Equality from first principles?

[purpletigron]

So ... how about axioms-based equality laws? Where should the lines lay in law for illegal discrimiation?

For example, if the core tasks of a job require the employee to do X, and a candidate for that job cannot currently do X, nor reasonably be expected to be able to do X even with realistic training, technological support etc., then it would presumably be justifiable not to consider them further for employment.

Where can we draw legal lines from first principles?

What would be your fundamental determining principles for when differential treatment is justified?

Comments

[vicarage.livejournal.com]

For a any skill, if the job requires X and a candidate does not possess the skill, the employer can look elsewhere, unless they view the role as a development one, and advertise it as such.

For equality the secret must be stopping the employer inventing spurious or post-hoc requirements that stop some people being considered.

For many jobs multiple candidates meet the stated requirements, and the employer chooses by how much they exceed them, and I guess its much harder to prevent prejudice at that level of intangibles. Its never going to be practical to write a job spec that always gives exactly one suitable candidate, which is the kind of requirement needed for a legalistic approach.

You might hope that with 'equal' candidates a good employer might choose the more 'unusual' one, to redress the balance of fairness in the world, but I think that's a moral choice, not a legal one

[purpletigron.livejournal.com]

"For a any skill, if the job requires X and a candidate does not possess the skill, the employer can look elsewhere, unless they view the role as a development one, and advertise it as such."

I believe that the current situation in UK employment law would be like that for attributes (not limited to skills) listed as 'Essential' in the job role advertised.

"Its never going to be practical to write a job spec that always gives exactly one suitable candidate, which is the kind of requirement needed for a legalistic approach."

I don't think I agree: I agree that it's not practical to write a job specification to give exactly one suitable candidate a priori - unless you're pulling a fix! I disagree that 'identify exactly one suitable candidate' should be the aim of a job specification :-)

ETA: Challenge zero, facilitate applications from a range of candidates fairly reflecting the distribution of suitable potential applicants.

Challenge one, the employer has to fairly identify the 'suitable candidate' pool from the set of all applicants.

Challenge two, the employer has to fairly identify one 'first choice candidate' from the set of suitable candidates. It may be that a truly random method may be the only fair way to approach challenge two?

Just to be clear I wasn't intending to limit this discussion to employment law. In most situations, there will be clearly valid reasons for differential treatment, and clearly invalid discrimination. I'm wondering whether reasonably formal logical thinking from axioms will help us map 'differential treatment space'.

[drplokta]

Can do the job/Can't do the job is unrealistically binary. Suppose a candidate can do the job 10% as effectively as an ideal candidate? 50%? 90%? 99%? Where do you draw the line?

[showingup.livejournal.com]

And maybe sometimes it's worth employing different people to do different parts of the "same" job as a team - hiring 2 people who are tremendously good at one aspect of the same job to work together might do more for your business than 1 person who's pretty good at the whole thing, in some cases.

[tobyaw]

I think there is a much more basic process at work in choosing between employment candidates: will a given candidate work well within the existing team? Employers must discriminate using their judgement of a candidate's enthusiasm, ability, honesty, reliability, potential, social skills, presentation, and a whole slew of other attributes beyond a checklist of their qualifications and career history. I don't think these attributes lend themselves to theories of equality.

People are so much more than a sum of their past achievements, their sexuality, or their social or racial background. Employers should treat them as individuals; who they are, not what they are.

Having been applied for jobs with both private and public sector employers, I found that the public sector (universities and councils) did a very good job of dehumanising the application process. I found this quite unpleasant.