Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth and the USA at Oxford University. She was elected a Fellow of the British Academy in 2005 and became a QC (honoris causa) in 2012. She is Honorary Professor of Law at the University of Cape Town and a fellow of Pembroke College Oxford. She has written and published widely on anti-discrimination law, human rights law and labour law, including numerous peer-reviewed articles, and three monographs: Human Rights Transformed (OUP 2008); Discrimination Law (2nd ed, OUP 2011); and Women and the Law (OUP 1997),as well as two co-authored books: The State as Employer (Mansell, 1988), with Gillian Morris, and Labour Law and Industrial Relations in Great Britain (2nd ed Kluwer, 1992) with Bob Hepple. She has also edited several books: Discrimination and Human Rights: The Case of Racism (OUP,2001); and Age as an Equality Issue (Hart, 2003) with Sarah Spencer; and has written numerous articles in peer-reviewed law journals. She was awarded a three year Leverhulme Major Research Fellowship in 2004 to further her research into socio-economic rights and substantive equality. She is South African and holds degrees from the University of Witwatersrand and the University of Oxford.. She has acted as an expert adviser on equality law and labour legislation in the EU, Northern Ireland, the UK, India, South Africa, Canada and the UN; and is a barrister practising at Old Square Chambers. She founded the Oxford Human Rights Hub in 2012, of which she is the Director.
- DOI: 10.1093/hrlr/ngw001DOI: 10.1093/indlaw/dww019DOI: http://dx.doi.org/10.1017/S089267941600006XThe relationship between issues which are universal and those which are culturally determined is a vexed one in human rights law. This paper critiques Lord Hoffmann's view that different communities should, through their legislatures and judges, adopt the answers which they think suit them. It argues that it is wrong to assume that either there is a right answer to human rights questions or such questions are culturally determined. Instead, it is through a process of deliberation and accountability, both nationally and cross nationally that human rights take on a dynamic role in society. Using comparative materials in the context of sexual orientation equality and the right to vote, the paper demonstrates the ways in which local variation, while possible, should be defended on the basis of explicitly argued local differences.ISBN: 9781849465915The early jurisprudence of the South African Constitutional Court effectively placed dignity at the centre of the equality right. This elevation of a largely undefined, and abstract notion of dignity as human worth, and the apparent displacement of other purposes, especially that of remedying systemic disadvantage, generated significant debate about the definition and application of the right. In this article we argue for a multi-dimensional idea of equality which enables a fuller exploration of the complexity of the harms and injuries that underlie equality claims, and greater elucidation of the multiple principles and purposes of equality. In particular, we argue that substantive equality should be understood in terms of a four dimensional framework, which aims at addressing stigma, stereotyping, prejudice and violence; redressing socio-economic disadvantage; facilitating participation; and valuing and accommodating difference through structural change. We suggest that this approach enables a better exploration of the different principles that underlie equality and, crucially, an open discussion of complementarities and tensions between them. We explore the benefits of this multi-dimensional approach through an evaluation of three equality cases in which Justice Langa delivered the leading judgment: City Council of Pretoria v Walker, Bhe v Magistrate Khayalitsha and Pillay v MEC for Education, Kwazulu-Natal. We engage Justice Langas philosophy on equality as it emerges from these judgments, and evaluate the extent to which we can develop from this a more fully-fledged understanding of equality and its underlying values in the South African Constitution.ISBN: 978 148510 877 1How has the right to equality in the UK been shaped by its roots in labour law, and, conversely, in what ways has the newly acquired human rights regime influenced labour law? A close analysis of some of the major equality cases in the highest courts in the UK and in the ECtHR since 2010 reveals two main arenas of contestation. The first concerns the rights-holder, and the corresponding duty-bearer. Labour laws preoccupation with the employment relationship is challenged by the basic premise of human rights, namely that human rights inhere in everyone, simply by virtue of their humanity. On the other hand, the human rights regime generally assumes that it is only the state that is bound, leaving the obligations of the private employer in limbo. Yet it is into the interstices of all these settled relationships that the most vulnerable fall, and it is here that the right to equality should have the most traction. The second major cause of friction concerns the role of justification. Whereas under Article 14, the proportionality analysis is integrated into the definition of discrimination, the anti-discrimination statutes have built up a rigid divide between discrimination that can be justified and discrimination that cannot. This divide is under increasing pressure, particularly with the introduction of additional protected characteristics such as religion, age and disability.ISBN: 9781849466219DOI: 10.1017/S0020589315000275Although there is a broadly similar core of human rights law and courts in different jurisdictions face strikingly similar questions, the use of comparative law in the human rights context remains controversial. Reference to foreign human rights materials is regarded as undemocratic, selective and misleading. Rather than searching for a single right answer, or expecting convergence, this article addresses these challenges from a deliberative perspective. A deliberative approach requires decisions to be taken on the basis of reasons which are thorough and persuasive. Even where outcomes diverge, there need to be good reasons, whether textual, institutional, or cultural. Comparative materials constitute an important contribution to this process. Part I critically assesses various alternative potential functions of comparative law. Part II develops the deliberative model while Part III addresses the main critiques of comparative law. Part IV tests the deliberative approach against a selection of cases dealing with two particularly challenging issues confronted by courts in different jurisdictions, namely the use of substantive principles such as dignity, and the application of justification or limitation clauses in the context of prisoners' right to vote. Case law is drawn from countries which already cite each other and which have broadly similar institutional frameworks: the USA, Canada, South Africa, India, Australia, the UK, New Zealand and the European Court of Human Rights to the extent that it too considers comparative law.ISBN: 0020-5893The chapter begins by evaluating dialogic theories of human rights adjudication. It then sets out a deliberative alternative and sketches its application in a human rights context. I call this a bounded deliberative approach. The third section applies these principles to prisoners voting rights cases, comparing the approach of the South African Constitutional Court with that of the European Court of Human Rights.ISBN: 9781849465618Prepared as a background paper to UN Women's Flagship Report, Progress of the World's Women (2015), this paper examines the elaboration of the right to equality by the various actors within the treaty system who are tasked with elaborating on the meaning of human rights in international law. This paper evaluates these elaborations against a conception of equality that is substantive. The achievement of substantive equality is understood here as having four dimensions: redressing disadvantage; countering stigma, prejudice, humiliation and violence; transforming social and institutional structures; and facilitating political participation and social inclusion. The paper shows that, although not articulated in this way, these dimensions are clearly visible in the application by the various interpretive bodies of the principles of equality to the enjoyment of treaty rights. At the same time, it shows that there are important ways in which these bodies could go further, both in articulating the goals of substantive equality and in applying them when assessing compliance by States with international obligations of equality.ISBN: 978-1-63214- 024-1DOI: 10.1093/indlaw/dwv021ISBN: 0305-9332DOI: 10.1093/indlaw/dwu016This commentary draws out the implications of recent cases on indirect discrimination and its relationship to the Public Sector Equality Duty. It argues that both indirect discrimination and the public sector equality duty include a duty to take pre-emptive action once a pattern of disparate impact has been made out. Drawing on dicta in recent cases, and comparing them with recent US jurisprudence, it argues that courts have sown the seeds of such a duty but this has not been appropriately recognised in the remedy.ISBN: 0305-9332While social welfare rights have traditionally been based on a male breadwinner model, more recent measures have seen women as the main vehicle for poverty alleviation and therefore the subject of social welfare rights. This chapter aims to create a framework of substantive gender equality which can be used specifically to engender social welfare rights, using Conditional Cash Transfer Programmes as an example of how this might work. A truly gendered perspective means that a welfare programme should address all four dimensions of a four dimensional framework of substantive equality. It must focus on alleviating gender-based disadvantage as well as poverty per se. It must address the specifically gendered stigmatic and prejudicial consequences for women. It must ensure the voices of the women are clearly heard and taken into account. Finally, it must ultimately address the structural causes of inequality rather than either requiring women to conform to the male norm, or cementing gender-based stereotypes of caring roles. At the same time, a gender perspective should not obscure the reality of poverty for both men and women. The answer is not to shift responsibility to women, but to universalise the burden through state provision of services. Real substantive equality is most likely to be achieved, not through making women bear the burden of breaking the inter-generational cycle of poverty, but through universal, free access to good quality state schools, health clinics and other essential services.ISBN: 9781849466929Domestic workers situation in the heart of the employing family deﬁes the publicprivate divide which labour law regulation has taken as one of its major premises. Live-in domestic workers have little autonomy or privacy, little control over their hours of work, and little protection against verbal, sexual, and physical abuse and other forms of exploitation. Trade union organization is highly challenging. The need to reconﬁgure the publicprivate divide arises not just because domestic work takes place within the family. It is also because domestic workers have played an essential role in facilitating the entry into paid work of many other women worldwide. Indeed, it is arguable that the main reason for the mass migration of women from developing to developed countries has been a high demand for domestic workers to assist with childcare, housework, and care of the elderly. However, the fact that employers of domestic workers are often vulnerable elderly people or women working in low-paid and precarious work themselves does not necessarily protect domestic workers: indeed, despite or because of their own precarious position, such employers are also frequently the source of exploitation or abuse. The framing of legislation in relation to domestic workers must therefore address this complex layering of discrimination issues. It is against this backdrop that the ILO ﬁnally, after much campaigning, adopted in 2011 its Convention No 198 concerning decent work for domestic workers. The aim of this chapter is to critically assess the provisions of the Convention and to compare it to other sources of regulation of domestic work, particularly those in South Africa and Brazil.DOI: 10.1017/S1744552314000214The attempt to secure maternity rights has been a major focus of decades of campaigning for womens equality. However, it is of concern that maternity rights might reinforce womens responsibility for childcare. This paper considers how we bring men back into the frame, through a critical assessment of the contrasting approaches in Europe and the US to claims by fathers for parenting rights. It is argued that the goal of equal participation of women in the workplace needs to be matched by equal participation of men in the home. This is only possible if the conception of equality is shaped by a conscious and explicit commitment to the social value of parenthood. Substantive equality can only be genuinely furthered if pregnancy and parenthood are appropriately distinguished. Whereas pregnancy is unique and should be treated as such, a true application of substantive equality requires a levelling up option, extending womens parenting rights to fathers.The interpretation of human rights inevitably requires value judgements. But if the power of interpretation and limitation of human rights is left to elected legislators on the basis of majority voting, perpetual minorities may be perpetually subordinated. But leaving judges to make the final decision flies in the face of the basic principle that all fundamental decisions in society should be taken by the people themselves. Prisoners voting rights throw the dilemma into particularly sharp relief. Should an elected legislature have the final say on removing the fundamental right to vote from a section of the population, particularly one which is deeply unpopular and which politicians have no natural interest in defending? The most promising way out of this dilemma is to move away from a polarisation between courts and legislatures, and instead regard both as contributing to a democratic resolution of human rights disputes. An increasingly influential stream of thought characterises the relationship as one of dialogue. Rather than courts having the final say, judicial decisions provoke a response from the legislature. In this paper, I aim to go beyond a dialogic model and propose one based on deliberative democracy. Drawing on the distinction between interest bargaining and value-based or deliberative decisions, I argue that human rights can only be properly addressed within a democracy through deliberative means. In other words, the power of the principle should constitute the reason for adopting it, rather than the power of those whose interests it serves. Otherwise, those without political power risk perpetual subordination, undermining the raison dêtre of human rights protection. It is here that the courts are in a position to make a unique contribution to the democratic resolution of human rights issues. I argue that courts should ensure that human rights decisions are indeed taken deliberatively within the constraints set by the human rights themselves. I call this a bounded deliberative approach. The final section applies these principles to prisoners voting rights cases in South Africa and the UK.ISBN: 0033-3565This is a background paper for the World Development Report 2013. It aims to provide a literature review of legal and other instruments aimed at addressing labour market discrimination in developing countries,. The analysis takes place in the context of the understanding of jobs as providing the hinge connecting the three identified transformations at the centre of economic development: living standards, productivity gains and social cohesion. As Juan Somavia, ILO Director -General stated in June 2001: Every day we are reminded that, for everybody, work is a defining feature of human existence. It is the means of sustaining life and of meeting basic needs. But it is also an activity through which individuals affirm their own identity, both to themselves and to those around them. It is crucial to individual choice, to the welfare of families and to the stability of societies.‟ Yet many people are unable to access decent work because of their gender, race, disability, sexual orientation, age or poverty. Disadvantage in the labour market is disproportionately concentrated among women, ethnic minorities, people with disabilities, older or younger people and poor people. The report deals with a brief discussion of de jure equality; anti-discrimination laws; the informal sector; and implementation (including affirmative action) in a range of countries: among low income countries, the briefing note considers Kenya, Bangladesh and Nepal; among lower middle income countries, it examines India, the Philippines and Zambia; and among upper middle income countries, it examines South Africa, Botswana, Brazil, Jamaica and the Czech Republic. The countries were chosen to reflect a spread of different cultural, regional, historical and developmental factors, as well as the availability of literature in English. .ISBN: 13: 97811070417ISBN: 9781107034624ISBN: 9781107034624The rigid divide between a standard employment contract and other work relations has always presented particular difficulties for women. There is a fundamental mismatch between the binary divide that is inscribed in law and many womens experience, in which the boundaries between paid and unpaid work, between public and private, and between the labor market and social security are permeable and shifting. The effects of this mismatch are particularly felt among those women who predominate among non-standard workers, who find themselves characterized as independent or quasi-independent despite the reality of their lack of real autonomy or self-sufficiency in the market. But this mismatch also has serious effects for those women at any one time employed under an employment contract because of the incentives created by the law for employers to cut costs by re-characterizing their relationship as falling on the far side of the binary divide. Freedland and Kountouriss extraordinarily perceptive book, The Legal Construction of Personal Work Relations, not only allows us to escape from this rigid legal typology, it sheds light on the complex interactions between the many different personal work relations and labor market statuses that women engage in throughout their lives, pointing the way to a system of legal entitlements which better reflects these realities. In this review, we focus on the analytical and normative contributions made by The Legal Construction of Personal Work Relations2 in understanding and addressing how the current process of legal categorization disadvantages women workers. In the first part, we outline the critical analytical and conceptual advances that Freedland and Kountouris make in the legal categorization of work relations. In the second part, we draw out the implications of their analysis in three areas that are shaped by the relationship between womens paid and unpaid work: precarious work; equal pay and job segregation; and maternity and parental rights.DOI: 10.1093/jrls/jlt019The rigid divide between a standard employment contract and other work relations has always presented particular difficulties for women. There is a fundamental mismatch between the binary divide that is inscribed in law and many womens experience, in which the boundaries between paid and unpaid work, between public and private, and between the labor market and socialsecurity are permeable and shifting. Freedland and Kountouriss extraordinarily perceptive book, The Legal Construction of PersonalWork Relations, not only allows us to escape from this rigid legal typology, it sheds light on the complex interactions between the many different personal work relations and labour market statuses that women engage in throughout their lives, pointing the way to a system of legal entitlements which better reflects these realities.ISBN: 2219-7117Despite increasingly sophisticated antidiscrimination laws, dis- crimination and inequality have proved remarkably resilient. This prompts questions about the limits of laws ability to achieve social change. One way forward is to fashion new legal tools, which impose duties to promote or achieve equality, rather than focusing on individual rights against specific perpetrators. In the past decade in Britain, such fourth generation equality laws have been developed in a distinctive format, requiring the decision-maker to have due regard to equality, rather than taking action to achieve such objectives. Thisstandard has triggered a spate of judicial review cases, particularly in response to austerity measures imposing deep budgetary cuts on disadvantaged groups. This Papers aims are two-fold. The first is to examine the judicial approach to the due regard standard in the light of recent regulatory theory. Do courts consider the due regard standard as a signal for deference, or can it be understood as an example of reflexive law, facilitating deliberative decision-making rather than imposing external standards likely to meet with resistance from the regulated body? The Paper concludes that courts have struggled to deal with the regulatory challenges presented by the due regard standard, wavering between appropriate and inappropriate intervention. The second aim is an analysis of whether a deliberative standard is appropriate in the equality context. The record of judicial review cases demonstrates that such a standard risks legitimating or simply reconfiguring existing inequalities.ISBN: 0002-919xDOI: 10.2838/82208The aim of this study is to compare and contrast anti-discrimination and equality laws in the US, Canada, South Africa and India, with a view to inform future development of EU anti-discrimination laws. Comparative law is of great value, particularly in the equality field, where there is increasing cross-pollination across different jurisdictions. At the same time, comparative law carries with it important challenges, as the harmonising project of the EU has itself demonstrated. The four jurisdictions to be examined here share English as a common language as well as, in varying degrees, a common law heritage. However, there are significant differences in historical, socio-economic and political contexts as well as in legal institutions. The challenge is therefore to illuminate universalisableconceptions while at the same time recognising context specificity.ISBN: ISBN 978-92-79-23769Equality is an ideal to which we all aspire. Yet the more closely we examineit, the more its meaning shifts. This book examines the differing conceptions of equality in discrimination law, in the accessible yet challenging format of the Clarendon series. It uses a thematic approach to elucidate the major conceptual issues, while at the same time imparting a detailed understanding of the legal provisions, including the Equality Act 2010, human rights law, and EU law. Particularly illuminating is the comparative approach. By examining comparable law in the US, India, Canada, and South Africa, as well as the UK, the book exposes common problems and canvasses differing solutions.ISBN: 978-0-19-958443-7Poverty is increasingly a human rights issue. The aim of this paper is to consider what role the right to equality can and should play in relation to poverty. It draws on the experience in Britain, Canada, the US and South Africa to develop several ways in which equality could function in relation to poverty. It concludes that while the right to equality can make a valuable contribution to apsects of pvoerty based on misrecognition and oscial exclusion, it has not yet been sufficiently developed to address distributive inequalities in its own right.ISBN: 1016-4359A key advance of the Equality Act 2010 is its introduction of a single equality duty. The new public sector equality duty harmonises the earlier duties and extends its coverage to include other protected characteristics. In addition, the statutory aims have been deepened to reflect a substantive conception of equality. However, the core of the duty is unchanged. It is a duty to have due regard, not to take steps or to achieve equality. Is this an attempt to incorporate a deliberative, reflexive approach to achieving equality, recognising that a straightforward command and control approach might encounter unproductive resistance? Or does it reflect a fundamental ambivalence as to the importance of equality issues? Section 2 below examines the structure of the statutory provisions. Section 3 asks whether the statutory provision is an example of reflexive law. Particular attention is paid to the spate of judicial review cases relying on the equality duty to challenge a range of budget cuts. It is argued that courts have struggled to deal with the regulatory challenges presented by the equality duties. Nor is it clear that a reflexive approach is appropriate to achieve substantive equality.ISBN: 1464-366ISBN: 0033-3565ISBN: 02587203Despite 33 years of equal pay legislation, the gender pay gap remains stubbornly high. Multiple equal pay claims in the public sector have forcefully exposed the weaknesses, both of the Equal Pay Act and of the complaints-led model of enforcement on which it is based. This article argues that the equal pay apparatus is in need of radical reform. Single Equality legislation, due to be introduced in the autumn, is the ideal forum to do so. Substantively, it is essential to move beyond the current narrow range of comparison, the limited definition of equality and the lack of a collective dimension. So far as enforcement is concerned, the way forward lies in a positive duty to eliminate pay discrimination, which builds on and strengthens the current gender duty. Women's right to equal pay for equal work is often represented as an unreasonable demand on resources, carrying with it an unsustainable cost. In fact, it is a fundamental right recognised by major human rights instruments and the International Labour Organization (ILO). It is to be hoped that the Single Equality Bill will give equal pay reform the serious attention so urgently needed.ISBN: 0305-9332DOI: 10.1093/acprof:oso/9780199272761.001.0001Human Rights have traditionally been understood as protecting individual freedom against intrusion by the State. This book argues that human rights are based on a far richer view of freedom, going beyond absence of coercion and focussing on the ability to exercise such freedom. This view means that, as well as restraining the State, human rights require the State to act positively to remove barriers and facilitate the exercise of freedom. But because positive duties have for so long been regarded as a question of policy or aspiration, little sustained attention has been given to their role in actualising human rights. The book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all human rights give rise. It draws on political theory and social policy to illuminate important legal issues, and uses comparative material from India, South Africa, Canada, the US, the ECHR and the UK.ISBN: 9780199272761ISBN: 978-0-415-45722-4This paper examines the traditional dichotomy between measures addressing socio-economic inequalities and those aimed at inequality based on status, such as race, gender, disability or sexual orientation. Using the conceptual framework of recognition and redistribution developed by Nancy Fraser and others, I argue that it is no longer tenable to keep the two spheres separate. Constructing a concept of socio-economic equality without considering the implications for status-based inequality can be damaging and ineffective. Conversely, status-based measures are limited by their inability to mobilise the redistributive measures necessary to make real equality of opportunity and genuine choice possible. The paper begins by examining the interaction between socio-economic and status-based equality. I then sketch out a multi-dimensional notion of substantive equality which attempts to create a synthesis between the aims of both spheres. In the final part, I make some very tentative suggestions as to how the interpenetration can be more meaningfully captured in legal frameworks.This chapter examines the notion of a positive right to security. I argue that the right arises from a deeper understanding of human freedom, one which does not simply prevent interference in free choice but instead seeks actively to remove constraints on choice. The right to security is a right not just to non-interference but to state action, that aims to protect the individual from risks to the person, whether caused by fellow citizens, poverty or the state itself.ISBN: 13:978-1-84113-608-0ISBN: 0023-933XISBN: 0033-3565The chapter assesses the legal position of precarious workers from a feminist perspective and in the light of the development of flexible working and New Labour and 'Third Way' policiesISBN: 978-1-84113-616-6DOI: 10.1111/j.1468-0386.2006.00306.xISBN: 1468-0386This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model ains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland,Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a ecognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how wemight achieve a fundamental and non-derogable core of rights within a proactive modelISBN: 1023-263XSubstantive equality and positive duties to redress disadvantage in society, a critical comparison of South African, Canadian and ECHR approaches to the relationship between substantive equality and socio-economic rightsISBN: 0258-7203This chapter assesses existing discrimination paradigms and their applicability to disability discrimination.It argues that a possible way forward lies in a duty to promote equality based on social rights.ISBN: 1-84113-486-4This chapter examines the nature of socio-economic rights and challenges the contrast with civil and political rights. It argues that the focus should be on differences in the nature of the duty, and particularly the differences between duties to refrain from infringing on a right, duties to protect against infringement by others, and duties to take active measures to facilitate or promote the exercise of teh right. It examines sources of socio-economic rights, and assesses the contribution of domestic courts to the development of such rights.ISBN: 0-19-876551-7A critical analysis of third way ideology in the field of labour law.DOI: 10.1093/ilj/33.4.299This article argues that it is no accident that the flexible workforce is largely made up of women in precarious jobs. The change in women's role, as both breadwinners and home-makers, has not been matched by changes in the legal structure of employyment law, and particularly the contract, with its assumption of bilateral, mutual, transactional exchange. Rights should be afforded to all who participate in the paid workshop, however marginally.ISBN: 0305 9332A series of chapters by experts from a wide range of disciplines on age discrimination, considering the central aims of a policy on age equality, as part of the process of implementing EU requirements for age discrimination legislation and moving beyond it.ISBN: 1-84113-405-8ISBN: 0-19-924816-8A critical examination of the meaning of age discrimination and an exploration of possible legislative frameworks to implement age discrimination legislation.ISBN: 1-84113-405-8This paper was commissioned by the Equal Opportunities Commission as an independent contribution to the debate around the single equality body. Its focus is on the vision and objectives such a body might pursue, and in particular, on the principles of equality informing policy decisions.ISBN: 1 84206 038 4Book of eight essays with introduction and one chapter by the editor. Chapters deal with the concept of equality, the rights of minority cultures, the internet, international law, EU law and remedial structuresISBN: 0-19924603-3