Words Never Lie
Students & Part-time Employment Rosaleen Dillon, SS Law
Diarmuid Ó hUallacháin, SF Law
O
n the 13th of February this year Justice Antonin Scalia, the longest serving member of The Supreme Court of the United States, (SCOTUS), died doing what the American Right-wing loved; hunting and making merry in Texas. His passing should be lamented in the legal community as Justice Scalia provided clear, thoughtful and steadfast arguments for conservative shibboleths of legal thought. Indeed, his tough judgments set the bar high for opposing liberal views. He forced excellence out of SCOTUS; as Justice Ruth Bader Ginsburg noted “when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.” Justice Scalia was the most outspoken advocate for “Constitutional Textualism”, (taking the words of the US Constitution as the only understanding that can govern judicial decisions), and indeed the oftentimes controversial subset of it; “Originalism”, (as Scalia himself said “…when you consult the text you give it the meaning it had when it was adopted…” as opposed to a temporal, changing meaning). Scalia’s promotion of this form of constitutional interpretation and indeed his legal brilliance is best seen in the seminal gun control case of District of Columbia v Heller. This case concerned whether a District of Columbia prohibition on the possession of usable handguns in the home violated the Second Amendment to the Constitution which reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Justice Scalia delivered the majority opinion of the Court. However, what is of interest is the argument Justice Scalia advanced supporting “Textual Originalism” with regard to the Second Amendment.
He used the text of other amendments of the Constitution to show how the “right to bear arms” was indeed an individual right: “the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined ‘assembly’”. Justice Scalia observed that nowhere “…else in the Constitution does a ‘right’ attributed to ‘the people’ refer to anything other than an individual right.” His combination of “Textualism” and effective legal comparison changed the “gun debate” in the United States drastically and set the scene for the growth of the Second Amendment to an almost insurmountable individual right.
Furthermore his rigid adherence to “Textual Originalism” greatly influenced his definition of “Arms” within Heller. He insisted on the use of 18th century descriptions such as “anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another”. This understanding provided the necessary scope for the incorporation of a plethora of firearms under the protection of the Second Amendment. As The Economist noted, he was “in love with [the Constitution]; he was in awe of the men who wrote it; the late 18th century was a time when genius burst forth on the eastern seaboard, as it had in Periclean Athens.” However, due to his fervent interpretive views discussed above, he could not accept the Constitution as alive and open to change and reinterpretation. He could not stand judicial purposivism – it said what it said and it never lied. It never meant anything more than the normal meaning of the words unless “…of course [it] include[s] an His death leaves idiomatic meaning, but it excludes a vacuum in secret or technical meanings that SCOTUS that would not have been known to ordinary citizens in the founding once again generation.” Justice Scalia’s reveals its Constitution was whatever the Founders meant it to be. He would unfortunate never concede that view. For political example, when asked whether Justice Breyer’s purposive approach underbelly was wrong Justice Scalia merely said “yes”.
Most students have at one point or another worked part-time. With mounting university fees, rent and commuting costs, working on the side is not a choice. The majority of part-time employees tend to be students and mothers, so when part-time workers are discriminated against, the employer is indirectly discriminating based on age and/or gender. There is a vast amount of age discrimination case law. In its 2007 annual report, the Equality Authority highlighted age as the most common grounds of complaint under the Employment Equality legislation, representing 24% of all claims. However, the majority of these claims involve plaintiffs who were discriminated against for being too old. So why is there little to no case law on discrimination based on young age?
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His death leaves a vacuum in SCOTUS that once again reveals its unfortunate political underbelly. He followed the Constitution, even if that meant going against his own views, and for that he should be admired. As President Obama said of him “[Justice Scalia] did what he had to do” for the Constitution. Love him or hate him, at least he made sure words had meaning.
First, students are less likely to sue than their older part-time counterparts. They have limited resources to bring a claim and most of the time they are not aware that they have been discriminated against mainly due to lack of information available to them. Students are a vulnerable demographic for potential employers, and with this said, is the law doing enough to protect students as part-time workers? As of 2016, if you are under 18 years of age the national minimum wage is €6.41, as legislators suggest this is an acceptable wage due to the employees’ lack of experience and maturity. However, the national minimum wage for someone’s first year of employment since turning 18 is €7.32, and for someone’s second year of employment since turning 18 it’s €8.24. This means that by the age of 20, 21, or even 22 depending on when the student started working, they are still not entitled to a minimum wage. Most employers will give the adult minimum wage anyway, so why do these rules exist then? It puts the student worker at an immediate disadvantage from the moment he/she becomes a legal adult. It tells the student that they are not a valuable asset to society and that the work they are putting in is objectively worse than an older employee. It disincentives students to work – an important aspect of developing as an adult, but it also puts further pressure on those students who really need the money they make from their part-time jobs.
resounding indication that young people are by every measure a marginalised group in Irish society. No matter how exceptional, competent or popular the individual, the idea of a person younger than 35 even presenting themselves to the electorate as a candidate for the highest office of State is apparently so preposterous as to require constitutional prohibition. To paraphrase three-quarters of the electorate according to Shane Lynn: “It’s not just that we won’t vote for you. We won’t even let you run”. Furthermore, students are laid off unfairly all the time, yet nothing is ever done about it. A common tactic used by employers is to reduce or stop giving hours to the employee. When questioned about this, the employer insists the employee is not being fired, but that it is just very quiet and that more hours will be available soon. Eventually the employee has no choice but to leave. A lot of the time the student employee is told that because they are part-time, they are not a priority to the business and this can also be used as a tactic to pressure the employee to become full-time. Clause 5(2) of the Framework Agreement adopted by the Protection of Employees (Part-time Work) Act, 2001 states that an employee’s refusal to transfer from full time to part-time status does not constitute a valid reason for termination of employment. Nevertheless, despite the ongoing discrimination inflicted upon students, it is very difficult to prove that the discrimination in question was based on age, or the part-time status of the employee. To establish a prima facie case of age discrimination, it is necessary that the complainant not only show a difference in age between the two persons, but also that the complainant was treated differently because of the difference in age as was alluded to in McCormack v Dublin Port Company (2002). Although 2016 has begun with some positive changes in this regard with the minimum wage going up from €8.65 to €9.15, amongst other changes, there’s still not a suitable platform for awareness for students to ensure they are not taken advantage of by employers. There is a dire need for student’s rights to be very clearly laid out and for them to have a direct support group where they can ask a professional questions or have access to an information database which contains various scenarios the parttime student worker is often faced with so they are sure where they stand with the law, and so they are aware of what routes to a remedy are available once they have established they’ve been discriminated against. This kind of support should be available in college. Once students start standing up for themselves in the workplace, society may start to regard young people with more respect when it comes to ageism.
Ageism is a prejudice so ingrained in Irish society that few recognise it, and it goes both ways, young and old. It is an insidious and pervasive negative belief system. It stereotypes everyone over 60 as dependent, sick, frail, decrepit, and a drain on the economy. It stereotypes young people as irrational, incompetent, untrustworthy and careless. A recent example is the result in the presidential age referendum last year; a clear
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Issue Issue 12
The TheEagle EagleGazette Gazette-V2
Issue 12
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