In the book ‘Engineering Equality: An Essay on European Anti-Discrimination Law’, Alexander Somek attacks the design of anti-discrimination legislation (ADL) arguing that it undermines social policy and fails to deliver on its own objectives. Iyiola Solanke reviews the book and finds that Somek seems to be examining ADL in a vacuum. She concludes that in the absence of a review of its foundational moorings, ADL becomes vulnerable to public attacks.
Anti-discrimination law (ADL) develops incrementally: Britain passed its first Race Relations Act in 1965. It provided a limited remedy for protection against racial discrimination in public places. In 1975, protection against sex discrimination was introduced. Since then, legal remedies have expanded to cover age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sexual orientation, religion and belief. These now exist in a single statute – the Equality Act 2010 (EqA 2010).
The EU began its foray into ADL in 1957: the Treaty of Rome prohibited discrimination on the grounds of nationality and sex. In 1997, after years of lobbying by civil society organisations across the member states, it introduced a legal amendment to prohibit discrimination on the grounds of age, disability, race and ethnic origin, religion and belief and sexual orientation (Art 19 TFEU). Subsequent Directives include Race Directive 2000/43 and the Employment Equality Directive 2000/78.
In the book, Engineering Equality: An Essay on European Anti-Discrimination Law, Alexander Somek interrogates the premises and practices of anti-discrimination law in the European Union. Somek has much to say but little that is positive about ADL and its advocates, as suggested by the book title. He asserts that ‘progressive’ legal scholars and steadfast libertarians alike are undermining their own goals, for the more successful ADL, the weaker social policy in the EU becomes: its ‘ascendancy is concomitant to a displacement of that full blown social policy which would be required for its own realization’. Further into the text, he describes ADL norms as ‘having the same deadening effect on the perception of social reality as moralistic attributions of evil schemes’.
Somek’s aim is to explain why ADL in the EU is not only an impoverished form of social legislation but also the antithesis of social policy. He chooses what he describes as an ‘internal’ exploration of the objective of ADL focusing on key concepts of ‘direct’ and ‘indirect’ discrimination, and the methods adopted by ‘first’ and ‘second’ generation ADL. From his internal – admittedly narrow – perspective he concludes ADL should be read as ‘law that accords priority to the redistributive point of view’. From this stance he identifies the central design flaw of ADL as its ‘normative deficiency’: ADL ‘does not regulate enough’: its rules are too few and so they ‘fail to deliver’. There are two strands to this deficiency, which has its source in the ‘hegemony of neoliberalism’: first, the limited de-commodification due to a failure to ‘recognize any distributive patterns’ and secondly, a lack of understanding of ‘pre-normative intentions’ because of ‘an inescapable, however often disclaimed, concern with the intent of the agent’.
This normative deficiency explains the operational failure of ADL: EU ADL has had to move from hard norms to ‘equality management’ in the form of soft, innovative, voluntary action – because hard norms have failed. The retreat from law to management involves a ‘high degree of “pedagogicization” – practical training and moral improvement’ to change attitudes and social understandings. These ‘second generation’ tools are used to re-organise the workplace and transform employees into unwilling ‘agents’ of equality via social learning processes. Thus the engineering of equality by the neoliberal left is ultimately a process of ‘moral purification’ – the creation of a world ‘inhabited by better people – and not a world where power differentials in the relation of capital and labour have been readjusted such as to approach evermore closely a sustainable equilibrium.’
This is the frustration at the heart of Somek’s tome, which he insists is not a ‘diatribe against the noble cause of protecting people from discrimination’ – his target is its design. He objects not to its goals but to where the burden falls for this providing protection from discrimination – increasingly upon the shoulders of the ordinary worker who is ultimately also the final victim of neoliberal capitalism. The worker is therefore caught in a pincer movement, disempowered by the neo-liberal left and neo-liberal capital.
This brings me to a first criticism of this work – the absence of time. The strict focus on the EU incorporates traits into Somek’s analysis that he condemns in neo-liberalism: it is both apolitical and ahistorical. ADL cannot be analysed in a vacuum – if studied in the absence of time and space, it will indeed appear deficient and irrational. Whilst gender equality was the original form of ADL in the EU and has become the most successful and prominent form internationally, it was not the original focus of these laws. It is impossible to understand the goals and concepts outside of world history, in particular the Atlantic slave trade, European colonization of Africa, Asia and the Caribbean, and the Holocaust in Germany. It is clear why Somek does not mention these, but the failure to do so means his analysis suffers its own deficiencies which resemble the neoliberal system that he condemns.
The failure to consider history and politics leads Somek to a conflation of ADL in the EU. First, Articles 18 and 19 TFEU appeared separately in EU law and given the continued existence of two articles clearly retain their separate jurisprudential paths. Somek does not present strong evidence that the acknowledged competitive logic underlying Arts 18 & 157 TFEU has infiltrated Art 19 TFEU and thus EU ADL in general – since 2000 there have been just two cases of race discrimination and a limited number on age and disability discrimination. What Somek currently presents as EU ‘ADL’ is in fact overwhelmingly EU nationality and sex equality law. This convenient conflation allows him to posit and dismiss EU ADL per se as the key threat to social policy in the EU but this is not empirically sustainable.
Somek also ascribes a questionable universalism to ADL. For example, his discussion on the role of intent in direct discrimination does not take into account the fact that judges in Britain have stressed in cases from James to the more recent JFS that intention –motive – plays no part in determining unlawful direct discrimination. The question of ‘but for’ is not one of causality but of connection between a protected characteristic and action. As the judges explained in JFS, theirs is not to reason why.
Another example of assumed universality is Somek’s assertion of a link of ADL to social policy. This may be true in relation to gender equality at the EU level and in some EU member states (such as Germany) but it does not apply to the protection from racial discrimination anywhere in the world. The rationale for anti-racial discrimination law has always been located beyond the welfare state – it was not on the list of risks that should not ‘lie where they fall’.
It is interesting that in developing his argument Somek can ignore the history and politics of ADL internationally and speak of it as a whole with hardly a nod to its foundation in the prohibition of racial discrimination. Here we have a book on discrimination that is silent on race. This is noteworthy – how can ADL be detached from its foundational moorings? The casual detachment raises a fundamental question of ADL: what is its rationale in the 21st century – how is its existence to be explained in the absence of race? Can it be explained in the absence of race? What replaces immutability when protection is extended? How in the absence of immutability do legislators decide where protection should not be created?
Somek’s book is a reminder of the importance of a coherent rationale to guide the evolution of ADL in the EU and demonstrates how in the absence of this, ADL is vulnerable to public attack. The book draws attention to the need for an essential debate on the foundation and rationale for ADL in the 21st century, that in my view must recognise its history in the 18th and 19th.
Iyiola Solanke is Senior Lecturer in Law, Leeds University Law School and a Visiting Fellow at the LSE European Institute. She lectures on European Union Law and Anti-Discrimination Law. Her research is interdisciplinary and includes racial equality in Europe, intersectionality in anti-discrimination law, diversity in legal education and the legal profession, anti-racial discrimination law in Britain, Germany and the EU, and the European Court of Justice. Her publications include articles in the Columbia Journal of European Law and the Modern Law Review. Her monograph, The Evolution of Anti-Racial Discrimination Law in Britain and Germany, was published by Routledge in 2009 (paperback July 2011).
