Memorandum submitted by the Equality and Diversity Forum (E 09)

 

The Equality and Diversity Forum (EDF) - the network of national organisations working to advance equality and human rights - welcomes the Equality Bill as well as the Government's commitment to consult on the inclusion of provisions to accommodate claims of multiple discrimination.

The purpose of this briefing is to explain the current legal position on multiple, and intersectional, discrimination and to set out the case for a change in the law to be included within the Equality Bill so as to facilitate discrimination claims based on more than one ground.

Multiple discrimination occurs when someone experiences discrimination on more than one ground, for instance, by being treated less favourably not only on grounds of age but also because of disability. Although multiple and intersectional discrimination are terms that are frequently used interchangeably, this briefing identifies intersectional discrimination as a special kind of multiple discrimination where a person's multiple identities intersect in a way that cannot be separated out for separate consideration.

Behind the legal issues lies a simple truth: people do not simply fit into boxes as black, disabled etc. They are diverse, complex and multi-layered, and sometimes they are treated badly for more than one reason. The problem is that our equality laws assume that the treatment of people should be analysed by reference to a single characteristic at a time. So it is only possible to take a discrimination case alleging a single ground for discrimination, namely gender or race or disability or religion or belief or sexual orientation or age. It is not possible to make a complaint about bad treatment on an undivided combination of grounds.

A closer look at the problem

Sometimes the current laws on discrimination are able to address problems associated with being a member of more than one disadvantaged group.

For instance, when someone experiences discrimination on different grounds on separate occasions. For example, a female wheelchair user is passed over for promotion because her employers want a man to take the lead, and, on another occasion, she is unable to go to an important meeting because it is being held in an inaccessible place. Here our current laws are adequate, because a single aspect of a multiple identity is relevant to each occasion.

In cases of 'additive discrimination', the steps in the overall treatment can be analysed separately. An example of such a case might be a series of potentially discriminatory job requirements, where a candidate's chance of getting the job is reduced if s/he cannot meet one potentially discriminatory requirement and reduced further for each of the others that s/he cannot meet. The case of Perera v Civil Service Commission (no 2)[i] was an example of this: a man was turned down for a job because of a variety of factors - his experience in the UK, his command of English, his nationality and his age.

However, there are many situations where the current legal framework is totally inadequate. Thus when the discrimination involves more than one ground and those grounds interact with each other in such a way that they are completely inseparable, it will not be possible to analyse the grounds of treatment separately. This kind of discrimination currently has no remedy under UK law.

This is because of the particular approach to comparisons under UK discrimination law. 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 combination of characteristics. UK law allows the courts to consider whether an hypothetical comparator would have been treated less favourably. However, it is only possible to compare one characteristic at a time. So, for instance, 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. Similarly, an older woman cannot compare her treatment with that of a younger man or a Christian lesbian with an atheist man.

To express this graphically:

The law will only permit a horizontal or a vertical comparison (as above), not a comparison on the diagonal (as below).

Examples of the problem

This is a real problem as the following examples point up:

1. For a black woman serving in the armed forces who wishes to claim that she has been unfairly refused promotion, the comparison with a black man may not show the degree of discrimination that she has experienced nor may a comparison with a white woman. So to show the full extent of the discrimination that she is experiencing she must be able to compare her situation to that of a white man. Hence to show the full extent of the discrimination that she experiences it is necessary to consider the combined effect of both her race and her gender.

2. A Muslim woman is refused a job because she is not permitted to wear a headscarf at work. If she compares her situation to that of a Muslim man (a gender comparison) this may not reveal the extent of her discrimination any more than a comparison of her situation to that of a Christian woman or non-religious woman (a religion or belief comparison). To capture the essence of the discrimination that she has experienced it may very well be necessary to consider both her gender and her religion together. (Note: as this concerns indirect discrimination the employer may be able to justify the requirement not to wear a headscarf).

3. An older female newsreader is refused an extension of her contract by the broadcasting company. It is clear that they do employ and renew contracts for their younger women newsreaders as well as for older male newsreaders. To analyse the situation correctly both her age and gender need to be considered.

4. Similarly, the prejudice suffered by an HIV-positive gay man who was dismissed because his employers considered that his HIV status was a judgment from God would require very careful analysis. The employer might just have tolerated his sexual orientation; and perhaps they would accept a haemophiliac who was HIV positive. The true grounds for the treatment might well lie in the combination of sexual orientation and HIV status, or even disability. This combination of grounds cannot really be addressed under the current law.

In short, under the current law, a victim of this kind of intersectional discrimination frequently cannot have the reality of his or her experience recognised and secure redress. This is not just an equality issue it is a fundamental human rights issue.

 

Why has the law not properly addressed intersectional discrimination?

Intersectional discrimination is widespread because people are frequently treated less favourably on more than one ground simultaneously, yet there have been few cases where it has been raised directly. While in the past a few cases were successful in arguing intersectional discrimination and having two grounds recognised as operating together[ii], case law has now ruled out this possibility.

In 2004, the Court of Appeal in Bahl v the Law Society[iii] ruled on the correct way to deal with intersectional discrimination. This ruling now binds the lower courts. In this case an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and on the grounds that she was a woman.

This judgment made it clear that each ground had to be separately considered and a ruling made in respect of each, even if the claimant experiences them as inextricably linked. This led to Ms Bahl failing to prove that discrimination has occurred, as she could not identify which aspect of her claim related to only one characteristic. Other cases since then have been lost for the same reason.[iv]

In order to avoid this problem lawyers have been forced to take up cases on the strongest ground and ignore the other aspects. They have to plead the case to meet the limitations of the law and because of this cannot address the truth of the situation.

Despite these technical problems some multiple discrimination cases which involve grounds other than race and sex have been taken on one ground when in fact they should be correctly analysed as multiple discrimination. For example, cases challenging the wearing of the Muslim scarf are combinations of sex and religion or belief discrimination and cases concerning the non-renewal of contracts for older women newsreaders will involve the combination of sex as well as age.

 

What reforms is needed?

If the reality of discrimination and inequality in the 21st century is to be tackled in the UK, our laws must find a workable solution. The Equality Bill provides a real opportunity to clarify this confused situation. The Equality Bill will be incomplete and inadequate without an explicit provision to outlaw multiple or intersectional direct or indirect discrimination or harassment.

The deficit in our laws can be put very simply; it is not consistent with the dignity of a person as a whole to exclude consideration of the treatment that they receive as a whole.

June 2009



[i] [1983] IRLR 166

[ii] See case examples given in Advising ethnic minority women about discrimination at work, EOC, April 2005.

[iii] [2004] IRLR 799

[iv] See Network Rail v Griffiths-Henry [2006] IRLR 865.