International Journal of Discrimination and the Law

Following decades in which the absence of immigration allowed Governments to claim there was no problem of racism in Ireland, the 1990s saw Ireland adopt new equality measures to combat racism. Whilst these innovations are important and even innovative, paradoxically they are accompanied by policy initiatives which indicate the equality agenda is still very much a controversial one and possibly even in retreat. More radical reforms are needed than merely tinkering with the Equality laws.

The focus of this article is an evaluation of the Race Relations (Amendment) Act 2000, which imposes duties on public authorities, and the Sex Discrimination (Election Candidates) Act 2002, which gives opportunities to political parties over the selection of candidates. Both of these Acts help to move anti-discrimination law in the United Kingdom away from a concentration on remedies for inconsistent treatment towards the acceptance of the need for positive measures aimed at both protecting and also advancing the position of an under-represented group. The article suggests that the positive measures these Acts exemplify may lead to conflict with the background principle that individuals should be treated with equal concern and respect. The article suggests that this principle underlies the limits to positive action in employment schemes under European Union law (the article includes a consideration of whether such limits apply to election candidacy); it goes on to consider the principle in respect of the limits to positive action authorised by these two Acts that may follow from the Human Rights Act 1998. The article concludes by considering whether the new legislation provides acceptable models for the future.

The likelihood of age discrimination in relation to employment increases the older a person becomes. The concern is that, partly as a result of this discrimination, large numbers of older workers leave the workforce and become economically inactive. This in turn brings increased pressures on the remaining members of the workforce and increased pressures on public finances in relation to pensions and healthcare.

The Equal Treatment in Employment and Occupation Directive (2000/78/EC) approaches this problem by introducing the principle of equal treatment in a number of areas related to employment, including age. The reasons for action on age discrimination rests upon two potentially conflicting justifications. The first is a human rights one based upon the right of all persons to equality before the law and the second is one concerned with implementing EC Employment Guidelines on integrating disadvantaged groups into the workforce. This second justification is likely to lead to a much more pragmatic approach which in turn may compromise the principle of equality of treatment. This article, uses survey material, to argue that the potential conflict between an equal treatment approach and the functional, more pragmatic, approach may lead to a lessening of the effectiveness of measures prohibiting age discrimination.