International Journal of Discrimination and the Law

Inter-related developments at three distinct levels of European Union law relevan to protection against race discrimination are the focus of this article. First, the article considers Article 13 E.C. enacted by the Treaty of Amsterdam, and the enabling model it embodies. This model is critiqued and contrasted with other potential forms of equality provision, by drawing on international law models. Next, the article analyses the Council Directive on Equal Treatment between persons irrespective of racial or ethnic origin (EC 43/20(0) from a number of substantive and formal legal perspectives. Finally, the article discusses the Charter of Fundamental Rights of the E.U. and the import of its equality provision, Article 21. A number of themes recur in this piece: among them, the limitations of the current equality model with respect third country nationals and nationality discrimination which amounts to de facto race discrimination; the inadequacy of the current equality model to provide a consistent level of protection for all of the heads of discrimination enumerated in Article 13; and the absence of a general principle of equality which clearly binds Member States, E.U. citizens and the E.U. itself.

Article 14 of the European Convention on Human Rights has not had any real measure of success. This may be explained in part by its lack of free-standing status and in part by the unwillingness of Convention bodies to give it full effect. All too common to European human rights jurisprudence is the Court's exercise of discretion to refrain from ruling on the discrimination claim when another substantive article has been breached. Common too is the failure to apply rigorously standards of interpretation which have rendered the article weak in terms of a substantive equality guarantee. Protocol 12 seeks to overcome these difficulties, by creating an equality guarantee with equal weight as other Convention rights. The Protocol is not likely to enter into force in the near future. In the meantime, the European Court of Human Rights appears to be making efforts to strengthen the Article 14 jurisprudence. First, the Court seems to be showing some increased willingness to deal with the discrimination claim. Second, the prohibited grounds have been extended, in terms that invite comment on the rationale for prohibited grounds. Third, a claim based on indirect discrimination has finally succeeded. Each of these disparate developments, taken together, signal attempts on the part of the Court to take Article 14 seriously. It is suggested that these attempts, while important, lack principled reasoning, and that domestic courts should take seriously the task of supplying principles on which the Court can rely for guidance.

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.