Legal perspectives on defining identity: How does the law deal with this?

Gay Moon

Head of the Equality Project

JUSTICE

The ProblemPeople

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

Who can it affect?

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

What is Multiple Discrimination?

Discrimination on more than one ground.

Three different 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.

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

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 in relation to a single protected characteristic,

not with an undivided combination of characteristics.

Prior to 2004

Some intersectional discrimination cases successful

See EOC publication – Advising ethnic minority women at work

After 2004

Bahl v the Law Society

Court of Appeal ruled

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...

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.

To express this graphically:

Black woman

Black man White man

White woman

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...

How common is it?

Lack of data within the UK

Irish Equality Tribunal – 21% of employment cases referred in 2005 were on ‘mixed’ grounds

Ontario Human Rights Commission – 48% of cases between 1997 & 2000

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.

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

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

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.