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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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In my opinion, the design of the Swedish 2008 Discrimination Act with its truly integrated approach concerning the bans on discrimination and the different grounds – see under 1 above – may show to be really useful where multiple discrimination is concerned, as might the requirement of any detrimental treatment being merely ‘linked to’ a(ny or various) grounds covered’. This could be an adequate model for Community law as well. It is obvious that the existing number of rules and still scattered character of Community regulation in this field, i.e. a number of separate directives, may be to the detriment of multiple discrimination claims. Slight differences in wording etc. of the regulations might cause considerable problems in practice.

However, this line of arguing will leave us with the single regulation (and specialised body) solution something which I, from other points of view, am quite sceptical to. There are, in my opinion, important arguments against such a solution, relating to differences in character among the various grounds and, in particular, as regard the needs of a proactive approach.

9. Community-law definition of multiple discrimination necessary?

I am not in favour of a legal definition of the multiple discrimination concept, neither in national nor in Community law. Such an endeavour is intrinsically related to the issue of definition/identification of new groups – or subgroups – to be protected by discrimination law. It is preferable to have the flexibility of a less precise concept, allowing the Courts to combine two or more grounds of discrimination. It is by no means obvious that a case of multiple discrimination must be more severely punished

–  –  –

10. Available literature or research?

There are, to my knowledge, no Swedish publications of multiple discrimination research, nor do I know of any ongoing research.

11. Further research In my opinion, further research is important since we need a better understanding of complex discrimination, including the identification of significant subgroups in need of positive action or proactive measures.

–  –  –

1. Concept of multiple discrimination in legislation The term multiple discrimination is not used anywhere in UK legislation and the phenomenon is not addressed

2. Case law There is one appellate case in which the Employment Appeal Tribunal and Court of Appeal allowed appeals against a finding that a woman had been discriminated against as a Black woman (Bahl v Law Society [2003] I.R.L.R. 640 and [2004] I.R.L.R. 799). The employment tribunal had accepted that the claimant, an Asian woman, had been discriminated against specifically as a Black woman. The Employment Appeal Tribunal overturned the tribunal’s decision, Elias J ruling that the tribunal erred in law ‘in failing to distinguish between the elements of alleged race and sex discrimination’, and the Court of Appeal rejected Bahl’s appeal. The court

ruled that the tribunal had failed:

‘to identify what evidence goes to support a finding of race discrimination and what evidence goes to support a finding of sex discrimination. It would be surprising if the evidence for each form of discrimination was the same (…) In our judgment, it was necessary for the [employment tribunal] to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference which it did in favour of Dr. Bahl on whom lay the burden of proving her case.’ Dr Bahl would have had to make separate claims under the Race Relations Act 1976 by reference to the treatment of real or hypothetical white women, and under the Sex Discrimination Act 1975 by reference to Black men. If the discriminatory treatment which she alleged was intersectional, that is, specifically connected with her identity as a Black woman, the RRA and SDA claims could each readily be defeated by evidence relating to the employer’s non-discriminatory treatment of Black men and white women respectively.

3. Any cases where gender-related discrimination is overlooked?

The effect of the decision in Bahl is that claimants will choose to litigate either under the Sex Discrimination Act 1975 or under the legislative provision relating to the Multiple Discrimination in EU Law 125 other aspect of the discrimination they have experienced, or will bring parallel claims under the SDA and the other legislation. They cannot bring these claims in combination without risking the kind of outcome experienced in Bahl.

4. Proof and procedural problems See discussion of Bahl above. We have a very comparator-driven approach to discrimination, the result of which is frequently that a claimant will be put under pressure to point to a real or hypothetical comparator who is similarly situated but for the particular grounds of discrimination relied upon. This causes obvious difficulties in connection with multiple discrimination.

5. Description of a specific case Bahl is the only case. The ‘added value’ of a multiple discrimination approach would be that it (a) would acknowledge that people are not single-dimensional characters who can only be identified by race or sex or sexual orientation, etc, and avoid the ways of thinking which flow from this single dimensional approach; (b) could deliver legal protection more effectively by dealing with people as they really are in the world, rather than requiring them to identify themselves by reference to a single protected characteristic for the purposes of a discrimination claim; and (c) could remove the discrimination inherent in the existing framework against those who differ from the ‘norm’ (that is, white, male, of Christian or no religion, heterosexual, without disability) in more than one respect.





6. Effects of legislation and case law in practice See the literature mentioned below and ‘Reconfiguring Discrimination Law’, Public Law (2007), pp. 74-94 as well as those listed in the bibliography to the Copenhagen study generally and, in particular, Diamond Ashiagbor (1999) ‘The intersection between Gender and Race in the Labour market: Lessons for Anti-discrimination Law’ in: Anne Morris, Thérèse O’Donell (eds.) Feminist perspectives on Employment Law, Cavendish and Sarah Hannet (2003) ‘Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination’, Oxford Journal of Legal Studies, Vol. 23, No. 1, pp. 65-86.

7. Role of equality bodies Until recently the equality bodies covered only sex, race and disability and were legally prevented from sharing information. Anecdotal evidence, accepted by commission personnel in public conferences, suggests that (for example) a Black woman complaining of discrimination might be advised by the CRE that her claim was one of sex (therefore not within that Commission’s scope) whereas the EOC might then take the view that it was race-based (therefore outside that Commission’s scope). One of the benefits of the creation of a single Equality and Human Rights Commission, whose remit covers all grounds of protected discrimination (sex, race, disability, sexual orientation, religion and belief) as well as human rights more generally, is that the difficulties of information sharing have been resolved and there is more scope for work on multidimensionality. It is too early to say what has been achieved but certainly the Commission has already undertaken research into the impact of the pay gap on complexly defined groups (that is, disaggregated by sex and race and religion, age, disability and sexual orientation151) and is conscious of the S. Longhi and L. Platt Pay Gaps Across Equalities Areas 2009.

126 Multiple Discrimination in EU Law concept of multiple discrimination. A search of the Commission’s website for multiple discrimination resulted in almost 100 returns.

8. Reinforcement of legal approach at EU level necessary?

I think EU law should make it mandatory that Member States regulate discrimination in relation to the protected grounds where those grounds interact, that is, should require the prohibition of direct discrimination ‘on any of the protected grounds, individually or in any combination or intersection’ (or words to that effect) and that it should also clarify that indirect discrimination covers disparate impact not only in relation to individual grounds but also where they intersect or overlap.

9. Community-law definition of multiple discrimination necessary?

Yes. Although the Equality Bill currently before Parliament has been amended during parliamentary progress to include a provision on multiple discrimination, that provision would only cover direct discrimination on up to two combined grounds, e.g.

disability and gender, or disability and race, the Government considering it too complicated and burdensome to allow claims on three or more different discrimination grounds.152 In addition, the provision on multiple discrimination applies only to direct and not to indirect discrimination. It would be beneficial if a community-law definition of multiple discrimination were adopted which covered more than two grounds and which applied to indirect as well as direct discrimination.

10. Available literature or research?

A. McColgan, ‘Reconfiguring Discrimination Law’, Public Law (2007), pp. 74-94.

11. Further research My own view is that the nature of the legal difficulties presented by national law will differ between jurisdictions but that proposals for legal solutions do not require further study of what the problems of multiple discrimination are. In my view the EU should press on and require Member States to ensure that their legislation permits claims of additive or intersectional discrimination.

See http://www.equalities.gov.uk/pdf/090422%20Multiple%20Discrimination%20Discussion%20 Document%20Final%20Text.pdf

–  –  –

Introduction The European Commission recently published the study Tackling Multiple Discrimination. Practices, policies and laws.1 This comparative study provides information on legal and policy developments in Canada, the United States and 10 Member States of the European Union. The report on multiple discrimination by the European Network of Legal Experts in the field of Gender Equality should have an important added value. In particular the gender dimension should be further

elaborated. The aim of the Network’s report on multiple discrimination is twofold:

first the report should provide information on legal developments regarding multiple discrimination in 30 (EU and EEA) countries at national level; second it should give more insight on how to tackle multiple discrimination at EU level in particular where gender aspects are involved.

In this report, the concept of multiple discrimination is used as an overarching notion, comprising compound2 and intersectional3 discrimination and all other forms of discrimination consisting of any combination of two or more grounds.

Danish Institute of Human Rights, Mandana Zarrehparvar and Caroline Osander Tackling Multiple Discrimination. Practices, policies and laws, September 2007. See: http://ec.europa.eu/ employment_social/fundamental_rights/policy/aneval/stureps_en.htm, accessed 28 February 2009.

T. Makkonen provides the following definition of compound discrimination:

‘Compound discrimination should be taken to refer to such a situation in which several grounds of discrimination add to each other in one particular instance: discrimination on the basis of one ground adds to discrimination based on another ground to create an added burden. There can be two or more types of discrimination in play at one given situation. An example would be, to continue along the intersect ion of origin and gender, a situation in which the labour market is segregated on multiple basis: some jobs are considered suitable only for men, and only some jobs are reserved particularly for immigrants. In such a situation, the prospects of an immigrant woman to find a job matching her merits are markedly reduced because of compound discrimination.’ T. Makkonen Multiple, compound and intersectional discrimination: brining the experience of the most marginalised to the fore Institute for Human Rights, Åbo Akademi University, April 2002, p. 11 available at: http://web.abo.fi/instut/imr/norfa/timo.pdf, accessed 23 January 2009.

See the definition of T. Makkonen, on p. 11: ‘Intersectional discrimination, in its narrower sense, should be taken to refer to a situation in which there is a specific type of discrimination, in which several grounds of discrimination interact concurrently. For instance, minority women may be subject to particular types of prejudices and stereotypes. They may face specific types of racial discrimination, not experienced by minority men. Crucial to this kind of intersectional discrimination is thus the specificity of discrimination: a disabled woman may face specific types of discrimination not experienced by disabled men or by women in general. One example of such discrimination would be unjustified subjection of disabled women to undergo forced sterilization, of which there is evidence around the world: this kind of discrimination is not experienced by women generally nor by disabled men, at least not nearly to the same extent as disabled women.’

–  –  –

1. Is multiple discrimination as described above explicitly prohibited in (nondiscrimination) statutory legislation or statutory legal instruments of your Member State/country? If it is, is multiple discrimination defined and if so how?

2. Have cases (including case law of equality bodies), in which gender in combination with any other ground of discrimination was relevant (gender-related multiple discrimination), been recognized as such – ie where case law addresses gender and one or more other grounds at the same time? If that is the case, to what extent were the different grounds addressed separately and why? Were gender aspects explicitly or implicitly identified? If different grounds intersected, was the combined effect of such grounds acknowledged by the courts/equality bodies? Was the multiple character of discrimination reflected in higher sanctions or awards of damages, for example?

3. Have cases of gender-related multiple discrimination been dealt with under the other discrimination grounds with the gender-related discrimination being overlooked? If that is the case, what are the possible reasons or explanations given for the choice of not addressing gender discrimination (for example: legal reasons, the role of NGOs, trade unions, specialized agencies or lawyers?).

4. Are there any particular problems of proof and/or procedural problems and/or problems related to comparisons in cases of multiple discrimination? If this is the case, please describe these problems as they have appeared in your country.

5. Please describe and analyse in more detail one specific case (if there is such case) involving gender discrimination and one or more other grounds of discrimination which you consider particularly interesting. Explain what in your view is or could be the added value (if any) from a gender perspective of a multiple discrimination approach.

6. Is there any information available (e.g. surveys) regarding multiple discrimination and the effects of legislation (if any) and case law in practice in your country?

7. Taking into account the results of the study mentioned in footnote 1 which explicitly looked at the role of equality bodies, what role do equality bodies play in your country in the combat of multiple discrimination? What role could they play in your view?

8. Do you believe that a reinforcement of the legal approach aimed at combating multiple discrimination at EU level and national level is necessary? If so, what would you propose to strengthen the existing legal protection at EU level? Which effects would you eventually expect from such reinforcement?

9. Do you think that a Community-law definition of multiple discrimination would further strengthen the existing legal protection at EU level and/or at national level in your country in case of gender-related multiple discrimination?

130 Multiple Discrimination in EU Law

10. Is there any literature or research in your country on multiple discrimination which is not yet listed in the bibliography of the report mentioned in footnote 1?

If so, please include the bibliographic references and send electronic copies of the literature if available.

11. Would you recommend further research on multiple discrimination at EU level and/or national level? If so, which legal questions should be addressed in future research in your view?

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