The Equality Act 2010 sought to introduce the concept of multiple discrimination into legislation but failed to deliver on its objectives. Iyiola Solanke argues that the approach to incorporating protection from multiple discrimination in law needs to move away from the current additive or cumulative approach. Instead, law makers should recognise the more complex and deeper dimension of ‘intersectionality’ that characterises multiple discrimination. Iyiola suggests using a stigma-led logic to redefine the way anti-discrimination law is drafted and thought about.
Designing law to tackle discrimination was always a complex matter, even when it was ostensibly simply a question of black and white, or male and female. The earliest anti-discrimination laws in Britain flattened identity and simplified reality in order to arrive at a workable logic that could be both understood by the public and applied by the courts.
The logic of immutability achieved these ends – law protected those who were subjected to disadvantageous treatment as a result of attributes or characteristics over which they had little or no control. Such characteristics, which included sex, skin colour, ethnic or national origin, were – to use the current terminology in the Equality Act 2010 – ‘protected’ by law.
However cases now arise which confound this legislative logic. Firstly, the extension of legal protection to discrimination on the grounds of religion or sexual orientation suggests a loosening of the logic of immutability. Secondly, the existence of discrimination on grounds not recognised in law such as weight or caste suggests that the existing logic is allowing discrimination to continue with impunity.
How do we determine if they should be protected by discrimination law? Can the logic of immutability still be used or must a new logic be sought to facilitate protection from discrimination and the delivery of equality?
Similar questions arise beyond Britain, in relation to the development and design of anti-discrimination law in the European Union. Since 1997, the EU has possessed, under Article 19 TFEU, the competency to tackle discrimination on the grounds of race, ethnicity, sexual orientation, age, religion and belief. It activated this competency with the introduction of two key Directives in 2000. Thus, in 2011 there exists – in law, if not in fact – within the 27 EU member states, a minimum level of protection against certain types of discrimination.
In a communication to the Council and European Parliament, the Commission recently declared that ‘Measures to tackle discrimination, racism, anti-Semitism, xenophobia and homophobia must be vigorously pursued’ making full use of the existing instruments. It appears that immutability will also feature in the interpretation of EU equality law. However, if immutability remains the focus of European anti-discrimination law, can it fulfil this goal effectively? Furthermore will it be able to address the issue of multiple discrimination which the Commission has also identified as a priority?
There are therefore common questions which should occupy legislators and bureaucrats at the national and European Union level as they develop anti-discrimination and equality laws and in particular seek to design a workable remedy for intersectional discrimination, the most potent type of multiple discrimination.
It is questionable whether the various forms of multiple discrimination (additive, cumulative and intersectional) can be spoken of and addressed as one. The British legislator in fact recognised that these are separate forms and intersectional discrimination was the only type for which discrimination law provided no remedy. To address this, protection was established in a new clause in the Equality Act. It stated that:
‘A person (A) discriminates against another (B) if, because of a combination of two relevant protected characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics.’
However, can protection from intersectional discrimination be limited to just two protected characteristics? This suggests a mode of thinking which is more characteristic of additive rather than intersectional multiple discrimination. The wording suggests that the provision lacks the sense of synergy at the heart of intersectionality. In my view, this is the key element that needs to be taken into account. This is at the core of intersectionality and is what differentiates it from additive and cumulative multiple discrimination.
‘Mosaic’ theory may help legislators, parliamentarians and civil society to grasp the synergy at the centre of intersectionality. According to mosaic theory, ‘the whole is more than the sum of its parts.’ This theory was developed in the context of national security case law to address the fact that ‘[d]isparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information…In other words, the difference between the whole and its individual components ―is not one of degree but of kind.’
In recognising a difference of quality rather than quantity, mosaic theory also encapsulates the significant difference between additive, cumulative and intersectional multiple discrimination – intersectionality is not simply about more grounds of discrimination but points to a completely different kind of discrimination that is deeper, more obscure and more complex.
It is questionable whether the logic of immutability is nuanced enough to capture this qualitative difference. Thus in order to design an effective remedy for intersectionality in particular a replacement logic may be required for anti-discrimination law in general.
This is the real challenge for legislators: there is much evidence demonstrating that defaults are hard to dislodge – the starting point for change is always ‘sticky’. The stickiness of the logic of immutability may explain why section 14 – one of the most pioneering provisions in the Equality Act – failed to fulfil its objectives.
Although it may sound radical, identifying a replacement logic for anti-discrimination law need not be so. One might, for example, use the idea of stigma. Stigma does the work of immutability and more – whilst some are permanent (immutable), others are temporary; some are visible, others invisible. They can be inherent or inherited. Perhaps most importantly of all, stigmas are contextually determined: unlike immutability they do not focus on the individual but on negative meanings that are arbitrarily inscribed by society on individual attributes.
A stigma-led logic would not bring all stigmas under the scope of discrimination law, only those which have specific characteristics and consequences, such as whether the group created by the stigma can be described as ‘discrete, insular and powerless’. It could provide a way of thinking about discrimination that addresses both intersectionality and other forms of persistent inequality in the short and long term.
Legislators need to consider the extent to which the logic of immutability remains a reliable guide in the 21st century to the construction of this type of legal protection in general and in particular whether it aids in the project to tackle intersectional discrimination.
The logic of immutability may be incompatible with intersectionality because it cannot capture the sense of synergy central to this concept. If immutability increasingly thwarts rather than supports the objectives of equality law, the first step legislators may need to take is a conceptual one, away from the logic of immutability underpinning current anti-discrimination law.
Legislators, like technology managers, need to consider whether there might be a ‘new paradigm out there’ which better fits the goals of anti-discrimination law in the European Union.
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).