bluuebunny/crossref_metadata_2025 huggingface dataset:
The Dark Side of Groups
Authors: Stein Mark , Pinto Jonathan
Published: October 2011

The purpose of this article is to develop our understanding of the gang aspects of work organizations. By applying a psychoanalytic lens, we formulate the ideas of the “gang at work” and “intraorganizational ganging dynamics,” thereby initiating a research stream on the “dark side of groups.” We illustrate our conceptual development by drawing on the Enron case thereby contributing unique group-level insights that complement other analyses of the phenomenon. We conclude by identifying areas for further research and arguing that gang phenomena may also have been present among many of the key organizations at the centre of the credit crisis, such as Lehman Brothers.
A Knowledge-based Master-model Approach with Application to Rotating Machinery Design
Authors: Sandberg M. , Tyapin I. , Kokkolaras M. , Isakasson O. , Aidanpää J.-O. , Larsson T.
Published: October 2011

Novel rotating machinery design concepts and architectures are being explored to reduce mass, energy consumption, manufacturing costs, and environmental impact while increasing performance. As component manufacturers supply parts to original equipment manufacturers, it is desirable to design the components using a systems approach so that they are optimized for system-level performance. To accomplish that, suppliers must be able to model and predict the behavior of the whole machinery. Traditional computer-aided design/computer-aided engineering master-modeling approaches enable manual changes to be propagated to linked models. Novel knowledge-based master-modeling approaches enable automated coordination of multidisciplinary analyses. In this article, we present a specific implementation of such a knowledge-based master-modeling approach that facilitates multidisciplinary design optimization of rotating machinery. The master-model (MM) approach promotes the existence of a single governing version of the product definition as well as operating scenarios. Rules, scripts, and macros link the MM to domain-specific models. A simple yet illustrative industry application is presented, where rotor-dynamics and displacement analyses are performed to evaluate relocation alternatives for the rear bearing position of a rotating machinery under a ‘fan-blade-off’ load case.
Experiencing a Social Network in an Organizational Context
Authors: McEachern Robert W.
Published: October 2011

As Facebook becomes increasingly more popular as a communication tool for businesses and organizations, it is important that our students learn to transfer personal Facebook skills to professional settings. This article focuses on the lessons learned by two students who used Facebook as part of a social media internship, as well as what the author learned about its use through research and teaching a course on social media and professional writing.
Beyond state/non-state divides: Global cities and the governing of climate change
Authors: Bulkeley Harriet , Schroeder Heike
Published: October 2011

This article challenges the assumption that the boundaries of state versus non-state and public versus private can readily be drawn. It argues that the roles of actors — as state or non-state — and the forms of authority — public or private — are not pre-given but are forged through the process of governing. Drawing on neo-Gramscian and governmentality perspectives, it suggests that a more dynamic account of the state can offer a more nuanced means of analysing the process of governing global environmental affairs. In order to understand this process and the outcomes of governing climate change, we argue that analysis should focus on the hegemonic projects and programmes through which the objects and subjects of governing are constituted and contested, and through which the form and nature of the state and authority are accomplished. We suggest that this is a process achieved and held in place through ‘forging alignment’ between diverse social and material entities in order to achieve the ‘right disposition of things’ through which the will to govern climate change can be realized (Murray Li, 2007a). We illustrate this argument by examining the governing of climate change in two global cities, London and Los Angeles.
Equality and Non-Discrimination in the South African Constitution
Authors: Small Joan , Grant Evadne
Published: October 2011

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.
Racial Harassment: the Legal Response
Authors: MacEwen Martin
Published: October 2011

This article examines the core legislation tackling racial harassment in the UK with particular reference to the position in Scotland but within the context of UK and international law. The additional provisions introduced in the Crime and Disorder Act 1998 for England and Wales and for Scotland are thus placed within a broader framework and an assessment of their cumulative impact gauged. The role played by public agencies including the Commission for Racial Equality in implementing law and developing policy is identified and reference made to reliance on policies of social inclusion. The author argues that the interdependence of law and policy in this area may be evident but there is still a significant lack of cohesion in their application.
Shall I Compare Thee? The Legal Dilemma: The Choice of Comparators in Discrimination Cases
Authors: Middlemiss Sam
Published: October 2011

There have been remarkable developments in some areas of discrimination law in the United Kingdom over recent years along with a notable lack of development in other areas with both relative success or failure (in terms of extending the protection of the law) often being determined by the appropriate comparator which can be used in presenting a claim for discrimination and/or the influence and constraints of rules set down in UK and European Community Legislation. It is contended that a lack of uniformity of approach to these issues both hinders and helps the equality cause. It hinders by presenting uncertainty about the appropriate comparator in these cases and helps where the law recognises uniformity of approach in determining comparators across differing kinds of equality cases is both illadvised and inappropriate. It is contended in this article that reform of the areas of law where protection is weak or badly-structured is best served by borrowing from approaches in the better protected areas of UK discrimination law or from strategies utilised in other jurisdictions. In the interests of brevity and consistency of argument and analysis it has been necessary to refrain from considering this issue as it relates to equal pay.
Disparate Effects and Objective Justifications in Sex Discrimination Law
Authors: Vick Douglas W.
Published: October 2011

Given the difficulties involved in proving indirect sex discrimination, the practical importance of the allocation of evidential burdens and the quantum of proof required to discharge those burdens should not be underestimated. The recent decisions by the ECJ in Case C-167/97 R v Secretary of State for Employment ex parte Seymour-Smith [1999] ECR I-623 and by the House of Lords in Barry v Midland Bank plc [1999] IRLR 581 and R v Secretary of State for Employment ex parte Seymour-Smith (No 2) [2000] 1 All ER 857 erect significant barriers to indirect discrimination claims, especially in cases challenging legislation. The apparent retreat from a vigorous application of the indirect discrimination concept may reveal judicial uneasiness with the substantive view of equality that underlies the concept, as well as discomfort with the quasi-constitutional implications of overriding legislative policy judgments.
Gender Equality, Constitutional Values and Religious Family Laws in South Africa
Authors: Rautenbach Christa
Published: October 2011

South Africa has a pluralistic society in which various religious and cultural groups, such as Muslims and Hindus, live according to their own customs and usages. At present the law of South Africa generally does not recognise the validity of some of these customs and usages, for example marriages concluded in terms of Islamic law or Hindu law are not recognised as valid marriages. The consequences of non-recognition have been particularly unfair to women.

There have been calls for the recognition of other family law systems and, in particular, for the recognition of Islamic family law. The Constitution of the Republic of South Africa, 1996 recognises the cultural diversity of South Africa and provides for the enactment of legislation recognising other systems of law based on religion or culture. However, such legislative recognition must be consistent with the Bill of Rights and other provisions of the 1996 Constitution. All inequalities between men and women should therefore be dealt with before legislative recognition is given to family law systems that discriminate against women. In this paper the obvious tension between gender-equality and freedom of religion within the new constitutional dispensation is discussed. In doing so, the focus will be on Islamic law and the position of Muslim women with respect to inheritance laws.
The Application of Non-Discrimination in Botswana in Light of Attorney-General of Botswana v. Unity Dow: Judicial Approach and Practice*
Authors: Tshosa Onkemetse
Published: October 2011

The principle of non-discrimination takes a pivotal position in human rights debate both nationally and internationally. Elaborate provisions in international human rights instruments and national Constitutions recognise this right as one of the most basic guarantees of the individual. This means that national legal systems should create a conducive environment for the enforcement of this right. This article discusses judicial application of the principle of non-discrimination in Botswana. It assesses the extent to which this concept has been implemented in the national law of Botswana in light of the Attorney General of Botswana v. Unity Dow.1 This case does not only outlaw sex-based discrimination in Botswana but it is one of the few judicial decisions in the country in which non-discrimination provisions of the Constitution were extensively analysed. The article also examines the judicial approach to the interpretation of constitutional human rights clauses and the possible influence of the decision within the constitutional order of Botswana and the Southern African region generally. It is argued that the principles enunciated in the case should inform and guide not only the Botswana judiciary but also courts in the region especially the approach adopted by the court in interpreting nondiscrimination clauses of the Constitution.
A New Framework for Tackling Institutional Racism in Scottish Housing Rights
Authors: Macewen Martin
Published: October 2011

This paper outlines the new framework emerging under a devolved Scottish Parliament to monitor and review the provision of housing with particular reference to racial discrimination and disadvantage. The broader context of housing rights reflected in international and regional obligations is described as well as the influence of the Council of Europe and the European Union.

The housing circumstances of ethnic minority communities is established and the actual and potential roles of three key agencies explored, the Scottish Executive, the Commission for Racial Equality and Scottish Homes. The paper concludes by suggesting that the parallel concerns of social inclusion, human rights and racial equality would benefit from a more coherent bridging mechanism than now apparent with a Scottish Human Rights Commission being a possible solution.
The Effects of Hate Crime Legislation: Unproven Benefits and Unintended Consequences
Authors: Bakken Tim
Published: October 2011

Despite most states' widespread adoption in the past 10 years of hate crime laws, researchers and policy-makers have been unable to measure the actual incidence or types of hate crimes being committed. Simply, there are no national data available on arrests or convictions for hate crimes. Ironically, while virtually all researchers have reported that hate crime has been increasing, the findings reported in this article indicate that hate crime incidents appear to have decreased 25% in the past 5 years. Also, despite the intent of legislators, the findings indicate that black persons comprise the only racial group, as identified by the FBI and Census Bureau, that are characterized as hate crime offenders (20% of the total number of offenders) in a proportion greater than their proportion in the general population (13%). It was concluded that to determine the actual implications of hate crime legislation, especially on minority group members, researchers might consider adopting a new methodology.
Access to Employment by Disabled People in the UK: is the Disability Discrimination Act Working?
Authors: Konur Ozcan
Published: October 2011

Mentally disabled people, such as clinically depressed people, have had difficulties in access to employment and higher education. Disability Discrimination Act (DDA) (1995) has been in force since 2 December 1996, completing the fifth year of its implementation on 2 December 2001 and its stated purpose has included ending of discrimination in access to employment by disabled people among others. The introduction of the Special Educational Needs and Disability Act (SENDA) (2001) as well as the Disability Discrimination (Amendment) Bill (DDAB) (2002) has revived the debate on the effectiveness of the DDA in increasing access to employment by disabled people but particularly by mentally disabled people. The paper therefore reviews the law and practice on the employment of clinically depressed people. It is argued that the devised rules on the discrimination tests have not succeeded in ending discrimination against disabled people in access to employment. It is further noted that since the SENDA uses the similar tests as the DDA, it would fail to end discrimination against disabled students in access to higher education.
Fashion Victims, Dress to Conform to the Norm, or Else? Comparative Analysis of Legal Protection Against Employers' Appearance Codes in the United Kingdom and the United States
Authors: Hay Olga , Middlemiss Sam
Published: October 2011

An organisation will impose appearance codes on their employees that are designed to ensure that they conform to the prevailing organisational culture and present the correct image of the company to external agents. These codes can adversely affect members of a particular sex, sexual orientation or ethnic group, but often there is no legal remedy for them. This article will involve a critical analyse of the extent of the legal protection available for employees that are adversely affected by employers' appearance standards in the United Kingdom and the United States.
Effective Deterrence v Accessible Remedies: What Not to Borrow from US Discrimination Law
Authors: Baker Aaron
Published: October 2011

At a time when the UK consults on the appropriate powers and mission of a new single equality commission, the fight against discrimination must avoid unintentionally eroding the ability of the employment tribunals to deliver accessible dispute resolution to individual victims of discrimination. This article analyses the US system for resolving employment discrimination disputes to demonstrate that dispute resolution mechanisms can be and are used in pursuit of two different and potentially conflicting projects: the project of forcing social change by eliminating structures of discrimination in society as a whole (the ‘social change’ project), and the project of providing a forum for the individual victim of discrimination to seek a quick, cheap, accessible and satisfying remedy (the ‘dispute resolution’ project). In the US, the social change project has appropriated the formal system for employment discrimination dispute resolution by emphasizing punitive (exemplary) damages, class action lawsuits, and government funded strategic litigation to send strong deterrent messages, with the result that that system has become essentially inaccessible to almost all individual victims with small claims. This negative example is offered as a warning that the fight against discrimination in the UK must carefully consider the effects of introducing ‘modern’ enforcement tools and strategic equality commission litigation to the employment tribunals on the ability of this forum to deliver the accessible individual remedies for which it was designed.
The EU Rights Based Approach to Disability: Strategies for Shaping an Inclusive Society
Authors: Lawson Anna
Published: October 2011

This article examines some of the implications of a rights based approach to disability which, it is argued, is a necessary pre-condition of an inclusive society in which people with impairments are valued and able to participate fully. It considers the main ways in which this approach is shaping current ED law and policy. It identifies a number of strategies which may prove useful to disability organisations and other campaigners wishing to establish or consolidate a rights based approach in their own national laws and policies.
Negotiating Respect: Sexual Harassment and the Law in Hong Kong
Authors: Petersen Carole J.
Published: October 2011

This article critiques the sexual harassment provisions of Hong Kong's Sex Discrimination Ordinance , as well as the enforcement model. Although the judiciary has had some opportunity to interpret the Ordinance, most complaints never reach the courts because the Equal Opportunities Commission has a statutory duty to attempt to conciliate a complaint before granting legal assistance. When the Ordinance was enacted it was widely assumed that Chinese women would prefer confidential conciliation to a public hearing. However, interviews with past complainants and representatives of women's organizations reveal that many complainants find conciliation conferences to be extremely stressful. They also feel demeaned and disempowered by what is effectively an obligation to negotiate with the respondent. The author concludes that the current model exacerbates the power imbalance between complainants and respondents and limits the systemic impact of the law. She argues that an informal and inexpensive Equal Opportunities Tribunal should be created. This would allow those complainants who are willing to try their complaints to proceed directly to a hearing, without any obligation to first participate in conciliation.
The Regulation of Workplace Sexual Harassment in Greece: Legislation and Case Law Analysis
Authors: Magliveras Konstantinos D.
Published: October 2011

Although it is a well-known fact that sexual harassment is a common practice in Greek workplaces carried out both by employers and fellow employees, the State has not adopted any relevant civil and/or criminal legislative measures specifically to deal with it. However, there exists a general legal framework consisting of provisions in the Constitution, in the Civil Code, in the Criminal Code, and in various collective employment contracts, as well as general principles of Labour Law. Arguably, this framework does not afford to victims of sexual harassment a satisfactory regime for seeking redress. The present article analyses this legal framework and, on the basis of the applicable case law, shows how it has been applied in practice and how, on occasion, the courts have expanded its scope to overcome legislative shortcomings.
The Prohibition of Workplace Sexual Harassment in English Law
Authors: Jeffers Raymond
Published: October 2011

This paper explores some of the legal remedies open to a claimant who has been a victim of gender-based sexual harassment. It begins with an examination of the legal meaning of ‘sexual harassment’. The principal law currently used by claimants, namely statutory sex discrimination, is then reviewed in depth. Other possible legal claims under statutory, common and criminal law are looked at next. The prospective statutory tort of sexual harassment derived from the European Community' Equal Treatment Amendment Directive is outlined. Measures to reduce employer liability are also considered. Despite the number of ways, in both civil law and criminal law, through which redress for sexual harassment may be claimed, in the absence of specific statutory law on sexual harassment English courts are essentially embarking on an exercise of trying to fit round pegs into square holes.
From Disclosure to Disgrace? Lessons From a Comparative Approach to Sexual Harassment Law
Authors: Tahmindjis Phillip
Published: October 2011

This article considers the analyses in this volume, as well as applicable international law, to show how the law shapes, as well as being shaped by, social perceptions of sexual harassment. International and regional instruments are relatively weak in the regulation of sexual harassment, so that measures taken at domestic level are of primary importance. Questions such as the motivation for passing domestic sexual harassment legislation, the legal definitions used, the extra-definitional problems, procedural variations and the effectiveness of these laws, are considered. It is argued that an extra-legal approach is needed to address properly, and to redress adequately, sexual harassment. Adequate labelling as a breach of human rights, as well as juridical naming, of sexual harassment may facilitate the development of effective laws.
Ireland's Multiple Ground Anti-Discrimination Framework — Extending the Limitations?
Authors: Smith Olivia
Published: October 2011

Against the backdrop of the more recent similar expansion of the anti-discrimination framework at EU level, this article reviews the operation of the last five years of Ireland's expanded anti-discrimination framework which brought an extension of the discriminatory grounds from two to a total of nine. In particular, it raises questions as to the claimed effectiveness of the ED framework from the perspective of those, particularly women, who identify across multiple grounds. This is evidenced through a review of some of the conceptual and practical problems that inhere in an anti-discrimination structure that is predicated upon a strict categorical-comparator approach to identity and disadvantage. In particular, the way in which women with compound identities experience intersectional discrimination remains unaddressed by dominant conceptions of single category definitions of direct and indirect discrimination. Yet the acknowledged reality of women as victims of multiple discrimination appears to be outwith the structures of the newly expanded legislation. Thus, far from being an effective basis for addressing multiple discrimination, the Irish experience demonstrates again, that at the level of individual enforcement, the well-worn criticisms of the anti-discrimination framework remain firmly embedded in the expanded regulations.
Securing Mainstreaming in a Hostile Political Environment
Authors: Nott Sue
Published: October 2011

There has been a dramatic reshaping of the political landscape in the United Kingdom since 1997. This has brought about substantial changes in equality law and practice, both nationally and regionally. One of the most talked about innovations has been the adoption of mainstreaming as a strategy for the promotion of equality. In the United Kingdom, this has produced a complex, varied and, on occasion, obscure pattern of duties in respect of mainstreaming. Yet despite this, mainstreaming is delivering gains to previously marginalized groups within society, though the extent of those gains varies according to the context and the type of mainstreaming involved. What has to be avoided at all costs, however, is a situation where equality is neglected and disregarded. This article, therefore, explores the case for securing mainstreaming and investigates how effectively mainstreaming in the United Kingdom has been safeguarded against a hostile political environment.
Workers' Compensation and Age Discrimination in Australia
Authors: Guthrie Robert
Published: October 2011

In 2005 the Australian Government created the Australian Safety and Compensation Council. The Council's agenda includes examination of the issues concerning Australia's ageing workforce. Of particular relevance are the age-based limitations on the continuation of workers' compensation payments, which apply in almost all Australian States and Territories. Provisions in most States and Territories require that payments either cease or be reduced at 65 years of age or a notional retirement age. These provisions either directly or indirectly conflict with State, Territory and Federal anti-discrimination laws, which operate to prevent employers from discriminating against workers on the grounds of age. The workers' compensation laws, however, are quarantined from the effects of the age discrimination provisions. This represents an asymmetry between different government policies: one that works to discourage older people from staying in the workforce; another that attempts to encourage workers to remain longer in the workforce on account of the ageing workforce. This article explores the policy implications of this asymmetry and signposts areas for future research and proposed changes to policy.
Discriminatory Motive and the But for Test: The Proper Approach to Direct Discrimination in Britain and the United States
Authors: Connolly Michael
Published: October 2011

In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.
Older Workers and the Need for Reasonable Accommodation
Authors: Sargeant Malcolm
Published: October 2011

This article is concerned with the close relationship between age and disability and argues that the duty to make reasonable accommodation, a measure intended to achieve a level of substantive equality for disabled workers, should also be applied to older workers. It considers the special provisions with regard to discrimination on the basis of disability and age contained in Articles 5 and 6 of the Framework Directive for Equal Treatment in Employment and Occupation and their justification. It then considers the relationship between disability and age and how the likelihood of having a disability increases with age. It then looks at the duty for reasonable accommodation and the perceptions of employers towards this duty, age and disability. The argument put forward is that some discrimination against older workers may take place because of the likelihood of them developing a disability or long term health problem and that, in order to be properly protected, the duty of reasonable accommodation should be extended to include older workers.
Compulsory Retirement and Age Discrimination: A New Deference to Derogation?
Authors: Connolly Michael
Published: October 2011

This article examines a recent decision of the ECJ on state derogation from the age discrimination principle contained in the Employment Equality (‘Framework’) Directive 2000/78/EC. The case, Palacios de la Villa v. Cortefiel Servicios SA, originating from Spain, involved a challenge to legislation permitting for compulsory retirement in collective agreements. It also examines a similar British challenge, due in the ECJ sometime in 2009, and comparative case law from the United States, where federal age discrimination law has been in place since 1967. It concludes that the decision in Palacios de la Villa, rejecting the challenge: (1) departed from established ECJ jurisprudence and signalled a new deference to derogation in the field of age discrimination; (2) is out of line with US law; and (3) in any case should not threaten the British challenge. However, it also concludes that lawmakers in Europe and the US generally consider age discrimination to be a lesser wrong than discrimination on other grounds.
Constitutionalising Equality: The South African Experience
Authors: Smith Anne
Published: October 2011

Against the backdrop of the proliferation of Bills of Rights, this article seeks to address the conceptual and practical problems in constitutionalising equality. Using South Africa where the constitutional equality guarantee is at the heart of South Africa's nascent democracy, this article analyses how the challenges were met in the South African drafting process and have been developed/problematised through subsequent case law. The article aims to draw attention to the complexities in constitutionalising equality and drawing from the South African experience, the article seeks further to contribute to and inform debates in jurisdictions which have or are in the process of protecting equality via a Bill of Rights. The article is supported in its conclusions by a series of semi-structured interviews.
Direct Discrimination: Limited by Definition?
Authors: Mair Jane
Published: October 2011

As the result of the introduction of new EU equality provisions, a definition of direct discrimination has been included for the first time. Where previously the ECJ had considerable flexibility to develop the concept of direct discrimination and to focus on the principle of equality without recourse to a detailed legislative structure based on direct and indirect discrimination, there are now defined concepts within the scope of the equality directives. Considered against the background of previous decisions on equal treatment and equal pay, it is questioned whether the newly defined concept of direct discrimination may in fact limit the scope for future flexibility.
Diversity and Minorities: Layered Risks of Discrimination
Authors: Sharma Dhruv
Published: October 2011

This paper formulates a theory to identify at risk minority/protected class employees. The theory suggest that there are minorities with layered minority discrimination risk, due to the presence of multiple additive factors, which can result in higher eccentricity quotients, and lower idiosyncrasy credit, which in turn results in a more biased view of the employee in terms of lower than average competence. As such the author suggests a process to manage and mitigate ‘extreme’ diversity risk. The author suggests that further research on extreme statistics and rare statistics should be done to determine how to leverage statistics to detect such risks, as such risk are incurred for a small sample of employees. For now the theoretical model based on the reinterpretation of idiosyncrasy credit and notion of layered risk serves as a powerful conceptual tool to help stop or detect such discrimination.
The Multiple Definitions of Harassment and Direct Discrimination: A ‘Pandora's Attic’?
Authors: Connolly Michael
Published: October 2011

It has been received wisdom for some time that some statutory definitions of harassment and discrimination embrace treatment on the ground of a third party's race, or sex, etc, and ‘perceived’ discrimination, that is where the discriminator has acted on a mistaken belief that the victim belonged to a protected group. What was less certain is whether the definitions could embrace a scenario where the treatment was not grounded in anyone's particular protected status, or where a worker was fired for his racial views. This article explores the precise meanings attributable to the statutory formulas, and considers the recent Court of Appeal decisions of Redfearn v Serco and English v Sanderson. It concludes that there is an inconsistent and incoherent range of statutory formulas, some narrow, some broad, and some hybrid, and the cases are decided more on policy and purpose than literal interpretation of these formulas.
The Role of the Psychological Parent in the Dissolution of the Homosexual Relationship
Authors: Kinsey Caroline L.
Published: October 2011

This note analyzes the definition of the “psychological parent” in its application to the dissolved homosexual relationship. In urging state courts to render custodial decisions not solely on the basis of the parent's biological ties to the child, but also on the presence of a psychological relationship between the non-biological parent and the child in question, this note reviews conflicting state court decisions that discussed the doctrine of the “psychological parent” and determined whether a non-biological parent was fit to receive custody of his or her child once dissolution of the couple's relationship had occurred.

United States state courts frequently rely upon the “best interests of the childl” standard when making custodial decisions. It is this author's position that the application of the “psychological parent” doctrine is what is in the “best interest of the child” when awarding custody to non-legal parents, and as such should be at the forefront of state court decisions before a determination of child custody is made.
Workplace Harassment — A Health Issue: Anti-Discrimination Cases and Workers' Compensation Claims
Authors: Guthrie Robert , Taplin Ross , Oliver Joseph
Published: October 2011

This article describes the adverse health-related effects of racial and sexual harassment elicited from files held by the Western Australian Equal Opportunity Commission where the complainant has nominated sexual or racial harassment as a ground of discrimination. Those results are compared with publicly available data on work-related stress claims obtained from the Compendium of Workers' Compensation Statistics Australia 2004–06, arising from allegations of harassment. Information gleaned from a survey of unreported court decisions (from publicly available legal data bases, such as www.austlii.edu.au and www.ohs.alert.com ) is also reviewed.

The purpose of examining this data is to consider the links between various forms of unlawful harassment, workplace stress and the evidence of adverse effect upon worker health. The results of this triangulation of data are consistent with that body of research which shows that workplace harassment can give rise to a range of adverse health outcomes. This paper explores how the inter-relationship of antidiscrimination and workers compensation laws may affect claimant behaviours.
Against Settlement? Owen Fiss, ADR and Australian Discrimination Law
Authors: Allen Dominique
Published: October 2011

In his celebrated article, Against Settlement, Owen Fiss objected to settlement for, among other things, securing the peace while not necessarily delivering justice and denying the court the opportunity to interpret the law. Fiss sees settlement as a technique for streamlining court dockets, the civil equivalent of plea bargaining. This article explores Fiss's criticisms through the lens of resolving discrimination complaints in Australia. It argues that although it is valuable to offer complainants a system for resolving complaints quickly and informally, especially in a jurisdiction in which complainants are often from marginalised groups, it is also necessary to recognise that this system is limited in how effectively it can develop the law and, by extension, eradicate discrimination. In essence, the system's operation epitomises Fiss' opposition to settlement. Modifying the complaint resolution system would improve this situation. The article concludes by proposing three reforms based on mechanisms used in comparable countries: introducing direct access to the court or tribunal; strengthening ADR by making it voluntary and incorporating a ‘rights-based’ approach; and encouraging the regular publication of specific information about settlements and significant cases.
Procurement and the Public Sector Equality Duty: Lessons for the Implementation of the Equality Act 2010 from Northern Ireland?
Authors: McCrudden Christopher
Published: October 2011

The use of public sector equality duties that require public authorities to do more than simply not discriminate and that in addition require such authorities in exercising their functions to actively promote equality has increasingly been considered as relevant for procurement. This article examines the Northern Ireland experience regarding the application of a public sector equality duty to procurement and addresses whether, and if so to what extent, this experience provides any useful lessons for the operation of the ‘equality duty’ in the recently enacted British Equality Act 2010.
Discrimination against homosexuals in Malawi: lessons from the recent developments
Authors: Mujuzi Jamil Ddamulira
Published: October 2011

On 18 May 2010 a Malawian resident chief magistrate, Nyakwawa Usiwa-Usiwa, convicted two males, Mr Steven Monjeza Soko and Mr Tionge Chimbalanga Kachera, of buggery and gross indecency after evidence was adduced that they had been living together before and after their ‘marriage/engagement’ as husband and wife. On 20 May 2010, the same magistrate sentenced both offenders to 14 years’ imprisonment, the maximum sentence provided for under the Penal Code Act for the above offences. The magistrate held that he imposed a severe sentence to protect the Malawian public from other people ‘who may be tempted to emulate’ the ‘horrendous’ example of the two men. This article paints the picture of the views of senior government officials and religious leaders in Malawi on the issue of homosexuality, highlights constitutional provision relating to marriage in Malawi, gives the facts of the case and argues that the manner in which the case was handled shows that magistrate, the prosecution and in some cases the defence were homophobic. It is also argued that the manner in which one of the offenders was treated by the Malawian society – when he was forced to undress several times for people to ‘verify’ whether he was a woman – was contrary to the Constitution of Malawi and its international human rights obligations under the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.
The chilling effect and the most ancient form of vengeance: discrimination and victimising third parties
Authors: Connolly Michael
Published: October 2011

The recent Equality Act 2010 includes a revised definition of ‘victimisation’, which (in the Act’s most litigated field of employment) prohibits employers from victimising workers who use the legislation. The underlying mischief should be the deterrent effect upon litigants, or potential litigants (the ‘chilling’ effect). One particularly pernicious deterrent is the victimisation, not of the complainant, but of a third party, such as the complainant’s spouse, loved one or friend, ‘the most ancient form of vengeance’. Yet the revised definition does not address the deterrent effect per se, and specifically excludes third party victimisation from its reach. This paper explores, first, why the deterrent mischief and the chilling effect should underpin the victimisation provision, so that it addresses third party victimisation; second, the potential of existing alternative solutions in domestic law (including parallels with the criminal contempt of court); and third, the position under EU law and the United States’ Civil Rights Act 1964. It concludes that the best existing solution lies in EU general principles, but for the sake of certainty, a simple amendment to the existing formula is required, which would solve the problem without any adverse effects.
Law as an Instrument of Social Change: The Constitution and Sexual Discrimination in Zambia
Authors: Munalula Mulela Margaret
Published: October 2011

The paper looks at the process of achieving gender equity through law reform. By tracing the process of amending the Constitution and other overtly discriminating laws in Zambia. The paper questions the effectiveness of legal centralism in circumstances which clearly indicate the existence of legal pluralism.

Whilst acknowledging the importance of a formal legal frame work with which to challenge the manifestation of discrimination, the paper argues that law should be treated with care because it maybe innately incapable of ensuring protection and the upholding of rights. Even where it is available, it may not be resorted to for myriad reasons.

Thus the paper suggests that the search for gender equity should not stop at the law, nor should it be derailed by successes in law reform. Real change requires a broader strategy.
Women, Law and Employment in Pakistan: from ‘Protection’ to ‘Equal Treatment’?
Authors: Mullally Siobhan
Published: October 2011

This paper examines the legal regulation of women's employment in the public sphere in Pakistan. A large part of the legislation relating specifically to the employment of women is highly protective in nature. The 1973 Constitution of Pakistan assumes that women are in need of protection. This assumption is reflected in the labour legislation and in the international labour standards that have been adopted by Pakistan. Much of the existing Labour Code is a legacy of the colonial period and reflects the concerns of the early British factory movement to preserve female modesty and ‘protect’ women's roles within the domestic sphere. This paper attempts to identify those areas of the law most in need of reform if the protective approach to women's participation in the public sphere is to be transcended. Although legislative reform does not necessarily lead to a change in workplace practices, the existence of discriminatory legislation, gaps in existing legislation and a lack of adequate enforcement machinery constitute significant institutional barriers to women's participation in the public sphere. For these reasons, it is argued, calls for law reform and a focus on legislative reform as a strategy for change may be justified.
The Enduring Controversy: Developments in Affirmative Action Law in North America
Authors: Bell Christine , Hegarty Angela , Livingstone Stephen
Published: October 2011

This article seeks to examine the current state of the law on affirmative action in the United States and Canada. Drawing upon developments at both a statutory and constitutional level it considers to what extent the law permits or requires measures to alter the composition of institutions to make them more representative in terms of race or gender. Its primary focus is on employment. It argues that constitutional provisions and judicial interpretation in Canada has been more sympathetic to affirmative action measures, especially in the past decade. After surveying the early development of affirmative action law in the United States it focuses on recent developments, notably the Civil Rights Act of 1991 and recent Supreme Court decisions such as the Adarand v Pena case, to examine the extent to which the scope for affirmative action measures has been reduced. In Canada the article considers both Charter equality jurisprudence and statutory developments such as the Employment Equity Act of 1986. The article concludes by observing that the position remains complex but that there is scope for affirmative action measures in both jurisdictions, perhaps more so in Canada where such measures do not require a backward looking, compensatory rationale. It also suggests that such measures may now have become well established in the human resources strategies of large corporations in both jurisdictions, rendering their disappearance unlikely.
Appropriate Policy for Gender Equality in Employment: Insights from the ILO Interdepartmental Project on Equality for Women in Employment*
Authors: Date-Bah Eugenia
Published: October 2011

Using insights from the recent ILO Interdepartmental Project on Equality for Women in Employment, the article portrays gender inequality in the work situation as a complex issue requiring a number of interlinked strategies within a comprehensive proactive policy framework for its effective tackling. Interventions are required in: legal framework and enforcement; labour market, training and the general macro and micro-economic context; working conditions and reconciliation of work and family responsibilities; social security coverage; women's representation in decision-making; women's mobilization and participation in workers' and employers' organizations; and roles and concerted action by governments, employers, workers' organizations and other relevant bodies of civil society. Relevant statistical measurement instruments, concepts and up-to-date sex-disaggregated data are necessary for accurate assessment and monitoring. The creation of a supportive legislative framework, for example, involves reflecting gender equality in labour laws as well as in family and marriage, inheritance, contract, property ownership, national constitution and customary laws since the latter also influence women's economic situation and in some situations are even more important than the former.
Is Chivalry Colour-Blind? Race-Class-Gender Articulation in the Criminal Justice System
Authors: Agozino Biko
Published: October 2011

The recent multivariate analysis of sentencing reports and probation reports by Roger Hood makes the controversial claim that the ‘chivalry thesis’ that women are generally treated more favourably than men in the courts is applicable to both white women and black women. The present paper reviews Hood's claim against the background of the literature on chivalry to see if this historically race-specific cultural practice has now become colour-blind as Hood implies. The paper concludes by stating that Hood is mistaken on two major counts regarding the different problems that face black women and white women in court and the different ways that similar problems are experienced by people with variable race, class and gender relations.
Linking Gender and Superannuation
Authors: Therese Macdermott
Published: October 2011

The purpose of this article is to examine the failure of the existing legal and regulatory framework of superannuation in Australia to recognise and address sources of systemic and structural inequality for women, which are reflected in current superannuation entitlements. The article seeks to explain why anti-discrimination procedures have not been adequate to remedy these inequalities, and analyses the treatment of women's paid and unpaid work within the current framework. The article ultimately seeks to identify superannuation law and policy as a further manifestation of the prevailing formalistic concept of equality which perpetuates gender inequality.