'Disparate Impact' and 'Indirect Discrimination’: Assessing Responses to Systemic Discrimination in the U.S. and the E.U.

European Journal of Human Rights 3/2015

28 Pages Posted: 21 Apr 2015 Last revised: 24 Sep 2016

See all articles by Ioanna Tourkochoriti

Ioanna Tourkochoriti

Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: April 20, 2015

Abstract

The paper analyses the differences in the understanding and application of the idea of disparate impact, which originated in the U.S. and is being applied within the E.U. As a legal transplant, the idea of disparate impact operates differently in the new legal context. The operation of the idea is affected by the wider philosophy and the goals of Employment Discrimination Law in the U.S. and the E.U. Although the U.S. legal order is primarily oriented towards integrating employees into the labor market, the EU conception encourages the member states to engage in wider redistributive policies concerning salaries and welfare benefits. In the US the doctrine of disparate impact operates as a limit to the employment at will doctrine dominant in US Employment Law, whereas in the EU the doctrine has served as expanding the benefits afforded to employees as an indispensable element of the free movement of persons.

Keywords: disparate impact, indirect discrimination, U.S., E.U., Court of Justice of the European Union

Suggested Citation

Tourkochoriti, Ioanna, 'Disparate Impact' and 'Indirect Discrimination’: Assessing Responses to Systemic Discrimination in the U.S. and the E.U. (April 20, 2015). European Journal of Human Rights 3/2015, Available at SSRN: https://ssrn.com/abstract=2596624

Ioanna Tourkochoriti (Contact Author)

Harvard Law School ( email )

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HOME PAGE: http://scholar.harvard.edu/tourkochoriti

National University of Ireland, Galway (NUIG) - School of Law ( email )

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University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

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Berkeley, CA 94720-7200
United States

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