Article 19 (1) TFEU served as the legal basis for the adoption of the EU Racial Equality Directive (RED), which affords protection against racial and ethnic discrimination in various fields such as employment and education. 3 Although the directive itself states that it does not apply to differences in treatment that are based on nationality, it may be argued that this exception does not concern differences amounting to indirect differential treatment on grounds of racial or ethnic origin. 4 More important, for the purposes of this chapter, is that the directive also does not apply to provisions and conditions concerning the entry and residence of third-country nationals and stateless persons in the territory of Member States. 5 As EU nationals in any case do not have to comply with integration requirements (chapter 6, section II), it must be understood that the RED is of little relevance for the examination conducted in this chapter.
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When does differential treatment apply equally under the law?
Overview. It is illegal discrimination if a person or a company intentionally treats you differently based on your race, ethnicity, or national origin. For example, a landlord violates the law if you apply to rent an apartment and are told that the landlord doesn’t rent to Black people. Likewise, it is illegal for an employer to refuse to hire a person of color because of that person’s race, …
What is differential treatment on the grounds of nationality?
· Title 42, Chapter 21 of the U.S. Code prohibits discrimination against persons based on age, disability, gender, race, national origin, and religion (among other things) in a number of settings - including education, employment, public accommodations, federal services, and more. Chapter 21 is where a number of federal acts related to civil ...
Is differential treatment based on reasonable and objective justification?
· Employee or employer, an attorney can help get you the results you need. Differential treatment is happening all the time in Washington workplaces and across America. Some instances are so subtle that they blur the line between discrimination and an antiquated (but legal) company policy. To help you determine which side of the legal line your ...
Is there a pattern to differential treatment in the workplace?
· The Symposium explored the causes of racial and ethnic disparities in health status and treatment, the history and legacy of racial segregation in health care, and the role that law can play in redressing and reducing these disparities. For the first thirty years after Title VI of the Civil Rights Act of 1964 outlawed racial discrimination by ...
What is the differential treatment?
In the employment context, differential treatment often means that an employer treats a group of employees differently from other groups because of specific characteristics that they are unable to change. If your employer engages in differential treatment, it may be unlawful if it is for a discriminatory purpose.
What does the 14th Amendment say about equality?
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When it comes to classifications on the basis of race The Supreme Court applies the standard of review?
The Court has consistently found that classifications based on race, national origin, and alienage require strict scrutiny review. The Supreme Court held that all race-based classifications must be subjected to strict scrutiny in Adarand Constructors v. Peña, 515 U.S. 200 (1995), overruling Metro Broadcasting, Inc. v.
What is race and the law?
The Race and the Law series is part of Colorado Law's Anti-Racism and Representation Initiative. Announced in July 2020, the initiative includes a broad range of actions and programs to confront racism and advance greater inclusion in legal education and the legal profession.
What does the 15th Amendment say?
FIFTEENTH AMENDMENT The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of ser- vitude.
What is amendment 14 simplified?
The Fourteenth Amendment is an amendment to the United States Constitution that was adopted in 1868. It granted citizenship and equal civil and legal rights to African Americans and enslaved people who had been emancipated after the American Civil War.
When hearing a case on racial discrimination the US Supreme Court employs which standard of review?
Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination. The other two standards are intermediate scrutiny and rational basis review.
Which form of judicial review comes into play when laws are based on a suspect classification?
Overview. Under Equal Protection, when a statute discriminates against an individual based on a suspect classification, that statute will be subject to either strict scrutiny or intermediate scrutiny.
When did race become a suspect classification?
1817, 198 L. Ed. 2d 1010 (1967), scrutinized a Virginia statute that prohibited interracial marriages. The Court noted that race was the basis for the classification and that it was, therefore, suspect.
What is a race of people?
Race is defined as “a category of humankind that shares certain distinctive physical traits.” The term ethnicities is more broadly defined as “large groups of people classed according to common racial, national, tribal, religious, linguistic, or cultural origin or background.”
What are 3 things the 14th Amendment does?
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is the main point and purpose of the 14th Amendment?
The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed.
What is the key phrase in the 14th Amendment that requires the equal treatment for all citizens?
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws".
What are the 3 main clauses of the 14th Amendment?
The amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.
What is differential treatment?
Your employer makes it difficult for disabled workers to complete their job duties. Differential treatment normally occurs in a pattern instead of in a single incident. There are many different scenarios that can happen in your workplace.
What does differential treatment mean in employment?
In the employment context, differential treatment often means that an employer treats a group of employees differently from other groups because of specific characteristics that they are unable to change. If your employer engages in differential treatment, it may be unlawful if it is for a discriminatory purpose.
What happens when employers treat workers differently?
When employers treat workers differently because of their protected characteristics, the actions of the employer are illegal. Employees who have been the victims of workplace discrimination can file discrimination charges with the Equal Employment Opportunity Commission or the state’s corresponding agency.
What to do if you believe you have been treated unfairly?
If you believe that you have been treated unfairly at your job based on a protected characteristic, it is important for you to talk to an experienced employment lawyer at Swartz Swidler. We can analyze the facts of what happened and advise you about whether you have grounds to file a discrimination charge against your employer.
How to report discrimination in a company?
You should start by complaining within your company, according to its policy for reporting discrimination. You should file your internal complaint in writing and keep a copy of it. Make certain that you gather all the evidence that you can. Write down any discriminatory incident that occurs and include the names of any witnesses who were there. Keep copies of any discriminatory emails or text messages, and ask for copies of your performance evaluations. If your company fails to investigate and correct the discriminatory treatment that you have experienced, you can then file a discrimination charge with the EEOC.
What are protected characteristics?
Some of the protected characteristics include the following: Under federal and state anti-discrimination laws, employers are prohibited from discriminating during hiring, interviewing, offering promotions, giving work assignments, giving bonuses, and terminating employees.
Is it illegal to retaliate against someone for discrimination?
Retaliation against people for reporting discrimination at their jobs is also illegal even if your discrimination complaint is found to not have valid grounds. The attorneys at Swartz Swidler can help you to understand the legal rights that you have, including the right to work at a job free from unlawful discrimination.
What is differential treatment on the basis of nationality?
This section examines the legal standards set by the above provisions on differential treatment on the basis of nationality, especially in admission cases. First, however, a preliminary remark is made about the meaning of the term ‘nationality’. In section III.A a distinction is drawn between nationality and the related concepts of alienage and national origin. It is also argued that nationality – unlike national origin – is not a forbidden discrimination ground within the meaning of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Section III.B then assesses whether nationality qualifies as a ‘suspect ground’, which would imply that differentiations based on this ground will require very strong justification. Next, the reasons for justification are discussed in section III.C. As the reasons that could be adduced to justify differential treatment are in principle unlimited, this chapter focuses on the reasons provided by the Dutch government in relation to the AIA. Section III.D discusses Dutch case law with regard to differential treatment on the grounds of nationality, in particular where the AIA is concerned.
What is differential treatment?
It is generally accepted under international law that such distinctions are justified, at least within the context of immigration policy. 44 However, states can also differentiate between aliens of different nationalities, as is the case under the Act on Integration Abroad. In this situation the differentiation ground is also nationality, but the distinction is not between nationals and non-nationals. It is this latter form of differential treatment that is investigated in this section. To avoid terminological confusion, however, the first type of differential treatment (between nationals and non-nationals) is henceforth referred to as ‘differential treatment on the grounds of alienage’. Where mention is made of ‘differential treatment on the ground of nationality’, this refers to a differentiation between aliens.
What is the difference between Article 19 and Article 21?
Article 19 TFEU prohibits discrimination on a limited number of grounds that are not relevant to the topics raised in this chapter. Article 21 (1) of the Charter, on the other hand, applies to discrimination on ‘any ground’. While it can be derived a contrario from Article 21 (2) that this does not include nationality-based discrimination, it is submitted that Article 21 (1) does in principle apply to differential treatment on the grounds of residence purpose. It may further be recalled that the provisions of the Charter apply to acts of the EU institutions, as well as to acts of the Member States, when they implement EU law. 16
What is nationality in sociology?
Nationality in the latter sense is a sociological or ethnographical , rather than a legal concept. 45 For the purposes of this study, however, the term ‘nationality’ is used to indicate the legal bond between a person and a state. 46
What is the principle of equal treatment?
This principle is often conveyed by the formula that ‘equal situations must be treated in the same way and unequal situations must be treated differently to the degree of their inequality’ . 1 Yet the meaning of the equal treatment principle does not lend itself to precise definition. As various authors have noted, the requirement for equal situations to be treated the same way is of a formal nature and does not tell us when two cases are equal or what equal treatment consists of. 2 The determination that situations are equal or unequal always, therefore, rests on a value judgement that is external to the equal treatment principle itself. 3 The same is true with regard to the question of whether a particular form of unequal treatment is nevertheless acceptable because of being based on a reasonable justification (section II.C). Because of this ‘normative indeterminacy’, 4 the equal treatment principle as such provides little guidance with regard to the issues addressed in this chapter. Nevertheless, the principle has been translated into a number of legal norms, including provisions in human rights treaties. Through the formulation and application of such norms, the equal treatment principle has gained content. The relevant legal provisions are described below.
Is nationality a differentiation ground?
The reference to citizenship led Terlouw to conclude that nationality is a differentiation ground covered by the CERD. 52 However, regardless of whether this was in fact the Committee’s intention, adding nationality in the legal sense as a ground to the definition of racial discrimination would be incompatible with the text and history of Article 1 CERD. The same is true with regard to immigration status. The General Recommendation therefore cannot support the conclusion that differentiations on the grounds of nationality should henceforth be brought under the CERD. Such differentiations do, however, fall within the scope of the open non-discrimination provisions of the ECHR, the ICCPR and the Dutch Constitution. The following subsections therefore examine the question of when the differential treatment of aliens can be said to be based on a reasonable and objective justification. Firstly, however, it will be examined whether nationality is a ‘suspect’ differentiation ground, implying that this differential treatment would need to be justified by very weighty reasons.
Is nationality based differential treatment of third country nationals considered a principle of non-discrimination
Other authors have suggested meanwhile that nationality-based differential treatment of third-country nationals could possibly be examined under the principle of non-discrimination, which has been designated by the CoJ as a general principle of EU law. 15 Again, however, there are no indications that the scope of this principle is broader than that of the non- discrimination provisions of the TFEU and the Fundamental Rights Charter.
Why do people suffer unequal treatment?
Many citizens suffer unequal treatment due to their race in various settings including: employment, credit, housing, public accommodations, and voting. To address the issue, law makers enacted several federal laws to combat discrimination. Many states have civil rights laws of their own which mirror those at the federal level, ...
What is the Equal Credit Opportunity Act?
The Equal Credit Opportunity Act grants all applicants an equal opportunity to obtain credit through the anti-discrimination provision. The ECOA prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, familial status, age, and the applicant's use of public assistance.
What is the Voting Rights Act of 1965?
The Voting Rights Act of 1965 (VRA) bans the denial or restriction of the right to vote and forbids discrimination in voting practices on the basis of race and color nationwide.
What is chapter 21?
Chapter 21 is where a number of federal acts related to civil rights have been codified - including the Civil Rights Act of 1866, Civil Rights Act of 1964, and the Civil Rights of Institutionalized Persons Act. Thank you for subscribing!
What is the title of the Civil Rights Act of 1964?
The Civil Rights Act of 1964: Title VII (Equal Employment Opportunities) The Civil Rights Act was a very significant piece of legislation when it was enacted in 1964 and continues to protect individuals against discrimination. The Act has many anti-discrimination provisions including Title VIII of the Civil Rights Act of 1964 ...
Do states have civil rights laws?
Many states have civil rights laws of their own which mirror those at the federal level, and many states extend these protections to LGBT individuals and other classes of individuals in addition to racial minorities. In addition, municipalities like cities and counties can enact ordinances and laws related to civil rights.
Is anti-discrimination law complex?
Whether it is discrimination in education, on the job, housing, public accommodations, or another area, anti-discrimination laws are here to protect you. However, the laws are complex. An experienced attorney can help you determine if you have a valid claim.
What is differential treatment?
As you can see, differential treatment is something that is very specific to the company. That being said, there is usually a pattern (rather than a single instance) to differential treatment.
Is "different" a good thing?
In a Washington employment law context, different is not usually a good thing. Different is an adjective most often used to show how certain employees are being treated differently because of something he or she cannot change about themselves.
Can an attorney help you with discrimination?
Employee or employer, an attorney can help get you the results you need. Differential treatment is happening all the time in Washington workplaces and across America. Some instances are so subtle that they blur the line between discrimination and an antiquated (but legal) company policy.
What are the factors that contribute to the racial and ethnic disparities in health care?
While multiple factors contribute to the racial and ethnic disparities in care--geographic maldistribution of health resources in mostly white neighborhoods, institutional policies of private hospitals and health systems, and patients' trust, knowledge and prior experiences with the health care system-- discrimination by health care professionals plays an important, albeit unconscious and unintentional, role. As Dr. Williams' statistics graphically show, white Americans, as a group, hold negative perceptions about Africans, Hispanics and Asians. Not only do white health care professionals bring these misconceptions to their work, medical care is rendered under the kind of constraints--time pressure, brief encounters, and the need to manage complex, cognitive tasks--that are likely to enhance reliance on negative stereotyping because there is simply not enough time available to get to know each patient.
Why are there no empirical data on race and ethnicity in health care?
The primary reason for the historical dearth of empirical data on racial and ethnic disparities in health care is that researchers did not have access to health services data that included information about patient race and ethnicity. Health care providers are not required to routinely collect and report data about the race and ethnicity of their patients. The United States Department of Health and Human Services (HHS) has the authority under Title VI of the Civil Rights Act of 1964 to require states and providers who receive Medicaid and Medicare to collect and report data on the race and ethnicity of their patients, but the department has declined to impose a regular reporting requirement on federally-funded health care providers.
When did racial discrimination end?
For the first thirty years after Title VI of the Civil Rights Act of 1964 outlawed racial discrimination by federally funded health care providers, only a handful of law review articles struggled to articulate the causes for and the remedies to redress racial disparities in health care access and treatment. Since 1996, however, legal scholarship concerning racial and ethnic disparities in medical care has exploded, fueled by a growing body of empirical research exploring the nature and extent of racial disparities in health care. This Symposium recognizes this symbiotic relationship between law and empiricism, and it has brought the two together for this discussion.
What is the purpose of the Health Care Fairness Act?
Among other things, the Act directed the National Academy of Sciences to conduct a comprehensive study to assess the extent to which racial and ethnic disparities in health care are race-based rather than economic, to identify the causes of these disparities and to recommend interventions to alleviate racial and ethnic disparities in health care. In 2002, The Institute of Medicine issued the report Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care. The report reviews the hundreds of research studies now available and concludes that there are remarkably consistent racial and ethnic disparities across a range of illnesses and health care services that cannot be attributed to economic status or access to care. The report also concludes that institutional and individual racial bias and racial discrimination--albeit primarily of the unconscious and subconscious variety--contribute to these disparities.
What is the requirement that a plaintiff show they are a member of a protected class?
in federal employment discrimination law, the requirement that a plaintiff show they are a member of a protected class, met relevant job qualifications, suffered some adverse job action, and was treated differently with respect to the same issue by an employer. (McDonnell-Douglas Test: 4 steps)
What is the Americans with Disabilities Act?
under the Americans with Disabilities Act, a physical or mental condition that affects a major life activity that limits the ability of a person to perform a particular job function.
What is compensation for past economic losses?
compensation for past economic losses (lost wages and fringe benefits) caused by an employer's discriminatory employment practices, such as limiting promotion opportunities for older workers.
What is a statistical review of workforce categories?
a statistical review of workforce categories to look for evidence of underrepresentation of women and/or minorities; usually performed as part of affirmative action requirements. (gov. contractors must do this.)
What is protected class?
Protected Classes. under Title VII of the Civil Rights Act of 1964, those groups the law seeks to protect, including groups based on race, sex, national origin, religion, and color. Race.
Do employers have to make these for persons with disabilities?
employers must make these for persons with disabilities and are expected to incur expenses in making a position or workstation available to qualified disabled people.
What is indirect differential treatment?
In short, indirect differential treatment occurs if a measure formulated in neutral terms nevertheless disproportionately affects a particular group of persons falling under a relevant differentiation ground. As mentioned earlier, this effect may be caused intentionally, for example where a measure distinguishes between groups on account of their nationality in order to circumvent the prohibition of discrimination on the ground of race or ethnicity. In the context of the legal provisions discussed in this chapter, however, no evidence of discriminatory intent is required: it is the effect rather than the aim of the measure that is relevant. 18 By using the concept of indirect indiscrimination in this way it becomes possible to pursue a more substantive concept of equality (see again section II.V of chapter 8) and to address structural inequalities including, but not limited to those resulting from a history of intentional discrimination. 19
What is scope of review in equality cases?
The issue of the scope of review in equal treatment cases was already addressed in a general manner in chapter 8 (section II.D), when it was established that the scope of review is determined by various factors, specifically including the differentiation grounds at stake. Differences in treatment that are based on grounds of racial or ethnic origin are generally held to require strict scrutiny. 54 This view finds confirmation in the case law of the ECtHR, which has held on various occasions that such differentiations constitute a violation of Article 14 ECHR, unless they are based on a very strong justification. In several cases, the Court stated that where differences in treatment are based on race, colour or ethnic origin, ‘the notion of objective and reasonable justification must be interpreted as strictly as possible’. 55 Another formulation used by the Court is that ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures’. 56 Although the latter criterion appears even more stringent than the former, the Court itself does not seem to make a clear distinction as, in several judgments, both criteria are used alongside each other. 57 Nevertheless it is clear that the Court considers differentiations based on race or ethnic origin to be a particularly serious form of discrimination, which can even amount to inhuman or degrading treatment. 58
What is the Dutch Act on Integration Abroad?
T HE PREVIOUS CHAPTER established that the Dutch Act on Integration Abroad distinguishes between different groups of aliens on the basis of their nationality. This chapter investigates whether this distinction also amounts to differential treatment on the grounds of racial or ethnic origin. Clearly, the Act does not expressly mention racial or ethnic origin as a criterion to determine which aliens must pass the integration exam abroad. As asserted earlier however, the right to equal treatment also entails protection against indirect discrimination. Such discrimination may occur when a certain group of persons is disproportionately affected by a particular measure, even if the measure is not directly aimed at that group (section II.D. of chapter 8).
Scenarios of Differential Treatment That Might Be Unlawful
Types of Differential Treatment That Are Not Illegal
- There are some cases in which differential treatment at your work is lawful. For example, if your employer treats you poorly because of your job performance, that is not unlawful. Employers are allowed to treat workers differently based on their individual job performance and can discipline and reward them differently based on that. It is also not unlawful for an employer to treat an em…
Treatment That Is Discriminatory in Nature
- When your employer treats workers differently because of their protected characteristics, the differential treatment is discriminatory and illegal. Some of the protected characteristics include the following: 1. Race 2. Color 3. National origin 4. Age 5. Gender 6. Disability 7. Pregnancy status 8. Sexual orientation Under federal and state anti-dis...
What Can You Do If You Have Received Discriminatory Treatment?
- When employers treat workers differently because of their protected characteristics, the actions of the employer are illegal. Employees who have been the victims of workplace discrimination can file discrimination charges with the Equal Employment Opportunity Commission or the state’s corresponding agency. Once a charge has been filed, the EEOC will investigate it. If the employe…
B. The Right to Equal Treatment – Relevant Legal Provisions
C. Justification of Differential Treatment
D. Scope of Review and The Relevance of ‘Suspect Grounds’
E. Formal and Substantive Equality and Indirect Differential Treatment
A. Preliminary Remark: Nationality, Alienage and National Origin
- i. Nationality and Alienage
Differential treatment on the grounds of nationality may take various forms. In the first place, a state may differentiate between persons who are nationals of that state and persons with the nationality of other states (‘aliens’). It is generally accepted under international law that such dist… - ii. Nationality and National Origin
From a legal perspective the distinction made above is significant because, as is submitted here, nationality as a legal status is not included in the definition of ‘racial discrimination’ provided in Article 1(1) of the CERD.47 While this definition mentions ‘national origin’, this term does not ref…
B. Is Nationality A ‘Suspect Ground’?