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University of Technology, Jamaica

Faculty of Law
Discrimination Law
Lecture 1
Introduction and Structure of
Discrimination Law
Definition of discrimination
Noticing or marking a difference, often for evaluative purposes:
Distinguishing and Differentiating.

Technical meaning of discrimination implies inequality. Thus, non-discriminatory
actions (e.g., merit based employment) may have discriminatory effects (e.g.,
denying jobs to historically disadvantaged groups) and are thus considered unfair.

Affirmative Action (which discriminates on race), however, is not considered
discriminatory as it is designed to address a historic wrong.

The difference between the technical meaning for discrimination, i.e., inequality
(used by lawyers) and the ordinary meaning, i.e., difference, (used by lay persons)
can result in confusion.

Discrimination Law usually covers situations found in:
Education,
Employment, and
Provision of services.


Aims of Anti-Discrimination Law
Improvements in the social and economic
positions of historically disadvantaged groups,
e.g., women and the disabled.
Recognizing the equality of all citizens.
Which avenue to pursue? The courts or the
Legislature?
Are judges best able to achieve equality?
Does political mobilization for equality result in
public and private good?
General principles of discrimination
CCPR General Comment No. 18: Non-
discrimination: 11/10/1989
Non-discrimination, together with equality before
the law and equal protection of the law without
any discrimination, constitute a basic and general
principle relating to the protection of human
rights.
Proving Discrimination
Either Direct or Indirect Discrimination or
Victimization must be proved
Discrimination must have occurred in either:
Education,
Employment, or
Provision of Services
Direct Discrimination
No ill-will or prejudice need be shown in order
to prove direct discrimination.
Less favourable treatment is required:
S. 1(1) Sex Discrimination Act 1975 (UK)
S. 1(1) Race Relations Act 1976 (UK) Dwldf
The treatment can be slight
Gill v El Vino Co Ltd [1983] 1 All ER 398
N.B. For cultural reasons, different treatment on the
grounds of gender is not considered the same as
race because of the impact of slavery.

Indirect Discrimination
Focuses on Social Inequality:
Economic,
Employment Acheievment.
Compares the performance and achievement
of groups rather than individuals.
Griggs v Duke Power Co 401 US 424 (1971)
Affirmative Action (vast racial disparity in
educational and employment attainment in the
American Deep South a function of historic
process of black exclusion).
Conventions/Treaties
The Legal Effect of Conventions/Treaties in
Discrimination Law
Jamaica requires domestication of
conventions/treaties;
c/f Neville Lewis v. The Attorney General of
Jamaica (2000) UKPC 35
Conventions/Treaties
The influence of Conventions and Treaties on
Caribbean law
The European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR)
signed 1950 entered into force 1953.
First comprehensive HR treaty
First International Complaints procedure
First International Court for HR matters
Most Judicially developed of all HR systems
Generated the most extensive HR jurisprudence.
European Court of Human Rights
and Jamaican Jurisprudence
Grant v R [2006] UK PC 2
- Constitutionality of S. 31D of Evidence Act
- JCPC relied on persuasive authority of
European Court Jurisprudence
[T]he Board readily accepts the relevance of
the Strasbourg jurisprudence...[on] the
European Convention, since that Convention
applied to Jamaica before it became
independent...
American Convention on Human
Rights (1969)
Where the exercise of any of the rights or
freedoms referred to in Article 1 is not already
ensured by legislative or other provisions, the
States Parties undertake to adopt, in
accordance with their constitutional processes
and the provisions of this Convention, such
legislative or other measures as may be
necessary to give effect to those rights or
freedoms.
Inter-American Commission
Permanent body operating since 1960;
7 Commissioners elected by the OAS General
Assembly (Political Body) for 4 year terms;
Relies on the American Convention, the
American Declaration of the Rights and Duties
of Man and other International Human Rights
Instruments.
Makes recommendations (non-binding)


Inter-American Commission
(contd.)
Prepares reports on the HR conditions in
countries and on particular themes;
Conducts On-Site Visits (visited Jamaica in
2008);
Develops Specialized Work in certain Thematic
Areas through Rapporteurs and other
Mechanisms;
Hear and Resolve Complaints (individual or
organ. and may refer to Court if possible).

Inter-American Court of Human
Rights (1979)
7 Judges (including a Jamaican)
Enforces and Interprets the Inter-American
Convention on Human Rights (adjudicatory
and advisory);
Individuals are not allowed to take cases.
Must be represented by the Commission;
Country must submit to its jurisdiction (only
Barbados in the Anglo-phone Caribbean);
Decisions are binding but must be enforced by
states or referred to the political body OAS.
International Covenant on Civil and
Political Rights
A multilateral treaty adopted by the United
Nations General Assembly on December 16,
1966, and in force from March 23, 1976.
It commits its parties to respect the civil and
political rights of individuals, including right to
non-discrimination (Arts. 2 and 26)
Monitored by the Human Rights Committee,
which reviews regular reports of States parties
on how the rights are being implemented.

International Covenant on
Economic Social and Cultural Rights

A multilateral treaty adopted by the United
Nations General Assembly on 16 December
1966, and in force from 3 January 1976.
It commits its parties to work toward t(i.e.,
not immediately binding) the granting of
economic, social and cultural rights to
individuals without discrimination (Art. 2)
Monitored by the UN Committee on
Economic, Social and Cultural Rights.
Convention for the Elimination of All
Forms of Discrimination Against Women
Adopted in 1979 by the United Nations General
Assembly, came into force on 3 September 1981.
Monitored by Committee on the Elimination of
Discrimination Against Women
The Convention defines discrimination against
women in the following terms:
Any distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their
marital status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field.

Convention on the Rights of the
Child
It came into force on 2 September 1990.
Defines a child as any human being under the
age of eighteen, unless an earlier age of
majority is recognized by a country's law.
Monitored by the UN Committee on the
Rights of the Child.
Prohibits discrimination of any kind,
irrespective of the child's or his or her
parent's or legal guardian's status, etc.

Convention on the Rights of
Persons with Disabilities
Adopted by the UNGA on 13 December 2006
and opened for signature on 30 March 2007.
Following ratification by the 20th party, it
came into force on 3 May 2008. Jamaica was
first party.
The Convention is monitored by the
Committee on the Rights of Persons with
Disabilities.
Defines disabilities (Art. 2) and Prohibits
Discrimination (Art. 3)

Constitutional Overview
Old model Constitutions
Barbados s. 23 discriminatory is a closed list.
The Bahamas s. 26 discriminatory is a closed list.
New Model Constitutions
St. Lucia s. 13 discriminatory is also closed list.
Trinidad and Tobago s. 4 discrimination closed.
Jamaica s. 13(3)(i) discrimination is also closed.




Caribbean Constitutions and Bill of
Rights Provisions
Constitutional Supremacy
Hinds v R [1997] AC 195
Giving a Generous Interpretation (e.g. what does
sex mean?)
Minister of Home Affairs and Another v Fisher
[1980] AC 319
Derogation from rights must be given strict and
narrow interpretation
Boyce and Joseph v R (2004) 64 W1R 57; [2004] UKPC32, PC
Attorney General for Grenada v Coard and others (2005) 68
W1R 289, 312
Lewis v Attorney General of Jamaica [2001] 2AC 50, 78



Caribbean Constitutions and Bill of
Rights Provisions
Limitation on fundamental rights
deFreitas v Permanent Secretary of the Ministry of
Agriculture, Fisheries, Lands and Housing and
Others (1998) 53 W1RBP
Presumption of Constitutionality
- Hector v Attorney General of Antigua and Barbuda (1990) 37 W1R 216
Caricom Charter
Art. 2 speaks to closed list of distinctions BUT
Art. 4 requires states to advise citizens of
international and regional Human Rights
agreements they subscribe to.