European Union Non-Discrimination Law and Intersectionality

Investigating the Triangle of Racial, Gender and Disability Discrimination

Anna Lawson, Dagmar Schiek, Dagmar Schiek

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317139201
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book contributes to a critical reflection of current legislative and jurisprudential developments in Non-Discrimination Law, focusing on the European Union. The book is focused on intersectionality between gender, race and disability and the question of whether, and to what extent, this intersection can be adequately addressed in (EU) law. The discussion rests on two basic assumptions. First, the multiplication of 'discrimination grounds' in EU law and other legal regimes should not result in a dilution of the demands of equality law. Accordingly, the book focuses on the three key grounds - race, gender and disability. These constitute nodes around which other discrimination grounds can be grouped. Second, any multi-ground non-discrimination law framework needs to engage with the question of discrimination on several grounds. This book provides a critical evaluation of some of the problems presented by such intersectionality and an opportunity to explore the issues in depth. This collection offers some new proposals relating to the regrouping of identity categories and to the general approach to socio-legal research in the field. It also contains a comparative section, which expands on practical experiences with intersectionality and law, and a section dedicated to juridical responses to intersectionality. The book will be a valuable resource for researchers, academics and those working in the area of EU non-discrimination law and policy.

PART I
Discrimination Grounds and Intersectionality: A Reappraisal

Chapter 1
Organizing EU Equality Law Around the Nodes of ‘Race’, Gender and Disability

Dagmar Schiek

Introduction

The closing debate of the First European Conference on Multidimensional Equality Law highlighted a concern that EU non-discrimination and equality law may no longer be sufficiently focused on differences that make a difference (that is, on inequalities that matter). This concern derived from the proliferation of grounds in relation to which discrimination is prohibited.

The proliferation of discrimination grounds may, in itself, have positive effects on the field of equality law, through, inter alia, the enhanced potential of cases where several grounds are involved. It will lead to an increase in situations covered by non-discrimination law. Ever more people will believe that they can turn to equality law to right the wrongs which they perceive themselves to suffer. This will enhance public awareness of the field, and its protagonists will be perceived as more important. However, ever greater proliferation of discrimination grounds may also have negative effects. The widely criticized hierarchy of equalities in EU law is but one example. Another less obvious problem is the refocusing of cases closely related to the socio-economic realities of the ‘classical’ grounds, such as gender or ‘race’, to grounds such as age and sexual orientation, which may appear more interesting due to their novelty. Above all, a proliferation of discrimination grounds may well result in equality law becoming a more disorganized socio-legal field.

This chapter proposes to restructure the field by organizing discrimination grounds around nodes. First, it will consider the proliferation of discrimination grounds in EU equality law. It will then highlight the opportunities and dangers of proliferation, exposing the risk of unjustified hierarchies and the redefinition of equality cases in line with the most recent ground. As an alternative approach to structure the field, the concept of nodes will be developed. A comprehensive reading of the overlapping grounds of gender, ‘race’ and disability will be mapped out, which allows also a distinction to be maintained between equality law and policy, on the one hand, and general human rights and welfarist policies, on the other hand.

Proliferation of Grounds in EU Equality Law – from Rome to Lisbon

Is there a Proliferation of Discrimination Grounds?

If we consider only EU law, proliferation seems obvious. Originally, the Treaty founding the European Economic Community prohibited gender discrimination only in the field of equal pay and discrimination on grounds of nationality within the scope of the Treaty’s application. In both fields, secondary law was used to expand the scope of application and to specify certain issues.¹ Only in 1997, when the Treaty of Amsterdam entered into force, was the European Community empowered to legislate to combat discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC (Treaty of Rome, as amended now: Article 19 Treaty on the Functions of the European Union (TFEU)). Binding secondary legislation followed from 2000.² If we consider ‘race’/ethnic origin and religion/belief each as one ground, this body of law now encompasses six instead of only two discrimination grounds. In addition, non-discrimination has been used as a regulatory paradigm in directives concerning part-time work,³ fixed-term contracts⁴ and most recently temporary agency work,⁵ adding three new discrimination grounds to employment law. Finally, the Treaty of Lisbon has introduced a new dimension to proliferation. Article 21 of the Charter of Fundamental Rights of the European Union, now legally binding (Article 6(1) TEU (Treaty on European Union)), addresses discrimination on grounds ‘such as’ colour, social origin, genetic features, language, political or any other opinion, membership of a national minority, property and birth in addition to the Treaty grounds. In contrast to the secondary legislation already mentioned, Article 21 is addressed only to public bodies of the EU and those of the Member States when implementing EU law (Article 51 Charter). Thus, there is some variation in the reach of non-discrimination law. Of the 17 grounds, nine apply in the marketplace, of which only three (race, gender and nationality) reach beyond employment, while eight grounds apply only in the public sphere.

Proliferation is less pronounced in European and international human rights law. The European Convention on Human Rights (ECHR) contains an equality clause addressed to States in Article 14.⁶ That provision, although dating from a similar period to the EEC Treaty, contains 11 discrimination grounds (sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status) instead of only two. While the European Social Charter 1961 only mentioned discrimination in its preamble, the Revised European Social Charter (1996) reiterates Article 14 ECHR (Article G). In both instruments, inclusion of the ‘other status’ ground means that the list is not closed, and grounds of similar weight can be added if relevant to an individual case. For example, the European Court of Human Rights (ECtHR) has acknowledged sexual orientation as a relevant ‘other status’ since 1999.⁷ The practical relevance of the long list of grounds is diminished by the fact that the ECHR is binding only on signatory states. While there is some scope for judicial development of indirect horizontal effects, the ECtHR only oversees complaints against signatory states and, thus, is unable to create direct horizontal effects (de Witte 2009: 518).

At a global level, the UN is committed by Article 1 of the UN Charter to ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. Going beyond these four discrimination grounds, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) contain exactly the same list of grounds as the ECHR, including the ‘other status’ ground. ILO Convention No. 111 lists ‘race, colour, sex, religion, political opinion, national extraction or social origin’ as non-discrimination grounds relevant to employment, omitting the ‘other status’ ground.

The UN has extended protection on three grounds by specific conventions: the 1965 UN Convention for the Elimination of all forms of Racial Discrimination (CERD) assembles under the notion of ‘racial discrimination’ any distinction, exclusion or restriction based on race, colour, descent, national origin or ethnic origin. The 1979 Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) addresses discrimination of women. The 2007 UN Convention on the Rights of Persons with Disabilities (CRPD), while not restricted to providing cover against discrimination,⁸ also targets discrimination on grounds of disability (Article 2), specifying that persons with long-term impairments are included under that notion (Article 1(2)). All three conventions oblige signatory states to extend protection against discrimination from the purely public sphere towards private actors and the marketplace (Article 2(1)(d) CERD, Article 2(e) and Article 14 CEDAW, and Article 4(1)(e) CRPD). This explicit obligation can be understood as an expansion of obligations under the ICCPR and the ICESCR, which also oblige signatory states to grant the rights entailed therein without discrimination and to refrain from discrimination. Without going into the complex issue of horizontal effects of international human rights conventions,⁹ it is safe to assume that the possibility for UN conventions to produce horizontal effects is limited as with the ECHR. Even ILO conventions, notwithstanding their focus on employment law, do not go beyond obliging signatory states to act within this sphere. Similarly, the ICESCR, also covering fields governed by market forces in many states, aims to produce changes in the market through state activities, without giving rise to horizontal effects.

Thus, proliferation has differing dimensions. International and European human rights law has always addressed more grounds and in particular also covered class-related discrimination, as evidenced by the grounds of social origin and property. Also, UN conventions such as the ICCPR and ICESCR and at a European level the ECHR have traditionally provided for the subsequent (judicial) development of their discrimination grounds through the existence of an ‘other status’ ground. Developments such as the CRPD or case law expanding protection to discrimination on grounds of sexual orientation would appear to qualify as intensifying and clarifying protection always inherent in UN or ECHR law. Proliferation is more typical for the EU. Forced to make any expansion of discrimination grounds explicit by the absence of the ‘other status’ ground, it has expanded from originally only two to the current 17 grounds. Its list encompasses sexual orientation, age and disability, not explicitly embraced by the Council of Europe instruments, and it uses non-discrimination principles also in relation to part-time, fixed-term and agency work. From 2009, the EU Charter of Fundamental Rights reproduces all the grounds found in international human rights law, including ‘other status’ (with the wording ‘grounds such as’), but this wider protection applies only in relation to public actors. This development is atypical for the EU whose equality law focuses on the marketplace, in line with the original economic aims of the organization.

Is Proliferation of Discrimination Grounds Problematic?

Negative consequences of proliferation may result from distinctions between grounds. Also, increased political attention towards ‘new’ grounds may not always reflect the parameters most relevant to individual cases.

Any system of non-discrimination law addressing more than one ground has to resolve the question whether a difference in treatment on any particular ground always warrants the same legal reaction. Recently, the suggestion has been made that ‘the various grounds of discrimination differ substantively, and each demands a tailored response. This is not a question of creating a hierarchy between the various grounds, but of delivering the most appropriate form of protection for each of them’ (European Commission 2008a: 5). This statement is correct in so far as no inherent reason exists to treat all grounds identically. However, different treatment of different grounds may also lead to different levels of protection, in other words, to hierarchies. Critique of hierarchies has partly focused on different treatment of grounds (ibid.: 4), and in particular on a tendency to downgrade of gender equality,¹⁰ without denying the need for some differentiation between different grounds (Pitt 2007: 227–8; Schiek 2002a: 308–11).

Primary EU law still only grants directly effective non-discrimination rights on two grounds, gender and nationality, that is, the nationality of a Member State. In both cases, the prohibition of discrimination has a limited scope of application, extending as regards gender only to employees’ remuneration (Article 157 TFEU = ex Article 141 EC) and as regards nationality to activities within the internal market (Articles 45, 49 and 56 TFEU = ex Articles 39, 43 and 49 EC) and concerning citizenship (Article 18 TFEU = ex Article 12 EC). Programmatic Treaty norms continue to grant a prominent position to gender. The EU aims to ‘promote equality between women and men’, but only to ‘combat discrimination’ on the other grounds (Article 3(3) TEU). Throughout all its activities, it is committed to eliminate inequalities and to promote equality between women and men (Article 8 TFEU = ex Article 3(2) EC), but only to combating discrimination based on sex and all the other grounds (Article 10 TFEU).

EU non-discrimination directives establish different hierarchies. First, the scope of the non-discrimination prohibition differs between grounds. Directive 2000/43 on race discrimination goes beyond the fields of employment and occupation, in which secondary sex equality law traditionally applied. Its scope extends to include healthcare, social advantages, education and access to and supply with goods and services available to the public. The gap in protection compared with gender equality was partly redressed by Directive 2004/113 on equality between women and men in access to and supply of goods and services. However, the latter directive does not cover education, social advantages and healthcare and has a narrower definition of goods and services available to the public than Directive 2000/43.¹¹ A clear hierarchy exists also between race discrimination and discrimination on grounds of sexual orientation, religion and belief, disability and age as prohibited by Directive 2000/78 (Employment Framework Directive), with the latter applying only to employment and occupation. The Employment Framework Directive neglects also the important field of social security, where sex discrimination is prohibited by Directive 79/7,¹² and denies protection in the fields of education, social advantages, health care beyond social security and access to and supply with goods and services. The EU Commission’s proposal for a new directive (European Commission 2008b) aims to close this gap between ‘race’ and the other four ‘new grounds’ (sexual orientation, religion and belief, disability and age). Adoption of this directive would complicate the field further, adding yet another definition of access to and provision of goods and services available to the public. The prohibition on race discrimination would continue to have the widest scope, while gender would be relegated to the bottom of the hierarchy, as discrimination against women in the fields of education, social advantages and health (outside of social security) would not be addressed by EU law.¹³

Second, hierarchies in levels of protection are established by granting a wider array of justifications and exceptions in relation to some grounds. For example, the Framework Directive includes an unprecedented exception in favour of public security, authorizing Member States to allow discrimination on the grounds, inter alia, of religion for those purposes. Furthermore, the Framework Directive establishes a specific regime of exceptions from the prohibitions on discrimination on grounds of religion and belief, disability and age.

Finally, the specific provisions requiring reasonable accommodation to be provided only for persons with disabilities can be read as granting a greater level of protection against this specific form of discrimination.

These divergences have led Mark Bell (20...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• Introduction
• Part I Discrimination Grounds and Intersectionality: A Reappraisal
• Part II Tackling Intersectionality at National Levels
• Part III Convincing the Judiciary to Entertain Intersectional Analysis
• Part IV Intersections between Gender, ‘Race’ and Disability from Eu Perspectives
• Bibliography
• Index