Jenkins v. Kingsgate and the Migration of the US Disparate Impact Doctrine in EU Law
EU Law Stories, Bill Davies and Fernanda Nicola ed., Cambridge University Press (2017)
30 Pages Posted: 12 Feb 2016 Last revised: 26 Oct 2017
Date Written: February 11, 2016
Jenkins v. Kingsgate is a landmark case of the Court of Justice of the EU (CJEU) that demonstrates the travel and change of legal ideas as they migrate from the United States (US) to the European Union (EU). By discussing the idea of “indirect discrimination” in reference to the US experience, Jenkins consolidates the notion of dispelling discrimination due to the adverse impact of a neutral rule or policy. In Jenkins, Advocate General Warner of the CJEU referred explicitly to the US Supreme Court case Griggs v. Duke Power Co. to trace a parallel between the situation of African Americans in the United States and women in Europe. The story of Jenkins is a stark example of the migration of legal ideas, which operates in a different way in the new context. The paper analyses Jenkins and proposes an interpretation of the divergence in the operation of the same concept in the US and the EU. A key factor in this story is the radically different conception of the role of the government on either side of the Atlantic. Jenkins is in line with wider EU policies favoring an idiosyncratic combination of free market liberal economy that promotes social inclusion. This combination demonstrates an acceptance of state interventions in the EU that is much greater than what is acceptable in the US, where the government cannot define wages in a way that appears “just”.
Keywords: indirect discrimination, disparate impact, US, EU, UK, Jenkins v. Kingsgate, Griggs v. Duke Power Co.
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