Editorial

Editorial 17(3)

Some of the weaknesses in the protection offered by discrimination law are considered in this issue in relation to the experience of Nigeria, the UK and the US. Cheluchi Onyemelukwe considers whether persons living with HIV/AIDS are adequately protected by the law in Nigeria and surveys recent changes in the law and their potential impact. While acknowledging recent positive developments, she argues more is needed and recommends an amendment to the federal Constitution to include health status as a protected characteristic. More needs to be done to reduce the stigma and discrimination suffered by persons living with HIV/AIDS. This stigmatisation inhibits efforts to reduce the spread of the disease as individuals living with HIV/AIDS may be reluctant to disclose their status, or to seek treatment. Stigmatisation has also led to unfair treatment on basis of perceived HIV status. Onyemelukwe discusses discrimination in relation to access to health care, employment and education.

Richard Pate revisits the equal opportunity harassment defence in US discrimination law, which treats equal harassment of both genders as an absence of disparate treatment. Pate argues strongly for a rejection of this defence which fails to take account of the realities of a gendered society and the status of female employees. He applies Wittgenstein’s analysis of language, which focuses on the context of language as the source of meaning, to the equal opportunity harasser. As he points out, the ostensive meaning of a word may imply gender neutrality, but once immersed into the social context then the gendered connotations become clear.

Michael Connolly considers the implications of Brexit for one aspect of discrimination law, namely the objective justification defence to claims of indirect discrimination. He discusses relevant domestic and EU jurisprudence on this issue, as well as the approach taken in the US. Connolly contrasts the more liberal approach of the Luxembourg court with that of the domestic courts, which poses a challenge for the UK government’s European Union (Withdrawal) Bill. He argues for a legislative restatement of the test and post-Brexit, for the introduction of a statutory rule of interpretation, requiring a liberal and purposive interpretation of equality law to align the British and EU interpretations and applications of this law.