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date: 11 April 2021

Equality of Treatment, Opportunity, and Outcomes: Mapping the Lawlocked

  • Alain KlarsfeldAlain KlarsfeldHuman Resources Management & Business Law, TBS Business School
  •  and Gaëlle Cachat-RossetGaëlle Cachat-RossetÉcole de relations industrielles, Université de Montréal

Summary

Equality is a concept open to many interpretations in the legal domain, with equality as equal treatment dominating the scene in the bureaucratic nation-state. But there are many possibilities offered by legal instruments to go beyond strict equality of treatment, in order to ensure equality of opportunity (a somehow nebulous concept) and equality of outcomes. Legislation can be sorted along a continuum, from the most discriminatory ones (“negative discrimination laws”) such as laws that prescribe prison sentences for people accused of being in same-sex relationships, to the most protective ones, labeled as “mandated outcome laws” (i.e., laws that prescribe quotas for designated groups) through “legal vacuum” (when laws neither discriminate nor protect), “restricted equal treatment” (when data collection by employers to monitor progress is forbidden or restricted), “equal treatment” (treating everyone the same with no consideration for outcomes), “encouraged progress” (when data collection to monitor progress on specific outcomes is mandatory for employers), and mandated progress (when goals have to be fixed and reached within a defined time frame on specified outcomes). Specific countries’ national legislation testify that some countries moved gradually along the continuum by introducing laws of increasing mandate, while (a few) others introduced outcome mandates directly and early on, as part of their core legal foundations. The public sector tends to be more protective than the private sector. A major hurdle in most countries is the enforcement of equality laws, mostly relying on individuals initiating litigation.

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