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The anti-discrimination law the drawbacks of traditional jurisdictions

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This Article is written by Anshika Srivastava of NMIMS School of Law of 2nd Semester, Intern under Legal Vidhiya

Discrimination has a lot of layers that make it tough for minorities to get a leg up.

                                                   ————————-Bill Gates————————

INTRODUCTION

All people in the affected industry are worried about bias. Discrimination harms many people all over the world. As a result, it hurts the performance and effectiveness of the workers in the companies affected. Margaret Thornton’s book The Liberal Promise, published in 1990, says that true liberalism needs an official way to make sure that everyone is treated equally. The Sexual Discrimination Act of 1984 is the most important rule, but many other things have been done to make sure people follow it. This piece will look at a few laws that make sure men and women are treated equally and get rid of bias. The goals of the laws and how well they have been met will be looked at to see if these laws have helped stop discrimination. The assessment will also look at how well the rules address all kinds of discrimination and whether they may have made job discrimination worse over time.

India does not have a law that covers workplace discrimination in the private sector yet. The only laws that do are ones that deal with sexual harassment, the rights of people with disabilities and HIV, and the Transgender Act, which protects transgender people.

The Indian legal system has also made rules that are meant to protect workers from abuse and unfair treatment at work.

Keywords- Discrimination, equality, women, caste, UN General Assembly, Criminal Charges.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) for Youth

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) tells countries to stop all kinds of discrimination against women and girls and make sure they have the same rights as men.

UN Women’s goal to support gender equality and give all women and girls more power is led by CEDAW, which is called the “worldwide bill of Rights for women.” Two teens wrote the CEDAW for Youth book.

This guide explains what CEDAW means for young people, how it has improved gender equality and women’s and girls’ human rights around the world, and a brief overview of the convention’s most important parts, such as the kinds of discrimination that must stop and the steps for implementing and enforcing it.

On December 18, 1979, the UN General Assembly put an end to any kind of discrimination based on gender. The 1981 convention was signed by 180 states. It showed how people all over the world feel about female equality.

The goal of the deal is to reduce bias based on gender. This international agreement describes gender bias.

20 countries agreed to this change; now, 189 have. Women and girls have the same rights and chances in these countries. This deal helps women and girls in the countries that have signed it.

This meeting is good for women. A treaty made by the UN. This document talks about women’s rights around the world. It keeps an eye on how states protect women’s rights. The goal of the meeting is to create permanent unity.

This Convention has total 30 articles

Articles 1-4 describe the convention and nations’ reasons for adopting it.

Articles 5-16 describe women’s prejudice that must stop.

Articles 17–30 cover CEDAW creation, implementation, and monitoring.

The Committee

In the 1960s, many rules against discrimination were passed because of the Civil Rights Movement. The Equal Compensation Act of 1963 was the first law to say that men and women should get the same pay for the same work. The most well-known civil rights law is Title VII of the 1964 Civil Rights Act. Title VII says that employers can’t treat people differently because of their race, color, religion, gender, or country of birth. Since the 1960s, there have been more laws that describe discrimination and include people with disabilities.

Businesses need to know these rules and follow them so they don’t get in trouble for being unfair to their clients, customers, and other members of the public. State and local governments can pass laws that give rights to more people or groups, but they can’t lessen the protections that federal law provides.

SHW Act

The SHW Act’s sexual harassment complaint process is rigorous. The SHW Act recognizes that women are more likely to be harassed or discriminated against at work. It solely covers “aggrieved women” workplace concerns. (it is important to note that the SHW Act is not gender-neutral legislation). Many firms have gender-neutral sexual and general harassment policies. Companies must have a sexual harassment policy under the SHW Act.

The SHW Act broadly defines “sexual harassment” as any of the following unwanted acts or behaviors: physical touch and approaches; asking for or demanding sexual favours; making sexually charged comments; showing pornographic material; or any other unwanted physical, verbal, or nonverbal sexual behaviour.

The SHW Act also outlines specific actions that, if committed during sexual harassment, constitute strong evidence of a crime. Such situations include i) an implied or explicit promise of better treatment at work; ii) a threat of worse treatment at work; iii) a threat about a person’s current or future job status; iv) interference with work or making a scary, offensive, or hostile work environment; or v) humiliating treatment that could harm a person. The SHW Act includes more than employers and employees. The “aggrieved lady” might be any woman sexually harassed at work. Any workplace, including company-provided transportation, is a workplace. Homeworkers redefined “work” during the COVID-19 pandemic.

The contours of antidiscrimination law

Over the last 50 years, antidiscrimination laws have been shaped by court rulings because laws against “discrimination” do not always say what is forbidden. Title VII of the Civil Rights Act of 1964 at first only banned “different treatment” in the workplace. The courts would think about how the plaintiff would have been handled if the trait hadn’t been there.8 In Griggs v. Duke Power, the Supreme Court made a new discrimination theory that could be broader.

The “disparate impact” theory said that an employer couldn’t do something that looked neutral but had a bad effect on a protected class unless they had a good reason. In the workplace, people may argue about how hiring and job decisions are made based on tests. A case with a disproportionate effect could question drug policing that targeted certain cars or driving habits. Legally “justifying” a practice that hurts a certain race or ethnic group more than it hurts other races or ethnic groups means weighing the benefits of the practice against the costs to the group it hurts.

The Supreme Court has ruled that people who base their discrimination claims on the Constitution (usually the Fifth or Fourteenth Amendments) or on Section 1981 of the federal code cannot use the disparate effect theory. This is because the disparate effect theory is only a solution for intentional racial discrimination. “Where the complaining party proves that race, color, religion, sex, or national origin motivated any employment practice.” The courts have fixed this problem by letting private companies give preferential treatment based on race or gender only if there is a clear imbalance in the employer’s workforce and if the preferential treatment doesn’t unfairly hurt members of the group that isn’t getting special treatment.13 The equal protection clause of the Fourteenth Amendment (or the Fifth Amendment for federal government action) gives tight scrutiny to government affirmative action, and a number of Supreme Court rulings has set the limits of what is allowed.

A change to California’s law called “Proposition 209” forbids discrimination based on race or gender in state jobs, schools, and contracts for building and other services. Private businesses and institutions in California can still use racial and gender choices as long as they don’t break any federal or state rules against discrimination.

This concept of unequal treatment and different results has been used to fight injustice in several areas:

Enforcement of Title VII

Equal Employment Opportunity Commission

Under the Civil Rights Act of 1964, people who have been treated unfairly can’t go to court right away. Instead, the Act set up the EEOC to police civil rights in the workplace. EEOC rules help companies decide legal hiring practices. The EEOC investigates claims of illegal prejudice by employers. A company can be sued by the EEOC for being unfair.

Before going to court, employees must file an EEOC Title VII charge. If the EEOC examines and decides not to act, it will send a “right to sue” letter. With that letter, the worker has 90 days to sue in federal court. Complaints to the EEOC must be sent in within 180 days of the alleged unfair treatment. Employee claims are rejected after 180 days.

The Lilly Ledbetter Fair Pay Act of 2009 pointed out that unequal pay is a form of discrimination and that the statute of limitations starts over each time an unequal paycheck is given. Thus, EEOC complaints must be made 180 days after getting a discriminatory paycheck.

The EEOC can help people who have been treated unfairly in many ways. These include back pay for lost salary, an order to stop the boss from being unfair, reinstating a fired or demoted employee, and compensatory damages for out-of-pocket costs and mental harm. Punitive fines are offered for severe or careless discrimination.

EEOC Procedure

The charge will be investigated by the EEOC. If discrimination is proven, the EEOC may help the parties reach a settlement, give a punishment, or go to federal court to investigate. The EEOC investigates and enforces a wide range of laws.

A case must show prejudice. The accuser has “at first glance” proof that the offender treated them unfairly because they were a member of a protected class. At this point, the complainant does not have to prove prejudice. The complainant only needs to show that they were treated unfairly.

The offender then gives a response, and it may show that its choice was based on a real, non-discriminatory reason or business need. A worker was fired for bad work, not for being a part of a protected class.

After the defence makes its case, the complainant has to prove excuse. So, the suspect was motivated by prejudice. In cases of unequal effect, the plaintiff may be able to show that the same result can be reached with less discriminatory practices.

The matter is decided by EEOC hearing officers. After the officer decides or gives a notice of the right to sue, an employee has 180 days to file a discrimination lawsuit in federal court.

Affirmative Action

Affirmative action is a way for companies to make up for how they have treated women and minorities in the past. Even though many companies have them, affirmative action programs are not required. Affirmative action programs can be optional if they fix a labour mismatch, only last for a short time, and don’t hurt the rights of people who don’t take part in them.

Reverse discrimination against white Americans makes it hard to use affirmative action tactics. Everyone is protected from racism by Title VII.

The EEOC will look at the affirmative action program of a suspect. Even if a company takes positive action, it could still be responsible for discrimination. Businesses should try to stay away from schemes that lead to claims from other protected groups about unfair treatment.

The Age Discrimination in Employment Act of 1967

The Act makes it unlawful to treat employees over 40 in a bad way. It does not protect younger workers, so companies may opt to hire people who are older. The ADEA covers the government of each state. The ADEA says that companies cannot treat covered people unfairly in any way, including when they are hired. It is illegal to hire a 25-year-old if a 50-year-old is more skilled and ready to work under the same conditions. The ADEA says that people cannot be forced to quit, with the exception of very high-ranking leaders over 65 who get pensions.

Employers can bias against older workers if they have a good reason to do so, like when a production company hires a young actor to play a young part or when airlines force pilots to retire.

If older workers do not do their jobs well or act badly, they could be fired. Companies may also use a standard strategy for layoffs or early retirement and offer rewards to people who do so.

In 2005, the Supreme Court said that age discrimination cases can be based on unequal effect. A boss cannot make office workers go through hard physical exams that have nothing to do with their jobs and are unfair to older workers.

Genetic Information Non-discrimination Act of 2008

In 2008, Congress passed the Genetic Information Non-Discrimination Act (GINA) to stop genetic discrimination. GINA says that companies cannot hire, promote, demote, or fire people based on their genes or the medical past of their families. This includes workers who take care of people with genetic conditions. Health insurance can’t use details about your genes. Lastly, business wellness programs cannot ask about the health of a person’s family.

CASE LAWS RELATED TO ANTI-DISCRIMINATION LAWS

[1]Lata Singh Vs State of Uttar Pradesh

Lata Singh was an adult when she chose to marry a man from a lower caste. She moved out of her family’s house. Because Lata’s brothers did not like the partnership, they reported her missing and said she had been taken. Because of this, three people from her husband’s family were taken into custody. Lata Singh asked for the charges against her to be dropped. This led to the Supreme Court’s historic ruling that an adult woman can live with or marry anyone she wants. The court also told the police to file criminal charges against anyone who hurts someone because they chose to marry someone from a different religion or race.

In the case of [2]Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), by upholding the First Amendment’s free exercise provision (as applied to the states under the Fourteenth Amendment), Jack Phillips’ right to refuse to custom design a cake for a same-sex wedding, the U.S. Supreme Court ruled in the much-anticipated case of Masterpiece Cakeshop v. Colorado Civil Rights Commission 585 US ___ (2018) on June 4, 2018.  Except for Ruth Bader Ginsburg and Sonia Sotomayor, the majority judgment was written by Justice Anthony Kennedy, who has been involved in many of the Court’s ground-breaking rulings involving LGBT rights.

The anti-discrimination law the drawbacks of traditional jurisdictions

Anti-discrimination rules are made to stop people from being treated badly because of their race, gender, religion, age, ability to work, or sexual orientation, which are all protected characteristics. Even though these laws have been helpful in making sure everyone has the same chances and protecting the rights of people who have been left out, they have a lot of problems.

One of the biggest problems with traditional governments is that they only guard a limited number of people. Most anti-discrimination rules only cover certain situations, like jobs, housing, and public places, and only guarantee certain traits. This means that discrimination can happen even in places where there are clear law protections, such as in education, health care, and government services.

Another problem with old law systems is that the person who has to prove something has to do so. People who have been treated unfairly often have to show proof that it really happened. This can be hard, especially when bias is hidden or not obvious. Also, the legal process can take a long time and cost a lot of money, which keeps some people from going to court.

Also, traditional officials often use punishments like fines or jail time to stop people from acting in a discriminatory way. Even though these methods might work sometimes, they do not always get to the root of prejudice or help people change their thoughts and actions in a way that lasts.

Lastly, there may be too much bias in social, economic, and political structures for standard governments to deal with. To deal with bias, you might need affirmative action or diversity and inclusion programs.

In traditional countries, it is hard to get anti-discrimination laws that support equality and protect vulnerable groups. To solve these problems, you may need to learn more about what causes discrimination.

Recent changes related to Antidiscrimination law

Some landmark decisions that protect women’s rights in India.

Marital Rape

Indian law forbids marital rape. In a historic decision, the Supreme Court determined that marital rape violated the Medical Termination of Pregnancy (MTP) Act.

In order to remove discrimination between married and unmarried women, the Supreme Court construed the Medical Termination of Pregnancy Act and its regulations to permit abortions up to 24 weeks.

To demand money for a house’s construction is dowry

In [3]State of Madhya Pradesh vs. Jogendra & Anr., the Supreme Court widened the definition of “dowry.” The Supreme Court said that a “dowry” is any request for money or property from a woman.

The Dowry Prohibition Act of 1961 says that a “dowry” is “any property or valuable security” that is given from one partner to the other.

Women have always been treated badly in India and most other countries. Even though there are efforts to give women more power, things are bad. Women still do not have enough rights, schooling, or money, and they still must deal with discrimination and bias. The Supreme Court’s big decisions on several important issues could help women in India.

Mother choose the child’s surname

In July 2022, the Supreme Court said that a woman who is the child’s only legal guardian has the right to choose the child’s last name, even if her first husband has died. No one can stop her from doing this.

She can also give the child to someone else to raise. Justices Dinesh Maheshwari and Krishna Murari said, “The mother is the only natural guardian of the child, so she has the right to choose the child’s last name.”

Society is reflected through sports. Even when it levels, it always draws attention to more serious imbalances. Therefore, recent comments made by former West Indies cricket captain Darren Sammy must serve as a warning about a widespread racism issue in our culture.

This issue is only made worse in our nation by discrimination based on caste, class, gender, and religion. Former Indian cricketer Irfan Pathan responded to Mr. Sammy’s remarks by pointing out that Tamil Nadu and India opener Abhinav Mukund also spoke to how players from the south of India sometimes suffered criticism from northern spectators, as well as another sort of bias even more ubiquitous in society. On June 9, Mr. Pathan tweeted that racism transcends skin color and that embargoes on homebuyers who are motivated by their religion are unfair.

CONCLUSION

Anti-discrimination laws were made to stop people from being treated badly because of their race, gender, religion, sexual orientation, or disability. The law gets rid of differences in jobs, homes, and public places to make society fairer.

Traditional states have problems, but rules against discrimination are good. These rules are hard to follow because it’s hard to tell when something is wrong. Traditional legal systems might be slow to change with the times and might not protect the weakest people.

Traditional governments may not have the money or the will to police anti-discrimination laws. There may still be discrimination. This makes the law weaker and keeps unfairness in place.

Laws against discrimination help make society fairer and just, but they also have some problems. It will take a lot of work to change the way police work, spread information about unfair actions, fight for better safety for underrepresented groups, and bring attention to these problems.

REFERENCES

Antidiscrimination Laws, L&G GLOBAL, https://leglobal.law/countries/india/employment-law/employment-law-overview-india/04-anti-discrimination-laws/

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Nicholas Bamford, Conceptions of Anti-Discrimination Law, Vol. 24, No. 4, 693-716, JSTOR, https://www.jstor.org/stable/3600533

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John Donohue, Anti-Discrimination Law, ResearchGate, file:///C:/Users/anshi/Downloads/AntiDiscrimination_Law_Donohue_chapter.pdf

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Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) for Youth, UN WOMEN, https://www.unwomen.org/en/digital-library/publications/2016/12/cedaw-for-youth#:~:text=The%20Convention%20on%20the%20Elimination,women’s%20and%20girls’%20equal%20rights.

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Traditional laws discriminatory to women invalid under Ethiopia’s new constitution, anti-discrimination committee told, UNITED NATIONS, https://press.un.org/en/1996/19960124.wom889.html

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Article 14: Protection from discrimination, Equality and Human Rights Commission, https://www.equalityhumanrights.com/en/human-rights-act/article-14-protection-discrimination

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[1] Lata Singh Vs State of Uttar Pradesh (2006) 5 SCC 475

[2] Masterpiece Cakeshop v. Colorado Civil Rights Commission 585 US 2018

[3] State of Madhya Pradesh vs. Jogendra & Anr 190 of 2012

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