Multi-dimensional discrimination: justice for the whole person

Multiple and intersectional discrimination present an important challenge for equality law. Here, we look at the problems and consider possible solutions that could be adopted in a single Equality Act.

On this page
The issues
Extent of the problem
Legal framework
The problem of finding a comparator
Why the law does not address intersectional discrimination
European law
Recommendations for reform
Conclusion

Discrimination law has evolved through the introduction of Acts that have addressed single grounds of discrimination. Each development has come about as a result of campaigning by a series of separate single interest groups. Now that there are several prohibited grounds for discrimination, it has become clear that people can experience discrimination on a number of different grounds simultaneously. The importance of this was highlighted by the focus in the Equality Act 2006 on the need for the new Equality and Human Rights Commission (EHRC) to consider discrimination both across groups and within groups.

This article explains the current legal position on multiple and intersectional discrimination and sets out the case for a change in the law in the forthcoming single Equality Act so as to facilitate discrimination claims on more than one ground.

“Multiple discrimination” is said to occur 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. “Multiple” and “intersectional” discrimination are terms that are frequently used interchangeably. However, in this article, “intersectional” discrimination is used to describe a particular type of multiple discrimination, where a person’s multiple identities intersect in a way that cannot be separated out.

The issues

Behind the legal problems that are discussed below is a simple truth: people cannot be fitted into boxes such as black, disabled or gay. 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, under our current laws, to make a complaint about discriminatory treatment on an undivided combination of grounds.

Extent of the problem

The fact that UK law does not allow for such cases means that there is little information about the number of people that are prevented from bringing claims as a result of this limitation. By comparison, the Ontario Human Rights Commission, which can support claims of multiple discrimination, found that 48% of its cases between 1997 and 2000 involved multiple discrimination. As the commission covers Toronto, one of the most diverse cities in Canada, it seems likely that a similar pattern could be found in some parts of Britain too.

There are a number of research studies that have pointed to the prevalence of multiple discrimination in Britain. The EOC study, Moving on up: the way forward¹, which examined the position of Bangladeshi, Pakistani and Black Caribbean women at work, concluded that 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. The study found that the workplace culture, or the way things are done in an organisation, may put anyone who is not from the majority group at a disadvantage.

The National AIDS Trust commissioned a study on the stigma and discrimination experienced by gay men and African people with HIV, which concluded that: “All African people with HIV suffer racism and xenophobia in a heightened form.”

A 2003 study commissioned by the Joint Equality and Human Rights Forum, Rethinking identity: the challenge of diversity, examined the position of people belonging to a number of multiply-disadvantaged groups from disabled ethnic minority groups to young gay people. This study 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.”

Legal framework

In some circumstances, the current legal provisions on discrimination are able to address problems associated with being a member of more than one disadvantaged group. There are broadly three ways in which multiple discrimination may manifest itself – the first two could fall within current law.

First, someone may experience discrimination on different grounds on separate occasions. For example, a female wheelchair user may be passed over for promotion because her employers want a man to take the lead and, on another occasion, she is excluded from the office party because it is being held in an inaccessible place. Here, the current laws are adequate, because a single aspect of a multiple identity is relevant to each occasion.

Second, there are cases of “additive discrimination” – where the steps in the overall treatment can be analysed separately. Such a case arises where there are, for instance, a series of requirements, perhaps in a job description, such that the lack of one decreases the chance of success in getting the job, and the lack of a further characteristic decreases the chance of success still more. The case of Perera v Civil Service Commission (no.2) [1983] IRLR 166 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, in the third category – intersectional discrimination – there are many situations where the current legal framework is totally inadequate. Where 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 and therefore it currently has no proper remedy under UK law.

This type of discrimination is not covered because of the particular approach of UK discrimination law, which requires comparisons to be made. A person wishing to claim discrimination must compare his or her treatment with someone not of the same sex/race/disability/religion or belief/sexual orientation/age, and under the case law this comparison can only be made in relation to a single characteristic, not with an indivisible combination of characteristics. Although comparison can be made with a hypothetical comparator, it is still only possible to compare one characteristic at a time. Also, because the law requires a comparison of “like with like”, a black woman cannot compare her treatment with that of a white man; she can compare her treatment only with that of someone who is not black or with a man. The employer, for example, could argue that they employ black people (who might all be men) and they employ women (who may be white). Similarly, an older woman cannot compare her treatment with that of a younger man or a Christian lesbian with an atheist man.

The law will permit only a horizontal or a vertical comparison, as illustrated below:

It will not allow a comparison on the diagonal, as shown below:

For example, a Turkish woman who applies for work as a machinist complains of direct discrimination when her application is unsuccessful. The employer argues that it employs 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 to satisfy the law. If the discrimination is against Turkish women, to show the full extent of the discrimination, she must be able to compare her situation to that of a non-Turkish man – it is necessary to consider the combined effect of both her race and her gender.

The problem of finding a comparator

The limitations of like-with-like comparison is a real problem, as the following examples illustrate:

A black woman serving in the armed forces is refused promotion. Comparison with a black man or a white woman may not show the discrimination that she has experienced.

A Muslim woman is refused a job because she is not permitted to wear a scarf while at work. If a Muslim woman compares her situation to that of a Muslim man it might not reveal the extent of her discrimination any more than a comparison of her situation to that of a non-Muslim woman. To capture the essence of the discrimination that she has experienced it could be necessary to consider her gender and religion together.

An African Caribbean boy is excluded from a school. In this case, comparing the boy’s situation with that of an African Caribbean girl may reveal only some, but not the full extent, of the discrimination he is experiencing. Similarly, comparison with a white boy might not reveal the full extent of the discrimination either.

An HIV-positive gay man is dismissed from his job as a porter in a nursing home with a religious foundation. 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 have tolerated his sexual orientation; and perhaps they would have accepted a haemophiliac who was HIV-positive. The true grounds for the treatment could be combination of sexual orientation and HIV status (a disability). This combination of grounds cannot be addressed under the current law.

So, a victim of intersectional discrimination frequently cannot have the reality of his or her experience recognised within the current legal framework. This is not just an equality issue it is a fundamental human rights issue, and it is one which the EHRC and the government need to address.

Why the law does not address intersectional discrimination

Intersectional discrimination is believed to be 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, case law has now ruled out this possibility.

In 2004, the Court of Appeal in Bahl v the Law Society [2004] IRLR 799 ruled on the way tribunals must deal with intersectional discrimination. 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. The Court said: “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.”

This judgment made it clear that each ground had to be considered separately 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 had 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 (see, for example Network Rail v Griffiths-Henry [2006] IRLR 865).

As a result, 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.

European law

The Race Directive, Employment Framework Directive and Equal Treatment Directive, which cover discrimination in gender, race, disability, religion or belief, sexual orientation and age, do not prevent member states from legislating to prevent intersectional discrimination; but neither do they expressly require it. However, they do recognise that different grounds may intersect.

For example, Recital 14 of the Race Directive, states: “In implementing the principle of equal treatment irrespective of racial or ethnic origin, the Community should, in accordance with Article 3(2) of the EC Treaty, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.”

Some member states have adopted legislation that recognises multiple and intersectional discrimination. In particular, new legislation in Austria, Germany and Romania expressly prohibits multiple discrimination.

One limitation on EU law is that the Directives do not prohibit discrimination outside the employment field in respect of religion or belief, sexual orientation or age, so that multiple discrimination claims entailing these grounds outside employment cannot be brought. The recent announcement by the European Commission that they intend to bring forward a new Directive to cover this area is therefore an important development. The European Commission needs to address these issues as part of its work programme for 2008.

Recommendations for reform

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 single Equality Act, which the Government has promised, provides a real opportunity for change. In the context of current UK law and the imperative to operate within the EC equality Directives, there are a number of adjustments to our existing provisions that could easily be made.

The Equality and Diversity Forum and JUSTICE have proposed the following solutions to the Government:

Multiple comparisons should be expressly permitted, allowing the courts to combine consideration of two or more grounds. For example, a clause could be included in any new single Equality Act saying: “For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.”

The omission of the clause in existing discrimination legislation that requires that “the circumstances in the one case are the same, or not materially different, in the other”. This would lessen the need to show a hypothetical comparator and put more emphasis on the reason why the discrimination occurred. This wording does not entirely remove the comparative element in assessing whether discrimination has occurred, because, in order to establish “less favourable treatment” or a “detriment”, a comparative assessment would have to be made.

In circumstances where there is a genuine reason for a difference in treatment – for example, if there is a genuine occupational requirement – that applies to one ground of discrimination it should, in effect, be treated as cumulative and apply to all the grounds involved in a multiple discrimination case. Similar wording to that used in Germany could be used: “Discrimination based on several of the grounds … is only capable of being justified … if the justification applies to all the grounds liable for the difference of treatment. So if there is an exception for one part of the multiple claim it will act as an exception for the whole of the claim. This would also mean that, for example, where there is a genuine occupational requirement for a woman to perform a particular caring function and a black man applies for the job, the fact that he is a man will prevent him getting the job in question and the fact that he is black becomes irrelevant.”

In awarding damages for cases of multiple discrimination the court or tribunal could be given discretion to increase the amount awarded in relation to injury to feelings to reflect the number of grounds.

Conclusion

The government needs to understand that the new single Equality Act would be incomplete and inadequate without an explicit provision to outlaw all forms of multiple and intersectional discrimination.

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.

1. Moving on up? The way forward, Equal Opportunities Commission, March 2007 (PDF format, 968K) (on the EOC website).

This article was written by Gay Moon, Joseph Rowntree Charitable Trust Fellow and special legal adviser to the Equality and Diversity Forum.