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The long-standing EU acquis of equal pay between male and female workers still proves to be a source of inspiration in the fight against discrimination, even in matters beyond the EU’s competence. This article deals with differences in status between blue- and white-collar workers, which have been haunting many Member States even as technological progress erodes its justification. Although this ground was never protected by EU law, a case study of the Belgian unified status with regard to occupational pensions (the second pension pillar), clearly shows the impact of the jurisprudence of the CJEU. In line with this EU case law, there is no requirement to grant the most beneficial pension scheme to all employees, which could lead to equal, but nevertheless very modest occupational pensions. Based on the preliminary results, we can predict that the Belgian unified status will have a positive effect on the number of blue- and white-collar workers affiliated to a pension scheme. It is, however, unlikely that the high level of benefits of the most generous pension schemes will be retained after harmonisation, considering the financial impact on the employer. It is therefore to be expected that the unified status will indeed lead to equal occupational pension schemes between blue- and white-collar workers, but fail to act as a lever to improve the quality of the second pension pillar in Belgium.

In 2017, the municipality of Copenhagen made exercise mandatory for social workers performing physical tasks, such as lifting patients, cooking and cleaning. Private Danish companies have also started to impose exercise on their employees, including sedentary employees. Rationale behind mandatory exercise in the workplace is that it makes employees healthier and more productive, which is a win-win for employees and employers. However, mandatory exercise can put employees in a vulnerable position as employers potentially interfere with some of the fundamental rights of employees, namely their bodily autonomy and privacy. In addition, the increased emphasis on exercise at work and being ‘physically fit’ can indirectly lead to unlawful discrimination practices in recruitment, during employment, and at termination, as employers may exclude or sanction people who are not be able, or do not want, to exercise on various grounds, ranging from age, disability, pregnancy, religion, to health conditions. Therefore, this article examines the lawfulness of mandatory exercise at work in light of the fundamental rights of employees in two selected jurisdictions (Denmark and France), as well as under relevant European Union (EU) law, and the European Convention on Human Rights (ECHR) and related case law. Using a comparative and European perspective, the article examines the legality of mandatory exercise at work in the selected jurisdictions. It analyses and compares the level of protection of employees’ rights to privacy, autonomy and non-discrimination in France and Denmark. It also assesses whether mandatory exercise could qualify as an occupational health and safety measure in the selected jurisdictions. The article examines these questions in light of the increasing recognition and integration of fundamental rights in labour law at European, EU, and national levels. The article finds that the French and Danish labour laws offer different levels of protection of employees’ rights to autonomy, privacy and the right to non-discrimination. As a result, mandatory exercise would likely be deemed to be legal in Denmark, and illegal in France. However, the legality of mandatory exercise under Danish law could be challenged in light of the strong protection of employees’ fundamental rights at EU and European levels. The article concludes that rather than an obligation, exercise should be framed as a right for employees.

This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up the door for same-sex marriage recognition for immigration purposes all around the EU, thus destroying the heteronormative misinterpretations of the clear language of the Directive practised in a handful of Member States. The state of EU law after Coman is still far from perfect, however: we underline a line of important questions which remain open and which the Court will need to turn to in the near future to ensure that marriage equality moves beyond mere proclamations in the whole territory of the Union.

This essay focuses on the relation between amateur sport and Union citizenship, analysing the recent Biffi ruling of the European Court of Justice. It examines the opinion of the Advocate General and the Judgment of the ECJ, starting from the established case-law according to which sport is subject to EU law insofar as it constitutes an economic activity. Taking into account the possible application of the Treaty in light of the indirect impact on economic activities of the amateur athlete, the study analyses the legal implications of Article 165 TFUE considering the social function of sport. Finally, the paper illustrates to what extent the Biffi case represents a simple clarification of the existing legal relationship, a coherent case-law development, or another seismic ECJ ruling on sport.

Australia has legislation in the form of the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Cth) that has the objective of eliminating disability discrimination. The purpose of this scoping review was to determine the extent to which this legislation is achieving the elimination of discrimination against students with disability in primary and secondary schooling. The review reports on the findings of a systematic search of law and education databases that identified 18 peer-reviewed articles discussing the legislation, relevant literature and related case law in the context of the education of students with disability in Australia. Content analysis of the articles indicated the existence of problems in several areas of the intersection between the law, policy and practice. These are outlined under five key themes: inclusion/exclusion, jurisdictions and definitions, the complaints-driven system, legislation clarity and reasonable adjustments. The review concludes with recommendations and suggestions for action.

In its judgement in the case of Austria v. Germany, the Court of Justice of the EU found the new German motorway financing scheme to be in breach of EU law, namely Articles 18, 34, 56 and 92 TFEU. This decision is noteworthy in several regards. It is a snub for the Commission, which had previously decided to terminate its infringement procedure against Germany. It provides guidance for Member States wishing to reform some of their tax arrangements according to the ‘user pays’ and ‘polluter pays’ principles. Finally, it raises interesting questions regarding the application of Article 34 TFEU to fiscal measures.

Algorithms form an increasingly important part of our daily lives, even if we are often unaware of it. They are enormously useful in many different ways. They facilitate the sharing economy, help detect diseases, assist government agencies in crime control, and help us choose what series or film to watch. Yet, there is also a darker side to algorithms, and that is that they (and their applications) can easily interfere with our fundamental rights. This column explores some of the main fundamental rights challenges set by the pervasiveness of algorithms, and it presents a brief outlook for the future.

Nigeria has ratified several international instruments that protect the rights of, and guarantee freedom from discrimination of persons with disabilities (PWD). Despite the above, the country is yet to fully implement the appropriate measures required to achieve the objective of protecting PWD. Successive administrations since the return to civil administration in the country in 1999 have not fulfilled the mandate in the 1999 Constitution of the Federal Republic of Nigeria (as amended) dealing with disability rights. While the passing into law in January 2019 of the Discrimination Against Persons with Disabilities (Prohibition) Act 2018 is commendable, it only reflects the pressure on the Federal Government of Nigeria by disability rights advocates and PWD. This article aims to, among others, highlight the plight of PWD in Nigeria, the need to protect their rights and guarantee their freedom from discriminatory practices. To achieve this aim, a review of international and domestic instruments, as well as literature on the subject, is undertaken. The article proposes that the Nigerian government should aim towards inclusivity and accommodation of PWD. For example, instead of merely establishing special schools for PWD, there should be a design to allow for the training of teachers to meet the needs of special children in regular schools.

Kelsy Burke and Emily Kazyak on Nebraskan attitudes.

Greece transposed the 2000 equality directives through Law 3304/2005. This law sets out the definitions of direct and indirect discrimination, designates what conduct should be prohibited, outlines the sanctions that are to be imposed by the judiciary and mandates three equality bodies with the duty of upholding and promoting equal treatment. This article argues that notwithstanding the theoretical significance of this law given that it was the first tool specifically designed to grant legislative protection for the principle of equal treatment, its practical effects are limited.

Since his inauguration, US President Donald Trump has made news by violating international and domestic norms, such as norms of diplomatic communication or the non-discrimination norm. This paper u...

The right of transgender (‘trans’) persons to access gender-segregated space is neither a new controversy nor a conversation which is unique to the United Kingdom. Yet, despite increasingly charged political debates in North America, the question of trans access to single-gender facilities remains largely underexplored by British legal academics. In January 2016, the UK House of Commons Select Committee on Women and Equalities recommended expanding trans entry into single-gender services and communal accommodations under the Equality Act 2010. Using the Committee’s report as a springboard for debate, this article considers the right of trans populations to use their preferred women-only and men-only spaces. Critically analysing the existing possibilities to exclude trans persons from services and accommodations, as well as the policy arguments which motivate this approach, the article demonstrates how, adopting common-sense, evidence-based reforms, Parliament can introduce legal rules which both prioritize user safety and respect trans dignity.

Analysing two reproductive rights claims brought before the High Court of Namibia and the European Court of Human Rights, this article argues that human dignity is not reducible to a recognized warrant (a right) to demand a particular set of goods, services, or treatments. Rather, dignity in the contexts in which women experience sterilization abuse would be better characterized as an existential protest against degradation, a protest that takes concrete form in legal demands for equal citizenship. Equality is conceived here as necessitating the elimination of all forms of discrimination against women in public and private life. The dignity as non-discrimination framework developed in the article thus integrates two of the leading interpretations of dignity in contemporary political philosophy – the existentialist approach that attends to the inward cry against degradation and the view of dignity as the equal, public status of democratic citizenship.

The Cameron government has recently negotiated a deal with the EU which permits the UK (temporarily) to restrict access to in-work benefits for recent EU migrants in the first four years of residence. Withdrawing access to in-work benefits will lead to significant inequalities in pay between British workers and their EU equivalents working at the same job, in the same general situation. The proposal has been widely decried as discriminatory. Is it? I do not, in this article, ask the legal question: Does it violate anti-discrimination norms implicit in the treaties (or wider human rights law)? Rather, I will ask the moral question underlying the legal one: Would, say, Polish citizens denied in-work benefits that British citizens receive be victims of wrongful discrimination? This question deserves consideration not simply because it will help us to evaluate some of the central concerns at stake in the Brexit debates but also because it will allow us to explore the role of norms against discrimination according to nationality within the EU, to address the nature of the European commitment to freedom of movement, and, in the reverse direction, to better understand our own moral commitment to anti-discrimination norms.

With Directive 1999/70 on Fixed-Term Work – and more generally through European Directives on flexible work – the European legislator tried to strike a balance between the demands for flexibility coming from employers and the needs to safeguard the rights of flexible workers. This balance has been carried out through various provisions of the Directive, as the Court of Justice of the EU explained over the years: by placing side-by-side ‘hard’ rules, considered by the European judges as directly effective (like the principle of equal treatment between fixed-term workers and comparable permanent workers), and ‘softer’ provisions (like the ones directed to prevent abuse of successive fixed-term contracts) which leave a significant margin of appreciation to the Member States about how to implement them, provided that they do not compromise the objective and the practical effect of the Directive. Fifteen years after the adoption of Directive 1999/70, the present study aims to start from its purposes, in order to identify the basic components of a possible ‘European model’ for Fixed-Term Work by following the CJEU's case law, which has established, ‘in the name’ of the principle of effectiveness, some important restrictions to Member States' discretion in implementing the Directive: a model that may prove useful for evaluating the European consistency of the relevant national laws.

This article explores and reviews the approach of the Court of Justice of the EU to defining disability under the Employment Equality Directive and concentrates, in particular, on the two most recent cases which were decided in 2014: Z and Kaltoft and the relevance of the UN Convention on the Rights of Persons with Disabilities (CRPD), to which the EU is a party. The article argues that the Court's approach to defining disability, as applied in practice, is not compatible with either the wording or spirit of the CRPD, and there is a real danger that the CJEU's mistaken approach will also trickle down to national courts. This is in spite of the fact that the Court pays lip service to the social contextual model of disability as outlined in the CRPD in its judgments.

This article explores the various exceptions to the non-discrimination principle and the justifications for different treatment that apply in the disability context. For the purposes of this article, exceptions are situations that are excluded from the scope of non-discrimination law and where different treatment is allowed, whilst justifications are situations in which non-discrimination law applies, and where de facto different treatment is either required or allowed, and the limits to such requirements. The article begins by briefly discussing the peculiarities of disability non-discrimination law, addressing the requirement to make a reasonable accommodation, the asymmetrical nature of disability non-discrimination law, and positive action obligations. The article then introduces the key non-discrimination requirements found in United Nations and European Union disability equality law, before proceeding to examine a number of exceptions to the non-discrimination principle and justifications for different treatment. The article concludes that exceptions and justifications can be a tool to fine-tune or target non-discrimination law, with the potential to both limit and extend protection, in the context of disability.

Despite some progress in the educational and professional attainments of Nigerian women, there are still challenges confronting them in the bid to achieve full integration at work. This article examines the various dimensions of the concept of sexual equality and non-discrimination at work and their manifestations in the Nigerian workplace. In particular, the article undertakes an analysis of discriminatory gender-related workplace challenges militating against women’s access to formal employment and promotion to higher managerial and professional positions. The adequacy of provisions relating to maternity protection, childcare, health and safety at work and equal remuneration are examined, while statutory and judicial responses to these issues are analysed against the background of relevant international and regional standards. Nigerian dimensions of other aspects related to sex-based discrimination, including those touching on sexual orientation and gender reassignment, are also highlighted.

Kalpana Kannabiran, Tools of Justice: Non-Discrimination and the Indian Constitution, Routledge India, 2012, pp. 520, ₹ 995

This contribution discusses the limits of the use of the principle of non-discrimination as an instrument for the development of the concept of Union citizenship. It argues that, particularly in relation to social rights, which are sustained by bounded notions of diffuse solidarity and generalized reciprocity, Union citizenship cannot be understood in isolation from the national citizenships upon which it is parasitic. In developing the social rights attached to the status of Union citizenship, the Court should therefore take careful account of how migrant citizens relate to nationals of the host state.

The article first describes how the principle of non-discrimination of homosexuals is anchored in EU legislation and influences concrete policies of the European Union. Against this background, the second section analyses citizens’ attitudes towards homosexuality and whether there are differences among the 27 EU member states and Turkey. The descriptive findings show that there are substantial differences at the national and individual level in the degree to which citizens think of homosexuality as acceptable. A sense that homosexuality is justifiable is particularly low in recently acceded countries and is almost non-existent in Turkey. Modernization theorists have argued that economic development influences the value orientation of the citizens. Other scholars have claimed that values are strongly influenced by the religious heritage of a country. Using multilevel analysis, the study tests to what extent modernization factors and/or religious factors influence citizens’ attitudes towards non-discrimination of homosexuality. According to the results of the causal analysis, modernization theory and cultural heritage theory contribute to explaining attitudes towards homosexuality. All the hypotheses derived from the two theories are supported by the statistical analysis

The concluding paper of this special issue seeks to reflect on recent developments with regard to the non-discrimination Directives and their possible relevance for the United Kingdom and the Netherlands. Particular attention will be paid to the first case decided by the European Court of Justice on the basis of the Directives, Mangold.1 This case concerned the tricky question of the limits of the extended scope for justifying discrimination on the grounds of age, and the standards against which such exceptions to the non-discrimination principle should be measured. In addition, the attention currently being paid to the broader policy question of the need for, and desirability of, further EC non-discrimination directives will be noted.

In the Netherlands, an elaborate legal system of legislative protection against discrimination has been in place since 1994. Partly with the aim of implementing the Article 13 Directives, two new statutes were added to the system in 2003 (disability discrimination) and 2004 (age discrimination) and a number of amendments have been made to the existing legal framework. This has resulted in a highly complex system of legislation. The complicated differences between the scope and exceptions of the various legislative acts will be difficult for most people to comprehend. As far as content is concerned, however, the Dutch legislation generally seems to comply with the requirements of the Directives and often even provides a higher level of protection. Most issues of debate in the Dutch implementation process concern relatively minor points, such as terminology (discrimination or “distinction”?). It is clear, however, that some elements of the Dutch legislation can be considered to be incompatible with the Directives, in particular the complete exclusion of religious institutions and the clergy from the scope of application of the ETA and the decision to define the elements of harassment cumulatively instead of alternatively.

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

Publishers details for: The Logic of Equality: A Formal Analysis of Non-discrimination Law, by Amelia Simpson, (Ashgate Publishing, 2003). Includes footnotes.

While the long-term prospects for industrial growth in Australia promise improved employment opportunities for skilled male workers, despite the present cyclical downturn, the prognosis for women is gloomy. The majority of women workers are confined to female-dominated occupations, such as clerical work and sales. However, it is in these very areas that employment prospects have diminished as a result of technological change, as may be seen by the computerisation of office work, for example. Australia's industrial future is intimately tied up with mining, construction and power generation, industries in which female participation is almost negligible. This reflects the societal bias against women working in what are perceived to be 'men's jobs'. This societal bias has been entrenched in International Labour Organisation (ILO) conventions and legislation which has resulted in restrictions on female labour relating to categories of employment, such as underground mining. While a certain ambivalence may be discerned in the motivations prompting the implementation of 'protective' measures, their retention is undoubtedly questionable in the light of the passage of anti-discrimination legislation. Therefore, new standards need to be devised to safeguard the health of all workers without disadvantaging one sector of the workforce.