Social regulation through anti-discrimination law: the EU and the US compared

Mabbett, Deborah. (2009) Social regulation through anti-discrimination law: the EU and the US compared. In: UNSPECIFIED. (Unpublished)

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Abstract

This paper seeks to derive insights into the effect of economic integration on social policy by looking at the application of anti-discrimination rules to social policy categories. The normative motivation for rules prohibiting discrimination in market transactions can be distinguished from the normative basis for nondiscrimination in the relationship between a government and its citizens in social policy. However, the two spheres are closely related. Judicial decision-making, which is of central importance in a federal or multi-level governance structure, mediates this relationship and creates processes of transmission and spillover from market norms to social policy. The paper traces how these spillovers are handled by reviewing cases that have come before the US Supreme Court and the European Court of Justice. It shows that there are some differences in the legal framework in the two polities but also many similarities. However, the spillover process creates more and harder problems in Europe because welfare provisions at the state level are more developed.

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