Multiple Discrimination the Challenges

1
Multiple Discrimination the Challenges

• Gay Moon
• Head of the Equality Project
• JUSTICE

2
The Problem

• People
• Are diverse, complex and multi-layered
• They do not fit into water-tight single issue
  categories
• Our equality laws
• treat people as defined by a single label. It
  is only possible to take a discrimination case
  alleging a single ground for discrimination, not
  an undivided combination of grounds
• The law needs to be able to recognise this
  complexity

3
Who does it affect?

• Black women,
• Muslim women,
• Gay disabled people,
• Disabled women,
• Elderly Black people,
• Elderly gay people,
• And so on

4
What is Multiple Discrimination?

• Discrimination on more than one ground.
• Three different ways/forms-
• Discrimination on different grounds on different
  occasions,
• It can be additive - if a series of attributes
  are required, or
• It can be intersectional - when the
  discrimination involves more than one ground and
  those grounds interact with each other in such a
  way that they are completely inseparable.

5
Legal effect

• Both the first two types can be dealt with under
  our current legal provisions
• Intersectional discrimination currently has no
  remedy under UK law

6
Why?

• Because a person wishing to claim discrimination
  must compare his/her treatment with someone not
  of the same sex/race/ disability/religion or
  belief/sexual orientation/ age,
• but the courts have ruled that this comparison
  can only be with a single characteristic,
• not with an indivisible/undivided combination of
  characteristics.

7
Prior to 2004

• Some intersectional discrimination cases
  successful
• See EOC publication Advising ethnic minority
  women at work

8
After 2004

• Bahl v the Law Society
• Court of Appeal ruled
• In our judgment, it was necessary for the ET 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. It failed to do so, and thereby, as the
  EAT correctly found, erred in law.

9
What does this mean?

• A black woman cannot compare her treatment with
  that of a white man, she can only compare her
  treatment with that a white woman would have
  received and then separately with that a black
  man might have received.

10
To express this graphically
Black woman
White woman
Black man
White man
11
An example

• A Turkish woman machinist complains of direct
  discrimination against her employer.
• The employer argues that it has employed
  non-Turkish women and Turkish men
• But, this only shows that they do not always
  exclude Turks or women.
• The woman may be able to show that it is the fact
  of the combination that was critical
• But, this may not be enough...

12
How common is it?

• Lack of data within the UK
• Irish Equality Authority 14 of employment
  cases opened in 2005 were on mixed grounds
• Ontario Human Rights Commission 48 of cases
  between 1997 2000

13
EOC study Moving on Up

• Racism, sexism and anti-Muslim prejudice based
  on widespread stereotypes make it harder for
  ethnic minority women to integrate in the
  workplace and to get promoted.
• Workplace culture or the way things are done in
  an organisation may put anyone who is not from
  the majority group at a disadvantage, whilst not
  intentional this can have a damaging effect.

14
National AIDs Trust

• Outsider Status Stigma and discrimination
  experienced by Gay men and African people with
  HIV observed
•  
• all African people with HIV suffer racism and
  xenophobia in a heightened form

15
Joint Equality and Human Rights Forum

• Re-thinking Identity the Challenge of Diversity
  - concluded that
• People with multiple identities...are not
  adequately protected by current
  legislation...Even with harmonised legislation,
  people with multiple identities that increase
  their social vulnerability and marginalisation
  may require an intersectional approach to
  equality and human rights claims

16
What changes are needed?

• The current legal provisions should be amended to
  ensure that
• Multiple comparisons should be expressly
  permitted,
• Clauses requiring that the circumstances in the
  one case are the same, or not materially
  different, in the other should be omitted.
• Where there are any differential provisions, for
  example, any specific justifications, exceptions
  or genuine occupational requirements that apply
  to one ground for discrimination these should, in
  effect, be treated as cumulative.
• Damages can reflect the impact of
  intersectional/ multiple grounds.