[lit-ideas] Re: Hartiana
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 19 Mar 2015 08:39:51 +0000 (UTC)
>With all Donal's heavy lifting, in the end it is as if an elephant has given
>birth to a mouse: the silly "top law firm" has not noticed ("less favourable"
>than what?) that the pregnancy-law's set of potentially disadvantaged persons
>is not coextensive with that of the gender-law since the former also includes
>members of the same gender, i.e. women who are treated less favourably than
>other women on the grounds of their pregnancy. But Donal doesn't spell that
>out. He practically has to leave it vague and write ambiguously for it to at
>least sound and look like he and his approach are solving (serious) problems
>(like the one that I just solved by spelling out the reason for having this
>separate law).>
At this above point in Richard's post, I was relieved to find (after all the
heavy lifting), it is as if an elephant has finally given birth to a mouse.
For it is mistake to suggest that the reason we have a separate law for
pregnancy is because "the pregnancy-law's set of potentially disadvantaged
persons is not coextensive with that of the gender-law since the former also
includes members of the same gender, i.e. women who are treated less
favourably than other women on the grounds of their pregnancy." No, no, no.
The reason we have a separate law is because "less favourably" is measured
differently (as my post indicated) and not merely because it is the same
measure applied to pregnant women as a subset of women generally (which subset,
in Richard's contention, then gets its own special section so they are
protected against being treated worse than non-pregnant women). [That the
measure or standard is different, and not merely that pregnant women are
protected against being treated worse than non-pregnant women, follows from the
European Court ruling in Dekker, btw - and the Dekker ruling prompted the
introduction of a special section for pregnancy in English law.]
Let me try to explain. In a call centre there are set numbers of toilet breaks
for all workers of a class, both male and female - say one 5 minute toilet
break every two hours. Because of her pregnancy, a woman has increased urinary
frequency. Because of medical reasons unrelated to pregnancy, another woman has
increased urinary frequency. Because of similar medical reasons, a man has
increased urinary frequency. All three need to go to the toilet more -
sometimes much more - than once every two hours. In the case of the
non-pregnant woman and the man, they have no claim in law for discrimination
provided they are treated the same as each other: legally they form one
category. So if both are disciplined to the same standard (say by having pay
deducted for their increased use of the toilet), neither has any legal
complaint.
The pregnant woman falls into a different category entirely, where she gets
"special protection" and cannot be disciplined for her increased use of the
toilet (unlike the non-pregnant female and the male who can be disciplined).
How can this be? How can the pregnant woman claim that she is treated "less
favourably" than the non-pregnant woman when she is disciplined to the same
standard by having pay deducted for her increased use of the toilet? The answer
is that she cannot claim she is treated "less favourably" than the non-pregnant
woman. Yet she has "special protection". This refutes Richard's contention that
the "special protection" arises to protect a pregnant woman from being treated
"less favourably" [i.e. worse] than a non-pregnant woman. The pregnant woman is
treated "less favourably" not by comparison with a non-pregnant woman or a man
but by comparison with herself were she not pregnant: in other words, this law
operates to treat "pregnancy-related disadvantages" [like increased urinary
frequency] as having to be off-set to put the woman in the same position that
she would have been in if she were not pregnant.
This is the same approach taken in disability law: and pregnancy is treated
akin to disability, though it is too temporary to qualify as a disability under
disability laws. In fact, "special protection" for pregnancy is greater than
the protection given disabled people (at least in England).
Disability law also uses the "less favourably" formula. Consider a case where a
person in a wheelchair cannot easily access a building with many high steps,
and would need a wheelchair ramp to have easier access. Can those running the
building deny there is any legal case for a ramp by saying the disabled person
is not being treated "less favourably" since they have access to the exact same
high steps that more able-bodied people use? Are we saying that a claim for
disability discrimination in this sort of case could never be based on the lack
of special provision for the disabled, but could only occur if, say, the people
running the building trained watercannon on disabled people trying to force
their wheelchairs up the steps but did not train this watercannon on
able-bodied people trying to enter?
Richard hasn't thought the problems through i.e. adopted a sufficiently
problem-solving approach. If Richard had, he might have seen that just as
disabled people can claim discrimination where there is no special provision to
offset their disadvantages, so pregnant women can claim discrimination where
there is no special provision to offset their pregnancy-related disadvantages:
each are treated "less favourably" where there is no required* offset for their
disadvantages. This way of measuring "less favourably" is entirely (dare I say
it "utterly") different to how "less favourably" is measured between the
genders generally - in the latter case "less favourably" is measured simply by
whether you are treated worse than others of the opposite gender. In the case
of pregnancy and disability, how non-pregnant and non-disabled others are
treated is beside the point.
Dnl*What is required is assessed more strictly for pregnancy than for disability
On Thursday, 19 March 2015, 4:55, Richard Henninge
<RichardHenninge@xxxxxxxxxxx> wrote:
----- Original Message ----- From: Donal McEvoy To: lit-ideas@xxxxxxxxxxxxx
Sent: Wednesday, March 18, 2015 11:54 PM Subject: [lit-ideas] Re: Hartiana
Donal writes: ...
A short example from English law may illustrate this last point. There is an
English law prohibiting discrimination on grounds of gender and another law
prohibiting discrimination on the grounds of pregnancy: and they both use the
same formula of prohibiting "less favourable" treatment on these grounds. I
know of an example where a top law firm here has advised as if these two laws
are to the same effect - which might seem to be the case if we take a "literal"
approach, and conclude, from the fact they use the same wording, that they must
have the same "meaning" and therefore the same effect.
This turns out to be utterly incorrect: but it should be obvious to a skilled
lawyer, just looking at the two sections, that it could hardly be correct: for
the simple reason that pregnancy is gender-specific, so if the pregnancy-law
were to the same effect as the gender-law, it would be an utterly redundant law
- because whatever was pregnancy-discrimination would ipso facto be gender
discrimination.
The correct interpretation arises from considering why we need a special law
for pregnancy - what special problems, beyond general gender discrimination, is
such a law seeking to solve? Then we may see that the expression "less
favourable" leaves out the standard by which this is measured ["less
favourable" than what?]: so that if that standard differs, between pregnancy
cases and other gender-specific cases, the pregnancy-law must have a different
effect even though it has identical wording. And the rationale of having a
special law for pregnancy must be that the standard is different. All would
be well and good if Donal had not forgotten that, though the special law for
pregnancy may indeed "seek ... to solve" special problems "beyond gender
discrimination," it nevertheless invokes the same standard as the law on the
latter and therefore has "the same effect." Donal, true to his problem-solving
approach, claims to "see" that the expression "less favourable" leaves out "the
standard by which this [discriminatory treatment] is measured ('less
favourable' than what?)," yet it is specious to say that any two words "leave
out" the other words in the sentence and context in which they are used, in the
sections of law under comparison. Donal's self-vaunted problem-solving approach
acts as if it is above "mere words," that it alone among various (more or less
silly) approaches can "show" the true reasoning behind the law, but he can only
do so by radical reductions-to-absurdity of all "conceptual analysis," often by
encumbering its explanatory attempts with ironic/skeptical quotation marks
vainly proposed by "mere-men," half man, half something Darwinianly-speaking
fishy. A Digression: All readers of Donal know that he is a master of the
language, but I have installed, so to speak, an automatic response to his
writing with the mental equivalent of bells and whistles that go off whenever
his words, to my thinking at least, begin to get the better of him, for
instance in this one sentence-paragraph in which there are two colons, two
"because" clauses, and two uses of his beloved "utterly." This turns out to
be utterly incorrect: but it should be obvious to a skilled lawyer, just
looking at the two sections, that it could hardly be correct: for the simple
reason that pregnancy is gender-specific, so if the pregnancy-law were to the
same effect as the gender-law, it would be an utterly redundant law - because
whatever was pregnancy-discrimination would ipso facto be gender
discrimination.
My problem is with that colon (colon #2). It's almost always odd in an English
sentence to have two colons. I admit that I read over that colon; I ignored it.
I thought that was the point he was trying to make. It gets confusing because
of Donal's hyper-adjectivalization: with him things are never (just)
"incorrect," they're "utterly incorrect." He uses "merely" as a subliminal de
minimis argument against anything that doesn't suit him. I tried replacing "for
the simple reason that" (in which Donal characteristically, and probably
unconsciously) hyperbolically introduces the first of the two "because" clauses
by larding the cause/reason with the tendentious word "simple" (with a
hard-to-ignore implication that his audience tend toward simpleton status) by
"because." But then, who is being simplistic here? A Digression Within The
Digression: And what is it with Donal and italics! They are also endemic
apparently. Ask Phatic. Like a good lawyer, a "skilled lawyer," "looking at"
(not exactly reading, not merely reading) "the two sections," Donal can both
mean that it is obvious that pregnancy is gender-specific or that this silly
"top law firm here" that "has advised as if these two laws are to the same
effect" has simpl(isticall)y assumed that to be correct "for the simple reason
that [i.e. because] pregnancy is gender-specific." It is imaginable that the
"top law firm" assumed that, because pregnancy is gender-specific, the effect
of the law is the same. Donal writes: "A so-called "literal" interpretation
is itself a construct with its basis in a tradition and not a mere product of
the inherent meanings of words or the like. Lawyers can forget this because,
after being trained in that tradition, they can become blind that it is their
training that guides them to the so-called "literal". And they can also make
gross mistakes because they latch onto a "literal" interpretation while being
blind to the problems that the relevant wording is seeking to solve." With
all Donal's heavy lifting, in the end it is as if an elephant has given birth
to a mouse: the silly "top law firm" has not noticed ("less favourable" than
what?) that the pregnancy-law's set of potentially disadvantaged persons is not
coextensive with that of the gender-law since the former also includes members
of the same gender, i.e. women who are treated less favourably than other women
on the grounds of their pregnancy. But Donal doesn't spell that out. He
practically has to leave it vague and write ambiguously for it to at least
sound and look like he and his approach are solving (serious) problems (like
the one that I just solved by spelling out the reason for having this separate
law). The above is also a fair example of "legal logic". And it illustrates
the potential flaws in a "literal" approach that loses sight of the over-riding
need for a problem-solving approach.
And my above is a fair example of a more competent "legal logic" that
illustrates the danger of not cleaving to a fairly "literal" approach and of
instead allowing oneself to engage in the hubristic overarching and
over(rough)riding fantasies of an evolutionary problem-solving approach that
prides itself in alone knowing or being capable of arriving at the real
rationale of the law. Richard Henninge University of Mainz
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