Credits: Nozizwe Dube
By: Nozizwe Dube
This blogpost draws upon a conference presentation entitled ‘Capturing Intersectional Harm, Fostering Anti-Subordination: New Directions for EU Equality Law’ presented at the 12th annual Berkeley Center on Comparative Equality & Anti-Discrimination Law Conference. This conference aimed to reflect on the achievements, limitations, and future potential of equality law, as it marks 25 years since EU equality law expanded its prohibitions of discrimination beyond the initial focus on gender and nationality. The author’s conference attendance was facilitated by a conference attendance grant from the Netherlands Network of Human Rights Research (NNHRR).
Introduction
This year marks 25 years since the EU adopted the Framework Employment Directive and the Race Equality Directive. At the time, the adoption of these ‘twin’ equality Directives was notable. Until then, EU law solely prohibited discrimination based on gender and nationality. The twin equality Directives significantly expanded the EU legal landscape; prohibiting discrimination on the grounds of race and ethnic origin, age, disability, religion or belief, sexual orientation, and disability – albeit with differing material scopes. Yet, some scholarship signals that the celebratory mood from 25 years ago is gradually dissipating as the cracks in EU equality law’s foundation become increasingly evident (Somek, Möschel). EU equality law’s inability to capture widespread forms of disadvantage such as intersectional discrimination – the topic of my doctoral research – hint that the legal framework needs an overhaul. In this spirit, in what follows, I discuss how rerouting EU equality law away from a focus on an acontextual legal subject and comparative harm to a contextual approach to discrimination can propel the legal framework to new horizons that will enable it to fulfil its social justice potential. Before this, I first define intersectional discrimination and note some of the cases where this distinct form of harm has been raised before the European Court of Justice (henceforth ECJ).
Capturing Intersectional Harm, Fostering Anti-Subordination: New Directions for EU Equality Law
Intersectional discrimination is a form of disadvantage stemming from the synergistic interaction between two or more discrimination grounds such as race and gender, causing a distinct form of harm. Despite the prominence of intersectional discrimination across the EU as evidenced by cases such as Parris (concerning the intersection of sexual orientation and age) and Z (on the intersection of disability and gender), the ECJ has not acknowledged intersectional discrimination to date. At least two hurdles stand in the way. A first problem is the ECJ’s dominant focus on comparative harm, which leads to an acontextual analysis of intersectional discrimination. Acontextual analysis equality is characterised by the erasure of the historical and broader social background to discriminatory practices (Jones, Gaze). The appeal of acontextual equality analysis lies in how it gives an illusion of legal certainty and objectivity to the legal analysis of discrimination. I submit that the effects of this illusion are clear in how intersectional discrimination consistently lacks acknowledgment from the ECJ, a court that remains wedded to acontextual equality analysis. The second hurdle is the dominance of the liberal legal subject in EU law, which also reinforces the acontextual approach to intersectional harm. Overcoming these hurdles by identifying new directions for EU equality law can propel the ECJ towards the acknowledgment of intersectional harm in its equality jurisprudence.
I turn first to the issue of EU equality law’s focus on comparative harm. To establish a presumption of discrimination, the claimant of discrimination must compare themselves to an individual comparator. In its equality jurisprudence, the ECJ traditionally compares a claimant to an intercategorical comparator, meaning a comparator that the claimant does not share the relevant personal trait presumed to be the cause for discrimination. An example of an intercategorical comparison is between religious and non-religious people. The ECJ now also conducts intracategorical comparisons between people who share at least one personal trait that is relevant for the discrimination. An example of an intracategorical comparison is one between people belonging to different religions, such as between Muslims and Sikhs. While both groups share the fact that they are religious, the religion itself differs. The problem is that neither inter- nor intracategorical comparison suffice for intersectional discrimination. The reason for this is that inter- and intracategorical comparison both assess the existence of discrimination by only considering the treatment of people in the claimant’s vicinity and immediate environment, such as colleagues in the same place of employment. However, as a structural form of harm, intersectional discrimination is best ascertained through considering the historical and broader societal context wherein harmful systems of marginalisation are embedded. The ECJ’s ‘immediate’ comparison is an acontextual approach to intersectional harm as it erases how systems of marginalisation etched in society create the conditions that enable interpersonal occurrences of discrimination in smaller contexts such as places of employment. OP v Commune d'Ans exemplifies this acontextual approach.
Acontextual equality analysis is also reinforced by another fixation of EU equality law: the acontextual legal subject. This acontextual legal subject is rooted in legal liberalism. According to legal liberalism, legal subjects are independent, atomistic, rational units lacking history and context. Due to this atomistic approach, legal subjects in EU law are rarely addressed as a whole person. For example, the legal subject in EU law is often addressed in a ‘severed’ manner as either a worker, a Black person, or a woman. Rarely does the legal subject possess several personal traits at once: the previous legal subject could very well be a Black female worker. As EU law conceives of legal subjects in a liberal legalist manner, this means that intersectional claims follow the fragmented nature of EU equality Directives. This not only bolsters acontextual equality analysis: it also encourages a single-axis or single dimensional approach to all discrimination – including intersectional harm.
Acontextual analysis, facilitated through EU equality law’s focus on comparison and liberal legalism, falsely presents intersectional discrimination as an individual misfortune. To capture intersectional harm, EU equality law must oust comparison as the central way of ascertaining a presumption of intersectional discrimination. Instead of centring comparison, the ECJ must focus on conducting a broader contextual harm assessment. This broader contextual harm assessment entails that the ECJ is attentive to the intersecting systems of marginalisation embedded in society. It is these intersecting systems of marginalisation that inflict discriminatory harm on those who are situated at their point of contact. Hence, the existence of both intersecting systems of marginalisation (such as patriarchy, racism, and disablism) and a claimant from a multiply marginalised group at their intersection (such as a Black woman or a woman with disabilities) creates the conditions that contribute to a presumption of discrimination.
The application of a broader contextual harm assessment to OP. v Commune d'Ans can illustrate this point. In OP v Commune d’Ans, a woman wishing to wear a headscarf at her place of employment contested her employer’s neutrality regulation. She argued that this constituted religious and gender discrimination, as neutrality regulations disproportionately inflict discriminatory harm on women. The ECJ disregarded the intersectional harm. A broader contextual harm assessment would have led the ECJ to consider how contemporary neutrality regulations are an extension of intersectional racist and sexist practices stemming from colonialism that required Muslim women to unveil themselves to achieve exclusionary and harmful European standards of civilisation. With this broader contextual harm assessment, the intersectional harm is not falsely presented as an aberrational instance of disadvantage. Instead, a broader contextual harm assessment conceives of the intersectional harm as the fostering of a structural harm into the present. With this approach, a presumption of intersectional discrimination can be ascertained.
Conclusion
25 years after the significant expansion of EU equality law with the adoption of the twin equality Directives, intersectional discrimination remains unacknowledged by the ECJ. A path towards acknowledging intersectional harm lies in EU equality law forgoing its fixation on comparative harm and the acontextual legal subject. By adopting a broader contextual harm assessment, the ECJ can finally grasp the magnitude of intersectional discrimination as a form of structural harm. Over a decade since Parris, one of the ECJ’s most prominent intersectional discrimination cases, the acknowledgment of intersectional harm is long overdue.
Bio:
Nozizwe Dube is a PhD candidate in EU Law at the Faculty of Law of Maastricht University. In her doctoral research project, Nozizwe conducts a critical race feminist analysis of EU equality law. To this end, her doctoral research project also comprises of comparative research with the equality jurisprudence of the European Court of Human Rights, the US Supreme Court, and the Constitutional Court of South Africa.