Conceptualization of Equality and Non-discrimination as Legal Standards

Titia Loenen is Emeritus Professor of Human Rights and Diversity at Leiden University. She holds degrees in history and law. She has published extensively on human rights, equality theory, international, European and Dutch non-discrimination law

• AcknowledgementsAbbreviations1 Introduction1.1 Goal and Approach of the Book1.2 Methods1.3 Terminology1.4 Outline of the Subsequent Chapters2 Historical Background and General Characterisation of Equality as a Legal Concept2.1 Introduction2.2 Historical Development of Equality as a Legal Concept2.3 Equality as a Legal Standard – Conceptual Scope: What Equality?2.4 Equality Standards, Separation of Powers Principles and the Role of Courts2.5 Horizontalization of Equality Standards2.6 Equality and ‘Dominant Standards’ in Law and Society – the Limits of Law in Addressing Systemic Discrimination2.7 Concluding Remarks3 Formal and Substantive Equality3.1 Introduction3.2 Formal Equality: Like Cases must be Treated Alike.3.3 Difficulties and Limitations of a Formal Equality Approach3.4 Substantive Equality: Like Cases must be Treated Alike and Unalike Cases must be treated Unalike in Proportion to their Unalikeness.3.5 Difficulties and Limitations of a Substantive Equality Approach3.6 Concluding Remarks4 Discrimination – General Features4.1 Introduction4.2 Non-Discrimination as a Specific Articulation of Equality4.3 Identifying Sensitive or Protected Grounds4.4 Discrimination Review – Justifying Difference in Treatment on the Basis of a Protected Ground4.5 Difficulties and Dilemmas of Ground-Depending Differentiated Review4.6 Concluding Remarks5 Indirect Discrimination5.1 Introduction5.2 Development and General Features of Indirect Discrimination5.3 Potential Reach of the Concept of Indirect Discrimination – Addressing Structural and Systemic Discrimination5.4 Difficulties and Dilemmas of Indirect Discrimination Review5.5 Inherent Limitations of the Concept of Indirect Discrimination in Addressing Structural Disadvantage and Systemic Discrimination5.6 Concluding Remarks6 Lack of (Reasonable) Accommodation as a Modality of Discrimination6.1 Introduction6.2 Grounding (Reasonable) Accommodation: Treating Unalike Cases Unalike in Accordance with their Unalikeness6.3 Lack of Accommodation as a Form of Indirect Discrimination6.4 Lack of Accommodation as a General, sui generis Modality of Discrimination6.5 Lack of Accommodation as a Particular, sui generis Modality of Non-Discrimination: the CRPD-Model6.6 Difficulties and Dilemmas of Applying the Concept of (Reasonable) Accommodation6.7 Concluding Remarks7 Positive Discrimination or Positive Action7.1 Introduction7.2 General Features7.3 Legitimacy, Instrumentality and Legality7.4 Positive Discrimination or Positive Action Review7.5 Difficulties and Dilemmas of Positive Discrimination or Positive Action Review7.6 Concluding Remarks8 Intersectional Discrimination8.1 Introduction8.2 General Features8.3 Intersectional Discrimination Review8.4 Concluding Remarks9 Concluding Reflections9.1 Introduction9.2 The Increasing Reach of Equality as a Legal Standard – Its Interconnecting Function9.3 The Central Role of Judicial Bodies9.4 From a (More) Formal towards a (More) Substantive Approach9.5 Increasing Complexity – an Ongoing ProcessBibliographyOverview Case LawIndex