Book contents
- Frontmatter
- Contents
- About the Authors
- Introduction
- The Importance of Equality Law and Human Rights in Addressing Socio-Economic Inequality
- Housing Rights and the Inclusion of Roma and Travellers. Towards Positive Action Measures from the Rulings of the European Court of Human Rights?
- The Right to Work of People with Disabilities. The Obligation to Accommodate as an Emanation of the Contemporary Approach to Disability
- Indirect Discrimination, Reasonable Accommodation and Religion
- Reconsidering Civic Integration Policies for Migrants through the Lens of Socio-Economic Status. Examples of Belgian and Dutch Legal Orders
- Does Equality Law Make a Difference? Social Science Research on the Effect of Discrimination Law on (Potential) Victims
- From a ‘Relative’ to a ‘Relational’ Equality: Rethinking Comparability in the Light of Relational Accounts of Social Justice
From a ‘Relative’ to a ‘Relational’ Equality: Rethinking Comparability in the Light of Relational Accounts of Social Justice
Published online by Cambridge University Press: 21 September 2018
- Frontmatter
- Contents
- About the Authors
- Introduction
- The Importance of Equality Law and Human Rights in Addressing Socio-Economic Inequality
- Housing Rights and the Inclusion of Roma and Travellers. Towards Positive Action Measures from the Rulings of the European Court of Human Rights?
- The Right to Work of People with Disabilities. The Obligation to Accommodate as an Emanation of the Contemporary Approach to Disability
- Indirect Discrimination, Reasonable Accommodation and Religion
- Reconsidering Civic Integration Policies for Migrants through the Lens of Socio-Economic Status. Examples of Belgian and Dutch Legal Orders
- Does Equality Law Make a Difference? Social Science Research on the Effect of Discrimination Law on (Potential) Victims
- From a ‘Relative’ to a ‘Relational’ Equality: Rethinking Comparability in the Light of Relational Accounts of Social Justice
Summary
INTRODUCTION
Anti-discrimination law is oft en depicted as an important tool for implementing distributive policies in the name of social justice. In practice, however, the relationship between anti-discrimination law and the different ideals of distributive social justice is a complex one. One source of this complexity is that the traditional anti-discrimination model assumes that the alleged victim of discrimination is treated less favourably or is placed at a particular disadvantage in comparison with other persons. Protecting diversity is one of the central objectives of social policy in contemporary pluralistic societies. But the legal test for comparability seeks to determine whether two situations are relevantly similar for differential treatment to qualify as direct discrimination or relevantly different for similar treatment to qualify as indirect discrimination. This means that the comparability analysis may easily support a narrow view of what constitutes relevant subjectivity in discrimination law. The potential of antidiscrimination law and policies to contribute to the wider aims of social justice remains limited within a comparator-based approach to discrimination. One task of discrimination theory is therefore to consider what alternatives to the comparability analysis can be provided in discrimination law.
This chapter will rethink the requirement of comparability within a relational framework of egalitarian social justice. It will first explore how the idea of comparability is embedded in the case law of the Court of Justice of the EU (CJEU) and what critical responses it has fostered in anti-discrimination law scholarship (section 2). This analysis lays the foundation for the argument that the requirement of comparability oft en misinterprets the relational nature of social reality. The remaining sections of this chapter will develop a relational critique of comparability, first by suggesting that discrimination law should move from a ‘relative’ to a more ‘relational’ ideal of equality (section 3), and then by considering what implications this theoretical analysis might have for the different functions of comparability in EU anti-discrimination law (section 4). It will be concluded that placing more emphasis on the applicant's ability to relate as an equal with other members of society in deciding whether adverse treatment constitutes discrimination on one or several of the protected grounds can reshape our understanding of what constitutes relevant subjectivity under discrimination law, and thus reconcile the legal framework for combating discrimination with the wider objectives of social justice.
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- Equal is not Enough , pp. 135 - 153Publisher: IntersentiaPrint publication year: 2016
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