“The principle of equality and prohibition of discrimination in employment … is based on the legal and moral proposition that workers who are alike should be treated alike.” Ruth Ben-Israel, Equality and the Prohibition of Discrimination in Employment in COMPARATIVE LABOUR LAW AND INDUSTRIAL RELATIONS IN INDUSTRIALIZED MARKET ECONOMICS 239 (R. Blanpain & C. Engels eds., 7th rev. ed. 1998). We have been reminded, however, that “Persons are never alike in all aspects … [a] decision needs to be made as to which differences matter in order to ascertain whether persons are truly alike.” Dagmar Schiek, Lisa Waddington & Mark Bell, NON-DISCRIMINATION LAW 27 (2007). As these authors point out, groups have often been treated differently, most prominently because of race – or caste – sex, nationality, or religion, which distinctions have been grounded in deeply entrenched social conventions that legitimated such treatment. The commodification of labor mapped on to these conventions giving breathing space for employment policies to track or build upon them. Because disfavored groups could be segregated into less well-paying jobs or paid less for the same work, employers might have an economic basis for discrimination or to indulge co-worker or customer preferences that echo these conventions. See generally Gary Becker, THE ECONOMICS OF DISCRIMINATION (2d ed. 1971). In the political sphere, democratic values found expression in resounding proclamations of equality: in the American Declaration of Independence (1776) (“all men are created equal”), the French Declaration of Human Rights (1789) (“all men are … equal before the law”), and in numerous national constitutions.
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