A Pluralist Theory of Age Discrimination

Erscheinungsjahr 2022
ISBN: 978-1-5099-4407-1
Verlag: Hart Publishing

Buch, Englisch, 216 Seiten, Paperback, Format (B × H): 154 mm x 232 mm, Gewicht: 340 g

This book provides a comprehensive theory of age discrimination that can guide the direct and indirect age discrimination provisions of the Equality Act 2010. The Act holds that unequal treatment on the grounds of age and measures that are on their face age-neutral but have the effect of disadvantaging particular age groups are lawful only if the treatment can be shown either to be a 'proportionate means of achieving a legitimate aim' or if the treatment fits into a specifically prescribed exception. In this way, the proportionality test distinguishes justified and unjustified age-differential treatment with only the former legally permissible.

This book outlines and defends a pluralist theory of age discrimination that assists in making the distinction between justified and unjustified age-differential treatment. The theory identifies the principles that explain when and why age-differential treatment wrongs people and the principles that can justify this treatment. It is a pluralist theory because it recognises that age-differential treatment can wrong people for a number of different, overlapping reasons, and these different reasons should inform how we apply age discrimination law. The pluralist approach to age discrimination theory can improve legal reasoning in age discrimination cases by articulating the relevant principles and competing interests that are at stake in age discrimination claims.

In constructing the theory, the book adopts the reflective equilibrium method. This requires that we examine our initial moral beliefs about age discrimination by seeking coherence with beliefs we have about similar moral and philosophical issues and revising the initial beliefs as a result of challenges to them. In applying this method, the book identifies the following five principles to form a pluralist theory of age discrimination: equality of opportunity, social equality, respect, autonomy and efficiency.

Autoren/Hrsg.

Goosey, Stuart

Fachgebiete

• Rechtswissenschaften Ausländisches Recht Common Law (UK, USA, Australien u.a.)
• Rechtswissenschaften Arbeitsrecht Antidiskriminierung (AGG), Gleichbehandlung

Inhaltsverzeichnis

1. Introduction
I. Age as a Protected Characteristic

II. The Value of a Theory of Age Discrimination

III. Rejecting Unitary Theories of Discrimination

IV. Towards a Pluralist Theory of Age Discrimination

V. The Scope of this Book

VI. Possible Objections to Courts and Tribunals Using a Theory of Age Discrimination in Adjudication

VII. The Reflective Equilibrium Method

VIII. Criticism of Reflective Equilibrium

IX. The Limitations of Reflective Equilibrium

X. The Structure of this Book

2. The Legal Context

I. The Structure of Age Discrimination Law

II. Proportionality as Moral Reasoning
III. The Possible Implications on Age Discrimination Law of the UK Exiting the European Union
IV. The Proportionality Test in UK Age Discrimination Cases

V. Conclusion

3. Equality Principles

I. A Starting Point for Understanding Equality

II. Strict Equality of Outcome

III. Equality of Opportunity

IV. Choice and Moral Responsibility

V. Problems with equality of Opportunity

VI. Social Equality

VII. Equality of What?

VIII. Conclusion

4. The Wrongs of Discrimination

I. Rejecting Unitary Theories of Discrimination

II. Explaining the Wrong of Discrimination

III. Conclusion

5. Forming a Pluralist Theory of Age Discrimination

I. A Background Theory of Age and Ageing

II. The Efficiency Value of Age-Based Social Organisation

III. Age Discrimination and Equality of Opportunity
IV. Age Discrimination and Social Equality

V. Autonomy and Age Discrimination

VI. Age Discrimination and Disrespect

VII. Conclusion

6. Legislative History of Age Discrimination Law and Its Relevance to Interpreting and Applying the Equality Act 2010

I. The Legality of Using Legislative History in Adjudication

II. Legislative History of Age Discrimination Law

III. Using the Legislative History as Aids in Adjudication

IV. Evaluating the Approach to Age Discrimination Revealed in the Legislative History

V. Conclusion

7. The Pluralist Theory of Age Discrimination and Age Discrimination Claims

I. A Preliminary Account of How the Pluralist Theory of Age Discrimination can Assist Age Discrimination Claims

Stage 1: Does the Impugned Treatment Engage the Direct or Indirect Age Discrimination Provisions?

Stage 2: Is the Impugned Treatment Suitable for Achieving a Legitimate Aim?

Stage 3: Is the Treatment Necessary to Achieve the Legitimate Aim?

Stage 4: Is the Seriousness of the Interference with the Claimant's Interests Proportionate to the Benefits Gained in Pursuit of the Legitimate Aim
II. Visual Representation of the Four Stages of Settling Age Discrimination Claims

III. Comparing and Contrasting the Approach of the Pluralist Theory of Age Discrimination to the Approach Adopted by the UK Cases

A. Seldon v Clarkson Wright and Jakes

B. Lockwood v Department of Work and Pensions & Anor

C. White v Ministry of Justice

D. Homer v Chief Constable of West Yorkshire

E. Woodcock v Cumbria Primary Care Trust

IV. Conclusion

8. Healthcare Rationing and the Pluralist Theory of Age Discrimination

I. NICE's Anti-discrimination Duties under the Equality Act 2010

II. NICE's Use of the QALY Method can Engage the Indirect Age Discrimination Provisions

III. The Proportionality of the QALY Method

Stage 1: Does the QALY Method Pursue a Legitimate Aim?

Stage 2: Is the QALY Method Necessary to Achieve the Legitimate Aim?

Stage 3: Is the Gain in Efficiency Secured by the QALY Method Enough to Justify the Disadvantaging Impact
of the QALY Method on Older People?

IV. Conclusion

9. Conclusion

I. Summary of the Pluralist Theory of Age Discrimination

II. How the Pluralist Theory Assists in Age Discrimination Claims

III. The Role of Moral Reasoning in Adjudication

IV. How I Arrived at the Pluralist Theory of Age Discrimination
V. The Value and Limitations of Reflective Equilibrium as a Method for Investigating Legal Issues

VI. The Implications for the Pluralist Theory of Age Discrimination for Understanding the Concept of Discrimination More Generally

VII. The Usefulness of the Pluralist Theory of Age Discrimination in Relation to Systems Other than the UK

VIII. The Value of the Pluralist Theory of Age Discrimination for Identifying which Grounds should be Protected under Discrimination Law

IX. The Pluralist Theory of Age Discrimination and Political Debate

Über Autor(innen)

Goosey, Stuart
Stuart Goosey is Lecturer at the University of Leeds School of Law.