- Research Handbooks in Comparative Law series
Edited by Matthew W. Finkin and Guy Mundlak
Chapter 8: The lasting influence of legal origins: Workplace discrimination, social inclusion and the law in Canada, the United States and the European Union
This chapter will compare laws in Europe and North America seeking to eliminate discrimination and to achieve greater social inclusion in the workplace. While descriptive comparisons covering these subjects have been available for some time, there has been little analysis aimed at explaining international similarities and differences. We contribute to filling this gap. We show how fundamental differences in the way that different legal systems apprehend the concepts of workplace discrimination and equality emerged notwithstanding the shared influence of United States (U.S.) equality rights jurisprudence. We then consider the very different roles of law and government in fostering social inclusion in Canada, the European Union (EU) and the U.S. We argue that the different types of discrimination addressed in precedent setting anti-discrimination cases in each jurisdiction led courts and legislators in Canada, the U.S. and Europe to develop legal principles and concepts first articulated in the U.S. in very different ways. Specifically, the focus of U.S. jurisprudence on race, Canadian jurisprudence on religion, and European jurisprudence on sex discrimination led eventually to the development of different paradigms of anti-discrimination law. In the U.S. the dominant paradigm became one of colour-blindness, whereas in Canada and the EU the paradigm was one of difference-consciousness. These paradigms shaped the ways in which discrimination was understood to arise, and how it should be remedied.
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