiewe normatiewe konflik tussen die twee vertakkinge van die reg en in die afwesigheid van ‘n fundamentele (in vergelyking met kontekstuele) verskil tussen diensverhoudings in die
openbare en privaatsektore, blyk daar geen rede te wees om die grondwetlike jurisprudensiële
vereiste van hibriditeit, ook genoem die leerstuk van die interafhanklikheid van grondwetlike
regte, te ignoreer nie. Die idee van normatiewe interafhanklike regte gee uitdrukking aan die
Grondwet se visie van transformasie (via die idee van buigsame konsepsuele kontekstualisme)
en erken dat menseregte soms oorvleuel. Dit beteken ook dat waar so ‘n oorvleueling bestaan,
regte ïnterpreteer en toegepas moet word in ‘n wedersyds ondersteunende en samewerkende
wyse wat voorsiening maak vir die volle beskerming en bevordering van daardie regte.
Erkenning van die interafhanklike normatiewe raamwerk van grondwetlike regte hoort daartoe
te lei dat die regsbank daardie norme (in die afwesigheid van regsgebaseerde konflik) as
interpretasie-hulpmiddel gebruik om die spesifieke arbeidsreg met die algemene
administratiefreg te versoen in die regulering van die openbare diensverhouding.
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