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Discrimination at Work

Discrimination at Work: Comparing European, French, and American Law OPEN ACCESS

Marie Mercat-Bruns
Translated from the French by Elaine Holt
With a Foreword by Christopher Kutz
Copyright Date: 2016
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    Discrimination at Work
    Book Description:

    Do the United States and France, both post-industrial democracies, differ in their views and laws concerning discrimination? Marie Mercat-Bruns, a Franco-American scholar, examines the differences in how the two countries approach discrimination. Bringing together prominent legal scholars, including Robert Post, Linda Krieger, Martha Minow, Reva Siegel, Susan Sturm, Richard Ford, and others-Mercat-Bruns demonstrates how the two nations have adopted divergent strategies. The United States continues, with mixed success at colorblind policies, to deal with issues of diversity in university enrollment, class action sex-discrimination lawsuits, and rampant police violence against African American men and women. In France, the country has banned the full-face veil while making efforts to present itself as a secular republic. Young men and women whose parents and grandparents came from sub-Sahara and North Africa are stuck coping with a society that fails to take into account the barriers to employment and education they face. Discrimination at Work provides an incisive comparative analysis of how the nature of discrimination in both countries has changed, now often hidden, or steeped in deep unconscious bias. While it is rare for employers in both countries to openly discriminate, deep systemic discrimination exists, rooted in structural and environmental causes and the ways each state has dealt with difference in general. Invigorating and incisive, the book examines hot-button issues such as sexual harassment; race, religious and gender discrimination; and equality for LGBT individuals, thereby delivering comparisons meant to further social equality and fundamental human rights across borders.

    eISBN: 978-0-520-95958-3
    Subjects: Sociology
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  1. FOREWORD (pp. xi-xii)
    Christopher Kutz

    It is my pleasure to introduce Professor Marie Mercat-Bruns’s work to an American audience in this translation. While the topic of antidiscrimination protections in employment law is of course of very great intrinsic interest, it has a much greater symbolic reach, and I hope that with this translation, Mercat-Bruns’s brilliantly conceived project will find a global audience. For the idea of antidiscrimination is, as Yale Dean Robert Post says in this book, another face of the ideal of the citizen-worker and the attributes of that citizen-worker that are above or below the notice of the state. The conception of the...

  2. Introduction (pp. 1-8)

    Today,discriminationis not a popular term: it reflects past, present, and future wrongs. In our postmodern—and, presumably, postracial—society, the concepts that inspire are equality, liberty,empowerment, capabilities. Those words make people sit up and listen. But Islamophobia, police brutality, antigay hate crimes, unequal pay, sexual harassment, transgender bias, denial of disability rights, and pregnancy discrimination are also sharing the headlines. This book seeks to provide a comparative transatlantic framework of analysis and revisit the question of discrimination in employment in a pragmatic, critical way. The workplace is a strategic venue for confronting discrimination.¹ The setting of this...

  3. Was the Constitution and its interpretation the driving influence and inspiration of antidiscrimination law? In the conversations that follow, American scholars help to deepen our understanding of the climate that produced antidiscrimination law in the United States, evoking the political and social events that shaped its uneven construction, sometimes advancing, sometimes resisting its development, and providing a cultural lens through which to understand the expansion of this law in Europe.

    The constitutional interpretation of the U.S. Supreme Court has played a pivotal role in the civil rights movement, hastening the country toward the Civil War with the landmark Dred Scott...

  4. The Constitution and the origins of antidiscrimination legislation in the United States supply a first level of insight into this body of law, but measures to combat discrimination can be grasped from other angles. The influence of constitutional rights and their interpretation in the United States does not appear to be confined to the pursuit of fundamental rights: often this influence can be felt in the models and paradigms reflected in antidiscrimination law, and that constitutes a rich matter for critical theory.

    Antidiscrimination rules can be assessed through the lens of an existing inventory of models. American scholars have taken...

  5. Litigating direct or disparate treatment discrimination cases is often a question of proving what is in the mind of the employer.¹ Although the defendant may openly admit to discriminatory intent, in most cases he or she will attempt to hide the prohibited motive,² knowing that the adversary system of proof and, in French law, Article 1315 of the French Civil Code³ places the responsibility on the plaintiff for bringing evidence to the attention of the court. In European law, discriminatory intent seems to carry an even greater weight and is regarded not just as a factor but as the primary...

  6. Disparate impact discrimination has been under fire in the United States since the landmarkRicci v. DeStefanocase in 2009.¹ The debate is equally topical in France, where its supreme court, the Cour de Cassation, more recently handed down several rulings recognizing indirect sex discrimination,² in an effort to “flush out more subtle forms of discrimination.”

    European equality law distinguishes between direct discrimination, that is, intentionally treating a person less favorably because he or she has a protected characteristic, and indirect discrimination, which occurs when a general measure that seems to treat people equally on the surface has a disproportionately...

  7. Antidiscrimination legislation in every country contains an enumeration of protected grounds for discrimination, with the list often growing longer with each passing year. This corresponds to the logic of the law, which is rooted in the prohibition of differences in treatment based on specified categories, unlike norms that are derived from the principle of equality. These inventories like the list established by the European Convention for the Protection of Human Rights, are not necessarily exhaustive.¹ And, despite the many grounds listed—more in France than in other countries,² such as the United States²—rarely do they come accompanied with precise...