Anti-discrimination Law and Limits of the Power of Dismissal: A Comparative Analysis of the Legislation and Case Law in the United States and Italy

Abstract

The prohibition of discrimination in employment relationships is core to the fundamental principle of human dignity that underlies the law of the most developed Countries. Nonetheless, under a comparative approach, anti-discrimination law assumes different roles and functions according to the historical development of each legal system. In the United States the implementation of anti-discrimination provisions has been one of the main instruments for US legislative institutions to promote the emancipation of the most disadvantaged groups of workers. On the other hand, United States courts have narrowly interpreted anti-discrimination statutory laws emphasizing the necessity of protecting employers’ prerogatives under the common law doctrine of “at will employment”. Within the European and Italian experiences, political concerns for the emancipation of the working class have informed the evolution of labor law since the nineteenth century. Case law and statutes provide for general limits to the powers of employers, in order to counterbalance the economic submission of workers to the supremacy of companies. This chapter focuses on discriminatory dismissals and is founded on the idea that the relationship between anti-discrimination law and the power of employers to dismiss acquires different roles and functions according to the peculiar features of the different legal systems, and in relation to their historical development. On the basis of these arguments a narrow interpretation of the most recent provisions of Italian legislations on discriminatory dismissals is to be preferred under a comparative approach.

Principia communia legis naturae non eodem modo applicari possunt omnibus, propter multam varietatem rerum humanarum: et ex hoc provenit diversitas legis positivae apud diversos.

Tommaso D’Aquino, Summa theologiae, 1a 2ae, Quaest. 95, Article 2