BULLETIN OF COMPARATIVE LABOUR RELATIONS - 68

Contributors:

Catherine Barnard

Cing-Kae Chiao

Sung-Wook Lee

Risa L. Lieberwitz

Pascal Lokiec

Ryoko Sakuraba

Belinda Smith

Bernd Waas

Summary of Contents

1. Employment Discrimination Law in the United States: On the Road to Equality? 1

2. New Developments in Employment Discrimination Law: The United Kingdom Report 39

3. New Developments in Employment Discrimination Law: Germany 69

4. Discrimination Law in France 95

5. Australian Anti-discrimination Laws: Framework, Development and Issues 115

6. New Developments in Employment Discrimination in Korea 147

7. Employment Discrimination in Taiwan 175

8. Employment Discrimination Law in Japan: Human Rights or Employment Policy? 233

Table of Contents

I Introduction 1

II Common Law Background: Employment-at-Will 2

III Title VII Negative Rights Model: Formal Equality 5

IV Sexual Harassment: Defined as Disparate Treatment 9

V Recent Developments in Disparate Treatment Theory 12

VI Moving Beyond the Limits of ‘Formal Equality’ 14

A Required Gender Conformity as Disparate Treatment 15

B Intersectional Claims of Discrimination 17

C Group-Based Claims of Intentional Discrimination 18

1 Explicit Exclusion of a Protected Group 18

2 Pattern or Practice of Group-Based Exclusion 19

VII Disparate Impact Theory: Moving Towards Substantive Equality 20

A Problems of Proving Disparate Impact Claims 22

B The Limited Scope of Disparate Impact Claims 24

VIII Further Legal Issues of Substantive Equality 25

A Affirmative Action 25

B Mandatory Pre-employment Arbitration Agreements 26

IX The ADEA and the ADA: Formal Equality or Substantive Equality? 27

A Age Discrimination in the Employment Act 27

B The Americans with Disabilities Act 30

X Employees Left Out in the Cold: The Contingent Workforce 32

XI Conclusion 37

I Introduction 39

II General Description of Employment Discrimination Law 40

A Historic Overview 40

1 The Legislation 40

2 Review 44

B Typical Cases of Employment Discrimination 44

III The Main Principles of Anti-discrimination Law:

Direct and Indirect Discrimination 47

A Direct Discrimination 47

1 Defining Direct Discrimination 47

2 GOQs/GORs 49

3 Positive Action 50

4 Harassment 51

B Indirect Discrimination 52

C Disability-Related Discrimination 54

D Equal Pay 56

IV Structure of Proof and Remedy of Employment Discrimination 56

A Proof of Discrimination 56

B Enforcement and Remedies 58

1 Remedies under the Anti-discrimination Legislation 58

2 Equal Pay Act 61

V Relationship between Employment Discrimination Law

and Employment Policy 62

VI The Important Issues Facing Employment Discrimination Law Today 64

A Introduction 64

I Introduction 69

II Historic Overview 70

A Employment Discrimination Law at the European Level 70

B German Employment Discrimination Law 71

III Current Law on Discrimination 72

A German Constitution 72

viii Table of Contents

B Prohibitions of Discrimination on the Statutory Level 72

1 Prohibition of Discrimination with Regard to

Part-Time Workers and Workers Employed under

a Fixed-Term Contract 73

2 Principles of Equal Pay and Equal Treatment with

Regard to Hired-Out Workers 74

3 Principle of Non-discrimination with Regard to

Disabled Persons 75

4 The So-Called Labour Law Principle of Equal Treatment 75

C In Particular: The New General Equal Treatment Act 75

1 Purpose of the Act 76

2 Personal and Material Area of Application 77

a General Questions 77

b Job Interviews and Discrimination 78

c Discriminatory Dismissals 78

3 Possible Grounds of Discrimination 79

4 Forms of Discrimination 80

a Direct Discrimination 80

b Indirect Discrimination 80

5 Prohibition of Discrimination 81

6 Justification 82

a Justification of Direct Discrimination 82

b Exceptions to the Principle of Equal Pay 83

c Justification of Discrimination in the Area of Unequal

Treatment Based on Age 83

i Content of Section 10 of the General Equal

Treatment Act 83

ii Recent Rulings of the European Court of Justice 84

iii Major ‘Problem Areas’ in German Law with

Regard to Age Discrimination 85

d Positive Action 87

7 Obligations of the Employer 88

8 Legal Consequences of Discrimination 88

9 Burden of Proof 89

10 Procedural Requirements and Legal Protection 90

IV General Questions 91

A Merits and Demerits of the Legal Concept of ‘Discrimination’ 91

B Discrimination Law and the Promotion of Employment of

Specific Groups of Employees 93

C Practical Questions and the Future Direction of

Discrimination Law 94

V Conclusion 94

Table of Contents ix

I The Prohibition of Discrimination 96

A The Main Discriminatory Grounds 96

1 Sex 97

a Contributions of EC Law to French Law 97

b In French Law 98

i Equality between Men and Women: First Step 98

ii Generalization of the System: Second Step 99

2 Race 99

3 Trade Union Membership 99

4 Sexual Orientation 100

5 Origin, Nation 100

6 Handicap 100

7 Health 101

8 Family Situation 101

9 Age 101

a Prohibition of Age Discrimination 101

b Prevention of Age Discrimination 102

B The Justification of Differences of Treatment 103

1 Justification of Indirect Discrimination 103

2 Justification of Direct Discrimination 104

C The Principle: Equal Work, Equal Pay 104

D Positive Action 105

II Proof and Remedies 105

A Proof 105

B Remedies 106

C Measures of Protection of Victims of Discrimination 106

1 Collective Protection 106

a Right of Alert 106

b Substitutive Action 106

2 Individual Protection 107

a Protection of Witnesses 107

b Protection of the Victim of Discrimination 107

c Work Inspectors 107

d The HALDE 107

III Discrimination and Employment 108

A Legal Provisions 108

1 Age and Hiring of Workers 108

2 Age and Dismissal 108

B Contracts of Employment 109

1 Favouring the Employment of the Elderly 109

2 Favouring the Employment of the Young 109

x Table of Contents

IV Current Issues 110

A Points of Focus 110

1 The Position of the HALDE 110

a 2007 Report 110

b Proposals of the HALDE for 2008 (17 December 2007),

Concerning Employment 111

2 The Anonymous CV 111

3 Fighting New Forms of Discrimination 112

4 The Role of Collective Actors 112

B General Issue: Fundamental Rights and the Control of

Power within the Company 113

I Introduction 115

II Australian Anti-discrimination Laws: An Outline 117

III Regulatory Framework: Discrimination Law Rights and Their Limits 120

A Standard 121

B Enforcement Rights and Dispute Resolution Processes 123

C Sanction 125

IV Conceptions of Equality, Definitions of Discrimination 126

A Direct Discrimination 129

B Indirect Discrimination 132

V Affirmative Action 134

VI Recent Developments: Innovations and Limitations 136

A Age Discrimination 136

B Disability Standards and Action Plans 138

C Family Responsibilities 139

VII Conclusion 141

I Overall System of Employment Discrimination Law in Korea 147

A Constitutional basis 147

II The Overall Employment Discrimination Law 149

A General Prohibition on Discrimination 149

B Anti-discrimination Acts in Employment 151

III The Ban on Sex Discrimination 153

A The Law that Prohibits Sex Discrimination 153

B The Definition of ‘Discrimination’ 154

Table of Contents xi

C Principle of Equal Pay for Equal Value of Work 156

D Affirmative Action in Employment 157

E Evaluations of the Equal Employment Opportunities Act 158

IV Ban on Employment-Type Based Discrimination 159

A Background of the Enactment of Acts to Protect

Irregular Employees 159

B Contents 161

1 Qualification to Seek Remedies against Discriminatory Acts 162

2 The Area of Prohibition on Discriminatory Acts 163

3 Comparable Employees 163

4 Unfavourable Treatments 164

5 Reasonable Reasons 164

6 Burdens of Proof 165

7 Remedies 165

C Responses from Labour Markets 165

V Anti-discrimination in Employment on the Basis of Disability 166

A Regulations to Ban Employment Discrimination on the

Basis of Disability 166

B Mandatory Employment of Disabilities Policy 167

C Anti-discrimination against the Disabled Act 168

1 Contents 168

2 Remedial Procedures 169

VI Future Plans for Anti-discrimination in Employment Policy 171

A Current Issues in Anti-discrimination in Employment Act 171

B The Future of Employment Discrimination Law 173

I Introduction 175

II General Background about Employment Discrimination Issues

in Taiwan 177

A Gender Discrimination in Employment 177

B Other Forms of Employment Discrimination 179

C Emerging New Forms of Employment Discrimination 181

III Legal Regime Governing Employment Discrimination in Taiwan 182

A Legal Framework before the Passage of the Gender Equality

in Employment Act of 2002 183

B Major Provisions of the Gender Equality in Employment

Act of 2002 184

1 General Provisions 184

2 Prohibition of Gender Discrimination 184

3 Prevention and Correction of Sexual Harassment 184

4 Measures for Promoting Equality in Employment 185

xii Table of Contents

5 Remedies and Appeals Procedures 185

C Other Related Fair Employment Statutes 186

IV Combating Employment Discrimination under the

Employment Service Act 187

A Composition and Organizational Structure of the

Commissions on Employment Discrimination 188

B Functions of the Commissions on Employment Discrimination 189

C The Commissions on Employment Discrimination in

Actual Practice 190

D Enforcement of the Commissions’ Decisions 191

V Combating Gender Discrimination under the Gender Equality in

Employment Act 193

A Composition and Organizational Structure of the

Commissions on Gender Equality in Employment 193

B Functions of the Commissions on Gender Equality in

Employment 195

C The Commissions on Gender Equality in Employment in

Actual Practice 196

1 Operations of the Commissions on Gender Equality in

Employment (or Employment Discrimination) of

Local Governments 197

2 Operations of the Commission on Gender Equality in

Employment of the Council of Labor Affairs,

Executive Yuan 197

D Enforcement of the Commission’s Decisions 199

VI A Critical Assessment 200

A Positive Aspects of Developments 200

B Negative Aspects of Developments 205

C Controversial Aspects of Developments 207

D New Aspects of Developments 208

E Suggestions for Further Reforms 211

VII Conclusion 213

References 214

I Introduction 233

II Constitutional Basis 234

III Employment Discrimination Law during the Post-War Period 235

A The Principle of Equal Treatment in the LSA 235

B Concept of Discrimination: Cases of Wage Discrimination 236

1 General Wage Systems 236

Table of Contents xiii

2 Typical Forms of Discrimination 237

C Scope of Application 238

1 ‘Freedom of Contract’ Supremacy 238

2 Sex-Based Practices Other than Wage Discrimination 238

D Forbidden Grounds 239

IV The Gradual Development of Employment Discrimination

Legislation 240

A Sex Discrimination Law 240

1 The Equality Act: From ‘Duty to Endeavour’ to

Compulsory Duty 240

2 Current Act: Conclusive Employment Discrimination Law 241

3 Remaining Task: Indirect Discrimination 243

B Improvement of Terms and Conditions for Part-Time Workers 245

1 Legal Background 245

2 Statutory Regulations: ‘Duty to Endeavour’ 246

3 Current Act: Mixture of ‘Duty to Endeavour’ and

Compulsory Duty 247

C Stabilization of Employment for Older Persons 249

1 Raise of Mandatory Retirement Age to the Age of 60 249

2 Measures for Persons between the Ages of 60 and 65 250

3 Reinforcement of Regulations on Age Limits for Hiring 251

D Promotion of the Employment of Disabled Persons 253

V Case Law 253

A Age-Based Practices 254

1 Older Persons-Targeted Redundancy 254

2 Wage-Cuts 254

B Protection from Dismissals against Disabled Persons 255

VI Concluding Remarks 255

xiv Table of Contents

Notes on Contributors

Catherine Barnard, Reader in Law, Trinity College, Cambridge, United Kingdom

Cing-Kae Chiao, Research Fellow, Institute of European and American Studies, Academia Sinica, Taiwan, President of the Taiwan Labor Law Association

Sung-Wook Lee, Associate Professor of Law, Ewha W. University, Korea

Risa L. Lieberwitz, Associate Professor, School of Industrial and Labor Studies, Cornell University, USA

Pascal Lokiec, Professor of Law, University of Paris 13, France

Ryoko Sakuraba, Associate Professor, Graduate School of Law, Kobe University, Japan

Belinda Smith, Lecturer, Faculty of Law, University of Sydney, Australia

Bernd Waas, Professor, University of Hagen, Germany

Introduction

1. The Japan Institute for Labour Policy and Training (JILPT) Tokyo Seminar was originally organized by Professor Kazuo Sugeno (Professor Emeritus, the University of Tokyo) and Professor Yasuo Suwa (Hosei University) in 1991. The papers submitted to the previous JILPT Tokyo Seminars were published in the Bulletin of Comparative Labour Relations No. 30 (1995), No. 34 (1999), No. 38 (2000), No. 47 (2003), No. 53 (2005), and No. 61 (2007).

As organizers of the seminar, we sent the following memo to the participants to explain the theme and its background.

The theme of the 9th Tokyo Seminar is the law of employment discrimination, with special emphasis on its expansion into new areas, such as discrimination because of age or part-time employment status. What are the recent developments in employment discrimination law in your country? How do the newer types of discrimination differ from the ‘traditional’ ones, such as race and gender?

In Japan, the Equal Employment Opportunity Act was amended in 2006 for the second time since its enactment. By shifting from a ban on ‘discrimination against women’ to ‘discrimination on the basis of sex’, and by adopting the concept of indirect discrimination in certain areas, the amendment marked a significant development in Japanese sex discrimination law. In addition, in June 2007, other statutes were amended to (1) mandate that employers give equal opportunity regardless of age at the time of recruitment and hiring of workers and (2) prohibit wage and benefits discrimination against part-time workers who are equivalent to regular workers in certain respects. It appears that these measures are aimed at achieving broader employment-policy goals as well as vindicating equality of rights of individual workers. While Japan has yet to prohibit discrimination because of disabilities, a new era of employment discrimination has certainly begun.

The same may be true of the European Union Member States. The Framework Directive on Equal Treatment (2000/78/EC) added age, disability, and sexual orientation, among others, to the prohibited grounds, and the legislative body of each country has acted upon it. It is interesting to see how such new types of discrimination law operate along with the pre-existing ones in achieving equality in the workplace. Meanwhile, in the United States, where a federal statute has prohibited age discrimination in employment since 1967, the Supreme Court took the position in 2005 that prohibition of age discrimination is targeted at the protection of older workers. Does this mean age discrimination is somehow different from racial or sexual discrimination? And why do we not hear about the prohibition of discrimination against part-time employees in the United States? In other countries as well, employment discrimination is an area experiencing remarkable developments in recent years and we believe it presents fascinating issues for comparative discussion.

Based on such an idea, we asked the participants to cover the following issues in their national papers:

(1) General description of employment discrimination law in your country:

(a) Please present a brief historic overview of employment discrimination law. Have there been notable developments in recent years?

(b) Do you have statutes to prohibit discrimination on the following grounds?

– race/ethnicity

– sex

– religion/beliefs

– age

– disability

– sexual orientation

– employment status (such as part-time and fixed-term contract) Are there any other grounds for discrimination prohibited by law?

– Do they cover all aspects of employment? Do you have special laws regarding wages, such as equal pay between men and women?

– Does your Constitution offer a basis for anti-discrimination statutes?

– What are the most typical cases of employment discrimination?

(2) Structure of proof and remedies available in cases of employment discrimination:

– Taking the example of race and/or sex discrimination, what constitutes illegal discrimination and what are justifiable grounds for distinction or disparity?

– Does your law mandate prohibition of so-called indirect discrimination? If yes, how are the courts applying the theory?

– How do you compare newer types of discrimination (e.g., age, disability, employment status) with traditional ones (e.g., race, sex) in terms of definition and proof of discrimination?

– Are there any particularly important issues of remedial procedure regarding employment discrimination cases?

(3) Relationship between employment discrimination law and employment policy considerations:

– Did (or would) the prohibition of age discrimination affect employment practices of your country? What about the prohibition of employment status discrimination?

– Do you have regulations to promote employment of elderly or disabled people? How do they relate to the prohibition of discrimination because of such traits?

– What are the merits and demerits of addressing employment issues from the standpoint of ‘discrimination’?

(4) Finally, please identify the most important issue of employment discrimination in your country today and give your opinion as to its future direction.

The national papers presented at the seminar are contained in the following pages.

They are all informative, and readers will find it interesting to learn about the various developments of anti-discrimination laws in each country. While the growing importance of this area is commonly recognized, there are differences in specific grounds covered by each country’s anti-discrimination law and in the legal and societal contexts in which they came to be addressed. It is impossible to summarize the contents of the papers here, but a word or two would be appropriate for each country by way of introduction.

In the United States, which initiated the development of employment discrimination law with the enactment of Title VII of the Civil Rights Act of 1964, the search for substantive equality is still in progress under a complex body of statutes and judicial interpretations, and the issue of contingent workforce is becoming serious.

In the United Kingdom, since the seminal Sex Discrimination Act of 1975, so many anti-discrimination statutes have been enacted under the influence of both US law and the EC law that an effort is being made to streamline them. There was also a remarkable increase of litigation recently regarding equal pay.

In Germany, a comprehensive statute called the General Equal Employment Act, which prohibits discrimination based on race or ethnic origin, gender, religious or secular belief, disability, age or sexual identity, was enacted in 2006 to comply with European Community (EC) Directives. Currently, the issue of age discrimination is raising particularly difficult problems.

In France, the legal framework to deal with EC Directives was adopted by a similarly comprehensive statute law of 16 November 2001, although it is only recently that the judicial court acknowledged the doctrine of indirect discrimination, and in 2006 the use of anonymous employee applications was mandated for larger employers.

In Australia, anti-discrimination laws developed relatively early with the adoption of the Racial Discrimination Act of 1975, followed by prohibition of sex discrimination in 1984, disability discrimination in 1992, and age discrimination in 2004, but their individual complaints-based model is showing its limitations in promoting equality.

In Korea, prohibition of sex discrimination has been strengthened considerably in recent years through amendments to the Equal Employment Opportunity Act of 1987; new laws were enacted to prohibit discrimination against fixed-term and part-time employees in 2006, and to prohibit disability discrimination in 2007.

In Taiwan, the Employment Service Act of 1992, a comprehensive statute prohibiting discrimination based on race, religion, country of origin, sex, and disability, among others, was expanded in 2007 to cover age and sexual orientation. Another statute was enacted in 2002 to specifically deal with gender discrimination.

In Japan, despite the 2006 amendment of the Equal Employment Opportunity Act and the new legal provisions regarding age and part-time status mentioned above, anti-discrimination laws are still modest, leaving the process of hiring largely unregulated, with a trend toward adopting the approach of employment policy rather than human rights.

After the presentations of these national papers, there was a general discussion among the participants. The issues raised included whether and in what respect the newer types of employment discrimination are different from the traditional ‘core’; the relationship between employment-policy considerations and the human rights aspect of equality; the position of employment discrimination law, especially its relation to the traditional labour law; and the role of the courts and the parties involved in the application of employment discrimination law.

Naturally, there were no specific conclusions, but the authors of national papers endeavoured to reflect insight and perspective gained through the seminar discussions in their final version for this Bulletin.

Before bringing readers to the national papers, we would like to make three short points regarding employment discrimination law. First, prohibition of employment discrimination is a valid cause. Nobody will doubt the evils of invidious discrimination, and law can and should play an important role in combating them. Second, on the other hand, anti-discrimination law is a powerful tool in that it condemns the violating employer as the discriminator. While such an effect is absolutely necessary in some areas, the legislator may choose to avoid it in other areas. Third, even under anti-discrimination legislation, substantive equality is not an easy goal to achieve. Employment discrimination law may need to develop new tools and ideas in addition to negative litigation rights of employees. It may also be necessary to improve general labour and employment laws so as to form the basis for substantive equality.

There is no ready-made recipe. Each country has to pursue the best portfolio of measures in view of its own conditions. However, it is definitely necessary and beneficial to learn from the systems and actual experiences of other countries. We believe the following chapters provide invaluable information for this purpose.