Transcript INTRODUCTION TO THE HUMAN RIGHTS ACT 1998

Legal perspectives on defining
identity: How does the law deal
with this?
Gay Moon
Head of the Equality Project
JUSTICE
The Problem
People
 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
successful
discrimination
cases
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 woman
White man
An example
A Turkish woman machinist complains of direct
discrimination against her employer.
The employer argues that it has employed nonTurkish 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.