Dissertations / Theses on the topic 'Discrimination – Law and legislation – France'
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Benihoud, Yasmina. "Regard critique sur le droit français du harcèlement sexuel au travail à la lumière du droit américain et du droit canadien." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=42288.
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A few months after having enacted a criminal statute creating the general offence of sexual harassment, the French Parliament enacted the Statute n° 92-1179 "relative a l'abus d'autorite en matiere sexuelle dans les relations de travail". In this statute, as in the criminal statute, the French legislator considers sexual harassment in a peculiar way, and departs from the North-American position on three points:First, while American law and Canadian law understand clearly sexual harassment as a form of sex discrimination, the French approach is more ambiguous. It appears that the French legislator understands sexual harassment more as an infringement to freedom than a form of sex discrimination.
Second, the French legislator has defined sexual harassment in a more restrictive way than in North America. While American law and Canadian law prohibit hostile harassment and sexual harassment by colleagues, these forms of sexual harassment are not prohibited in French law. Finally, on the question of the employer's liability, the French approach is more "timid" than in American law and in Canadian law.
The French legislator has justified its more restrictive approach to the problem of sexual harassment in comparison with the North-American position by two arguments: the fear of the "American 'drift'" and the peculiarity of the relationships between women and men in France. However, it is argued that the choice of the French legislator is not convenient because it leaves a significant number of victims outside the scope of the law, and is not clear enough on the employer's obligations. Furthermore, it is maintained that both arguments of the legislator are more caricatural than real.
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Andersson, Sofie. "Anti-terrorlagstiftning och mänskliga rättigheter : En studie av Frankrikes och Storbritanniens anti-terrorlagstiftning och hur den riskerar att kränka Europakonventionen för skydd av mänskliga rättigheter." Thesis, Uppsala universitet, Teologiska institutionen, 2017. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-331550.
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2000-talet markerade födelsen av en ny sorts terrorism. Sedan dess har Europa fått utstå frekventa terrorattacker vilket resulterat i att länder antagit strängare lagar och kontrollåtgärder för att bekämpa terrorismen. Mot bakgrund av detta är uppsatsens syfte att försöka svara på om strängare anti-terrorlagstiftning i Frankrike och Storbritannien kan medföra omfattande begränsningar i människors grundläggande fri-och rättigheter. Genom att använda sig utav en rättsdogmatisk metod och en komparativ metod har uppsatsen kritiskt granskat internationella konventioner, lagstiftningar, rättsfall, vetenskapliga artiklar och doktrin i syfte att besvara följande frågeställningar; vad krävs för att länder ska kunna deklarera allmänt nödläge och således ha en lagstadgad rättighet att derogera från eller begränsa vissa mänskliga rättigheter? Vilka rättsliga åtgärder gällande preventiv häktning och andra kontrollåtgärder har Frankrike och Storbritannien tagit i syfte att bekämpa terrorism och riskerar dess inskränkningar att kränka artikel 5 EKMR? Hur regleras rätten till icke-diskriminering i artikel 14 EKMR? Uppsatsen har också försökt att svara på om de eventuella begränsningarna av människors rättigheter kan försvaras genom John Finnis rättsteori och tankar om mänskliga rättigheter. Den första slutsatsen som nås i uppsatsen är att terrorism kan utgöra ett accepterat allmänt nödläge enligt artikel 15 EKMR då det uppfyller artikelns rekvisit. Därmed är både Frankrikes och Storbritanniens deklarerande av allmänt nödläge accepterat och lagligt enligt artikel 15 EKMR. Uppsatsens andra slutsats slår fast att Frankrikes och Storbritanniens lagstiftningar gällande preventiv häktning kan utgöra en möjlig kränkning av artikel 5 EKMR då lagstiftningarna saknar kravet på förutsägbarhet. Studien har också påvisat att lagstiftningarna gällande preventiva häktningar riskerar att användas för generella misstankar om terrorism vilket också kan utgöra en möjlig kränkning av artikel 5 EKMR. Uppsatsen sista slutsats är att dessa lagstiftningar riskerar att diskriminera vissa samhällsgrupper om de tillämpas på ett felaktigt sätt, t.ex. endast mot icke-medborgare.The 21st century marked the birth of a new kind of terrorism. Since then, Europe has suffered frequent terrorist attacks, resulting in countries adopting stricter laws and control measures to combat terrorism. The aim of this thesis is therefore to investigate if stricter anti-terrorist legislation in France and Great Britain can lead to unlawful limitations on human rights. The thesis critically examines international conventions, legislation, case law, articles, and doctrine by using an investigative approach and a comparative method to answer the following questions; what is required for countries to declare a state of emergency and thus have a statutory right to derogate from or limit certain human rights? What legal measures regarding preventive detention and other control measures have France and Great Britain adopted to combat terrorism and does the limitations violate Article 5 of the ECHR? How is the right to non-discrimination regulated in Article 14 of the ECHR? The thesis also aims to clarify if any limitations of human rights can be justified by the legal theories of John Finnis. In conclusion, the thesis reveals that terrorism can constitute a state of emergency according to Article 15 of the ECHR. Thus, both France and Great Britain's declarations of states of emergency are accepted and legal in accordance with Article 15 of the ECHR. Furthermore, the thesis states that the legislation in France and Great Britain, which regulate preventive detention, may constitute a possible violation of article 5 ECHR, due to its lack of predictability. The thesis has also shown that the legislation regarding preventive detention may constitute a violation of article 5 ECHR if its applied wrongfully and thus, may also constitute a violation of article 14 ECHR.
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Atrey, Shreya. "Realising intersectionality in discrimination law." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:ff5720c2-d40f-4126-9a1e-3831e61f0986.
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The central aim of the thesis is to understand why intersectionality remains at the fringes of mainstream discrimination law and to provide an alternative vision to the dominant conception of single-axis discrimination. This aim is pursued by translating intersectionality theory into the conceptual and doctrinal precincts of comparative discrimination law of South Africa, Canada and the United Kingdom. The thesis is divided into three parts. Part One posits the framework of 'intersectional integrity' as forming the backbone of the category of intersectional discrimination. Its normative core insists on mapping the intersections between identities as creating unique and shared patterns of group disadvantage by considering people's identities as a whole. It is this bipartite framework against which the doctrine is considered. Part Two deals with the doctrinal limitations which impede a successful claim of intersectional discrimination. The comparative analysis fine-combs through the judicial interpretation to understand how it fares against the framework of intersectional integrity. The judicial strategies emerging from the doctrinal analysis are consolidated in the form of a graded spectrum which captures the proximity of each response from the category of intersectional discrimination. Beyond this conceptual reimagination, it also considers how other tools in discrimination law need to be recalibrated to accommodate an intersectional claim. These include the conception of equality and discrimination, the criteria for selection of analogous grounds, the understanding of indirect discrimination, the relationship between impact and justification analysis, apportioning the burden of proof and determining the standard of scrutiny. Part Three consolidates the normative insights emerging from the thesis. A restatement of the theoretical and doctrinal recalibrations helps imagine how a lawyer would walk through the labyrinth of discrimination law for realising a claim of intersectional discrimination.
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Oosthuizen, Tania. "Discrimination based on age in labour law." Thesis, Nelson Mandela Metropolitan University, 2017. http://hdl.handle.net/10948/19484.
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This piece aims to prove that a compulsory retirement age can no longer be justified in South Africa as a constitutional state. In times where people are gradually reaching older ages due to advances in a variety of fields, it seemed that the concept of a compulsory retirement age requires an in depth consideration. This is especially measured against the backdrop of equality and discrimination legislation within The Republic of South Africa. The development of social security law provides the larger framework in which to understand the concept and intentions around retirement. Discrimination and equality legislation demonstrates that age as a listed ground for discrimination does not necessarily simplify the jurisprudence pertaining to it, especially where alternatives have been developed for continued employment. The main point of reference in the South African justice system concerning discrimination disputes is the Harksen v Lane test, whereas the principle encapsulated in Waco v Schweitzer, relates particularly to discrimination based on age. These judgements and subsequent application will be illustrated and considered during the course of this research. The influence of fund rules and fixed-term contracts on the situation will aim to show the reality of the situation. In an effort to show that the problem of an ageing workforce and retirement is not localised to South Africa, an international overview of other constitutional countries is included for context. The comparison goes further to include non-constitutional countries to illustrate the global issue. This comparison was also included in an effort to find alternative strategies that may be utilised in South Africa for retirement and age discrimination legislations and social policies.
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Dlamini, David Vusi. "A comparative study of employment discrimination in South Africa and Canada." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/330.
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South Africa and Canada have emerged from a history fraught of inequalities, which were characterised by segregationist practices. Such inequalities have served as an epitome of discrimination taking place in the society and the workplace in both countries. Both South Africa and Canada had their discrimination affecting black peoples (Africans, Indians and Coloureds) and Aboriginal peoples (Indians, Inuits or Métis) respectively, women and people with disabilities. In both countries discrimination has polarised society. It is against this backdrop that both countries have attempted to eliminate unfair discrimination through the promulgation of relevant legislation that seeks to, inter alia, provide the regulatory framework in respect of employment discrimination. With the foregoing in mind, the purpose of this work is the provision of a selection of comparable aspects of employment discrimination in Canada and South Africa. This selection comprises discrimination on the basis of race, gender, sex, pregnancy, age and HIV/AIDS. The study uses, as its departure point, both countries’ constitutional framework to elicit the extent to which protection against unfair discrimination is extended to the workforce. Apart from looking at the constitutional provisions towards the elimination of unfair discrimination, reference is made to specific employment statutory provisions in order to provide a comprehensive and explicit picture of how workplace discrimination in both countries is regulated. The study focuses on substantive law from both countries about the above -mentioned aspects of discrimination. This is informed by the very nature and scope of the study because any concentration on procedural and evidentiary aspects of discrimination could lead to failure to achieve the objectives of the study. It also looks at specific Canadian and South African case law, judgments of the courts and jurisprudence in the field of employment discrimination in order that the reader is presented with a clearer picture of recent developments in addressing workplace inequalities.
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Warry, Christine Margaret. "Distinction and disparity : the rise of discrimination in British social security law." Thesis, University of Southampton, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.340315.
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Voges, Sarah M. (Arisa). "Discrimination in the workplace." Thesis, Stellenbosch : Stellenbosch University, 2001. http://hdl.handle.net/10019.1/52238.
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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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Gixana-Khambule, Bulelwa Judith. "Unfair discrimination in employment." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/359.
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In this treatise the South African law relating to unfair discrimination is discussed. The development is traced from the previous dispensation and the few pronouncements of the Industrial Court on discrimination in employment. Thereafter the actual provisions in the law presently applicable, including the Constitution is considered. With reference to leading cases the issue of positive discrimination by adopting affirmative action measures is evaluated and reference is made to other defences like inherent requirements for the job and a general fairness defence. The conclusion is reached that South African law is developing to give effect to the notion of substantive equality with a view to eradicate the systematic discrimination of the past.
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O'Neal, Barbara Jean. "Title VII : sex discrimination in higher education /." Diss., This resource online, 1992. http://scholar.lib.vt.edu/theses/available/etd-10022007-144508/.
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Loyson, Madeleine. "Substantive equality and proof of employment discrimination." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1059.
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This dissertation is a journey through the legislative changes and case law in order to analyse and evaluate the changing nature of South African jurisprudence in respect of the notions of equality, discrimination and affirmative action and the manner in which these issues are proved and dealt with in our courts. It focuses firstly on the emergence of the post-Wiehahn labour laws and the developing jurisprudence concerning discrimination in South Africa towards the end of a long period of isolation from the international world. It witnesses the growing cognizance which was taken of international guidelines and their slow and gradual incorporation into our jurisprudence before the institution of the new democratic government, in the days when the country was still firmly in the grip of a regime which prided itself on its discriminatory laws. It also deals in some depth with the new laws enacted after the first democratic government was installed, especially in so far as the Constitution was concerned. The first clutch of cases dealing with discrimination which were delivered by the Constitutional Court and their effects on decisions of the labour courts thereafter, are dealt with in great detail, indicating how important those judgments were and still are ten years later. A special chapter is devoted to the Harksen case, still a leading authority on how to deal with allegations of unfair discrimination. Having traversed several of the judgments of the labour courts after Harksen, several observations are made in the conclusion of the study which, it is hoped, summarize the major areas of concern in respect of the task of testing claims of unfair discrimination arising in our Courts.
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Baig, Raees Begum. "The political process and race relations in the legislation against racial discrimination in Hong Kong." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2010. http://hub.hku.hk/bib/B44526799.
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Abi, Chacra Charbel. "L'influence de l'évolution du gouvernment d'enterprise sur les dirigeants des sociétés : essai de droit comparé (France et Angleterre)." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101811.
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The essence of running an enterprise which is defined as a system by which the companies are lead and compared is generally set in priority terms. For some, they favour in the first instance to secure the economic efficiency then to scope with the social problems at a later stage---'Shareholder model'. Others are inclined to consider that the priority lies into an environmental, sharing and caring society etc.---'Stakeholder model'.Where the evolution of the corporate governance is going to lead to? And how does it affect the directors' responsibility?
After a thorough study of its European evolution in particular in France and England, we figure out that raising the black flag of the stakeholder theory will end up into an ideology completely false dislodging the concept of the natural reality around us. On the other side, claiming the predominance of the sole shareholder system will become a dangerous apprehension opposing the objective of this theory: In our perspective we see that the ultimate global wealth of the enterprise in the long run is closely linked to the consideration and the deep satisfaction of the needs and the interests of the different parties joining the enterprise.
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Law, Wai-fung Eric, and 羅偉鋒. "The Race Discrimination Ordinance of Hong Kong: its impact on the current penal system." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2010. http://hub.hku.hk/bib/B46774300.
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Bidie, Simphiwe Sincere. "The obligation of non-discrimination under the General Agreement on Trade in Services (GATS) and the agreement on Trade-related aspects of Intellectual Property Rights (TRIPS): a developmental perspective." Thesis, University of Fort Hare, 2011. http://hdl.handle.net/10353/338.
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The non-discrimination obligation has existed since the twelfth century. It has been practiced since then, changing from a conditional to unconditional form with the passage of time. It became firmly applied unconditionally at the multilateral level in 1947 after the formation of the GATT trading system upon which several countries based their trading relations. In 1995 when the WTO was formed, the underlying principles of the GATT 1947 became part of the WTO trading system, including the non-discrimination obligation. When countries join the WTO they automatically become subject to the non-discrimination obligation. The ever increasing value of services and trade in the value of intellectual property has necessitated a look at the fundamental principles of world trade that countries have to adhere to in their trade relations. Incidentally, countries are not at the same level economically, hence one of the purposes of the WTO is to facilitate development in developing countries. Accordingly, this requires different application and/or interpretation of these fundamental principles in different situations, depending on the development level of each Member country. Amongst the five principles that underlie the international trading system, the non-discrimination principle is the focus of this study. The sustainability of the entire economic relations between WTO Member countries is dependent upon their fair compliance with this obligation. The obligation is found in Articles II and XVII of the GATS and Articles 3 and 4 of the TRIPS. The Membership of the WTO is made up of developed and developing countries. As a result of the fundamental nature of the obligation it is imperative that the scope and interpretation of this obligation, as developed by WTO adjudicating bodies, be analysed to determine if the obligation’s application and/or interpretation satisfies the above fundamental object and purpose of the multilateral system of trade. The intention here is at all times to show the importance that the non-discrimination obligation carries in international economic and legal interactions and how non-observance of this obligation would negatively affect relations between Member countries of the WTO.
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Rach, Margaret M. (Margaret Mannion). "The Impact of EEO Legislation Upon Selection Procedures for Transfer, Training and Development and Promotion." Thesis, North Texas State University, 1985. https://digital.library.unt.edu/ark:/67531/metadc331995/.
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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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Fehr, Stephanie Simone. "Religious discrimination in employment : a comparative analysis of the law in the UK, France and Germany, with reference to international and supranational law." Thesis, University of Manchester, 2014. https://www.research.manchester.ac.uk/portal/en/theses/religious-discrimination-in-employment--a-comparative-analysis-of-the-law-in-the-uk-france-and-germany-with-reference-to-international-and-supranational-law(8e48aa3c-2233-4169-8dec-4d8436ebe43d).html.
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This thesis analyses religious discrimination in employment, using an applied comparison of the law in the UK, France and Germany. To this end, the thesis first explores national church-state relations, establishing potential links to religious discrimination at work. The investigation then moves on to the standards set by the Council of Europe and the European Union, against which the law in the UK, France and Germany will be measured against. The final chapter brings together the findings in an overall comparison of the national law, with particular emphasis on the role of church-state relations and impact on religious minorities. The original contribution of this thesis to knowledge lies in the assessment of the topic in the context of three jurisdictions, its interconnectedness with the ECHR and EU frameworks, using the framework of church-state relations. The thesis reveals and explains similarities and differences between the law in the three jurisdictions, as well as the effects on employees practising their religion and underlying attitudes that formed the law. After identifying substantive neutrality as a promising characteristic of church-state models, it was set as a benchmark for assessment throughout the thesis. Themes emerging from the research reflect significant differences regarding religious discrimination in employment in the UK, France and Germany. Particularly striking is the arguably deliberate targeting of, and clearly detrimental impact on religious minorities by means of indirectly discriminating law in France and Germany, as well as some directly discriminating provisions that were enacted in the course of the German ‘headscarf debate’. It is suggested, accordingly, that stereotypical assumptions about ‘otherness’ have influenced legislation, as well as case law, using church-state relations to underscore the decisive arguments. Due to its largely hypothetical nature, the assessment of the domestic laws’ compatibility with European international and supranational legal frameworks result in a number of cautious predictions. Widespread compliance appears fairly likely in relation to the law in the UK, whereas French and German law can be challenged in several regards. Finally, this research contributes proposals aiming at effective solutions for a variety of religious discrimination scenarios pertinent in the UK, French and German work environments.
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Howard, Ryan Michael. "A clarification of the use of multiple regression analysis in meeting the burden of proof in compensation discrimination litigation." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50238.
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Thesis (MComm)--University of Stellenbosch, 2005.ENGLISH ABSTRACT: The new set of employment equity laws call for South African organisations to justify their compensations systems. During compensation discrimination litigation, evidence is required to support arguments put before the court in order to meet the burden of proof. The similarity between foreign and domestic legal systems, suggests that the operational implications of foreign legislation will also be relevant to South Africa. This raises the debate as to the nature of fairness in the compensation context, the debate of comparable worth and the use of multiple regression analysis. The organisation must present to the court evidence to show that the choice of compensable constructs, their measurement and application does not discrimination directly or indirectly based on group membership. Multiple regression analysis, a statistical method to model the compensation system, is fraught with difficulties and misunderstanding. It is nevertheless the most appropriate method to investigate compensation fairness. Comparable worth and multiple regression analysis require assessment in the South African context. The issues, which hindered the successful use of multiple regression analysis abroad, are reviewed in order to smooth its entry into South African litigation. A framework is presented based on literature and case law whereby all parties concerned can produce and evaluate such evidence
AFRIKAANSE OPSOMMING: Die nuwe Anti-Diskrimineringswetgewing verlang van Suid-Afrikaanse organisasies om salarisstelsels te regverdig. Gedurende salarisdiskriminasielitigasie word bewys verlang om die bewyslas oor te dra. Die gelyksoortigheid van buitelandse en binnelandse regstelsels gee te kenne dat die operatiewe implikasies van buitelandse wetgewing relevant tot Suid-Afrika sal wees. Dit bevraagteken die aard van billikheid in die kompensasie konteks, die debat van vergelykbare waarde en die gebruik van veelvoudige regressieontleding. Die betrokke party moet bewys aan die hof toon om te bevestig dat die keuse van vergoedingskonstruksie, sowel as die meting en toepassing daarvan, nie onregverdig diskrimineer, ten opsigte van demografiese groepe me. Veelvoudige regressieontleding 'n statistiese metode wat gebriuk kan word om die salarissisteem voor te stel. Alhoewel dit vele onduidelikhede bevat, is dit steeds die mees toepaslike metode om salarisbillikheid te ondersoek. Vergelykbare waarde en meervoudige regressieontleding is in die Suid-Afrikaanse konteks geëvalueer. Die aspekte wat die sukses van die gebruik van meervoudige regressieontleding in ander lande verhinder het, is ondersoek en geëvalueer om die toekomstige toepassing daarvan in Suid-Afrika te vergemaklik. 'n Raamwerk gebaseer op literatuur en gevalle studies word voorgestel, waar al die betrokke partye sodanige bewys kan produseer en evalueer.
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Buckingham, Donald E. "Feeling the squeeze National food labelling legislation in a WTO World: Case studies from France, Canada and Ghana." Thesis, University of Ottawa (Canada), 2005. http://hdl.handle.net/10393/29202.
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Legal regulation shapes the form and content of food labels. Whether in developed or developing countries, national laws outline obligations for labelling that reflect a combination of safety, commercial, and proprietary objectives based on a country's unique circumstances. This dissertation mines one particular dimension of the interplay between national and international law. While focusing on the narrow issue of food labelling legislation, it canvasses the national and international obligations affecting food labels that arise from intellectual property law, trade regulation and consumer protection.
National food labelling regimes share some similar legislative provisions. French, Canadian, and Ghanaian law all recognize three categories of food labelling elements for pre-packaged foods: (1) mandatory labelling elements; (2) prohibited elements; and (3) reserved elements. As well, failure to comply with food labelling laws can result in criminal or civil liability, although implementation varies from country to country, with "food-centred" cultures more apt to vigorously enforce food labelling laws.
Yet, it not simply national law that dictates the final form of food labels. International legal obligations increasingly play a pivotal role. While early international agreements were driven by States' desires to harmonize certain commercial and intellectual property laws, a shift occurred with the GATT 1947. This Agreement did not look to harmonize private law regimes amongst trading partners, but rather it set out general obligations that prohibited certain national measures which inhibited trade. The pendulum has swung even further with the establishment of the WTO. National governments, in light of their WTO obligations, must now (a) undertake positive law reform; (b) make national measures WTO-compatible; and (c) submit to compulsory trade dispute resolution, all of which can affect national food labelling laws.
Clear international obligations established to address commercial or health concerns permit States to maintain national measures while still pursuing trade liberalization. However, international obligations applied to discipline national measures like the marking of food quality and the provision of new consumer information tread on national cultural sensitivities. Until further consensus evolves concerning how international obligations should be applied to such national food labelling measures, significant conflicts between national and international obligations will continue.
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Odeyemi, Hannah Olubunmi. "A comparison between the approaches to unfair discrimination in employment in South Africa and Nigeria." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/d1012054.
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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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Tongue, Susanne Patricia. "The emergence and implementation of the Commonwealth Sex Discrimination Act 1984, with particular reference to five exemptions." Thesis, Queensland University of Technology, 1994.
Find full textAbstract:
My thesis is that legislation, and particularly legislation which influences fundamental social behaviour, reflects the environment in which it is developed.
It inevitably reflects the compromises forced by interest groups and others during its creation and passage through the parliament It is flawed because of the process. I demonstrate this in an emergence study of the Commonwealth Sex Discrimination Act 1984 and an implementation study of five exemptions contained in it.
The legislation is contrasted with legislation in force
overseas. The analysis is done with reference to relevant jurisprudence including feminist jurisprudence, realism and critical legal theory.
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Lowery, Christina. "Protection or Equality? : A Feminist Analysis of Protective Labor Legislation in UAW v. Johnson Controls, Inc." Thesis, University of North Texas, 1998. https://digital.library.unt.edu/ark:/67531/metadc279082/.
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This study provides a feminist analysis of protective labor legislation in the Supreme Court case of UAW v. Johnson Controls, Inc. History of protection rhetoric and precedented cases leading up to UAW are provided. Using a feminist analysis, this study argues that the victory for women's labor rights in UAW is short lived, and the cycle of protection rhetoric continues with new pro-business agendas replacing traditional justifications for "protecting" women in the work place. The implications of this and other findings are discussed.
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Lawlor, Ryan Mark. "Vicarious and direct liability of an employer for sexual harassment at work." Thesis, Nelson Mandela Metropolitan University, 2007. http://hdl.handle.net/10948/825.
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Sexual harassment is an ever increasing drain on the resources of the modern employer, as well as serving to take up much time in terms of legal battles and court cases. The concept of sexual harassment has undergone much revision over the past decades, and South Africa is now firmly committed to the eradication of this problem. The Constitution protects and enshrines important rights like dignity, equality and the right to fair labour practices. These are further defined and protected through the application of various statutes, including the LRA, EEA, PEPUDA and the revised Code of Good Practice. In terms of statutory liability, the employer will be liable for the harassment of its employees, unless it takes a proactive stance and implements comprehensive sexual harassment policies. In this way it will escape liability. The common law vicarious liability of the employer cannot be escaped as easily. The entire concept of the law of delict is to remedy harm suffered. In terms of the common law, employers will be held vicariously liable for the harassment of their employees if it can be shown that the harassment occurred within a valid working relationship, if the harassment actually occurred through a delict, and if the act occurred within the course and scope of employment. The best way for employers to minimize their liability for sexual harassment is the implementation of training and educational policies that serve to make employees aware of what is permissible in the workplace. This will aid the employer in showing that it has done everything possible to reduce the risk of harassment, which will in turn serve to reduce the employer’s liability. To protect against the risk of expensive litigation, many employers are now investigating the matter of liability insurance – they would rather pay increased premiums than suffer alone when their employees take legal action against them. Sexual harassment is a problem that can only be solved through a concerted effort on the part of the legislature, judiciary, employers and employees. Together, these parties must ensure that all of those involved in the world of work are aware of the problem of harassment, as well as taking steps to educate and train employees so as to prevent it. Only in this way will we be able to take action to reduce this terrible problem in our country.
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Muzuva, Arthurnatious. "Vicarious libality for sexual harassment at work." Thesis, Nelson Mandela Metropolitan University, 2011. http://hdl.handle.net/10948/d1011386.
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Sexual harassment has been in existence for a long time in the workplace without any attempt to understand, define and effectively combat this rather undesirable and serious form of misconduct. Until fairly recently, the growing problem of sexual harassment and its damaging effect have been given much attention by legal authorities and society at large. The effect of sexual harassment is that it embarrasses or humiliates the victim. The victim may also suffer from trauma which, in turn, affects his/her performance at work. Numerous definitions have been provided on what constitutes sexual harassment. Sexual harassment takes place when a women‟s sexual role overshadows her work role in the eyes of the male, whether it be a supervisor, co-worker, client or customer. In other words, her gender receives more attention than her work. Sexual harassment is also seen as unwanted conduct of a sexual nature that violates the rights of an employee and constitutes a barrier to equity in the workplace.1 The Bill of Rights in the Constitution2 entrenches the rights of everyone. Worth mentioning are the “right to equality”, “the right to dignity”, “the right to privacy” and “the right to fair labour practices”. Furthermore, section 6(3) of the Employment Equity Act3 states that “harassment is a form of unfair discrimination” which is prohibited in terms of section 6(1) of the same Act. Section 60 of the Employment Equity Act deals with statutory vicarious liability where the employer is held liable for his acts and/or omission to take measures to against sexual harassment or a failure to put a grievance procedure in place. Where such an employer has done what is reasonably necessary to prevent and to address sexual harassment, he/she will escape liability for the misconduct of the employee. This section also provides for mechanisms that an employer may employ to minimise liability where harassment has taken place. In addition to statutory vicarious liability is the common law vicarious liability, where the employer is vicariously liable for the delict of the employee. This form of liability is also referred to as “no-fault liability”. The employer will be held liable where the following requirements for vicarious liability in common law are met: firstly, there must be an “employer-employee relationship”, secondly, a “delict must be committed” and thirdly, the “employee must have been acting in the scope or course of employment when the delict was committed”. Liability can also be directly imputed on the employer. In this instance, it has to be proven that “the employer committed an act or omission; the act or omission was unlawful; the act or omission was culpable, intentional or negligent, and a third party suffered harm; either patrimonial damage or injury to personality; and the act or omission caused that harm”.
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Ristow, Liezel. "Sexual harassment in employment." Thesis, University of Port Elizabeth, 2004. http://hdl.handle.net/10948/341.
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Africa as no exception. It is generally accepted that women constitute the vast majority of sexual harassment victims. Sexual harassment is therefore one of the major barriers to women’s equality as it is a significant obstacle to women’s entrance into many sectors of the labour market. The Constitution now provides that no person may unfairly discriminate against anyone on grounds of, inter alia, sex and gender. The Employment Equity Act now provides that harassment is a form of unfair discrimination. It has been said that harassment is discriminatory because it raises an arbitrary barrier to the full and equal enjoyment of a person’s rights in the workplace. Much can be learned from the law of the United States and that country’s struggle to fit harassment under its discrimination laws. The Code of Good Practice on the Handling of Sexual Harassment Cases attempts to eliminate sexual harassment in the workplace by providing procedures that will enable employers to deal with occurrences of sexual harassment and to implement preventative measures. The Code also encourages employers to develop and implement policies on sexual harassment that will serve as a guideline for the conduct of all employees. Although the Code has been subject to some criticism, particularly regarding the test for sexual harassment, it remains a valuable guide to both employers and employees alike. The appropriate test for sexual harassment as a form of unfair discrimination has given rise to debate. Both the subjective test and the objective test for sexual harassment present problems. Some authors recommend a compromise between these two tests in the form of the “reasonable victim” test. The Employment Equity Act makes the employer liable for the prohibited acts of the employee in certain circumstances. The Act, however, places certain responsibilities on the employer and the employee-victim before the employer will be held liable for sexual harassment committed by an employee. Sexual harassment committed by an employee constitutes misconduct and can be a dismissible offence. An employer may also be held to have constructively dismissed an employee, if the employer was aware of the sexual harassment and failed to control such behaviour, and the employee is forced to resign. The test for determining the appropriateness of the sanction of dismissal for sexual harassment is whether or not the employee’s misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. However, for such a dismissal to be fair it must be both substantively fair and procedurally fair.
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Ndema, Yondela. "A critical analysis of the law on sexual harassment in the workplace in South Africa in a comparative perspective." Doctoral thesis, University of Cape Town, 2007. http://hdl.handle.net/11427/26615.
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A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.
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Burton, Colin Peter. "The legal consequences of failure to give effect to affirmative action measures." Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1012904.
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In South African law, affirmative action has been a very controversial topic over the years. 5 Controversial issues such as perceptions and reactions of affirmative action in the South African context are varied. 6 These reactions are often categorised as politically explosive and emotionally charged. 7 Most people fear the implications of affirmative action, more specifically the impact thereof on their individual positions within the workplace.8 Those who feel threatened by these measures, tend to question the political and ethical legitimacy thereof. 9 Those who stand to benefit from these measures often dislike the labelling associated with these measures. 10 Confusion also exits in greater society about relationship between the equal opportunity, black advancement, affirmative action and diversity management paradigms and related practices. The sources of conflicting reactions to affirmative action stem from individual, group and cultural believes and values which were both shaped by the political realities of the previous regime and the ideals people cherish for themselves in the current dispensation. Colonialist and apartheid laws, policies and practices which were racist and patriarchal provided for separate societies for blacks, whites, Indians and coloureds. 11 At this point in time separate labour systems with job reservation were applicable for whites. There were also wage differentiations between white and black people and between sexes. 12 Furthermore, disabled people were kept dependant and there were also discriminatory legislative provisions against them. 13 This history of systemic discrimination and its resulting inequality and entrenched disadvantage for black, coloured and Indian women and the disabled, was and still is well-known both nationally and internationally. 14 Internationally, apartheid has been extensively disapproved. Examples hereof include the United Nations that declared apartheid and its impact a “crime against humanity” and a negation of the United Nations Charter, 15 expressions of censure culminated in the adoption of the International Convention on the Suppression and Punishment of the Crimes of Apartheid16 and the expulsion of South Africa from the United Nations and its agencies. 17 Nationally, on the other hand, South Africa promulgated several legislative pieces namely, the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998.
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Ndayi, Zoliswa Beauty. "A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa." University of the Western Cape, 2020. http://hdl.handle.net/11394/8129.
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Magister Legum - LLMThe right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.
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Blackham, Alysia Paige. "Extending working life for older workers : an empirical legal analysis of age discrimination laws in the UK." Thesis, University of Cambridge, 2015. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.709060.
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de, Plevitz Loretta R. "The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce." Thesis, Queensland University of Technology, 2000. https://eprints.qut.edu.au/29025/1/Loretta_de_Plevitz_Thesis.pdf.
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Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.
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de, Plevitz Loretta R. "The failure of Australian legislation on indirect discrimination to detect the systemic racism which prevents Aboriginal people from fully participating in the workforce." Queensland University of Technology, 2000. http://eprints.qut.edu.au/29025/.
Full textAbstract:
Government figures put the current indigenous unemployment rate at around 23%, 3 times the unemployment rate for other Australians. This thesis aims to assess whether Australian indirect discrimination legislation can provide a remedy for one of the causes of indigenous unemployment - the systemic discrimination which can result from the mere operation of established procedures of recruitment and hiring. The impact of those practices on indigenous people is examined in the context of an analysis of anti-discrimination legislation and cases from all Australian jurisdictions from the time of the passing of the Racial Discrimination Act by the Commonwealth in 1975 to the present. The thesis finds a number of reasons why the legislation fails to provide equality of opportunity for indigenous people seeking to enter the workforce. In nearly all jurisdictions it is obscurely drafted, used mainly by educated middle class white women, and provides remedies which tend to be compensatory damages rather than change to recruitment policy. White dominance of the legal process has produced legislative and judicial definitions of "race" and "Aboriginality" which focus on biology rather than cultural difference. In the commissions and tribunals complaints of racial discrimination are often rejected on the grounds of being "vexatious" or "frivolous", not reaching the required standard of proof, or not showing a causal connection between race and the conduct complained of. In all jurisdictions the cornerstone of liability is whether a particular employment term, condition or practice is reasonable. The thesis evaluates the approaches taken by appellate courts, including the High Court, and concludes that there is a trend towards an interpretation of reasonableness which favours employer arguments such as economic rationalism, the maintenance of good industrial relations, managerial prerogative to hire and fire, and the protection of majority rights. The thesis recommends that separate, clearly drafted legislation should be passed to address indigenous disadvantage and that indigenous people should be involved in all stages of the process.
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Durril, Roseanne E. "Crisis communications : an examination of spokespersons use of response strategies during the Adam's Mark Hotel racial discrimination lawsuit." Virtual Press, 2001. http://liblink.bsu.edu/uhtbin/catkey/1222833.
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There have been a number of studies that examine how public relations practitioners respond during a crisis. Many researchers have examined the various response strategies and the success or failure of theses methods. Because a crisis can have legal ramifications, it is important that a good working relationship between the legal staff and public relations staff exists. To better understand the relationship between the two groups and the response strategies generated during a crisis, more research in this issue is needed. This study focused on response strategies used during a racial discrimination lawsuit. The objectives of the study were to determine which strategies were used most often, and how the influence of legal staff and public relations staff determined the responses.A content analysis of newspapers found in a NexisLexis search, during the crisis period, was used to gather responses made by spokespersons. The search yielded twenty-seven usable newspaper articles and sixty-two responses from company spokespersons.Coders were trained to identify the response strategies that were defined as traditional public relations strategy, traditional legal strategy, mixed strategy and diversionary strategy. A chi-square test was used to test the hypothesis. The findings supported a balance between the use of traditional public relations strategy and traditional legal strategy.Further analysis identified a significant increase in the use of traditional public relations strategy when a public relations firm was retained to remedy the crisis situation. The study also supported a collaborative working relationship between public relations and legal counsel.Department of Journalism
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Ledwaba, Lesetsa Joel. "Dismissal due to pregnancy." Thesis, Nelson Mandela Metropolitan University, 2006. http://hdl.handle.net/10948/433.
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Previously, our workplaces were characterised by serious hardships emanating from labour laws which did not always cater for all areas of the employment relationship. South African female employees were without a clear legitimate remedial right precluding any severe violation and infringement to their fundamental rights resulting from their pregnancy; a task they did not opt for in the first place, but was instead, naturally imposed on them as a result of their gender category. Undoubtedly, many female employees were victims of unfair discrimination. The legislature therefore saw it fit to democratise the workplace by making rapid statutory interventions. As a result, a number of significant changes in various spheres of our labour laws were brought in. Amongst the greatly notable valuable changes was the introduction of the Employment Equity Act 55 of 1998. This piece of legislation has generally reformed our industrial society by bringing in the elimination of unfair discrimination and thereby enhancing the principle of equity in the workplace. The act has further touched a place within hearts of female employees for fear of discrimination as a result of their pregnancy status or any reasons related to their pregnancy. The act further codified Industrial Court decisions that were already established under the discrimination law jurisprudence from the Labour Relations Act 28 of 1956. The application of the provisions of the Act has made the employment relationship no longer to be a comfort zone for employers. These general changes to the law also impact on the dismissal law regime. The purpose of this treatise is to give an overview of the applicable legislation and contributions made by the Labour Courts in developing pregnancy dismissal and discrimination law. The Labour Courts have handed down few judgements that have helped in clarifying the provisions of both the current Labour Relations Act and the Employment Equity Act around the topic. One should hasten to say that this has never been a smooth process by the courts. It is further shown in this treatise that some of the court decisions were not well accepted in the light of other important considerations, such as the equality provisions of the Constitution. For the purpose of effectively dealing with this topic, this treatise contains a discussion of the historical context of discrimination law in the form of common-law position, and the discrimination law before the Bill of Rights and the Constitution. It then endeavours to identify the legislative provision of the Act when it comes to discrimination law provisions. At the same time the important court decisions that were made are identified and examined.
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McConnachie, Chris. "What is unfair discrimination? : a study of the South African Constitutional Court's unfair discrimination jurisprudence." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:19fcaf61-257b-4edf-9c8f-9f6429f12f45.
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This thesis offers an original account of the South African Constitutional Court's reasoning in identifying unfair discrimination perpetrated by the state. I use this account to develop proposals for improving the Court's jurisprudence, in line with its stated aim of addressing patterns of group disadvantage. The Court's Harksen test for unfair discrimination makes dignity the touchstone for identifying this wrong. However, the Court has not explained what is required to prove a violation of dignity or how dignity fits with its concern for group disadvantage. I demonstrate that three necessary conditions must be satisfied for the Court to conclude that dignity has been violated: there must be a) unfavourable treatment on the basis of protected grounds; b) that threatens to create or perpetuate patterns of group disadvantage; and c) that lacks adequate justification. I also investigate important features of the Court's reasoning that have been overlooked in the existing literature, including its concern for messages expressed by discrimination and the fluctuating intensity with which it reviews justifications. Among my proposals for developing this reasoning, I argue that the Court should remove human dignity from the Harksen test and openly acknowledge the considerations doing the work in its decisions. I also provide a detailed critique of five of the Court's most controversial decisions where it found discrimination to be fair despite clear indications that it entrenched patterns of disadvantage. I show that in all five cases the Court applied an indefensibly weak intensity of review, falling below the baseline level of scrutiny which ought to be applied in unfair discrimination cases. I contend that consistent application of this baseline will help to make the Court better at preventing and addressing patterns of group disadvantage. I conclude with a restatement of the Harksen test that consolidates the Court's reasoning and my proposals.
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Clarke, Tamsin Law Faculty of Law UNSW. "Racism, pluralism and democracy in Australia : re-conceptualising racial vilification legislation." Awarded by:University of New South Wales. School of Law, 2005. http://handle.unsw.edu.au/1959.4/20530.
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Australian debates about racial vilification legislation have been dominated by mainstream American First Amendment jurisprudence and popular American notions of 'free speech' to the exclusion of alternative Europeans models. This can be seen from notions of Australian racial vilification legislation as inconsistent with 'free speech' rights as well as the influence of some of the basic assumptions of First Amendment jurisprudence on political speech cases in the Australian High Court. Despite the widespread existence of legislation that penalises racial vilification at State and Federal levels, there has been a rise in Australia over the past 10 years of divisive 'race' politics. Against that background, this thesis considers the scope and limits of racial vilification legislation in Australia. It is argued that First Amendment jurisprudence is inadequate in the Australian context, because it is heavily dependent upon economic metaphors, individualistic notions of identity and outdated theories of communication. It assumes that 'free speech' in terms of lack of government intervention is essential to 'democracy'. It ignores the content, context and effect of harmful speech, except in extreme cases, with the result that socially harmful speech is protected in the name of 'free speech'. This has narrowed the parameters within which racial vilification is understood and hindered the development of a broader discourse on the realities of racist harms, and the mechanisms necessary for their redress. The author calls for the development of an Australian jurisprudence of harmful speech. Failing an Australian Bill of Rights, that jurisprudence would be grounded upon the implied constitutional right of free political speech, informed by an awareness that modern structures of public speech favour a very limited range of speech and speakers. The jurisprudence would take advantage of the insights of Critical Race Theory into the connections between racial vilification and racist behaviour, as well as the personal and social harms of racial vilification. Finally, it is argued that the concepts of human dignity and equality, which underpin European discrimination legislation and notions of justice, provide a way forward for Australian jurisprudence in this area.
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Falkung, Annie. "The Europeanization of gender equality : A study on EU influence on Swedish gender equality legislation." Thesis, Linnéuniversitetet, Ekonomihögskolan, ELNU, 2012. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-18124.
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Sweden has since the membership of the European Union established a new Discrimination act and this thesis aim is to discuss if the EU could be a factor that influenced Sweden to that change. This is done through a discussion of how the EU is mentioned in the preparatory works. Preparatory works are used by the Swedish government in policy making before deciding on a new law and is to give a better understanding to the theoretical background and how the policy-making process deals with the effects of the EU policy at national level. To help explain how the EU could be an influential factor the theory of Europeanization and State-feminist theory are applied. These theories are also discussed further on the role norm entrepreneurs’ play and how they use the EU as an opportunity structure. Through the theory of Europeanization it is explained how the he EU directives have been implemented without any adoptational problems and with Sweden meeting the goals of the directives, national legislation has been developed further. Through the governmental bills, signs show that the EU can be a factor of influence in national legislation in Sweden. It has not, however, been stated that the changes of the acts to the current Discrimination act is done by effects of the European Union.
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Berlin, Lois F. "Peer to peer sexual harassment : emerging law as it applies to school building administrators' legal responsibility for prevention and response /." Diss., This resource online, 1996. http://scholar.lib.vt.edu/theses/available/etd-06062008-151320/.
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Ndayi, Zoliswa B. "A legal analysis of legislation and policies on the right to basic education in the Eastern Cape, South Africa." University of the Western Cape, 2020. http://hdl.handle.net/11394/8133.
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Magister Legum - LLMThe right to a basic education is recognised as an essential right in international and regional law, with numerous instruments regulating it.1 There are soft laws, in the form of General Comment documents, which provide guidelines to interpreting this right.2 Among these instruments, for example, the International Covenant on Social, Economic and Cultural Rights (hereafter referred to as ‘the ICESCR’) and the African Charter on Human and People’s Rights (hereafter referred to as ‘the ACHPR’) implore member states to ensure that every child within their jurisdiction is able to gain access to education.3 The ICESCR acknowledges that basic education as a socio-economic right is realisable overtime, its full realisation dependent on the availability of state resources.4 Furthermore, the state is required to ensure that ‘scientific and technical knowledge’ is made accessible, thus incorporating modern teaching and learning methods.5 In addition, the state is called to ensure that the quality of their education is acceptable and of a similar standard in all of their public schools.6 Moreover, the Convention on the Rights of the Child (hereafter referred to as the ‘CRC) and the African Charter on the Rights and Welfare of the Child (hereafter referred to as the ‘ACRWC’) require the state to take measures that will encourage learners to attend school regularly and thus reduce the dropout rates.7 These instruments lay down normative standards, giving guidance on the content of the right to basic education, i.e. defining what availability, accessibility, acceptability, and the adaptability (4As) means within the broader context of the right to basic education. The right to a basic education, in theory is immediately realisable; however in practice, it can be argued that it is being treated like other socio-economic rights, subjected to the principle of progressive realisation.8 This right, unlike other socio-economic rights in South Africa, is sui generis, it has no internal qualifiers, meaning that it can only be limited in terms of a law of general application that is reasonable and justifiable in an open and democratic society founded on human dignity, freedom and equality.9As a party to most of the above instruments, the post-apartheid government of South Africa through its Constitution10, has entrenched the right to basic education under section 29(1)(a). Through this constitutional recognition, numerous legislation and policy documents have been enacted, which directly deal with the implementation of this right.11 Accordingly, the following selected legal instruments have been essential tools used to assist the relevant stakeholders with defining and implementing the right to a basic education , not just at the national level but also provincially.12 These instruments are the South African Schools Act,13 National Education Policy Act14 and the Employment of Educators Act,15 which are the main statutes on basic education. In addition, the Eastern Cape Schools Education Act,16 Promotion of Equality and Prevention of Unfair Discrimination Act,17 Children's Act,18 Criminal Law (Sexual Offences and Related Matters) Amendment Act,19 Criminal Procedure Act and the Refugees Act,20 which shall be discussed in detail in chapter 4 of the study When assessing the availability, accessibility, and the acceptability of basic education resources in the Eastern Cape (hereafter referred to as ‘the EC’), the province appears to be lagging when compared to some of the other provinces. For instance, the National Education Infrastructure Management System Report (hereafter referred to as ‘NEIMSR’) stated that out of the 5393 schools audited from the EC, 1945 of these schools had pits and 37 had no sanitation facilities21. In addition, 92.99% of the 5393 schools in the province do not have libraries and 4.21 % of the schools recorded have adequately resourced libraries.22 This is to be contrasted to 63.24% schools that have libraries in Gauteng.23 In addition, the illiteracy rate in the province is estimated at 10, 4% when compared to other provinces, which is against the background that the province has experienced a decline in learner enrolment over the last few years.
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Rangoato, Sello Joshua. "Discrimination based on HIV/AIDS status in the workplace." Thesis, University of Limpopo, Turfloop Campus, 2013. http://hdl.handle.net/10386/1108.
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Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013This mini-dissertation outlines the protection of rights of people living with HIV/AIDS in the workplace. It will highlight the fact that people living with HIV/AIDS can perform the work as long as they medically fit. It will show the need to promote anti discriminatory laws in the workplace. People think that HIV/AIDS can be transmitted through casual contact but that will be shown in the study that HIV/AIDS can not be transmitted by casual contact. The mini-dissertation also outlines the need to educate employees about their rights more particularly those living with HIV/AIDS in the workplace. Therefore policies such as affirmative action must be implemented to affirm several advantages to people living with HIV/AIDS. Equality is what people must enjoy in the country in terms of section 9 of the Constitution including people living with HIV/AIDS.
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Keeffe, Mary Bernice. "Legal Tensions in the Governance of Inclusion: Principals' Perspectives on Inclusion and the Law." Thesis, Queensland University of Technology, 2004. https://eprints.qut.edu.au/15976/1/Mary_Keeffe_Thesis.pdf.
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Disability discrimination is an ongoing problem in Australian schools. This study analyses the tension that exists between the requirements of the disability discrimination legislation and the way that principals make decisions about the inclusion of students with disabilities in Queensland state schools. The findings from the study suggest that principals believe the disability discrimination legislation is relevant but it is not helpful in providing a framework for discrimination-free decision-making. Instead, the democratic governance processes of inclusion and collaboration are identified as essential elements of the school principal's decision-making process if inclusive school cultures are to thrive and if discrimination is to be reduced or eliminated.
Habermas's critical theory of lifeworld and systems world provides the conceptual framework to analyse the complex lifeworld of the principal and the systemic requirements of the legislation. A lifeworld model of decision-making interactions within the inclusive school is proposed from the data collected in this study.
Data were collected using a mixed methodology in which 120 principals responded to surveys about their perspectives on inclusion. This was followed by a series of in-depth interviews with six principals who described their schools as inclusive. Focus groups also provided group perspectives and verified the data collected from the surveys and interviews. Together, the quantitative data and the qualitative information complement each other to provide comprehensive perspectives from principals about inclusion and the law.
Recommendations are made in the final chapters that propose a new legal paradigm for disability discrimination legislation so that the discordance between the systems world of the law and the lifeworld of the principal may be reduced. More specific policy and governance recommendations promote collaborative decision-making models to facilitate shared understandings about complex issues that relate to disability.
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Keeffe, Mary Bernice. "Legal Tensions in the Governance of Inclusion: Principals' Perspectives on Inclusion and the Law." Queensland University of Technology, 2004. http://eprints.qut.edu.au/15976/.
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Disability discrimination is an ongoing problem in Australian schools. This study analyses the tension that exists between the requirements of the disability discrimination legislation and the way that principals make decisions about the inclusion of students with disabilities in Queensland state schools. The findings from the study suggest that principals believe the disability discrimination legislation is relevant but it is not helpful in providing a framework for discrimination-free decision-making. Instead, the democratic governance processes of inclusion and collaboration are identified as essential elements of the school principal's decision-making process if inclusive school cultures are to thrive and if discrimination is to be reduced or eliminated. Habermas's critical theory of lifeworld and systems world provides the conceptual framework to analyse the complex lifeworld of the principal and the systemic requirements of the legislation. A lifeworld model of decision-making interactions within the inclusive school is proposed from the data collected in this study. Data were collected using a mixed methodology in which 120 principals responded to surveys about their perspectives on inclusion. This was followed by a series of in-depth interviews with six principals who described their schools as inclusive. Focus groups also provided group perspectives and verified the data collected from the surveys and interviews. Together, the quantitative data and the qualitative information complement each other to provide comprehensive perspectives from principals about inclusion and the law. Recommendations are made in the final chapters that propose a new legal paradigm for disability discrimination legislation so that the discordance between the systems world of the law and the lifeworld of the principal may be reduced. More specific policy and governance recommendations promote collaborative decision-making models to facilitate shared understandings about complex issues that relate to disability.
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Ncume, Ali Zuko. "The programmatic enforcement of affirmative action." Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/5521.
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Historically, racism was deeply rooted in the workplace in South Africa where white people were largely afforded better opportunities than their black counterparts. This position changed after South Africa became a democratic country. In the new South Africa, legislation has been adopted to combat unfair discrimination. This legislation is founded upon the equality clause contained in section 9 of the Constitution of the Republic of South Africa. Section 9 prohibits unfair direct or indirect discrimination against any person on any of the listed grounds. It also makes provision for protection against unfair discrimination on unlisted grounds. The Employment Equity Act was enacted to bring equality to the workplace and to give effect to section 9(2) of the constitution. The Employment Equity Act promotes equal opportunities and fair treatment and seeks to eliminate unfair discrimination. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. However not all discrimination is unfair. Section 6(2) of the Employment Equity Act provides that discrimination based on the inherent requirements of a job or in terms of affirmative action measures will not be unfair. This section implies that there are grounds of justification which may cause discrimination to be fair. These grounds are affirmative action and inherent requirements of a job. Affirmative action is a purposeful and planned placement and development of competent or potentially competent persons in or to positions from which they were debarred in the past. Affirmative action is an attempt to redress past population, on local and national level. One of the requirements of affirmative action in South Africa is that it must target persons who have been discriminated by unfair discrimination in the past. There are affirmative action measures incorporated in the Employment Equity Act. There exists also a designed programmatic enforcement of affirmative action measures.
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KIM, PILKYU. "EMPLOYMENT OF ALIENS IN THE UNITED STATES: A QUESTION OF DISCRIMINATION AS EVALUATED UNDER STANDARDS OF INTERNATIONAL LAW." Diss., The University of Arizona, 1985. http://hdl.handle.net/10150/184198.
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This study is designed to investigate discrimination in employment against resident aliens in the United States as evaluated by both U.S. practices and standards of international law and to determine whether the American treatment of aliens in employment is compatible with the international standard. In order to examine the common assertion that American practices in the treatment of aliens in employment is superior to the international minimum standard, two sets of hypotheses are tested: one on the existence of the minimum international standard, which protects aliens' rights, and the other on the American practice of requiring citizenship for employment, which deprives aliens of equal protection and thereby places the legal position of aliens below the minimum international standard. Three major sources of data for this study involve data from: (1) international arbitrations, conventions and agreements; (2) United States executive, legislative, and judicial decisions and actions; and (3) Immigration and Naturalization Service materials. The major findings indicate that the contemporary minimum international standard includes post-1945 Human Rights instruments together with the traditional minimum international standards. The most significant finding is that the contemporary minimum standard affords aliens the right to work without discrimination and confirms the relevant hypothesis in connection with the minimum standard. The study reveals that aliens in the United States are discriminated against in employment because of alienage at three different levels--federal, state, and private--with more intensity of discrimination at the federal level, despite the equal protection clause in the U.S. Constitution. The study concludes that American employment practice in the period of 1886-1971 was comparable with the international standard. On the other hand, during the 1971-1980 era, U.S. standards were below the minimum international standard as set forth by international law. This confirms the hypothesis, with some modification, that the U.S. practice of demanding citizenship for some employment has undercut the legal position of aliens so that it falls below the minimum international standard.
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Andreeva, Androva Raïa. "Le regime de l'arbitrage dans les litiges de consommation en droit français /." Thesis, McGill University, 2004. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=81468.
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For some time now, Article 2061 of the French Civil Code had laid down the general principle that arbitration clauses were invalid. In 2001, an amendment to Article 2061 reversed the concept, so that the former principle became the exception and the law was made to favour arbitration. While the reform was a progressive step, it did leave some ambiguity especially concerning the consumer disputes. Arbitration is indeed a very convenient alternative dispute resolution method in this arena. The purpose of this thesis is to address some of the issues related to consumer disputes. It seeks to demonstrate that by adopting the concept of "inefficiency" of the arbitration clause, whose sanction depends on the will of the consumer, French law will not only reconcile its domestic provisions but also be in accordance with the other judicial systems.
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Loots, Barbara Evelyn. "Geslag en Regstellende Aksie in die Werkplek." Thesis, Link to the online version, 2005. http://hdl.handle.net/10019/1092.
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Poli, Lynley V. "Mock jurors' judgements of the victim, crime and defendant as a function of victim race and deliberation." Thesis, Edith Cowan University, Research Online, Perth, Western Australia, 2004. https://ro.ecu.edu.au/theses/839.
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Extra-legal variables are factors within a trial that are logically irrelevant to the determination of a verdict. They are deemed extra-legal they are extra to the law and are not prescribed in the relevant statutes upon which the relevant issue must be decided. Research investigating judicial decision-making, however, demonstrates that extra-legal variables often affect jurors' judgements and improperly influence their decision-making. Examples of extra-legal variables include the personal attributes of trial participants, e.g., the victim's physical attractiveness, socio-economic status, and age. Studies conducted in North America indicate that the race of the victim and defendant inappropriately influences jurors' decision-making. However, to date, no such published research has been conducted in Australia. Due to Australia's diverse population, which consists of several minority groups and a dominant Caucasian group, it is likely that race may net as an extra-legal variable. Furthermore, several Australian studies have documented a strong prejudice against Aborigines and Asians, with the potential for a newly emerging prejudice against individuals from Middle-Eastern countries. The present study investigated whether the race of the victim would affect jurors' perceptions and judgements in a simulated attempted-rape trial. Research also indicates that the process of deliberation amongst other things, can affect the influence of extra-legal variables on decision-making, and that it can either exaggerate or attenuate this influence. Therefore, the impact of deliberation on the jurors' perceptions and judgements was investigated, and also whether an interaction occurred between race and deliberation. One hundred and six participants were recruited to examine the effects of the race of the victim on their judgements of the defendant, crime, and victim. Due to Australia having a dominant Caucasian race, it was assumed that when the victim is Aboriginal, Asian or of a Middle Eastern origin, jurors' judgements of the defendant, crime and the victim will be negatively prejudiced by the victim's race, and that when the victim is Caucasian, no such prejudice will impact upon the jurors' decision-making. It was also assumed that deliberation would attenuate the influence of the extra-legal variable of the victim's race, such that any bias observed in pre-deliberation judgements will be reduced in post deliberation judgements. The quantitative data was analysed with a series of 4 x 2repeated measures ANOVAs and a qualitative analysis was undertaken of the deliberation discussions. Quantitative results revealed no significant effects for victim race. However, the effect for race approached significance regarding the seriousness of the crime, with the crime perceived as least serious for the Middle-Eastern victim. The pattern of results identified across several items also revealed a consistent trend toward the different races. An overall positive trend was observed toward the Aboriginal victim, and a negative trend identified toward the Middle-Eastern victim, and to a lesser extent, the Caucasian victim. Qualitative analyses support this pattern of results. The effect for deliberation revealed a number of significant findings, with the victim's character perceived as more positive, and the defendant as less guilty following deliberation. Significant interactions were also identified regarding the defendant's sentence and the responsibility of the victim. In particular, following deliberation, the defendant in the Caucasian condition was given a significantly reduced sentence, and the Asian victim was perceived as significantly less responsible. The results are discussed in terms of the need for closer analyses of Australian intergroup relations, social desirability and cultural stereotyping, and their influence on courtroom decisions.
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Krüger, Rósaan. "Racism and law : implementing the right to equality in selected South African equality courts." Thesis, Rhodes University, 2009. http://hdl.handle.net/10962/d1003192.
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Racism has informed South African society since colonial times. Racist beliefs found expression in the laws of colonial and apartheid South Africa and shaped both state and society. The constitutional state that South Africa has become since 1994, is based on the values of ‘human dignity’, ‘the achievement of equality’ and ‘nonracialism’, among others. Law formed the basis of the racist state prior to 1994, and now law has a fundamental role to play in the transformation of the state and society in an egalitarian direction by addressing socio-economic inequalities on the one hand, and by changing patterns of behaviour based on racist beliefs forged in the past, on the other. This thesis examines one of the legal instruments that is intended to contribute to transformation in the latter sense, namely the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act), with specific reference to the issue of racism. The provisions of this Act and the framework for its operation against the background of South Africa’s racist past, and within the broader framework of international and constitutional law, are examined. These two legal frameworks are analysed for the purpose of determining the standards set by international and constitutional law regarding racial equality in order to determine whether the Equality Act measures up. This thesis also incorporates an analysis of the practical application of the provisions of the Equality Act to complaints of racism in selected equality courts. The theoretical analysis of the Act’s provisions and their application in the equality courts point to various problematic formulations and obstacles which negatively affect the application of the provisions and thus hamper social change. The thesis concludes with recommendations for refining the Act’s provisions and its application.
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Nconco, Mpumelelo. "Substantive equality and affirmative action in the workplace." Thesis, Nelson Mandela Metropolitan University, 2012. http://hdl.handle.net/10948/1617.
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During the apartheid era in South Africa there was an unequivocal commitment to white supremacy, segregation and inequality. Discrimination but not on the basis of race was entrenched by the pre-democratic government. The 1980‟s saw the first steps towards reversing such practices through various measures, in the form of formal equality. Formal equality holds that the state must be act neutrally in relation to its employees and must favour no one above another. It assumes that all people are equal and that inequality can be eradicated simply by treating all people in the same way. Formal equality is therefore blind to structural inequality. Substantive equality in contrast to formal equality holds the value that equality is not simply a matter of likeness, that those who are different should be treated differently. The very essence of equality is to make distinction between groups and individual in order to accommodate their different needs and interests. It considers discrimination against groups which have been historically advantaged to be qualitatively aimed at remedying that disadvantage. The Constitution Act 108 of 1996 confers the right to equal protection and benefit of the law and the right to non discrimination. Prohibition of unfair discrimination in itself is insufficient to achieve true equality in a historically oppressed society. Hard affirmative action measures are required, the Constitution further explicitly endorses such restitutionary measures. Affirmative action is a systematic, planned process whereby the effects of colonialism and racial discrimination are being reversed in all areas if life. It is designed to achieve equal employment opportunities. In order to achieve this goal the barriers of the workplace which restrict employment and progressive opportunities have to be systematically eliminated through proactive programmes. Affirmative action is a delicate instrument of social engineering which must be used with caution. The Employment Equity Act 55 of 1998 gives effect to the constitutional provisions and to regulate affirmative action measures in employment. The Employment Equity Act spells out the beneficiaries, who should do the protection, and advancement and what may happen to employers if they fail to comply in the view of the Director-General of the Labour. However the explicit constitutional and legislative endorsement of affirmative action comes with its controversy and legal challenges and it has been left to the courts to resolve tension on the one hand and to ensure equal treatment on the other.Abstract
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Marquet, Jeannine M. "Les céréaliers français et l'Europe." Doctoral thesis, Universite Libre de Bruxelles, 1988. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/213307.
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Charruau, Jimmy. "La notion de non-discrimination en droit public français." Thesis, Angers, 2017. http://www.theses.fr/2017ANGE0070.
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C’est en tant que principe du droit de l’Union européenne et de la Convention européenne des droits de l’Homme que la non-discrimination est souvent étudiée. Rattachée au droit français, la notion a fait l’objet d’analyses qui, pour la plupart, se sont limitées à un critère (sexe, race,etc.) ou à un domaine en particulier (fonction publique, marchés publics, etc.). On saisit l’intérêt d’une étude globale de la non-discrimination en droit public français ; et ce d’autant plus que si la notion émerge, sa mise en oeuvre rencontre des difficultés qui tiennent aux spécificités de ce droit par rapport au principe d’égalité. Adapté à la culture juridique anglosaxonne, ce principe attire la suspicion : il entraînerait avec lui des conséquences a priori peu compatibles avec l’universalisme français. Le principe d’égalité ne semble pourtant plus entièrement suffire pour répondre aux réalités sociales. Les juges recourent aux dérogations, au risque d’affaiblir la norme. Et la doctrine se livre à des acrobaties conceptuelles pour en minimiser l’importance. La non-discrimination offre de ce point de vue des perspectives utiles au droit français en alliant interdiction active des discriminations et promotion des différenciations. Au fond, la notion ne vise rien d’autre que la recherche de l’intérêt général, ou plus exactement de l’ « utilité commune » (article 1er de la Déclaration de 1789). Au-delà des préjugés, elle s’avère conforme à notre tradition juridique. Forte d’une dimension holistique et plus centrée sur la manière de vivre en commun que sur l’exacerbation de droits strictement catégoriels, la non-discrimination mériterait d’être élevée à la dignité constitutionnelleNon-discrimination is often studied as a principle of both European Union law and European Convention on Human Rights. In French law, the notion has been the subject of analyses which have mostly been limited to a criteria (sex, race, etc.) or to a particular field (public service, public contracts, etc.). We can see the significance of a global study of non-discrimination in French public law ; all the more that if the notion is appearing, it is still difficult to implement it, due to the specificities of French law regarding the principle of equality. Adapted to the Anglo-Saxon legal culture, this principle attracts suspicion : it would trigger some consequences which would not be seen at first as befitting French universalism. However, the principle of equality does not seem to be sufficient in itself to address social realities. Judges use derogations, risking to weaken standards. And the doctrine has to adjust through conceptual feats to minimize its scope. Non-discrimination offers, from this point of view, useful perspectives for French law by combining active prohibition of discrimination and promotion of differentiation. Basically, the notion only aims to seek general interest, or more precisely the "common utility" (article 1 of the Declaration of 1789). In spite of appearances, non-discrimination is in agreement with our legal tradition. Because it has a holistic dimension and it is focusing more on how to live together than on making categorical rights worse, non-discrimination deserves to be raised to constitutional dignity
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Kasika, Richard. "The defence of inherent requirements of the job in unfair discrimination cases." Thesis, Nelson Mandela Metropolitan University, 2006. http://hdl.handle.net/10948/450.
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The discrimination jurisprudence in South Africa has developed over the previous decade since the promulgation of the interim and final Constitutions. The Employment Equity Act of 1998 also gave impetus to the development of equality jurisprudence with reference to the workplace. In terms of both the Constitution and the Employment Equity Act, unfair discrimination is forbidden. Both the Constitution and Employment Equity Act list specific grounds on which discrimination would be regarded as unfair. Although discrimination on any of the listed grounds would be regarded as automatically unfair, there is realisation that this cannot be an absolute position. The Employment Equity Act makes provision that employers be able to justify discrimination even on the listed grounds where there are justifiable reasons. In terms of the EEA, it is not unfair discrimination to differentiate between employees on the basis of an inherent requirement of the particular job. It is this defence that is considered in the present treatise. The inherent requirements of the job as a defence in unfair discrimination cases is one, which needs to be carefully considered it in fact requires a clear understanding of what constitutes an inherent requirement. It is equally important to understand that although in one instance it may be justifiable to exclude certain employees on the basis of an inherent requirement of the job, a generalisation may give an employer difficulties under certain circumstances. An employer who is faced with a prospective employee who suffers from a particular illness that would make it impossible to do the job, could raise the defence of an inherent requirement of the job. However, the fact that a particular employee has the same illness as the previous one not employed does not give an employer an automatic right to exclude all prospective employees who suffer from the same illness without having had consideration of their circumstances as well as those of their illnesses. The defence of inherent requirements of the job is therefore valid only where the essence of the business would be undermined by employing or not employing people with certain attributes required or not required to do the job.