The Judicial Handling of Discrimination. Are Some Grounds more Equal than Others? Belgium as a Case-Study
(2022) Global Meeting on Law and Society, Law & Society Association — Location: ISCTE University Institute of Lisbon (13.July.2022)
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- Abstract
- Social scientists and legal scholars in various countries have recurrently come to the conclusion that litigation as a means to tackle discrimination lacks effectiveness. This finding, however, is generally based on an overall assessment of anti-discrimination litigation ignoring the internal diversity of this case-law. This diversity stems in particular from the multiplicity of prohibited grounds of discrimination. The aim of this paper is to cast light on these variations, taking Belgium as a case-study. We explore this question based on two methods: first, we conducted a statistical study of the judgments issued by Belgian courts in relation to discrimination based on the six prohibited grounds of discrimination under European Union law (sex, race or ethnic origin, disability, religion, sexual orientation and age) over a period of ten years (2010-2019); second, we carried out a content analysis of a portion of this case law (2015-2019, employment discrimination). Our statistical analysis clearly shows a significant disparity in the rate of success of cases depending on the ground at stake, ranging from 48 % of success rate for cases relating to gender to 5,8 % for religion-related cases, before employment tribunals. Through our content analysis, we explore to what extent these differences can be explained by two range of factors: (1) differences in the legal rules applicable to each ground; (2) differences in the attitudes of judges which, we hypothesize, may echo differences in the perceived legitimacy of claims associated with each ground in the overall society. Our findings show the importance of taking “inter-grounds differences” into account to arrive at a more refined understanding of the difficulties raised by the judicial handling of discrimination.
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Ringelheim, J., Struelens, O., & Vrielink, J. (2022). The Judicial Handling of Discrimination. Are Some Grounds more Equal than Others? Belgium as a Case-Study. Global Meeting on Law and Society, Law & Society Association, ISCTE University Institute of Lisbon. https://hdl.handle.net/2078.5/269094