Family, law and gender : a study of masculinity and law

The removal of discrimination between women and men in the workplace,
in order to open up equality of opportunity in employment, is a measure
of social policy regarded as desirable by makers of law and policy in
Western liberal democracies, including the four legal systems examined in
the present study. Legislative provisions with the specific purpose of
removal of sex discrimination in employment have been in place in those
legal systems for a number of years: since the 1960s, in the case of the
United States of America (Civil Rights Act 1964), since the 1970s, in the
case of the United Kingdom (Equal Pay Act 1970), since the 1980s, in the
case of the Federal Republic of Germany (EG-Anpassungsgesetz 1980) and,
in the case of the European Community, since its foundation in 1957
(Treaty of Rome, Article 119).
Now that comprehensive legislation with the purpose of removal of sex
discrimination in employment is in place, in the four legal systems
examined, attention should be focused on the effectiveness of the
legislation and on proposals for its continued improvement. The
effectiveness of a particular aspect of the general legislative provisions
concerning sex discrimination in employment is the focus of the present
study. The issue with which the study is concerned is that of exceptions
to the rule of non-discrimination, or 'justifications' for discriminatory
behaviour in the employment sphere. It is common ground that any
statement of general principle (including the principle of nondiscrimination on grounds of sex) will be subject to exceptions. The
exceptions form the subject of the present study. Exceptions to a
general principle should be applied in such a way as to avoid
undermining the core principle. The study seeks to explore qualifications
to the general principle of non-discrimination in employment, and to refine
those qualifications, so as to protect the application of the general
principle.

Justifications for sex discrimination in employment : a comparative study of the law of the European Community, in the United Kingdom, the United States of America and the Federal Republic of Germany.

In legal theory, several authors have reflected on the role of precedent in judicial reasoning. The model of principles is one way to explain it and Ronald Dworkin’s legal interpretivism is a prominent example of this model. This article reconstructs the fundamental implicit and explicit elements that structure interpretivism as a theoretical proposal, seeking to explain the concept of precedent it contains in order to identify its scope, possibilities and finally, the potential questions it poses.

/pdf/el-precedente-judicial-en-el-interpretativismo-juridico-de-3fcvjjeo84.pdf

El precedente judicial en el interpretativismo jurídico de Ronald Dworkin

Ronald Dworkin: Contents

. This article attempts to demonstrate, via the famous Hart-Dworkin debate on the nature and functions of judicial discretion, that substantial jurisprudential disputes as well as theories can, and do, arise from misconceived critiques, whether intended or otherwise. It also seeks to show that, whilst Dworkin's initial critique of Hart was misconceived, his theory of adjudication that arose as a result of responses to his initial views is a positive contribution to learning, although 1 argue that Dworkin's views are not, in the final analysis, sufficiently persuasive to constitute a radical departure from Hart's own views.

Jurisprudential Oaks from Mythical Acorns: The Hart‐Dworkin Debate Revisited

https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1980.tb01581.x

A note on dworkin and precedent

The Sex Discrimination Act 1975 requires that men and women receive equal treatment irrespective of their sex in defined contexts. One of the more difficult problems posed by such a principle is to decide in what circumstances physical and social differences between men and women are relevant in determining whether equal treatment has been accorded. Section 7 of the 1975 Act defines when being a man, or being a woman, is a 'genuine occupational qualification' (or 'GOQ') making sex discrimination lawful in the context of employment. The manner in which Parliament recognized sex differences in section 7, and the way in which courts and tribunals have applied section 7, tell us a great deal about the extent of our commitment to equality for men and women.

When is sex a genuine occupational qualification

It is one of the many paradoxes of sex discrimination law that while women have been systematically denied employment and other opportunities because they are, or might become, pregnant, industrial tribunals and the Employment Appeal Tribunal (EAT) have yet to accept that adverse treatment on grounds connected with pregnancy can constitute a violation of the Sex Discrimination Act 1975Section I(I) of the 1975 Act defines direct and indirect discrimination, which the Act makes unlawful in the contexts of employment, education and the provision of goods, facilities, services and premises. A person directly discriminates against another (under section i(I)(a)) when 'on the ground of her sex he treats her less favourably than he treats or would treat a man'. There are, then, two elements to the claim of direct discrimination. The complainant must show that she was accorded less favourable treatment than that which the defendant gives, or would give, to a man. And she must prove that the less favourable treatment was on the ground of her sex. Section 5(3) of the 1975 Act emphasizes the nature of the comparison to be made when assessing whether less favourable treatment has occurred: 'A comparison of the cases of persons of different sex.. . under section i(i)... must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.'

David Pannick

Papers

A note on dworkin and precedent

When is sex a genuine occupational qualification

Sex discrimination and pregnancy: anatomy is not destiny