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.

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.

This doctoral thesis is at the intersection of law and technology by focusing on the ethical governance of private companies on the topic of discrimination. It centers on algorithmic and intentional discrimination. It aimed to determine whether the European Union and Federal USA law are equipped to address discrimination in the provision of work, goods, and services online. Through and extensive analyses of sources that included private company practices, private anti-discrimination policies, collective and private litigation, court decisions, public regulation at the EU, Member State levels, and United States, this thesis argued that statutory law and legal precedents in the European Union and United States are only partially equipped to address discrimination against statutorily protected classes. The author of this thesis inferred from the selected sources that the main obstacles to the full implementation of the equality principle rely on businesses' structural challenges, including aesthetic design, matching tools, evaluation systems, and network effect of online platforms that ultimately reinforce old biases against protected classes. Furthermore, rigid and more flexible regimes of liability immunities to online intermediaries results in the lack of incentive for structural changes. Finally, in the light of these structural challenges, this thesis asserts that the fight against discrimination in online platforms might produce the best results when also oriented by a model of regulation that encourages online platforms to implement the principle of transparency and fairness in their interactions with users, coupled with the cooperation of anti-discrimination bodies and private businesses. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

Disability Discrimination as a Specific Field of Anti-Discrimination Law? The aim of this thesis is to put together a complex material discussing disability discrimination from the perspective of anti-discrimination law. Firstly, however, it acquaints the reader with a broader theoretical context and therefore it briefly explains the concept of discrimination and its relationship to the constitutional value of equality. The question, which like a red thread meanders through the following chapters of the thesis, asks whether this type of discrimination is really so much different to deserve such a degree of special approach, which it receives from both the legislators and the judiciary. This thesis gradually collects findings and information so it could in the end at least indicate the answer to this umbrella question. For this purpose, it presents various models of thinking about disability, namely a medical model and a social model, which in many cases contradict each other. The thesis nevertheless tries to find an ideal combination of them. Furthermore it provides a detailed analysis of relevant legal and judicial definitions of disability as a concept of law, both at the level of international law as well as European and Czech law. Subsequently, it identifies specific characteristics of the...

This qualitative socio-legal study critically examined the protection against housing discrimination found in chapter 2 § 12 of the Swedish Discrimination Act (SFS 2008:567), in light of United Nations, Council of Europe and European Union housing and non-discrimination (human rights) standards. As an applied socio-legal study it aimed to be critical towards the limits of law in context. By applying an intersectional approach as the theoretical framework for the study, it aimed to identify legal weaknesses from an intersectional point of view. The study made use of a descriptive doctrinal analysis method and a critical text analysis method. The material for analysis consisted of civil housing discrimination law: legislation, preparatory works and case law. The case law, anonymized for this study, consisted of three district court judgments and three appeal court judgments processed during the years 2007-2016. The first research question asked what, if any, forms of intersectional discrimination the housing discrimination law face and comprise. The descriptive doctrinal analysis revealed that all cases shared the discrimination ground ‘ethnicity’ and discrimination form ‘direct discrimination’. The critical text analysis resulted in three themes illustrating intersectional discriminating facing the law: “aggressive men” (the intersection of sex and ethnicity), “resourceless women” (the intersection of sex, socio-economic class and ethnicity) and “unsettled strangers” (the intersection of socio-economic class and ethnicity). The second research question asked what, if any, the limits of law are from an intersectional point of view. By discussing the three themes in relation to the legal landscape and previous research it was possible to identify several limits of law relating to intersectionality, such as the exhaustive list of discrimination grounds, absent discrimination grounds and an absence of intersectional awareness. The study concluded that Swedish housing discrimination law rely on formal equality, which renders intersectional discrimination invisible and the power of housing human rights disputable.

雇主在招募過程中，為了提高企業的生產力或行政組織的效率，防免契約、侵權責任的發生，必須謹慎挑選人才，因此通常會以詢問或檢測（如人格測驗）盡量蒐集與求職者相關的資訊，來遴選合適員工。但是，雇主得要求應徵者揭露多少資訊？求職者在雇主的要求下，為了提高獲聘的機會，是否只能拋棄個人的隱私利益？這些疑惑均值得思考，從中也顯現出了雇主與求職者間利益衝突的問題。 關於求職者個人資訊的保障，我國目前的基本規範為「個人資料保護法（簡稱個資法）」及「就業服務法（簡稱就服法）第5條第2項第2款」。雇主如欲蒐集求職者的個資，除必須符合個資法的特定條款外，假若涉及隱私資訊，尚須通過就服法第5條第2項第2款「就業所需」的檢驗。 在這看似簡明的基本架構中，事實上存有許多令人困惑的地方，以個資法特定條款的蒐集事由為例，如：「執行法定職務必要範圍內」的意涵具體所指為何；「與當事人有類似契約之關係」是否包含雇主可請求當事人以外的第三人（如：前雇主）協助為履歷調查；以及「經當事人同意」在勞動關係不對等時其有效性的爭議等。而就服法第5條第2項第2款最讓人頭痛之處則為應如何詮釋「就業所需」。是以，我們須要更多的實務及學說見解來填充個資法與就服法勾勒出的雇主與求職者間利益權衡框架。 本文將先探討雇主通常是基於什麼考量而對求職者為哪些詢問及檢測；而應徵者面對這些詢問及檢測往往會有什麼憂慮。接著借鏡美國法制，剖析我國針對求職者個人資訊保障的判準，並關注在個資法修正與就服法第5條第2項第2款增訂後，過往的實務見解是否依舊恰當或有所革新。最後比較美國與我國法制的異同，提出檢討與建議，期望能在保障求職者個資的同時，也兼顧到雇主的利益。 / In the hiring process, employers need to select workers cautiously in order to improve the productivity and efficiency of their enterprises, and to avoid the potential liability caused by reckless employees. To screen out the best possible candidate for a particular job, employers usually wish to gather as much information about job applicants as possible by making oral or written inquiries, or conducting different kinds of employment tests (such as personality tests). However, what kind of information can employers legally require job applicants to disclose? Do job applicants have no choice but to relinquish their personal privacy if they want to be employed? To answer these questions, we need to carefully balance the competing interests between employers and job applicants. In Taiwan, “Personal Information Protection Act (PIPA)” and “Employment Service Act (ESA) §5II②” form the basic framework of protecting job applicants’ informational privacy. Employers need to obey specific provisions of the PIPA before they can collect job applicants’ information; and if private information is to be collected, employers should further confirm their collecting actions meet the “job-related” requirement specified by §5II② of the ESA. This legal framework seems simple and clear, but there are many questions remain to be answered. For example, what is the exact scope of the term “within the scope of job functions provided by laws and regulations” of the PIPA? Does the condition “quasi-contractual relationship between the Parties” specified in PIPA allow employers to contact third parties (such as job applicants’ former employers) and conduct a reference check? Further, since there is a serious power-imbalanced problem in the employment relationship, can we truly expect the job applicants to offer a free and valid consent when they are requested to provide their personal information? Last but not the least, what is the precise meaning of the term “job-related” of §5II② of the ESA? More studies and court judgments are needed to delineate the boundaries between what employers are entitled to know and what job applicants should be able to keep private. This thesis begins with analyzing why employers need/hope to gather information about job applicants and what screening tools they prefer to use. It then discusses job applicants’ concerns when they face employers’ inquiries or employment tests. By comparing relevant U.S. legislation and judicial decisions regarding the protection of job applicants’ informational privacy, this thesis examines the standards used in Taiwan’s case-law when balancing employers’ and job applicants’ interests. Special attentions are paid to the issue whether these standards are still appropriate or should be updated in light of the latest amendments to the PIPA and ESA. Finally, through concrete cases, this thesis tries to provide practical recommendations on how we can better protect job applicants’ privacy while respecting employers’ legitimate interests in knowing their future employees.