An International Comparison of the Racial Discrimination Act 1975
Chapter 2: Standing
2.1 Australia
2.2 Canada
2.3 European Union
2.4 United Kingdom
2.5 United States
2.5.1 Standing to Lodge a Complaint – Employment and Housing Discrimination
2.5.2 Enforcement by the Attorney-General
2.5.3 Standing to Initiate a Civil Action
2.6 Key Differences Between Australian and International Regimes
While the prohibition of racial discrimination as an unlawful act is an important step towards its eradication, the effectiveness of such laws ultimately depends on their enforceability. The issue of effective enforcement of anti-discrimination laws is a particularly complex one. In deciding who, when and where parties can seek to enforce the law, legislators must take into account factors such as the impact of discrimination on private rights and the public interest, the special vulnerability of many victims of discrimination, the broad, systemic nature of many discriminatory practices and the need to minimise the cost of enforcement, as well as deciding how such costs should be distributed within society.
The enforcement mechanisms in each of the jurisdictions being examined differ substantially. All four national systems include at least one independent statutory body with an anti-discrimination role; however there is substantial variation in the way these bodies operate, the role they play in the dispute process, and the alternative or additional means of enforcement provided by the courts. Several jurisdictions possess what might be described as a ‘two stage’ process, where a complaint may (or must) go before a discrimination commission before it appears before the courts, and the rules for standing can differ at each stage.
2.1 Australia
Enforcement of the law in Australia involves just such a two stage process. Complaints of race discrimination must first be lodged with the Human Rights and Equal Opportunity Commission (HREOC). HREOC assesses the complaint and attempts to achieve conciliation between the parties. If the conciliation is successful, and the parties enter into an agreement, the process ends at the first stage. If, however, HREOC terminates the complaint on any ground, then any person affected by the complaint (as defined below) may elect to bring an action before the court. A complaint may be terminated for any of a range of reasons; from an assessment by HREOC that it is ill-founded or vexatious, right through to an opinion that the subject matter is of such public importance that it requires public litigation. It may also be terminated on the grounds that conciliation has no reasonable prospects of success.[1] Bringing a complaint before HREOC is thus a prerequisite to litigation, however there is no requirement that HREOC reach any particular conclusion about the merit of the complaint for it to proceed to litigation in the courts.
The test for standing to bring a complaint before HREOC is quite broad, although narrower than the Canadian test discussed below. One or more ‘persons aggrieved’ by the discrimination may lodge a complaint, either on their own behalf or on behalf of a class of similarly aggrieved persons.[2] A non-aggrieved person or trade union can also bring a complaint on behalf of one or more aggrieved persons (though not on their own behalf).[3] Where a complaint is on behalf of a class of persons, it is not necessary for all of them to be complainants, or to give their express consent to the action, but an individual can elect to withdraw from the class by giving notice.[4]
A ‘person aggrieved’ is not defined in the Act, but has been interpreted by the Australian courts to mean a person who “is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance... if his action fails.”[5] This advantage or disadvantage must be beyond that experienced by an ordinary member of the public.[6] Effectively this means that people who have been discriminated against (and those who represent them) have standing to make a complaint, while concerned bystanders and those seeking to uphold public rights, which affect everyone equally, are excluded.
A legal person (such as a corporation) may also be a ‘person aggrieved’ if it is subject to discrimination “by reason of the race, colour or national or ethnic origin of any associate of that corporation”.[7] It must, however, be ‘aggrieved’ in its own right, and not merely have members who are individually aggrieved. For example, if the corporation is denied a lease because of the race of its members it has standing, while if some of its members have been denied services because of their race only the individuals themselves have standing to complain. Non-incorporated associations, with the exception of trade unions, do not have standing to bring a complaint, however the head of such an association may have personal standing to make a complaint on behalf of the individual members whose rights have been infringed.[8]
Once a complaint has been terminated, any person on whose behalf the complaint was lodged (described in the act as an ‘affected person’) has standing to take the complaint before the courts.[9] Thus the plaintiff before the court need not be the same person as the complainant before HREOC. Indeed, in the case of a person or trade union who brings a complaint on behalf of an aggrieved person, the complainant will lack standing in the courts, and only the ‘person aggrieved’ may bring an action on their own behalf.
Unusually, when compared with the other jurisdictions, the Australian Human Rights and Equal Opportunity Commission does not have standing to independently initiate an action for discrimination in the courts. Only once proceedings have been initiated by a person (or persons) affected by the discrimination can HREOC seek leave to intervene or can a Commissioner apply to assist the court as amicus curiae.[10] HREOC does have the power to decide, of its own volition, to inquire into any act or practice that is done by or on behalf of the Commonwealth that might be inconsistent with any human right, or any act or practice that may constitute discrimination in employment. [11] If, as a result of either of these lines of inquiry, HREOC decides that human rights have been violated, it may attempt to achieve conciliation between the parties involved or, where this is not appropriate or does not achieve the desired outcome, may make a report to the relevant government minister.[12] Even where the inquiry reveals acts of unlawful discrimination, however, HREOC cannot initiate legal action against the party concerned.
2.2 Canada
The Canadian system also involves a two stage process of complaint investigation by the Canadian Human Rights Commission, followed by a quasi-judicial hearing before the independent Human Rights Tribunal. In contrast to the Australian mechanism, however, individuals do not have independent access to the second stage of the process, and the Commission alone has the power to bring complaints before the Tribunal. The Commission is thus, under the Canadian system, the ‘gatekeeper’ to the Tribunal process, and the Tribunal can hear only those complaints which have been investigated by the Commission and found to warrant an inquiry.
All complaints made to the Commission must be investigated, unless they are outside jurisdiction, vexatious, or otherwise invalid.[13] If a complaint is well founded, the Commission may appoint a conciliator (independent of the investigator) to assist the parties settle the dispute.[14] If conciliation is unsuccessful or inappropriate in the individual instance, the Commission (after receiving the investigator’s report) may elect to either dismiss the complaint, or to refer it to the Human Rights Tribunal for an inquiry. The Commission then presents the case to the Tribunal, not on behalf of either party, but in the manner it judges to be in the public interest.[15] The parties themselves are also entitled to put their case.[16] Orders made by the Tribunal are enforceable as orders of the Federal Court once they have been registered, and may be reviewed by the Federal or Supreme Court on appeal.
There are few restrictions on standing to make a complaint to the Canadian Human Rights Commission. The law states that “any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file... a complaint.”[17]
The Commission itself is also empowered to bring a complaint on its own initiative, although this power is only very rarely used. This, in part, is because its role in assessing complaints and bringing them before the Tribunal has provoked debate over whether it is possible for the Commission to simultaneously play an adjudicative, investigative and advocative role without being perceived as biased.[18] In 2000, a review of the Canadian Human Rights Act recommended retaining the power of the Commission to initiate complaints, while reducing the potential for conflict by downgrading its role as ‘gatekeeper’ to discrimination complaints, and allowing all complaints to go directly before the Human Rights Tribunal.[19]
The Human Rights Tribunal has affirmed the fact that an individual does not need to be seeking a personal remedy to have standing to bring a complaint under the Canadian Human Rights Act, “indeed the Act does not require the complainant to be the victim of the alleged discriminatory practice” (original emphasis).[20] In such a case, the Act allows the Tribunal to make orders which serve a ‘broader public purpose’ rather than an individual need for compensation. It is also possible for the court to award damages or compensation directly to the victim of discrimination, even if they are not themselves a party to the litigation.[21]
While the grounds for bringing a complaint are broad enough to allow standing to those who are personally unaffected by discrimination, the Commission does have a discretionary power to reject complaints where the victim of the discrimination has not given their consent.[22] It is also necessary in most cases for there to be an identifiable, and not merely hypothetical, victim of discrimination, although with respect to certain grounds of discrimination, including advertising, employment policies and practices, hate messages and the supply of goods and services, the Commission may accept complaints where no individual victim has been identified.[23] Despite its broad powers, it is interesting to note that the Commission itself places emphasis on collecting complaints from victims or their near associates rather than non-involved ‘concerned citizens’.[24]
A complaint may be filed by an individual (including a legal person, such as a corporation), or by a group of individuals. In the Bell Canada case, the Tribunal interpreted this in light of the legislative intention to promote the protection of rights, stating that: “It is our opinion that a liberal and purposive interpretation of the Act supports a conclusion that a union, acting to protect individuals rights as opposed to collective rights can be said to be a ‘group of individuals’ under section 40(1) of the Act.”[25] Thus a non-incorporated association acting to protect the rights of individuals (rather than its own ‘rights’ as an entity) will have standing under the Act.
2.3 European Union
The Racial Equality Directive does not mandate any specific scheme for the enforcement of race discrimination law, but it does set out some minimal requirements relating to standing.
The Directive states that – to the extent it accords with national practice – legal persons as well as individuals should be entitled to seek redress on their own behalf when they suffer discrimination on the grounds of the racial or ethnic origin of their members.[26] With regards to the rights of non-incorporated bodies, article 7 requires that “associations, organisations or other legal entities, which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with” must be allowed to be involved in the enforcement process either “on behalf or in support of the complainant, with his or her approval”. Non-incorporated associations with a ‘legitimate interest’, must thus be allowed to appear on the victim’s behalf (as they do in the Canadian and American system), or to provide ‘support’ to the individual conducting their own case, as in the United Kingdom. Unlike incorporated bodies, the directive does not specifically require that such organisations should be allowed to pursue a claim of discrimination on their own behalf.
Under the Directive, all states are required to establish “a body or bodies for the promotion of equal treatment”.[27] As part of their role, these bodies must be able to “provide independent assistance to victims of discrimination in pursuing their complaints about racial discrimination”.[28] The extent of such ‘support’ is left up to national discretion. As a ‘minimum standard’, the directive does not require that the Commissions be authorised to initiate complaints on their own behalf, or to take up and prosecute complaints on behalf of victims.
2.4 United Kingdom
The Race Relations Act 1976 in the United Kingdom creates two different avenues of enforcement, each of which may operate independently of the other. On the one hand, the Commission for Equality and Human Rights has broad enforcement powers of its own initiative, which do not need to be enlivened by a complaint. On the other hand, an individual may independently bring an action before a court or tribunal, and need not bring the complaint before the Commission unless they wish to receive the Commission’s advice or assistance.
The Commission has a broad power to conduct an investigation into a suspected breach of the Act.[29] Where such a breach is found, the Commission may issue an ‘unlawful act notice’, which requires the recipient to draw up an action plan specifying how future acts of discrimination will be avoided.[30] At any time during the five years after such a plan has been formulated, the Commission may enforce compliance with the plan by applying for an order from the court.[31] Alternatively, the Commission may negotiate an agreement with someone they believe to have committed an unlawful act, which may also be enforced through the courts by means of an injunction.[32] The Commission will also have the power to seek an injunction to restrain a party suspected of being about to commit a discriminatory act.[33]
In certain areas of race-discrimination law, such as discriminatory advertising or instructions or pressure to discriminate, the Commission has sole responsibility to bring complaints before the relevant court or employment tribunal, with suits by individuals being excluded.[34] The Commission also has a broad power to “institute or intervene in legal proceedings” relevant to its functions, giving it the power both to bring its own legal actions with regards to discrimination, and to intervene as an amicus in private legal proceedings.[35] The Commission also plays a role in enforcing the positive duties placed on public bodies, which will be discussed further in chapter 7.
Except in the abovementioned areas of discriminatory advertising and instructions or pressure to discriminate, private individuals may also have standing to bring a civil action in response to discrimination. Under the Race Relations Act 1976, any ‘person’ is entitled to bring a complaint against a respondent who “has committed an act against the complainant”.[36] ‘Person’ is defined according to the Interpretation Act 1978 to include “a body of persons corporate or unincorporated”, however there have been few cases of discrimination against non-natural persons heard by the courts.[37] The requirement of ‘an act against the complainant’ means that only victims of discrimination (whether individual or corporate) have standing to sue, and not other parties acting on their behalf.
In some cases, individuals may have standing to sue before any ‘act’ has been committed against them. Where a collective agreement or rule with respect to employment is discriminatory, or an organisation has discriminatory regulations regarding membership or the bestowal of professional qualifications, an individual may seek to have the rules or regulations declared invalid. In this case, an individual has standing if they can show that the rule “may at some future time have an effect on him” or that they are “genuinely and actively” seeking employment, membership or a professional qualification from the discriminating body.[38]
While a private complainant with sufficient resources or support may go directly to the relevant court or tribunal, individuals may also elect to apply to the Commission for assistance. The Commission will generally offer some advice, and in rare cases may provide further assistance up to and including full representation.[39] The Commission can also arrange access to conciliation services for all interested parties.[40]
Although they are unable to bring representative actions on behalf of others, organisations such as trade unions and anti-discrimination associations are encouraged to play a role in supporting and advising victims of discrimination. While the complaint must be brought by the individual victim, these organisations may be involved in fact finding, preparing the case for litigation and providing advice and legal representation.[41] A large proportion of the Commission’s budget is spent providing funding to such community organisations and associations to increase their capacity to provide this kind of advice and support.[42]
2.5 United States
Unlike in the other jurisdictions examined, the United States does not have a unified system for administering and enforcing federal racial discrimination laws. Instead, a number of different bodies are responsible for different areas of discrimination, such as the Equal Employment Opportunity Commission (EEOC), which deals with employment discrimination, or the Department of Housing and Urban Development (HUD), which administers the laws with respect to accommodation. In other areas, such as the provision of goods and services, no commission exists, but the Attorney-General may play a role in enforcing the law on behalf of the Federal Government.
2.5.1 Standing to Lodge a Complaint – Employment and Housing Discrimination
In the field of employment, a complaint before the Commission may be initiated in two ways. It may be filed ‘by or on behalf of’ a person aggrieved, or by a member of the EEOC on its own initiative. Regardless of whether it is initiated by the Commission or a private party, the complaint is investigated by the Commission and, if found to be well founded, the Commission attempts to effect conciliation between the parties.[43] If conciliation is not successful, the Commission (or the federal Attorney-General, if the respondent is a government or government agency) may bring a civil action against the discriminating party. The original complainant has the right to intervene in the action, but does not have primary responsibility for running the case.[44]
Only after a complaint has been terminated by the EEOC, or the Commission has decided not to commence a civil action, can a private party sue on their own behalf. A private claim may be brought against the respondent by “the person... aggrieved” by or on behalf of whom the complaint was lodged or (where the complaint was made by a member of the Commission) any person the complaint alleges was aggrieved by the unlawful practice.[45] In some cases, a person who was not involved in the initial complaint may still be allowed to bring an action, or to join a class action, if their claim arrises out of similar discriminatory treatment in a similar timeframe.[46] In the case of private actions for employment discrimination, the Commission or the Attorney-General may be granted leave to intervene if they certify that the case “is of general public importance”.[47]
The scheme for enforcing the anti-discrimination provisions regarding housing operates in a broadly similar fashion, with the Secretary for Housing and Urban Development fulfilling the role of the Commission.[48] One key difference is that it is non-compulsory, allowing a prospective litigant to elect to ignore the complaint mechanism and go directly before the court. The housing discrimination complaints system also allows for the charge brought by the Secretary for HUD to be heard by a Housing Department administrative law judge, unless either party specifically elects to have the case heard in the Federal court.
In both cases, a complaint can only be lodged with the Commission or the Secretary by a ‘person aggrieved’ or another person acting on their behalf. The term ‘person’ is broadly defined by both acts, including “one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, or receivers”.[49] All these entities are therefore entitled to lodge complaints on their own behalf and on behalf of others. In an employment discrimination case, the complaint may be brought on behalf of a person whose identity is disclosed only to the Commission, and not revealed to the opposite party.[50]
2.5.2 Enforcement by the Attorney-General
While there are no commissions or other bodies empowered to hear complaints with regards to the remaining grounds of discrimination, the Attorney-General retains the power to take action to enforce the law. In some cases, such as with regards to public facilities and education, the Attorney-General may act only after receiving a complaint from an aggrieved individual or, in the case of education, the parent or group of parents whose children are being discriminated against.[51] In others cases, the Attorney-General may initiate a complaint independently, such as when they perceive a pattern or practice of restricting access to federally protected goods and services or housing, or where they are required to take action in order to prevent discrimination in voter registration.[52]
2.5.3 Standing to Initiate a Civil Action
With the exception of Executive Orders, many of which cannot be enforced by private action, private litigation provides an alternative avenue of enforcement for U.S. anti-discrimination law.[53]
The anti-discrimination statutes prescribe few restrictions on standing;[54] however a potential litigant must satisfy the constitution standing test in order to bring an action before the federal court. This test involves three parts: firstly, the person must show that they have suffered “some threat or actual injury” resulting from the illegal action, such that they have “a personal stake in the outcome of the controversy”; secondly, the interest which is threatened must be “within the zone of interests to be protected” by the statute; and thirdly, the injury must be “likely to be redressed if the relief requested is granted”.[55]
In general, the courts have interpreted these standing requirements quite broadly. For instance, while non-black workers cannot object to a discriminatory hiring policy of their employer on the grounds that it injures black employees, they may be able to claim on the basis that the hiring policy injures their legitimate interest in working in an inter-racial environment and otherwise negatively impacts upon their working conditions.[56] These requirements may nonetheless restrict the parties who can seek to enforce the law, and the types of remedies they can obtain. For instance, it has been held that an ex-employee does not have standing to seek an injunction to force their previous employer to change their current work practices, since the remedy does not redress any particular harm to the interests of the complainant.[57]
As well as being able to bring complaints before the EEOC and HUD, corporations and non-incorporated associations, such as trade unions and anti-discrimination associations may also have standing to bring a court action once the complaint is terminated. An association may sue in its own right if its own interests are affected by discrimination, however these interests are generally confined to economic loss or diminution in membership, and do not include damage to a group’s ‘ideological interests’.[58] Alternatively, an organisation may have standing as a representative of one or more of its members.[59] In the latter case, it is necessary for the members to have standing in their own right, and for the interests which are threatened to be “germane to the organisation’s purposes”. Thus, for instance, a claim based on conditions of employment may be ‘germane to the purposes’ of a trade union, [60] while a claim of sex discrimination would not be ‘germane to the purposes’ of an organisation established to combat racism.[61] It is also necessary to demonstrate that “neither the claim asserted nor the relief requested requires the participation of individual members”. Thus, for instance, a claim for individual compensation may require individual participation in order to prove various elements of the claim, while a claim for general declaratory or injunctive relief may not.[62]
2.6 Key differences between Australian and International Regimes
One of the most notable differences between the Australian enforcement regime and that of other jurisdictions, is that the Australian Human Rights and Equal Opportunity Commission does not have standing to bring an action for discrimination on its own initiative. While this is not one of the minimum requirements laid down by E.U. law, the Commissions in each of the three national jurisdictions examined all have the power to investigate and prosecute racial discrimination without relying on individual complaints. This capacity of the Commission to instigate complaints may be a valuable tool for combating systemic discrimination, establishing legal precedent through test cases and responding to situations where no individual has standing, or where the persons affected lack the resources and initiative to make a complaint on their own behalf. For these reasons, recent reviews of both the Canadian and British legislation have strongly recommended that it be retained.[63] At the same time, the Canadian experience demonstrates that it is important that this power should be consistent with the other roles of the Commission, particularly where the Commission is involved in the adjudication of disputes. Since the adjudicative role of the Australian Commission has, for constitutional reasons, significantly declined in the years since the RDA was originally passed, this could potentially allow scope for the Commission to adopt a larger advocacy role, with greater power to investigate systemic issues and instigate legal action.
The jurisdictions also vary in the extent to which they allow persons who are not affected by the discriminatory conduct to initiate complaints, either on behalf of the victim of discrimination, or simply as a ‘concerned citizen’ or interested bystander. The power to bring a representative action on behalf of the complainant is quite broad in Canada and the U.S., where representative organisations can both make complaints to the relevant Commission and (in certain circumstances) have standing to appear before the court or tribunal. In contrast, the U.K. allows such organisations to play only a supportive role, providing resources and support to the complainant who must act on their own behalf. Australia falls somewhere in between, allowing representatives to bring complaints before the Commission, but allowing only the affected individual to initiate legal action.
Almost no jurisdictions allow a non-involved bystander or witness to discrimination to bring an action if they have not been personally affected and do not represent the victim. Canada is something of an exception to this rule however, as the flexibility of the Canadian complaint process gives the Commission the discretion to accept this kind of complaint, when justice or the public interest so require.
[1] For a list of grounds on which
a complaint may be terminated, see the Human Rights and Equal Opportunity
Commission Act (Cth) 1986 s
46PH.
[2] Human Rights and Equal
Opportunity Commission Act (Cth) 1986 s 46P
(2)(a)(b).
[3] Human Rights and
Equal Opportunity Commission Act (Cth) 1986 s 46P
(2)(c).
[4] Human Rights and
Equal Opportunity Commission Act (Cth) 1986 ss 46PB and 46PC(1). Note
that there are some additional conditions regarding class complaints contained
in ss 46PB and 46PC.
[5] Gibbs J, Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; as
noted in the Human Rights and Equal Opportunity Commission, Federal
Discrimination Law 2005 (2005) at 215.
[7] Mason J, Koowarta v
Bjelke-Petersen, (1982) 153 CLR 236; noted in the Human Rights and Equal
Opportunity Commission, Federal Discrimination Law 2005 (2005) at
217.
[8] Wilcox J, Executive
Council of Australian Jewry v Scully (1998) 79 FCR 537 at 548, noted in the
Human Rights and Equal Opportunity Commission, Federal Discrimination Law
2005 (2005) at 219.
[9] Human Rights and Equal Opportunity Commission Act (Cth) 1986 ss 3
and 46PO(1).
[10] Racial
Discrimination Act 1975 (Cth) s 20 (1)(e); see also Human Rights
and Equal Opportunity Commission Act (Cth) 1986 s
46PV.
[11] Human Rights and
Equal Opportunity Commission Act (Cth) 1986 s11(1)(f) for inquiries
into acts done on behalf of the Commonwealth and s31(b) for inquiries into
discrimination in
employment.
[12] Human Rights
and Equal Opportunity Commission Act (Cth) 1986 s
11(1)(f).
[13] Canadian Human
Rights Act, RS 1985, c H-6, s
41(1).
[14] Canadian Human
Rights Act, RS 1985, c H-6, ss 47 and
48.
[15] Canadian Human Rights
Act, RS 1985, c H-6, s
51.
[16] Canadian Human Rights
Act, RS 1985, c H-6, s
50(1).
[17] Canadian Human
Rights Act, RS 1985, c. H-6, s
40(1).
[18]Canadian Human Rights
Act Review Panel, Promoting Equality: A New Vision (2000) at
chapter 9, http://www.justice.gc.ca/chra/en/frp-c9.html (accessed 4/10/07). See also the litigation over perceived bias in Bell
Canada v. CTEA, CEP and Femmes Action and the CHRC (2 November 2000), No.
T-890-99 (FCA).
[19] Canadian
Human Rights Act Review Panel, Promoting Equality: A New Vision (2000) at chapter 9, http://www.justice.gc.ca/chra/en/frp-c9.html (accessed 4/10/07).
[20] Brigitte Lavoie v. Treasury Board of Canada 2007 CHRT 3, http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=823&lg=_e&isruling=0 (accessed 24/7/07).
[21] Canadian Human Rights Act, RS 1985, c. H-6, s 53(2); see also Groupe
D’Aide et D’Information Sur le Harcèlement Sexuel au Travail
de la Province de Québec Inc. v Barbe 2003 CHRT 24 at para
5.
[22] Canadian Human Rights
Act, RS 1985, c. H-6, s
40(2).
[23] Canadian Human
Rights Act, RS 1985, c. H-6, s 40(5)(b); see also the discussion of this
section in: Canadian Human Rights Act Review Panel, Promoting Equality: A New
Vision (2000) at chapter 14
http://www.doj.ca/chra/en/frp-c14.html (accessed 4/9/07).
[24] See e.g.,
Canadian Human Rights Commission, Filing a Complaint (2003):
“Usually the person who has suffered from the discrimination files the
complaint but, in certain cases, it may be filed by a third party, such as a
relative or a collective bargaining agent”
http://www.chrc-ccdp.ca/publications/filing_complaint-en.asp (accessed 6/10/07).
[25] Communications, Energy & Paperworkers Union, Femmes-Action v. Bell
Canada, Ruling No. 1, Canadian Human Rights Tribunal, File No. T503/2098 at
p. 4
http://www.chrt-tcdp.gc.ca/search/files/t503_2098re_11_29.pdf (accessed 3/8/07).
[26] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22, cl 16.
[27] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin [2000] OJ
L180/22, art 13(1).
[28] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22, art
13(2).
[29] Equality Act
2006 (UK) c 3, s 20. Note that the references here are to the new Commission
for Equality and Human Rights, with the equivalent powers of the Commission for
Racial Equality to be found in the Race Relations Act 1976 (UK) c 74,
parts VII and VIII.
[30] Equality Act 2006 (UK) c 3, s 21. Note that these were referred to as
‘non-discrimination notices’ under the Race Relations Act
1976 (U.K.) c 74, s 58.
[31] Equality Act 2006 (UK) c 3, s
22.
[32] Equality Act 2006 (UK) c 3, s 24.
[33] Equality
Act 2006 (UK) c 3, s
24(1).
[34] Equality Act
2006 (UK) c 3, s 25.
[35] Equality Act 2006 (UK) c 3, s
30.
[36] Race Relations Act
1976 (UK) c 74, s 54(1)(a) and s
57(1)(a).
[37] Interpretation
Act 1978 (UK) c 30, schedule 1; see also commentary in O’Cinneide C, United Kingdom Country Report on Measures to Combat Discrimination (2007)
at 45 http://ec.europa.eu/employment_social/fundamental_rights/pdf/legnet/ukrep07_en.pdf (accessed 3/8/07).
[38] Race
Relations Act 1976 (UK) c 74, ss 72A and
72B..
[39] Equality Act
2006 (UK) c 3, s 28.
[40] Equality Act 2006 (UK) c 3, s
27.
[41] Bodrogi B, ‘Legal
Standing, the Practical Experience of a Hungarian Organisation’ (2007) 5 European Anti-Discrimination Law Review 23 at 25 (comparing UK and
Hungarian practice).
[42] See
‘Getting Results’ funding program, http://www.cre.gov.U.K./about/gettingresults.html (accessed 31/7/07).
[43] 42 USC
§ 2000e-5(b).
[44] 42 USC
§ 2000e-5(f)(1).
[45] 42 USC
§ 2000e-5(f)(1).
[46] See
discussion of Calloway v. Partners National Health
Plans 986 F.2d 446, 61 FEP 550 (11th Cir. 1993) in Larson L,
Employment Discrimination (2006) at
70.03(2)(b).
[47] 42 USC §
2000e-5(f)(1).
[48] See 42 USC
§§ 3610-3614.
[49] 42
USC § 2000e(a); see similarly (with some variation) 42 USC §
3602(d).
[50] 29 CFR
1601.7(a).
[51] 42 USC
§§ 2000b(a) and
2000c-6.
[52] 42 USC §§
2000a-5, 3614 and 1971(c).
[53] See e.g. §§ 2000a-3, 2000b-2 and
2000c-8.
[54] In some cases the
statute refers to a ‘person aggrieved’, which has been interpreted
by the courts as intending to allowing as broad a standing as is
constitutionally possible. See Hackett v.
McGuire Bros., Inc., 445 F.2d 442, 446, 3 FEP 648, 650 (3d Cir. 1971) as
discussed in Larson L, Employment Discrimination (2006) at s
78.01(2).
[55] Larson
L, Employment Discrimination (2006) at s
78.01(2).
[56] Faulk v. Home Oil Co., 173 F.R.D. 311, 74
FEP 807 (M.D. Ala. 1997) as cited Larson L, Employment
Discrimination (2006) at s
78.01(2)(a).
[57] Reese v. Batesville Casket Co. 25 FEP 1472
(D.D.C. 1981), as cited Larson L, Employment Discrimination (2006) at s
78.01(2)(c).
[58] Gutman J. Federal Practice Manual for Legal Aid Attorneys (2006) at
chapter 3 para 1 D 3 http://www.ejustice.org/federal_practice_manual_2006/chapter_3/chap3sec1.html (accessed 1/8/07).
[59] Warth et al v Seldin et al 422 US 490 at
511, referenced in Larson L, Employment Discrimination (2006)
at 78.02(2).
[60] Garcia v Spun Steak Co. (1993, CA9 Cal)
998 F2d 1480, 93 CDOS 5408,
93.
[61] Cox v. Consolidated Rail Corp., 47 FEP 685
(D.D.C. 1987) as discussed in Larson L, Employment
Discrimination (2006) at s
78.02(2)(b).
[62] Hunt v. Washington State Apple Advertising
Comm'n, 432 US 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977) as citied Larson L, Employment Discrimination (2006) at
78.02.
[63] Canadian
Human Rights Act Review Panel, Promoting Equality: A New Vision (2000) at Chapter 9, http://www.justice.gc.ca/chra/en/frp-c9.html (accessed 4/10/07) and B. Hepple, M. Coussey and T. Choudhury, Equality: A
New Framework – Report of the Independent Review of the Enforcement
of UK Anti-Discrimination Legislation (2000) at 4.26, as cited in Harrington
J, ‘Making Sense of Equality: A Review of the Hepple Report’ (2001)
64(5) Modern Law Review 757 at 764.
